Michael Gahagan v. US Citizenship & Img Services ( 2018 )


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  •      Case: 17-30898   Document: 00514770336   Page: 1     Date Filed: 12/20/2018
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    Nos. 17-30898, 17-30901, 17-30999               FILED
    December 20, 2018
    Lyle W. Cayce
    MICHAEL W. GAHAGAN,                                                   Clerk
    Plaintiff-Appellant,
    v.
    UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES,
    Defendant-Appellee.
    ____________________
    MICHAEL GAHAGAN,
    Plaintiff-Appellant,
    v.
    UNITED STATES DEPARTMENT OF JUSTICE; UNITED STATES
    DEPARTMENT OF HOMELAND SECURITY; UNITED STATES
    IMMIGRATION & CUSTOMS ENFORCEMENT; EXECUTIVE OFFICE OF
    IMMIGRATION REVIEW, UNITED STATES DEPARTMENT OF JUSTICE,
    Defendants-Appellees.
    _____________________
    MICHAEL W. GAHAGAN,
    Plaintiff-Appellant,
    v.
    UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES; U.S.
    CUSTOMS & BORDER PROTECTION,
    Defendants-Appellees.
    Case: 17-30898       Document: 00514770336         Page: 2     Date Filed: 12/20/2018
    Nos. 17-30898, 17-30901, 17-30999
    Appeals from the United States District Court
    for the Eastern District of Louisiana
    Before DAVIS, COSTA, and OLDHAM, Circuit Judges.
    ANDREW S. OLDHAM, Circuit Judge:
    The question presented is whether attorneys appearing pro se can
    recover fees under the Freedom of Information Act (“FOIA”). The district court
    held no. We affirm.
    I.
    A.
    Michael W. Gahagan is an immigration attorney. He uses FOIA to
    obtain government documents.             In these consolidated cases, he requested
    documents from various federal agencies. Gahagan requested some of these
    documents to assist immigration clients. Others he requested for personal
    reasons. He made each request in his own name.
    Gahagan was unsatisfied with the Government’s response to his
    requests. So he filed three separate pro se lawsuits. In each case, Gahagan
    was considered the prevailing party and moved for an award of costs and fees.
    Each district judge awarded Gahagan costs. But each judge also held Gahagan
    was ineligible for attorney fees under FOIA. 1 Gahagan appealed each denial
    of fees.
    1 There are at least eleven competing terms we could use instead of “attorney fees.”
    See Haymond v. Lundy, 
    205 F. Supp. 2d 403
    , 406 n.2 (E.D. Pa. 2002). But “[i]n line with the
    form used in the statute we are interpreting, we will use ‘attorney fees’ in this case, except
    where quoting other authorities” or referring to awards under other statutes. Stallworth v.
    Greater Cleveland Reg’l Transit Auth., 
    105 F.3d 252
    , 253 n.1 (6th Cir. 1997); see 
    5 U.S.C. § 552
    (a)(4)(E)(i) (“attorney fees”).
    2
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    B.
    “Our basic point of reference when considering the award of attorney’s
    fees is the bedrock principle known as the American Rule: Each litigant pays
    his own attorney’s fees, win or lose, unless a statute or contract provides
    otherwise.” Baker Botts L.L.P. v. ASARCO LLC, 
    135 S. Ct. 2158
    , 2164 (2015).
    Courts “have recognized departures from the American Rule only in ‘specific
    and explicit provisions for the allowance of attorneys’ fees under selected
    statutes.’ ” 
    Ibid.
     (quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 
    421 U.S. 240
    , 260 (1975)). The Supreme Court analyzes a statute’s specificity and
    explicitness in the context of a particular fee request.       That a statute is
    sufficiently specific and explicit to authorize one type of fee award does not
    make it sufficiently specific and explicit to authorize another type of fee award.
    See id. at 2165.
    FOIA authorizes courts to “assess against the United States reasonable
    attorney fees and other litigation costs reasonably incurred in any case under
    this section in which the complainant has substantially prevailed.” 
    5 U.S.C. § 552
    (a)(4)(E)(i). By authorizing a court to “assess . . . reasonable attorney
    fees,” that provision overcomes the American Rule in at least some
    circumstances.      In this particular circumstance, however, the question is
    whether FOIA specifically and explicitly authorizes a fee award to an attorney
    appearing pro se.
    Three precedents bear on that question. The first is our decision in
    Cazalas v. DOJ, 
    709 F.2d 1051
     (5th Cir. 1983). In that case, we decided “a
    litigant attorney represent[ing] herself or himself ” is eligible for “an award of
    attorney fees under the FOIA.” 
    Id. at 1057
    . Judge Garwood dissented. Circuit
    precedent denies fees to “a nonattorney pro se litigant,” and Judge Garwood
    did “not believe that Congress intended to discriminate between pro se FOIA
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    litigants solely on the basis of whether they were licensed to practice law.” 
    Id. at 1059
     (Garwood, J., concurring in part and dissenting in part).
    The second key precedent is Kay v. Ehrler, 
    499 U.S. 432
     (1991). Kay
    involved 
    42 U.S.C. § 1988
    , which authorizes an award of “a reasonable
    attorney’s fee” to “the prevailing party” in a civil rights case. In Kay, the Court
    rejected “[a] rule that authorizes awards of counsel fees to pro se litigants—
    even if limited to those who are members of the bar,” for fear it “would create
    a disincentive to employ counsel whenever such a plaintiff considered himself
    competent to litigate on his own behalf.” 
    499 U.S. at 438
    . The Court instead
    emphasized 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.” 
    Ibid.
     Therefore, the Supreme Court held
    “a pro se litigant who is also a lawyer may [not] be awarded attorney’s fees.”
    
