Court filing

Memorandum Opinion — Concert Investor v. SBA

Filed March 13, 2026 in Concert Investor v. SBA; one of 3 filings from this case.

Record facts

Court	U.S. District Court for the District of Columbia
Filed	2026-03-13

U.S. District Court for the District of Columbia · No. 1:21-cv-03150-CJN · Doc. 130 · 2026-03-13 · Docket on CourtListener

Full text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CONCERT INVESTOR, LLC,
Plaintiff,
v.
Civil Action No. 1:21-cv-03150 (CJN)
SMALL BUSINESS ADMINISTRATION,
et al.,
Defendants.

MEMORANDUM OPINION
Several years ago, Concert Investor applied for and was denied an award from the
Shuttered Venue Operators Grant (SVOG) program, a coronavirus relief program designed to
provide financial assistance to performing arts businesses. After litigation here and a post-appeal
remand to the Small Business Administration, Concert Investor argues that the agency’s most
recent denial of its application is unlawful. The government defends that denial but also argues
that the Court lacks subject-matter jurisdiction. For the reasons that follow, the Court concludes
that it has jurisdiction, vacates the SBA’s denial of Concert Investor’s application, and remands to
the agency for further proceedings consistent with this opinion.
I.
Background
To provide assistance to performing arts businesses that suffered financial losses during
the COVID-19 pandemic, Congress established the SVOG program through the Economic Aid to
Hard-Hit Small Business, Nonprofits, and Venues Act. Pub. L. No. 116-260, § 324, 134 Stat.
1182, 2022 (2020) (codified at 15 U.S.C. § 9009a). A “live performing arts organization
operator”—that is, an entity that, “as a principal business activity, organizes, promotes, produces,
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manages, or hosts live concerts, comedy shows, theatrical productions, or other events by
performing artists”—is eligible for SVOG funds if it meets several requirements. 15 U.S.C.
§§ 9009a(a)(1)(A), 9009a(a)(3)(A)(i)(I). Among other things, the entity must have been fully
operational on February 29, 2020, and have experienced a decrease of at least 25 percent in gross
earned revenue in any quarter in 2020 in comparison to the same quarter a year earlier. Id.
§ 9009a(a)(1)(A)(i).
Concert Investor, a Tennessee-based company that describes itself as “specializ[ing] in the
custom creation, design, management and production of live concert tours,” ECF 109-2 at 3,
applied for nearly $5 million under the SVOG program, AR1–2. Its initial application identified
itself as a “Theatrical producer.” AR1. But after the SBA denied that application, Concert Investor
shifted to contending in its administrative appeal that it was a “Live Performing Arts Organization
Operator,” AR46–47. The SBA nonetheless rejected the appeal. AR23.
Concert Investor thereafter filed this suit. ECF 1. The SBA then rescinded its denial and
reconsidered Concert Investor’s application. AR1131. After that review, the SBA once again
concluded that Concert Investor was ineligible for relief. Id. In particular, the agency rejected
Concert Investor’s argument that it was a “producer,” instead finding that it was a mere “service
provider for lighting and sound.” AR1133.
After the parties briefed the merits, the Court denied summary judgment to Concert
Investor and granted summary judgment to the government. Concert Inv., LLC v. SBA, 616 F.
Supp. 3d 25, 37 (D.D.C. 2022). It concluded that the term “‘produces’ . . . connot[es] ultimate
control over all aspects of a show,” id. at 30–31, and that the SBA’s application of this definition
to deny Concert Investor’s application was not arbitrary and capricious based on the evidence in
the record, id. at 32–37.
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Concert Investor appealed and the Court of Appeals vacated and remanded. Concert Inv.,
LLC v. SBA, 100 F.4th 215, 223 (D.C. Cir. 2024). It held that “[t]he SBA’s reading of the Act is
inconsistent with the statutory language” given that “[i]f an entity also had to organize, promote,
manage, or host a concert in order to produce it, then any entity that met the definition of ‘produces’
would simultaneously meet another basis for eligibility—rendering ‘produces’ superfluous.” Id.
at 221–22. After considering evidence of “how the industry defines a producer,” the Court
explained that “[a]n appropriate definition must . . . capture the significant financial, creative, and
managerial role that live event producers play from start to finish.” Id. at 222. The Court of
Appeals further noted that “[b]ecause the SBA defined ‘produces’ too narrowly, it also failed to
consider relevant record evidence supporting Concert Investor’s eligibility for a Grant.” Id. at
222–23.
In response to that decision, the SBA sua sponte rescinded its prior denial, and after another
round of review, once again denied Concert Investor’s application. AR1119. Refining its earlier
definition, the SBA determined that “to ‘produce’ a live event, an entity must demonstrate primary
responsibility for the creative, financial and managerial work required throughout all stages of the
live event.” AR1121. It concluded that Concert Investor “has not demonstrated it has the primary
responsibility for the creative, financial, and managerial aspects of the events on which it works
required to be considered to ‘produce’ the events on which it works.” Id. Instead, “[b]ased on the
materials submitted, [the] SBA . . . consider[ed] Twenty-One Pilots,” one of Concert Investor’s
primary clients, “to be the ‘producer’ of the concerts at issue in this matter.” AR1124.
Concert Investor again moves for summary judgment. ECF 94. It asks the Court to “vacate
