USCA1 Opinion

       [NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT]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, 499

  U.S. 432, 435 (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, 499 U.S. at 436   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.