Donahue v. Thomas

• Citation: 618 A.2d 601
• Decision Date: 20 November 1992
• Docket Number: No. 91-CV-334.,91-CV-334.
• Parties: Matthew E. DONAHUE, Appellant, v. Harold L. THOMAS, et al., Appellees.
• Court: D.C. Court of Appeals

618 A.2d 601

Matthew E. DONAHUE, Appellant, v. Harold L. THOMAS, et al., Appellees.

No. 91-CV-334.

District of Columbia Court of Appeals.

Argued May 4, 1992.

Decided November 20, 1992.

Matthew E. Donahue, pro se.

Lutz Alexander Prager, Asst. Deputy Corp. Counsel, with whom Robert J. Harlan, Jr., Asst. Corp. Counsel, John Payton, Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, were on the brief, for appellees.

Before STEADMAN and SULLIVAN, Associate Judges, and GALLAGHER, Senior Judge.

SULLIVAN, Associate Judge:

Appellant raises an issue of first impression, namely, whether a pro se non-attorney plaintiff is entitled to an award of reasonable attorney's fees and other costs of litigation pursuant to the District of Columbia Freedom of Information Act ("D.C.-FOIA"). D.C.Code §§ 1-1521-1529 (1992).¹ We hold that as a matter of law a pro se non-attorney plaintiff, although statutorily eligible for an award of costs, cannot recover attorney's fees pursuant to D.C.-FOIA.

Regrettably, neither the text of D.C.-FOIA, nor its legislative history,² provides adequate guidance as to whether an award of reasonable attorney's fees to a pro se non-attorney plaintiff was intended by the Council of the District of Columbia.³ In resolving this issue, therefore, we have analyzed and, indeed, find persuasive, judicial precedent interpreting closely analogous statutes which establish causes of action and provide for judicial awards of attorney's fees in federal civil rights and FOIA cases.⁴

Appellant also challenges the trial court's ruling, following a non-jury trial, that the D.C. Department of Finance and Revenue ("the Department") provided him with all materials in its possession relevant to his D.C.-FOIA request. We hold that the trial court's decision is supported by the record and is not clearly erroneous. D.C.Code § 17-305(a) (1989); Super.Ct.Civ.R. 52(a). See also First Am. Bank v. District of Columbia, 583 A.2d 993, 997 n. 7 (D.C.1990) (citing Auxier v. Kraisel, 466 A.2d 416, 418 (D.C.1983) (findings of fact by the trial court must be affirmed unless clearly erroneous or unsupported by the record)).

Accordingly, we affirm the trial court's ruling denying appellant's request for attorney's fees pursuant to D.C.-FOIA, albeit for different reasons from those relied on by the court. See Walter A. Brown, Inc. v. Moylan, 509 A.2d 98, 100 n. 4 (D.C.1986) (citing Max Holtzman, Inc. v. K & T Co., 375 A.2d 510, 513 n. 6 (D.C. 1977) (judgment may be affirmed by appellate court on a different ground from that adopted by the trial court)). We also affirm the trial court's ruling that the Department provided appellant with all materials in its possession which were relevant to his D.C.-FOIA request. Finally, we vacate the trial court's award of costs to appellees and remand for a determination of appellant's compensable costs, if any, pursuant to D.C.-FOIA.⁵

I.

Appellant, Matthew E. Donahue, owns numerous parcels of commercial and residential real property in the District of Columbia. In identical letters to the Department's Director, Harold L. Thomas, and its Freedom of Information Officer, Alice J. Davis,⁶ dated March 14, 1990, and received on March 19, 1990, appellant requested specific information concerning the city's fiscal year 1990 and 1991 assessments of forty-six properties owned by him. The information requested included copies of documents which appellant stated he needed to determine whether to appeal the assessments to the D.C. Board of Equalization and Review ("the Board").

The Department officers had ten days to respond to appellant's request under the applicable statutory and regulatory provisions. D.C.Code § 1-1522(c); 1 DCMR § 405.1 (1986).⁷ In fact, the parties stipulated prior to trial that appellant had received no response whatsoever to his request within the 10-day time limit. Accordingly, he was entitled to consider his request denied as of April 2, 1990, D.C.Code § 1-1522(e), 1 DCMR § 405.4,⁸ and to seek immediate judicial review, D.C.Code § 1-1527(a)(1), 1 DCMR § 412.1.⁹

