American Small Business League v. Small Business Administration

Background

American Small Business League (ASBL) submitted Freedom of Information Act (FOIA) requests to the Small Business Administration (SBA) concerning advisory committees, committee members, Paycheck Protection Program loan data, and communications among the White House, the SBA, and Congress about additional funding for the pandemic response. ASBL filed this action seeking declaratory and injunctive relief. During the case, the SBA produced various records, the parties narrowed some requests, and the court entered orders setting production schedules. On February 24, 2023, the parties reported that the merits of the dispute were concluded.

ASBL then sought $514,392.50 in attorney’s fees and $2,691.40 in costs. Under FOIA, a requester may receive fees if it “substantially prevailed,” meaning it obtained relief through a court order or through a qualifying voluntary change in the agency’s position. The court separately considered whether ASBL was eligible for fees and whether it was entitled to an award after weighing the public benefit, ASBL’s private or commercial interest, and whether the SBA had a reasonable legal basis for withholding or delaying the records.

Eligibility for Fees

The court found ASBL eligible for fees connected with the narrowed initial request for non-RRFB documents because of the court’s production-rate order. However, ASBL was not eligible for fees based solely on the Washington Post litigation’s order requiring production of PPP loan data. The court reasoned that litigation in one case does not cause disclosure in another case.

The court did find ASBL eligible for fees connected with the SBA’s later production of supplemental PPP loan data. The SBA had acknowledged that ASBL’s request prompted it to look for additional information, and at least some of the data produced was responsive to ASBL’s request.

The court also found ASBL eligible for fees connected with the interbranch-communications production because the court had issued a scheduling order. The court accepted that many resulting emails were outside the request’s scope but concluded that the searches were sufficiently connected to ASBL’s request for communications among the SBA, the White House, and Congress.

Entitlement to Fees

The court found that the public-benefit factor favored fees for the non-RRFB documents, the supplemental PPP data, and the interbranch communications because ASBL sought and received previously non-public records concerning a highly publicized spending program.

The court found that ASBL had little commercial interest in most of the records. That factor favored fees for the supplemental PPP data, the interbranch communications, and the portion of the non-RRFB records unrelated to ASBL. The court was not persuaded that records concerning ASBL and its president were sufficiently public-interest oriented to support fees.

The court found that the SBA had a reasonable basis for delaying production of the non-RRFB documents because the initial request was broad and generated a large number of potentially responsive documents. That factor therefore weighed against fees for those records. The factor favored fees for the supplemental PPP data. For the interbranch communications, it favored fees only for the Health Care Enhancement Act search, not for the Specific PPP Recipients search, because ASBL did not explain why the latter search was expected to produce records responsive to its request.

The court concluded that ASBL was entitled to fees for obtaining the supplemental PPP loan data and the interbranch communications related to the Health Care Enhancement Act search. ASBL was not entitled to fees for the non-RRFB documents or the Specific PPP Recipients search.

Fee Calculation

The court awarded $14,890 for work performed before the lawsuit was filed, rather than the $44,668 requested, because only about one-third of the described work was recoverable under FOIA. The court awarded $50,293 for work from July through October 2020, representing one-third of the $150,880 requested; $76,134 for work from November 2020 through December 2021, representing one-half of the $152,268 requested; $53,399 for work from January through December 2022, representing one-half of the $106,798 requested; and $83,047 for work after January 2023.

After adding those amounts, the court subtracted ASBL’s voluntary reductions of $23,267.50. The court then applied a 20-percent reduction to the hours supported by block-billed records, which combined tasks without identifying the time spent on each task. The resulting attorney-fee award was $203,596.40. The court also awarded the requested $2,691.40 in costs.

Disposition

Judge Maxine M. Chesney ordered that ASBL’s motion for attorney’s fees and costs was granted in part and denied in part. The total award was $206,287.80, consisting of $203,596.40 in attorney’s fees and $2,691.40 in costs.