November 20, 1992
MATTHEW E. DONAHUE, APPELLANT
HAROLD L. THOMAS, ET AL., APPELLEES
Appeal from the Superior Court of the District of Columbia; (Hon. Richard S. Salzman, Trial Judge)
Before Steadman and Sullivan, Associate Judges, and Gallagher, Senior Judge.
The opinion of the court was delivered by: Sullivan
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 §§ 1-1521-1530 (1992). *fn1 We hold that as a matter of law 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, *fn2 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. *fn3 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. *fn4
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. *fn5
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, *fn6 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). n.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 n.8 and to seek immediate judicial review, D.C. Code § 1-1527 (a)(1), 1 DCMR § 412.1. *fn9
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. *fn10
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. *fn11 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. Appellants 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 card 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."
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 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 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 rational in Kay v. Ehrler, supra note 6, 113 L. Ed. 2d 486, 111 S. Ct. 1435, which held that a pro se civil rights attorney plaintiff *fn12 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 it seems likely that Congress contemplated an attorney-client relationship as the predicate for an award under § 1988." Id. at 1437. It is especially noteworthy and persuasive that Kay adopted the same rationale applied in Falcone v. IRS, supra note 4, 714 F.2d 646, which held that a pro se attorney plaintiff may not be awarded attorney's fees pursuant to federal FOIA. Moreover, it is significant that the Falcone court applied substantially the same reasoning which persuaded a majority of the federal circuits to deny attorney's fees to pro se non-attorney plaintiffs in federal FOIA cases. Id. (citing Wolfel v. United States, supra note 4, 711 F.2d 66 (pro se non-attorney plaintiff is ineligible for attorney's fees under federal FOIA)). *fn13 Our reliance on Wolfel and the federal circuit court cases cited therein consistent with our recent decision in Washington Post Co. v. Minority Business Opportunity Comm'n, 560 A.2d 517, 521 n.5 (D.C. 1989), wherein we held that case law interpreting federal FOIA is instructive authority in this jurisdiction.
In Kay, the Supreme Court summarized the reasoning of Falcone as follows:
The Court of Appeals reasoned that attorney's fees in FOIA actions were inappropriate because the award was intended "to relieve plaintiffs with legitimate claims of the burden of legal costs" and "to encourage potential claimants to seek legal advice before commencing litigation." 714 F.2d at 647. The court relied on the fact that " attorney who represents himself in litigation may have the necessary legal expertise but is unlikely to have the 'detached and objective perspective' necessary to fulfill the aims of the Act." Ibid. (citation omitted).
111 S. Ct. at 1436 n.4 (alteration in original).
The Court, adopting the essential rationale of Falcone as its own, stated:
A rule that authorizes awards of counsel fees to pro se litigants -- even if limited to those who are members of the bar -- would create a disincentive to employ counsel whenever such plaintiff considered himself competent to litigate on his own behalf. The statutory policy of furthering the successful prosecution of meritorious claims is better served by a rule that creates an incentive to retain counsel in every such case.
Id. at 1438.
We hold, therefore, that in the absence of any relevant legislative history or binding judicial precedent *fn14 to the contrary, the persuasive rationale of Kay, Falcone, and the decisions of the majority of the circuits denying attorney's fees to pro se attorney and non-attorney plaintiffs in cases decided pursuant to the federal civil rights, FOIA, and analogous statutes, applies as well to D.C.-FOIA cases prosecuted by pro se non-attorney plaintiffs. This holding is consistent with the holding in McReady v. Department of Consumer & Regulatory Affairs, No. 91-CV-884 (D.C. November 20, 1992), an opinion which is being issued simultaneously by another division of this court. Indeed, we rely upon the holding in McReady as additional support for our Conclusion.
In reaching our Conclusion, we decline to follow the rationale of those decisions of the U.S. Court of Appeals for the District of Columbia Circuit which have awarded attorney's fees to pro se non-attorney plaintiffs in federal FOIA cases. *fn15 The essence of the rationale in those cases is that "in authorizing courts to award attorney's fees in [federal FOIA] cases, Congress sought to encourage private persons to assist in furthering the national policy that favors disclosure of government documents." Cox v. United States Dep't of Justice, supra note 13, 195 U.S. App. D.C. at 193, 601 F.2d at 5. "Consistent with intent, . . . it is unnecessary for a who is an attorney acting pro se [or a layman acting pro se] to have actually incurred attorney's fees in order to be eligible for an award of same." Id. (citing Cuneo v. Rumsfeld, 180 U.S. App. D.C. 184, 188-189, 553 F.2d 1360, 1364-65 (1977), and Holly v. Acree, supra note 13, 72 F.R.D. at 116, affd by order sub nom. Holly v. Chasen, supra note 13, 186 U.S. App. D.C. 329, 569 F.2d 160). "If [a pro se non-attorney plaintiff] 'substantially prevails' in his action, then the [trial court] may in its discretion grant him an award of [attorney's] fees." Cox, supra, 195 U.S. App. D.C. at 194, 601 F.2d at 6.
