UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


KOORITZKY, SAMUEL

v.

HERMAN, ALEXIS M.


98-5424a

D.C. Cir. 1999


*	*	*


Sentelle, Circuit Judge: Appellant Alexis Herman, Secre- tary of the
Department of Labor ("DOL" or "Department"),  seeks reversal of the
district court's award of attorney fees  under the Equal Access to
Justice Act ("EAJA") to Appellee  Samuel G. Kooritzky. Kooritzky
cross-appeals, alleging that  the district court committed errors that
resulted in an unwar- ranted reduction in the amount of attorney fees
he was  awarded. We conclude that an attorney acting pro se, such  as
Kooritzky, is not entitled to recover attorney fees under  the EAJA.
We therefore reverse the district court's award  of fees, and conclude
that Kooritzky's objections to the  amount of fees awarded are moot.


I. Background


Kooritzky, an immigration law attorney, commenced an  action pro se in
November 1991 against the Secretary of  Labor, challenging
promulgation of an "interim final rule" by  DOL which terminated the
right of employers to substitute  one immigrant applicant for another
in the labor certification  process. The district court ruled in DOL's
favor, but we  reversed, concluding that DOL had promulgated its rule 
without adequate notice and comment. Kooritzky v. Reich,  17 F.3d 1509
(D.C. Cir. 1994).


After prevailing on the merits, Kooritzky sought to recover  attorney
fees from the Department. Kooritzky asserted that,  in addition to his
own efforts, he received assistance from  attorneys Christopher Teras,
M. Sean Purcell, and Tae Kim, 


and law clerk Thomas Moore. None of these individuals,  however, had
entered an appearance on Kooritzky's behalf  during the merits phase
of the case.


On March 1, 1995, Kooritzky moved for an award of  attorney fees of
$427,662 under the EAJA, 28 U.S.C.  s 2412(d)(1)(A), to compensate him
for his and his colleagues'  work. The district court referred the
matter to a magistrate  judge for a recommendation regarding the
amount of attor- ney fees, if any, Kooritzky was entitled to recover.
After  seven days of hearings, the magistrate judge recommended  that
Kooritzky be awarded $31,798.71 for his own work only.  Joint Appendix
at 18-59. The magistrate judge concluded  that Kooritzky had no
representation agreement with any of  his alleged co-counsel and, as a
result, could not recover their  attorney fees.


Both sides filed objections to the magistrate's report. On  December
17, 1997, the district court issued a Memorandum  on Attorney Fees,
agreeing that Kooritzky was eligible for  attorney fees and finding
that he was entitled to the following  amounts: $51,920.51 for
Kooritzky, $47,689.03 for co-counsel  fees, and $134.70 for
photocopying charges. Kooritzky v.  Herman, 6 F. Supp. 2d 1 (D.D.C.
1997) ("Kooritzky I"). The  court ordered the parties to submit
evidence relevant to the  prevailing market rate for legal assistants
working as inde- pendent contractors in the Washington, D.C. area in
order to  assess the amount Kooritzky could recover for the work of 


On May 7, 1998, following further submissions by the  parties,
including Kooritzky's motion for reconsideration and  DOL's
opposition, the district court issued its final judgment  on attorney
fees. Kooritzky v. Herman, 6 F. Supp. 2d 13  (D.D.C. 1998) ("Kooritzky
II"). The court directed that DOL  pay Kooritzky the following fees by
June 15, 1998: $55,992.06  for Kooritzky, $82,754.98 for co-counsel
fees, and $134.70 for  photocopying expenses.


On May 21, 1998, DOL moved for reconsideration based on  an intervening
decision by this court, Burka v. United States  Department of Health
and Human Services, 142 F.3d 1286 


(D.C. Cir. 1998), in which we affirmed a decision denying  attorney
fees under the Freedom of Information Act  ("FOIA") to a pro se
attorney for his work and the work of  his colleagues. Our decision in
Burka was based on our  reading of the Supreme Court's decision in Kay
v. Ehrler, 499  U.S. 432 (1991). In Kay, the Court ruled that the word
 "attorney" in the fee-shifting provision of the Civil Rights 
Attorney's Fees Awards Act, 42 U.S.C. s 1988, assumes an  agency
relationship, and therefore precludes recovery of at- torney fees for
work done by an attorney acting pro se. In  Burka, we held that the
reasoning of Kay compelled denial of  attorney fees to a lawyer acting
pro se under the similar fee- shifting provision in FOIA. 142 F.3d at
1288-89. On June 9,  1998, the district court denied DOL's motion,
concluding that  there were differences between FOIA and EAJA that
coun- seled against application of the Kay decision in EAJA cases. 
The parties subsequently filed these appeals.