the SBA’s denial and enter an order directing the agency to approve Concert Investor’s application
and disburse the critical funding without further delay.” Id. at 2. The government defends the
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SBA’s denial based on the “primary responsibility” definition of “produces,” ECF 112, but also
contends that the Court lacks subject-matter jurisdiction, ECF 116.
II.
Jurisdiction
“At every stage in litigation, a federal court must determine that is has jurisdiction to hear
the case before it.” Vogel v. Go Daddy Grp., Inc., 266 F. Supp. 3d 234, 237 (D.D.C. 2017); see
also Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”). “Although sovereign immunity bars suits against
the United States absent an express waiver, the APA supplies a general waiver for suits challenging
final agency action.” Steele v. United States, 144 F.4th 316, 322 (D.C. Cir. 2025) (citation
omitted). In particular, the APA provides that “[a]n action in a court of the United States seeking
relief other than money damages and stating a claim that an agency . . . acted or failed to act . . .
shall not be dismissed nor relief therein be denied on the ground that it is against the United States.”
5 U.S.C. § 702 (emphasis added). But this waiver does not “confer[] authority to grant relief if
any other statute that grants consent to suit expressly or impliedly forbids the relief which is
sought.” Id.
The government argues that the APA’s waiver of sovereign immunity does not apply here
because Concert Investor seeks money damages and the Tucker Act impliedly forbids the
requested relief. ECF 116-1 at 2–14. Concert Investor responds that this case implicates the
APA’s waiver of sovereign immunity because its primary requested relief (vacatur of the denial of
its application) does not constitute money damages and its claims are not contractual in nature as
required to implicate the Tucker Act. ECF 121 at 2–12.
1.
The government’s first argument focuses on the APA’s express reservation of
sovereign immunity for lawsuits seeking “money damages.” 5 U.S.C. § 702. The government
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contends that what Concert Investor actually seeks, regardless of the prayer for relief’s injunctive
framing, is an order compelling the SBA to pay a specific sum of money—in other words, money
damages. ECF 116-1 at 3–5. Precedent, however, counsels against a reading of “money damages”
that would include almost any suit that could ultimately result in the plaintiff obtaining a monetary
payout.
Most on point, the Supreme Court held in Bowen v. Massachusetts that the APA’s waiver
of sovereign immunity encompassed a suit challenging an agency’s order denying a state
reimbursement for certain Medicaid expenditures. 487 U.S. 879, 893 (1988). Emphasizing “the
distinction between an action at law for damages—which are intended to provide a victim with
monetary compensation for an injury to his person, property, or reputation—and an equitable
action for specific relief—which may include . . . ‘the recovery of specific property or monies . . .
or [an] injunction,’” the Court made clear that “[t]he fact that a judicial remedy may require one
party to pay money to another is not a sufficient reason to characterize the relief as ‘money
damages.’” Id. (quoting Larson v. Domestic & Foreign Com. Corp., 337 U.S. 682, 688 (1949)).
Because the plaintiff sought “funds to which a statute allegedly entitles it, rather than money in
compensation for the losses, whatever they may be, that [the plaintiff] will suffer or has suffered
by virtue of the withholding of those funds,” the Court concluded that the APA’s waiver of
sovereign immunity applied. Id. at 895 (quoting Md. Dep’t of Hum. Res. v. Dep’t of Health &
Hum. Servs., 763 F.2d 1441, 1446 (D.C. Cir. 1985)). Applying this distinction “between specific
relief and compensatory, or substitute, relief,” Dep’t of Army v. Blue Fox, Inc., 525 U.S. 255, 261
(1999), the Court of Appeals has accordingly held that “[w]here a plaintiff seeks an award of funds
to which it claims entitlement under a statute, the plaintiff seeks specific relief, not damages,” see,
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e.g., Am.’s Cmty. Bankers v. FDIC, 200 F.3d 822, 829 (D.C. Cir. 2000); Esch v. Yeutter, 876 F.2d
976, 984 (D.C. Cir. 1989).
The government relies heavily on a single line from the Supreme Court’s later decision in
Great-West Life & Annuity Inc. Co. v. Knudson: “Almost invariably . . . suits seeking (whether by
judgment, injunction, or declaration) to compel the defendant to pay a sum of money to the plaintiff
are suits for ‘money damages,’ as that phrase has traditionally been applied, since they seek no
more than compensation for loss resulting from the defendant’s breach of legal duty.” 534 U.S.
204, 210 (2002) (quoting Bowen, 487 U.S. at 918–919 (Scalia, J., dissenting)). But Knudson did
not displace the longstanding distinction between monetary compensation and specific relief for
purposes of sovereign immunity under the APA. Indeed, the decision did not involve the APA’s
waiver of sovereign immunity at all, but instead concerned the entirely different question of
whether an order imposing personal liability for a contractual obligation to pay money constituted
“equitable relief” under the Employee Retirement Income Security Act.1 Id. at 220–21; see also
29 U.S.C. § 1132(a)(3). In addition, almost all the Court’s engagement with Bowen in Knudson
came in the form of emphasizing the several differences between the cases. See Knudson, 534
U.S. at 212 (“Bowen, unlike petitioners’ claim, did not deal with specific performance of a
contractual obligation to pay past due sums.”). Given that Concert Investor’s suit—as in Bowen

