they please the court my name is major suit rahman and it is my privilege to represent michael w kagan in these consolidated appeals congress authorized courts to grant attorneys feel wards under the freedom of information act for three clear reasons to incentiv public requests for information to deter unlawful government withholding of information and to penalize such unlawful withholding when it occurs granting for a few warts to cross a attorney plaintiff's advances all three purposes within congress 's use of the flexible term attorney's fees and congress reaffirmed all three purposes when it passed the open government act of two thousand and seven for that reason the courts have reaffirmed its decisions and because i was an i c c that pro se attorney for a few words and the court should reverse the decisions below which disregarded foy's unique nature as well as the rule of orderliness now the court has asked the parties to address two particular questions related to the rule of orderliness the for doing so however i'd like to briefly discuss the key differences between flat and section one nine hundred eighty eight because if the government can't overcome these differences then there's no reason for the court to revisit the will of orderliness now there are five key textual differences that the courtship pay attention to substantial that language matters because it serves the turns and punishment functions of lawyers be shifting provision to turning the government from litigating to the brink before producing documents the disk there's  second major difference between four and section one nine hundred eighty eight is that there's a disciplinary provision that immediately follows the shipping provision which makes attorneys fees a necessary proceeding for requiring a proceeding to determine whether disciplinary action is warranted against a responsible officer or employee there is no similar disciplinary trigger in section one thousand nine hundred thirty you have congressional reporting under five us see five five to six a the attorney general must report costs fees and penalties assessed under foyer to congress and then under the disciplinary provision the tourney general most amid an annual report to congress about disciplinary proceedings which have been triggered in part by an award of attorney's fees and we're focused on the fees incurred to me indicate someone is is charging you a fee in sort of judge garwood argument and in his dissent sure i understand your honor and i think that the cazalet majority is correct in terms of its analysis which is to say that when an attorney devotes time to a case they are incurring the value of that time they're giving up time that they could be spending on other cases that would actually generate material fees in that circumstance it's it's no different in some ways i'm thinking about a restaurant owner who throws a dinner for his family he's incurring a cost for doing that it may be his restaurant it may be his food he's paid for it but he's still incurring a positive if it's it incurred time or cost i think you'd have a good argument as it's as fees incurred that's correct your honor and we submit that the key languaged or the key term here is attorneys fees and it's important to recognize that even if you kind of want to walk down the road that kay laid out what the k courts said was that attorney's fees can mean an attorney was a representative in this case you know someone licensed to practice law engaged in this case and for that reason you have attorneys fees or it can mean that the attorney represented someone else it's capable of reaching both of those situations and so for that reason the court then moved on to kind of a policy based best guess because it didn't find the text or history of section one thousand nine hundred to be clear why is someone say someone who works for us district attorney's office or public defender who doesn't have a fee they normally charge why should that person be entitled to fees but a doctor who takes the time to do a full year request on shouldn't be well for the simple reason that the term attorney is present in the term attorney's fees the key thing to remember here is that the term attorneys please fees that language is flexible it can cover a situation where an attorney is a light someone licensed to practice not litigating the request and it can cover the situation where a litigant has retained someone to litigate the question that's an attorney he said any other court of appeals in the united states that is adopted that view the text your honor all the other courts of appeal to look at this issue have gone the other way  district court in the united states that's what i would guess your honor that we say in our reply brief the barrett case which considered this court's decision and has alice to be binding and to have not been overruled by kay with respect to this issue i'm sorry outside of history it's about looking at purpose it's not designed to be a popular to contest and we think that the fifth circuit got this analysis right because all of it got it right ok and then congress reaffirmed that analysis through the open government act of two thousand and seven through that act it made feel he's a penalty against the agency better acquiring the agency to pay for them it enhanced the reporting provisions with respect to discipline to make sure that that was an effective trigger that inform congress of what was going on it  section nine hundred eighty eight action is about a proceeding to establish monetary damages for civil rights violations now move on to the legal procedures involved here as the d c district court has said in a case applique all the wisdom versus united iterative motions process for determining whether an agency has fallen short of the mark section one hundred eighty eight on the other hand is a full blown trial process where you're dealing with ethical considerations about whether it's proper for an attorney  appear as a witness the party has to frame a theory of the case evaluate alternative arguments and determine ways to cross examine hostile witnesses counsel i appreciate this argument but hasn't the supreme court said over and over again that the fee shifting statutes are supposed to be interpreted consistently well your honor look let's go directly to question two which raises this point now the court in question to say it's a series of cases in which the supreme court has indicated where the shipping provision should language is a strong indication that they are to be interpreted alike and in hensley the court says the standard set forth in this opinion are generally applicable in all cases that take all of that together the common