Gahagan v. U.S. Citizenship & Immigration Servs.

• Decision Date: 20 December 2018
• Docket Number: Nos. 17-30898,17-30901,17-30999,s. 17-30898
• Citation: 911 F.3d 298
• Parties: Michael W. GAHAGAN, Plaintiff-Appellant, v. UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES, Defendant-Appellee. Michael Gahagan, Plaintiff-Appellant, v. United States Department of Justice; United States Department of Homeland Security; United States Immigration & Customs Enforcement; Executive Office of Immigration Review, United States Department of Justice, Defendants-Appellees. Michael W. Gahagan, Plaintiff-Appellant, v. United States Citizenship & Immigration Services; U.S. Customs & Border Protection, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

911 F.3d 298

Michael W. GAHAGAN, Plaintiff-Appellant,

v.UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES, Defendant-Appellee.

Michael Gahagan, Plaintiff-Appellant,

v.United States Department of Justice; United States Department of Homeland Security; United States Immigration & Customs Enforcement; Executive Office of Immigration Review, United States Department of Justice, Defendants-Appellees.

Michael W. Gahagan, Plaintiff-Appellant,

v.United States Citizenship & Immigration Services; U.S. Customs & Border Protection, Defendants-Appellees.

Nos. 17-30898

17-30901

17-30999

United States Court of Appeals, Fifth Circuit.

FILED December 20, 2018

Michael Wayne Gahagan, Esq., Immigration Law Firm of New Orleans, Metairie, LA, Mahesha P. Subbaraman, Attorney, Subbaraman, P.L.L.C., Minneapolis, MN, for Plaintiff-Appellant.

Jason M. Bigelow, Assistant U.S. Attorney, Kevin G. Boitmann, Assistant U.S. Attorney, Peter M. Mansfield, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Louisiana, New Orleans, LA, for Defendant-Appellee.

Before DAVIS, COSTA, and OLDHAM, Circuit Judges.

ANDREW S. OLDHAM, Circuit Judge:

The question presented is whether attorneys appearing pro se can recover fees under the Freedom of Information Act ("FOIA"). The district court held no. We affirm.

I.

A.

Michael W. Gahagan is an immigration attorney. He uses FOIA to obtain government documents. In these consolidated cases, he requested documents from various federal agencies. Gahagan requested some of these documents to assist immigration clients. Others he requested for personal reasons. He made each request in his own name.

Gahagan was unsatisfied with the Government’s response to his requests. So he filed three separate pro se lawsuits. In each case, Gahagan was considered the prevailing party and moved for an award of costs and fees. Each district judge awarded Gahagan costs. But each judge also held Gahagan was ineligible for attorney fees under FOIA.¹ Gahagan appealed each denial of fees.

B.

"Our basic point of reference when considering the award of attorney’s fees is the bedrock principle known as the American Rule: Each litigant pays his own attorney’s fees, win or lose, unless a statute or contract provides otherwise." Baker Botts L.L.P. v. ASARCO LLC , ––– U.S. ––––, 135 S.Ct. 2158, 2164, 192 L.Ed.2d 208 (2015). Courts "have recognized departures from the American Rule only in ‘specific and explicit provisions for the allowance of attorneys’ fees under selected statutes.’ " Ibid. (quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc’y , 421 U.S. 240, 260, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975) ). The Supreme Court analyzes a statute’s specificity and explicitness in the context of a particular fee request. That a statute is sufficiently specific and explicit to authorize one type of fee award does not make it sufficiently specific and explicit to authorize another type of fee award. See id. at 2165.

FOIA authorizes courts to "assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed." 5 U.S.C. § 552(a)(4)(E)(i). By authorizing a court to "assess ... reasonable attorney fees," that provision overcomes the American Rule in at least some circumstances. In this particular circumstance, however, the question is whether FOIA specifically and explicitly authorizes a fee award to an attorney appearing pro se .

Three precedents bear on that question. The first is our decision in Cazalas v. DOJ , 709 F.2d 1051 (5th Cir. 1983). In that case, we decided "a litigant attorney represent[ing] herself or himself" is eligible for "an award of attorney fees under the FOIA." Id. at 1057. Judge Garwood dissented. Circuit precedent denies fees to "a nonattorney pro se litigant," and Judge Garwood did "not believe that Congress intended to discriminate between pro se FOIA litigants solely on the basis of whether they were licensed to practice law." Id. at 1059 (Garwood, J., concurring in part and dissenting in part).

The second key precedent is Kay v. Ehrler , 499 U.S. 432, 111 S.Ct. 1435, 113 L.Ed.2d 486 (1991). Kay involved 42 U.S.C. § 1988, which authorizes an award of "a reasonable attorney’s fee" to "the prevailing party" in a civil rights case. In Kay , the Court rejected "[a] rule that authorizes awards of counsel fees to pro se litigants—even if limited to those who are members of the bar," for fear it "would create a disincentive to employ counsel whenever such a plaintiff considered himself competent to litigate on his own behalf." 499 U.S. at 438, 111 S.Ct. 1435. The Court instead emphasized that "[t]he statutory policy of furthering the successful prosecution of meritorious claims is better served by a rule that creates an incentive to retain counsel in every such case." Ibid. Therefore, the Supreme Court held "a pro se litigant who is also a lawyer may [not] be awarded attorney’s fees." Id. at 435, 111 S.Ct. 1435.

