Court filing
Complaint for Judicial Review under the Administrative Procedure Act, Declaratory and Equitable Relief, Vacatur of Agency Action, and Damages — My Member Insurance Agency, LLC v. United States Small Business Administration (Dkt. 1, E.D. Mich.)
Summary
A complaint for judicial review under the Administrative Procedure Act by My Member Insurance Agency, LLC against the U.S. Small Business Administration, Administrator Kelly Loeffler and Fountainhead SBF, LLC, Case No. 2:26-cv-13779, in the U.S. District Court for the Eastern District of Michigan, Northern Division, filed October 5, 2026 as ECF No. 1. It challenges the denial of forgiveness of the plaintiff's PPP loan of $401,900.00 and the dismissal of its appeal. It states that Fountainhead sent the denial decision on March 15, 2022, eleven days after it issued, and that the SBA's Office of Hearings and Appeals dismissed the appeal filed April 15, 2022 as untimely without reaching the merits.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Filed October 5, 2026 in My Member Insurance Agency, LLC v. United States Small Business Administration; one of 1 filings from this case.
Record facts
| Court | U.S. District Court for the Eastern District of Michigan |
|---|---|
| Filed | 2026-10-05 |
Cite this document
“Complaint for Judicial Review under the Administrative Procedure Act, Declaratory and Equitable Relief, Vacatur of Agency Action, and Damages — My Member Insurance Agency, LLC v. United States Small Business Administration (Dkt. 1, E.D. Mich.).”
U.S. District Court for the Eastern District of Michigan, No. 2:26-cv-13779, Doc. 1, filed 2026-10-05. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/full-docket-united-states-small-business-administration-mied-74918358/2026-10-05-gov-uscourts-mied-74918358-1-0-doc-1/
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Case 2:26-cv-13779-LVP-PTM ECF No. 1, PageID.1 Filed 10/05/26 Page 1 of 28
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
MY MEMBER INSURANCE AGENCY, LLC,
Plaintiff, Case No. 2:26-cv-13779
vs. Hon.
UNITED STATES SMALL BUSINESS
ADMINISTRATION; KELLY LOEFFLER,
in her official capacity as Administrator of the
United States Small Business Administration;
and FOUNTAINHEAD SBF, LLC,
Defendants.
COMPLAINT FOR JUDICIAL REVIEW UNDER THE ADMINISTRATIVE
PROCEDURE ACT, DECLARATORY AND EQUITABLE RELIEF,
VACATUR OF AGENCY ACTION, AND DAMAGES
There is no other pending or resolved civil action arising out
of this transaction or occurrence alleged in the Complaint.
Plaintiff My Member Insurance Agency, LLC, by and through its undersigned
counsel, states as follows in support of its Complaint for Judicial Review under the
Administrative Procedure Act, Declaratory and Equitable Relief, Vacatur of Agency
Action, and Damages against Defendants United States Small Business
Administration, Kelly Loeffler, in her official capacity as Administrator of the
United States Small Business Administration, and Fountainhead SBF, LLC as
follows:
Case 2:26-cv-13779-LVP-PTM ECF No. 1, PageID.2 Filed 10/05/26 Page 2 of 28
NATURE OF THE ACTION
1. This action arises from the denial of forgiveness of a Paycheck
Protection Program (“PPP”) loan issued to Plaintiff My Member Insurance Agency,
LLC (“Plaintiff” or “MMIA”) pursuant to the Coronavirus Aid, Relief, and
Economic Security Act (“CARES Act”), and from the subsequent denial of MMIA’s
administrative appeal challenging that determination.
2. Congress enacted the PPP to provide emergency economic assistance
to businesses affected by the COVID-19 pandemic and intended that qualifying
borrowers who used loan proceeds for authorized purposes would be eligible for
loan forgiveness. MMIA applied for, received, and used PPP loan proceeds in
accordance with the purposes and requirements of the program.
3. SBA approved MMIA’s PPP loan in the amount of $401,900.00 after
reviewing MMIA’s application and supporting documentation.
4. MMIA subsequently submitted a timely forgiveness application and
supporting documentation and fully cooperated throughout the forgiveness review
process.
