Wp Company LLC v. U.S. Small Business Administration ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WP COMPANY LLC d/b/a THE
WASHINGTON POST, et al.,
Plaintiffs,
v. Civil Action No. 20-1240 (JEB)
U.S. SMALL BUSINESS
ADMINISTRATION,
Defendant.
MEMORANDUM OPINION
The history of this Freedom of Information Act case is straightforward. In May 2020,
Plaintiffs — a host of national news organizations — filed a lawsuit seeking the release of
various data concerning the Paycheck Protection Program (PPP) and the Economic Injury
Disaster Loans (EIDL) program. Following a round of briefing, this Court granted judgment to
Plaintiffs and ordered the Small Business Administration to release the names, addresses, and
precise loan amounts for successful borrowers. Several weeks later, after a failed attempt to put
the Court’s Order on hold, the agency did just that.
One final matter remains: Plaintiffs’ bid for attorney fees and costs. Although the Court
agrees that the news organizations are eligible for and entitled to fees, it finds that their requested
sum is somewhat excessive and must be reduced by around 20%.
I. Background
As past Opinions detail the full background of this suit, see WP Co. LLC v. U.S. Small
Bus. Admin., Nos. 20-1240, 20-1614, 2020 WL 6504534 (D.D.C. Nov. 5, 2020) (WP I); WP Co.
1
LLC v. U.S. Small Bus. Admin., Nos. 20-1240, 20-1614, 2020 WL 6887623 (D.D.C. Nov. 24,
2020) (WP II), the Court need only briefly recount the facts relevant to the present Motion.
Throughout April and May 2020, the eleven Plaintiffs in this case submitted FOIA
requests seeking data regarding loans approved pursuant to the PPP and EIDL program, bringing
suit in this Court after SBA declined to fulfill them. WP I, 2020 WL 6504534, at *3. Although
the agency eventually published some loan-level information in July, it refused, much to
Plaintiffs’ displeasure, to release certain key details. Specifically, SBA did not provide both
dollar figures and borrower names and addresses for any PPP loan, and it adopted a similar
partial-disclosure approach for EIDL data. Id. at *3–4. According to the Government, its
withholdings were based on FOIA Exemptions 4 and 6, which protect, respectively, confidential
commercial information and information the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy. Id. (citing 5 U.S.C. § 552(b)(4), (6)).
Believing those withholdings lacked merit, Plaintiffs moved for summary judgment, and
this Court ultimately agreed that neither of SBA’s claimed exemptions covered the requested
information. Id. at *4, 9, 18. It accordingly ordered the agency to release the “names, addresses,
and precise loan amounts” for all individuals and entities that had received PPP or EIDL loans
during the COVID-19 pandemic by November 19, 2020. See ECF No. 22 (11/5/20 Order) at 2.
A week before that deadline, SBA moved to stay this Court’s Order pending its
determination of whether to appeal. WP II, 2020 WL 6887623, at *2. After issuing a temporary
stay in order to consider the agency’s request, the Court denied it in full, finding that “the
overriding public interest” in prompt release of the withheld information rendered a stay
inappropriate. Id. at *5. Although the Court put SBA’s disclosure obligation on hold for another
week, see id., thus providing the agency time to notice an appeal and seek a stay from the D.C.
2
Circuit if it so desired, the Government took neither step. Instead, on December 1, 2020 — and
no doubt to Plaintiffs’ satisfaction — it publicly produced the full dataset containing the names,
addresses, and precise loan amounts for millions of recipients of PPP and EIDL COVID-related
loans totaling hundreds of billions of dollars. See SBA, 120120 EIDL, EIDL Advance, and PPP
Data, https://bit.ly/38RJtsR (last visited Jan. 19, 2021).
Claiming that they “substantially prevailed” in this litigation, see 5 U.S.C.
§ 552(a)(4)(E)(i), Plaintiffs have now filed a Motion for Attorney Fees and Costs, see ECF No.
27 (Pl. Mot.), which SBA opposes. See ECF No. 32 (Def. Opp.).
II. Legal Standard
FOIA provides that courts “may assess against the United States reasonable attorney fees
and other litigation costs reasonably incurred in any case . . . in which the complainant has
substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i); see Brayton v. Off. of the U.S. Trade Rep.,
641 F.3d 521, 524 (D.C. Cir. 2011). “This language naturally divides the attorney-fee inquiry
into two prongs, which our case law has long described as fee ‘eligibility’ and fee ‘entitlement.’”