1 A few years before Knudson, the Court reiterated that, “[a]s Bowen recognized, the crucial
question under § 702 is not whether a particular claim for relief is ‘equitable’ (a term found
nowhere in § 702), but rather what Congress meant by ‘other than money damages’ (the precise
terms of § 702).” Dep’t of Army, 525 U.S. at 261. This clarification that Bowen did not turn on
whether a requested remedy was equitable casts further doubt on the relevance of Knudson’s
discussion of equitable remedies under ERISA for determining whether the APA’s waiver of
sovereign immunity applies.
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but not Knudson—involves the APA, seeks enforcement of a statutory provision instead of a
contract, and turns on the definition of “money damages,” it is clear which precedent controls here.
The government also contends, in its reply brief, that the Supreme Court’s decision in
Maine Community Health Options v. United States, 140 S. Ct. 1308 (2020), supports its reading
that the relevant portion of “Bowen no longer is good law, as Knudson has overtaken it.” ECF 124
at 7–8. Although the Court did distinguish Bowen when holding in Maine Community that the
plaintiffs could bring their suits in the Court of Federal Claims, see Me. Cmty., 140 S. Ct. at 1330–
31, the government overreads the relevance of that discussion for this case. In particular, Maine
Community noted that “[i]n Bowen, the State did not seek money damages, but instead sued for
prospective declaratory and injunctive relief to clarify the extent of the Government’s ongoing
obligations under the Medicaid program.” Id. at 1330. It is possible to read this statement, as the
government does, as hinting that in Bowen the plaintiff’s request for future relief—distinct from
the challenge to reimbursement not paid out in the past—was important to the Court’s holding.
But doing so ignores Bowen’s central focus on the distinction between “seeking funds to which a
statute allegedly entitles” the plaintiff versus “money in compensation for the losses . . . that [it]
will suffer or has suffered by virtue of the withholding of those funds,” and is difficult to reconcile
with Bowen’s holding that “the monetary aspects of the relief that the [plaintiff] sought are not
‘money damages’ as that term is used in the law.”2 487 U.S. at 893–96 (emphasis added) (citation
and internal quotation marks omitted). And, even under this framing, Concert Investor does seek

2 Additionally, nothing in Maine Community displaces the Court of Appeals’s earlier application
of Bowen to conclude that “[w]here a plaintiff seeks an award of funds to which it claims
entitlement under a statute, the plaintiff seeks specific relief, not damages.” Am.’s Cmty. Bankers,
200 F.3d at 829.
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some forward-looking relief through an order that would both vacate the SBA’s denial of its
application and provide instructions on remand. See ECF 109-2 at 12.
Crucially, Concert Investor seeks, among other things, an order that “[d]eclare[s] unlawful
and set[s] aside [the SBA’s] denial of Concert Investor’s SVOG award request” and that
“[p]reliminarily and permanently order[s] [the SBA] to consider Concert Investor’s application for
a SVOG award consistent with applicable law and the evidence before the SBA.” Id. These
requested remedies do not seek “money in compensation for the damage sustained by the failure
of the Federal Government to pay as mandated; rather, [they] seek[] to enforce the statutory
mandate itself, which happens to be one for the payment of money.” Bowen, 487 U.S. at 900.
That an order requiring SBA to reevaluate Concert Investor’s application under the proper
interpretation of the statute may ultimately “require one party to pay money to another is not a
sufficient reason to characterize the relief as ‘money damages.’” Id. at 893. “Indeed, the monetary
aspect of any relief [Concert Investor] might be entitled to is much more a matter of guesswork
than [in] Bowen” because here “a reversal would merely invalidate the reasons proffered for the
[denial of the application] and would require no more than reexamination of the administrative
decision on the merits.” Esch, 876 F.2d at 984.
2.
The government also argues that the Court lacks jurisdiction because the Tucker
Act vests the Court of Federal Claims with exclusive “jurisdiction to render judgment upon any
claim against the United States founded . . . upon any express or implied contract with the United
States.” 28 U.S.C. § 1491(a)(1). In particular, the government contends that the Tucker Act
applies here because courts have treated grants comparable to SVOG awards as contracts when
determining whether the Court of Federal Claims has jurisdiction. ECF 116-1 at 5–14. The
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government fails, however, to establish that Concert Investor’s SVOG application constitutes a
contract for purposes of the Tucker Act.
In Megapulse, Inc. v. Lewis, the Court of Appeals explained that “[t]he classification of a
particular action as one which is or is not ‘at its essence’ a contract action depends both on the
source of the rights upon which the plaintiff bases its claims, and upon the type of relief sought (or
appropriate).” 672 F.2d 959, 968 (D.C. Cir. 1982). Under that two-part test, Concert Investor’s
suit is “not ‘at its essence’ a contract action.” Id. First, “the source of the rights upon which
[Concert Investor] bases its claims” is not a contract—nor could it be, given that this entire dispute
arises from the government’s repeated denials of Concert Investor’s application.3 Id. Concert
Investor, to the contrary, only raises claims that the SBA violated the APA. See ECF 109-2 at 10–
11. Where, as here, “government defendants are charged with having acted beyond the scope of
their statutory authority,” “court rulings have made clear that the jurisdictional bar of sovereign
immunity in property disputes arising from contractual relationships does not necessarily apply.”
Megapulse, 672 F.2d at 969. Second, “the type of relief sought (or appropriate)” here is not
contractual. Id. For all the reasons discussed above, Concert Investor does not seek money