5. Fountainhead SBF, LLC (“Fountainhead”), underwrote MMIA’s PPP
loan application and serviced the loan, and acted as the lender and servicer
designated by SBA for the forgiveness review. Fountainhead recommended that
MMIA receive forgiveness of the loan in its entirety.
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6. On March 4, 2022, after approximately fifteen months of review, SBA
issued a Final Loan Review Decision denying forgiveness in its entirety and
reducing the forgiveness amount from $401,900.00 to $0.00. Exhibit A – SBA
March 4, 2022 Final SBA Loan Review Decision Denying Forgiveness.
7. The SBA’s Final Loan Review Decision did not allege fraud, misuse of
PPP funds, unauthorized expenditures, or bad faith conduct by MMIA. Rather, SBA
asserted only that the documentation provided was insufficient to support
forgiveness and to verify the maximum loan amount.
8. SBA directed Fountainhead to provide the decision to the borrower
within five business days, but Fountainhead did not transmit the decision to MMIA
until March 15, 2022 — eleven days after the decision issued. Fountainhead later
admitted that its borrower notifications were delayed because it was understaffed
and backlogged. Exhibit B – Fountainhead March 15, 2022 Email Transmitting
Denial Decision to MMIA.
9. In the weeks that followed, MMIA worked with Fountainhead to
assemble the documentation SBA had identified as missing and, based on an April
8, 2022 communication from SBA, Fountainhead and MMIA understood that
additional time existed to pursue relief. MMIA relied on that understanding.
Exhibit C – April 6, 2022 SBA Communication Identifying Missing
Documentation.
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10. MMIA filed its appeal with SBA’s Office of Hearings and Appeals
(“OHA”) on April 15, 2022 — the deadline that the OHA Case Portal displayed to
MMIA. OHA nonetheless dismissed the appeal as untimely, calculating the deadline
from an earlier receipt date, and never reached the merits of MMIA’s challenge to
the denial of forgiveness. Exhibit D – OHA’s June 13, 2022 Order Dismissing
Appeal as Untimely.
11. Following dismissal, MMIA timely sought reconsideration pursuant to
13 C.F.R. § 134.1211(c). Exhibit E – MMIA’s June 21, 2022 Request for
Reconsideration. OHA denied reconsideration on July 7, 2022, thereby rendering the
dismissal final and foreclosing any administrative review of the merits of MMIA’s
forgiveness claim. Exhibit F – OHA’s July 7, 2022 Denial of Reconsideration.
12. This action challenges two separate agency actions under the
Administrative Procedure Act:
a) SBA’s March 4, 2022 Final Loan Review Decision denying
forgiveness; and
b) OHA’s June 13, 2022 dismissal of MMIA’s appeal and July 7, 2022
denial of reconsideration, which together constitute the final agency
action resulting in the deprivation of MMIA’s right to meaningful
administrative review.
13. MMIA seeks judicial review, declaratory relief, equitable relief, vacatur
of the challenged agency actions, restoration of its opportunity to obtain a
determination on the merits of its forgiveness application, and damages against
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Fountainhead arising from its failure to timely communicate SBA’s decision and its
representations regarding the appeal process.
14. This case does not involve fraud, misuse of PPP funds, or ineligible
expenditures. Rather, it involves a borrower that was approved for a PPP loan, used
the funds for their intended purpose, timely sought forgiveness, and was deprived of
merits review because of delayed notice and procedural circumstances outside of its
control.
JURISDICTION AND VENUE
15. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331
because this action arises under federal law, including the Administrative Procedure
Act (“APA”), 5 U.S.C. §§ 701-706.
16. This Court has authority to grant declaratory relief pursuant to 28
U.S.C. §§ 2201 and 2202.
17. Sovereign immunity is waived pursuant to 5 U.S.C. § 702.
18. MMIA has exhausted its administrative remedies. Under 13 C.F.R.
§ 134.1201(d), an appeal to OHA is an administrative remedy that must be exhausted
before judicial review of a final SBA loan review decision may be sought in a federal
district court. MMIA appealed to OHA and sought reconsideration, and OHA’s July
7, 2022 denial of reconsideration constitutes final agency action reviewable under 5
U.S.C. § 704.
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19. This action is timely, having been filed within the six-year limitations
period applicable to civil actions against the United States under 28 U.S.C.