Brayton, 641 F.3d at 524 (quoting Judicial Watch, Inc. v. U.S. Dep’t of Commerce, 470 F.3d
363, 368–69 (D.C. Cir. 2006)). Plaintiffs are “eligible” to receive fees if they have “substantially
prevailed.” Id.; Negley v. FBI, 818 F. Supp. 2d 69, 72–73 (D.D.C. 2011). If Plaintiffs are
eligible, the Court must then “consider[] a variety of factors” to determine whether they are
“entitled” to fees. Brayton, 641 F.3d at 524–25; see also Davy v. CIA, 550 F.3d 1155, 1158–59
(D.C. Cir. 2008). If they are both eligible for and entitled to receive fees, the Court proceeds to
“analyze whether the amount of the fee request is reasonable.” Elec. Privacy Info. Ctr. v. U.S.
Dep’t of Homeland Sec., 811 F. Supp. 2d 216, 237 (D.D.C. 2011).
3
III. Analysis
At least some of the usual attorney-fee legwork is already in the rearview mirror here, as
SBA concedes — as it must — that Plaintiffs are “eligible” to receive fees on account of their
complete success in the underlying suit. See Def. Opp. at 4; see also Oil, Chem. & Atomic
Workers Int’l Union, AFL-CIO v. Dep’t of Energy, 288 F.3d 452, 456–57 (D.C. Cir. 2002)
(explaining that plaintiff is eligible for fees if it is “awarded some relief by a court,” such as “a
judgment on the merits”) (cleaned up). It disputes, however, whether they are “entitled” to fees,
as well as — should the Court so determine — whether their claimed fees are reasonable. The
Court takes each in turn.
A. Entitlement
The entitlement inquiry is designed to ensure that attorney fees are distributed in a
manner consistent with the purpose of FOIA’s fee provision, which “was not enacted to provide
a reward for any litigant who successfully forces the government to disclose information it
wished to withhold.” Davy, 550 F.3d at 1158 (quoting Nationwide Bldg. Maint., Inc. v.
Sampson, 559 F.2d 704, 711 (D.C. Cir. 1977)). Instead, it serves the “more limited purpose” of
“remov[ing] the incentive for administrative resistance to disclosure requests based not on the
merits of exemption claims, but on the knowledge that many FOIA plaintiffs do not have the
financial resources or economic incentives to pursue their requests through expensive litigation.”
Id. (quoting Nationwide, 559 F.2d at 711). In considering that purpose, the D.C. Circuit has
distinguished between a “plaintiff who seeks to advance his private commercial interests and
thus needs no incentive to file suit, and a newsman who seeks information to be used in a
publication or the public interest group seeking information to further a project benefitting the
general public.” Id.4
This Court thus considers four principal 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.” Tax Analysts v. U.S. Dep’t of
Justice, 965 F.2d 1092, 1093 (D.C. Cir. 1992). “No one factor is dispositive,” Davy, 550 F.3d at
1159, and “[t]he sifting of those criteria over the facts of a case is a matter of district court
discretion.” Tax Analysts, 965 F.2d at 1094.
Here, SBA wisely concedes the first three factors, see Def. Opp. at 5, and the Court
agrees that they weigh in Plaintiffs’ favor. The “public benefit” from the records at issue is
significant, as Plaintiffs’ “victory is likely to add to the fund of information that citizens may use
in making vital political choices.” Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C. Cir. 1995)
(quoting Fenster v. Brown, 617 F.2d 740, 744 (D.C. Cir. 1979)); see also Morley v. CIA, 810
F.3d 841, 844 (D.C. Cir. 2016) (explaining that public benefit exists where request has “at least a
modest probability of generating useful new information about a matter of public concern”).
This Court has previously explained at length how the loan data would further the public’s
“urgent and immediate interest in assessing the results” of an unprecedented federal relief effort
financed by taxpayer dollars, WP II, 2020 WL 6887623, at *3, including whether funds were
distributed fairly and equitably, and without waste, fraud, and abuse. Id. at 3–5; see also WP I,
2020 WL 6504534, at *13–17. Indeed, the information disclosed as a result of this litigation has
already had that effect, making possible numerous analyses regarding SBA’s administration of
the PPP and EIDL program. See, e.g., Stacy Cowley & Ella Koeze, 1 Percent of P.P.P.
Borrowers Got Over One-Quarter of the Loan Money, N.Y. Times (Dec. 2, 2020),
https://nyti.ms/3ijduon.
