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
Decided December 20, 2018
Appeals from the Superior Court of the District of Columbia (CAB-8189-13) (Hon. Stuart Nash, Trial Judge) (Submitted April 19, 2017)
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
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.
I. Background
In November 2013, Mr. Vining submitted a request under the District of Columbia Freedom of Information Act,
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
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 рayment 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
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
Mr. Vining subsequently filed a motion seeking attorney‘s fees and costs pursuant to
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 timеly appealed from the award.
II. Standards
FOIA allows a court to award a prevailing party “reasonable attorney fees and other costs of litigation.”
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)).
Neithеr 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
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
B.
Next, Mr. Vining argues that the court misapprehended the fourth entitlement factor in that the court focused on the reasonableness of the District‘s “litigating strategy” and “litigation posture.” In Fraternal Order of Police, we said that “under the fourth criterion [the reasonableness of the agency‘s withholding] a
court would not award fees where the government‘s withholding had а colorable basis in law but would ordinarily award them if the withholding appeared to be merely to avoid embarrassment or to frustrate the requester.” 52 A.3d at 830 (quoting S. Rep. No. 93–854, at 19) (alteration in original). We agree with Mr. Vining that there is a difference between the asserted reason for the withholding, on the one hand, and the litigation strategy employed in defense of the withholding, on the other.8
The history of this FOIA suit illustrates the difference between these concepts. Mr. Vining initially submitted his FOIA request to Ms. Barnes on November 12, 2013, and Ms. Barnes replied on November 25, 2013, asserting that she had no documents responsive to Mr. Vining‘s request beyond those that had already been disclosed to the public. See Shurtleff v. EPA, 991 F. Supp. 2d 1, 19 (D.D.C. 2013) (“[A]n agency may direct a FOIA requester to materials that have been previously published or made available by the agency instead of producing them again.“). Beginning on November 25, then, the basis for the government‘s
withholding was that all responsive records were already available to the public.
In response, Mr. Vining filed this suit on December 11, 2013. The District did not rest on Ms. Barnes‘s denial but rather entered into negotiations with Mr. Vining‘s counsel and produced CDs containing responsive documents on February 3 and March 5, 2014. At this point, as Mr. Vining‘s counsel made clear in a letter on March 13, the sole point of contention between the parties concerned the emails located in Ms. Barnes‘s personal email account. Citing Competitive Enterprise Institute v. National Aeronautics & Space Administration, 989 F. Supp. 2d 74, 86 (D.D.C. 2013), the District argued that the FOIA statute did not require it to search personal email addresses of ANC Commissioners.
The trial court correctly perceived that the District had a single litigation position prior to July 9, 2014—that Ms. Barnes‘s personal email account fell outside the scope of FOIA. But if we look for the basis of the District‘s withholding, as indicated by the language we quoted in Fraternal Order of Police, we sеe two: first, that there were no responsive documents left to disclose, and second, that Mr. Vining was not entitled to the remaining responsive documents. As an ANC chair
C.
Having concluded that the fee entitlement determination need not be unitary and that a trial court may decide that the prevailing litigant is entitled to fees for some phases of a litigation and not others, and having clarified that the basis for the withholding (as distinguished from litigation strategy or position) must be considered as part of the entitlement determination, we turn to the application of these principles to this case.
When a court determines entitlement to fees separately for separate phases of litigation or separate classes of record requests, its choice of delimitation points is itself an act of discretion. The trial court‘s selection of July 9, 2014, as a dividing point in the life of this litigation was reasonable and not an abuse of discretion. Prior to that date, the law did not speak explicitly to the question whether the FOIA statute required the District to search ANC Commissioners’ nongovernmental email accounts.9 As of that date, for the purposes of this case,
the District no longer had a colorable legal basis for its continued withholding.
trial court to determine, in the exercise of its discretion, whether Mr. Vining may be entitled to reasonable fees for an earlier phase of the litigation.11
IV. Travel Expenses
Mr. Vining next argues that the trial court erred in excluding from the fee award travel expenses incurred by his attorney, Don Padou. Mr. Padou is a member of the District of Columbia Bar, but he has lived in California since
August 2013 and flew back and forth for the hearings in this case. His travel expenses, including airfare, hotel stays, ground transportation, and meals, added up to $8,125.78.
The FOIA statute‘s fee-shifting provision allows for an award of “reasonable attorney fees and other costs of litigation.”
