[NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit

No. 98-2246

THE NATIONALIST MOVEMENT, Mississippi Non-Profit Corporation,

Plaintiff, Appellant,

v.

CITY OF BOSTON, MASSACHUSETTS, A Massachusetts Municipal Corporation,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Torruella, Chief Judge, Selya and Boudin, Circuit Judges.

Richard Barrett on brief for appellant. Merita A. Hopkins, Corporation Counsel, and Krisna M. Basu, Assistant Corporation Counsel, City of Boston Law Department, on brief for appellee.

September 2, 1999

Per Curiam. Appellant The Nationalist Movement appeals from the denial of its application, filed under 42 U.S.C. 1988, for an award of attorney's fees for legal work performed by Richard Barrett, Esq. and for certain costs incurred by Barrett during the course of the litigation below. The Movement also requests that oral argument be waived. We grant this request and, after reviewing the record and the parties' briefs, find that the district court did not abuse its discretion in denying the application for fees and costs. 1. The language of Local Rule 83.5.3(b), which governs pro hac vice admissions in the Massachusetts district court, provides that "[a]n attorney . . . may appear and practice in [the district] court in a particular case by leave granted in the discretion of the court." Under this rule, an attorney who lacks pro hac vice status may be viewed as being on the same footing as a non-lawyer. Such a layperson, of course, is not entitled to 1988 fees. See Kay v. Ehrler,

(1991). Thus, an attorney like Barrett, who engages in legal activities without having been admitted pro hac vice, accepts the risk that if his or her application for admission is denied, 1988 fees will not be forthcoming. Further, we think that the decision to bar Barrett from representing the Movement in the case because of ethical concerns is a sufficiently "special circumstance" to support the denial of 1988 fees to Barrett. That is, the purpose of 1988 "to enable potential plaintiffs to obtain the assistance of competent counsel in vindicating their rights," Kay,

would not be furthered by awarding fees to such an attorney. In any event, the Movement was represented by qualified counsel during most of the litigation and the court awarded attorney's fees for the services these lawyers had provided. 2. As for the Movement's 1988 request for certain costs expended by Barrett, we affirm the district court's denial of the request essentially for the reasons set out in the court's Statement of Reasons, dated August 10, 1999. The judgment of the district court is affirmed.