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                                 No. 13-CV-495

                         DAVID P. FRANKEL, APPELLANT,

                                        V.

                       DISTRICT OF COLUMBIA OFFICE FOR
                PLANNING AND ECONOMIC DEVELOPMENT, APPELLEE.

                          Appeal from the Superior Court
                           of the District of Columbia
                                  (CAB-312-10)

                       (Hon. Judith Bartnoff, Trial Judge)

(Submitted May 13, 2014                                 Decided February 12, 2015)

      Alan B. Frankle was on the brief for appellant.

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

      Before WASHINGTON, Chief Judge, BECKWITH, Associate Judge, and KING,

Senior Judge.


      BECKWITH, Associate Judge: David Frankel appeals from an order granting

in part and denying in part his application for attorney‟s fees in his Freedom of

Information Act suit against the District of Columbia Office of the Deputy Mayor

for Planning and Economic Development. The trial court ruled that Mr. Frankel
                                           2

was eligible for and entitled to attorney‟s fees, but it did not award all the fees that

Mr. Frankel sought. Mr. Frankel argues on appeal that the trial court abused its

discretion by denying attorney‟s fees for time spent preparing three motions that

were either denied or never filed. We agree, and we reverse and remand for

proceedings not inconsistent with this opinion.


                              I.     Factual Background


      In 2008, the D.C. Office of the Deputy Mayor for Planning and Economic

Development (ODMPED) announced plans to construct a new library and a private

multi-story residential building on the site of the old Tenley-Friendship

Neighborhood Library and the soccer field of the adjacent Janney Elementary

School in Northwest Washington, D.C.           On December 9, 2009, Mr. Frankel

submitted a request to ODMPED under the D.C. Freedom of Information Act

(FOIA), D.C. Code §§ 2-531 to -540 (2012 Repl.), to obtain public records relating

to this development.1 ODMPED did not respond within the fifteen days allowed

by the statute. See D.C. Code § 2-532 (c). On January 21, 2010, Mr. Frankel sued

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

filed an answer on February 18, 2010, without responding to Mr. Frankel‟s FOIA


      1
          Mr. Frankel also submitted other FOIA requests to ODMPED before and
after this FOIA request; those requests are not at issue in this case.
                                         3

request.


         On April 22, 2010, the day before a scheduling conference with the trial

court, ODMPED disclosed fifty-nine emails to Mr. Frankel. At the conference, the

trial court ordered ODMPED to file a dispositive motion, an affidavit describing

the record searches it had performed, and a Vaughn index2 by May 21, 2010.

ODMPED filed a motion for summary judgment on May 21, supported by an

affidavit of FOIA Officer Mary Margaret Plumridge. ODMPED argued that it had

complied with Mr. Frankel‟s request and that all the documents it withheld were

exempt from disclosure under the deliberative process or attorney-client privileges.

Mr. Frankel first responded by sending ODMPED a motion seeking Rule 11

sanctions for allegedly making false statements in its summary judgment motion.

See Super. Ct. Civ. R. 11 (c). ODMPED then filed a praecipe clarifying several

statements in the motion. Mr. Frankel did not file the Rule 11 motion with the

court.


         Mr. Frankel next responded by filing a motion to strike the Plumridge

affidavit because of, among other things, vagueness, lack of personal knowledge,

and a deficient Vaughn index. ODMPED responded by filing two supplemental
         2
        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).
                                          4

affidavits from Ms. Plumridge and another FOIA Officer, Sean Madigan, as well

as a new Vaughn index listing more withheld documents. Mr. Frankel learned

from the supplemental affidavits that ODMPED had not searched the files of

several people listed in the FOIA request. Mr. Frankel‟s motion to strike was

denied on July 31, 2010. ODMPED produced additional emails to Mr. Frankel at

that time.


      Mr. Frankel also filed a cross-motion for summary judgment to compel

production of more documents and award him attorney‟s fees. When the parties

met on October 22, 2010, the trial court did not rule on the summary judgment

motions but it ordered ODMPED to perform further searches to fulfill Mr.