II. Analysis


The Department challenges the district court's award of  attorney fees
for both (1) Kooritzky's own work and (2) the  work of Kooritzky's
co-counsel. Since the analysis for the  two categories of fees
differs, we address them separately.


A. Attorney Fees for Work Performed by Kooritzky


DOL argues that the district court erred in awarding  attorney fees to
Kooritzky since he was acting pro se. In  particular, DOL contends
that the district court mistakenly  relied upon this court's decision
in Jones v. Lujan, 887 F.2d  1096 (D.C. Cir. 1989), allowing recovery
of attorney fees by a  pro se attorney-litigant under the EAJA. See
Kooritzky I, 6  F. Supp. 2d at 3. DOL submits that our decision in
Jones was  implicitly overruled by the Supreme Court in Kay v. Ehrler,
 499 U.S. 432 (1991), disallowing recovery of attorney fees to  pro se
plaintiffs under the fee-shifting provision found in 42  U.S.C. s
1988. Kooritzky contends that the district court  correctly relied on
this court's decision in Jones, which he  asserts remains the
controlling law of this circuit despite the 


Supreme Court's subsequent decision in Kay. He argues  that the Kay
opinion was limited to cases brought under the  Civil Rights
Attorney's Fees Awards Act and that, while Kay  resolved a "statutory
ambiguity" by examining the specific  legislative history of that Act,
the Jones holding was based on  the clear and unambiguous language of
the EAJA. Upon  review, we conclude that the fee-shifting provision of
EAJA  does not differ in any material way from the statutes con-
strued by the Supreme Court in Kay and by this court in  Burka. We
therefore hold that our decision in Jones has  been overruled by the
Supreme Court, and that the district  court erred in awarding fees to
the pro se litigant under  EAJA.


In the United States, fee shifting is a departure from the  norm. In
the general run of litigation, the "American rule"  dictates that each
party to a lawsuit bears his own attorney  fees. Hensley v. Eckerhart,
461 U.S. 424, 429 (1983); Alyes- ka Pipeline Serv. Co. v. Wilderness
Soc'y, 421 U.S. 240, 247  (1975). Congress has specified exceptions to
this American  rule in a number of statutory schemes in the form of
fee- shifting provisions which allow recovery of attorney fees by a 
"prevailing party." See West Virginia Univ. Hosps., Inc. v.  Casey,
499 U.S. 83, 89 (1991) (noting that "[a]t least 34  statutes in 10
different titles of the United States Code  explicitly shift
attorney's fees and expert witness fees"). The  governing fee-shifting
statute for EAJA awards is 28 U.S.C.  s 2412(d)(1)(A):


Except as otherwise specifically provided by statute, 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 agen- cy 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 substan- tially justified
or that special circumstances make an  award unjust.


The EAJA elsewhere defines "fees and expenses" to include  "the
reasonable expenses of expert witnesses, the reasonable  cost of any
study, analysis, engineering report, test, or pro- ject which is found
by the court to be necessary for the  preparation of the party's case,
and reasonable attorney fees."  Id. s 2412(d)(2)(A).