    Id. at 435
    .
    The third precedent is Texas v. ICC, 
    935 F.2d 728
     (5th Cir. 1991). In
    ICC, “Texas sued the Interstate Commerce Commission under [FOIA] to force
    the ICC to disclose certain documents.” 
    Id. at 729
    . Texas prevailed. The
    district court nonetheless denied its motion for attorney fees.          The ICC
    defended that result by arguing we had “previously held that some classes of
    ‘complainants’—namely, pro se plaintiffs—are not eligible for fee-shifting.” 
    Id. at 731
    . The ICC contended legislative history similarly prohibited states from
    recovering fees. 
    Ibid.
     We disagreed. After all, Cazalas had “held that lawyers
    who represent themselves in FOIA actions may recover under the fee-shifting
    provision.”   
    Ibid.
     (citing Cazalas, 
    709 F.2d at
    1055–57).         We ultimately
    concluded “courts can in appropriate circumstances award attorneys fees to
    states.” Id. at 733.
    In the consolidated cases before us today, three different district judges
    rejected Gahagan’s claims for fees. The lead opinion, by Judge Feldman, is
    4
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    thoughtful and well-reasoned. It notes every other court of appeals to consider
    the question after Kay has held FOIA disallows prevailing-party fees for pro se
    attorneys. And it notes ICC—which we decided just three months after Kay—
    says nary a word about the Supreme Court’s unanimous holding in that case.
    Judge Feldman therefore followed Kay and denied Gahagan’s fee request. See
    Gahagan v. U.S. Citizenship & Immigration Servs., No. 16-cv-15438, 
    2017 WL 4003851
    , at *3–4, *7 (E.D. La. Sept. 12, 2017). Two other district judges
    rejected Gahagan’s requests for the same reasons.         See Gahagan v. U.S.
    Citizenship & Immigration Servs., No. 15-cv-6218, 
    2017 WL 6540409
    , at *1
    (E.D. La. Dec. 21, 2017); Gahagan v. DOJ, No. 13-cv-5526, 
    2017 WL 4168409
    ,
    at *1 (E.D. La. Sept. 20, 2017). Our review is de novo. See ICC, 
    935 F.2d at 730
    .
    II.
    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. The first question is whether ICC requires us to
    follow Cazalas. It does not. The second question is whether Kay requires us
    to abandon Cazalas. It does.
    A.
    In considering these questions, we follow the well-settled rule of
    orderliness: “[T]hree-judge panels . . . abide by a prior Fifth Circuit decision
    until the decision is overruled, expressly or implicitly, by either the United
    States Supreme Court or by the Fifth Circuit sitting en banc.” Cent. Pines
    Land Co. v. United States, 
    274 F.3d 881
    , 893 (5th Cir. 2001) (quotation
    omitted).     Fifth Circuit precedent is implicitly overruled if a subsequent
    Supreme Court opinion “establishes a rule of law inconsistent with” that
    precedent. Gonzalez v. Thaler, 
    623 F.3d 222
    , 226 (5th Cir. 2010); see also
    Carter v. S. Cent. Bell, 
    912 F.2d 832
    , 840 (5th Cir. 1990) (requiring adherence
    5
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    to a prior panel’s interpretation “unless that interpretation is irreconcilable
    with” a later Supreme Court decision). “[F]or a Supreme Court decision to
    override a Fifth Circuit case, the decision must unequivocally overrule prior
    precedent; mere illumination of a case is insufficient.” United States v. Petras,
    