5
The second and third factors — Plaintiffs’ “commercial benefit” and “interest in the
records,” which “are closely related and often considered together,” Tax Analysts, 965 F.2d at
1093, 1095 — plainly point in the same direction. These elements assess whether Plaintiffs have
“‘sufficient private incentive to seek disclosure’ without attorney[] fees.” Davy, 550 F.3d at
1160 (quoting Tax Analysts, 965 F.2d at 1095). As relevant here, they generally tip in favor of
organizations that “aim to ferret out and make public worthwhile, previously unknown
government information.” Id.; see also Elec. Privacy Info. Ctr., 999 F. Supp. 2d at 69. Plaintiffs,
all news organizations (several of whom are non-profits), filed this suit for precisely that
common object: “gather[ing] information of potential interest to a segment of the public” and
eventually “distribut[ing] that work to an audience.” Davy, 550 F.3d at 1161–62 (quoting Tax
Analysts, 965 F.2d at 1095). That purpose, moreover, was vindicated when SBA, in executing
this Court’s Order, published the loan data on its own website, thereby giving Plaintiffs access at
the same time as the rest of the world. See ECF No. 33 (Pl. Reply) at 1. These organizations
should “be favorably treated under FOIA’s fee provision.” Davy, 550 F.3d at 1161–62; see also
Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 820 F. Supp. 2d 39, 45
(D.D.C. 2011).
With the first three conceded factors thus in the books, SBA pins its hopes entirely on the
fourth: the reasonableness of its withholding of the requested records. This final factor requires
the Court to “consider[] whether the agency’s opposition to disclosure ‘had a reasonable basis in
law,’ . . . and whether the agency ‘had not been recalcitrant in its opposition to a valid claim or
otherwise engaged in obdurate behavior.’” Davy, 550 F.3d at 1162 (first quoting Tax Analysts,
965 F.2d at 1096, then LaSalle Extension Univ. v. FTC, 627 F.2d 481, 486 (D.C. Cir. 1980)).
Significantly, the burden remains with the agency: “The question is not whether [Plaintiffs]
6
ha[ve] affirmatively shown that the agency was unreasonable, but rather whether the agency has
shown that it had any colorable or reasonable basis for not disclosing the material until after
[Plaintiffs] filed suit.” Id. at 1163.
Unlike the first three factors, this one is not so easily resolved. To be sure, this Court
decisively rejected both of the agency’s claimed justifications for withholding the records at
issue. In so doing, it found that the assumptions underlying SBA’s argument for nondisclosure
under Exemption 4 were “fundamentally flawed,” and that the “significant public interest” in the
loan data “dramatically outweigh[ed] any limited private interest in nondisclosure” under
Exemption 6. WP I, 2020 WL 6504534, at *7, 17. On the other hand, as the Court’s 40-page
summary-judgment Opinion implicitly admitted, this litigation involved “a novel application” of
both exemptions “and raise[d] serious legal questions and issues that d[id] not lend themselves to
immediate or obvious resolution.” WP II, 2020 WL 6887623, at *2. Even though the Court
ultimately rejected SBA’s position on the merits, therefore, one might fairly conclude that the
agency had at least a “colorable or reasonable basis” for its initial determination that FOIA
exempted the requested records from disclosure. Davy, 550 F.3d at 1163. “The government’s
decision to withhold information,” after all, “may have a reasonable basis in law even if the
information was ultimately not found to be exempt.” People for Ethical Treatment of Animals v.
NIH, 130 F. Supp. 3d 156, 165 (D.D.C. 2015); see also Morley v. CIA, 894 F.3d 389, 393 (D.C.
Cir. 2018) (explaining that relevant question “is not whether the agency’s legal and factual
positions were correct,” but rather whether they “were reasonable”).
Even assuming, however, that SBA has carried its burden and that this final factor lightly
tips in its favor, Plaintiffs remain entitled to fees. In the four-part “entitlement” analysis, it bears
reiterating, “[n]o one factor is dispositive.” Davy, 550 F.3d at 1159. Indeed, the fourth criterion
7
is necessarily decisive only when “the Government’s position is correct as a matter of law.” Id.
at 1162 (citation omitted). If, on the other hand, its stance is merely “founded on a colorable
basis in law, that will be weighed along with other relevant considerations in the entitlement
calculus.” Id.Here, the first three factors — most notably the substantial public benefit from the
released records — tilt heavily toward Plaintiffs, more than offsetting the fourth factor and
confirming the news organizations’ entitlement to fees. This is particularly so where the fourth
factor does not decisively land in Defendant’s column. As the D.C. Circuit itself has
emphasized, “[W]hen the first three factors favor the plaintiff, but the fourth does not, a district
court retains very broad discretion under the four-factor test about how to balance the factors and
whether to award attorney[] fees.” Morley, 894 F.3d at 397; see also Tax Analysts, 965 F.2d at
1094. Along those lines, numerous courts in this district have awarded fees in circumstances
similar to those here. See, e.g., Mattachine Soc’y of Wash. v. U.S. Dep’t of Justice, 406 F. Supp.