Frankel‟s request.3 ODMPED complied and produced additional documents on

January 5 and 7, 2011.      More documents were produced on April 21, 2011,

including a document Mr. Frankel described as “at the very heart” of his FOIA

request.     Mr. Frankel then acknowledged that he had received everything he

wanted and the trial court denied the pending motions for summary judgment as

moot, except with respect to Mr. Frankel‟s request for attorney‟s fees.


      Mr. Frankel sought $45,836.14 in attorney‟s fees and $1,105.56 in costs.
      3
         Although this does not affect our decision, ODMPED disputes that the
trial court “ordered” it to take further action, instead contending that it “agreed to”
broaden its search and clarify its Vaughn index.
                                         5

The trial court awarded him roughly half of that—$20,313.46 in fees and $796.82

in costs. The court ruled that Mr. Frankel was eligible for attorney‟s fees because

he “prevail[ed] in whole or in part” in his suit, see D.C. Code § 2-537 (c), and that

he was entitled to fees under the four-factor test in Fraternal Order of Police v.

District of Columbia, 52 A.3d 822 (D.C. 2012). But the trial court denied Mr.

Frankel fees for the time he spent on unsuccessful actions. On appeal, Mr. Frankel

argues that the trial court abused its discretion by denying fees for the time spent

on three pleadings:    the Rule 11 motion, the motion to strike the Plumridge

affidavit, and the summary judgment response and cross-motion.4


                             II.    The Catalyst Theory


      As a preliminary matter, ODMPED argues that Mr. Frankel is not actually

eligible to receive any fees because he did not “prevail[] in whole or in part” under


      4
         Mr. Frankel also argues that the trial court erred by finding that only two
of the four Fraternal Order of Police factors for determining whether a party is
entitled to attorney‟s fees were in his favor. See Fraternal Order of Police v.
District of Columbia, 52 A.3d 822 (D.C. 2012). The trial court did rule that Mr.
Frankel was entitled to a fee award under that four-factor balancing test, however.
“[W]e review judgments, not findings,” Beraki v. Zerabruke, 4 A.3d 441, 445
(D.C. 2010), so we do not address the reasoning behind the trial court‟s decision if
no party has protested the result. Mr. Frankel argues that the court might have
awarded him more fees had it found four instead of two factors in his favor, but the
four factors are used to determine entitlement to an award, not its size, and nothing
in the trial court‟s order suggests that the amount it awarded was based on the
strength of Mr. Frankel‟s showing under the four factors.
                                           6

D.C. Code § 2-537 (c). ODMPED contends that the D.C. FOIA does not allow fee

recovery under the “catalyst theory” in which “a plaintiff is a „prevailing party‟ if it

achieves [its] desired result because the lawsuit brought about a voluntary change

in the defendant‟s conduct.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t

of Health & Human Res., 532 U.S. 598, 601 (2001). Instead, ODMPED argues

that fee awards are only available when a plaintiff “has been awarded some relief

by the court,” see id. at 603, and that Mr. Frankel was not eligible for a fee award

here because “the District voluntarily produced the requested documents after the

plaintiff filed his complaint but before any judicial award of relief on the merits.”5


      In 1992, this court noted that attorney‟s fee awards were proper in FOIA

cases when there was a “causal nexus . . . between the action [brought in court] and

the agency‟s surrender of the information.” McReady v. Dep’t of Consumer &

Regulatory Affairs, 618 A.2d 609, 616 (D.C. 1992) (brackets in original).6 This

standard is a version of the catalyst theory. ODMPED argues, however, that

McReady has been “effectively overrule[d].”           ODMPED‟s argument can be
      5
          ODMPED did not cross-appeal the trial court‟s order awarding fees, so it
does not challenge the award Mr. Frankel already received. It simply argues that
this court should not enlarge an award for which Mr. Frankel was never legally
eligible.
      6
        This issue was not central to the appeal, but the court stated that the
“causal nexus” standard was correct and cited D.C. Circuit case law for support.
Id.
                                         7

