Pandemic Darlings The pandemic economy, in original documents
Home Court filings My Member Insurance Agency, LLC v. United States Small Business Administration case — U.S. District Court, E.D. Mich. 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.)

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

CourtU.S. District Court for the Eastern District of Michigan
Filed2026-10-05

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/, SHA-256 a921d5c017a5247ec47e068d14d19600695e56f8edbd3dae4578c5da89885a17.

Search CourtListener for this docket number

Full text

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.


                                        -2-

 Case 2:26-cv-13779-LVP-PTM ECF No. 1, PageID.3 Filed 10/05/26 Page 3 of 28




      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.


                                       -3-

 Case 2:26-cv-13779-LVP-PTM ECF No. 1, PageID.4 Filed 10/05/26 Page 4 of 28




      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


                                        -4-

 Case 2:26-cv-13779-LVP-PTM ECF No. 1, PageID.5 Filed 10/05/26 Page 5 of 28




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.


                                         -5-

 Case 2:26-cv-13779-LVP-PTM ECF No. 1, PageID.6 Filed 10/05/26 Page 6 of 28




      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


                                           -6-

 Case 2:26-cv-13779-LVP-PTM ECF No. 1, PageID.7 Filed 10/05/26 Page 7 of 28




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


                                        -7-

 Case 2:26-cv-13779-LVP-PTM ECF No. 1, PageID.8 Filed 10/05/26 Page 8 of 28




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.




                                         -8-

 Case 2:26-cv-13779-LVP-PTM ECF No. 1, PageID.9 Filed 10/05/26 Page 9 of 28




      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.


                                         -9-

Case 2:26-cv-13779-LVP-PTM ECF No. 1, PageID.10 Filed 10/05/26 Page 10 of 28




         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,




                                           -10-

Case 2:26-cv-13779-LVP-PTM ECF No. 1, PageID.11 Filed 10/05/26 Page 11 of 28




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.




                                        -11-

Case 2:26-cv-13779-LVP-PTM ECF No. 1, PageID.12 Filed 10/05/26 Page 12 of 28




      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.




                                       -12-

Case 2:26-cv-13779-LVP-PTM ECF No. 1, PageID.13 Filed 10/05/26 Page 13 of 28




      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.




                                        -13-

Case 2:26-cv-13779-LVP-PTM ECF No. 1, PageID.14 Filed 10/05/26 Page 14 of 28




        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.




                                        -14-

Case 2:26-cv-13779-LVP-PTM ECF No. 1, PageID.15 Filed 10/05/26 Page 15 of 28




                        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.



                                         -15-

Case 2:26-cv-13779-LVP-PTM ECF No. 1, PageID.16 Filed 10/05/26 Page 16 of 28




      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.




                                       -16-

Case 2:26-cv-13779-LVP-PTM ECF No. 1, PageID.17 Filed 10/05/26 Page 17 of 28




      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.




                                       -17-

Case 2:26-cv-13779-LVP-PTM ECF No. 1, PageID.18 Filed 10/05/26 Page 18 of 28




      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.




                                         -18-

Case 2:26-cv-13779-LVP-PTM ECF No. 1, PageID.19 Filed 10/05/26 Page 19 of 28




         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.




                                         -19-

Case 2:26-cv-13779-LVP-PTM ECF No. 1, PageID.20 Filed 10/05/26 Page 20 of 28




      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




                                        -20-

Case 2:26-cv-13779-LVP-PTM ECF No. 1, PageID.21 Filed 10/05/26 Page 21 of 28




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


                                        -21-

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;


                                        -22-

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.



                                         -23-

Case 2:26-cv-13779-LVP-PTM ECF No. 1, PageID.24 Filed 10/05/26 Page 24 of 28




          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.


                                          -24-

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;


                                         -25-

Case 2:26-cv-13779-LVP-PTM ECF No. 1, PageID.26 Filed 10/05/26 Page 26 of 28




      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
                                         -26-

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




                                    -27-

Case 2:26-cv-13779-LVP-PTM ECF No. 1, PageID.28 Filed 10/05/26 Page 28 of 28

File and source

File
gov.uscourts.mied.74918358.1.0.pdf
Size
557,884 bytes
SHA-256
a921d5c017a5247ec47e068d14d19600695e56f8edbd3dae4578c5da89885a17
Our copy
gov.uscourts.mied.74918358.1.0.pdf
Original
storage.courtlistener.com
Back to top