In our view, an attorney-client relationship should be a prerequisite to an award of attorney's fees under D.C. Code § 1-1527 (c). This view is consistent with the basic rule of statutory construction that courts must follow the plain and ordinary meaning of the statute because that is the meaning the legislature intended. Guerra v. District of Columbia Rental Hous. Comm'n, 501 A.2d 786, 789 (D.C. 1985). Since the plain and ordinary meaning of attorney's fees requires payment to an attorney for services as a legal agent qualified to represent plaintiffs and defendants in legal proceedings, WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 141, 833 (1988), the D.C.-FOIA provision for an award of attorney's fees was clearly intended to relieve plaintiffs with meritorious claims of the burden of paying those fees out of pocket. Furthermore, a reasonable interpretation of the statutory section in question is that it was designed to encourage potential plaintiffs to seek the advice of counsel before proceeding with litigation.
In the present case, however, since no attorney-client relationship existed, appellant had no fee burden requiring alleviation. Thus, it is neither appropriate to reward him for failing to seek competent professional legal advice nor to compensate him for acting as his own attorney.
The trial court's ruling that the Department transmitted to appellant all the records in its possession which were relevant to his request is a finding of fact which cannot be set aside on appeal unless it is clearly erroneous or unsupported by any evidence in the record. D.C. Code § 17-305 (a); Super. Ct. Civ. R. 52 (a). See also First Am. Bank v. District of Columbia, supra, 583 A.2d at 997 n.7 (citing Auxier v. Kraisel, supra, 466 A.2d at 418).
Based on testimony of Messrs. Donahue and Thomas and the documentary evidence presented the trial court concluded in relevant part:
I have listened to the testimony of Mr. Thomas and I've listened to appellant's testimony and I credit Mr. Thomas' testimony to the extent that [there is a] conflict . . . . The long and short of it is while you have not necessarily been furnished [with the documents] at the spur of the moment when you wanted them, have apparently given you everything that they have that is consistent with your request . . . The Freedom of Information request is satisfied. Accordingly, no further relief [is granted]. The case is closed.
The testimony of Mr. Thomas clearly supported the trial court's findings. He testified, in essence, that appellees had given appellant all the relevant information they were aware of up until the day of trial. He added that some of the information appellant had requested simply was not available or was maintained by another government agency. Appellant made no showing that the appellees were withholding relevant information in their possession or that appellees had not made every effort to accommodate him as much as they could have.
Therefore, we hold that the ruling of the trial court that appellees had supplied appellant with all the relevant documents that existed is supported by the record and is not clearly erroneous. *fn16 Accordingly, we will not disturb it.
Counsel for the appellees conceded during oral argument before this court that the award of costs in their favor was inappropriate. The trial court did not include an award of costs to appellees in its ruling delivered in open court. Further, counsel for appellees states that they had never sought to recover costs, were not entitled to costs (because the Department had not provided appellant with the documents requested within the 10-day period allowed by statute), and, indeed, explicitly waived the award of costs to them. Thus, at appellees' request, we vacate the award of costs to them.
Appellees' counsel also argued orally on appeal that there was inconsistency in the trial court's findings as to whether appellant "prevailed in whole or in part" within the meaning of D.C.-FOIA. In its ruling, the court stated: "If the Government denies the records [sought under the Freedom of Information Act,] you may get a court order. That's essentially what you've done, and through the court processes, apparently a lot of . . . additional records were made available to you." In complete contrast, the court stated: "You haven't successfully prevailed in my judgment." Given the clear contradiction between these findings by the trial court, coupled with the absence of any ruling on the issue of costs, counsel for appellees suggested that this court remand for a precise determination as to whether appellant "prevailed in whole or in part" as a matter of law, and, if so, whether he is entitled to a discretionary award of costs. In view of the conflicting findings, we concur that a remand for supplemental findings is appropriate. D.C. Code § 1-1527 (c).
Although we remand for further proceedings on the issue of appellant's entitlement to costs, we, nonetheless, hold as a matter of law that a pro se non-attorney plaintiff who "prevails in whole or in part" pursuant to D.C. Code § 1-1527 (c) may be entitled to a discretionary *fn17 award of costs. See Kay v. Ehrler, supra, 111 S. Ct. at 1436 n.3. *fn18 (The pro se attorney plaintiff requested both costs and attorney's fees and was awarded costs but denied attorney's fees by the trial court. The issue of costs was not before the Supreme Court.)
Accordingly, we affirm the judgment of the trial court denying attorney's fees and punitive damages under D.C.-FOIA and its judgment that appellees provided appellant with all documents in their possession which were relevant to his D.C.-FOIA request. We also vacate the trial court's award of costs to appellees and remand for further proceedings consistent with this opinion.