Frankel v. D.C. Office for Planning & Economic Dev.

• Citation: 110 A.3d 553
• Decision Date: 12 February 2015
• Docket Number: No. 13–CV–495.,13–CV–495.
• Parties: David P. FRANKEL, Appellant, v. DISTRICT OF COLUMBIA OFFICE FOR PLANNING AND ECONOMIC DEVELOPMENT, Appellee.
• Court: Court of Appeals of Columbia District

110 A.3d 553

David P. FRANKEL, Appellant

v.DISTRICT OF COLUMBIA OFFICE FOR PLANNING AND ECONOMIC DEVELOPMENT, Appellee.

No. 13–CV–495.

District of Columbia Court of Appeals.

Submitted May 13, 2014.

Decided Feb. 12, 2015.

As Amended March 5, 2015.^*

Alan B. Frankle, Rockville, MD, was on the brief for appellant.

Irvin B. Nathan, Attorney General for the District of Columbia, with whom Todd Kim, Solicitor General, Loren L. AliKhan, Deputy Solicitor General, and Mary L. Wilson, Senior Assistant Attorney General, were on the brief for appellee.

Before WASHINGTON, Chief Judge, BECKWITH, Associate Judge, and KING, Senior Judge.

Opinion

BECKWITH, Associate Judge:

David Frankel appeals from an order granting in part and denying in part his application for attorney's fees in his Freedom of Information Act suit against the District of Columbia Office of the Deputy Mayor for Planning and Economic Development. The trial court ruled that Mr. Frankel was eligible for and entitled to attorney's fees, but it did not award all the fees that Mr. Frankel sought. Mr. Frankel argues on appeal that the trial court abused its discretion by denying attorney's fees for time spent preparing three motions that were either denied or never filed. We agree, and we reverse and remand for proceedings not inconsistent with this opinion.

I. Factual Background

In 2008, the D.C. Office of the Deputy Mayor for Planning and Economic Development (ODMPED) announced plans to construct a new library and a private multi-story residential building on the site of the old Tenley–Friendship Neighborhood Library and the soccer field of the adjacent Janney Elementary School in Northwest Washington, D.C. On December 9, 2009, Mr. Frankel submitted a request to ODMPED under the D.C. Freedom of Information Act (FOIA), D.C.Code §§ 2–531 to –540 (2012 Repl.), to obtain public records relating to this development.¹ ODMPED did not respond within the fifteen days allowed by the statute. See D.C.Code § 2–532(c). On January 21, 2010, Mr. Frankel sued ODMPED pursuant to D.C.Code § 2–537(a–1) to compel a response. ODMPED filed an answer on February 18, 2010, without responding to Mr. Frankel's FOIA request.

On April 22, 2010, the day before a scheduling conference with the trial court, ODMPED disclosed fifty-nine emails to Mr. Frankel. At the conference, the trial court ordered ODMPED to file a dispositive motion, an affidavit describing the record searches it had performed, and a Vaughn index² by May 21, 2010. ODMPED filed a motion for summary judgment on May 21, supported by an affidavit of FOIA Officer Mary Margaret Plumridge. ODMPED argued that it had complied with Mr. Frankel's request and that all the documents it withheld were exempt from disclosure under the deliberative process or attorney-client privileges. Mr. Frankel first responded by sending ODMPED a motion seeking Rule 11 sanctions for allegedly making false statements in its summary judgment motion. See Super. Ct. Civ. R. 11(c). ODMPED then filed a praecipe clarifying several statements in the motion. Mr. Frankel did not file the Rule 11 motion with the court.

Mr. Frankel next responded by filing a motion to strike the Plumridge affidavit because of, among other things, vagueness, lack of personal knowledge, and a deficient Vaughn index. ODMPED responded by filing two supplemental affidavits from Ms. Plumridge and another FOIA Officer, Sean Madigan, as well as a new Vaughn index listing more withheld documents. Mr. Frankel learned from the supplemental affidavits that ODMPED had not searched the files of several people listed in the FOIA request. Mr. Frankel's motion to strike was denied on July 31, 2010. ODMPED produced additional emails to Mr. Frankel at that time.

Mr. Frankel also filed a cross-motion for summary judgment to compel production of more documents and award him attorney's fees. When the parties met on October 22, 2010, the trial court did not rule on the summary judgment motions but it ordered ODMPED to perform further searches to fulfill Mr. Frankel's request.³ ODMPED complied and produced additional documents on January 5 and 7, 2011. More documents were produced on April 21, 2011, including a document Mr. Frankel described as “at the very heart” of his FOIA request. Mr. Frankel then acknowledged that he had received everything he wanted and the trial court denied the pending motions for summary judgment as moot, except with respect to Mr. Frankel's request for attorney's fees.

