No. 99-867
In the Supreme Court of the United States
SAMUEL G. KOORITZKY, PETITIONER
v.
ALEXIS M. HERMAN, SECRETARY OF LABOR
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney General
WILLIAM KANTER
ALFRED MOLLIN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202)514-2217
QUESTION PRESENTED
Whether a pro se litigant who is also a lawyer may be awarded attorney's
fees under the Equal Access to Justice Act, 28 U.S.C. 2412(d), for the time
he spent on his case or for the time spent on his case by other lawyers
where petitioner did not establish that the other lawyers offered independent
legal advice or assistance.
In the Supreme Court of the United States
No. 99-867
SAMUEL G. KOORITZKY, PETITIONER
v.
ALEXIS M. HERMAN, SECRETARY OF LABOR
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 56a-72a) is reported at 178
F.3d 1315. The opinions of the district court (Pet. App. 1a-25a, 26a-54a)
are reported at 6 F. Supp. 2d 1 and 6 F. Supp. 2d 13.
JURISDICTION
The judgment of the court of appeals was entered on June 18, 1999. A petition
for rehearing en banc was denied on August 23, 1999 (Pet. App. 73a). The
petition for a writ of certiorari was filed on November 22, 1999 (a Monday).
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. Petitioner filed a successful lawsuit, pro se, in the United States District
Court for the District of Columbia, against the Secretary of Labor, challenging
the Department of Labor's promulgation of an interim final rule regarding
immigrants for whom labor certifications are sought. Pet. App. 4a, 57a (citing
Kooritzky v. Reich, 17 F.3d 1509 (D.C. Cir. 1994)).1 Petitioner is a lawyer
by profession and moved for an award of attorney's fees under the Equal
Access to Justice Act (EAJA), 28 U.S.C. 2412(d).2 Petitioner sought an award
of $427,662 under the EAJA, contending that he should recover attorney's
fees for the time he spent on the case, as well as for time spent on the
case by other lawyers and a law clerk. Pet. App. 57a-58a.
A magistrate judge recommended that petitioner be awarded $31,798.71 for
his own work only. Pet. App. 58a. The magistrate judge recommended against
an award of fees for any work by the other lawyers or paralegal because
petitioner had no representation agreement with any of them and incurred
no expense or obligation to pay them. Id. at 9a, 58a.
The district court accepted in part, and rejected in part, the magistrate
judge's recommendation. Pet. App. 1a-25a; id. at 26a-56a. The court agreed
that, under governing circuit law, petitioner was entitled to recover attorney's
fees for his pro se work. Id. at 6a (citing Jones v. Lujan, 887 F.2d 1096,
1097 (D.C. Cir. 1989)). The court also ruled, however, that petitioner was
entitled to recover attorney's fees for work performed by other lawyers
and a paralegal. Pet. App. 10a-24a. The court awarded petitioner $55,992.06,
for petitioner's own work and $82,754.98 for "co-counsel" fees.
Id. at 58a.
2. The court of appeals reversed. Pet. App. 56a-72a. The court ruled that
a lawyer acting pro se is not entitled to recover attorney's fees under
the EAJA. The court concluded that its decision in Jones v. Lujan, supra,
allowing recovery of attorney's fees under the EAJA by a pro se lawyer-litigant,
was overruled by this Court's decision in Kay v. Ehrler, 499 U.S. 432 (1991),
that a lawyer acting pro se may not recover attorney's fees under the Civil
Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. 1988(b).
The court of appeals reasoned that the EAJA does not differ in any material
way from Section 1988 which was at issue in Kay. Pet. App. 59a. The court
also noted its own precedent regarding the attorney's fees provision under
the Freedom of Information Act which it had construed, consistent with Kay,
to bar an award to a pro se lawyer for his work and the work of his lawyer
colleagues. Id. at 58a (citing Burka v. United States Dep't of Health &
Human Servs., 142 F.3d 1286 (D.C. Cir. 1998)). The court of appeals emphasized
that, in Kay, this Court "firmly declared" that the statute's
use of the term "attorney" assumes "an agency relationship"
and the Kay Court found it likely that "Congress contemplated an attorney-client
relationship as the predicate for an award under § 1988." Pet.