3d 64, 70 (D.D.C. 2019) (“Even if the fourth factor did not weigh in [plaintiff’s] favor, the Court
would still find that the other three factors are sufficient to entitle [plaintiff] to fees.”); Citizens
for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, No. 11-1021, 2014 U.S. Dist.
LEXIS 182097, at *11–12 (D.D.C. Oct. 24, 2014) (“Although [the agency’s] withholdings may
not have been unreasonable, the Court, weighing the factors, nonetheless finds that the other
three outweigh this [fourth] factor . . . .”); see also People for Ethical Treatment of Animals, 130
F. Supp. 3d at 164 (plaintiff entitled to fees where first factor was neutral, second and third
favored plaintiff, and fourth favored defendant).
8
This case comes out the same way. In keeping with Congress’s intention that FOIA’s fee
provision “encourage . . . suits that benefit the public interest,” LaSalle Extension Univ., 627
F.2d at 484, Plaintiffs are entitled to attorney fees.
B. Reasonableness of Fees
Retreating to its fallback position, SBA alternatively contends that the amount of fees
Plaintiffs seek is not reasonable and should be substantially reduced. See Def. Opp. at 8–17.
“The usual method of calculating reasonable attorney[] fees is to multiply the hours reasonably
expended in the litigation by a reasonable hourly fee, producing the ‘lodestar’ amount.” Bd. of
Trs. of Hotel & Rest. Emps. Local 25 v. JPR, Inc., 136 F.3d 794, 801 (D.C. Cir. 1998). “The
party seeking fees has the . . . burden of establishing the reasonableness of the fees requested”
and must do so for “both the number of hours and the hourly rate.” Elec. Privacy Info. Ctr. v.
Dep’t of Homeland Sec., 218 F. Supp. 3d 27, 38, 47 (D.D.C. 2016). Supporting documentation,
such as time records reflecting the work of each attorney, “must be of sufficient detail and
probative value to enable the court to determine with a high degree of certainty that such hours
were actually and reasonably expended.” Role Models Am., Inc. v. Brownlee, 353 F.3d 962,
970 (D.C. Cir. 2004) (citation omitted). Courts maintain broad discretion to modify a requested
fee award. See Conservation Force v. Jewell, 160 F. Supp. 3d 194, 203 (D.D.C. 2016) (citing
Judicial Watch, 470 F.3d at 369).
Plaintiffs seek $154,648.27 in fees (and an additional $193.65 in costs). See Pl. Mot. at
9. SBA resists the first sum, challenging both their lawyers’ requested hourly rates and number
of hours billed. See Def. Opp. at 8–17. The Court separately addresses those objections.
9
1. Rates
Whether an hourly rate is reasonable turns on: 1) “the attorney’s billing practices”; 2)
“the attorney’s skill, experience, and reputation”; and 3) “the prevailing market rates in the
relevant community.” Eley v. District of Columbia, 793 F.3d 97, 100 (D.C. Cir. 2015) (cleaned
up) (quoting Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995)).
Particularly relevant here is the third criterion. To establish the prevailing market rate, “a fee
applicant must ‘produce satisfactory evidence — in addition to the attorney’s own affidavits —
that the requested rates are in line with those prevailing in the community for similar services by
lawyers of reasonably comparable skill, experience and reputation.’” Id. at 100 (quoting Blum v.
Stenson, 465 U.S. 886, 895 n.11 (1984)).
In determining appropriate rates, courts in this district have often employed some version
of the Laffey Matrix, a schedule of hourly fees based on years of attorney experience first
developed in Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983), rev’d on other
grounds, 746 F.2d 4 (D.C. Cir. 1984). See Citizens for Responsibility & Ethics in Wash. v. U.S.
Dep’t of Justice, 142 F. Supp. 3d 1, 16 (D.D.C. 2015). Neither party here, however, relies on
that matrix; they instead advance dueling matrices from which they contend the Court should
calculate fees. Plaintiffs argue that they should be awarded fees based on what litigants call the
Legal Services Index (LSI) Matrix, while SBA maintains that the Court should look to a distinct
matrix published by the U.S. Attorney’s Office for the District of Columbia. See ECF No. 27-2
(LSI Matrix); Dep’t of Justice, USAO Attorney’s Fees Matrix — 2015-2021,
https://bit.ly/3bDZog1 (last visited Jan. 19, 2021) (USAO Matrix). While each adjusts for
inflation in different ways and reflects rates from different collections of practitioners, the fees
10
included in the LSI Matrix are the higher of the two. The Court’s first task, consequently, is to
select the appropriate matrix.