summarized as follows: McReady recognized the catalyst theory for D.C. FOIA

suits. 618 A.2d at 616. The Supreme Court later held in Buckhannon that the

words “prevailing party” in two federal civil rights statutes did not include the

catalyst theory.   532 U.S. at 605.     The D.C. Circuit subsequently held that

Buckhannon applied to the federal FOIA. Oil, Chem. & Atomic Workers Int’l

Union v. Dep’t of Energy, 288 F.3d 452 (D.C. Cir. 2002). This court then adopted

Buckhannon when interpreting “prevailing party” in D.C. Code § 1-606.08

pertaining to suits within the Office of Employee Appeals. Settlemire v. District of

Columbia Office of Emp. Appeals, 898 A.2d 902, 907 (D.C. 2006). As a result, in

ODMPED‟s view, Buckhannon applies to the D.C. FOIA as well.


      We disagree. First, Settlemire was not a FOIA case, and its holding does not

control the interpretation of a different statute containing different language. The

provision at issue in Settlemire—D.C. Code § 1-606.08—only provides awards to

a “prevailing party,” whereas the FOIA statute provides awards to a party that

“prevails in whole or in part.” D.C. Code § 2-537 (c). This difference suggests

that the D.C. Council intended to authorize attorney‟s fees in FOIA cases more

often than in other types of cases.


      Second, the D.C. Circuit‟s opinion in Oil, Chem. & Atomic Workers was

superseded by statute when Congress amended the federal FOIA to codify the
                                         8

catalyst theory, explicitly authorizing attorney‟s fees when the plaintiff obtains

relief through “a voluntary or unilateral change in position by the agency, if the

complainant‟s claim is not insubstantial.” 5 U.S.C. § 552 (a)(4)(E)(ii)(II) (2012);

see Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 525 (D.C.

Cir. 2011). To the extent that we look to the federal FOIA as persuasive authority

when interpreting our own FOIA, see Fraternal Order of Police, 52 A.3d at 829,

we note that Buckhannon does not apply to federal FOIA suits and we interpret the

D.C. FOIA similarly.7


      OMDPED argues that because Congress amended the federal FOIA after

Buckhannon but the D.C. Council did not amend our FOIA, we must “continue” to

apply Buckhannon and Settlemire here.          Yet we have not ever applied

Buckhannon or Settlemire to attorney‟s fees disputes under the D.C. FOIA.

      7
          ODMPED correctly points out that we engage in this practice only “when
the provisions of the District‟s law „mirror‟ the federal law.” The fee award
provisions here are nearly identical, however: federal law awards plaintiffs who
“substantially prevail[],” 5 U.S.C. § 552 (a)(4)(E)(i) (2012), whereas D.C. law
awards those who “prevail in whole or in part,” D.C. Code § 2-537 (c). The
federal amendment at issue merely interprets the ambiguous statutory term
“prevail[].” As explained by Superior Court Judge Anthony Epstein in a similar
case, “If federal courts had supplied the definition of the „substantially prevailed‟
eligibility standard in the federal FOIA, D.C. courts would follow the federal case
law in interpreting the same ambiguous test in the D.C. FOIA. The result is the
same when Congress has supplied that definition.” Fraternal Order of Police v.
District of Columbia, No. 2012 CA 4125 B, slip op. at 8 (D.C. Super. Ct. Jan. 18,
2013).
                                        9

Instead, the catalyst theory has been a part of the D.C. FOIA since its inception.