App. 61a. The Kay Court buttressed its conclusion by relying on Section
1988's specific purpose "to enable potential plaintiffs to obtain the
assistance of competent counsel in vindicating their rights." Ibid.
The court of appeals found no language in the Kay opinion suggesting that
its rationale does not apply to a straightforward analysis of the text of
other statutes, such as that involved in this case, that also speak of "attorney"
fees. The court also relied on the similarities between the policies and
purposes underlying the fee-shifting provisions of the EAJA and those of
Section 1988. The court pointed out that a contrary rule would undermine
another purpose of the statutes at issue in Kay, Burka, and this case, which
is "to encourage potential claimants to seek legal advice before commencing
litigation," because a pro se lawyer is "unlikely to have the
'detached and objective perspective necessary to fulfill the aims of the
Act.'" Pet. App. 61a-62a. As in Section 1988, "the policy goals
underlying the fee-shifting provision found in the EAJA support the conclusion
that Congress sought to encourage the procurement of objective counsel to
pursue claims against the government for violation of various federal rights."
Id. at 63a-64a. The court noted that its ruling was consistent with opinions
of the Second, Tenth, and Eleventh Circuits. Id. at 65a.
The court of appeals rejected petitioner's effort to "evade the prohibition
against recovery of attorney fees under the EAJA by seeking to characterize
himself as an 'expert witness.'" Pet. App. 66a. The court noted that
the claimed legal expertise was of questionable relevance, that petitioner's
argument would mean that fee eligibility would "rest solely on the
semantics of the litigant's fee petition," that statutory policy would
be furthered by retention of objective outside experts, and that ethical
questions would be raised by a pro se lawyer's acting as a witness. Id.
at 66a-68a.
The court of appeals also held that petitioner was not eligible for attorney's
fees for work performed by his purported "co-counsel." Pet. App.
68a. The court explained that, consistent with its Burka opinion and the
Kay Court's conclusion that the term "attorney" assumes an agency
relationship between the litigant and an independent lawyer, "[a] pro
se attorney-litigant seeking to obtain attorney fees under the EAJA for
work performed by co-counsel must demonstrate that his colleagues are situated
to offer 'independent' legal advice and assistance." Id. at 69a. The
court found that petitioner had not made such a showing here because the
only entry of appearance on behalf of petitioner by any of the other lawyers
was after petitioner prevailed on the merits and the court was determining
the amount of fees, if any, petitioner could receive. Id. at 70a. The court
also pointed to the fact that there was no formal agreement between petitioner
and the other lawyers concerning fees for legal services rendered, no bills
by any of the other lawyers for legal services rendered, and no accurate
records kept by any of the other lawyers of time spent on the case, all
of which indicated that petitioner's purported "co-counsel" were
not, in fact, acting as his attorneys. Id. at 70a-71a. The court also noted
that the record regarding a law clerk for whom petitioner sought fees was
very confusing, but that "[s]o far as [the court could] tell, he was
neither eligible for nor did he receive any sort of fees." Id. at 71a
n.1.3
ARGUMENT
Petitioner challenges the court of appeals' ruling that petitioner, as a
pro se lawyer litigant, is not entitled to an attorney's fees award under
the Equal Access to Justice Act (EAJA), 28 U.S.C. 2412(d), for his own work
on his case. He also maintains that he should be able to recover a fee award
for work performed by other lawyers and a paralegal. The court of appeals
correctly rejected petitioner's claims and petitioner does not identify
any issue that warrants further review by this Court.
1. Petitioner contends (Pet. 9-14) that the court of appeals erred in applying
the rationale of Kay v. Ehrler, 499 U.S. 432 (1991), to the instant case
which involves the attorney's fees provision in the EAJA, rather than 42
U.S.C. 1988 which was at issue in Kay. He argues that, because an award
of attorney's fees is mandatory under the EAJA, rather than discretionary
as under Section 1988, and because the EAJA does not involve the type of
civil rights violations at issue in Section 1988 cases, a different analysis
of the attorney's fees provision should govern EAJA cases. He claims (Pet.
