PAUL D. GUTIERREZ, State Bar No. 66059 1 ROBERT E. BELSHAW, State Bar No. 142028 2 GUTIERREZ ▪ RUIZ LLP 601 Montgomery Street, Suite 325 3 San Francisco, California 94111 Telephone: (415) 398-9000 4 Facsimile: (415) 398-5800 5 Attorneys for Plaintiff 6 American Small Business League 7 UNITED STATES DISTRICT COURT 8 9 NORTHERN DISTRICT OF CALIFORNIA 10 1 p

1 11 l AMERICAN SMALL BUSINESS LEAGUE CASE NO. 1 5 l 4 2

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v. y , r z O e C e m 14 FREEDOM OF INFORMATION ACT S o r I g t C r

n UNITED STATES SMALL BUSINESS (5 U.S.C. 552 (a)(3)(A)) N o e A i M

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t ADMINISTRATION 1 F

0 u N 6 A S G 16 Defendants. 17 ______18 COMPLAINT FOR INJUNCTIVE RELIEF 19 1. This is an action under the Freedom of Information Act, 5 U.S.C. § 552, 20 21 (“FOIA”) for injunctive and other appropriate relief to compel the disclosure and release of

22 documents improperly withheld from Plaintiff by the Small Business Administration.

23 JURISDICTION AND VENUE 24 2. This court has both subject matter jurisdiction over this action and personal 25 jurisdiction over the parties pursuant to 5 U.S.C. § 552(a)(4)(B). This court also has jurisdiction 26 over this action pursuant to 28 U.S.C. § 1331. Venue lies in this district under 5 U.S.C. § 552(a) 27 28 (4)(B).

- 1 - COMPLAINT FOR INJUNCTIVE RELIEF 1 THE PARTIES 2 3. Plaintiff is the American Small Business League (“ASBL”), an organization 3 incorporated in California which has its principal place of business in Sonoma County, 4 California. ASBL is a national organization established to research and focus public attention 5 on emerging small business issues and to otherwise promote the interests of small businesses. 6 ASBL’s activities include the review of evolving federal and state government policy and 7 procedures to determine possible impact on small business. Prior to approximately September 1, 8 2004, ASBL was known as the Micro Computer Industry Supplier Association (“MISA”). 9 (Hereinafter, ASBL and MISA are referred to collectively as “Plaintiff”.) 10 4. Defendant U.S. Small Business Administration (hereinafter “SBA”) is an 1 p

1 11 “agency” within the meaning of 5 U.S.C. § 552 (f). l 1 5 l 4 2

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t 13 PLAINTIFF’S FOIA REQUEST AND THE SBA’S RESPONSE A S

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y , r z O e C e m 14 5. Pursuant to the Small Business Act, certain government contracts are required by S o r I g t C r n N o e A i M

R 15 law to be awarded to small businesses. When a small business unsuccessfully bids on such a t 1 F

0 u N 6 A S G 16 contract, and the contact is instead awarded to a business which an unsuccessful bidder believes 17 is not a qualifying small business, a “size protest” can be lodged. On or about June 3, 2004, 18 pursuant to the FOIA, Plaintiff requested copies of any and all records pertaining to the SBA’s 19 responses to such size protests. A true and correct copy of the written letter is attached hereto as

20 Exhibit A. 21 6. Following discussions with the SBA, on August 23, 2004, Plaintiff agreed to 22 narrow its request to include only documents and correspondence communicating the dismissal 23 of size protests during the period from January 1, 2003 to July 31, 2004. A true and correct 24 copy of the letter is attached hereto as Exhibit B. 25 7. On or about September 22, 2004, the SBA responded by producing 26 approximately118 pieces of correspondence. An examination revealed that the SBA had 27 produced only documents regarding the dismissal of size protests originating at the San 28