Because fee matrices are “somewhat crude,” a plaintiff generally must supplement them
with additional evidence such as “surveys to update the[m]; affidavits reciting the precise fees
that attorneys with similar qualifications have received from fee-paying clients in comparable
cases; and evidence of recent fees awarded by the courts or through settlement to attorneys with
comparable qualifications handling similar cases.” DL v. District of Columbia, 924 F.3d 585,
589 (D.C. Cir. 2019) (quoting Covington, 57 F.3d at 1109). In keeping with the well-established
principle that fee-seekers bear the “burden of justifying their requested rates,” Salazar ex rel.
Salazar v. District of Columbia, 809 F.3d 58, 64 (D.C. Cir. 2015), the D.C. Circuit has reversed
an attorney-fee award calculated from the LSI Matrix when the plaintiff’s submissions did not
contain “evidence that her ‘requested rates [we]re in line with those prevailing in the community
for similar services,’ — i.e., [the] [Individuals with Disabilities Education Act] litigation” at
issue. Eley, 793 F.3d at 104 (quoting Covington, 57 F.3d at 1109); id. at 105 (holding that
district court improperly “reliev[ed] [plaintiff] of her burden”); see also Elec. Privacy Info. Ctr.,
218 F. Supp. 3d at 48 (explaining that “the burden is on the party seeking attorney[] fees to show
that the LSI Laffey Matrix should be used”) (citing Salazar, 809 F.3d at 61).
A similar failure of proof rears its head here, as Plaintiffs have made little effort to
establish that their preferred LSI rates are “in line with those prevailing in the community” for
FOIA litigation. Eley, 793 F.3d at 104 (quoting Covington, 57 F.3d at 1109). For instance, they
decline to explain — such as through exhibits or affidavits of the sort that typically accompany
motions for attorney fees — why the methodology underlying the LSI Matrix renders it
appropriate for this particular case. See, e.g., id. at 103–04. More glaringly, they offer no
11
evidence whatsoever — such as surveys or billing-rate tables — of rates charged and received by
lawyers of comparable skill and experience in the D.C. market generally, let alone when
handling FOIA cases. See, e.g., CREW, 142 F. Supp. 3d at 17–18. Indeed, their declarations do
not even assert that their requested figures are in line with prevailing community rates for similar
litigation.
Other courts in this district, when confronted with similarly insufficient showings in
FOIA cases, have rebuffed attempts by attorney-fee seekers to rely on the LSI Matrix and instead
have based awards on the lower USAO Matrix rates. One did so where there was an “absence of
evidence from [the plaintiff] satisfying its burden to establish that the LSI Matrix represent[ed]
the prevailing rate in the relevant market.” Id. at 22. (That plaintiff, it bears noting, presented
more evidence in support of applying LSI rates than the news organizations do here. Id. at 17–
18.) Two other decisions have recently come out the same way, with the latest settling on USAO
rates because the plaintiff’s “evidence . . . [was] insufficient to establish that the market rate for
FOIA practitioners in Washington, D.C.[,] comports with the LSI Matrix.” Urban Air Initiative
v. EPA, 442 F. Supp. 3d 301, 323 (D.D.C. 2020) (criticizing plaintiff’s affidavits for “not
recit[ing] ‘precise fees that attorneys with similar qualifications have received’ in other
comparable cases”) (quoting DL, 924 F.3d at 589); Barton v. U.S. Geological Surv., No. 17-
1188, 2019 WL 4750195, at *6–7 (D.D.C. Sept. 29, 2019) (similar). So too here. In light of
Plaintiffs’ failure to justify the reasonableness of the LSI Matrix rates for the present litigation,
and since SBA consents to application of the USAO Matrix, the Court will base the fee award on
the latter.
