     Case: 17-30898   Document: 00514770336   Page: 1     Date Filed: 12/20/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit

                      Nos. 17-30898, 17-30901, 17-30999               FILED
                                                              December 20, 2018
                                                                 Lyle W. Cayce
MICHAEL W. GAHAGAN,                                                   Clerk

             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.
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                         Nos. 17-30898, 17-30901, 17-30999


                   Appeals from the United States District Court
                       for the Eastern District of Louisiana


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.




       1 There are at least eleven competing terms we could use instead of “attorney fees.”
See Haymond v. Lundy, 205 F. Supp. 2d 403, 406 n.2 (E.D. Pa. 2002). But “[i]n line with the
form used in the statute we are interpreting, we will use ‘attorney fees’ in this case, except
where quoting other authorities” or referring to awards under other statutes. Stallworth v.
Greater Cleveland Reg’l Transit Auth., 105 F.3d 252, 253 n.1 (6th Cir. 1997); see 5 U.S.C.
§ 552(a)(4)(E)(i) (“attorney fees”).
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                        Nos. 17-30898, 17-30901, 17-30999
                                        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, 135 S. Ct. 2158, 2164 (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 (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


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                       Nos. 17-30898, 17-30901, 17-30999
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 (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. 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.
      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

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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

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                      Nos. 17-30898, 17-30901, 17-30999
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 (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 (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 Oct. 1981) (refusing to apply the rule of
orderliness to a Fifth Circuit decision that conflicted with an earlier, uncited

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Supreme Court opinion). Therefore, neither ICC nor any other post-Kay
decision of this Court triggers the rule of orderliness. See Chin v. U.S. Dep’t of
Air Force, No. 99-31237, 2000 WL 960515, at *1 (5th Cir. June 15, 2000) (per
curiam) (declining to “decide whether Cazalas . . . is rendered moribund by
Kay”).
                                              B.
       The question then is whether Cazalas survives of its own accord.
Whether a Supreme Court decision implicitly overrules a prior Fifth Circuit
decision depends on context. That two decisions involve different statutes is
not dispositive. Sometimes a Supreme Court decision involving one statute
implicitly overrules our precedent involving another statute. See Stokes, 887
F.3d at 204; Hoskins v. Bekins Van Lines, 343 F.3d 769, 775 (5th Cir. 2003).
Sometimes it does not. See United States v. Alcantar, 733 F.3d 143, 146 (5th
Cir. 2013); Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir.
2008). 2 The overriding consideration is the similarity of the issues decided.
Compare Stokes, 887 F.3d at 204 (refusing to adhere to a Fifth Circuit decision
because the issues were similar), with Petras, 879 F.3d at 164–65 (adhering to
a Fifth Circuit decision because the issues were dissimilar).
       Here, Cazalas and Kay confronted very similar issues.                      They both
interpreted the word “attorney” in a statute authorizing attorney fees. See 5
U.S.C. § 552(a)(4)(E)(i) (“attorney fees”); 42 U.S.C. § 1988 (“attorney’s fee”).
Cazalas itself recognized the similarity of the statutes by discussing precedent