11-12) that courts are in disagreement about the availability of attorney's
fees under such fee-shifting statutes.
a. Although petitioner identifies two differences between the EAJA and Section
1988, i.e., that the former provision is mandatory and is not limited to
civil rights claims, he does not explain why those differences should require
a different interpretation of the term "attorney" under the two
statutory fee-shifting provisions. The court of appeals correctly rejected
petitioner's argument, analyzing the statutory texts as well as the underlying
purposes and policies and concluding that, under the EAJA, the term "attorney"
is properly interpreted, as it was by this Court in Kay, to assume the existence
of an agency relationship between the litigant and an independent lawyer
and, thus, not to allow attorney's fee awards to pro se litigants who are
lawyers. The court of appeals also correctly indicated that its interpretation
of the two statutes in a similar manner is consistent with the fact that
this Court "has noted in the past the similarity between the fee-shifting
provisions of the EAJA and Section 1988, observing that the EAJA is 'the
counterpart to § 1988 for violation of federal rights by federal employees.'"
Pet. App. 62a (citing West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S.
83, 89 (1991)). The court of appeals' interpretation of the EAJA attorney's
fees provision is correct because it is consistent with the ordinary meaning
of "attorney" (see Pet. App. 61a) and furthers the statute's policy
goal "to encourage the procurement of objective counsel to pursue claims
against the government for violation of various federal rights" (id.
at 63a- 64a).
b. Petitioner errs in contending (Pet. 11-12) that the decision below conflicts
with the reasoning in Doe v. Board of Education, 165 F.3d 260 (4th Cir.
1998), cert. denied, 119 S. Ct. 2049 (1999), and SEC v. Waterhouse, 41 F.3d
805, 808 (2d Cir. 1994)).
In Doe, the Fourth Circuit held that a lawyer was not entitled to an attorney's
fee award for legal services he performed in obtaining special education
benefits for his child under the Individuals with Disabilities Education
Act (IDEA), 20 U.S.C. 1400 et seq. Although the court found that Kay did
not "precisely parallel" that case because, under IDEA, the parent
lawyer was not, in fact, acting pro se because he was advancing his child's
rights rather than his own, the court found that the central rationale of
Kay applied. 165 F.3d at 264. The court expressly relied on Kay's holding
that "encouraging independent representation by prohibiting statutory
awards to pro se attorney-plaintiffs furthered the fee-shifting statute's
purpose of encouraging the effective prosecution of meritorious claims."
Id. at 265 (citing Kay, 499 U.S. at 437). Moreover, the Fourth Circuit noted
that two other circuits had found Kay's rationale to apply to the attorney's
fee provision of the Freedom of Information Act. 165 F.3d at 262 (citing
Burka v. United States Dep't of Health & Human Servs., 142 F.3d 1286,
1290 (D.C. Cir. 1998); Ray v. United States Dep't of Justice, 87 F.3d 1250,
1252 (11th Cir. 1996))).
In SEC v. Waterhouse, the Second Circuit expressly held that "the Supreme
Court's decision in Kay should also control under the EAJA." 41 F.3d
at 808. That court also noted that the other courts of appeals that had
ruled on the issue had reached the same conclusion. Ibid. (citing Hexamer
v. Foreness, 997 F.2d 93, 94 (5th Cir. 1993); Demarest v. Manspeaker, 948
F.2d 655 (10th Cir. 1991), cert. denied, 503 U.S. 921 (1992); Merrell v.
Block, 809 F.2d 639, 642 (9th Cir. 1987)).
Thus, the court of appeals here correctly observed that its ruling is in
accord with the decisions of other circuits. Pet. App. 65a (citing SEC v.
Waterhouse, 41 F.3d at 808; Celeste v. Sullivan, 988 F.2d 1069, 1070 (11th
Cir. 1992); and Demarest v. Manspeaker, 948 F.2d at 656). Although, as the
court below recognized, some cases from other circuits have involved non-lawyer
pro se litigants, nothing in those opinions is inconsistent with the ruling
below.