§ 2401(a).
20. Supplemental jurisdiction over MMIA’s state-law claims against
Fountainhead exists under 28 U.S.C. § 1367(a) because those claims are so related
to the federal claims that they form part of the same case or controversy.
21. Venue is proper under 28 U.S.C. § 1391(e) as to Defendants SBA and
its Administrator because MMIA resides in this District and a substantial part of the
events giving rise to the claims occurred in this District, and under 28 U.S.C.
§ 1391(b) as to Fountainhead because a substantial part of the events giving rise to
the claims against it occurred in this District.
22. This Court has personal jurisdiction over Fountainhead, which
purposefully directed its loan-servicing and forgiveness-related activities toward
MMIA, a Michigan borrower, including by transmitting the SBA decision and
appeal-related communications to MMIA in this District.
PARTIES
23. Plaintiff My Member Insurance Agency, LLC is a Michigan limited
liability company with its principal place of business in Michigan. MMIA is a credit
union service organization wholly owned by Frankenmuth Credit Union (“FCU”).
MMIA and FCU are separate legal entities with separate federal employer
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identification numbers. Under a written Support Services Agreement, certain FCU
employees perform services for MMIA, and payroll for both entities is administered
through a shared vendor.
24. Defendant United States Small Business Administration (“SBA”) is an
agency of the United States.
25. Defendant Administrator of the SBA is sued solely in her official
capacity.
26. Defendant Fountainhead SBF, LLC is a Florida limited liability
company. MMIA retained Fountainhead to underwrite its PPP loan application and
to service the loan and manage the forgiveness process. Although Greater Nevada
Credit Union is the lender of record named on MMIA’s promissory note,
Fountainhead acted as the lender and servicer designated by SBA for the forgiveness
review, and SBA transmitted its Final Loan Review Decision to Fountainhead for
delivery to MMIA.
FACTUAL ALLEGATIONS
A. MMIA’S PPP Loan
27. During the period when the PPP was first introduced and implemented
– first the loan program and then the forgiveness process – Congress repeatedly
amended the program, often on a near-weekly basis, and SBA issued and revised
implementing guidance on a rolling basis. As a result, the specific administrative
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parameters governing PPP loans and forgiveness were unsettled and frequently
unclear to borrowers, lenders, and loan servicers alike, and participants necessarily
administered the program as its requirements continued to evolve. Fountainhead
acknowledged this same uncertainty.
28. In April 2020, MMIA applied for a PPP loan under the CARES Act.
29. On or about April 7, 2020, Eric Neumeyer, Chief Executive Officer of
MMIA (“Neumeyer”) and Donna Haubenstricker, Vice President of Finance for
MMIA, executed the original PPP application for MMIA. Exhibit G – April 7, 2020
PPP Application.
30. On or about April 28, 2020, SBA approved MMIA’s PPP application
and authorized a PPP loan in the amount of $401,900.
31. On or about May 12, 2020, Neumeyer executed a Promissory Note as
Borrower with Lender Greater Nevada Credit Union in the amount of $401,900.
Exhibit H – Promissory Note.
32. Upon receipt of the funds, MMIA deposited the loan proceeds into a
separate sub-account in order to maintain detailed records concerning the use of the
funds. Exhibit I - MMIA’s Deposit of Loan Proceeds into Separate Sub-Account.
33. MMIA utilized the PPP proceeds for authorized purposes consistent
with the CARES Act.
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34. MMIA maintained records documenting its use of loan proceeds and
compliance with PPP requirements. Exhibit J – MMIA’s Use of Loan Proceeds and
PPP Compliance.
35. At no time did the SBA allege that MMIA committed fraud, submitted
false information, or misused PPP funds.
B. Forgiveness Application
36. In or about December 2020, MMIA timely submitted an application
seeking forgiveness of the PPP loan. Exhibit K – MMIA’s December 2020
Forgiveness Application (Form 3508EZ).
37. Throughout 2021, MMIA repeatedly sought updates concerning the
status of its forgiveness application.
38. During the review process, MMIA received requests for information
that had already been supplied with its original application. Exhibit L –
SBA/Fountainhead’s Request for Information Already Supplied.