3 The government suggests that the Tucker Act also grants exclusive jurisdiction to the Court of
Federal Claims over claims arising from “an agency’s failure to award a plaintiff a contract in the
first place.” ECF 116-1 at 6–7. This argument, however, is unpersuasive with respect to the SVOG
program. The cases the government relies on for this contention concern bidding for government
contracts. See Res. Conservation Grp., LLC v. United States, 597 F.3d 1238, 1242 (Fed. Cir.
2010); Cent. Ark. Maint., Inc. v. United States, 68 F.3d 1338, 1341 (Fed. Cir. 1995); United States
v. John C. Grimberg Co., 702 F.2d 1362, 1367 (Fed. Cir. 1983) (en banc); Southfork Sys., Inc. v.
United States, 141 F.3d 1124, 1132 (Fed. Cir. 1998). Yet applications for SVOG awards are
materially different than bids for government contracts, as the government is not hiring applicants
to provide a particular service at a negotiated cost. Moreover, that the SVOG program does not
involve contracts—at least during the application stage—is hardly surprising or unusual given that
“[t]he government may implement statutorily mandated subsidy programs without employing
contracts as a vehicle for doing so.” Boaz Hous. Auth. v. United States, 994 F.3d 1359, 1368 (Fed.
Cir. 2021).
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damages or any other kind of contractual remedy that would implicate the Tucker Act. See
Crowley Gov’t Servs., Inc. v. GSA, 38 F.4th 1099, 1108 (D.C. Cir. 2022) (“Exclusive jurisdiction
in Claims Court under the Tucker Act does not lie merely because a plaintiff hints at some interest
in a monetary reward from the federal government or because success on the merits may obligate
the United States to pay the complainant.” (alteration adopted) (citation and internal quotation
marks omitted)). It instead seeks “equitable relief, rather than damages for breach of contract,”
and that “type of relief requested . . . reveal[s] that this is not ‘at its essence’ a contract action.”
Com. Drapery Contractors, Inc. v. United States, 133 F.3d 1, 4 (D.C. Cir. 1998).
Indeed, the Court of Federal Claims itself has rejected arguments that SVOG awards are
contractual in nature. In Imaginarium, LLC v. United States, for example, that Court observed that
the authorizing statute for the SVOG program “merely requires the SBA to administer a grant
program based on congressionally-defined criteria,” which led it to conclude that “[t]he SVOG
Program is clearly [a] program that does not employ contracts.” 166 Fed. Cl. 234, 243, 245 (2023).
The Court of Federal Claims thus held that a contract did not exist where the SBA sent a Notice
of Award to an applicant but then subsequently denied the application due to a failure to meet
eligibility requirements.4 Id. at 239–45. And the Court also held in Harlem Globetrotters
International, Inc. v. United States that a contract did not exist where the SBA sent the applicant
a Notice of Award with an approved amount but then subsequently informed the applicant that it
would not disburse any money due to a rescission of SVOG funds.5 168 Fed. Cl. 31, 35–36, 39