    879 F.3d 155
    , 164 (5th Cir. 2018) (quotation omitted).
    The question at the heart of this case is whether Cazalas remains
    precedential after Kay. Before we reach that question, however, we must
    satisfy ourselves that ICC did not already answer it.         After all, “whether
    [Cazalas] has been abrogated is itself a determination subject to the rule of
    orderliness.” Stokes v. Sw. Airlines, 
    887 F.3d 199
    , 205 (5th Cir. 2018). So if a
    prior panel already held Cazalas survived Kay, we’d be duty-bound to say the
    same.
    ICC, however, said no such thing. At no point did ICC even cite Kay,
    much less analyze whether it overruled Cazalas. That is hardly surprising.
    Although one party cited Kay in a letter filed under Federal Rule of Appellate
    Procedure 28(j), neither party argued Kay had overruled Cazalas. And ICC
    considered an altogether different question from both Kay and Cazalas—
    namely, whether a state could recover fees. All ICC did was cite Cazalas on
    the way to answering that question.
    An opinion restating a prior panel’s ruling does not sub silentio hold that
    the prior ruling survived an uncited Supreme Court decision. See Cooper
    Indus., Inc. v. Aviall Servs., Inc., 
    543 U.S. 157
    , 170 (2004) (explaining decisions
    are not precedent on “[q]uestions which merely lurk in the record” (quotation
    omitted)); Brecht v. Abrahamson, 
    507 U.S. 619
    , 631 (1993) (explaining an
    opinion is not binding precedent on an issue “never squarely addressed” even
    if the opinion “assumed” one resolution of the issue); cf. Wilson v. Taylor, 
    658 F.2d 1021
    , 1034–35 (5th Cir. Unit B Oct. 1981) (refusing to apply the rule of
    orderliness to a Fifth Circuit decision that conflicted with an earlier, uncited
    6
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    Supreme Court opinion). Therefore, neither ICC nor any other post-Kay
    decision of this Court triggers the rule of orderliness. See Chin v. U.S. Dep’t of
    Air Force, No. 99-31237, 
    2000 WL 960515
    , at *1 (5th Cir. June 15, 2000) (per
    curiam) (declining to “decide whether Cazalas . . . is rendered moribund by
    Kay”).
    B.
    The question then is whether Cazalas survives of its own accord.
    Whether a Supreme Court decision implicitly overrules a prior Fifth Circuit
    decision depends on context. That two decisions involve different statutes is
    not dispositive. Sometimes a Supreme Court decision involving one statute
    implicitly overrules our precedent involving another statute. See Stokes, 887
    F.3d at 204; Hoskins v. Bekins Van Lines, 
    343 F.3d 769
    , 775 (5th Cir. 2003).
    Sometimes it does not. See United States v. Alcantar, 
    733 F.3d 143
    , 146 (5th
    Cir. 2013); Jacobs v. Nat’l Drug Intelligence Ctr., 
    548 F.3d 375
    , 378 (5th Cir.
    2008). 2 The overriding consideration is the similarity of the issues decided.
    Compare Stokes, 887 F.3d at 204 (refusing to adhere to a Fifth Circuit decision
    because the issues were similar), with Petras, 879 F.3d at 164–65 (adhering to
    a Fifth Circuit decision because the issues were dissimilar).
    Here, Cazalas and Kay confronted very similar issues.                      They both
    interpreted the word “attorney” in a statute authorizing attorney fees. See 
    5 U.S.C. § 552
    (a)(4)(E)(i) (“attorney fees”); 
    42 U.S.C. § 1988
     (“attorney’s fee”).
    Cazalas itself recognized the similarity of the statutes by discussing precedent
    2 We do not understand Diaz-Esparza v. Sessions to suggest Supreme Court precedent
    never implicitly overrules Fifth Circuit precedent “involv[ing] different statutory provisions.”
    697 F. App’x 338, 340 (5th Cir. 2017) (per curiam). Such a ruling would conflict with the
    circuit precedent cited above, precedent Diaz-Esparza did not cite. Regardless, as an
    unpublished opinion vacated by the Supreme Court, Diaz-Esparza is doubly nonprecedential.
    See 5TH CIR. R. 47.5.4; Diaz-Esparza v. Sessions, 
    138 S. Ct. 1986
     (2018) (granting certiorari,
    vacating, and remanding in light of Sessions v. Dimaya, 
    138 S. Ct. 1204
     (2018)).
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    interpreting § 1988 in its analysis of FOIA. See Cazalas, 
    709 F.2d at
    1056
    (citing Ellis v. Cassidy, 
    625 F.2d 227
     (9th Cir. 1980)).
    The Supreme Court has repeatedly instructed us to apply consistent
    interpretations to federal fee-shifting statutes. See Buckhannon Bd. & Care
    Home, Inc. v. W. Va. Dep’t of Health & Human Res., 
    532 U.S. 598
    , 603 n.4
    (2001) (“We have interpreted these fee-shifting provisions consistently, and so
    approach the nearly identical provisions at issue here.” (citation omitted)); City
    of Burlington v. Dague, 
    505 U.S. 557
    , 562 (1992) (“This language is similar to
    that of many other federal fee-shifting statutes; our case law construing what
    is a ‘reasonable’ fee applies uniformly to all of them.” (citation omitted)); Indep.
    Fed’n of Flight Attendants v. Zipes, 
    491 U.S. 754
    , 758 n.2 (1989) (“We have
    stated in the past that fee-shifting statutes’ similar language is a strong
    indication that they are to be interpreted alike.” (quotation omitted)); Hensley
    v. Eckerhart, 
    461 U.S. 424
    , 433 n.7 (1983) (“The standards set forth in this
    opinion are generally applicable in all cases in which Congress has authorized
    an award of fees to a ‘prevailing party.’ ”). 3
    All of our sister circuits have heeded those instructions. Before Kay, the
    eligibility of pro se attorneys for fee awards under FOIA split the circuits.
    Compare Aronson v. HUD, 
    866 F.2d 1
    , 5 (1st Cir. 1989), and Falcone v. IRS,
    