In their Reply brief, Plaintiffs raise several belated arguments in favor of their desired
LSI Matrix. None remedies the aforementioned defects. The news organizations first point to
12
recent FOIA litigation involving largely the same attorneys, where the Government consented to
a fee calculation using the LSI rates (modified to include Charles D. Tobin’s lower, standard
hourly rate). See Pl. Reply at 8 (citing WP Co. LLC v. U.S. Dep’t of State, No. 20-1082, ECF
No. 16 at 10 (D.D.C. Nov. 13, 2020)). Contrary to Plaintiffs’ implication, however, the
Government’s prior position in a different proceeding — one where fees were never even
awarded, and where the State Department, not SBA, was the defendant — does not estop it from
challenging the news organizations’ distinct failure of proof here. Although Plaintiffs cite a case
that deemed a similar past agency concession “significant,” that court applied the fee-seeker’s
desired rates primarily because it had submitted ample evidence in support of their
reasonableness — evidence that is absent here. Elec. Privacy Info. Ctr., 218 F. Supp. 3d at 49
(explaining that plaintiff met burden through affidavit from LSI Matrix’s founder, as well as
billing-rate tables and surveys). Such was the case in DL, too; the litigants there demonstrated
by way of evidence of a type not seen here that their preferred LSI rates were the prevailing
community market rates for the legal services provided in an IDEA suit. See 924 F.3d at 590–91
(determining that plaintiffs satisfied burden through “a pile of evidence” that included affidavits
from economists, rate surveys, and fee awards in other cases).
Additional cases cited by Plaintiffs offer little succor. One compared the propriety of LSI
and USAO rates for a fee award in an “extraordinary” sex-discrimination class-action settlement
that spanned 40 years and staffed over 120 individuals across seven firms — circumstances far
afield from those present here. Hartman v. Pompeo, No. 77-2019, 2020 U.S. Dist. LEXIS
204894, at *2 (D.D.C. Nov. 3, 2020). Another — from this Court — relied heavily on the very
district-court decision the D.C. Circuit eventually reversed in Eley, given the plaintiff’s
submission of insufficient evidence to justify the LSI rates. See CREW, 2014 U.S. Dist. LEXIS
13182097, at *22–23 (citing Eley v. District of Columbia, 999 F. Supp. 2d 137 (D.D.C. 2013),
vacated and remanded, 793 F.3d 97).
Finally, Plaintiffs point to their lawyers’ standard hourly billing rates — which, for all
attorneys save Tobin, are slightly higher than the corresponding LSI Matrix figures — as
evidence in support of applying their requested LSI rates (and Tobin’s lower hourly rate). See
Pl. Reply at 8–9 (“[T]here is no better indication of what the market will bear than what the
lawyer in fact charges for his or her services and what the clients are willing to pay.”) (quoting
Mattachine Soc’y, 406 F. Supp. 3d at 70); ECF No. 27-1 (Declaration of Charles D. Tobin), ¶ 12
(listing firm’s standard hourly rates). These standard hourly fees, however, cannot by
themselves establish that Plaintiffs’ “requested rates are in line with those prevailing in the
community for similar services by lawyers of reasonably comparable skill, experience and
reputation.” Eley, 793 F.3d at 100 (quoting Blum, 465 U.S. at 895 n.11). Even if they could,
their attorneys’ submissions appear to convey only amounts billed, not payments received, and it
is often the case that standard hourly rates overstate the fees clients actually pay for services.
See Cox v. District of Columbia, 264 F. Supp. 3d 131, 140–41 (D.D.C. 2017) (deeming
plaintiffs’ submissions unhelpful for determining prevailing community rate because they “do
not provide the specific rates that [attorneys] typically receive,” but rather “only state how much
they charge”); see also Eley, 793 F.3d at 101. Nor, as previously discussed, do Plaintiffs offer
any evidence whatsoever as to the billing practices of similarly situated attorneys handling
comparable litigation, let alone the fees they actually collect. Without more, the evidence before
the Court does not establish the reasonableness of Plaintiffs’ requested rates.
To take a step back: Courts in this district have ruled in various ways when determining
the precise rates used to calculate fee awards in individual cases. That is no surprise, as options
14
commonly range from the LSI Matrix to the USAO Matrix to some other measure entirely, and
parties often “vigorously contest[]” which to apply. Elec. Privacy Info. Ctr., 218 F. Supp. 3d at
48. To be sure, in many federal cases involving complex legal issues, the LSI Matrix may offer
a better representation of the value of the legal services provided. It is clear, however, that the
burden lies with fee-seekers to demonstrate — through specific evidence — that their requested
rates accord with those prevailing in the community for similar services from comparable
lawyers. As Plaintiffs have not discharged that burden here, the Court will base its award on
rates found within the USAO Matrix, thus yielding a lodestar amount of $129,789.07 in attorney
fees, along with $193.65 in costs.
