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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                No. 13-CV-164

                       FRATERNAL ORDER OF POLICE,
                METROPOLITAN LABOR COMMITTEE, APPELLANT,

                                     V.

                       DISTRICT OF COLUMBIA, APPELLEE.
                        Appeal from the Superior Court
                         of the District of Columbia
                               (CAB-4125-12)

                      (Hon. Anthony Epstein, Trial Judge)
(Argued December 4, 2014                                 Decided April 2, 2015)

      Barbara E. Duvall, with whom Paul A. Fenn was on the brief, for appellant.

      Mary L. Wilson, Senior Assistant Attorney General, with whom Irvin B.
Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor
General, and Loren L. AliKhan, Deputy Solicitor General, were on the brief, for
appellee.

      Before WASHINGTON, Chief Judge, and THOMPSON and BECKWITH,
Associate Judges.

      BECKWITH, Associate Judge: The Fraternal Order of Police, Metropolitan

Labor Committee, appeals from a trial court order dismissing its Freedom of

Information Act claims as moot and denying its application for attorney’s fees.

We affirm.
                                         2


                                         I.


      On February 9, 2012, the Fraternal Order of Police (FOP) submitted a

formal request for documents to the District of Columbia Office of the Chief

Technology Officer (OCTO) pursuant to the D.C. Freedom of Information Act

(FOIA), D.C. Code §§ 2-531 to -540 (2012 Repl.). FOP requested emails and

attachments sent among four D.C. government email addresses during a specified

time period, as well as all emails containing the word “recruiting” sent and

received by one D.C. government address. According to the District, these email

addresses belonged to “high-ranking members” of the Metropolitan Police

Department (MPD). MPD acknowledged on February 14, 2012, that it received

the FOIA request from OCTO, triggering the fifteen-day statutory time period to

respond,1 and MPD advised FOP that it “may” exercise the “10 business day

extension delay”2 due to the breadth of the request and the need to coordinate with

other divisions within the department.


      MPD did not produce any documents within twenty-five business days. On

March 28, 2012, MPD notified FOP that the request was “delayed due to the

volume of various emails pursuant to [FOP’s] request,” stating that the response

      1
          See D.C. Code § 2-532 (c) (2012 Repl.).
      2
          See D.C. Code § 2-532 (d) (2012 Repl.).
                                         3


was being worked on “[p]resently” and that MPD would notify FOP at its “earliest

convenience when the response [was] completed.”


      On May 14, 2012, FOP sued the District (for the actions of OCTO and

MPD) pursuant to D.C. Code § 2-537 (a-1) (2012 Repl.) to compel a response.

The District filed an answer on November 9, 2012, admitting that “it had not

provided documents to Plaintiff in response to its FOIA request dated February 9,

2012.” The District claimed that its acts were “reasonable, lawful, and necessary

under [the] circumstances, and in accord with all applicable regulatory, statutory,

common law and constitutional requirements, and standards of care.”


      FOP moved for summary judgment that same day, noting that the District

did not cite any legal authority to justify its failure to provide all responsive

material within the statutory timeframe.3 FOP sought an order compelling the

District to produce all requested documents, a declaratory judgment that the

District’s failure to respond timely was “unlawful, arbitrary, and capricious,” and

attorney’s fees and costs pursuant to D.C. Code § 2-537 (c) (2012 Repl.).


      On December 7, 2012—the due date for the District’s opposition to FOP’s

motion for summary judgment—the District provided FOP the documents it had

      3
        Unlike the federal FOIA, the D.C. FOIA provides no safe harbor for an
agency to delay its response. See 5 U.S.C. §§ 552 (a)(3)(A) & (a)(6)(B).
                                          4


requested, including a Vaughn index4 explaining all redactions and withholdings.

The District also moved to dismiss the case as moot because “there is no injunctive

relief the Court could award” and FOP’s “remaining interest in receiving a

declaration from the Court that the District violated the law is not a sufficient basis

for the Court to retain jurisdiction.”


      FOP challenged the completeness of the District’s response on the ground

that it did not include an affidavit describing the search, but it did not specifically

challenge the adequacy of the documents received or the legal basis for any

withheld documents detailed in the Vaughn index. The trial court first concluded

that the District was not required to provide an affidavit because FOP had not

challenged the adequacy of the search.5 And because there was no live dispute as

to the completeness of the response, the trial court dismissed as moot FOP’s

request for an injunction as well as its request for a declaratory judgment that the

District’s production was untimely. The trial court recognized a live dispute with

regard to attorney’s fees, however, and proceeded to analyze FOP’s eligibility and

entitlement to fees.


