Kooritzky v. Herman

• Decision Date: 18 June 1999
• Docket Number: Nos. 98-5424 and 98-5438,s. 98-5424 and 98-5438
• Citation: Kooritzky v. Herman, 178 F.3d 1315 (D.C. Cir. 1999)
• Parties: Samuel G. KOORITZKY, Appellee/Cross-Appellant, v. Alexis M. Herman, Secretary, United States Department of Labor, Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

178 F.3d 1315

Samuel G. KOORITZKY, Appellee/Cross-Appellant, v.Alexis M. Herman, Secretary, United States Department of Labor, Appellant/Cross-Appellee.

Nos. 98-5424 and 98-5438.

United States Court of Appeals District of Columbia Circuit.

Argued May 4, 1999.

Decided June 18, 1999.

Appeals from the United States District Court for the District of Columbia(No. 91cv003011)(No. 91cv03011).

Michael J. Ryan, Assistant U.S. Attorney, argued the cause for appellant/cross-appellee.With him on the briefs were Wilma A. Lewis, U.S. Attorney, R. Craig Lawrence, Assistant U.S. Attorney, and Vincent C. Costantino, Counsel, U.S. Department of Labor.

Christopher A. Teras argued the cause and filed the briefs for appellee/cross-appellant.Samuel G. Kooritzky entered an appearance.

Before: GINSBURG, SENTELLE and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

AppellantAlexis Herman, Secretary of the Department of Labor("DOL" or "Department"), seeks reversal of the district court's award of attorney fees under the Equal Access to Justice Act ("EAJA") to AppelleeSamuel G. Kooritzky.Kooritzky cross-appeals, alleging that the district court committed errors that resulted in an unwarranted reduction in the amount of attorney fees he was awarded.We conclude that an attorney acting pro se, such as Kooritzky, is not entitled to recover attorney fees under the EAJA.We therefore reverse the district court's award of fees, and conclude that Kooritzky's objections to the amount of fees awarded are moot.

I.BACKGROUND

Kooritzky, an immigration law attorney, commenced an action pro se in November 1991 against the Secretary of Labor, challenging promulgation of an "interim final rule" by DOL which terminated the right of employers to substitute one immigrant applicant for another in the labor certification process.The district court ruled in DOL's favor, but we reversed, concluding that DOL had promulgated its rule without adequate notice and comment.Kooritzky v. Reich, 17 F.3d 1509(D.C.Cir.1994).

After prevailing on the merits, Kooritzky sought to recover attorney fees from the Department.Kooritzky asserted that, in addition to his own efforts, he received assistance from attorneys Christopher Teras, M. Sean Purcell, and Tae Kim, and law clerk Thomas Moore.None of these individuals, however, had entered an appearance on Kooritzky's behalf during the merits phase of the case.

On March 1, 1995, Kooritzky moved for an award of attorney fees of $427,662 under the EAJA, 28 U.S.C. § 2412(d)(1)(A), to compensate him for his and his colleagues' work.The district court referred the matter to a magistrate judge for a recommendation regarding the amount of attorney fees, if any, Kooritzky was entitled to recover.After seven days of hearings, the magistrate judge recommended that Kooritzky be awarded $31,798.71 for his own work only.Joint Appendixat 18-59.The magistrate judge concluded that Kooritzky had no representation agreement with any of his alleged co-counsel and, as a result, could not recover their attorney fees.

Both sides filed objections to the magistrate's report.On December 17, 1997, the district court issued a Memorandum on Attorney Fees, agreeing that Kooritzky was eligible for attorney fees and finding that he was entitled to the following amounts: $51,920.51 for Kooritzky, $47,689.03 for co-counsel fees, and $134.70 for photocopying charges.Kooritzky v. Herman, 6 F.Supp.2d 1(D.D.C.1997)("Kooritzky I").The court ordered the parties to submit evidence relevant to the prevailing market rate for legal assistants working as independent contractors in the Washington, D.C. area in order to assess the amount Kooritzky could recover for the work of law clerk Moore.

On May 7, 1998, following further submissions by the parties, including Kooritzky's motion for reconsideration and DOL's opposition, the district court issued its final judgment on attorney fees.Kooritzky v. Herman, 6 F.Supp.2d 13(D.D.C.1998)("Kooritzky II").The court directed that DOL pay Kooritzky the following fees by June 15, 1998: $55,992.06 for Kooritzky, $82,754.98 for co-counsel fees, and $134.70 for photocopying expenses.