    714 F.2d 646
    , 646 (6th Cir. 1983), with Cazalas, 
    709 F.2d at 1057
    , and Cuneo
    v. Rumsfeld, 
    553 F.2d 1360
    , 1367 (D.C. Cir. 1977). Since Kay, however, every
    3 Gahagan notes this Court has described “[t]he history, language, and purpose of ”
    FOIA as “differ[ing] significantly from those of the civil rights statutes” and treated “decisions
    under one of the statutes [as] inapposite to cases arising under the other.” Cofield v. City of
    Atlanta, 
    648 F.2d 986
    , 988 (5th Cir. Unit B June 1981). But Cofield contrasted FOIA and
    § 1988—over Judge Clark’s dissent—to distinguish a D.C. Circuit opinion that was itself
    overruled by Kay. See Benavides v. Bureau of Prisons, 
    993 F.2d 257
    , 259–60 (D.C. Cir. 1993)
    (recognizing Kay overruled Cox v. DOJ, 
    601 F.2d 1
     (D.C. Cir. 1979)). In any event, to the
    extent Cofield suggests decisions interpreting § 1988 do not inform our interpretation of
    FOIA’s fee-shifting provision, it does not survive the subsequent Supreme Court decisions
    interpreting all federal fee-shifting provisions consistently.
    8
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    circuit to consider the issue has applied Kay to FOIA. See Pietrangelo v. U.S.
    Army, 
    568 F.3d 341
    , 344–45 (2d Cir. 2009) (per curiam); Burka v. HHS, 
    142 F.3d 1286
    , 1290 (D.C. Cir. 1998); Ray v. DOJ, 
    87 F.3d 1250
    , 1252 (11th Cir.
    1996); see also Searcy v. Soc. Sec. Admin., No. 91-4181, 
    1992 WL 43490
    , at *1,
    *6 (10th Cir. Mar. 2, 1992).           Perhaps most powerfully, the D.C. Circuit
    expressly abandoned its pre-Kay FOIA precedent in light of Kay. See Burka,
    
