Vining v. Dist. of Columbia

• Decision Date: 20 December 2018
• Docket Number: 15-CV-1328,Nos. 15-CV-1182,s. 15-CV-1182
• Citation: 198 A.3d 738
• Court: D.C. Court of Appeals
• Parties: Kirby VINING, Appellant/Cross-Appellee, v. DISTRICT OF COLUMBIA, Appellee/Cross-Appellant.

198 A.3d 738

Kirby VINING, Appellant/Cross-Appellee,

v.DISTRICT OF COLUMBIA, Appellee/Cross-Appellant.

Nos. 15-CV-1182

15-CV-1328

District of Columbia Court of Appeals.

Submitted April 19, 2017

Decided December 20, 2018

Don Padou, for appellant/cross-appellee.

Carl J. Schifferle, Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General at the time the brief was filed, and Loren L. AliKhan, Deputy Solicitor General at the time the brief was filed, were on the brief, for appellee/cross-appellant.

Before Fisher, Beckwith and Easterly, Associate Judges.

Beckwith, Associate Judge:

Plaintiff Kirby Vining's suit under the Freedom of Information Act (FOIA) resulted in the District of Columbia's disclosure of previously withheld documents. Mr. Vining moved for attorney's fees, and the trial court awarded some but not all of the amount requested. Both parties now appeal this award. We reverse in part and remand for reconsideration in part.

I. Background

In November 2013, Mr. Vining submitted a request under the District of Columbia Freedom of Information Act, D.C. Code § 2-531 to - 540 (2012 Repl.),¹ to Advisory Neighborhood Commissioner C. Dianne Barnes. Ms. Barnes was the chair of Advisory Neighborhood Commission (ANC) 5E, a publicly elected body whose jurisdiction includes the McMillan Reservoir Slow Sand Filtration Site.² Mr. Vining was a member of Friends of McMillan Park and had been involved in the public discussion over the fate of the McMillan site for several decades. His FOIA request sought emails and other documents related to the development of the site from both Ms. Barnes's governmental and nongovernmental email accounts.³ In her reply, Ms. Barnes asserted that she had no documents responsive to Mr. Vining's request beyond those that had already been disclosed to the public. Mr. Vining then filed this suit, alleging constructive denial of his FOIA request and seeking declaratory and injunctive relief as well as fees and costs.

In response to the complaint and after negotiations with Mr. Vining's counsel, the District searched Ms. Barnes's governmental email and documents in her possession and produced 368 documents responsive to Mr. Vining's request, but it argued that FOIA did not require it to search Ms. Barnes's personal Yahoo email account and moved to dismiss the suit. On July 9, 2014, the trial court issued a written order denying the motion and ordering the District to search Ms. Barnes's personal email account and produce emails responsive to Mr. Vining's request.

The District continued to fight the production order, first by moving for reconsideration and a stay and then, when that motion was denied, by appealing to this court. While that appeal was pending, Mr. Vining filed a motion for partial summary judgment. The trial court denied this motion without prejudice on the ground that the ongoing appellate proceedings deprived it of jurisdiction. The appeal was eventually dismissed with the District's consent. Meanwhile, the District informed the trial court that it had attempted to retrieve the emails from Ms. Barnes's personal email account but technical problems made it impossible to do so in any "efficient and effective way." It estimated that collecting, reviewing, and redacting the emails would require approximately 361 hours of work at a total cost of over $8,000, and requested that Mr. Vining pay the cost in advance pursuant to D.C. Code § 2-532 (b).

Several months of back and forth ensued—including legal arguments and technical discussion about searching and retrieving emails from the personal account—during which time the trial court granted the District an extension of time to comply with its July 9 order. On February 11, 2015, the court partially granted the District's motion for payment of costs in advance but rejected its calculation of the cost chargeable to Mr. Vining. Noting that the District had not provided an estimate from an information technology specialist and that time spent on document review (as opposed to "document search and duplication") was not covered by D.C. Code § 2-532 (b), the court decided that the work could be completed in no more than fifteen hours of labor at a cost of $420.

Mr. Vining paid the $420 production fee, and the District provided him with a CD containing 3,409 responsive documents from Ms. Barnes's personal email account. The District also provided a Vaughn index⁴ of documents withheld or redacted pursuant to FOIA exemptions. Mr. Vining waived his claims to most of these documents but contested the withholding of others under the deliberative process and privacy exemptions. After an in camera review, the trial court ordered the release of some of the withheld documents and ruled that the rest were not responsive to the FOIA request. The District complied and produced the ordered documents, ending the merits phase of the litigation.