When drafting FOIA, the D.C. Council stated its intent to craft enforcement

sanctions mirroring the “federal model,” see D.C. Council Report on Bill 1-119 at

10 (Sept. 1, 1976), and in 1976 this included attorney‟s fee awards based on the

catalyst theory. See Vt. Low Income Advocacy Council, Inc. v. Usery, 546 F.2d

509, 513 (2d Cir. 1976) (attorney‟s fees proper if FOIA action is “reasonably . . .

regarded as necessary” and has “substantial causative effect on the delivery of the

information”); Goldstein v. Levi, 415 F. Supp. 303, 305 (D.D.C. 1976); Cuneo v.

Rumsfeld, 553 F.2d 1360, 1365 (D.C. Cir. 1977); Burke v. Dep’t of Justice, 432 F.

Supp. 251, 252 (D. Kan. 1976), aff’d, 559 F.2d 1182 (10th Cir. 1977).          We

reaffirmed use of the catalyst theory in McReady, 618 A.2d at 616. And Congress

acted to “clarif[y] that the Supreme Court‟s decision in Buckhannon . . . does not

apply to [federal] FOIA cases,” 153 CONG. REC. S15,830-01 (daily ed. Dec. 18,

2007) (statement of Sen. Patrick Leahy), which eliminated any likelihood that this

court would apply Buckhannon to FOIA simply by adopting contemporary federal

FOIA law. Cf. Fraternal Order of Police, 52 A.3d at 829. Given this backdrop,

we decline to infer that the D.C. Council intended to abolish the longstanding

catalyst theory through its inaction. See U.S. Parole Comm’n v. Noble, 693 A.2d

1084, 1103 (D.C. 1997) (noting “the hazard of attempting to impute meaning to

legislative inaction”).
                                        10

      Finally, the catalyst theory accurately reflects the purposes of the FOIA

attorney‟s fee provision.   The D.C. Council intended FOIA to contain strong

enforcement measures because under the prior regime, “agencies risk[ed]

practically nothing by not responding to a request.” D.C. Council, Report on Bill

1-119 at 7 (Sept. 1, 1976). The D.C. FOIA contains a statement of purpose

emphasizing that “provisions of this subchapter shall be construed with the view

toward expansion of public access and the minimization of costs and time delays to

persons requesting information.” D.C. Code § 2-531. The Council further stated

that the fee award provision is meant to “encourage citizens to seek the release of

information wrongfully withheld.” D.C. Council, Memorandum on Bill 1-119 at 8

(July 23, 1975).   The catalyst theory advances these goals by allowing more

litigants to recover attorney‟s fees and creating an incentive for the D.C.

government to disclose more documents in the first place. See Buckhannon, 532

U.S. at 639, 644 (Ginsburg, J., dissenting) (noting that the catalyst theory

encourages defendants “to conform . . . conduct to the legal requirements before

litigation is threatened” and “encourages private enforcement of laws”).


      For these reasons, we hold that the catalyst theory continues to operate in

D.C. FOIA cases, and a party “prevails in whole or in part” under § 2-537 (c) when

he demonstrates a “causal nexus . . . between the action [brought in court] and the
                                             11

agency‟s surrender of the information.”8 McReady, 618 A.2d at 616. The trial

court here deemed it “undisputed” that Mr. Frankel was eligible for fees under the

catalyst theory. We agree that the extensive litigation in this case had a “causal

nexus” to ODMPED‟s ultimate production of documents9 and that Mr. Frankel was

eligible for attorney‟s fees.10


                                  III.   Mr. Frankel’s Claims


      We now turn to the question whether Mr. Frankel was entitled to more

attorney‟s fees than he received. We review the trial court‟s decision to deny fees

for an abuse of discretion. Fraternal Order of Police, 52 A.3d at 833. A court “by

definition abuses its discretion when it makes an error of law.” Ford v. ChartOne,

Inc., 908 A.2d 72, 84 (D.C. 2006).