In Kay v. Ehrler, the Supreme Court considered the enti- tlement to
fees of a lawyer litigating pro se in a civil rights  action. The
Civil Rights Attorney's Fees Awards Act provid- ed that in such an
action, "the court, in its discretion, may  allow the prevailing
party, other than the United States, a  reasonable attorney's fee as
part of the costs." 42 U.S.C.  s 1988(b). After noting that it was
already fixed law "that a  pro se litigant who is not a lawyer is not
entitled to attorney's  fees," Kay, 499 U.S. at 435 (emphasis in
original), a unani- mous Supreme Court held that the same rule applied
to a pro  se litigant who is a lawyer. While the Court allowed that 
neither the text nor the legislative history of the statute  provided
"a clear answer," it firmly declared that "the word  'attorney'
assumes an agency relationship, and it seems likely  that Congress
contemplated an attorney-client relationship as  the predicate for an
award under s 1988." Id. at 435-36. In  so declaring, the Court cited
the definition of the word  "attorney" as " '[O]ne who is legally
appointed by another to  transact business for him; specif: a legal
agent qualified to  act for suitors and defendants in legal
proceedings.' " Id. at  436 n.6 (quoting Webster's New Collegiate
Dictionary 73  (1975)). The Court therefore concluded that the pro se 
litigant, even though a qualified lawyer, is not entitled to  attorney
fees for his own time, but may only collect fees for  work performed
by third parties employed to act as his  attorneys at law in the


Although the definitional support for the holding might  have been
sufficient, the Court buttressed its conclusion with  an examination
of the purpose of the statute. While recogniz- ing that the
fee-shifting provision "was no doubt intended to  encourage litigation
protecting civil rights," the Court further  noted that "it is also
true that its more specific purpose was  to enable potential
plaintiffs to obtain the assistance of com-


petent counsel in vindicating their rights." Id. at 436. There  is no
limiting language in the Kay opinion to make us believe  that the
Supreme Court intended its reasoning to apply only  to the specific
statute before it. Other fee-shifting statutes  also speak of
"attorney's" fees. The definitional implication  of an agency
relationship in the EAJA provision is therefore  just as strong as in
the Civil Rights Act. Therefore, in  Burka, we had no difficulty in
holding that the fee-shifting  provision of the Freedom of Information
Act, 5 U.S.C.  s 552(a)(4)(E) (1994), was governed by Kay and that a
pro se  attorney-litigant pursuing a remedy under FOIA, like his 
counterpart in a civil rights action, was not entitled to an  award of
attorney fees. As the Supreme Court had done in  Kay, we noted in
Burka that a contrary rule would be  counter to one purpose of the
statute--that is, " 'to encourage  potential claimants to seek legal
advice before commencing  litigation.' " Burka, 142 F.3d at 1289
(quoting Kay, 499 U.S.  at 435 n.4) (other citations and internal


As both the Burka and Kay opinions further note, "al- though a pro se
attorney possesses legal expertise, he is  unlikely to have the
'detached and objective perspective nec- essary to fulfill the aims of
the Act.' " Burka, 142 F.3d at  1289 (quoting Kay, at 435 n.4) (other
internal quotations and  citations omitted). Thus, Burka reflects a
conviction that  nothing in the Supreme Court's Kay opinion limits its
reason- ing to the specific facts or statute before it. Nor does 
anything in the reasoning of Kay or Burka draw a line  excluding the
EAJA from the analysis controlling the applica- tion of the other
fee-shifting statutes.


The EAJA uses precisely the same wording--"attorney's  fees"--construed
to imply the necessity of an agency relation- ship in the other acts.
Nothing in the statute defeats that  implication. Not only does this
similarity in wording suggest  that the EAJA, like the FOIA, is
controlled by the same  reasoning applied by the Supreme Court to the
Civil Rights  Act, the Supreme Court itself has noted in the past the 
similarity between the fee-shifting provisions of the EAJA  and
Section 1988, observing that the EAJA is "the counter- part to s 1988
for violation of federal rights by federal 


employees." See West Virginia Univ. Hosps., 499 U.S. at 89;  see also
Independent Fed'n of Flight Attendants v. Zipes, 491  U.S. 754, 758
n.2 (1989) ("[F]ee-shifting statutes' similar  language is 'a strong
indication' that they are to be interpret- ed alike.").