denominator is you have the supreme court expressly saying our decision in this case is supposed to be generally applied across the board there is nothing not one word in k in which the supreme court says this is designed to be applied across the board what the supreme court says in k is in the end the overriding statutory concern is the interest in obtaining independent counsel for victims of civil rights violations it narrows its analysis to just civil rights statutes and there is no comparable footnote as there is  when the supreme court clearly knew that it could include such a footnote if it wanted to to indicate that determination or issue a question about these the facts of these three cases that are consolidated and one of them your client was seeking his own for your records because some bar dispute so understand that one is this sort of off the table but the other or two he was seeking immigration clients records why couldn't he have filed the foyle claims in his client's name and then we wouldn't be here well i think that's a great question have done here is said well my client is the law firm of michael w hagan and i'm representing it and therefore i'm entitled to fees at the point which that's the distinction we're talking about here michael w hagan versus the united states versus the law office of michael w versus the united states and that's the distinction on which the availability of the he's turned i think at that point we're kind of debating how many angels can dance on the head of a pin and that's isn't the distinction between an attorney and fact in not having an attorney in fact  these it's not a distinction it's states form over substance and your honor i agree with you that that the definition of attorney is important and the definition the attorney can simply mean someone licensed to practice law and i can likewise mean someone who representing another it can cover both of those situations the question the court has to ask is given congress use of that flexible language what best serves the three clear purposes of this statute does it make sense to take a remedy that's designed to deter penalize the government when it unlawfully withholds information and to say that that unlawful withholding which is unlawful whether you have a represented plaintiffs or pro se attorney plaintiffs and say well we're just going to narrow it to one situation i don't think that that makes sense in the context of either thinking about fishing in general or in terms of the principles of the supreme court has enunciated about both fish shifting and statutory interpretation since k was decided and if the court has any doubts about that look at something like octane fitness to just bad faith cases or sanctions cases you have to give the term the full breaths that it deserves and here that's all we're asking in terms of thinking about in a big picture way is it important to serve all three of these functions and have the other circuits that have looked at this issue grappled with any of those functions and i think respectfully answer that question is no and the clearest indication of that is if you look at cases like for example the eleven circuits decision in re the court says ray makes no arguments that the congressional policy behind section nine hundred eighty eight is not the same policy behind for it well how can that case in which a party made no arguments then be a precedent for thinking about these issues going down the road so what this all comes back to i think in the end is an observation that this court actually made before cable four cazalet before i c c in a case called cofield vs city of atlanta and in that case the court said and i quote the history when wage and purpose of the freedom of information act differ significantly from those of the civil rights statutes those differences often render decisions under one of the statutes in apas it to cases arising under the other that's exactly what we have here and your position is that that language would serve god and that well it's not a question of surviving is simply a question of saying when the supreme court says that it wants to articulate a bright line rule to govern all fishing cases it says so and in that circumstance this court should absolutely follow it then the burden on the government is point me to k where in k the the the supreme court says something like that and it doesn't and we know that for two simple reasons both the government on appeal and the district court below the farthest they could get in terms of dealing with these precedents is to say there was an implicit overruling if there had been a bright line statement by the supreme court you could go much farther than implicit overruling and we also know it because the government made this exact same argument in i  c that that how you interpret for your should be governed by k and this three members of this court looked at that argument looked at k and rejected it based on the government's twenty eight j letter we're not asking for any different ley versus department of justice for that reason this court should affirm the three district court judges decisions to nine attorneys fees under the freedom of information act to the pro se attorney appellant michael j i would like to begin with the court's two arising under one statute may overrule circuit precedent arising under another statute as the second question the supreme court has consistently and expressly held that federal fee shifty statutes are to be construed harmonious conjunction with one another and in a similar fashion to doubling back to the first question the fact that k arose under the civil rights rights act is merely an incidental feature of that case the civil rights act is not into real to the cour analysis nor are specific provisions of the civil rights act indispensable to the supreme court's holding to put it another way the civil rights act was merely the vehicle for the instrumentality that transported a discreet and cross cutting issue of law to the supreme court it could have been in that discrete issue of law it could have been delivered under any number of federal fees shipped in statutes and i believe there's over one hundred somewhere between one hundred two hundred could have been an environmental statute could've been foiled could have been ija could have been any number of remedial federal statutes it just happen to be the civil rights act and i'm under but that's not dispositive the issue before the court question when asked whether an unequivocal supreme court holding on to one statute could was a case that was decided within a week of the appellate spiling the brief that stokes versus southwest airlines eighty seven fed third one ninety