39. MMIA nevertheless cooperated fully and diligently provided the
information requested by SBA and/or Fountainhead. Id. at 3-4.
40. Upon information and belief, Fountainhead did not submit its
forgiveness determination to SBA until June 8, 2022. Exhibit M – Fountainhead’s
Forgiveness Determination Submitted to SBA on June 8, 2022.
41. Fountainhead recommended forgiveness of the entire loan amount.
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42. The forgiveness application thereafter remained under review for
approximately fifteen months.
C. SBA Denial
43. On March 4, 2022, SBA issued a Final SBA Loan Review Decision.
Ex. A.
44. SBA determined that the amount eligible for forgiveness was $0.00. Id.
45. SBA stated: “the documentation provided is insufficient to support
forgiveness. No documentation in the application period to verify maximum loan
amount.” Ex. A.
46. SBA did not allege fraud. See id.
47. SBA did not allege unauthorized use of PPP funds. See id.
48. SBA did not allege misuse of loan proceeds. See id.
49. SBA did not identify any specific payroll expenditure that was
improper. See id.
50. SBA did not explain why it rejected Fountainhead’s recommendation
that the loan be fully forgiven. See id.
51. SBA’s stated basis concerned verification of MMIA’s maximum loan
amount and payroll costs. Because MMIA is a credit union service organization
whose payroll is administered together with FCU’s through a shared vendor,
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MMIA’s eligible payroll was documented through records maintained in connection
with FCU.
52. MMIA and Fountainhead provided SBA with documentation
establishing the separation of the two entities and MMIA’s payroll costs, including
IRS Forms 941, MMIA’s Articles of Organization, its separate federal employer
identification number, and the Support Services Agreement between MMIA and
FCU. SBA did not address this documentation in its decision.
D. Delayed Notice and Loss of Appeal Rights
53. The Final SBA Loan Review Decision advised that the borrower had
the right to appeal to OHA within 30 calendar days after the borrower’s receipt of
the decision. Ex. A.
54. SBA directed Fountainhead, as the lender, to provide a copy of the Final
SBA Loan Review Decision to the borrower within five (5) business days of the
decision. Ex. A.
55. Fountainhead did not transmit the decision to MMIA until March 15,
2022 – eleven days after SBA issued it. Ex. B.
56. On March 15, 2022, Fountainhead emailed the decision to MMIA,
attached an SBA appeals guide, and advised MMIA to complete its appeal
submission “in the next 30 days.” Ex. B.
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57. OHA later determined that MMIA received the Final SBA Loan Review
Decision on March 14, 2022, a date reflected in SBA systems.
58. MMIA did not receive the Final SBA Loan Review Decision until
March 15, 2022, the date Fountainhead transmitted it, and Fountainhead confirmed
in writing that the decision was sent to the borrower on March 15, 2022. Ex. B.
59. The delay in transmitting the decision to MMIA was outside MMIA’s
control, and Fountainhead admitted that its borrower notifications were delayed
because it was understaffed and backlogged.
60. On April 8, 2022, MMIA and FCU contacted SBA to identify the
documentation SBA considered missing. In response, SBA listed categories of
documents and directed the borrower to work through its lender. Ex. C.
61. Based on that communication, Fountainhead and MMIA understood
that additional time existed to pursue relief while the identified documentation was
assembled, and Fountainhead later so acknowledged to OHA.
62. MMIA devoted its efforts during this period to assembling the
documentation SBA had identified as missing, working with Fountainhead and FCU
to gather payroll records, IRS Forms 941, and entity-separation materials.
63. On April 14, 2022, MMIA began its appeal on the OHA Case Portal,
which displayed an appeal deadline of April 15, 2022.
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64. MMIA completed and filed its appeal on the OHA Case Portal on April
15, 2022, consistent with the deadline the Portal displayed.
65. On June 8, 2022, OHA issued an Order to Show Cause stating that the
appeal appeared untimely because MMIA received the Final SBA Loan Review
Decision on March 14, 2022 and filed 32 calendar days later. Exhibit N – June 8,
2022 Order to Show Cause.
66. MMIA responded to the Order to Show Cause on June 8, 2022,
explaining that its filing was delayed by the late receipt of the decision from
Fountainhead, a payroll-system conversion, and continued communications with
SBA and Fountainhead concerning the required documentation. Exhibit O –
Fountainhead June 8, 2022 Letter to OHA Acknowledging Delay.
