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MAYOCK v. INS

May 14, 1990

JAMES R. MAYOCK, Plaintiff,
v.
IMMIGRATION AND NATURALIZATION SERVICE, et al., Defendants



The opinion of the court was delivered by: LEGGE

 CHARLES A. LEGGE, UNITED STATES DISTRICT JUDGE

 James R. Mayock, the plaintiff and an attorney, and his attorneys Hancock, Rothert & Bunshoft seek awards of attorney's fees. The petitions are opposed by defendant the Immigration and Naturalization Service (INS), and were briefed, argued and submitted to the court for decision. The court has reviewed the moving and opposing papers, the record of the case, the arguments of counsel, and the applicable authorities.

 IT IS ORDERED as follows.

 I.

 Plaintiff is an attorney specializing in immigration law. He originally filed this suit on behalf of certain clients, to require the INS to comply with the requests which he had made on their behalf under the Freedom of Information Act (FOIA). After those specific FOIA requests were resolved, plaintiff continued with this case in his own name, contending that the INS had a pattern and practice of not complying with FOIA in immigration cases. In 1988, the Hancock firm also appeared as counsel for Mayock.

 In an opinion of June 19, 1989, this court granted Mayock's motion for summary judgment, and denied the INS's motion for summary judgment. 714 F. Supp. 1558. The court made certain declarations of law, ordered the INS to comply with certain procedures under FOIA, and retained jurisdiction to determine whether an award of attorney's fees is appropriate.

 The right to attorneys' fees under FOIA is defined by 5 U.S.C. § 552(a) (4)(E): "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."

 II.

 The first issue is whether Mayock is entitled to receive attorneys' fees for his own services. As stated, Mayock is an attorney and he became the sole named plaintiff after the individual FOIA requests of his clients were resolved. May an attorney who is a plaintiff be awarded attorney's fees under FOIA for his own services?

 The Ninth Circuit has not had occasion to rule upon this issue. The four circuits which have ruled on the matter have divided in their conclusions. Two circuits have awarded fees: Cazalas v. United States Department of Justice, 709 F.2d 1051, 1056-57 (5th Cir. 1983); and Cuneo v. Rumsfeld, 180 U.S. App. D.C. 184, 553 F.2d 1360, 1366 (D.C. Cir. 1977). Two circuits have denied awards: Falcone v. IRS, 714 F.2d 646, 647-48 (6th Cir. 1983) cert. denied, 466 U.S. 908, 80 L. Ed. 2d 162, 104 S. Ct. 1689 (1984); and Aronson v. United States Department of Housing & Urban Development, 866 F.2d 1, 5-6 (1st Cir. 1989).

 This court concurs with the decision and reasoning of the First Circuit in Aronson. The result reached there is consistent with the language of the code section, which requires that the attorneys' fees be "incurred." *fn1" It is also supported by the legislative history of the code section. See S. Rep. No. 93-854, 93rd Congress, 2nd Session 17 (1974), reprinted at Freedom of Information Act and Amendments of 1974 (PL 93-502), and hearings Volume 1 at page 175. And it is consistent with the following decisions which, while not on precisely the same issue, are relevant to it.

 The Ninth Circuit has held that a pro se litigant, who is not an attorney, is not entitled to receive attorneys' fees under FOIA; Carter v. Veterans Administration, 780 F.2d 1479, 1481 (9th Cir.1986). As stated in Aronson, this court agrees that pro se plaintiffs who happen to be attorneys should not be treated differently from pro se litigants who are not attorneys; Aronson, 866 F.2d at 5.

 This court has also considered cases considering awards of attorneys' fees to attorney litigants under other statutes. In Ellis v. Cassidy, 625 F.2d 227, 230-31 (9th Cir. 1980), the Ninth Circuit upheld an award of attorneys' fees to pro se defendants under 42 U.S.C. § 1988. However, that decision does not control this case. Section 1988 does not contain a requirement that the attorneys' fees be "incurred." And the court in Ellis was influenced by the fact that those attorneys were defendants who had to defend themselves against a frivolous suit; see Merrell v. Block, 809 F.2d 639, 641 (9th Cir. 1987). Other Ninth Circuit decisions have denied attorneys' fees to pro se litigants who were not attorneys under (1) the Truth in Lending Act, 15 U.S.C. § ...


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