Plaintiffs-Appellees' Response Brief — 112 Genesee Street, LLC v. United States (Fed. Cir. No. 25-1373)
Summary
Plaintiffs-Appellees' Response Brief, Document 18 filed 04/23/2025, Case No. 25-1373, United States Court of Appeals for the Federal Circuit, on appeal of an interlocutory order of the United States Court of Federal Claims in No. 23-cv-1876 (Judge Richard A. Hertling). The United States is the Defendant-Appellant, and F. Greg Bowman, Edward C. Reddington and Charles L. McCloud of Williams & Connolly LLP are counsel for the plaintiffs-appellees. The closing pages state that the government's argument that allowable expenses must be incurred after grant funds are received is "obviously incorrect" because it would nullify more than one year of Section 9009c's stated covered period, and the conclusion asks the Court to affirm the trial court's order denying the government's motion to dismiss.
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“Plaintiffs-Appellees' Response Brief — 112 Genesee Street, LLC v. United States (Fed. Cir. No. 25-1373).”
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Case: 25-1373 Document:18 Page:1 Filed: 04/23/2025
No. 25-1373
In the Gnited States Court of Appeals
for the Pederal Circuit
112 GENESEE STREET, LLC, ET AL.,
Plaintiffs-Appellees
Vv.
UNITED STATES,
Defendant-Appellant
On Appeal of Interlocutory Order of
the United States Court of Federal Claims in No. 23-cv-1876,
Judge Richard A. Hertling
PLAINTIFFS-APPELLEES’ RESPONSE BRIEF
EF. GREG BOWMAN
EDWARD C. REDDINGTON
CHARLES L. MCCLOUD
WILLIAMS & CONNOLLY LLP
680 Maine Avenue, S.W.
Washington, DC 20024
(202) 434-5000
Counsel for Plaintiffs-
Appellees 112 Genesee Street,
LLC, et al.
Case: 25-1373 Document:18 Page:2 _ Filed: 04/23/2025
FORM 9. Certificate of Interest Form 9 (p. 1)
March 2023
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
CERTIFICATE OF INTEREST
Case Number 25-1373
Short Case Caption 112 Genesee Street LLC, et al., v. United States
Filing Party/Entity 112 Genesee Street LLC, et al. (All Plaintiffs/Respondents)
Instructions:
1. Complete each section of the form and select none or N/A if appropriate.
2. Please enter only one item per box; attach additional pages as needed, and
check the box to indicate such pages are attached.
3. In answering Sections 2 and 38, be specific as to which represented entities
the answers apply; lack of specificity may result in non-compliance.
4. Please do not duplicate entries within Section 5.
5. Counsel must file an amended Certificate of Interest within seven days after
any information on this form changes. Fed. Cir. R. 47.4(c).
I certify the following information and any attached sheets are accurate and
complete to the best of my knowledge.
Name: F. Greg Bowman
Case: 25-1373
FORM 9. Certificate of Interest
Document: 18
Page:3 Filed: 04/23/2025
Form 9 (p. 2)
March 2023
1. Represented
Entities.
Fed. Cir. R. 47.4(a)(1).
2. Real Party in
Interest.
Fed. Cir. R. 47.4(a)(2).
3. Parent Corporations
and Stockholders.
Fed. Cir. R. 47.4(a)(8).
Provide the full names of
all entities represented by
undersigned counsel in
this case.
Provide the full names of
all real parties in interest
for the entities. Do not list
the real parties if they are
the same as the entities.
None/Not Applicable
Provide the full names of
all parent corporations for
the entities and_ all
publicly held companies
that own 10% or more
stock in the entities.
None/Not Applicable
112 Genesee Street LLC
1233 Polk Street LLC
1490 Restaurant Inc.
160 Food Corporation
1651 Food Corporation
1900 University Blvd LLC
316 W 49th Restaurant Corporation
341 Frame Inc
37 N Main Street Enterprises, LLC
413 Bedford Drive LLC
4945 Gulf Boulevard, Inc.
Additional pages attached
Case: 25-1373 Document:18 Page:4 _ Filed: 04/23/2025
FORM 9. Certificate of Interest Form 9 (p. 3)
March 2023
4. Legal Representatives. List all law firms, partners, and associates that (a)
appeared for the entities in the originating court or agency or (b) are expected to
appear in this court for the entities. Do not include those who have already entered
an appearance in this court. Fed. Cir. R. 47.4(a)(4).