On April 9, 1990, one week after appellant's request was statutorily denied and he was deemed to have exhausted his administrative remedies, he commenced a pro se proceeding pursuant to D.C.-FOIA. In his complaint, he requested that the Superior Court compel appellees, Harold L. Thomas, Director, D.C. Department of Finance and Revenue, Alice J. Davis, Freedom of Information Officer, D.C. Department of Finance and Revenue, and the District of Columbia, to provide him with the information requested. Appellant also sought declaratory relief that the Department's failure to provide him with the documents requested was unjustified and illegal under D.C.Code § 1-1521. In addition, appellant demanded attorney's fees and other litigation costs under D.C.-FOIA.¹⁰

It was not until after appellant filed suit that the Department first responded. In a letter dated April 11, 1990, Mr. Thomas informed appellant that assessment record cards were available for public inspection at the Department's offices and that he could review five documents per visit; alternatively, the Department would provide him with copies upon receipt of a fee.¹¹ Appellant did not avail himself of either opportunity. Mr. Thomas's letter also informed appellant that the Board was the appropriate agency to which he should direct a certain portion of his request and provided him with the Board's address as well as the name and telephone number of a staff member to contact at the Department if he should have further questions. Appellant did not pursue that advice either.

At a court-ordered mediation session on December 13, 1990, after resolution of a dispute between the parties over the amount of the copying charges, appellant tendered the requisite fee. The Department, through counsel, provided him with copies of assessment record cards for most of the forty-six properties at issue. On January 30, 1991, the Department provided appellant with the pertinent information about twenty-three comparable properties utilized to calculate the 1990 and 1991 assessments of appellant's properties. On March 13, 1991, the Department acknowledged by letter that it had overlooked several assessment record cards and supplied additional information. On the day of trial, March 19, 1991, the Department gave appellant duplicate copies of the records supplied pursuant to its March 13, 1991 letter, which he claimed he had not received.

At trial, Mr. Thomas testified, in essence, that the Department, by its initial and subsequent responses to appellant's D.C.-FOIA request, had transmitted to him all of the relevant information known to be in appellees' possession. He testified further that he had never directed the withholding of any information from appellant. In addition, Mr. Thomas testified that some of the documents requested were official records of the Board and, thus, were not under the Department's control. The thrust of appellant's testimony was that the Department's responses to his request were not only untimely but also incomplete. The trial court credited Mr. Thomas's testimony to the extent that it conflicted with appellant's testimony.

The final judgment dated March 20, 1991, bearing the imprimatur of the Clerk of the Court following the trial court's oral ruling from the bench, stated: "That the plaintiff take nothing, that the judgment be entered for the defendants, Harold L. Thomas, Alice J. Davis, and the District of Columbia, and that the defendants recover of the plaintiff, Matthew E. Donahue, their costs of action."

II.

Appellant argues that the trial court erred by denying his request for attorney's fees. He contends, in essence, that: he acted as an attorney on his own behalf in his lawsuit to obtain certain records needed to appeal value assessments by the D.C. government of his residence, his solely owned real property, and real property which he owns as a general partner; that he prevailed "in whole or in part" within the meaning of D.C.Code § 1-1527(c); and that, therefore, he is entitled to reasonable attorney's fees and other costs of litigation pursuant to that statutory provision.

In its pretrial order, the trial court denied appellant's request for attorney's fees on the grounds that "he is proceeding pro se, without counsel, and that such an award is inappropriate in these circumstances." At trial, the court reiterated and supplemented its pretrial order, stating again that attorney's fees were "inappropriate, because `appellant had not in fact used a lawyer,'" and adding that appellant "had not made out any grounds, equitable or otherwise, for such an award." The trial court stated further that even if attorney's fees could be awarded, it would be within the court's discretion to award them. In the trial court's judgment, attorney's fees were "not warranted in this case." The court reasoned that appellant "had not successfully prevailed" in its judgment.

For the reasons set forth in Part IV, we do not reach the issue of whether appellant "prevailed in whole or in part" within the meaning of D.C.-FOIA. Indeed, whether appellant prevailed, although relevant to an award of compensable costs, is irrelevant to our holding that attorney's fees cannot be awarded to a pro se non-attorney plaintiff pursuant to D.C.-FOIA.

In affirming the trial court's ruling denying attorney's fees, we are persuaded by the Supreme Court's rationale in Kay v. Ehrler, supra note 6, ___ U.S. ___, 111 S.Ct. 1435, which held that a pro se civil rights attorney plaintiff¹² was not entitled to an award of attorney's fees pursuant to 42 U.S.C. § 1988. Id. The Court stated that "the word `attorney' assumes an agency relationship ... and that it seems likely that Congress contemplated an attorney-client relationship as the predicate for an award under § 1988." Id., ___ U.S. at ___, 111 S.Ct. at 1437. It is especially noteworthy and persuasive that Kay adopted the same...