       2 We do not understand Diaz-Esparza v. Sessions to suggest Supreme Court precedent
never implicitly overrules Fifth Circuit precedent “involv[ing] different statutory provisions.”
697 F. App’x 338, 340 (5th Cir. 2017) (per curiam). Such a ruling would conflict with the
circuit precedent cited above, precedent Diaz-Esparza did not cite. Regardless, as an
unpublished opinion vacated by the Supreme Court, Diaz-Esparza is doubly nonprecedential.
See 5TH CIR. R. 47.5.4; Diaz-Esparza v. Sessions, 138 S. Ct. 1986 (2018) (granting certiorari,
vacating, and remanding in light of Sessions v. Dimaya, 138 S. Ct. 1204 (2018)).
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interpreting § 1988 in its analysis of FOIA. See Cazalas, 709 F.2d at 1056
(citing Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980)).
       The Supreme Court has repeatedly instructed us to apply consistent
interpretations to federal fee-shifting statutes. See Buckhannon Bd. & Care
Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 603 n.4
(2001) (“We have interpreted these fee-shifting provisions consistently, and so
approach the nearly identical provisions at issue here.” (citation omitted)); City
of Burlington v. Dague, 505 U.S. 557, 562 (1992) (“This language is similar to
that of many other federal fee-shifting statutes; our case law construing what
is a ‘reasonable’ fee applies uniformly to all of them.” (citation omitted)); Indep.
Fed’n of Flight Attendants v. Zipes, 491 U.S. 754, 758 n.2 (1989) (“We have
stated in the past that fee-shifting statutes’ similar language is a strong
indication that they are to be interpreted alike.” (quotation omitted)); Hensley
v. Eckerhart, 461 U.S. 424, 433 n.7 (1983) (“The standards set forth in this
opinion are generally applicable in all cases in which Congress has authorized
an award of fees to a ‘prevailing party.’ ”). 3
       All of our sister circuits have heeded those instructions. Before Kay, the
eligibility of pro se attorneys for fee awards under FOIA split the circuits.
Compare Aronson v. HUD, 866 F.2d 1, 5 (1st Cir. 1989), and Falcone v. IRS,
714 F.2d 646, 646 (6th Cir. 1983), with Cazalas, 709 F.2d at 1057, and Cuneo
v. Rumsfeld, 553 F.2d 1360, 1367 (D.C. Cir. 1977). Since Kay, however, every



       3 Gahagan notes this Court has described “[t]he history, language, and purpose of ”
FOIA as “differ[ing] significantly from those of the civil rights statutes” and treated “decisions
under one of the statutes [as] inapposite to cases arising under the other.” Cofield v. City of
Atlanta, 648 F.2d 986, 988 (5th Cir. Unit B June 1981). But Cofield contrasted FOIA and
§ 1988—over Judge Clark’s dissent—to distinguish a D.C. Circuit opinion that was itself
overruled by Kay. See Benavides v. Bureau of Prisons, 993 F.2d 257, 259–60 (D.C. Cir. 1993)
(recognizing Kay overruled Cox v. DOJ, 601 F.2d 1 (D.C. Cir. 1979)). In any event, to the
extent Cofield suggests decisions interpreting § 1988 do not inform our interpretation of
FOIA’s fee-shifting provision, it does not survive the subsequent Supreme Court decisions
interpreting all federal fee-shifting provisions consistently.
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                       Nos. 17-30898, 17-30901, 17-30999
circuit to consider the issue has applied Kay to FOIA. See Pietrangelo v. U.S.
Army, 568 F.3d 341, 344–45 (2d Cir. 2009) (per curiam); Burka v. HHS, 142
F.3d 1286, 1290 (D.C. Cir. 1998); Ray v. DOJ, 87 F.3d 1250, 1252 (11th Cir.
1996); see also Searcy v. Soc. Sec. Admin., No. 91-4181, 1992 WL 43490, at *1,
*6 (10th Cir. Mar. 2, 1992).           Perhaps most powerfully, the D.C. Circuit
expressly abandoned its pre-Kay FOIA precedent in light of Kay. See Burka,
142 F.3d at 1290.
         Were we to hold that a pro se attorney is eligible for fees, we would be
the only court of appeals to do so after Kay. “We are always chary to create a
circuit split,” United States v. Graves, 908 F.3d 137, 142 (5th Cir. 2018)
(quotation omitted), including when applying the rule of orderliness.                   See
Stokes, 887 F.3d at 201, 205. We refuse to create one here.
         Of course, the principle that federal fee-shifting statutes are interpreted
consistently is not limitless.        We would not apply it when statutes have
materially different texts. See Buckhannon, 532 U.S. at 603 n.4 (noting the
provisions at issue were “nearly identical”); Dague, 505 U.S. at 562 (similar);
Indep. Fed’n of Flight Attendants, 491 U.S. at 758 n.2 (similar). 4 But there is
no textual difference suggesting a prevailing pro se attorney is eligible for an
award of fees under FOIA but not § 1988. On that issue, Kay interpreted text
materially identical to the text of FOIA. Compare 5 U.S.C. § 552(a)(4)(E)(i)
(“reasonable attorney fees”), with 42 U.S.C. § 1988 (“a reasonable attorney’s
fee”).
         Thus, the background principle—federal fee-shifting statutes should be
interpreted consistently—applies with full force to the eligibility of pro se