The district court, faced with an apparently controlling  precedent
from this court in Jones compelling one result and  a later decision
of the Supreme Court arguably but not  directly overruling that
decision, concluded that Kooritzky  "presented a persuasive argument
that the [EAJA] differs in  both language and purpose from the
attorneys' fee provisions  of the Civil Rights Act and the Freedom of
Information Act."  Kooritzky I, 6 F. Supp. 2d at 3. We cannot agree.
The  relevant fee-shifting provisions of the Civil Rights Attorney's 
Fees Awards Act and the EAJA are the same in one control- ling
particular: both provide for recovery of "attorney's fees."  Thus, a
straightforward analysis of the statutory text is  sufficient to
conclude that, as in the case of the Civil Rights  Attorney's Fees
Awards Act provision, a pro se attorney- litigant may not recover
attorney fees under the comparable  fee-shifting provision of the


Neither is there a difference of purpose in the statute that  impels us
toward any different result. In concluding that the  plaintiff had
"presented a persuasive argument that the  [EAJA] differs in both
language and purpose from the attor- neys' fee provision of the Civil
Rights Act and the [FOIA]"  construed in Kay and Burka, the district
court cited Spencer  v. NLRB, 712 F.2d 539, 550 (D.C. Cir. 1983), as
"enumerating  purposes of the Equal Access to Justice Act." Kooritzky
I, 6  F. Supp. 2d at 3. We have reviewed the goals we set forth in 
Spencer: (1) to provide relief to victims of abusive govern- mental
conduct without assuming "enormous financial bur- dens"; (2) "to
reduce the incidence of such abuse"; and (3) to  "expos[e] a greater
number of governmental actions to adver- sarial testing." 712 F.2d at
550. We find none of these to be  inconsistent with the corresponding
goals of the Civil Rights  Act underlying the fee-shifting provision
of 42 U.S.C. s 1988.  Indeed, we must echo the Supreme Court's
declaration in  West Virginia University Hospitals that EAJA is in a


a counterpart of the civil rights statute. In neither instance  does
the general goal of encouraging vindication of rights  warrant an
award of attorney fees where no attorney-client  relationship exists
and where the goal of the filtering of  litigation through an
independent professional is not met.


In Kay, the Court determined that a lawyer who appears  pro se is
"deprived of the judgment of an independent third  party in framing
the theory of the case, evaluating alternative  methods of presenting
the evidence, cross-examining hostile  witnesses, formulating legal
arguments, and in making sure  that reason, rather than emotion,
dictates the proper tactical  response to unforeseen developments in
the courtroom." 499  U.S. at 437. Thus, the Court concluded that
"[t]he statutory  policy of furthering the successful prosecution of
meritorious  claims is better served by a rule that creates an
incentive to  retain counsel in every such case." Id. at 438.


The same policy goals undergird the EAJA. As this court  has observed,
"[b]oth the Civil Rights Attorney's Fees Award  Act ... and the EAJA
were designed to supplement a host of  more specific provisions
allowing for the award of attorneys'  fees in suits brought under
statutes granting or protecting  various federal rights." Spencer, 712
F.2d at 545 n.18; see  also Celeste v. Sullivan, 988 F.2d 1069, 1070
(11th Cir. 1992)  ("The fee shifting provisions in section 1988 and in
the EAJA  serve the same purposes."). Like the Civil Rights Attorney's
 Fees Awards Act, 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. See H.R. Rep. No. 1418, 96th Cong.,  2d Sess. 9 (1980)
(fee-shifting enacted to aid citizens for whom  "the inability to
recover attorney fees preclude[d] resort to  the adjudicatory
process"); id. at 12 (noting that under the  EAJA, "fee shifting
becomes an instrument for curbing exces- sive regulation and the
unreasonable exercise of Government  authority"). In doing so,
Congress contemplated that attor- ney and client would be distinct
individuals. See id. at 15  ("[T]he computation of attorney fees
should be based on  prevailing market rates without reference to the


ments between the attorney and client."). Thus, as in Kay,  our
interpretation of the EAJA is consistent with underlying  policy goals
and congressional purpose.