The third precedent is Texas v. ICC , 935 F.2d 728 (5th Cir. 1991). In ICC , "Texas sued the Interstate Commerce Commission under [FOIA] to force the ICC to disclose certain documents." Id. at 729. Texas prevailed. The district court nonetheless denied its motion for attorney fees. The ICC defended that result by arguing we had "previously held that some classes of ‘complainants’—namely, pro se plaintiffs—are not eligible for fee-shifting." Id . at 731. The ICC contended legislative history similarly prohibited states from recovering fees. Ibid. We disagreed. After all, Cazalas had "held that lawyers who represent themselves in FOIA actions may recover under the fee-shifting provision." Ibid. (citing Cazalas , 709 F.2d at 1055–57 ). We ultimately concluded "courts can in appropriate circumstances award attorneys fees to states." Id. at 733.

In the consolidated cases before us today, three different district judges rejected Gahagan’s claims for fees. The lead opinion, by Judge Feldman, is thoughtful and well-reasoned. It notes every other court of appeals to consider the question after Kay has held FOIA disallows prevailing-party fees for pro se attorneys. And it notes ICC —which we decided just three months after Kay —says nary a word about the Supreme Court’s unanimous holding in that case. Judge Feldman therefore followed Kay and denied Gahagan’s fee request. See Gahagan v. U.S. Citizenship & Immigration Servs. , No. 16-cv-15438, 2017 WL 4003851, at *3–4, *7 (E.D. La. Sept. 12, 2017). Two other district judges rejected Gahagan’s requests for the same reasons. See Gahagan v. U.S. Citizenship & Immigration Servs. , No. 15-cv-6218, 2017 WL 6540409, at *1 (E.D. La. Dec. 21, 2017) ; Gahagan v. DOJ , No. 13-cv-5526, 2017 WL 4168409, at *1 (E.D. La. Sept. 20, 2017). Our review is de novo . See ICC , 935 F.2d at 730.

II.

Everyone agrees we must reverse if Cazalas remains binding precedent. Whether Cazalas is still binding turns on first- and second-order questions under the rule of orderliness. The first question is whether ICC requires us to follow Cazalas . It does not. The second question is whether Kay requires us to abandon Cazalas . It does.

A.

In considering these questions, we follow the well-settled rule of orderliness: "[T]hree-judge panels ... abide by a prior Fifth Circuit decision until the decision is overruled, expressly or implicitly, by either the United States Supreme Court or by the Fifth Circuit sitting en banc." Cent. Pines Land Co. v. United States , 274 F.3d 881, 893 (5th Cir. 2001) (quotation omitted). Fifth Circuit precedent is implicitly overruled if a subsequent Supreme Court opinion "establishes a rule of law inconsistent with" that precedent. Gonzalez v. Thaler , 623 F.3d 222, 226 (5th Cir. 2010) ; see also Carter v. S. Cent. Bell , 912 F.2d 832, 840 (5th Cir. 1990) (requiring adherence to a prior panel’s interpretation "unless that interpretation is irreconcilable with" a later Supreme Court decision). "[F]or a Supreme Court decision to override a Fifth Circuit case, the decision must unequivocally overrule prior precedent; mere illumination of a case is insufficient." United States v. Petras , 879 F.3d 155, 164 (5th Cir. 2018) (quotation omitted).

The question at the heart of this case is whether Cazalas remains precedential after Kay . Before we reach that question, however, we must satisfy ourselves that ICC did not already answer it. After all, "whether [ Cazalas ] has been abrogated is itself a determination subject to the rule of orderliness." Stokes v. Sw. Airlines , 887 F.3d 199, 205 (5th Cir. 2018). So if a prior panel already held Cazalas survived Kay , we’d be duty-bound to say the same.

ICC , however, said no such thing. At no point did ICC even cite Kay , much less analyze whether it overruled Cazalas . That is hardly surprising. Although one party cited Kay in a letter filed under Federal Rule of Appellate Procedure 28(j), neither party argued Kay had overruled Cazalas . And ICC considered an altogether different question from both Kay and Cazalas —namely, whether a state could recover fees. All ICC did was cite Cazalas on the way to answering that question.

An opinion restating a prior panel’s ruling does not sub silentio hold that the prior ruling survived an uncited Supreme Court decision. See Cooper Indus., Inc. v. Aviall Servs., Inc. , 543 U.S. 157, 170, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004) (explaining decisions are not precedent on "[q]uestions which merely lurk in the record" (quotation omitted) ); Brecht v. Abrahamson , 507 U.S. 619, 631, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (explaining an opinion is not binding precedent on an issue "never squarely addressed" even if the opinion "assumed" one resolution of the issue); cf. Wilson v. Taylor , 658 F.2d 1021, 1034–35 (5th Cir. Unit B 1981) (refusing to apply the rule of orderliness to a Fifth Circuit decision that conflicted with an earlier, uncited Supreme Court opinion). Therefore, neither ICC nor any other...