Kuzma v. IRS, 821 F.2d 930, 932 (2d Cir. 1987); see also Blazy v. Tenet, 194 F.3d 90, 95 (D.C. Cir. 1999) (“[Section] 1920 does not serve as a limit on recovery of litigation costs under either FOIA or the Privacy Act.“). When the Council included the phrase “and other costs of litigation” in
As travel expenses are not categorically excluded from recovery for “costs of litigation” under
Though there is a dearth of precedent on the compensability of long-distance travel expenses under both
expenses under fee-shifting provisions in other statutes. The D.C. Circuit, addressing a request for an attorney‘s travel expenses under the Ethics in Government Act,
On the other hand, several courts applying the Civil Rights Attorney‘s Fees Awards Act,
be justified by an attorney‘s unique competence or experience in a particular subject area. See ACLU of Georgia v. Barnes, 168 F.3d 423, 436–39 (11th Cir. 1999) (noting that the use of nonlocal counsel could be reasonable if the attorney‘s “extensive prior experience” resulted in more efficient representation); Palmigiano v. Garrahy, 707 F.2d 636, 637 (1st Cir. 1983) (affirming award of travel expenses for out-of-state attorneys whose firm “had unique competence in the subject matter of [the] litigation“); Anderson v. Wilson, 357 F. Supp. 2d 991, 997–98, 1000 (E.D. Ky. 2005) (allowing travel expenses for out-of-forum attorneys whose hiring was deemed reasonable “in light of the complex First Amendment and election issues“).13 We agree that, absent a showing that hiring an out-of-state attorney was necessary due to the attorney‘s particular competence, skill, or familiarity with the litigation, cross-country travel expenses are unlikely to be reasonable if suitable local counsel who would not have incurred such expenses were willing and able to take the case.
Mr. Vining‘s brief on appeal offers several reasons it was reasonable for him
to hire Mr. Padou to represent him. He informs us that Mr. Padou “first consulted with Mr. Vining and other founders of Friends of McMillan Park, Inc., in early 2012 regarding a series of FOIA requests intended to reveal inappropriate conduct by the District regarding the propоsed development of McMillan Park.” Mr. Vining argues that it was therefore reasonable for him to retain Mr. Padou even after he moved to California in August 2013 because Mr. Padou “was familiar with the issues surrounding McMillan Park” and the two had developed “a solid attorney-client relationship.” He also suggests that there are not many lawyers in D.C. who specialize in FOIA lawsuits. This information goes some way toward explaining Mr. Vining’s choice of counsel, and it might have justified an exercise of discretion in favor of awarding travel expenses. Then again, it might not have if Mr. Padou’s familiarity with the McMillan Park disputes was neither useful nor necessary in litigating a FOIA suit that was filed after Mr. Padou’s move across the country.14 Had the trial court denied Mr. Vining’s request for travel expenses on the ground that they were not reasonably incurred, that determination likely would have been a sound exercise of discretion.
We аre unable to discern, however, whether the trial court’s denial of Mr. Vining’s request for travel expenses was the result of a discretionary determination that they were unreasonably incurred or the belief that travel expenses are categorically excluded from awards for costs under
V. Amanuensis and Legal Secretary
Mr. Vining also appeals the trial court’s exclusion of the expenses incurred by Mr. Padou due to his blindness. Because Mr. Padou is blind, he hired an amanuensis to act as his scribe, reader, and guide during court hearings, and a legal secretary tо proofread, citecheck, and file his briefs. Mr. Vining sought $312 in reimbursement for the amanuensis, whom he paid $25 per hour, and $1,625 for the legal secretary, whom he paid $125 per document. The trial judge made clear that he believed these costs were “conservatively calculated” and “seemed to be a more economical way of doing the menial tasks of practicing law than Mr. Padou doing these tasks, or trying to do these tasks, for himself which would have required more hours”—in short, that they were “correctly incurred by Mr. Padou”—but he nevertheless excluded these costs from the award because he believed the correct standard was “what it will cost in the marketplace to get these services done.” Because a sighted attorney would not have incurred or billed for the costs of an amanuensis or a legal secretary for these purposes, the triаl judge concluded that he could not award costs for these expenses.17
Mr. Vining presented his request for the amanuensis and legal secretary expenses as part of his request for costs,18 separate from his request for attorney fees. Though we have not previously determined what standard the trial court should use when evaluating requests for “other costs of litigation” under
Apopka, 698 F.2d 1181, 1192 (11th Cir. 1983) (“We hold that, with the exception of routine office overhead normally absorbed by the practicing attorney, all reasonable expenses incurred in case preparation, during the course of litigation, or as an aspect of settlement of the case may be taxed as costs under section 1988.”). As the Eleventh Circuit explained, a “liberal interpretation” of reasonableness is required to achieve the purpose of
The fee-shifting provision in the D.C. FOIA was animated by similar concerns. Like
