WP Co. v. U.S. Small Bus. Admin.

514 F.Supp.3d 267

WP COMPANY LLC d/b/a the Washington Post, et al., Plaintiffs,

v.U.S. SMALL BUSINESS ADMINISTRATION, Defendant.

Civil Action No. 20-1240 (JEB)

United States District Court, District of Columbia.

Signed January 21, 2021

Charles D. Tobin, Ballard Spahr LLP, Washington, DC, for Plaintiffs.

Indraneel Sur, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

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. 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. 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.sw.library.ntpu.edu.tw:8443/38RJtsR (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).

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.

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.

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...