4 The Court emphasized that “[t]he Notice of Award is more akin to a regulatory approval
document than a manifestation of assent to a binding contract.” Imaginarium, 166 Fed. Cl. at 244.
5 That the Court of Federal Claims has heard two suits challenging the SBA’s implementation of
the SVOG program does not suggest that Concert Investor’s suit also belongs in that Court. In
both cases, the plaintiffs were “not pursuing an APA case at all” because their “only claim for
entitlement to money damages stems from the alleged breach[es] of contract.” Harlem
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(2023). If initially-approved-but-later-denied SVOG awards do not constitute contracts, it is
difficult to see how Concert Investor’s having submitted an application that was never approved
could somehow establish a contract. Most obviously, there is no evidence of “mutuality of intent
to contract” where the SBA denied Concert Investor’s application. Am. Bankers Ass’n v. United
States, 932 F.3d 1375, 1380 (Fed. Cir. 2019).
Recent stay decisions from the Supreme Court about the proper forum in which to
challenge grant cancellations do not change the calculus. To be sure, in Department of Education
v. California, the Court held that “the APA’s limited waiver of immunity does not extend to orders
‘to enforce a contractual obligation to pay money’ along the lines of what the District Court
ordered” in that case. 145 S. Ct. 966, 968 (2025) (quoting Knudson, 534 U.S. at 212). But the
Court simultaneously reaffirmed Bowen by reiterating that “a district court’s jurisdiction ‘is not
barred by the possibility’ that an order setting aside an agency’s action may result in the
disbursement of funds.” Id. (quoting Bowen, 487 U.S. at 910). Given that California involved
grants that were already in effect and could therefore be enforced as contractual agreements—
which is not the case here—the government’s cancellation of them implicated the Tucker Act.
The Court’s similar decision in NIH v. American Public Health Ass’n to stay judgments
vacating the government’s termination of research grants also does not alter the jurisdictional
outcome. 145 S. Ct. 2658, 2660 (2025). Indeed, in that case, several Justices wrote separately to
explain that California turned on the fact that the termination of grants created contractual claims.
See, e.g., id. at 2663 (Gorsuch, J., concurring in part and dissenting in part) (“California explained
that suits based on any express or implied contract with the United States do not belong in district

Globetrotters, 168 Fed. Cl. at 42 (citation and internal quotation marks omitted); see also
Imaginarium, 166 Fed. Cl. at 245 & n.5.
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court under the Administrative Procedure Act (APA), but in the Court of Federal Claims under the
Tucker Act.” (citation and internal quotation marks omitted)); id. at 2665 (Kavanaugh, J.,
concurring in part and dissenting in part) (“The core of plaintiffs’ suit alleges that the Government
unlawfully terminated their grants. That is a breach of contract claim.”).
III.
Merits
Turning to the merits, this case turns on the definition of “produces” as that word is used
in the SVOG statute.6 15 U.S.C. § 9009a(a)(3)(A)(i)(I). To reiterate, an entity can be “eligible”
for the SVOG program if it is a “live venue operator or promoter, theatrical producer, or live
performing arts organization operator, a relevant museum operator, a motion picture theatre
operator, or a talent representative that meets” several enumerated requirements. Id.
§ 9009a(a)(1)(A). The statute defines “live venue operator or promoter, theatrical producer, or
live performing arts organization operator” as an entity that, “as a principal business activity,
organizes, promotes, produces, manages, or hosts live concerts, comedy shows, theatrical
productions, or other events by performing artists.” Id. § 9009a(a)(3)(A)(i)(I). The SBA denied
Concert Investor’s application on the ground that it did not qualify as a “live performing arts
organization operator” because it did not “produce[]”concerts. Id.
After consulting dictionary definitions and industry usage, the SBA determined that “to
‘produce’ a live event, an entity must demonstrate primary responsibility for the creative, financial