67. Fountainhead separately submitted a letter to OHA dated June 8, 2022,
acknowledging its own delays and understaffing and requesting that OHA permit
MMIA’s appeal to proceed. Exhibit P – MMIA’s June 8, 2022 Response to the Order
to Show Cause.
68. On June 13, 2022, OHA dismissed MMIA’s appeal as untimely, relying
on the March 14, 2022 receipt date and on 13 C.F.R. § 134.1202(c)(3)(i), which
provides that a Judge may not modify the time period governing commencement of
a case. Ex. D.
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69. On June 21, 2022, MMIA timely sought reconsideration pursuant to 13
C.F.R. § 134.1211(c). Ex. E.
70. On July 7, 2022, OHA denied reconsideration, rendering the dismissal
the final decision of SBA and foreclosing any administrative review of the merits of
MMIA’s forgiveness claim. Ex. F.
71. The Final SBA Loan Review Decision and MMIA’s promissory note
identify the loan as SBA Loan No. 8127357205. OHA’s docket and orders reference
“PPP-8127357208,” which appears to be a clerical error referring to the same loan.
72. In correspondence submitted to OHA, Fountainhead acknowledged
that:
a) it was understaffed;
b) borrower notifications were delayed;
c) MMIA and Fountainhead believed additional time existed to appeal;
and
d) Fountainhead requested that OHA permit the appeal to proceed
notwithstanding the filing issue. Ex. O.
73. As a direct result of the foregoing conduct, MMIA was denied
meaningful review of the merits of its forgiveness application.
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COUNT I
ADMINISTRATIVE PROCEDURE ACT – CHALLENGE TO SBA FINAL
LOAN REVIEW DECISION
(Against SBA)
74. MMIA realleges and incorporates by reference all preceding paragraphs
as though fully set forth herein.
75. Under the APA, a court must “hold unlawful and set aside agency
action” that is “arbitrary, capricious, ... or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A).
76. The Court itself must “decide all relevant questions of law, interpret
constitutional and statutory provisions, and determine the meaning or applicability
of the terms of an agency action.” § 706; see also Loper Bright Enters. v. Raimondo,
603 U.S. 369, 393 (2024) (“The text of the APA means what it says.”).
77. The March 4, 2022 Final SBA Loan Review Decision merged into, and
is embodied in, the final agency action challenged in this case. Upon exhaustion of
the OHA appeal, that decision is subject to judicial review. See Darby v. Cisneros,
509 U.S. 137 (1993).
78. The July 7, 2022 OHA denial of reconsideration constitutes final
agency action reviewable under 5 U.S.C. § 704. Should the Court set aside OHA’s
dismissal of MMIA’s appeal as untimely, the March 4, 2022 decision is properly
before the Court for review or remand.
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79. The SBA’s determination was arbitrary, capricious, an abuse of
discretion, and otherwise not in accordance with law.
80. Under the framework set forth in Ohio v. EPA, 603 U.S. 279, 292, 144
S. Ct. 2040, 2053, 219 L. Ed. 2d 772 (2024), an agency action is arbitrary and
capricious if the agency’s action was not “reasonable and reasonably explained.” See
also Dial v. Holder, No. 12-13452, 2013 WL 607836, at *2 (E.D. Mich. Feb. 19,
2013).
81. SBA failed to provide a reasonable basis for rejecting Fountainhead’s
recommendation of full forgiveness. See Ex. A.
82. SBA failed to identify substantial evidence supporting a complete
denial of forgiveness. Id.
83. SBA failed to consider the documentation MMIA and Fountainhead
provided establishing MMIA’s eligibility for forgiveness, including IRS Forms 941,
MMIA’s Articles of Organization and separate federal employer identification
number, and the Support Services Agreement documenting the separation of MMIA
and FCU and the administration of their shared payroll. Id.
84. SBA’s decision undermines the purpose of the CARES Act and PPP
program.
85. SBA’s actions have caused MMIA substantial economic injury.
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WHEREFORE, MMIA requests that this Court vacate the Final SBA Loan
Review Decision and remand the matter for a determination on the merits.
