Falcone v. Internal Revenue Service
Headline: FOIA attorney-fee dispute: Court refused to review a Sixth Circuit ruling that bars lawyers who represent themselves from recovering attorney’s fees under FOIA, leaving a circuit split unresolved and in place.
Holding: The Court declined to review the lower court’s decision, leaving in place the Sixth Circuit’s rule that an attorney who represents themself cannot recover attorney’s fees under FOIA §552(a)(4)(E).
- Leaves circuit split over fee recovery by lawyers representing themselves unresolved.
- May prevent pro se attorney plaintiffs from receiving FOIA fee awards in some circuits.
- Keeps FOIA attorney-fee rules inconsistent across federal circuits.
Summary
Background
A tax attorney asked the Internal Revenue Service for records under the Freedom of Information Act (FOIA). The IRS initially denied the request. A federal trial court ordered some documents released, and the IRS later asked to dismiss its appeal. The attorney then asked the trial court for “reasonable attorney fees” under FOIA section 552(a)(4)(E). The trial court denied the fee request, finding the IRS had not acted unreasonably.
Reasoning
The key question was whether an attorney who represents themselves in court can recover attorney’s fees under FOIA’s fee-shifting rule. The Court of Appeals for the Sixth Circuit affirmed the denial of fees but did so on a different ground: it held that the statute does not authorize fee awards for pro se attorney plaintiffs. Several other Courts of Appeals have taken related positions about nonlawyers proceeding pro se, while the Fifth Circuit has allowed attorneys proceeding pro se to recover fees, creating a conflict among circuits.
Real world impact
The Supreme Court declined to review the Sixth Circuit decision, so that court’s rule remains controlling in its region. As a result, whether a lawyer who represents themselves can recover FOIA attorney’s fees now depends on which federal circuit hears the case. The split among circuits remains unresolved and could lead to different outcomes for similar plaintiffs across the country.
Dissents or concurrances
Justice White dissented from the denial of review and would have granted review to resolve the clear conflict among the Courts of Appeals.
Opinions in this case:
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