    142 F.3d at 1290
    .
    Were we to hold that a pro se attorney is eligible for fees, we would be
    the only court of appeals to do so after Kay. “We are always chary to create a
    circuit split,” United States v. Graves, 
    908 F.3d 137
    , 142 (5th Cir. 2018)
    (quotation omitted), including when applying the rule of orderliness.                   See
    Stokes, 887 F.3d at 201, 205. We refuse to create one here.
    Of course, the principle that federal fee-shifting statutes are interpreted
    consistently is not limitless.        We would not apply it when statutes have
    materially different texts. See Buckhannon, 
    532 U.S. at
    603 n.4 (noting the
    provisions at issue were “nearly identical”); Dague, 
    505 U.S. at 562
     (similar);
    Indep. Fed’n of Flight Attendants, 
    491 U.S. at
    758 n.2 (similar). 4 But there is
    no textual difference suggesting a prevailing pro se attorney is eligible for an
    award of fees under FOIA but not § 1988. On that issue, Kay interpreted text
    materially identical to the text of FOIA. Compare 
    5 U.S.C. § 552
    (a)(4)(E)(i)
    (“reasonable attorney fees”), with 
    42 U.S.C. § 1988
     (“a reasonable attorney’s
    fee”).
    Thus, the background principle—federal fee-shifting statutes should be
    interpreted consistently—applies with full force to the eligibility of pro se
    For example, after the Supreme Court rejected the “catalyst theory” of “prevailing
    4
    party” status, Congress amended FOIA to make it easier for a plaintiff to recover fees. See
    Batton v. IRS, 
    718 F.3d 522
    , 524–26, 525 n.2 (5th Cir. 2013); 
    5 U.S.C. § 552
    (a)(4)(E)(ii)
    (“substantially prevailed”). Thus, courts must interpret FOIA and other fee-shifting statutes
    differently in that regard.
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    attorneys for fee awards. For that reason, Kay provided more than “mere
    illumination”; it “unequivocally overrule[d]” Cazalas. Petras, 879 F.3d at 164
    (quotation omitted).     After Kay, Cazalas no longer represents binding
    precedent on the eligibility of pro se attorneys to recover fee awards under
    FOIA.
    III.
    The parties appropriately focus on precedent. As do we. It is nonetheless
    appropriate to note FOIA’s text supports the result precedent commands. To
    paraphrase Chief Justice Marshall, it is after all a statute we are expounding.
    Cf. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819); BedRoc Ltd. v.
    United States, 
    541 U.S. 176
    , 183 (2004) (plurality opinion) (“[O]ur inquiry
    begins with the statutory text, and ends there as well if the text is
    unambiguous.”).
    Kay considered the meaning of “attorney” in § 1988’s use of “a reasonable
    attorney’s fee.” 
    499 U.S. at
    435–36. As noted above, FOIA is materially
    identical in that regard. See 
    5 U.S.C. § 552
    (a)(4)(E)(i) (“reasonable attorney
    fees”). But “attorney” is not the only relevant word in FOIA.
    Unlike § 1988, FOIA limits awards to those fees “reasonably incurred.”
    