COUNT II
ADMINISTRATIVE PROCEDURE ACT – CHALLENGE TO OHA
DISMISSAL AND DENIAL OF RECONSIDERATION
(Against SBA)
86. MMIA realleges and incorporates by reference all preceding paragraphs
as though fully set forth herein.
87. On June 8, 2022, the OHA issued an Order to Show Cause asserting
that MMIA’s appeal was untimely. Ex. N.
88. On June 8, 2022, MMIA filed a response to the Order to Show Cause
and explained the circumstances surrounding the timing of its appeal. Ex. P.
89. On June 13, 2022, OHA dismissed MMIA’s appeal as untimely without
addressing the merits of MMIA’s forgiveness challenge. Ex. D.
90. On June 21, 2022, MMIA timely sought reconsideration pursuant to 13
C.F.R. § 134.1211(c). Ex. E.
91. On July 7, 2022, OHA denied reconsideration and allowed the dismissal
to stand. Ex. F.
92. The July 7, 2022 denial of reconsideration constitutes final agency
action reviewable under the Administrative Procedure Act.
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93. In dismissing MMIA’s appeal, OHA failed to adequately consider
undisputed evidence demonstrating that any late filing resulted from circumstances
outside MMIA’s control.
94. OHA further failed to adequately consider evidence establishing that
MMIA did not receive actual notice of SBA’s Final Loan Review Decision until
March 15, 2022.
95. OHA improperly relied upon an earlier date reflected in SBA systems
despite evidence that the decision had not yet been transmitted to, or received by,
MMIA.
96. OHA failed to address whether the appeal period should be measured
from the date of actual receipt rather than from an administrative date appearing
within SBA records.
97. OHA failed to explain why an appeal period should begin to run before
a borrower receives notice sufficient to permit the exercise of appeal rights.
98. OHA’s failure to consider evidence of actual receipt rendered its
dismissal arbitrary, capricious, and contrary to law.
99. OHA failed to adequately consider that SBA’s March 4, 2022 Final
Loan Review Decision was not transmitted to MMIA until March 15, 2022.
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100. OHA failed to adequately consider Fountainhead’s admission that
borrower notifications had been delayed because of staffing shortages and internal
backlog.
101. OHA failed to adequately consider Fountainhead’s request that MMIA
be permitted to proceed with its appeal notwithstanding the timing issue.
102. OHA failed to adequately consider Fountainhead’s request that MMIA
be permitted to proceed with its appeal notwithstanding the timing issue.
103. OHA’s dismissal elevated form over substance and deprived MMIA of
any administrative review of the merits of its forgiveness application.
104. OHA’s actions were arbitrary, capricious, an abuse of discretion,
contrary to law, unsupported by substantial evidence, and inconsistent with the
purposes of the CARES Act and PPP program.
105. OHA failed to provide a reasoned explanation for refusing to afford
relief despite undisputed evidence that the lender’s conduct contributed to the filing
issue.
106. OHA’s interpretation and application of the appeal deadline was
excessively rigid and resulted in manifest injustice.
107. As a direct result of OHA’s actions, MMIA was denied any adjudication
of the merits of its PPP forgiveness claim.
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108. OHA’s dismissal of MMIA’s appeal as untimely, entered after MMIA
invoked and participated in the OHA process, is itself reviewable final agency action.
See Smith v. Berryhill, 587 U.S. 471 (2019).
109. The 30-day deadline in 13 C.F.R. § 134.1202(a) is a non-jurisdictional
claim-processing rule subject to equitable tolling. See Hamer v. Neighborhood Hous.
Servs. of Chicago, 583 U.S. 17 (2017); Baro v. Blanche, 179 F.4th 422 (6th Cir.
2026).
110. The deadline runs from the borrower’s actual receipt of the decision. 13
C.F.R. § 134.1202(a). MMIA received the decision on March 15, 2022, and OHA’s
contrary finding that MMIA received it on March 14, 2022 was unsupported by the
record.
111. When MMIA began its appeal on April 14, 2022, the OHA Case Portal
displayed an appeal deadline of April 15, 2022, and MMIA filed by that date. OHA
acted arbitrarily in dismissing the appeal as untimely without addressing the deadline
the agency’s own Portal displayed to MMIA.
