Submitted April 19, 2017
Appeals from the Superior Court of the District of Columbia
(CAB-8189-13) (Hon. Stuart Nash, Trial Judge)
Padou for appellant/cross-appellee.
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
Fisher, Beckwith and Easterly, Associate Judges.
Beckwith, Associate Judge
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
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.), 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.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. 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.
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.
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 §
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
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 index 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.
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.
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)). 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.
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)).
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.
Work Through July 9, 2014
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.
Vining contends that the trial court misapplied the
four-factor test, and hence abused its discretion, in two
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 ...