Our prior applications of the Supreme Court's decision in  Kay further
support our ruling in this case. We have already  held that the
Supreme Court's holding in Kay extends beyond  the Section 1988
context. In Burka v. United States Depart- ment of Health and Human
Services, 142 F.3d 1286 (D.C.  Cir. 1998), we ruled that pro se
plaintiffs could not recover  attorney fees under the fee-shifting
provision in FOIA. In  doing so, we concluded that Kay overruled prior
decisions of  this court holding that a pro se attorney-litigant was
entitled  to recover attorney fees under the fee-shifting provisions
of  FOIA. Id. at 1288 (citing Cuneo v. Rumsfeld, 553 F.2d 1360,  1366
(D.C. Cir. 1977)). As a result of our analysis of the Kay  decision,
we concluded that "the Supreme Court intended its  ruling to apply
beyond section 1988 cases to other similar fee- shifting statutes,
particularly the one in FOIA. It is, in short,  impossible to conclude
otherwise than that pro se litigants  who are attorneys are not
entitled to attorney's fees under  FOIA." Id. at 1289; see also
Benavides v. Bureau of Pris- ons, 993 F.2d 257, 259 (D.C. Cir. 1993)
(denying attorney fees  under FOIA to a pro se non-attorney on the
grounds that  "the Supreme Court believes that the word 'attorney,'
when  used in the context of a fee-shifting statute, does not encom-
pass a lay-person proceeding on his own behalf"). Thus, in  Burka, we
stated the position of this court that the Supreme  Court's decision
in Kay applies outside of the Section 1988  context, extending to all
similarly-worded fee-shifting provi- sions. We reaffirm that holding


In so ruling, we join a number of other circuits that have  ruled that
Kay compels the conclusion that pro se plaintiffs  may not recover
attorney fees under the EAJA. In SEC v.  Waterhouse, the Second
Circuit applied Kay to bar recovery  of attorney fees by a pro se
attorney-litigant, observing that  the "agency relationship [is
absent] in the pro se context." 41  F.3d 805, 808 (2d Cir. 1994).
Similarly, in Celeste v. Sullivan,  the Eleventh Circuit concluded
that because the fee-shifting  provisions in the Civil Rights


and the EAJA serve the same purposes, the Supreme Court's  decision in
Kay barred recovery of attorney fees under the  EAJA by a pro se
non-attorney. 988 F.2d 1069, 1070 (11th  Cir. 1992). Finally, in
Demarest v. Manspeaker, the Tenth  Circuit denied attorney fees under
the EAJA to a pro se  litigant, concluding that, like the Civil Rights
Attorney's Fees  Awards Act, the EAJA "attempts to enable meritorious
litiga- tion to take place, not to reward individuals who obtain legal
 redress." 948 F.2d 655, 656 (10th Cir. 1991).


B. "Expert Witness" Expenses


Not content to rest on his argument that this court's  decision in
Jones is controlling, however, Kooritzky further  claims that he is
entitled to recover fees under 28 U.S.C.  s 2412(d)(2)(A) for time he
spent acting as an immigration  law "expert" in his own case.
Kooritzky contends that the  district court correctly found that he
played a "dual role" in  the litigation and that he both "participated
in the advocacy  role of an attorney" and "participated as an expert
in immi- gration law as a supporter of his colleagues in the 'study
...  and analysis' of the specialized immigration law and policy 
issues presented by this litigation." Kooritzky I, 6  F. Supp. 2d at
4. Kooritzky extrapolates from this finding to  the conclusion that he
is entitled to recover fees for his work  as an "expert witness" even
if he is not entitled to recover  "attorney fees" for the same work.


DOL argues that Kooritzky should not be allowed to "side- step" his
preclusion from recovering attorney fees by charac- terizing the fees
as "expert" expenses. DOL observes that  the district court agreed
that this was a "routine APA case"  and contends that therefore no
expert studies were required  and that "the substantial amounts of
time wasted by plaintiff  hardly qualify him for compensation as an
expert." DOL  Reply Brief at 2, 10. DOL also maintains that Kooritzky 
characterized the fees he claimed as attorney fees and that he  cannot
now claim that these amounts represent compensation  for time he spent
preparing the case as an expert witness.


We agree that a pro se attorney-litigant may not evade the  prohibition
against recovery of attorney fees under the EAJA  by seeking to
characterize himself as an "expert witness."  The EAJA provides that
litigants may recover "fees and  other expenses" incurred in pursuing
claims regarding al- leged violations of various federal rights.
Elsewhere, this  phrase is defined as follows:


"fees and other expenses" includes the reasonable ex- penses of expert
witnesses, the reasonable cost of any  study, analysis, engineering
report, test, or project which  is found by the court to be necessary
for the preparation  of the party's case, and reasonable attorney


28 U.S.C. s 2412(d)(2)(A). On its face, therefore, the statuto- ry
language provides for the recovery of "reasonable ex- penses of expert
witnesses" in addition to "reasonable attor- ney's fees." Unlike the
term "attorney," the phrase "expert  witness" arguably does not
connote as readily the sort of  agency relationship that would support
a reading of the  statute requiring that the litigant and expert
witness be  separate individuals before expenses may be awarded.