Name Title Years of USAO Hours Billed Fees
Experience Matrix Rate
Charles D. Tobin Partner 31+ years $665 52.47 $34,892.55
Maxwell S. Associate 6 years $388 205.18 $79,609.84
Mishkin
Kristel Tupja Associate 3 years $369 22.52 $8,309.88
Scott E. Bailey Paralegal N/A $180 28.51 $5,131.80
Ryan R. Relyea Paralegal N/A $180 10.25 $1,845.00
TOTAL $129,789.07
See Pl. Mot. at 8; USAO Matrix at 1.
2. Hours
With a new lodestar figure in tow, the Court turns from rates to time. Or, more
specifically, to SBA’s objections to Plaintiffs’ billing entries, several types of which the agency
terms “duplicative or excessive.” Def. Opp. at 12. In so doing, the Court is mindful that “‘trial
courts need not, and indeed should not, become green-eyeshade accountants’ in examining fee
requests since ‘[t]he essential goal . . . is to do rough justice, not to achieve auditing perfection.’”
Elec. Privacy Info. Ctr. v. Nat’l Sec. Agency, 87 F. Supp. 3d 223, 235 (D.D.C. 2015) (first
alteration in original) (quoting Fox v. Vice, 563 U.S. 826, 838 (2011)). “The Court therefore
15
need not — and should not — scrutinize every billing entry.” Am. Oversight v. U.S. Dep’t of
Justice, 375 F. Supp. 3d 50, 70 (D.D.C. 2019). It must, however, “verify that the attorneys did
not waste or otherwise unnecessarily spend time on the matter and exercised good billing
judgment.” Elec. Privacy Info. Ctr., 811 F. Supp. 2d at 237 (cleaned up) (citations omitted). The
Court, accordingly, will address the asserted excesses in Plaintiffs’ billing entries in broad
strokes, finding two of SBA’s challenges warranted but the remainder hollow.
SBA gets off on the right foot with its charge that the hours used in Plaintiffs’ lodestar
calculation overstate the time their attorneys actually spent on the litigation. See Def. Opp. at
13–14. As Plaintiffs’ counsel now admits on Reply, while the news organizations were billed
correct dollar amounts, uneven partitioning of fees among clients in May and June 2020 caused
the firm’s billing software to mistakenly exaggerate the time spent on particular tasks. See Pl.
Reply at 11; ECF No. 33-1 (Second Declaration of Charles D. Tobin), ¶¶ 5–7. That error led to
an inflated number of reported hours billed for each lawyer, which in turn “erroneously increased
Plaintiffs’ lodestar calculation.” Pl. Reply at 11. Although the lack of internal divisions of time
in many submitted billing entries prevents the Court from itself determining precisely by how
much that figure erred, Plaintiffs report that the improperly included hours accounted for
approximately 5.17% of their requested $154,648.27 in fees. See Tobin 2d Decl., ¶ 8. Having
no reason to doubt that stated percentage, the Court will apply it to the new lodestar amount
calculated using the USAO Matrix, thus leading to a deduction of $6,710.10 for a freshly revised
award of $123,078.97.
Moving right along, the Court also agrees with SBA that Plaintiffs have overstated their
hours — if only barely — for time spent reviewing information released by the agency during
the litigation. See Def. Opp. at 15–16. While FOIA litigants “[g]enerally . . . should not recover
16
fees for time spent reviewing responsive documents,” courts usually grant “some fees where
document review is necessary to evaluate the sufficiency of production or to challenge
withholdings.” Urban Air Initiative, 442 F. Supp. 3d at 324–25; see also Elec. Privacy Info. Ctr.
v. FBI, 72 F. Supp. 3d 338, 351 (D.D.C. 2014) (finding it “reasonable” that “counsel reviewed
the . . . documents the [agency] produced during this case to ensure the agency’s compliance
with FOIA”). Here, two months after Plaintiffs filed their Complaint, SBA released loan-level
data for the millions of PPP loans made to that point. WP I, 2020 WL 6504534, at *3. As would
have become apparent immediately upon opening one of the published spreadsheets, however,
the release did not contain certain categories of Plaintiffs’ requested information — namely, no
one loan had both its dollar amount and the borrower’s name and address. Id. While some
review was no doubt necessary to determine how to proceed, the Court doubts that Plaintiffs’
lawyers needed more than half an hour each to examine the agency’s publication and readily
determine what was missing. At the risk of being accused of excessive flyspecking, then, it will
shave 0.4 hours from Tobin’s billings, as well as 1.7 hours from Mishkin’s, thus reducing the
attorney-fee award to $122,153.37. See ECF No. 27-3 (Billing Sheets) at 169–70 (see entries
dated 7/6/20, 7/7/20, and 7/24/20).
