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11/20/92 EDWARD C. MCREADY v. DEPARTMENT CONSUMER &

November 20, 1992

EDWARD C. MCREADY, APPELLANT
v.
DEPARTMENT OF CONSUMER & REGULATORY AFFAIRS, ET AL, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Nan R. Huhn, Trial Judge)

Before Ferren, Schwelb and King, Associate Judges. Opinion for the Court by Associate Judge King. Concurring opinion by Associate Judge Schwelb. Dissenting opinion by Associate Judge Ferren.

The opinion of the court was delivered by: King

KING, Associate Judge: Appellant appeals a ruling denying him attorney fees and costs and other relief in an action seeking documents pursuant to the District of Columbia Freedom of Information Act (hereinafter "DC FOIA"). The following issues are presented in this appeal (1) whether a prevailing pro se attorney is eligible to receive attorney fees and costs, (2) whether appellant prevailed in whole or in part in his action in the trial court, and (3) whether the trial Judge erred in denying appellant's various motions for sanctions and contempt. We conclude that: (1) under the DC FOIA, a prevailing pro se attorney* is entitled to costs but not attorney fees, (2) the trial Judge did not err in finding appellant did not prevail with respect to some of the documents sought, (3) a remand is necessary to permit the trial Judge to determine whether appellant prevailed, in part, with respect to other documents, which would entitle him to receive costs related to those documents, and (4) the trial Judge did not abuse her discretion in denying appellant's requests for sanctions and contempt.

I.

This matter began in 1986 when both appellant, who is an attorney and an accountant, and another accountant (Moss) were employed at a local university. Appellant was terminated from that employment. Believing Moss was responsible for that action, appellant filed a complaint with the Board of Accounting ("the Board") of the District of Columbia Department of Consumer and Regulatory Affairs ("DCCRA"), claiming various violations of District accounting laws and regulations. The Board ultimately requested that the complaint against Moss be pursued, but the Office of the Corporation Counsel declined to do so. Appellant also filed a civil action in the Superior Court against the university because of the termination.

In July 1987, appellant submitted a Freedom of Information Act ("FOIA") request to DCCRA for documents relating to the investigation of Moss. In response, a small portion of the documents requested were provided. In September 1987, appellant submitted a second FOIA request seeking all documents relating to the Board's investigation of Moss. Production of those documents was denied on privacy grounds in January 1988.

In mid-1988 the Board requested that the Corporation Counsel reconsider its decision not to proceed with disciplinary action against Moss. The Corporation Counsel responded that the Superior Court had issued a protective order, in the civil action appellant had brought against the university, designating certain documents involved in that litigation as confidential. The Corporation Counsel concluded that some of those documents would be needed for any administrative action against Moss, and that, therefore, any disciplinary action would have to be deferred until after resolution of the civil suit when it was expected that the documents would become available.

In the meantime, the administrative appeal of the denial of the appellant's FOIA request had been referred by the Mayor to Dr. Herbert Reid, Sr., for resolution. *fn1 In August 1988, Dr. Reid directed that the undisclosed records be provided to him for review.

In November 1988, appellant filed the instant action in the Superior Court seeking the documents in question. The trial Judge granted appellee's motion to stay the proceeding pending the outcome of the review by Dr. Reid. In April 1989, Dr. Reid issued a comprehensive Memorandum of Decision ("M.O.D.") in which he determined that nine ("exemption (2) documents") of the twenty-eight requested documents were exempt from disclosure for personal privacy reasons because of the ongoing investigation of Moss. *fn2 The remaining documents were ordered released.

In September 1989, appellant made a third FOIA request seeking all documents that came into existence after August 1988, i.e., any documents created after the documents that were the subject of Dr. Reid's M.O.D. All but one of those documents were made available. In December 1989, appellant filed a fourth FOIA request with the Board for documents relating to events involving Moss that occurred in April 1989.

In December 1989, the District filed a motion for summary judgment in this case defending the withholding of the exemption (2) documents on privacy grounds. It offered to submit the documents for in camera review, and the trial Judge agreed. After examining the documents, Judge Huhn granted the District's motion for judgment and placed the documents under seal in an order dated March 12, 1990. A notice of appeal from that determination was filed and the case was designated appeal No. 90-445.

In July 1990, appellant filed two new FOIA requests seeking other documents. A separate action has been filed in the Superior Court with respect to these requests. In July 1990, DCCRA responded to the December 1989 and the July 1990 requests by making various documents available to appellant. Included with the material provided were the exemption (2) documents, previously denied to appellant in this case, which had been placed under seal by the trial Judge. The documents were released by DCCRA's new FOIA coordinator, who was unaware that this action seeking those documents was pending. The documents were released because the investigation of Moss had been completed resulting in his public censure.

Thereafter, in February 1991, the District moved this court to remand No. 90-445 to the trial court. That motion was granted and the trial Judge then conducted a hearing to determine whether the case had become moot. The trial Judge found the case was moot because all of the documents previously withheld had been provided in response to new DC FOIA requests.

