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Gahagan v. United States Citizenship and Immigration Services

United States District Court, E.D. Louisiana

September 12, 2017

MICHAEL W. GAHAGAN
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES

          SECTION "F"

          ORDER AND REASONS

          MARTIN L. C. FELDMAN, UNITED STATES DISTRICT JUDGE

         Before the Court are objections by United States Citizenship and Immigration Services (USCIS) to the magistrate judge's Report and Recommendation that the plaintiff shall be awarded attorney's fees and costs in this Freedom of Information Act litigation. For the reasons that follow, the USCIS's objection that the Report errs in allowing attorney's fees under FOIA for a pro se attorney is SUSTAINED, but USCIS's objection concerning the Report's public benefit finding and in weighing the entitlement factors is OVERRULED, and USCIS's final objection seeking a more substantial reduction in the plaintiff's fee award is MOOT. Accordingly, the Court hereby REJECTS in part and ADOPTS in part the Report and Recommendation. The plaintiff may recover $451.47 in costs.

         Background

         This Freedom of Information Act lawsuit arises out of a government agency's failure to adequately search for and produce a single agency record requested by the plaintiff in connection with the plaintiff's client's ongoing immigration removal proceeding. This Order and Reasons assumes familiarity with extensive prior proceedings. After being ordered to conduct an adequate search for Michael Gahagan's client's I-485 Receipt Notice (I-797C Notice of Action), the United States Citizenship and Immigration Services (USCIS) ultimately produced to Mr. Gahagan what USCIS insists is a “recreated” receipt notice. After Mr. Gahagan acknowledged that he had “no objection to accepting [the I-797C Receipt Notice] produced” by USCIS (the so-called regenerated receipt notice), the Court denied as moot the only remaining portion of plaintiff's motion for summary judgment (that is, the only issue that was under submission after the Court granted, in part, the plaintiff's motion for summary judgment on the issue of the agency's inadequate search). See Order and Reasons dtd. 12/22/16. The Court then denied USCIS's motion for reconsideration, denied as moot USCIS's motion for summary judgment, and referred to the magistrate judge the plaintiff's motion for attorney's fees. See Order and Reasons dtd. 3/8/17.

         Magistrate Judge van Meerveld issued a thorough and considered Report and Recommendation, recommending that the Court grant in part the motion for attorney's fees and costs, ultimately recommending that the Court award attorney's fees in an amount less than that requested by the plaintiff. In its objections to the Report and Recommendation, USCIS urges the Court to sustain its objections, reject the Report, and deny Gahagan's motion for attorney's fees.[1]

         I.

         Pursuant to Rule 72(a) and 28 U.S.C. § 636(b)(1), USCIS requests that the Court set aside Magistrate Judge van Meerveld's April 27, 2017 Report and Recommendation, in which the plaintiff's motion for attorney's fees and costs was granted in part, recommending that the plaintiff be awarded $8, 867.47 (inclusive of $451.47 in costs).

         The Court referred Gahagan's motion for attorney's fees to Magistrate Judge van Meerveld pursuant to Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). Once a party files specific objections, as USCIS has done here, “[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). In resolving objections, the Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

         II.

         A.

         USCIS presents four objections to Magistrate Judge van Meerveld's Report & Recommendation: (1) The Report errs in allowing attorney's fees under FOIA for a pro se attorney. (2) Gahagan is not eligible for attorney's fees under FOIA. (3) The Report errs in finding the existence of a public benefit and in weighing the entitlement factors. (4) The Report errs in reducing Gahagan's fee award by only 20% given his clear absence of billing judgment. USCIS concedes that its second objection is controlled by this Court's prior denial of USCIS's motion to reconsider and motion for summary judgment; therefore, USCIS's second objection is preserved for appellate purposes, but the Court need only address its three remaining objections.

         B.

         It is undisputed that, under FOIA, the Court “may 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). The magistrate judge correctly observes, and neither side objects, that courts interpret this permissive, statutory language as creating a two-pronged inquiry into whether the complainant is both (1) eligible for attorney's fees because he has substantially prevailed and (2) entitled to attorney's fees considering “a variety of factors to determine whether the plaintiff should receive fees.” Batton v. I.R.S., 718 F.3d 522, 525 (5th Cir. 2013)(quoting Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 524 (D.C. Cir. 2011)).

         1. Whether a pro se attorney-litigant is eligible to recover attorney's fees under FOIA.

         USCIS's first objection to the magistrate judge's Report and Recommendation presents a threshold question of whether Gahagan, who is an attorney proceeding in this litigation pro se, is precluded from recovering attorney's fees under FOIA. USCIS submits that the Supreme Court has ruled that an attorney litigant proceeding pro se cannot recover attorney's fees under a fee-shifting statute, 42 U.S.C. § 1988 similar to FOIA's, and that, in so ruling, the Supreme Court implicitly overruled Fifth Circuit precedent that previously held that pro se attorneys may recover attorney's fees under the FOIA fee-shifting provision. The Court agrees.

         USCIS objects to the magistrate judge's finding that Gahagan was not disqualified from recovering attorney's fees simply because he represented himself. In so finding, the magistrate judge rejected USCIS's argument that, as a matter of law, Gahagan cannot be awarded attorney's fees because he is a pro se attorney-litigant. In footnote 1 of the Report and Recommendation, the magistrate judge noted that this Court is “bound by Fifth Circuit precedent indicating that FOIA attorney's fee provision is subject to a different analysis than that expressed in Kay and that under such analysis, a pro se attorney can obtain attorney's fees in a FOIA action.”

         To support its contention that the magistrate judge erred in finding that Mr. Gahagan is eligible to recover attorney's fees, USCIS invokes Kay v. Ehrler, 499 U.S. 432, 438 (1991). There, the Supreme Court held that a pro se attorney is not entitled to an award of attorney's fees under the fee-shifting provision of the Civil Rights Act, 42 U.S.C. § 1988. The high court reasoned that “the overriding statutory concern is the interest in obtaining independent counsel for victims of civil rights violations” and that “Congress was interested in ensuring the effective prosecution of meritorious claims.” Id. at 437-38. In fashioning the bright line rule, the unanimous Court observed that neither the text of the statute nor its legislative history provided a clear answer to the question it faced; the Court underscored 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 437. Thus, after examining the words and purpose of the fee-shifting statute, the Court embraced the rule precluding awards of counsel fees to pro se litigants. Id. (“A rule that authorizes awards of counsel fees to pro se litigants--even if limited to ...


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