         For example, after the Supreme Court rejected the “catalyst theory” of “prevailing
         4

party” status, Congress amended FOIA to make it easier for a plaintiff to recover fees. See
Batton v. IRS, 718 F.3d 522, 524–26, 525 n.2 (5th Cir. 2013); 5 U.S.C. § 552(a)(4)(E)(ii)
(“substantially prevailed”). Thus, courts must interpret FOIA and other fee-shifting statutes
differently in that regard.
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attorneys for fee awards. For that reason, Kay provided more than “mere
illumination”; it “unequivocally overrule[d]” Cazalas. Petras, 879 F.3d at 164
(quotation omitted).     After Kay, Cazalas no longer represents binding
precedent on the eligibility of pro se attorneys to recover fee awards under
FOIA.
                                      III.
      The parties appropriately focus on precedent. As do we. It is nonetheless
appropriate to note FOIA’s text supports the result precedent commands. To
paraphrase Chief Justice Marshall, it is after all a statute we are expounding.
Cf. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819); BedRoc Ltd. v.
United States, 541 U.S. 176, 183 (2004) (plurality opinion) (“[O]ur inquiry
begins with the statutory text, and ends there as well if the text is
unambiguous.”).
      Kay considered the meaning of “attorney” in § 1988’s use of “a reasonable
attorney’s fee.” 499 U.S. at 435–36. As noted above, FOIA is materially
identical in that regard. See 5 U.S.C. § 552(a)(4)(E)(i) (“reasonable attorney
fees”). But “attorney” is not the only relevant word in FOIA.
      Unlike § 1988, FOIA limits awards to those fees “reasonably incurred.”
5 U.S.C. § 552(a)(4)(E)(i) (“reasonable attorney fees and other litigation costs
reasonably incurred”); see also Barrett v. Bureau of Customs, 651 F.2d 1087,
1089 (5th Cir. Unit A July 1981) (“ ‘[R]easonably incurred’ can and does modify
the larger phrase ‘reasonable attorney fees and other litigation costs.’ ”). The
“general rule” is that “fees are ‘incurred’ when the litigant has a legal
obligation to pay them.” United States v. Claro, 579 F.3d 452, 464 (5th Cir.
2009). Because Gahagan had no legal obligation to pay himself, he did not
“incur” any attorney fees under the general rule. See id. at 465; Cazalas, 709
F.2d at 1059 (Garwood, J., concurring in part and dissenting in part)


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(“Attorney ‘fees’ are not generated by a person doing something for himself or
herself; and ‘incurred’ likewise imports a relationship to one or more others.”).
      Therefore, the textual argument for denying fee awards to pro se
attorneys is even stronger under FOIA than under § 1988, which does not
contain the independent requirement that fees be “incurred.” As we noted in
Claro, other courts “have recognized exceptional situations for which an award
of attorney’s fees is not contingent upon an obligation to pay counsel,” despite
the “incurred” requirement. 579 F.3d at 465. But these exceptions—based on
“legislative history” regarding pro bono representation and “policy reasons”
related to a litigant’s insurance coverage, id. at 465–66—would not apply to
Gahagan in any event. Accordingly, we need not decide their validity here.
See id. at 467–68 (concluding the exceptions did not apply without resolving
their validity).
                                 *     *      *
      In the end, we have (1) Kay’s ruling that pro se attorneys cannot recover
fees under § 1988; (2) Supreme Court instructions that federal fee-shifting
statutes should be interpreted consistently; (3) the uniform agreement of our
sister circuits that pro se attorneys cannot recover attorney fees under FOIA
after Kay; and (4) statutory text supporting that result. For these reasons, we
hold pro se attorneys are ineligible for fee awards under FOIA. The judgments
are AFFIRMED.




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