Earlier appellant had moved for Rule 11 sanctions, Super. Ct. Civ. R. 11, claiming that counsel for the District had violated the rule in filing two pleadings, viz, a motion for summary judgment and the motion to dismiss. In addition, appellant sought contempt sanctions against those responsible for releasing the documents on the grounds that releasing them violated the March 12, 1990 sealing order. Finally, in a separate motion, appellant moved for Rule 11 sanctions on the grounds that DCCRA had previously failed to submit all required documents to the trial court for in camera inspection. The trial Judge denied all of the sanction motions. *fn3

After further briefing the trial Judge ruled that appellant, a pro se attorney, was not entitled to receive attorney fees under the DC FOIA. She also concluded that since appellant had not prevailed, within the meaning of the statute, he was not entitled to attorney fees on that ground as well. For the same reason he was not entitled to an award of costs. This appeal followed.

II.

The question of whether a pro se attorney who prevails in a DC FOIA action is eligible for an award of attorney fees has never been decided by this court. The provision authorizing an award of fees is set forth in the margin. *fn4 The trial Judge concluded, relying upon Kay v. Ehrler, 113 L. Ed. 2d 486, 111 S. Ct. 1435 (1991), that an unrepresented litigant, even one who is an attorney, is not eligible to receive such fees. We agree.

In Kay the Supreme Court unanimously held that an attorney, acting pro se, who prevailed as a litigant in a civil rights action was not eligible for an award of attorney fees under The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988 (1988). *fn5 Kay, supra, 111 S. Ct. at 1437-38. In so ruling, the Court affirmed the Sixth Circuit which had relied upon Falcone v. Internal Revenue Service, 714 F.2d 646 (6th Cir. 1983), cert. denied, 466 U.S. 908 (1984), which denied a fee award to an attorney acting pro se in a federal Freedom of Information Act ("federal FOIA") case. *fn6 In Kay the Supreme Court made the following observation with respect to Falcone:

The Court of Appeals [in Falcone] reasoned that attorney's fees [to an attorney acting pro se] 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." The court relied on the fact that "an 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."

Kay, supra, 111 S. Ct. at 1436 n.4 (citations omitted). In denying a fee award in the case before it, the Supreme Court expressed a view similar to that expressed by the Sixth Circuit in Falcone when it concluded that:

Even a skilled lawyer who represents himself is at a disadvantage in contested litigation. Ethical considerations may make it inappropriate for him to appear as a witness. He is deprived of the judgment of an independent third party in framing the theory of the case, evaluating alternative methods of presenting the evidence, cross-examining hostile witnesses, formulating legal arguments, and in making sure that reason, rather than emotion, dictates the proper tactical response to unforeseen developments in the courtroom. The adage that "a lawyer who represents himself has a fool for a client" is the product of years of experience by seasoned litigators.

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 a 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 (footnotes omitted). We believe that reasoning should apply in this case as well.

In reaching that Conclusion we endorse the Sixth Circuit's observation that an attorney representing himself or herself is not likely to be sufficiently objective or to maintain the detached perspective necessary to fulfill the aims of the statute. Falcone, supra, 714 F.2d at 647. The federal FOIA was intended to encourage those seeking documents to obtain legal advice before proceeding with litigation in the hope that unnecessary litigation might be either avoided or maintained within reasonable bounds. Id. These desirable goals cannot be realized if attorneys proceeding pro se, rather than obtaining representation by another attorney, are also eligible to receive fee awards. We see no reason why the rationale underlying the federal FOIA fee provision should not apply to DC FOIA proceedings as well.

In sum, we note that the fee award provision of the DC FOIA is patterned after, and substantially the same as, that contained in the federal FOIA. See Dunhill v. Director, District of Columbia Department of Transportation, 416 A.2d 244, 247 n.6 (D.C. 1980). We also note that the Sixth Circuit in Falcone held that attorneys, proceeding pro se in federal FOIA litigation, are not eligible to receive attorney fee awards. Finally, as we observed above, the Supreme Court in Kay endorsed the principles underlying Falcone when it held that the fee awards were not available to pro se litigants in civil rights cases. We conclude that, in the absence of any indication of a contrary intent by the legislature in enacting the DC FOIA, reason and common sense call for application of the rule of Falcone and Kay in DC FOIA actions.

Before turning to an examination of possible expressions of legislative intent on this point, we think it appropriate to address some aspects of the Dissenting opinion filed in this case. The Dissent places great reliance upon Alexander v. District of Columbia Rental Housing Commission, 542 A.2d 359 (D.C. 1988) (per curiam), where we upheld the Rental Housing Commission's Conclusion that a prevailing attorney appearing pro se in proceedings before it, was eligible for an attorney fee award under the Rental Housing Act of 1980 ("Rental Housing Act"). The rationale of Alexander was based entirely upon the opinion of the Eleventh Circuit in Duncan v. Poythress, 777 F.2d 1508 (11th Cir. 1985) (en banc), cert. denied, 475 U.S. 1129, 90 L. Ed. 2d 201, 106 S. Ct. 1659 (1986), which held that attorneys proceeding pro se are eligible to receive attorney fee awards under 42 U.S.C. § 1988. *fn7 The Supreme Court unanimously reached a directly contrary Conclusion six years later when it decided Kay--a result that effectively overrules Duncan.