      8
         This standard is parallel to the federal definition that allows recovery when
the plaintiff “obtain[s] relief through . . . a voluntary or unilateral change in
position by the agency, if the complainant‟s claim is not insubstantial.” 5 U.S.C.
§ 552 (a)(4)(E)(ii)(II) (2012).
      9
         Whether the trial court ordered ODMPED to act or not, see footnote 3,
supra, it is clear that ODMPED expanded its search as a result of discussions with
Mr. Frankel and the judge in the trial court.
      10
         ODMPED does not argue that Mr. Frankel was not entitled to fees under
the Fraternal Order of Police balancing test. See 52 A.3d at 827 (a party must be
both “eligible” and “entitled” to fees to receive an award); see also footnote 4,
supra.
                                         12

      A.     The Rule 11 Motion


      Mr. Frankel argues that the trial court abused its discretion by concluding

that he was not entitled to attorney‟s fees for the time spent in connection with his

Rule 11 motion.11 In general, a party can recover fees for work that is “„both

useful and of a type ordinarily necessary to advance the . . . litigation‟ to the

point where the party succeeded.” Pennsylvania v. Del. Valley Citizens’

Council for Clean Air, 478 U.S. 546, 561 (1986) (quoting Webb v. Bd. of

Educ., 471 U.S. 234, 243 (1985)).


      The trial court ruled that Mr. Frankel was not entitled to fees for “a motion

his attorney never filed,” citing Cooper v. U. S. R.R. Ret. Bd., 24 F.3d 1414, 1417

(D.C. Cir. 1994). To the extent that the trial court understood this as a per se rule,

it is inconsistent with the catalyst theory. Cooper involved time spent preparing a

pleading for which leave to file was denied and there was no indication that the

      11
           ODMPED argues that Mr. Frankel waived this issue by failing to discuss
it in his reply to ODMPED‟s opposition brief in the trial court or in his motion for
reconsideration of the trial court order for attorney‟s fees. ODMPED points to no
case law or court rule, however—and we are aware of none—suggesting that a
party waives an issue by choosing not to address it in a reply brief or a motion for
reconsideration. Mr. Frankel properly raised this issue in his application for
attorney‟s fees by specifically requesting fees based on the hours spent preparing
and conferring with opposing counsel on his Rule 11 motion. The trial court
denied attorney‟s fees for those hours and Mr. Frankel appealed the issue to this
court. As this issue was properly presented, we address the merits.
                                         13

pleading had any effect on the proceedings. Id. Fees in that case may have been

unwarranted, but when a party drafts a motion or pleading and sends that document

to opposing counsel, who alters his behavior because of the document, attorney‟s

fees are reasonable even if the document is never filed. See, e.g., Searles v. Van

Bebber, 64 F. Supp. 2d 1033, 1039 (D. Kan. 1999), vacated on other grounds, 251

F.3d 869 (10th Cir. 2001) (awarding attorney‟s fees when party prepared a

pleading, contacted opposing counsel, and reached a settlement making it

unnecessary to file the pleading). This is especially true in the context of a Rule 11

motion because court rules prohibit a party from filing the motion until conferring

with opposing counsel to resolve the situation. Super. Ct. Civ. R. 11 (c)(1)(A). As

Mr. Frankel notes, the Rule 11 process works “as intended” when opposing

counsel receives a Rule 11 motion and corrects the challenged document without

the motion ever being filed in court.


      Here, the record shows that ODMPED filed a motion for summary judgment

on May 21, 2010, and that, after Mr. Frankel contacted ODMPED by phone and

email about a Rule 11 motion “based on misstatements of fact in the Plumridge

Affidavit,” ODMPED filed a praecipe clarifying several statements in its motion

regarding Ms. Plumridge. Mr. Frankel has produced sufficient evidence that his

Rule 11 motion and its presentation to opposing counsel caused ODMPED to file a

corrected praecipe, which was useful and necessary to advancing the litigation by
                                         14

aiding the trial court in its consideration of the case. Del. Valley Citizens’

Council, 478 U.S. at 561.