      4
        A Vaughn index itemizes any withheld documents and explains why each
document is exempt from disclosure. See Vaughn v. Rosen, 484 F.2d 820, 827
(D.C. Cir. 1973).
      5
          FOP does not challenge this ruling on appeal.
                                           5


      As to eligibility, the trial court first ruled that the “catalyst theory” applies to

D.C. FOIA actions, adopting the standard in the federal FOIA statute that a party is

eligible for attorney’s fees if its claim is not insubstantial and it obtains relief

through a voluntary or unilateral change in position by the agency. See 5 U.S.C.

§ 552 (a)(4)(E)(ii)(II) (2012); cf. Summers v. U.S. Dep’t of Justice, 569 F.3d 500,

503 (D.C. Cir. 2009). The court found that FOP’s claim was not insubstantial but

that there was no causal connection between FOP’s FOIA suit and the District’s

production of documents on December 7, 2012. While the court recognized it was

“obviously not a coincidence that the District produced the documents and the

Vaughn index on the very day that its opposition to FOP’s summary judgment

motion was due,” it concluded that an inference based solely on timing was

insufficient to establish that the District’s production was because of the lawsuit.

Instead, the court noted that the District acknowledged the FOIA request and

promised to provide a response before the suit was filed and that its ultimate

production was a “major undertaking” that could not have been completed within

twenty-five days. The court further ruled in the alternative that even if FOP was

eligible for attorney’s fees, it was not entitled to fees under the four-factor test in

Fraternal Order of Police v. District of Columbia, 52 A.3d 822 (D.C. 2012) (FOP

2012).


      FOP appeals the trial court’s rulings with respect to the mootness of its
                                         6


request for a declaratory judgment and both its eligibility and entitlement for

attorney’s fees.


                                         II.


      As a general rule, the mootness doctrine prevents courts from deciding cases

“when the issues presented are no longer ‘live’ or [when] the parties lack a legally

cognizable interest in the outcome.” Settlemire v. District of Columbia Office of

Emp. Appeals, 898 A.2d 902, 904-05 (D.C. 2006) (quoting McClain v. United

States, 601 A.2d 80, 81 (D.C. 1992)). This court has greater flexibility to hear

cases than the federal courts, which are limited by the case or controversy

requirement of Article III of the Constitution, although we typically “follow[] the

principles of standing, justiciability, and mootness” for prudential reasons.

Atchison v. District of Columbia, 585 A.2d 150, 153 (D.C. 1991) (quoting District

of Columbia v. Waters, 319 A.2d 332, 338 n.13 (D.C. 1974), and citing Lynch v.

United States, 557 A.2d 580, 582 (D.C.1989) (en banc)). In any event, in the

context of FOIA cases, we routinely look to federal law to interpret analogous

provisions in our own Act. FOP 2012, 52 A.3d at 829.


      In Fraternal Order of Police v. District of Columbia, 82 A.3d 803 (D.C.

2014) (FOP 2014), we endorsed (in dicta) the general rule that an agency’s

production of all requested non-privileged documents moots a FOIA case. Id. at
                                         7


816-17 (citing Walsh v. U.S. Dep’t of Veterans Affairs, 400 F.3d 535, 536 (7th Cir.

2005)). While this statement is in accord with several federal courts of appeal, see,

e.g., Papa v. United States, 281 F.3d 1004, 1013 (9th Cir. 2002); Perry v. Block,

684 F.2d 121, 125 (D.C. Cir. 1982), it does not specify which particular claim in a

FOIA case becomes moot upon adequate and complete production of documents

by the District.6 FOP’s request for an injunction ordering the District to produce

documents was certainly mooted once the trial court determined that the District

had completely and adequately done so. See Mbakpuo v. Ekeanyanwu, 738 A.2d

776, 782 (D.C. 1999) (noting that an injunction may issue only when such relief is

needed). FOP contends, however, that the case is not moot with respect to its

requests for a declaratory judgment and for attorney’s fees. We address each issue

in turn.


       The trial court here ruled that the District’s production was not timely, and

FOP also seeks a declaratory judgment to that effect.7 In Settlemire, this court

explained that a “desire for vindication”—that is, “a declaration that a person was
       6
        Cf. FOP 2014, 82 A.3d at 816-17 (holding that a FOIA case was not moot
after the District’s document production because FOP actively contested the
adequacy of the District’s production).
       7
          Like the federal FOIA, there is no provision in the D.C. FOIA for an
award of money damages when the government unlawfully delays production of
documents. Cf. Cornucopia Inst. v. U.S. Dep’t of Agric., 560 F.3d 673, 675 n.1
(7th Cir. 2009).
                                          8


wronged”—is inadequate to create a live controversy. 898 A.2d at 907. The same

justiciability rules apply to requests for declaratory judgment. Local 36 Int’l Ass’n

of Firefighters v. Rubin, 999 A.2d 891, 896 (D.C. 2010) (citing Smith v. Smith, 310

A.2d 229, 231 (D.C. 1973)). A declaration that the District’s production was not

timely does not create “a possibility that further penalties or legal disabilities can

be imposed as a result of the judgment.” McClain v. United States, 601 A.2d 80,

81 (D.C. 1992) (quoting Holley v. United States, 442 A.2d 106, 107 (D.C. 1981)).