Kay, of course, had not been decided when we considered Alexander. In Alexander, both the Rental Housing Commission and this court relied solely *fn8 upon Duncan--a case that, in light of Kay's contrary holding, now has no precedential value at all. We doubt that Alexander would have been decided the way it was had Kay been available for consideration by the Court. Under these circumstances, we do not believe it is appropriate for this court to apply Alexander's construction of the Rental Housing Act to the fee award provision of the DC FOIA.

Our Dissenting colleague also maintains that we should not adopt the reasoning of Kay, which interprets a civil rights provision, since Congress intended that the federal FOIA fee award provision would provide broader coverage than that provided under § 1988. In short, the Dissent concludes that the federal FOIA was intended to encourage litigation that benefited both the public at large, as well as the individual litigant, whereas § 1988 was designed primarily to provide victims of civil rights violations with a means of redress. This ignores the oft repeated reminder that when a civil rights plaintiff seeks relief, he or she does so not for himself or herself alone "but also as a 'private attorney general,' vindicating a policy Congress considered of the highest priority." Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 19 L.Ed.2d 1263, 88 S. Ct. 964 (1968); accord, Albemarle Paper Company v. Moody, 422 U.S. 405, 415, 45 L.Ed. 2d 280, 95 S. Ct. 2362 (1975); Northcross v. Board of Education of the Memphis City Schools, 412 U.S. 427, 428, 37 L. Ed. 2d 48, 93 S. Ct. 2201 (1973). In light of both that consideration and Kay's heavy reliance upon the holding of Falcone, a federal FOIA case, we think it most unlikely that the Supreme Court would adopt an interpretation of a fee award provision providing broader eligibility for FOIA cases than for civil rights cases.

As noted above, we conclude that there are sound reasons for adopting the fee awards rulings in Falcone and Kay in DC FOIA actions. We have carefully examined the legislative history of that provision and have found no expression of a contrary intent on the part of the Council of the District of Columbia ("Council") when it was enacted. In Kay the Supreme Court observed that the word "attorney" is one that "assumes an agency relationship, and it seems likely that Congress contemplated an attorney-client relationship as the predicate for an award . . . ." Kay, supra, 111 S. Ct. at 1437 (footnotes omitted). There is no reason or basis for concluding that the Council was of a different view when it enacted DC FOIA.

Furthermore, appellant concedes, as we noted earlier, that the DC FOIA was patterned after the federal FOIA. See Dunhill v. D.C. Department of Corrections, supra 416 A.2d at 247 n.6. He correctly argues, that this court has adopted a rule of statutory construction which provides that when a local law is borrowed from a federal statute, it is presumed that judicial construction of the federal statute is borrowed as well. See Hughes v. District of Columbia Department of Employment Securities, 498 A.2d 567, 571 n.8 (D.C. 1985). Appellant, however, cannot point to any judicial interpretation of the federal FOIA known to and relied upon by the Council when it enacted DC FOIA.

Appellant does cite the decision of a federal District Court Judge that was decided on September 3, 1976, holding that a pro se plaintiff who was not an attorney was eligible to receive fees under the federal FOIA. That decision was eventually published in the FEDERAL RULES DECISIONS on some unknown date in 1977. *fn9 See Holly v. Acree, 72 F.R.D. 115 (D.D.C. 1976). It was affirmed without opinion on December 5, 1977. Holly v. Chasen, 186 U.S. App. D.C. 329, 569 F.2d 160 (1977). We note that the Council adopted DC FOIA after first and second readings in September and October of 1976, and the provision was signed into law on November 19, 1976. D.C. Code § 1-1521 (1992 Repl.)(legislative history of Law 1-96). After the required layover in Congress, it became effective on March 29, 1977. 23 D.C. Reg. 9532b (1977). Finally, in March 1977, the United States Court of Appeals decided Cuneo v. Rumsfeld, supra note 7, 180 U.S. App. D.C. at 190, 553 F.2d at 1366, which held, relying on Holly, that a pro se attorney was also eligible to receive fees under the federal FOIA.

When the provisions of a federal statute are substantially adopted by the Council, it is presumed that the Council intends to adopt the known and settled judicial interpretations of that statute as well. Hartford Accident and Indemnities Company v. Hodge, 66 App. D.C. 154, 156, 85 F.2d 411, 413 (1936); Hughes, supra, 488 A.2d at 571 n.8. In order for us to conclude, however, that the legislature believed it was adopting the borrowed legislation, together with its judicial interpretations, there must be some degree of likelihood that the Council was, in ...


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