United States Court of Appeals,
Eleventh Circuit.
No. 94-5237.
Michael D. RAY, Plaintiff-Appellant,
v.
U.S. DEPARTMENT OF JUSTICE, Immigration and Naturalization
Service, Defendants-Appellees.
July 16, 1996.
Appeal from the United States District Court for the Southern
District of Florida. (No. 89-288-CIV-KLR), Kenneth L. Ryskamp,
Judge.
Before EDMONDSON, Circuit Judge, FAY and GIBSON*, Senior Circuit
Judges.
EDMONDSON, Circuit Judge:
This appeal is one from the denial of an award of attorney's
fees under the Freedom of Information Act. The award was sought
for work done by a lawyer who (with the help of another lawyer) was
representing himself. This appeal is also one from the refusal to
enhance the fee award given the litigant-lawyer for his
co-counsel's work on the case. We affirm.
Michael Ray, a lawyer, wanted access to Immigration and
Naturalization Service (INS) documents about Haitian nationals who
had been interdicted by the Coast Guard and who were later
involuntarily returned to Haiti. Ray filed—in his own name—six
requests for information about the interdictees under the Freedom
of Information Act, 5 U.S.C. § 552, (FOIA). When INS did not
respond to the requests, Ray sued (again in his own name). He
*
Honorable Floyd R. Gibson, Senior U.S. Circuit Judge for
the Eighth Circuit, sitting by designation.
proved his case, and the district court ordered INS to comply with
FOIA's time limits. This order is reported atRay v. U.S. Dep't of
Justice, 770 F.Supp. 1544 (S.D.Fla.1990).
As a prevailing party, Ray filed a motion for attorney's fees
under FOIA. See 5 U.S.C. § 552(a)(4)(E). Ray sought fees for his
own legal work and fees for the legal work of another lawyer who
assisted him. In a comprehensive order, see Ray v. U.S. Dep't of
Justice, 856 F.Supp. 1576 (S.D.Fla.1994), the district court
concluded that Ray, as a pro se plaintiff, was entitled to no award
of attorney's fees for his own work. The court did award Ray fees
for the work of his co-counsel. The court declined to enhance the
amount of this award, however.
The first question in this appeal is whether Congress
intended under 5 U.S.C. § 552(a)(4)(E) to permit a district court
to assess against the United States "reasonable attorney fees"
where the "fees" are based on the legal work of a pro se litigant
who is also a lawyer. To answer this question we rely chiefly on
Kay v. Ehrler, 499 U.S. 432, 111 S.Ct. 1435, 113 L.Ed.2d 486
(1991).
In Kay, the Supreme Court decided whether a pro se litigant
who also is a lawyer could be awarded fees for his own services
under 42 U.S.C. § 1988. While section 1988 was intended to "enable
potential plaintiffs to obtain the assistance of competent
counsel,"1 the Court concluded that the "overriding statutory
1
Congress observed that citizens with meritorious civil
rights claims sometimes could not afford a competent attorney.
See generally Kay, at 436 n. 8, 111 S.Ct. at 1437 n. 8. Fee
shifting statutes seem to recognize the reality that "defending
the underdog is fine, but it's usually the upperdog who can pay
concern" of the section was to encourage the retention of
independent counsel by victims of civil rights violations. Kay, at
435-36, 111 S.Ct. at 1437. Permitting a fee award to a pro se
litigant—even one who is a lawyer—would discourage such a plaintiff
from employing independent counsel; so, the Court held no fees
could be awarded. Id. at 435-38, 111 S.Ct. at 1437-38.
The fee shifting provisions of section 1988 and FOIA are
substantially similar. (FOIA permits the court to assess against
the United States "reasonable attorney fees." Section 1988 permits
the court to award "a reasonable attorney's fee."). No difference
in language dictates that the two statutes should be interpreted
differently.2
And, Ray makes no arguments that the congressional policy
behind section 1988 (that is, the policy of encouraging and
enabling plaintiffs to employ independent counsel, see Kay, at 437-
38, 111 S.Ct. at 1438) is not the same policy behind section
552(a)(4)(E). We think that the policies behind the two fee
shifting statutes are the same. See Benavides v. Bureau of
the big fees." See Jack Mingo and John Javna, Primetime Proverbs
113 (1989) (quoting Alfred Hitchcock speaking on "Alfred
Hitchcock Presents").
2
On the text of FOIA, we also agree with the Supreme Court
that the word "attorney" generally assumes some kind of agency
(that is, attorney/client) relationship. See Kay, at 435-36, 111
S.Ct. at 1437; see also Duncan v. Poythress, 777 F.2d 1508, 1518
(11th Cir.1985) (en banc) (Roney, J., dissenting). The fees a
lawyer might charge himself are not, strictly speaking,
"attorney's fees."
And, where a lawyer represents himself, legal fees are
not truly a "cost" of litigation—no independent lawyer has
been hired (or must be paid) to pursue the FOIA complaint.
See Falcone v. IRS, 714 F.2d 646, 647 (6th Cir.1983).
Prisons, 993 F.2d 257, 259-60 (D.C.Cir.1993) (discussing this issue
in case involving pro se non-lawyer plaintiff); cf. Celeste v.
Sullivan, 988 F.2d 1069, 1070 (11th Cir.1992) (applying Kay to
non-lawyer pro se plaintiff in Equal Access to Justice Act case).
So, we believe the principles announced in Kay apply with equal
force in this case to preclude the award of attorney's fees Ray
seeks for his own work.3
Ray also says that the district court abused its discretion
in calculating the amount of the fee award given Ray for the work
of his independent lawyer, see Popham v. City of Kennesaw, 820 F.2d
1570, 1581 (11th Cir.1987) (setting out standard of review). Ray
argues that this amount is not reasonable given his "exceptional
success." Put differently, Ray wants the lodestar enhanced. See
generally Norman v. Housing Authority of Montgomery, 836 F.2d 1292,
1302 (11th Cir.1988). While Ray's lawyer did help Ray obtain an
order which was important to some people, we conclude no abuse of
discretion has been shown.4 Given this conclusion, we do not
consider whether City of Burlington v. Dague, 505 U.S. 557, 112
S.Ct. 2638, 120 L.Ed.2d 449 (1992), precludes enhancement of the
lodestar under any circumstance.
3
We also observe that any fact differences between this case
and Kay (such as that Ray hired a lawyer to help him, that Ray
was licensed to practice in the district in which he was
litigating, or that Ray might have been acting "in the public
interest") have no impact on this question of statutory
construction.
4
The district court found that the result obtained in this
case was not "out of the ordinary, unusual or rare." Nor was the
result "unexpected in the context of extant substantive law."
The court said that it, in response to a suit filed by Ray,
"merely ordered the INS comply with the mandates of FOIA."
AFFIRMED.