None/Not Applicable OM ~—_— Additional pages attached
Williams & Connolly LLP F. Greg Bowman Charles Luke McCloud
Edward C. Reddington
5. Related Cases. Other than the originating case(s) for this case, are there
related or prior cases that meet the criteria under Fed. Cir. R. 47.5(a)?
[1] Yes (file separate notice; see below) No O1 N/A (amicus/movant)
If yes, concurrently file a separate Notice of Related Case Information that complies
with Fed. Cir. R. 47.5(b). Please do not duplicate information. This separate
Notice must only be filed with the first Certificate of Interest or, subsequently, if
information changes during the pendency of the appeal. Fed. Cir. R. 47.5(b).
6. Organizational Victims and Bankruptcy Cases. Provide any information
required under Fed. R. App. P. 26.1(b) (organizational victims in criminal cases)
and 26.1(c) (bankruptcy case debtors and trustees). Fed. Cir. R. 47.4(a)(6).
None/Not Applicable [11 Additional pages attached
ADDITIONAL
PAGES
ATTACHED
Case: 25-1373
FORM 9. Certificate of Interest
Filed: 04/23/2025
Form 9 (p. 2)
March 2023
1. Represented
Entities.
Fed. Cir. R. 47.4(a)(1).
2. Real Party in
Interest.
Fed. Cir. R. 47.4(a)(2).
3. Parent Corporations
and Stockholders.
Fed. Cir. R. 47.4(a)(8).
Provide the full names of
all entities represented by
undersigned counsel in
this case.
Provide the full names of
all real parties in interest
for the entities. Do not list
the real parties if they are
the same as the entities.
None/Not Applicable
Provide the full names of
all parent corporations for
the entities and_ all
publicly held companies
that own 10% or more
stock in the entities.
None/Not Applicable
5M Group, LLC
6 Water Inc.
6049 Main St Inc
66 To Go LLC
7 E Lancaster Fancy Face, LLC
700 Manhattan Ave LLC
7452 N Western Ave Inc
7SKI, Inc
946 Eighth Avenue Food Corporation
AADI Investments LLC
Afters Special Events, LLC
Additional pages attached
Case: 25-1373
FORM 9. Certificate of Interest
Filed: 04/23/2025
Form 9 (p. 2)
March 2023
1. Represented
Entities.
Fed. Cir. R. 47.4(a)(1).
2. Real Party in
Interest.
Fed. Cir. R. 47.4(a)(2).
3. Parent Corporations
and Stockholders.
Fed. Cir. R. 47.4(a)(8).
Provide the full names of
all entities represented by
undersigned counsel in
this case.
Provide the full names of
all real parties in interest
for the entities. Do not list
the real parties if they are
the same as the entities.
None/Not Applicable
Provide the full names of
all parent corporations for
the entities and_ all
publicly held companies
that own 10% or more
stock in the entities.
L] None/Not Applicable
Alaska Weathervane Seafoods LLC
Alexanders Café 64 Inc.
Alliance Arizona, LLC
Alliance Brentwood, LP
Alliance Food, LLC
‘Antoon Properties LLC
AP Franchise Group, LLC
Argamak LLC
Arroyo Corporation
Termos J
Bartow Brewing Company LLC
Bay Fries, Inc
Additional pages attached
Case: 25-1373
FORM 9. Certificate of Interest
Filed: 04/23/2025
Form 9 (p. 2)
March 2023
1. Represented
Entities.
Fed. Cir. R. 47.4(a)(1).
2. Real Party in
Interest.
Fed. Cir. R. 47.4(a)(2).
3. Parent Corporations
and Stockholders.
Fed. Cir. R. 47.4(a)(8).
Provide the full names of
all entities represented by
undersigned counsel in
this case.
Provide the full names of
all real parties in interest
for the entities. Do not list
the real parties if they are
the same as the entities.
None/Not Applicable
Provide the full names of
all parent corporations for
the entities and_ all
publicly held companies
that own 10% or more
stock in the entities.