On May 21, 1998, DOL moved for reconsideration based on an intervening decision by this court, Burka v. United States Department of Health and Human Services, 142 F.3d 1286(D.C.Cir.1998), in which we affirmed a decision denying attorney fees under the Freedom of Information Act("FOIA") to a pro se attorney for his work and the work of his colleagues.Our decision in Burka was based on our reading of the Supreme Court's decision in Kay v. Ehrler, 499 U.S. 432, 111 S.Ct. 1435, 113 L.Ed.2d 486(1991).In Kay, the Court ruled that the word "attorney" in the fee-shifting provision of the Civil Rights Attorney's Fees Awards Act, 42 U.S.C. § 1988, assumes an agency relationship, and therefore precludes recovery of attorney fees for work done by an attorney acting pro se.In Burka, we held that the reasoning of Kay compelled denial of attorney fees to a lawyer acting pro se under the similar feeshifting provision in FOIA.142 F.3d at 1288-89.On June 9, 1998, the district court denied DOL's motion, concluding that there were differences between FOIAandEAJA that counseled against application of the Kay decision in EAJAcases.The parties subsequently filed these appeals.

II.ANALYSIS

The Department challenges the district court's award of attorney fees for both (1) Kooritzky's own work and (2) the work of Kooritzky's co-counsel.Since the analysis for the two categories of fees differs, we address them separately.

A.Attorney Fees for Work Performed by Kooritzky

DOL argues that the district court erred in awarding attorney fees to Kooritzky since he was acting pro se.In particular, DOL contends that the district court mistakenly relied upon this court's decision in Jones v. Lujan, 887 F.2d 1096(D.C.Cir.1989), allowing recovery of attorney fees by a pro se attorney-litigant under the EAJA.SeeKooritzky I, 6 F.Supp.2d at 3.DOL submits that our decision in Jones was implicitly overruled by the Supreme Court in Kay v. Ehrler, 499 U.S. 432, 111 S.Ct. 1435, 113 L.Ed.2d 486(1991), disallowing recovery of attorney fees to pro se plaintiffs under the fee-shifting provision found in 42 U.S.C. § 1988.Kooritzky contends that the district court correctly relied on this court's decision in Jones, which he asserts remains the controlling law of this circuit despite the Supreme Court's subsequent decision in Kay.He argues that the Kay opinion was limited to cases brought under the Civil Rights Attorney's Fees Awards Act and that, while Kay resolved a "statutory ambiguity" by examining the specific legislative history of that Act, the Jones holding was based on the clear and unambiguous language of the EAJA.Upon review, we conclude that the fee-shifting provision of EAJA does not differ in any material way from the statutes construed by the Supreme Court in Kay and by this court in Burka.We therefore hold that our decision in Jones has been overruled by the Supreme Court, and that the district court erred in awarding fees to the pro se litigant under EAJA.

In the United States, fee shifting is a departure from the norm.In the general run of litigation, the "American rule" dictates that each party to a lawsuit bears his own attorney fees.Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40(1983);Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247, 95 S.Ct. 1612, 44 L.Ed.2d 141(1975).Congress has specified exceptions to this American rule in a number of statutory schemes in the form of feeshifting provisions which allow recovery of attorney fees by a "prevailing party."SeeWest Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 89, 111 S.Ct. 1138, 113 L.Ed.2d 68(1991)(noting that "[a]t least 34 statutes in 10 different titles of the United States Code explicitly shift attorney's fees and expert witness fees").The governing fee-shifting statute for EAJA awards is 28 U.S.C. § 2412(d)(1)(A):

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

The EAJA elsewhere defines "fees and expenses" to include "the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test, or project which is found by the court to be necessary for the preparation of the party's case, and reasonable attorney fees."Id.§ 2412(d)(2)(A).

In Kay v. Ehrler, the Supreme Court considered the entitlement to fees of a lawyer litigating pro se in a civil rights action.The Civil Rights Attorney's Fees Awards Act provided that in such an action, "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs."42 U.S.C. § 1988(b).After noting that it was already fixed law "that a pro se litigant who is not a lawyer is not entitled to attorney's fees,"Kay, 499 U.S. at 435(emphasis in original), a unanimous Supreme Court held that the same rule applied to a pro se litigant who is a lawyer.While the Court allowed that neither the text nor the legislative history of the statute provided "a clear answer," it firmly declared that "the word 'attorney' assumes an agency relationship, and it seems likely that Congress contemplated an attorney-client relationship as the predicate for an award under § 1988."Id. at...