Public Employees for Environmental Responsibility v. United States International Boundary & Water Commission
968 F. Supp. 2d 85
D.D.C.2013Background
- PEER filed a FOIA suit against the U.S. International Boundary and Water Commission (IBWC) seeking records about what funds paid a private law firm that defended IBWC in a Whistleblower Protection Act case (McCarthy v. IBWC).
- This Court granted summary judgment for PEER on the FOIA claim, making PEER the prevailing party and eligible for attorneys’ fees under 5 U.S.C. § 552(a)(4)(E)(i).
- PEER moved for $40,484.88 in fees and costs; later it sought an additional $33,475.50 for litigating the fee issue.
- A substantial portion of the fees (about $32,575.50, >80%) came from work performed by Robert J. McCarthy, who was both a former IBWC employee/plaintiff in the whistleblower suit and an attorney who assisted on the FOIA case.
- IBWC argued McCarthy’s work should be disallowed under the pro se attorney rule (analogizing to attorneys proceeding pro se who cannot recover fees for their own work); IBWC contended McCarthy’s interest in the underlying whistleblower matter made his work akin to pro se effort.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PEER may recover attorneys’ fees for work done by McCarthy | PEER: Organization is prevailing party; McCarthy was not the party-in-interest, so his work is chargeable to PEER | IBWC: McCarthy’s dual role (attorney and interested person) makes his work analogous to a pro se attorney’s work and thus non-recoverable | Court: PEER is an organization and party-in-interest; pro se exception inapplicable; fees for McCarthy’s work are recoverable under PEER’s award |
| Whether plaintiff’s interest in outcome can bar recovery of fees for an assisting attorney | PEER: Any interest McCarthy had is irrelevant because PEER, not McCarthy, is the litigant | IBWC: McCarthy’s interest demonstrates lack of third‑party detachment justifying the pro se rule | Court: Status as party-in-interest controls; levels of detachment are not analyzed; pro se rule not imposed on PEER |
| Whether an organization can be treated as pro se for fee purposes | PEER: Organizations are represented and cannot be pro se | IBWC: (implicit) try to impute pro se characteristics via McCarthy | Court: Organization (PEER) cannot be pro se; Burka distinguishes and does not apply here |
| Whether additional fees for litigating the fee request should be granted now | PEER: Seeks additional $33,475.50 for litigating fees | IBWC: Not yet presented (Court gave opportunity) | Court: Grants $40,484.88 now; treats additional $33,475.50 as a separate motion and gives IBWC 14 days to respond; caps potential reply fees at 8 hours if necessary |
Key Cases Cited
- Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521 (D.C. Cir. 2011) (distinguishes eligibility and entitlement for FOIA fee awards and outlines balancing inquiry)
- Burka v. U.S. Dep’t of Health & Human Servs., 142 F.3d 1286 (D.C. Cir. 1998) (pro se attorney who is party-in-interest cannot recover fees for own work; fees may be recoverable for other attorneys only if an agency relationship exists)
- Kay v. Ehrler, 499 U.S. 432 (1991) (Supreme Court prohibiting fee recovery for pro se attorneys in civil rights suits and explaining rationale)
- Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312 (D.C. Cir. 2006) (organizations are always represented and cannot be treated as pro se for fee purposes)
- Kooritzky v. Herman, 178 F.3d 1315 (D.C. Cir. 1999) (discusses agency-relationship requirement for fee recovery when pro se litigant is involved)