    5 U.S.C. § 552
    (a)(4)(E)(i) (“reasonable attorney fees and other litigation costs
    reasonably incurred”); see also Barrett v. Bureau of Customs, 
    651 F.2d 1087
    ,
    1089 (5th Cir. Unit A July 1981) (“ ‘[R]easonably incurred’ can and does modify
    the larger phrase ‘reasonable attorney fees and other litigation costs.’ ”). The
    “general rule” is that “fees are ‘incurred’ when the litigant has a legal
    obligation to pay them.” United States v. Claro, 
    579 F.3d 452
    , 464 (5th Cir.
    2009). Because Gahagan had no legal obligation to pay himself, he did not
    “incur” any attorney fees under the general rule. See 
    id. at 465
    ; Cazalas, 
    709 F.2d at 1059
     (Garwood, J., concurring in part and dissenting in part)
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    (“Attorney ‘fees’ are not generated by a person doing something for himself or
    herself; and ‘incurred’ likewise imports a relationship to one or more others.”).
    Therefore, the textual argument for denying fee awards to pro se
    attorneys is even stronger under FOIA than under § 1988, which does not
    contain the independent requirement that fees be “incurred.” As we noted in
    Claro, other courts “have recognized exceptional situations for which an award
    of attorney’s fees is not contingent upon an obligation to pay counsel,” despite
    the “incurred” requirement. 
    579 F.3d at 465
    . But these exceptions—based on
    “legislative history” regarding pro bono representation and “policy reasons”
    related to a litigant’s insurance coverage, 
    id.
     at 465–66—would not apply to
    Gahagan in any event. Accordingly, we need not decide their validity here.
    See 
    id.
     at 467–68 (concluding the exceptions did not apply without resolving
    their validity).
    *     *      *
    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 text supporting that result. For these reasons, we
    hold pro se attorneys are ineligible for fee awards under FOIA. The judgments
    are AFFIRMED.
    11
    

Document Info

Docket Number: 17-30999

Filed Date: 12/20/2018

Precedential Status: Precedential

Modified Date: 12/21/2018

Authorities (27)

State of Texas v. Interstate Commerce Commission, and ... , 935 F.2d 728 ( 1991 )

Sessions v. Dimaya , 138 S. Ct. 1204 ( 2018 )

Joseph Falcone v. Internal Revenue Service , 714 F.2d 646 ( 1983 )

Burka v. United States Department of Health & Human Services , 142 F.3d 1286 ( 1998 )

City of Burlington v. Dague , 112 S. Ct. 2638 ( 1992 )

Haymond v. Lundy , 205 F. Supp. 2d 403 ( 2002 )

Phyllis A. Barrett v. Bureau of Customs and Department of ... , 651 F.2d 1087 ( 1981 )

Ray v. U.S. Department of Justice , 87 F.3d 1250 ( 1996 )

54-fair-emplpraccas-1110-54-empl-prac-dec-p-40272-mary-h-carter-v , 912 F.2d 832 ( 1990 )

george-m-cofield-carole-jones-as-the-administratrix-of-the-estate-of , 648 F.2d 986 ( 1981 )

Gilbert A. Cuneo v. Donald H. Rumsfeld , 553 F.2d 1360 ( 1977 )

Robert Lee Wilson v. Irvin T. Taylor, as Acting Chairman ... , 658 F.2d 1021 ( 1981 )

Robert A. Aronson v. United States Department of Housing ... , 866 F.2d 1 ( 1989 )

Independent Federation of Flight Attendants v. Zipes , 109 S. Ct. 2732 ( 1989 )

Jacobs v. NATIONAL DRUG INTELLIGENCE CENTER , 548 F.3d 375 ( 2008 )

Eddie David Cox v. United States Department of Justice , 601 F.2d 1 ( 1979 )

Eduardo M. Benavides v. Bureau of Prisons , 993 F.2d 257 ( 1993 )

Gonzalez v. Thaler , 623 F.3d 222 ( 2010 )

Hoskins v. Bekins Van Lines , 199 A.L.R. Fed. 743 ( 2003 )

Mary Williams Cazalas v. United States Department of Justice , 709 F.2d 1051 ( 1983 )

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