Good order.

A textbook example of the “rule of orderliness” appears in Gahagan v. U.S. Dep’t of Justice, a dispute about the recovery of attorneys’ fees under FOIA by an attorney proceeding pro se:

• In Cazalas v. DOJ, 709 F.2d 1051, 1057 (5th Cir. 1983), a panel majority of the Fifth Circuit held that “a litigant attorney represent[ing] herself or himself” is eligible for “an award of attorney fees under the FOIA.”
• In Kay v. Ehrler, 499 U.S. 432, 438, 435 (1991), which arose under 42 U.S.C. § 1988, the Supreme 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.” Therefore, “a pro se litigant who is also a lawyer may [not] be awarded attorney’s fees.”
• In Texas v. ICC, 935 F.2d 728, 733 (5th Cir. 1991), citing Cazalas, the Fifth Circuit held that :”courts can in appropriate circumstances award attorneys fees to states” under FOIA.

“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.” Kay overruled the rationale of Cazalas, and while ICC nominally followed Cazalas, it did not analyze the effect of Kay.