The District defends the trial court’s exclusion of the amanuensis and legal secretary costs by arguing that they are overhead expenses, which are not separately compensable becausе they are encompassed within the hourly rate awarded for Mr. Padou’s time. Overhead expenses include, for example, the rent and utility payments on a law office and the salaries of receptionists, librarians, and clerical support staff, which are fixed costs not attributable to any individual case. See Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 974 (D.C. Cir. 2004). Yet as Mr. Vining’s fee petition and briefs make clear, the costs of the amanuensis and legal secretary do not fall into this category. Both were hired for particular hearings and particular filings in this case and paid by the job. Unlike true overhead costs, these expenses
As the amanuensis and legal secretary costs here do not fall into the category of overhead, they are recoverable if they are costs normally billed to Mr. Padou’s fee-paying clients and if they were reasonably incurred in the circumstances of this case. The trial court misstated the law when it compared the expenses Mr. Padou incurred due to his blindness with “what it will cost in the marketplace to get these services done.” The proper inquiry is not whether a sighted lawyer would have hired or charged for an amanuensis or legal secretary for the purposes described in his fee petition; it is whether it was reasonable for Mr. Padou to dо so. See Dowdell, 698 F.2d at 1191.19
We therefore remand for the trial court to apply the correct standard to determine whether Mr. Vining is entitled to the costs incurred for the amanuensis and legal secretary. See Frankel, 110 A.3d at 558 (“A court by definition abuses its discretion when it makes an error of law.” (internal quotation marks omitted)). On remand, the trial court should first determine whether Mr. Padou typically bills his fee-paying clients for similar out-of-pocket expenses. It should then consider whether and to what extent it was reasonable for him to incur costs for the amanuensis and legal secretary in this case. The trial court should also take into account, in analyzing the reasonableness of these costs, its own previous findings that the amanuensis and legal secretary costs were “conservatively calculated” and actually reduced the number of hours Mr. Padou spent working on the case.20
We view this request as an attempt to recategorize the secretarial work as part of Mr. Vining’s attorney fee, and we discern from the exchange in court that the trial court denied the request on the ground that lawyers usually cannot bill clients for clerical or secretarial work. In general, a reasonable attorney fee includes compensation for the hours billed by paralegals, legal assistants, or law clerks at their market rates, see, e.g., Missouri v. Jenkins, 491 U.S. 274, 285-90 (1989), but not for “librarians, clerical personnel and other support staff,” whose work is assumed to be “within the overhead component of a lawyer’s fee,” Role Models, 353 F.3d at 974 (quoting In re Olson, 884 F.2d 1415, 1426–27 (D.C. Cir. 1989)). The legal secretary in this case, however, did not perform only clerical or secretarial tasks; in addition to filing Mr. Padou’s briefs, the legal secretary also proofread and citechecked them. See Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 553 (7th Cir. 1999) (distinguishing purely clerical or secretarial tasks, such as organizing folders, document preparation, copying, and updating a case list, from legal work that is “sufficiently complex to
VI. Motions
Finally, the District, cross-appealing, challenges the triаl court’s award of fees for work on two motions that it contends were unrelated to the successful FOIA claim. “The central question . . . is whether the work was useful and necessary in advancing the litigation to its successful conclusion.” Frankel, 110 A.3d at 560 (citing Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 561 (1986)).
The District first challenges the award of fees in the amount of $6,330 for a motion for a preliminary injunction that Mr. Vining filed on May 15, 2015. The motion was denied as moot,21 but this fact alone is not dispositive. See id. at 559–60. The District argues, however, that the motion unsuccessfully raised a claim distinct from the FOIA claim on which Mr. Vining prevailed. Mr. Vining sought to enjoin the District as a whole “from holding any more public hearings on the proposed development of McMillan Park until [the Superior Court] has had an opportunity to address the merits of this case.” The motion and supporting memorandum refer to hearings held by the Zoning Commission, the Historic Preservation Review Board, and the Council of the District of Columbia. Although the motion did not identify any authority under which the court could enjoin these hearings, it could not have been FOIA, which grants the Superior Court power only to “enjoin [a] public body from withholding public records and order the production of any records improperly withheld” and to award attorney’s fees and costs.
Second, the District challenges the award of fees in the amount of $5,640 for a motion for summary judgment that Mr. Vining never filed or served upon the District. Mr. Vining argues that filing and service were no longer needed because the District changed its behavior in response
VII. Conclusion
In conclusion, we reverse the award of fees for Mr. Vining’s motion for a preliminary injunction and remand for the trial court to reconsider his request for fees for the first phase of the litigation and for out-of-pocket expenses incurred for long-distance travel, the amanuensis, and the legal secretary. We affirm the award of fees for Mr. Vining’s unfiled motion for summary judgment.
So ordered.