2. Petitioner claims (Pet. 11, 14-17) that the court of appeals erred in
holding that he did not have a bona fide attorney-client relationship with
the other lawyers for whose work he also sought an attorney's fees award.
He also contends (Pet. 18-19) that he is entitled to a fee award for the
work performed by a paralegal.
a. Petitioner does not challenge the court of appeals' legal ruling that
a pro se litigant who is a lawyer seeking recovery of attorney's fees for
work performed by other lawyers must demonstrate that the other lawyers
were "situated to offer 'independent' legal advice and assistance."
Pet. App. 69a. Rather, petitioner argues that, in fact, he had an actual,
bona fide attorney-client relationship with the other lawyers and thus should
recover attorney's fees under EAJA for the time they spent working on his
case.
That factual issue does not warrant review by this Court. In any event,
the court of appeals correctly rejected petitioner's claim of an attorney-client
relationship, in light of the findings that none of petitioner's colleagues
entered an appearance for petitioner during the merits phase of the case,
there was no agreement concerning fees for legal services rendered, none
of petitioner's alleged co-counsel ever billed him for services rendered,
and none of them received or contemplated receiving fees. As the magistrate
judge concluded (after seven days of evidentiary hearings), "[n]obody
expected to get paid." Pet. App. 70a. Indeed, as the court of appeals
observed, it was only after petitioner prevailed on the merits that he and
his colleagues realized that they might be able-in his words-to "stick
the government" for attorney's fees. Ibid. Accordingly, the court of
appeals correctly held that petitioner could not collect attorney's fees
for lawyers who did not act as his attorneys. Id. at 71a.
b. The court of appeals also correctly held that petitioner was not entitled
to a fee award for services of a paralegal. Pet. App. 71a n.1. Petitioner
contends that, at most, the court of appeals should have remanded the matter
to the district court or it should have awarded fees for services of "an
independent expert paralegal." Pet. 18. But the paralegal, a retired
government employee who had some background dealing with administrative
matters, was neither offered nor qualified as an expert witness in this
case. He functioned, at most, as a law clerk to petitioner, assisting with
the drafting of papers. And, as the district court recognized, this was
a "routine APA case" (see Pet. App. 65a-66a) and no expert study
or analysis was required.
Moreover, as the court of appeals observed in the context of rejecting petitioner's
attempt to claim fees for himself as an expert, allowing a pro se litigant
to recover fees for legal services by characterizing them as "expenses
of expert witnesses" or the "reasonable cost" of various
studies, rather than as attorney's fees, would vitiate the holding of Kay
as applied to the EAJA and make the determination of fee eligibility rest
on the semantics of the litigant's fee petition. Pet. App. 67a. The same
reasoning applies to petitioner's claim for fees for the paralegal as an
expert in this case because any award for that paralegal work would, in
essence, be derivative of an award for attorney's fees to which petitioner
is not entitled. Accordingly, the court properly held petitioner ineligible
to claim attorney fees for himself by relabeling them as "expert expenses."
Id. at 68a.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Acting Assistant Attorney General
WILLIAM KANTER
ALFRED MOLLIN
Attorneys
JANUARY 2000
1 Petitioner is an immigration lawyer who "sought to employ an alien
for whom he was seeking certification as an 'employment-based' immigrant."
Pet. App. 4a. The challenged rule "terminated the right of employers
to substitute one immigrant applicant for another in the labor certification
process." Id. at 57a.
2 The EAJA provides in relevant part:
[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.
28 U.S.C. 2412(d)(1)(A). The EAJA defines fees and expenses to include "the
reasonable expenses of expert witnesses * * * and reasonable attorney fees."
28 U.S.C. 2412(d)(2)(A).
3 In light of its ruling that petitioner was not entitled to any attorney's
fees under the EAJA, the court found petitioner's objection to the amount
of the fee award to be moot. Pet. App. 71a.