nine twenty eighteen case in that case this court looked at the supreme court's analysis on the existence of a private right of action under title six of the civil rights act and held that that overruled circuit authority arising under the air carrier access act two different statutory schemes the overruling occurred in stokes thirty example it's a criminal overburden the record in rodriguez this court looked at supreme court decisions on vindictive prosecution arising under the fourteenth amendment which of course applies to the states and held that that supreme court authority overruled circuit precedent under the fifth amendment which of course applies to the federal government two different constitutional amendments targeted to two different governmental actors none the less the latter overrule the former three examples that answer courts question number one as far as the court's question may stand for a right line categorical prohibition on that occurring the d s as far as the case on its very best day in twenty seventeen the day afterwards it was decided was a non presidential unpublished per curiam of course section sixteen day of title eighteen the out in tar case again that looked at the affordable care act which of course was a novel decision a fractured opinion did not overrule supreme court authority under lopez and morris in which this court relied on to find section nine twenty two g to be constitutional and finally the jacobs versus the national drug intelligence center case there existed a circuit split unrecoverable damages under the privacy act for twenty five years there had been no interv legislation or supreme court opinion as a matter of fact the supreme court in the case of the appellant was saying overrule circuit precedent in that very case the supreme court cited this circuit authority as an example of an issue they were not  court we can't i can't get a forecast we can't just have merely illuminating discussion sort of hypothetical discussion of a very abstract legal issue it's got to be on point it's got to clear it's got to be unequivocal that's the standard that we used to evaluate the clarity of the intervening precedent as would stoke says but and this is an important distinction i think one where the appellant gets a little bit hung up on his in his reply brief when the supreme court expressly or implicitly overrules one of our presidents we have the authority and obligation to declare an implement this change in the law so first do we have an unequivocal holding from the supreme court the answer is yes question number two does that holding expressly or implicitly overruled one of our pre if we're dealing with a different statutory scheme we can immediately eliminate expressed it's going to have to be implied because it would flow from the discussion it's a necessary implication of the supreme court's unequivocal holding hope that answers  vindicated and d s was wrongly decided because again de mayo relies on johnson but but that being said this is a different situation and we end up going on bond going to publish decision in gonzales on gloria was a divided court that said we're not going to question there's been unanimity since on this issue i mean supreme court to my was five four the supreme court has ruled five four whether johnson applied to that different statute hazan i know decision so there was unanimity in the very first instance from the first time this issue came to the supreme court nine a decision the analysis a short it's to the point it's general and it's broad let me ask you let's assume you're right that we can use kate to reconsider our precedent in the foyer statute let's assume for the reasons you said that's right what about the fact that the court first had that opportunity in the state of texas versus i c c case and didn't seem to change its mind about our precedent it says it characteriz it's rather curious they're citing to kathleen which seems to stand in stark contrast to the supreme court case but nonetheless because the close proximity the decisions were not going to read too much into that now they have know about the twentieth a lottery the bill let me answer your question the reason it's dict or inability to pay for an attorney i agree to it's a different issue and deciding the k t issue wasn't certainly necessary but we have our case law on dicta says something is not dicta if it was essential to the holding i think everyone sort of recognizes that it is or if it's a statement an announcement of legal principles i'm paraphrasing a bit but it and it seems to me what i read is a statement of governing legal principles the words governing explication of state of texas no one can confuse me for united states citizenship and immigration services despite the fact that work for the government there's a fundamental legal difference between a juridical artificial entity like a state or federal government an agency a through retained counsel whereas an individual can appear on his or her own behalf so it's a fundamental difference again between issue to saudi an i c c the discrete legal issue and the issue before the court right now and the issue before the court has like the issue before the supreme court can the difference between a state entity a natural person is or not situations what if the i c c case what if there were a footnote that said we stock a but we don't think that should change any of our case law we wouldn't want to be essential holding right but it it would be an explicit  thought about kay's effect on the case law in that scenario of agree with you we would not be before the court right now soon to raise the argument district court if i c c was an explicit an express why would you say that was dicta because it was unnecessary to the decision about whether states were able to get issues were distinct in there was no pro se individual attorney appearing before the court and i see said but if i see seeking to even express statement that says we've considered the viability of canceling in light of k and feldman said it's a little bit of a glitch in the analysis that we do have to deal with so let me jump in pivot to the court second question and the answer to that question about the consistency that the supreme court demands intent to harmonize all federal fee shifting statutes under a common regime of doctrine we're here to talk about the common regime of doctrine is a bright line rule to apply to every such case systemic supreme court interest in individuals retaining counsel that common regime of doctrine is especially appropriate when there's no meaningful distinctions in the legislative purpose beyond the fee shifting statutes or the they don't focus on that part of the