6 Concert Investor contends in passing that it also “manages” concerts. See ECF 94 at 30; ECF
114 at 17–18. But in its administrative appeal, Concert Investor contended that it satisfied “live
performing arts organization operator eligibility” only because its “principal business activity” was
“to create and produce live events by performing artists.” AR660. Given that Concert Investor
did not previously raise this basis for eligibility before the SBA, the Court does not consider it
now. See Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1297 (D.C. Cir. 2004) (“It is a hard
and fast rule of administrative law, rooted in simple fairness, that issues not raised before an agency
are waived and will not be considered by a court on review.”).
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and managerial work required throughout all stages of the live event.” AR1120–21. The SBA
further elaborated that “[t]his definition does not mean that an entity must be the ultimate decision-
maker,” “[n]or does this definition mean that an entity must control all aspects of a show.”
AR1121. And it explained that “this definition does not mean that only one entity can be said to
produce a show” because “[a] show can have multiple producers if their relationship with each
other is akin to a partnership, rather than one dominant over the other.” Id. Applying this
definition, the SBA determined that Concert Investor “has not demonstrated it has the primary
responsibility for the creative, financial, and managerial aspects of the events on which it works
required to be considered to ‘produce’ the events on which it works.” Id. The SBA instead
concluded that, “[b]ased on the materials submitted,” it “would consider Twenty-One Pilots to be
the ‘producer’ of the concerts at issue in this matter.” AR1124.
The SBA’s definition departs from the Court of Appeals decision in this case and is
inconsistent with the statutory text. To start, nothing in the Court of Appeals decision supports the
SBA’s requirement of “primary” control over the “creative, financial and managerial work.”
AR1121 (emphases added). To the contrary, the Court cautioned against a definition of
“produces” that involves such a high degree of control as to “require organizing, promoting,
managing, or hosting a concert.” Concert Inv., 100 F.4th at 221. The SBA’s definition ignores
this directive because an entity that has “the primary responsibility for the . . . managerial aspects
of the” concert—as needed for the entity to “produce” a concert—would seem to always “manage”
the concert as well. AR1121. But such overlap, the Court of Appeals concluded, “would render
certain statutory terms ‘altogether redundant.’” Concert Inv., 100 F.4th at 221–22 (quoting Mercy
Hosp., Inc. v. Azar, 891 F.3d 1062, 1068 (D.C. Cir. 2018)); see also id. at 222 (“If an entity also
had to organize, promote, manage, or host a concert in order to produce it, then any entity that met
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the definition of ‘produces’ would simultaneously meet another basis for eligibility—rendering
‘produces’ superfluous.”).
The government argues that its definition does not render “produces” superfluous given
that “[a]n entity that ‘produces’ events may not qualify on the basis that it ‘manages’ them because
managing alone is not ‘a principal business activity’ of the entity.” ECF 112-1 at 10. But if “an
entity must demonstrate primary responsibility for the creative, financial and managerial work
required throughout all stages of the live event” “to ‘produce’ a live event,” AR1121, every entity
that produces as a principal business activity would seemingly also manage as a principal business
activity. In its reply brief, the government pivots to contend that the SBA’s “primary
responsibility” standard does not require that “an entity must play a primary creative role, a
primary financial role, and a primary managerial role.” ECF 117 at 4. This late disjunctive
reframing, however, contradicts every other indication of how the SBA intended for this standard
to operate. The SBA’s denial of Concert Investor’s application seemed to treat having the primary
responsibility for all three categories as necessary.7 See AR1122–23 (separately finding that
Concert Investor did not have “primary creative responsibility for the concerts on which it works,”

7 The government cites the denial’s statement that “[s]o long as an entity plays the primary creative,
financial, and managerial role overall, it may produce a show even if there are aspects of the show
that it does not control,” AR1121 (emphasis added), as evidence that the SBA’s definition never
required an applicant to establish that it has the primary creative role, primary financial role, and
primary managerial role, ECF 117 at 4. But nothing in the five other times that the SBA discussed
the requirement to show “primary responsibility for the creative, financial, and managerial work”
suggested that it was evaluating the degree of the role with these three requirements holistically
rather than separately. See AR1121; AR1123. Indeed, the agency separated the analysis of
whether Concert Investor had a primary creative role, primary financial role, and primary
managerial role. See AR1121–23. Furthermore, the SBA’s use of “overall” in this statement
appears to be emphasizing that what matters is whether an entity has control over the “overall”
show rather than establishing a test that an entity must have control over every “aspect[] of the
show.” AR1121. Such a consideration is therefore distinct from whether the entity had primary
responsibility over the creative, financial, and managerial work separately or collectively.
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“primary responsibility” “[w]ith regard to financial aspects of the live concerts,” and “primary
management authority” and not conducting any holistic inquiry into Concert Investor’s overall
level of responsibility). The government’s opening brief responded to Concert Investor’s
accusation that its interpretation would lead to the result that “an event would have no producer if
one entity has primary responsibility for the financial and managerial work, but the artist itself
wants primary responsibility over the creative aspects of its own show” by contending that an
event not having a producer would not run afoul of the Court of Appeals decision—not by arguing
that Concert Investor misunderstood the applicable test. ECF 112-1 at 10 (citation and internal
quotation marks omitted). And even the government’s reply brief continues to analyze whether
Concert Investor has primary creative, financial, and managerial responsibility on a role-by-role
basis. See ECF 117 at 8–14 (arguing separately that Concert Investor “does not have primary
creative responsibility,” “does not have primary financial responsibility,” and “does not have
primary managerial responsibility”). Given this inconsistency and “because this argument first
appears in [the government’s] reply brief, it comes too late” and is unconvincing. TC Ravenswood,
LLC v. FERC, 741 F.3d 112, 117 (D.C. Cir. 2013).
The SBA’s definition also sets too high a bar as a general matter even if it does not
separately require majority-level control of the creative, financial, and managerial work. After all,
the Court of Appeals used “significant” instead of “primary” on multiple occasions when
describing the degree of “financial, creative, and managerial” responsibility that producers must
have. See Concert Inv., 100 F.4th at 222. Although the SBA was not required to adhere to the
exact language used in the Court’s opinion as if it were a statute, it has failed to justify the higher
bar it subsequently applied.
Case 1:21-cv-03150-CJN Document 130 Filed 03/13/26 Page 15 of 20

