Ray v. US DEPT. OF JUSTICE, INS

• Decision Date: 05 July 1994
• Docket Number: No. 89-0288-CIV.,89-0288-CIV.
• Citation: 856 F. Supp. 1576
• Parties: Michael D. RAY, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION & NATURALIZATION SERVICE, Defendant.
• Court: U.S. District Court — Southern District of Florida

856 F. Supp. 1576

Michael D. RAY, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION & NATURALIZATION SERVICE, Defendant.

No. 89-0288-CIV.

United States District Court, S.D. Florida.

July 5, 1994.

COPYRIGHT MATERIAL OMITTED

Neil D. Kolner, Miami, FL, for plaintiff.

Dexter A. Lee, Asst. U.S. Atty., Miami, FL, for defendant.

ORDER

RYSKAMP, District Judge.

THIS CAUSE came before the Court upon Plaintiff's Motion for Attorney's Fees and Costs. (Docket Entry "DE" 59).

THE MATTER was referred to the Honorable Peter R. Palermo, United States Magistrate Judge. The Magistrate Judge has filed a Report and Recommendation dated October 15, 1992 (DE 77). The Plaintiff and the Defendant have filed objections to the Report and Recommendation. (DE 78, 80). In addition, both the Plaintiff and the Defendant have filed responses to the objections of the other party. (DE 81, 82).

I. Background

A. Procedural History

Plaintiff, Michael Ray, filed an action under the Freedom of Information Act, 5 U.S.C.A. § 552 (West 1977) ("FOIA"), requesting that this Court issue an injunction requiring the U.S. Department of Justice, Immigration and Naturalization Service to produce certain agency records relating to the interdictions of six vessels carrying Haitian nationals. After trial in this matter, the Court entered an injunction, requiring the INS to comply with the 10-day time limit set forth in 5 U.S.C.A. § 552(a)(6)(A), (B) and (C). Ray v. U.S. Dept. of Justice, I.N.S., 770 F.Supp. 1544, 1552 (S.D.Fla.1990). In granting the injunction, the Court rejected the Government's argument that the names and addresses contained in the documents were exempt from disclosure under 5 U.S.C.A. § 552(b)(6), relying on Ray v. Dept. of Justice, 908 F.2d 1549 (11th Cir.1990). After the Court granted the injunction, Plaintiff filed the instant motion for attorney's fees.

Subsequently, the Supreme Court, in U.S. Dept. of State v. Ray, 502 U.S. 164, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991), reversed on other grounds Ray v. Dept. of Justice, 908 F.2d 1549 (11th Cir.1990). The Eleventh Circuit then granted the Government's Motion to Vacate and Remand the District Court's Disclosure Order. This Court had to determine whether Plaintiff was entitled to receive the redacted portions of the documents he requested, in light of the Supreme Court's decision in U.S. Dept. of State v. Ray, 502 U.S. 164, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991). This Court mandated disclosure of the majority of the redacted information in Ray v. United States Dept. of Justice, I.N.S., 852 F.Supp. 1558 (S.D.Fla.1994).

B. Motion for Attorney's Fees and Costs

Plaintiff Ray, an attorney, filed this motion for attorney's fees and costs, claiming that because he had substantially prevailed, the Court should award attorney's fees for his services and those of his attorney, as well as costs.¹ In addition, he argued that the Court should apply an enhancement factor of two, due to the fact that Plaintiff's counsel accepted this case on a contingency basis and he would have received no compensation if Plaintiff had not prevailed. Plaintiff asked this Court to award fees for 72.3 hours of work at $175.00 per hour for his own services and 139.1 hours at $150.00 for the services of his counsel, Mr. Kolner. Applying the enhancement factor, Plaintiff requested a total of $67,035.00 in attorney's fees. Plaintiff also requested costs in the amount of $647.85.

The Government opposed the Plaintiff's motion, arguing that the Court should not award fees and costs because he had not substantially prevailed. In addition, the Government argued that the Court should not apply an enhancement factor.

On October 16, 1992, Magistrate Judge Palermo issued a Report and Recommendation (DE 77). He recommended that the Court award attorney's fees to the Plaintiff for his own services and for those of his attorney in the total amount of $33,517.50, as well as costs in the amount of $647.85. The Magistrate Judge recommended, however, that this Court should not apply an enhancement factor.

Plaintiff objected to the Magistrate Judge's recommendation that this Court should not apply an enhancement factor for his services and for those of his attorney. Plaintiff also asked for fees and costs expended in litigating the fees issue. Defendant objected to the award of attorney's fees for Plaintiff's own services. In addition, Defendant objected to an award of attorney's fees for the time spent preparing a motion for contempt.

By Order dated May 27, 1993, this Court awarded the Plaintiff $19,515.00 in uncontested attorney's fees and $647.85 in uncontested costs. (DE 84). The award included attorney's fees for the services of Plaintiff's attorney, Mr. Kolner, and the requested costs. The interim award excluded any fee award for the Plaintiff's own services. In addition, the fee award did not contain fees for nine hours spent by Mr. Kolner in preparing a motion for contempt.

The issues presently before the Court are whether to award attorney's fees for Mr. Ray's services and the nine hours spent by Mr. Kolner in preparing the motion for contempt, and whether to apply an enhancement factor in calculating the fee award. In addition, the Court must decide whether to award the requested fees and costs incurred in the fees litigation.