However, it is not at all unlikely that Congress intended  that expert
witnesses, like attorneys, should be distinct from  litigants. EAJA
with its net worth threshold, see 28 U.S.C.  s 2412(d)(2)(B),
apparently contemplates placing less solvent  litigants facing the
government as an adversary on a basis  similar to the multimillionaire
engaged in the same type of  litigation. Appellee has shown us no
precedent for a litigant,  wealthy or otherwise, receiving witness
fees, expert or plain,  for his own litigation. Indeed, it would seem
a strange  incentive to provide witness fees not for the purpose of 
reimbursing a litigant for his out-of-pocket costs, but as  salary for
time spent as a witness in his own litigation.  Moreover, as the
Supreme Court noted in Kay "[e]thical  considerations may make it
inappropriate for [a pro se law- yer] to appear as a witness." Kay,
499 U.S. at 437 n.9 (citing  the ABA Model Code of Professional
Responsibility: "[t]he  roles of an advocate and of a witness are
inconsistent; the  function of an advocate is to advance or argue the


another, while that of a witness is to state facts objectively.").  We
find decidedly uncompelling an argument that we should  enter a novel
holding providing an incentive to tread that  questionable ethical
ground.


The rationale of Kay further counsels in favor of barring  recovery of
expenses incurred by a litigant acting as his own  expert. The Court
in Kay noted that Congress in enacting  various fee-shifting
provisions sought to encourage plaintiffs  to hire objective outside


A rule that authorizes awards of counsel fees to pro se 
litigants--even if limited to those who are members of  the bar--would
create a disincentive to employ counsel  whenever such a plaintiff
considered himself competent  to litigate on his own behalf. The
statutory policy of  furthering the successful prosecution of
meritorious  claims is better served by a rule that creates an
incentive  to retain counsel in every such case.


499 U.S. at 436. By analogy, the same congressional policy is  served
by a rule that encourages plaintiffs to retain objective  outside
experts. Thus, Kooritzky's claim for fees, whether  characterized as
"attorney fees" or "expert expenses" must  fail.


In any event, the statutory language also makes plain that  "attorney
fees" and expert witness expenses are separate and  distinct items of
expense. See West Virginia Univ. Hosps.,  499 U.S. at 92 (concluding
that under the background against  which Congress enacted the
fee-shifting provision of the Civil  Rights Attorney's Fees Awards
Act, "[e]xpert fees were  regarded not as a subset of attorney's fees,
but as a distinct  category of litigation expense"). Allowing a pro se
attorney- litigant to recover fees for legal services rendered during
the  course of litigation by characterizing them as "expenses of 
expert witnesses" or the "reasonable cost" of various studies,  rather
than "attorney fees" would vitiate the holding of Kay  as applied to
the EAJA and would make the determination of  fee eligibility rest
solely on the semantics of the litigant's fee  petition. Therefore, we
hold that a lawyer-litigant acting pro  se may not recover fees for
acting as an "expert witness" in 


his own case, at least, where the "expertise" possessed by the 
litigant is essentially legal in nature.


Such a rule is particularly warranted in a case such as this  where the
legal "expertise" claimed by the litigant is of  limited relevance to
the subject matter of the underlying suit.  Kooritzky's alleged legal
expertise consists of his knowledge  of immigration law. His suit,
however, challenged a DOL  regulation on the ground that it was
promulgated in violation  of the notice and comment provisions of the
Administrative  Procedure Act--an issue of administrative, not
immigration,  law. Moreover, the record contains evidence that
Kooritzky  lacked the very expertise that was most required in this 
case--experience trying administrative law cases in the feder- al
courts. Indeed, the district court observed that Kooritzky  "admitted
[his] absence of court experience." Kooritzky, 6  F. Supp. 2d at 8.
Such circumstances demonstrate the danger  of a holding that would
allow attorney-litigants to evade the  Court's pronouncement in Kay by
proclaiming themselves  legal "experts" and thereby allowing them to
recover attorney  fees relabeled as "expert expenses."