The Court of Appeals explained that “[w]here Congress uses a term that has an ‘established
meaning within a particular industry,’ the term should be construed with ‘reference to the actual
context of the regulated industry in question.’” Id. (quoting Ass’n of Am. R.R. v. Costle, 562 F.2d
1310, 1319-21 (D.C. Cir. 1977)). Employing this approach, the Court emphasized that “a source
that both parties identify as authoritative defines live event producers by the significant financial,
creative, and managerial role that they play throughout the life cycle of an event.” Id. And it then
cautioned against reading this industry-based definition too strictly. See id. (noting that “the
industry definition of producer is not limited to those with control over all aspects of a concert”
and that “a producer may sometimes also be the concert’s ‘promoter,’ ‘live experience designer,’
and ‘music director,’ while other times those roles may be performed by different parties” (citation
omitted)).
The SBA’s “primary responsibility” definition, however, goes beyond the Court of Appeals
decision without sufficient industry support. The government argues that the Berklee College of
Music’s statement that “[m]any different people work together to make live events happen, but
none have a greater impact on the outcome than concert and event producers,” AR1071, supports
its definition because “[i]f the producer has a greater impact on an event than anyone else who is
involved with it, that means the producer is primarily responsible for the event,” ECF 112-1 at 6.
But that statement does not establish that an entity “produces” only if it has “primary responsibility
for the creative, financial and managerial work required throughout all stages of the live event.”
AR1121. Whereas Berklee College’s definition could be read to require an entity to have
something like a plurality of the impact on a concert, the SBA’s definition demands that an entity
have a majority of the responsibility for the creative, financial, and managerial work. A mismatch
therefore exists because an entity can have “a greater impact on the outcome” of the concert than
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anyone else, AR1071, without having “primary responsibility for the creative, financial and
managerial work required throughout all stages of the live event,” AR1121.
The rest of the Berklee College discussion of “concert/event producer[s]” also counsels
against the SBA’s strict definition. The College explicitly notes that “in an industry notorious for
flexible job descriptions, concert and event producers are among the most difficult to pin down.”
AR1072. And it explains that the role of a producer can vary because “every event requires a
different approach.” Id. The SBA’s requirement that an entity have “primary responsibility for
the creative, financial and managerial work required throughout all stages of the live event,”
AR1121, therefore departs from the industry usage that the Court of Appeals endorsed,8 Concert
Inv., 100 F.4th at 222.
The SBA’s definition also led it to conclude that “Twenty-One Pilots [was] the ‘producer’
of the concerts at issue in this manner and . . . could be eligible as a Live Performing Arts
Organization Operator if it applied.” AR1124. But the statute contemplates that an entity that
produces is distinct from the performing artist. The statute focuses on whether “an individual or
entity . . . as a principal business activity, organizes, promotes, produces, manages, or hosts live
concerts, comedy shows, theatrical productions, or other events by performing artists.” 15 U.S.C.
§ 9009a(a)(3)(A)(i)(I) (emphasis added). This juxtaposition between “an individual or entity” that

8 The government’s reliance on non-concert-specific definitions of “produces” to defend the
“primary responsibility” standard is unconvincing. See ECF 112-1 at 6–7. How the film and
television industries use “produces” cannot trump the concert industry’s usage of that term given
that the relevant statutory definition of “live venue operator or promoter, theatrical producer, or
live performing arts organization operator” concerns an entity “that, as a principal business
activity, organizes, promotes, produces, manages, or hosts live concerts, comedy shows, theatrical
productions, or other events by performing artists.” 15 U.S.C. § 9009a(a)(3)(A)(i)(I) (emphasis
added); see also ECF 117 at 6 (conceding that “movies and television are not live” for these
purposes).
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is the “live venue operator or promoter, theatrical producer, or live performing arts organization
operator” overseeing the events in some capacity, on the one hand, and the “performing artists”
who are the talent at the events, on the other hand, suggests that the SBA’s interpretation of the
relevant statutory language is erroneous. Id. And another definitional provision in the statute also
differentiates between a “live venue operator or promoter, theatrical producer, or live performing
arts organization operator” and “artists and entertainers.”9 Id. § 9009a(a)(1)(A)(iii).
For all these reasons, the SBA’s denial of Concert Investor’s application is “not in
accordance with law.” 5 U.S.C. § 706(2)(A); see also Int’l Dark-Sky Ass’n, Inc. v. FCC, 106 F.4th
1206, 1220 (D.C. Cir. 2024) (“An agency action based on a flawed interpretation of a statute or
regulation is contrary to law.”). Its definition of “produces” fails to “capture the significant
financial, creative, and managerial role that live event producers play from start to finish” without
rendering the surrounding statutory text superfluous or contradictory. Concert Inv., 100 F.4th at
222.
IV.
Remedy
“Remand with vacatur is the ordinary remedy for unlawful agency action.” Sierra Club v.
U.S. Dep’t of Transp., 125 F.4th 1170, 1186 (D.C. Cir. 2025). Concert Investor, however,
contends that “remand would be futile[,] . . . as only one disposition is possible as a matter of law.”
George Hyman Const. Co. v. Brooks, 963 F.2d 1532, 1539 (D.C. Cir. 1992); ECF 94 at 31–33;