Mr. Frankel sought $45,836.14 in attorney's fees and $1,105.56 in costs. The trial court awarded him roughly half of that—$20,313.46 in fees and $796.82 in costs. The court ruled that Mr. Frankel was eligible for attorney's fees because he “prevail[ed] in whole or in part” in his suit, see D.C.Code § 2–537(c), and that he was entitled to fees under the four-factor test in Fraternal Order of Police v. District of Columbia, 52 A.3d 822 (D.C.2012). But the trial court denied Mr. Frankel fees for the time he spent on unsuccessful actions. On appeal, Mr. Frankel argues that the trial court abused its discretion by denying fees for the time spent on three pleadings: the Rule 11 motion, the motion to strike the Plumridge affidavit, and the summary judgment response and cross-motion.⁴

II. The Catalyst Theory

As a preliminary matter, ODMPED argues that Mr. Frankel is not actually eligible to receive any fees because he did not “prevail[ ] in whole or in part” under D.C.Code § 2–537(c). ODMPED contends that the D.C. FOIA does not allow fee recovery under the “catalyst theory” in which “a plaintiff is a ‘prevailing party’ if it achieves [its] desired result because the lawsuit brought about a voluntary change in the defendant's conduct.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 601, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). Instead, ODMPED argues that fee awards are only available when a plaintiff “has been awarded some relief by the court,” see id. at 603, 121 S.Ct. 1835, and that Mr. Frankel was not eligible for a fee award here because “the District voluntarily produced the requested documents after the plaintiff filed his complaint but before any judicial award of relief on the merits.”⁵

In 1992, this court noted that attorney's fee awards were proper in FOIA cases when there was a “causal nexus ... between the action [brought in court] and the agency's surrender of the information.” McReady v. Dep't of Consumer & Regulatory Affairs, 618 A.2d 609, 616 (D.C.1992) (brackets in original).⁶ This standard is a version of the catalyst theory. ODMPED argues, however, that McReady has been “effectively overrule[d].” ODMPED's argument can be summarized as follows: McReady recognized the catalyst theory for D.C. FOIA suits. 618 A.2d at 616. The Supreme Court later held in Buckhannon that the words “prevailing party” in two federal civil rights statutes did not include the catalyst theory. 532 U.S. at 605, 121 S.Ct. 1835. The D.C. Circuit subsequently held that Buckhannon applied to the federal FOIA. Oil, Chem. & Atomic Workers Int'l Union v. Dep't of Energy, 288 F.3d 452 (D.C.Cir.2002). This court then adopted Buckhannon when interpreting “prevailing party” in D.C.Code § 1–606.08 pertaining to suits within the Office of Employee Appeals. Settlemire v. District of Columbia Office of Emp. Appeals, 898 A.2d 902, 907 (D.C.2006). As a result, in ODMPED's view, Buckhannon applies to the D.C. FOIA as well.

We disagree. First, Settlemire was not a FOIA case, and its holding does not control the interpretation of a different statute containing different language. The provision at issue in Settlemire —D.C.Code § 1–606.08 —only provides awards to a “prevailing party,” whereas the FOIA statute provides awards to a party that “prevails in whole or in part.” D.C.Code § 2–537(c). This difference suggests that the D.C. Council intended to authorize attorney's fees in FOIA cases more often than in other types of cases.

Second, the D.C. Circuit's opinion in Oil, Chem. & Atomic Workers was superseded by statute when Congress amended the federal FOIA to codify the catalyst theory, explicitly authorizing attorney's fees when the plaintiff obtains relief through “a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial.” 5 U.S.C. § 552(a)(4)(E)(ii)(II) (2012) ; see Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 525 (D.C.Cir.2011). To the extent that we look to the federal FOIA as persuasive authority when interpreting our own FOIA, see Fraternal Order of Police, 52 A.3d at 829, we note that Buckhannon does not apply to federal FOIA suits and we interpret the D.C. FOIA similarly.⁷

ODMPED argues that because Congress amended the federal FOIA after Buckhannon but the D.C. Council did not amend our FOIA, we must “continue” to apply Buckhannon and Settlemire here. Yet we have not ever applied Buckhannon or Settlemire to attorney's fees disputes under the D.C. FOIA. Instead, the catalyst theory has been a part of the D.C. FOIA since its inception. When drafting FOIA, the D.C. Council stated its intent to craft enforcement sanctions mirroring the “federal model,” see D.C. Council Report on Bill 1–119 at 10 (Sept. 1, 1976), and in 1976 this included attorney's fee awards based on the catalyst theory. See Vt. Low Income Advocacy Council, Inc. v. Usery, 546 F.2d 509, 513 (2d Cir.1976) (attorney's fees proper if FOIA action is “reasonably ... regarded as necessary” and has “substantial causative effect on the delivery of the information”); Goldstein v. Levi, 415 F.Supp. 303, 305 (D.D.C.1976) ; Cuneo v. Rumsfeld, 553 F.2d 1360, 1365 (D.C.Cir.1977) ; Burke v. Dep't of Justice, 432 F.Supp. 251, 252 (D.Kan.1976), aff'd, 559 F.2d 1182 (10th Cir.1977). We reaffirmed use of the catalyst theory in McReady, 618 A.2d at 616. And Congress acted to “clarif[y] that the Supreme Court's decision in Buckhannon ... does not apply to [federal] FOIA cases,” 153 Cong. Rec. S15,830–01 ...