C. Attorney Fees for Work Performed  by Kooritzky's "Co-Counsel"


In addition to seeking reversal of the district court's award  of
attorney fees for legal work performed by Kooritzky in his  own case,
DOL argues that Kooritzky should not have been  permitted to recover
attorney fees for the work of his col- leagues. The Department relies
primarily on our ruling in  Burka that a pro se attorney-litigant must
demonstrate that  he and his co-counsel have a "genuine
attorney-client relation- ship" and that his co-counsel are exercising
"independent"  judgment before he may be awarded attorney fees for
their  work under the EAJA. 142 F.3d at 1291-92. DOL argues  that the
rationale of Burka applies in this case even though  Kooritzky's
co-counsel are not employees of his law firm, as  were the attorneys
in Burka. DOL Reply Brief at 12.  Kooritzky responds that he need only
demonstrate that a  valid attorney-client relationship existed between


co-counsel. While admitting that he never had a written  agreement with
any of his co-counsel, Kooritzky asserts that  no such agreement is
necessary for there to be a valid  attorney-client relationship.


DOL is correct that our analysis in Burka is controlling.  Our holding
in Burka dictates that a pro se attorney-litigant  must demonstrate
that he and his co-counsel have a "genuine  attorney-client
relationship" and that his co-counsel are "inde- pendent" before
attorney fees may be awarded. 142 F.3d at  1291-92. We concluded that
this requirement followed from  the Supreme Court's ruling in Kay that
the term "attorney"  used in a similarly-worded fee-shifting statute "
'assumes an  agency relationship' " that bars recovery of attorney
fees for  work performed by all those who are not "independent third 
part[ies]." Id. at 1291 (quoting Kay, 499 U.S. at 435-36, 437). 
Adhering to the Supreme Court's reasoning we denied recov- ery of fees
to a pro se attorney-litigant who (1) controlled the  legal strategy
and presentation in his own case, (2) was the  only attorney to enter
an appearance in the case, and (3)  directed the work of his
colleagues who were employed by the  attorney-litigant's law firm. Id.
We distinguished cases  relied upon by the plaintiff in Burka in which
pro se litigants  were allowed to recover fees, noting:


In all three cases, the court awarded attorney's fees to a  pro se
attorney-litigant for the work of co-counsel. Yet,  as the district
court noted below, all three cases involved  attorneys who were not
affiliated with the litigant's law  practice. As a result, these
outside counsel, unlike the  colleagues employed by Burka, enjoyed a
genuine  attorney-client relationship with the litigants, were situ-
ated to offer "independent" legal advice and assistance,  and were
presumably paid for their services by the  attorney-litigants
involved. This was not true here. In- stead, Burka controlled the
legal strategy and presenta- tion, he was the only attorney to enter
an appearance in  the case, and his colleagues worked under his
direction.  These are material differences.


Id. at 1291. We concluded that, based on these factors, co- counsel in
Burka lacked the requisite independence necessary  for recovery of
attorney fees under the fee-shifting provision  found in FOIA.


The same analysis applies under the EAJA. 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. As we demonstrated above,
the Su- preme Court's conclusion in Kay that the term "attorney" 
contemplates an agency relationship between a litigant and an 
independent lawyer applies not only to the fee-shifting provi- sions
of the Civil Rights Attorney's Fees Awards Act, but to  all
similarly-worded fee-shifting provisions, including that  found in the


