The U.S. Court of Appeals for the Fifth Circuit has blocked an immigration attorney's attempt to collect attorney fees after he successfully sued three separate federal agencies to access documents under the Freedom of Information Act.

The decision concerns Michael W. Gahagan, a Louisiana attorney who requested documents from the U.S. Department of Justice, the U.S. Department of Homeland Security and the U.S. Immigration and Customs Enforcement to assist clients and for personal reasons.

Gahagan was unsatisfied with the government's response to his requests so he filed three separate FOIA pro se lawsuits. In each case, Gahagan was considered the prevailing party and he moved for an award for costs and fees. While each district court judge awarded Gahagan costs, each of the judges also held that the lawyer was ineligible for attorney fees under FOIA. Gahagan later sought to overturn all of the those rulings in a consolidated appeal he filed before the Fifth Circuit.

In its decision, the Fifth Circuit analyzed three attorney fees-related decisions to reach its conclusion. The first was Cazalas v. DOJ, a 1983 decision in which the Fifth Circuit concluded that a pro se attorney is eligible for an award of attorney fees under the FOIA.

The second is Kay v. Ehrler, a 1991 decision from the U.S. Supreme Court that concluded a pro se lawyer in a civil rights case could not be awarded attorney fees under 42 U.S.C. Section 1988.

And the third was Texas v. ICC, a 1991 Fifth Circuit decision in which the court ruled that the state of Texas could receive attorney fees for forcing the Interstate Commerce Commission to disclose documents under FOIA—a decision in which the Fifth Circuit cited Cazalas in reaching its conclusion.

“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,” wrote Judge Andrew Oldham. “The first question is whether ICC requires us to follow Cazalas. It does not. The second question is whether Kay requires us to abandon Cazales. It does.”

Oldham wrote that the lead opinion from the three district judges noted that every other court of appeals to consider the attorney fee question after Kay has held that FOIA disallows prevailing-party fees for pro se attorneys. And he also noted that Fifth Circuit's ICC decision—which was decided just three months after Kay—doesn't say a word about the Supreme Court's unanimous holding in Kay.

“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 test supporting that result,” Oldham wrote.

“For these reasons, we hold pro se attorneys are ineligible for fee awards under the FOIA,” Oldham concluded in the decision.

Mahesha P. Subbaraman, a Minneapolis attorney who represents Gahagan, said his client will ask the Fifth Circuit to rehear the case.

“I think it's fair to say that based on our understanding of the law that the Freedom of Information Act allows fees to be awarded to attorneys who represent themselves and it is instrumental to the law's functioning that a fee award to a pro se attorney be preserved,'' Subbaraman said.

Peter M. Mansfield, an assistant U.S. attorney in the Southern District of Louisiana who represented the government in the case, did not return a call for comment.