- 2 - COMPLAINT FOR INJUNCTIVE RELIEF 1 Francisco SBA office rather than a full and complete production of all such protests lodged in 2 each SBA field office as requested by Plaintiff and required by the FOIA. 3 8. On or about November 9, 2004, Plaintiff wrote to the SBA, explaining that the 4 SBA’s production was incomplete and that Plaintiff’s FOIA request clearly included and 5 encompassed dismissals of size protests originating at all SBA offices throughout the country. 6 A true and correct copy of the letter is attached hereto as Exhibit C. 7 9. On or about November 30, 2004, the SBA acknowledged the intended scope of 8 the Plaintiff’s request to include all correspondence reflecting dismissals of size protests 9 originating at any and all SBA offices throughout the country, and agreed to produce the 10 remaining responsive documents on receipt of $26.80 to cover costs associated with production 1 p

1 11 of the documents. A true and correct copy of the letter is attached hereto as Exhibit D. l 1 5 l 4 2

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A z e I t i i 12 10. On or about February 1, 2005, Plaintiff tendered a check in the amount of $26.80 N u R u S

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t 13 for the search and reproduction fees requested. A true and correct copy of the letter A S

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y , r z O e C e m 14 accompanying the check is attached hereto as Exhibit E. The check was deposited and paid, but S o r I g t C r n N o e A i M

R 15 no additional documents were received. t 1 F

0 u N 6 A S G 16 11. On July 6, 2005, Plaintiff sent a letter to the SBA reiterating its request for 17 documents. A true and correct copy of the written letter is attached hereto as Exhibit F. The 18 SBA responded by e-mail on July 12, asking for a new copy of the request to forward to the five 19 remaining SBA offices. A true and correct copy of the e-mail is attached hereto as Exhibit G.

20 On July 14, 2005 Plaintiff provided additional copies of the request. There was no response 21 from the SBA. 22 12. On or about September 28, 2005, more than a year after Plaintiff’s original 23 request, Plaintiff sent an e-mail to SBA representative Lisa Babcock to follow up on the request 24 for documents. In response to Plaintiff’s e-mail, Ms. Babcock immediately asked another SBA 25 employee to continue working on the response to Plaintiff’s request. A true and correct copy of 26 the e-mail and response is attached hereto as Exhibit H. 27 28

- 3 - COMPLAINT FOR INJUNCTIVE RELIEF 1 13. As of November 21, 2005, Plaintiff has still not received a complete response to 2 its FOIA request. 3 14 Plaintiff has a right of access to the correspondence pursuant to 5 U.S.C. § 552. 4 (a)(3), and there is no legal basis for the SBA’s denial of such access. Plaintiff alleges that the 5 correspondence contains detailed factual information regarding the SBA’s denial of size 6 protests, which is not subject to any exemption under the Freedom of Information Act, and must 7 be disclosed. 8 9 CAUSE OF ACTION 10 Violation of the Freedom of Information Act 1 p

1 11 for Wrongful Withholding of Agency Records l 1 5 l 4 2

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A z e I t i i 12 15. The SBA has wrongfully withheld documents requested by Plaintiff. N u R u S

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t 13 16. As there was no claim of exemption by the SBA applicable to the requested A S

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y , r z O e C e m 14 documents, and no adverse decision for Plaintiff to appeal, Plaintiff has exhausted the applicable S o r I g t C r n N o e A i M

R 15 administrative remedies with respect to the SBA’s wrongful withholding of the requested t 1 F

0 u N 6 A S G 16 documents. 17 17. Plaintiff is entitled to injunctive relief and an order from this Court compelling 18 the immediate release and disclosure of the requested documents. 19

20 PRAYER FOR RELIEF 21 WHEREFORE, Plaintiff prays that this Court: 22 A. Issue an order compelling the SBA to immediately disclose the correspondence in 23 its entirety; 24 B. Provide for expeditious proceedings in this action; 25 C. Award plaintiff its costs and reasonable attorneys’ fees incurred in this action; 26 and 27 D. Grant such other relief as the Court may deem just and proper. 28

- 4 - COMPLAINT FOR INJUNCTIVE RELIEF 1 2 Dated: November , 2005 GUTIERREZ ▪ RUIZ LLP 3 By: ______4 ROBERT E. BELSHAW Attorneys for Plaintiff 5 6 7 8 9 10 1 p

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