Applying the test we outlined in Burka, we conclude that  Kooritzky has
not shown that his co-counsel evidenced the  independence necessary
for recovery of fees under the EAJA.  We further conclude that
Kooritzky and his co-counsel did not  enjoy a genuine attorney-client
relationship for purposes of  the fee-shifting provision of the Act.
As the district court  noted, the relationship between Kooritzky and
his "co- counsel" was "unusual." Kooritzky I, 6 F. Supp. 2d at 5. As 
in Burka, none of Kooritzky's co-counsel entered an appear- ance on
his behalf during the merits phase of the case. The  only appearance
by co-counsel on behalf of Kooritzky oc- curred after Kooritzky had
prevailed on the merits when the  district court was determining the
amount of attorney fees, if  any, Kooritzky was entitled to receive.
There was no formal  agreement between Kooritzky and his colleagues
concerning  fees for legal services rendered. None of Kooritzky's
alleged  co-counsel ever billed him for legal services rendered. More-
over, his co-counsel did not even keep accurate records of the  time
they allegedly spent on Kooritzky's case. After review- ing the
evidence, the magistrate judge observed that " '[n]o- body expected to
get paid.' " Id. (citing Magistrate Report  and Recommendation at


Indeed, as Kooritzky's counsel acknowledged during oral  argument, it
was only after Kooritzky had prevailed on the  merits that he and his
colleagues realized that they might be  able--in his words--to "stick
the government" for attorney  fees. Once this realization dawned upon
them, they proceed- ed to reconstruct the hours spent working on this
case,  leading to protracted litigation below concerning the amount 
of fees to which they were entitled. See id. at 8 (noting that 
"plaintiff's inexperience and disorderly recordkeeping im- posed an
enormous and unnecessary burden on the Court and  the Magistrate
Judge"). In engaging in such practices, Koor- itzky and his colleagues
ignored the admonition of the Su- preme Court in Hensley that "[a]
request for attorney's fees  should not result in a second major
litigation." 461 U.S. at  437. While the facts in this case differ
from those in Burka  in that Kooritzky's co-counsel, unlike the
attorneys in Burka,  are not employed by his law firm, this fact alone


We are not holding that in every instance an EAJA litigant  must show
that each attorney for whom he is entitled to  counsel fees entered an
appearance in the case. We do  however hold that such fees must be for
a professional who  has in fact acted in an attorney-client
relationship with the fee  claimant in the relevant EAJA litigation.
Kooritzky has not  made the necessary showing. Did the lawyers for
whom he  claims recompense receive or contemplate fees? According  to
the record they did not. Did they appear for him in the  merits phase
of the case? According to the record they did  not. Did they enter an
attorney-client relationship with  reference to this litigation? So
far as the record shows, they  did not. They may have counseled him,
they may have  advised him, but they did not provide the function
recognized  in Kay v. Ehrler of "filtering out meritless claims." 499
U.S.  at 437. The litigant himself acted as sole trial counsel. He 
was the final filter. He, like the FOIA litigant in Burka, 
"controlled the legal strategy and presentation," and "was the  only
attorney to enter an appearance," at least in the merits  phase of the
case. 142 F.3d at 1291. Like the litigant in 


Burka, he cannot collect attorney fees for professionals who  did not
act as his attorneys.1


D. Kooritzky's Cross-Appeal


Having concluded that Kooritzky may not recover attorney  fees for work
performed by either himself or his colleagues,  we need not reach the
merits of Kooritzky's objections to the  amount of the fee award.
Specifically, Kooritzky argues that  the district court erred by (1)
failing to increase his attorney  fee award to compensate him for
"special factors" permitted  under 28 U.S.C. s 2412(d), (2) failing to
permit him to submit  a supplemental fee request, and (3) refusing to
allow him to  submit a fee petition for work conducted in preparation
for  hearings before the magistrate judge. However, because  Kooritzky
is not entitled to any attorney fees under the  EAJA, his objections
to the amount of the fee award are  moot.


III. Conclusion


For the foregoing reasons, we hold that a pro se attorney- litigant may
not recover attorney fees under EAJA, 28 U.S.C.  s 2412(d)(1)(A). We
further hold that a pro se attorney- litigant may not recover attorney
fees under the EAJA for  the work of his co-counsel where the attorney
and his col- leagues lack a genuine attorney-client relationship.
Accord- ingly, the district court's award of fees is reversed.


1 The exact status of the law clerk "Thomas Moore" for whom  Kooritzky
claims fees is the matter of gravest confusion in the  record.
Apparently he was a student for the bar under a "reading  law" method
of eligibility in a state adjoining the District of  Columbia. So far
as we can tell, he was neither eligible for nor did  he receive any
sort of fees.