II. Analysis

A. Plaintiff's Request for Attorney's Fees for His Own Services

The Court must determine first whether a pro se litigant, who is also an attorney, may recover attorney's fees under FOIA. All Circuits that have considered the issue are in agreement that a pro se litigant who is not an attorney may not recover attorney's fees under FOIA. Benavides v. Bureau of Prisons, 993 F.2d 257, 259 (D.C.Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 559, 126 L.Ed.2d 460 (1993); DeBold v. Stinson, 735 F.2d 1037, 1042-43 (7th Cir. 1984); Wolfel v. United States, 711 F.2d 66, 68-69 (6th Cir.1983); Clarkson v. I.R.S., 678 F.2d 1368, 1368-1371 (11th Cir.1982), cert. denied, 481 U.S. 1031, 107 S.Ct. 1961, 95 L.Ed.2d 533 (1987); Cunningham v. FBI, 664 F.2d 383, 384-387 (3d Cir.1981); Barrett v. Bureau of Customs, 651 F.2d 1087, 1090 (5th Cir.1981), cert. denied, 455 U.S. 950, 102 S.Ct. 1454, 71 L.Ed.2d 665 (1982); Crooker v. U.S. Dept. of Treasury, 634 F.2d 48, 49 (2d Cir.1980); Burke v. U.S. Dept. of Justice, 559 F.2d 1182 (10th Cir.1977). The four Circuits that have addressed directly the issue of whether a pro se attorney litigant can recover are split evenly. Aronson v. U.S. Dept. of Housing and Urban Dev., 866 F.2d 1, 5-6 (1st Cir.1989) (pro se attorney litigant may not recover fees); Falcone v. I.R.S., 714 F.2d 646, 647-48 (6th Cir.1983), cert. denied, 466 U.S. 908, 104 S.Ct. 1689, 80 L.Ed.2d 162 (1984) (pro se attorney litigant may not recover fees); Cazalas v. U.S. Dept. of Justice, 709 F.2d 1051, 1056-57 (5th Cir.1983) (pro se attorney litigant may recover fees); Cuneo v. Rumsfeld, 553 F.2d 1360, 1366 (D.C.Cir.1977) (pro se attorney litigant may recover fees).

Neither the Eleventh Circuit nor the Supreme Court has considered directly whether a pro se litigant who is an attorney may recover attorney's fees under FOIA.² In Duncan v. Poythress, 777 F.2d 1508 (11th Cir.1985), cert. denied sub nom., Poythress v. Kessler, 475 U.S. 1129, 106 S.Ct. 1659, 90 L.Ed.2d 201 (1986), the Eleventh Circuit held that a pro se attorney litigant could recover fees in a civil rights case under 42 U.S.C. § 1988. In analyzing the issue presented in that case, the Eleventh Circuit stated that § 1988 and FOIA are not distinguishable in terms of the need to compensate pro se attorney litigants. 777 F.2d at 1512 n. 11. This dicta seems to imply that pro se attorney litigants are entitled to attorney's fees in FOIA cases, under the same rationale as in § 1988 cases. However, the Supreme Court's decision in Kay v. Ehrler, 499 U.S. 432, 111 S.Ct. 1435, 113 L.Ed.2d 486 (1991), undermines any argument based on the implications of the Duncan dicta.

In Kay v. Ehrler, 499 U.S. 432, 111 S.Ct. 1435, 113 L.Ed.2d 486 (1991), the Supreme Court held that an attorney who represented himself in a civil rights case could not recover attorney's fees under 42 U.S.C. § 1988, directly negating the Eleventh Circuit's holding in Duncan. The Kay Court agreed with the Sixth Circuit's finding that "the overriding statutory concern is the interest in obtaining independent counsel for victims of civil rights violations." 499 U.S. at 437, 111 S.Ct. at 1437. The Supreme Court reasoned that Congress was concerned with ensuring the effective prosecution of meritorious claims. Id. The Court explained:

Even a skilled lawyer who represents himself is at a disadvantage in a contested litigation. Ethical considerations may make it inappropriate for him to appear as a witness. He is deprived of the judgment of an independent third party in framing the theory of the case, evaluating alternative methods of presenting witnesses, formulating legal arguments, and in making sure that reason, rather than emotion, dictates the proper tactical response to unforeseen developments in the courtroom. The adage that "a lawyer who represents himself has a fool for a client" is the product of years of experience by seasoned litigators.

Id. at 437-38, 111 S.Ct. at 1438 (footnote omitted). A rule that would allow pro se litigants, who are attorneys, to recover attorney's fees would create a disincentive to hire counsel whenever such a plaintiff felt competent to litigate on his or her own behalf. Id. at 438, 111 S.Ct. at 1438. The Court concluded that such a rule would not foster the "statutory policy of furthering the successful prosecution of meritorious claims." Id.

In reaching its holding, the Kay Court noted that the district court relied on a FOIA case, Falcone v. I.R.S., 714 F.2d 646 (6th Cir.1983), cert. denied, 466 U.S. 908, 104 S.Ct. 1689, 80 L.Ed.2d 162 (1984), in denying attorney's fees under § 1988. Kay, 499 U.S. at 434-35, 111 S.Ct. at...