      B.     The Motion To Strike


      Mr. Frankel argues that the trial court abused its discretion by concluding

that Mr. Frankel was not entitled to attorney‟s fees for the time spent in connection

with his motion to strike the Plumridge affidavit. The trial court concluded that

Mr. Frankel was not entitled to fees for “unsuccessful” claims.         The central

question, however, is whether the work was useful and necessary in advancing the

litigation to its successful conclusion. Del. Valley Citizens’ Council, 478 U.S.

at 561. Moreover, “[a] court should compensate the plaintiff for the time his

attorney reasonably spent in achieving the favorable outcome, even if „the plaintiff

failed to prevail on every contention.‟” Fox v. Vice, 131 S. Ct. 2205, 2214 (2011)

(quoting Hensley v. Eckerhart, 461 U.S. 424, 435 (1983)); Natural Motion by

Sandra, Inc. v. District of Columbia Comm’n on Human Rights, 726 A.2d 194, 198

(D.C. 1999) (quoting Hensley, 461 U.S. at 435).


      Mr. Frankel objected to the Plumridge affidavit supporting ODMPED‟s

motion for summary judgment because it was, among other things, “vague and

ambiguous” and contained a “deficient” Vaughn index. In response, ODMPED

filed a supplemental affidavit by Mary Margaret Plumridge, a new affidavit by
                                          15

former ODMPED FOIA Officer Sean Madigan, and a new Vaughn index.

Although the trial court then denied Mr. Frankel‟s motion to strike, the record

establishes that Mr. Frankel‟s motion to strike resulted in ODMPED‟s decision to

file these new affidavits and Vaughn index, which cured the problems Mr. Frankel

had identified. The Madigan affidavit also contained new information that more

accurately informed Mr. Frankel of the extent of ODMPED‟s prior searches, and

once the trial court was made aware of this information, ODMPED expanded its

search and produced additional records. So even though the motion to strike was

denied, the motion was both useful and necessary for Mr. Frankel‟s successful

result in this litigation.


       C.     The Summary Judgment Cross-Motions


       Mr. Frankel also challenges the trial court‟s denial of attorney‟s fees for the

time he spent responding to ODMPED‟s summary judgment motion and preparing

his own cross-motion—a ruling based on the sole ground that the motion was not

meritorious. As with the motion to strike, the relevant question is not whether the

pleadings were successful but whether they were useful and necessary to

advancing the litigation.


       At the outset, it is indisputable that Mr. Frankel‟s opposition brief was

causally connected to the ultimate production of documents. Had Mr. Frankel
                                         16

yielded to ODMPED‟s motion for summary judgment, the case would have closed

and he would have been left without the documents he sought and ultimately

received. Because Mr. Frankel‟s suit was the catalyst for ODMPED‟s production

of documents, Mr. Frankel‟s opposition to ODMPED‟s motion for summary

judgment was undoubtedly useful and necessary to advance the litigation to

achieve that result, Del. Valley Citizens’ Council, 478 U.S. at 561, which did not

occur until nearly a year later.


      And while we are less confident that Mr. Frankel‟s cross-motion for

summary judgment was useful and necessary for his ultimate victory, where “the

actual work performed by lawyers to develop the facts [or law] of both claims [is]

closely intertwined, . . . [i]t is sometimes virtually impossible to determine how

much time was devoted to one category or the other, and the incremental time

required to pursue both claims rather than just one is likely to be small.” Hensley,

461 U.S. at 448 (Burger, C.J., concurring); cf. Fox, 131 S. Ct. at 2214. We

therefore conclude that the trial court should have awarded Mr. Frankel fees for the

time spent preparing his opposition brief to ODMPED‟s summary judgment

motion as well as his own cross-motion for summary judgment.


                                   IV.   Conclusion


      While the trial court correctly found that the catalyst theory applies to
                                        17

attorney‟s fee awards under the D.C. Freedom of Information Act, the court erred

in denying Mr. Frankel attorney‟s fees for work solely because it was “never filed”

or “unsuccessful.” We remand to the trial court for proceedings not inconsistent

with this opinion.


                                                         So ordered.