FOP’s request for such a declaration is therefore moot once the trial court

determines that the District has adequately and completely complied with the

FOIA request. Cf. FOP 2014, 82 A.3d at 816-17.


      FOP contends in its brief that this holding will “render the District beyond

the reach of the Superior Court’s enforcement powers under the D.C. FOIA as long

as the District manages to make some production no matter how many months, or

in some cases, years, have passed since the underlying FOIA Request was issued.”

On the contrary, trial courts can order the District to produce the requested

documents if the District has not already done so. Moreover, issuing a declaratory

judgment after the District produces documents does nothing to “enforce” FOIA’s

time limits, as it does not direct the District to do anything. A declaration that the

District’s production was unlawfully late cannot undo that lateness or force the

District to be timely in future cases.
                                          9


      Turning to attorney’s fees, the trial court ruled that FOP’s request for fees

was not mooted by the District’s complete and adequate production of documents.

We agree. In Frankel v. District of Columbia, No. 13-CV-495 (D.C. Feb. 12,

2015), we reaffirmed that the “catalyst theory” applies to determine whether a

party is eligible for fees under D.C. FOIA. Slip op. at 10-11. We rejected the

District’s argument that McReady v. Department of Consumer and Regulatory

Affairs, 618 A.2d 609 (D.C. 1992), which recognized the catalyst theory for D.C.

FOIA cases, was undercut by intervening opinions of the United States Supreme

Court and this court rejecting the catalyst theory in non-FOIA contexts. Id. at 6-10

(citing Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human

Res., 532 U.S. 598, 601 (2001), and Settlemire, 898 A.2d at 907). As a result, a

party is eligible for fees “when he demonstrates a ‘causal nexus . . . between the

action [brought in court] and the agency’s surrender of the information.’” Id. at

10-11 (quoting McReady, 618 A.2d at 616) (alterations in original).8


      Under this standard, the production of documents cannot moot a request for

attorney’s fees because a plaintiff is eligible for fees when his lawsuit caused that

production. See Cornucopia, 560 F.3d at 676-77 (analyzing eligibility for fees


      8
         Frankel noted that this standard “is parallel to” the federal standard, id. at
11 n.8, which the trial court applied in this case.
                                         10


under FOIA after finding that production mooted request for declaratory

judgment). In fact, the District’s production of documents created the basis for

FOP’s claim that it was a prevailing party. There is a live controversy as to

whether FOP’s claim was in fact a catalyst for the production of documents, and if

FOP prevails in that determination, it will be eligible for fees.       The parties

therefore retain a legally cognizable interest in the outcome and FOP’s request for

attorney’s fees is not moot. Settlemire, 898 A.2d at 904-05.


                                         III.


                                          A.


      We next turn to whether FOP was eligible for fees in this case under the

catalyst theory, looking to case law interpreting the federal FOIA as we did in

Frankel and FOP 2012. We review the trial court’s ruling for clear error, as

whether a causal nexus exists is a “question of fact entrusted to the [trial court].”

Weisberg v.U.S. Dep’t of Justice, 745 F.2d 1476, 1496 (D.C. Cir. 1984) (citations

omitted); accord McReady, 618 A.2d at 616 (holding that the trial court’s

“finding” that the release of records was not prompted by the lawsuit had “ample

support in the record and we will not disturb it”).9 The findings of fact underlying


      9
         Cf. Majeska v. District of Columbia, 812 A.2d 948, 950 (D.C. 2002)
(noting that proximate cause is generally a question of fact that becomes a question
                                                                       (continued…)
                                        11


this conclusion are also reviewed under a clear error standard. Public Law Educ.

Inst. v. U.S. Dep’t of Justice, 744 F.2d 181, 183 (D.C. Cir. 1984). The FOIA

litigant seeking fees bears the burden of showing that his suit was the causal nexus

for the production of documents. Id.; Burka v. U. S. Dep’t of Health & Human

Servs., 142 F.3d 1286, 1288 (D.C. Cir. 1998).