9 That the Berklee College of Music discussion of what it means to be a “concert/event producer”
states that “many professional musicians and bands find success producing their own shows” does
not save the SBA’s interpretation. AR1072. Even if “performing artists” sometime meet the
industry definition for producers, nothing prevented Congress from excluding them from this
provision of the SVOG program for “live performing arts organization operator[s].” 15 U.S.C.
§ 9009a(a)(3)(A)(i)(I). The SBA’s conclusion that “Twenty-One Pilots could be eligible as a Live
Performing Arts Organization Operator if it applied and otherwise met the eligibility requirements
of the SVOG statute” still illustrates its misinterpretation of key statutory terms. AR1124.
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ECF 114 at 19–23. The government responds that “[r]emand would serve a purpose here because
even if the ‘primary responsibility’ test is erroneous, [the] SBA would still need to address various
issues to determine whether Concert Investor is both eligible for and entitled to a grant.” ECF
112-1 at 32–45.
Vacatur and remand is the proper remedy here. “Only in rare cases, when the reviewing
court is convinced that remand would serve no purpose, does the court direct the agency how to
resolve a problem.” Allina Health Servs. v. Sebelius, 746 F.3d 1102, 1111 n.6 (D.C. Cir. 2014).
This case is not one of those “rare cases” because the SBA must make several additional
determinations before it reaches a final decision on Concert Investor’s SVOG application. Id.
Before approval could happen, the SBA would have to apply the proper standard to Concert
Investor’s application and ensure that Concert Investor meets the other eligibility criteria. It might
also have to decide whether it wished to exercise its potential statutory discretion to award the
SVOG grant. See 15 U.S.C. § 9009a(b)(2)(A). Given that the outcome of these additional steps
is not preordained,10 it cannot be said that “remand would serve no purpose.”11 Allina Health, 746
F.3d at 1111 n.6.

10 Concert Investor argues that the Court can decide now that Concert Investor “produces” concerts
for purposes of the SVOG statute because “[t]he government concedes that Concert Investor has
‘significant’ ‘creative, financial, and managerial responsibility’ for live concerts.” ECF 114 at 5
(citation omitted). But the government makes no such concession. Rather, it states that
(1) “Concert Investor’s submissions to SBA demonstrate that it has significant but not primary
responsibility for the visual elements of concerts, and that it has virtually no responsibility for
other creative elements of concerts such as music and other audio”; (2) “Concert Investor had some
financial responsibility for the concerts”; and (3) “Concert Investor submitted no evidence that it
has significant (let alone primary) responsibility for managing anything but the shows’ visual
elements.” ECF 112-1 at 19–22. It may very well be that these responsibilities, when considered
holistically, are sufficient, but remand remains proper on this issue so that the SBA can evaluate
in the first instance whether Concert Investor meets the proper definition of “produces.”
11 For similar reasons, the Court declines Concert Investor’s request to “order the SBA to
immediately obligate funds in the amount of the grant as well as the supplemental grant which, by
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V.
Conclusion
The Court denies the government’s motion to dismiss, ECF 116; grants in part and denies
in part Concert Investor’s motion for summary judgment, ECF 94; and denies the government’s
motion for summary judgment, ECF 112. The Court also denies the government’s earlier motion
for summary judgment, ECF 104, and Concert Investor’s motion for oral argument, ECF 129, as
moot. Accordingly, the Court vacates the SBA’s denial of Concert Investor’s SVOG application
and remands this case for further proceedings consistent with this opinion.

DATE: March 13, 2026

CARL J. NICHOLS

United States District Judge

operation of the statute, Concert Investor also should receive.” ECF 94 at 32–33. There is not
“documentary evidence of . . . a grant or subsidy payable . . . from appropriations made for
payment of, or contributions to, amounts required to be paid in specific amounts fixed by law or
under formulas prescribed by law” given that the SBA has not yet approved an SVOG award for
Concert Investor and the Court is not ordering it to do so at this stage. 31 U.S.C. § 1501(a)(5)(A)
(emphasis added).
Case 1:21-cv-03150-CJN Document 130 Filed 03/13/26 Page 20 of 20

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