It is here that SBA’s luck runs out, as its remaining objections fall on deaf ears. Arguing
that Plaintiffs seek “excessive fees” for time spent drafting their “rather discursive” Complaint
and Amended Complaint, the agency asserts that FOIA pleadings are “usually very simple” and
need only “allege that the FOIA request was submitted, and that the requirement of exhaustion
does not apply.” Def. Opp. at 14. Even putting that generalization to the side, however, this was
not a “usual[]” FOIA case. Id. Rather, it involved eleven Plaintiffs and dozens of individual
FOIA requests, which were tendered at different times and received varying treatment from
17
SBA. See Pl. Reply at 12. Given Plaintiffs’ challenge to SBA’s denials of expedited processing,
moreover, they appropriately endeavored to plead detailed facts showing, as required by statute,
a “compelling need” for the information and an “urgency to inform the public.” 5 U.S.C.
§ 552(a)(6)(E)(v); see ECF No. 1 (Complaint), ¶¶ 12–33; ECF No. 5 (Amended Complaint),
¶¶ 18–40. All of that made for a necessarily complex pair of submissions, far afield from the
agency’s two cited cases in which courts trimmed fee requests for excessive time spent drafting
relatively cursory and uncomplicated FOIA complaints of seven and nine pages. See Def. Opp.
at 14–15 (citing Elec. Privacy Info. Ctr. v. FBI, 80 F. Supp. 3d 149, 158 (D.D.C. 2015), and
Elec. Privacy Info. Ctr., 811 F. Supp. 2d at 238). The Court is likewise mindful of the reality
that time spent on research and writing at the complaint stage may well be “time saved” on such
tasks at summary judgment. See Pl. Reply at 13.
SBA’s final series of objections can be disposed of with greater dispatch. The agency
takes issue with a handful of time entries listing assertedly “vague” tasks such as “coordination,”
along with several relatively minor instances of block billing. See Def. Opp. at 16. It likewise
contends that Plaintiffs seek excessive fees for inadequately described internal conferences and
discussions. Id. The Court, however, finds that the “vast majority” of billing entries are
“appropriately detailed and allow [it] to discern ‘with a high degree of certainty’ the work for
which [Plaintiffs are] requesting compensation.” Am. Immigr. Council v. U.S. Dep’t of
Homeland Sec., 82 F. Supp. 3d 396, 412 (D.D.C. 2015) (quoting Role Models, 353 F.3d at 970);
see also Coffey v. Bureau of Land Mgmt., 316 F. Supp. 3d 168, 171 (D.D.C. 2018) (rejecting
challenge to block billing where relevant entries “deal[t] with minimal time periods . . . and
typically conflate[d] but two tasks”); Elec. Privacy Info. Ctr., 999 F. Supp. 2d at 74 (finding that
lawyers appropriately billed for internal conferences). Even if a few entries could perhaps have
18
benefited from greater detail, the Court “declines . . . to engage in the kind of ‘nitpicking’ invited
by” SBA’s objections. Am. Immigr. Council, 82 F. Supp. 3d at 411.
Finally, contrary to the agency’s halfhearted insistence, see Def. Opp. at 16, Plaintiffs
spent an appropriate amount of time reviewing materials from two other cases: one before this
Court raising identical legal issues (No. 20-1614), and another in the Northern District of
California seeking release of the same PPP data (No. 20-4619). This Court consolidated the
former suit with the present one for summary-judgment purposes, and although the NDCA action
was ultimately stayed pending resolution of Plaintiffs’ case, it easily could have been decided
beforehand. See Am. Small Bus. League v. Small Bus. Admin., No. 20-4619, ECF No. 35 (N.D.
Cal. Oct. 26, 2020) (order staying case). Indeed, as Plaintiffs point out, it likely “would have
been unreasonable” for their lawyers not to have monitored and consulted with counsel in those
related cases as their own litigation proceeded. See Pl. Reply at 15. The minimal time they
spent to that effect, accordingly, is entirely appropriate. See Elec. Privacy Info. Ctr., 72 F. Supp.
3d at 351 (“The proper statutory inquiry . . . is whether the fees requested were reasonably
incurred in litigating the case.”). Last, as the Government offers no challenge to the costs
Plaintiffs seek, the Court will award those.
IV. Conclusion
In sum, Plaintiffs sought a combined $154,841.92 in attorney fees and costs, and they
will receive $122,347.02. A separate Order so stating shall issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: January 21, 2021
19