interesting way the civil rights act does not include the word incurred we have a stronger textual argument to apply k to foil than even into the civil rights act you cannot build yourself you can't hold yourself into fault for non payment you can't see yourself or collection can't declare bankruptcy to get relief from yourself as creditor one cannot incur an attorney's fate to himself or herself that makes no sense to actually the statutory them to seek legal advice and not go at it alone and be at a disadvantage in a contested case and i'll take issue with this distinction between the civil rights act and oil as far as once more hotly contested another bottom line it's adversarial litigation in the american system as a plaintiff and defendant is represented by counsel whether or not a case goes to trial is immaterial the advice of an attorney is helpful and that's the third point the point of the fee shifting statues to ensure the detached in objective perspective of an attorney supreme court says the judgment of an independent third party is important to ensure that reason rather than emotion dictates the course of action this stance in stark contrast to what this cork said casually in the majority of the new where it said that we can find no justification in the legislative history that congress wanted the object of them to tach perspective an attorney rather we think congress just wanted a vigorous advocate and a pro se attorney to do that just as a hired attorney so it goes back to the garbage descent just cause i think you made that point the by saying this judge helms twenty two page opinion their own comprehensive we adopted we encourage the court to affirm but to do so for the reasons the judge felt in articulated as well the d c circuit in barca address this exact situation is really a trilogy of cases i was a history major in college and one of the things that i learned other than how dismal the market is for history professors is that it's really easy to make assumptions about the past and then not check those assumptions so let's check some of the assumptions that the government made in its remarks just a moment ago so many of the things that the court it's and have assumed about forcefield or provision in the case law surrounding it is wrong or it's of assumed that for if these are not men meant to penalize the government that's what the sixth circuit said until count and yet we know from what the congress did the open government act it imposed these fees as a penalty on agencies and included a disciplinary provision courts have overlooked that  the district court here for example overlooked the fact that i said that the i c c court had a case where lee in front of it threw a twenty eight jail letter and so in the face of those types of facts what the government argues today is now well we think we can find  unequivocal overruling in in what the supreme court did in k and i listened very carefully what the governor had to say but they did not cite a single sentence in k that amounts to an unequivocal overruling certainly not a single sentence that resembles any of the sentences that are in burlington or hensley or any of these other cases where the court has said well there's general language or we mean this to apply across the board so where is that language and it is nowhere to be found what the court instead what the supreme court instead says in k is we've looked at the text we find it ambiguous we look at the history we find it in big us we have no choice but to make a policy based best guess about what this statute means and so what i submit to the court is does it then make sense to say that in a case where the supreme court was making a policy based best guess about how to interpret a civil rights statute that that precedent should then be understood overrule every past or future case in which a court has said well we looked at this provision and we think the history is clear we think the text is clear i don't think that that makes sense in terms of the will of the orderliness or as just a plain matter of statutory interpretation and those are the rules that really the government is asking you to rewrite here so once we kind of clear away all of these false assumptions that have been made about foyers fee shifting provision in the case law surrounding it i think the wisdom of solace and i c c is clear and if the court has any doubts about that i would ask you to consider what the supreme court had to say  hundred fifty years ago in a case called united states versus hartwell it said when the words are general and include various classes of persons there is no authority which would justify a court in restricting them to one class and excluding others where the purpose of the statute deterring such unlawful withholding in the first instance the court should not hesitate to enforce that reality and as a final point i know that the government would like to write off most of texas versus i c c is dicta that's certainly what the courts did below but i think here is some wisdom from judge friendly bears directly on the point judge friendly said a court stated and on its view a necessary basis for deciding does not become victim because a critic would have decided on another basis that's essentially what the government is supreme court had established a general principle that the shifting provisions are designed to incentivized objective representation and that principle should be cross applied for it and in the face of that clear argument in the twenty a j letter what three distinguish members of this court did was say no cazalet is right the purpose of this provision is about more than just representation it's also about catalyzing unlawful government withholding it's also about deterring government unlawful government withholding and all those purposes are served when both pro se attorney plaintiffs and represented litigants are contemplated and fiords are granted under the statute in both situations so with that in mind i don't think that there remains really any other basis on which to consider overturning either cazalet or i c c and as a final point regarding the rule of orderliness that rule derives its value from stability and predictability if the court decides to create an exception for fee shifting provisions day it may be asked to create an exception for immigration cases tomorrow for criminal cases the day after that because there's a lot of common language across the board i don't think that that's something that this court wants to do if it continues to evaluate the stability and predictability for that reason we would ask the porter versus the decisions of ok thanks to both sides for a vigorous argument the case is submitted