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

extension delay”2due 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 index4explaining 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.