112. To the extent MMIA’s appeal was filed after the applicable deadline,
MMIA is entitled to equitable tolling. MMIA pursued its rights diligently, and
extraordinary circumstances beyond its control — Fountainhead’s eleven-day delay
in transmitting the decision, Fountainhead’s admitted understaffing and backlog, and
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the confusion created by SBA’s April 8, 2022 communication — prevented a timely
filing. See Baro v. Blanche, 179 F.4th 422 (6th Cir. 2026).
113. Enforcement of the deadline to bar all review under these
circumstances, where MMIA filed by the date the OHA Case Portal displayed to it,
elevates form over substance and offends fundamental fairness.
114. Should the Court set aside OHA’s dismissal, the appropriate remedy is
a remand for the agency to consider MMIA’s appeal on the merits in the first
instance. See Smith v. Berryhill, 587 U.S. 471 (2019).
WHEREFORE, Plaintiff requests that the Court:
A. Declare that OHA’s dismissal of MMIA’s appeal and denial of
reconsideration were arbitrary, capricious, an abuse of discretion, and
otherwise not in accordance with law;
B. Vacate the June 13, 2022 dismissal order and July 7, 2022
reconsideration denial;
C. Remand the matter to OHA with instructions to consider MMIA’s
appeal on the merits;
D. Alternatively, remand the matter to SBA for a merits determination of
MMIA’s forgiveness application;
E. Declare that MMIA first received actual notice of the SBA Final Loan
Review Decision on March 15, 2022;
F. Declare that MMIA’s April 15, 2022 appeal was timely because MMIA
filed by the deadline the OHA Case Portal displayed to it;
G. Alternatively, hold that any late filing of the appeal is excused by
equitable tolling; and
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Case 2:26-cv-13779-LVP-PTM ECF No. 1, PageID.22 Filed 10/05/26 Page 22 of 28
H. Award Plaintiff its costs and such further relief as the Court deems just
and proper.
COUNT III
NEGLIGENCE
(Against Fountainhead)
115. MMIA realleges and incorporates by reference all preceding paragraphs
as though fully set forth herein.
116. Independent of any contractual obligation, Fountainhead owed MMIA
a duty to exercise reasonable care in servicing the PPP loan and in transmitting SBA’s
decisions and appeal-related information to MMIA. SBA directed Fountainhead to
deliver the Final SBA Loan Review Decision to the borrower within five business
days, and Fountainhead undertook to guide MMIA through the appeal process.
117. Fountainhead voluntarily undertook responsibility for communicating
SBA decisions and providing information regarding appeal rights and procedures to
PPP borrowers, including MMIA.
118. Having undertaken those responsibilities, Fountainhead owed MMIA a
duty to exercise reasonable care in carrying them out.
119. Fountainhead breached that duty by:
a. failing to timely deliver the SBA denial decision;
b. providing inconsistent and confusing guidance regarding the
running and computation of the appeal deadline;
c. creating confusion regarding available remedies;
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Case 2:26-cv-13779-LVP-PTM ECF No. 1, PageID.23 Filed 10/05/26 Page 23 of 28
d. failing to provide prompt and accurate information regarding appeal
procedures; and
e. mishandling the administration of MMIA’s forgiveness application.
120. Fountainhead admitted that staffing shortages and backlog affected its
communications with borrowers.
121. As a direct and proximate result of Fountainhead’s negligence, MMIA
lost its opportunity for meaningful review of its forgiveness determination and
sustained damages.
WHEREFORE, MMIA requests judgment against Fountainhead for
compensatory damages, costs, interest, and all other relief permitted by law.
COUNT IV
NEGLIGENT MISREPRESENTATION
(Against Fountainhead)
122. MMIA realleges and incorporates by reference all preceding paragraphs
as though fully set forth herein.
123. Fountainhead supplied information to MMIA concerning the denial
decision, available remedies, and timing of appeal rights.
124. Fountainhead represented that it was seeking to resolve the matter
outside the standard appeal process and that additional time existed to pursue relief.
125. Fountainhead failed to exercise reasonable care in providing such
information.
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126. MMIA justifiably relied upon Fountainhead’s representations in
deciding how and when to pursue its appeal.