Mr. Vining subsequently filed a motion seeking attorney's fees and costs pursuant to D.C. Code § 2-537 (c), which the court granted in part and denied in part. The court concluded that Mr. Vining was the prevailing party and, applying the four-factor test we approved in Fraternal Order of Police, Metropolitan Police Department Labor Committee v. District of Columbia , 52 A.3d 822, 830–32 (D.C. 2012), found that the factors weighed in favor of an award of attorney's fees. Finding that "the District's litigation posture was reasonable through July 9, 2014," but unreasonable after that date, the court awarded Mr. Vining only those fees incurred after that date. After deducting several other expenses, the court awarded Mr. Vining fees and costs in the amount of $66,121.90. Both parties timely appealed from the award.

II. Standards

FOIA allows a court to award a prevailing party "reasonable attorney fees and other costs of litigation." D.C. Code § 2-537. A litigant seeking an award of attorney's fees under this provision must show first that he is eligible for attorney's fees in that he has "prevail[ed] in whole or in part" in the FOIA suit. D.C. Code § 2-537 (c) ; see Riley v. Fenty , 7 A.3d 1014, 1020–21 (D.C. 2010). Second, he must show that he is entitled to attorney's fees, a discretionary determination made by the trial court taking into account four factors: "(1) the public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff's interest in the records; and (4) the reasonableness of the agency's withholding." Fraternal Order of Police , 52 A.3d at 829 (quoting Tax Analysts v. United States Dep't of Justice , 965 F.2d 1092, 1093 (D.C. Cir. 1992) ).⁵ And third, he must show that the fee award he is requesting is reasonable . See Judicial Watch, Inc. v. United States Dep't of Commerce , 470 F.3d 363, 369 (D.C. Cir. 2006).⁶

We review the trial court's decision to grant or deny fees for abuse of discretion. See Frankel v. District of Columbia Office for Planning & Econ. Dev. , 110 A.3d 553, 558 (D.C. 2015). "A court ‘by definition abuses its discretion when it makes an error of law.’ " Id. (quoting Ford v. ChartOne, Inc. , 908 A.2d 72, 84 (D.C. 2006) ).

Neither party challenges the trial court's determination that Mr. Vining was eligible for and entitled to some attorney's fees and costs. Mr. Vining contends that the trial court incorrectly excluded all fees and costs incurred prior to July 9, 2014, and certain specific expenses incurred after that date. The District, on the other hand, defends the trial court's award with the exception of the fees awarded for time spent on two motions it says were unrelated to the outcome of the litigation. We address each claim in turn.

III. Work Through July 9, 2014

Mr. Vining first contends that the trial court erred in excluding from the fee award all attorney's fees incurred on or prior to July 9, 2014, an amount equal to $15,597.50. Applying the four-factor test we approved in Fraternal Order of Police , 52 A.3d at 830–32, the trial court held that Mr. Vining was entitled to a fee award, but only for the portion of the litigation that took place after that date. Specifically, the court found, in analyzing the fourth entitlement prong (the reasonableness of the agency's withholding), that the District's position was reasonable up through July 9, 2014, when the court issued its written decision ruling that Mr. Vining was entitled to responsive documents from Ms. Barnes's personal email account. With respect to the period of litigation after that date, however, the court found the District's position unreasonable, and it therefore concluded that Mr. Vining was entitled to costs and fees incurred after July 9, 2014.

Mr. Vining contends that the trial court misapplied the four-factor test, and hence abused its discretion, in two ways.

A.

Mr. Vining first argues that the four factors are employed only for the threshold entitlement determination, and that once a litigant is held to be eligible for and entitled to fees, the only remaining question is the reasonableness of the claimed fees. Mr. Vining treats the issue of entitlement to fees as a unitary determination—if a litigant is entitled to fees, he must be entitled to fees for the entire litigation, as long as those fees are reasonable.

We perceive no justification for restricting the trial court's exercise of discretion to a single all-or-nothing decision determining entitlement to fees incurred across an entire lawsuit. As the District points out, because an award of fees under D.C. Code § 2-537 (c) is permissive rather than mandatory, Fraternal Order of Police , 52 A.3d at 827–28, it makes sense to permit the trial court to differentiate among different categories of documents or phases of litigation when evaluating a litigant's entitlement to fees. Federal courts applying the federal FOIA have also conducted the entitlement determination this way. See, e.g. , Citizens for Responsibility & Ethics in Washington v. United...