      The D.C. Circuit has outlined several factors for making the causal nexus

determination. First, trial courts should consider the “temporal relation” between

the filing of the complaint and the subsequent release of documents, although

timing alone does not establish causation as a matter of law. Pub. Law Educ., 744

F.2d at 184 n.5. Courts should also consider whether the government made a good

faith effort to respond to the initial request, whether the government has pursued

the request with due diligence, whether the search is time-consuming, and whether

the government has a significant number of other requests pending at the time. See

Cox v. U.S. Dep’t of Justice, 601 F.2d 1, 6 (D.C. Cir. 1979). Finally, courts should

consider whether the agency has provided a reasonable explanation that its

production of documents was not causally connected to the lawsuit. Compare,

e.g., Bigwood v. Def. Intelligence Agency, 770 F. Supp. 2d 315, 321 (D.D.C. 2011)


(…continued)
of law only when the record contains insufficient evidence to support “a rational
finding of proximate cause”).
                                         12


(noting that the defendant provided “a detailed timeline of events leading up to the

disclosure of information” explaining why the lawsuit was not a catalyst for the

release of documents), with Marschner v. Dep’t of State, Sec’y of State, 470 F.

Supp. 196, 200 (D. Conn. 1979) (finding a causal nexus when the agency “now

offers no explanation for the delay”), Baker v. U.S. Dep’t of Homeland Security,

No. 3:11-CV-588, 2012 WL 5876241, at *5 (M.D. Pa. Nov. 20, 2012) (finding a

casual nexus when there were “several unexplained gaps” in the agency’s activity

processing the FOIA request before the suit), and Frye v. EPA, CIV. A. 90-3041,

1992 WL 237370, at *3 (D.D.C. Aug. 31, 1992) (noting that the government

“offered no excuse for its delay of over two years”). The FOIA requester need not

demonstrate that the government would not have responded to the request for

documents absent the lawsuit. See Fund for Const’l Gov’t v. National Archives &

Records Serv., 656 F.2d 856, 871 (D.C. Cir. 1981) (“[T]he mere fact that a FOIA

requester might have ultimately received the documents in question in the absence

of litigation is not a sufficient basis for a finding that it has not substantially

prevailed for purposes of an award of attorney fees.”).


                                          B.


      The trial court in this case considered many of these factors. The court

acknowledged that the timing of the District’s production could support a finding
                                          13


of causation, as it was “obviously not a coincidence” that the District produced

documents on the day its opposition brief was due. But the court also noted that

the District responded to the FOIA request five days after it was made and

provided FOP with copies of the search requests it forwarded to MPD. This

supports the court’s conclusion that “[t]he District’s efforts to comply were

underway well before FOP filed this lawsuit.” FOP relied heavily on the fact that

the District did not adequately explain its failure to complete the search request

within the statutorily mandated timeline, and the trial court in fact noted that it

would have “prefer[red] to have an affidavit from the District explaining the timing

of its efforts.”10 But even absent an affidavit from the District, the trial court

inferred that the search request took substantial time to complete given the

District’s ultimate production—2,500 pages of emails plus a “voluminous” Vaughn

index.11 The trial court also took notice of several other Superior Court cases in

which the District’s “chronic inability” to comply with its legal obligations under

FOIA was attributed to “the inadequacy of the resources allocated by the [D.C.]

Council.”

      10
          FOP contends that the trial court required it to produce an affidavit about
the District’s timing, but the trial court’s order implies that the District should have
produced the affidavit.
      11
         The District noted in its summary judgment brief “that the volume of the
requested emails delayed the agency’s response.”
                                         14


      While an affidavit from the District detailing its search efforts would have

been beneficial, see Marschner, 470 F. Supp. at 200 (“The agency is in a much

better position to demonstrate that the delay was reasonable, and that the request

would have been responded to within the same time even in the absence of the

filing of this action.”), the trial court’s determination that FOP’s suit was not

causally related to the production of documents was not clearly erroneous. As the

trial court noted, the District’s delay—while unlawful—was not significantly

different from “the average amount of time it takes the District to respond to FOIA

requests.” This particular request required “substantial effort” to sift through a

large number of documents. And the District suffers from a “general backlog” of

FOIA requests. Although as the trial court recognized, “[i]t is a close call,” these

facts provide sufficient support for the trial court’s factual finding that FOP’s suit

did not cause the District’s production of documents in this case.


                                          IV.


      For these reasons, the judgment of the Superior Court is affirmed.12


                                                           So ordered.


      12
          Because we affirm the trial court’s determination that FOP is not eligible
for attorney’s fees, we need not consider whether its alternative ruling that FOP is
not entitled to fees was an abuse of discretion.