127. Such reliance caused MMIA to lose or impair its administrative appeal
rights.
128. MMIA has suffered damages as a result.
WHEREFORE, MMIA requests judgment against Fountainhead for all
damages caused by its misrepresentations.
COUNT V
PROMISSORY ESTOPPEL / EQUITABLE ESTOPPEL
(Against Fountainhead)
129. MMIA realleges and incorporates by reference all preceding paragraphs
as though fully set forth herein.
130. Fountainhead represented that it was attempting to resolve MMIA’s
forgiveness dispute outside the ordinary appeals process and that MMIA would not
lose its ability to seek review while those efforts were ongoing.
131. Fountainhead expected MMIA to rely on those representations.
132. MMIA reasonably relied on those representations.
133. MMIA changed its position in reliance on such representations.
134. Injustice can be avoided only through equitable relief and an award of
damages.
WHEREFORE, MMIA requests appropriate equitable and monetary relief.
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Case 2:26-cv-13779-LVP-PTM ECF No. 1, PageID.25 Filed 10/05/26 Page 25 of 28
PRAYER FOR RELIEF
WHEREFORE, Plaintiff My Member Insurance Agency, LLC respectfully
requests that this Court enter judgment in its favor and grant the following relief :
A. Declare pursuant to 28 U.S.C. § 2201 that SBA’s March 4, 2022 Final
Loan Review Decision was arbitrary, capricious, an abuse of discretion,
contrary to law, unsupported by substantial evidence, and otherwise
invalid under the Administrative Procedure Act;
B. Declare that OHA’s June 13, 2022 dismissal of MMIA’s appeal and July
7, 2022 denial of reconsideration were arbitrary, capricious, an abuse
of discretion, contrary to law, and inconsistent with the purposes of the
CARES Act and PPP program;
C. Vacate the March 4, 2022 SBA Final Loan Review Decision;
D. Vacate the June 13, 2022 OHA dismissal and the July 7, 2022 denial of
reconsideration;
E. Declare that MMIA received actual notice of SBA’s Final Loan Review
Decision on March 15, 2022 and filed its appeal on April 15, 2022, by
the deadline the OHA Case Portal displayed to it;
F. Alternatively, hold that any late filing of MMIA’s appeal is excused by
equitable tolling;
G. Declare that enforcing the appeal deadline to bar all review under these
circumstances, where MMIA filed by the deadline the OHA Case Portal
displayed, is contrary to law;
H. Remand the matter to OHA with instructions to adjudicate MMIA’s
appeal on the merits;
I. Alternatively, remand the matter directly to SBA with instructions to
reopen and reconsider MMIA’s forgiveness application on the merits
and to permit supplementation of the administrative record;
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J. Declare that MMIA was deprived of a meaningful opportunity to obtain
administrative review through no fault of its own and that any
procedural default was caused, in whole or in part, by the actions and
representations of Fountainhead;
K. Award compensatory damages against Fountainhead in an amount to be
determined at trial;
L. Award consequential damages arising from the loss of MMIA’s
administrative appeal rights and continued enforcement of the PPP loan
obligation;
M. Award prejudgment and post-judgment interest as permitted by law;
N. Award costs, expenses, and attorneys' fees to the fullest extent
permitted by applicable law; and
O. Grant such other and further legal or equitable relief as the Court deems
just, proper, and necessary to effectuate the purposes of the CARES Act
and prevent manifest injustice.
JURY DEMAND
Plaintiff demands a trial by jury on all claims so triable, including its state-
law claims against Fountainhead. Plaintiff’s claims against the SBA under the
Administrative Procedure Act are claims for judicial review on the administrative
record and are not triable to a jury.
Respectfully submitted,
GORDON REES SCULLY MANSUKHANI, LLP
By: /s/ Luke D. Wolf
Luke D. Wolf (P81932)
Caitlin K. Urisko (P87805)
Counsel for Plaintiff
37000 Woodward Ave., Ste. 225
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Case 2:26-cv-13779-LVP-PTM ECF No. 1, PageID.27 Filed 10/05/26 Page 27 of 28
Bloomfield Hills, MI 48304
(313) 756-6404 | (313) 406-7373 (fax)
lwolf@grsm.com
Dated: October 5, 2026 curisko@grsm.com
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