L] None/Not Applicable
BB Ridgewood LLC
RMA Holdings LLC
BB Tices Corner LLC
RMA Holdings LLC
Beets Catering, Inc.
BEG, LLC
Bergen QSR, LLC
Big Dean's Ocean Front, Inc.
Bilamil, Inc.
Bill-Es, LLC
Bitetime LLC
Black Sails Brewery and Taproom LLC
Blackberry River Baking Co LLC
Additional pages attached
Case: 25-1373
FORM 9. Certificate of Interest
Document: 18 Page: 9
Filed: 04/23/2025
Form 9 (p. 2)
March 2023
1. Represented
Entities.
Fed. Cir. R. 47.4(a)(1).
2. Real Party in
Interest.
Fed. Cir. R. 47.4(a)(2).
3. Parent Corporations
and Stockholders.
Fed. Cir. R. 47.4(a)(8).
Provide the full names of
all entities represented by
undersigned counsel in
this case.
Provide the full names of
all real parties in interest
for the entities. Do not list
the real parties if they are
the same as the entities.
None/Not Applicable
Provide the full names of
all parent corporations for
the entities and_ all
publicly held companies
that own 10% or more
stock in the entities.
[3] None/Not Applicable
Bob Maxwell Walk-A-Ways, Inc.
Bonavida Inc.
Bradford & Marth LLC
Bridgewater QSR, LLC
Brookpark Freeway Lanes
Bru Daddy's Brewing Co.
Burger Fry Pie LLC
BW Brands LLC
CA Partners LLC
Caduceus Enterprises Inc
Café Martin LLC
Additional pages attached
Case: 25-1373
FORM 9. Certificate of Interest
Document: 18
Page: 10
Filed: 04/23/2025
Form 9 (p. 2)
March 2023
1. Represented
Entities.
Fed. Cir. R. 47.4(a)(1).
2. Real Party in
Interest.
Fed. Cir. R. 47.4(a)(2).
3. Parent Corporations
and Stockholders.
Fed. Cir. R. 47.4(a)(8).
Provide the full names of
all entities represented by
undersigned counsel in
this case.
Provide the full names of
all real parties in interest
for the entities. Do not list
the real parties if they are
the same as the entities.
None/Not Applicable
Provide the full names of
all parent corporations for
the entities and_ all
publicly held companies
that own 10% or more
stock in the entities.
None/Not Applicable
Cafe Veranda Enterprises Inc.
Canal Street Food Corporation
Carefree Foods LLC
CB Riverfront, LLC
CGV Hospitality Holdings LLP
Chaos Brewing Company, LLC
Chateau Diana LLC
Chin & Sue Inc.
Cibo 2621 LLC
CITY STATE INC.
Claudisal Rest. Corp.
Additional pages attached
Case: 25-1373
FORM 9. Certificate of Interest
Document: 18
Page: 11
Filed: 04/23/2025
Form 9 (p. 2)
March 2023
1. Represented
Entities.
Fed. Cir. R. 47.4(a)(1).
2. Real Party in
Interest.
Fed. Cir. R. 47.4(a)(2).
3. Parent Corporations
and Stockholders.
Fed. Cir. R. 47.4(a)(8).
Provide the full names of
all entities represented by
undersigned counsel in
this case.
Provide the full names of
all real parties in interest
for the entities. Do not list
the real parties if they are
the same as the entities.
None/Not Applicable
Provide the full names of
all parent corporations for
the entities and_ 6 all
publicly held companies
that own 10% or more
stock in the entities.
L] None/Not Applicable
Colossal Cafe St. Paul, LLC
Comoncy Galleria, LLC
Comoncy Westwood, LLC
Cooper's Cave Ale Company, LTD.
Craft on Draught
Cravings Lakehouse LLC
Crudo Restaurant Group, LLC
CTC Cafe Encino, LLC
Alliance Foods Holdings, LLC
Cubanisisimo LLC
Cuenca LLC
Cult Bowl & Brew LLC
Additional pages attached
Case: 25-1373
FORM 9. Certificate of Interest
Document: 18
Page: 12
Filed: 04/23/2025
Form 9 (p. 2)
March 2023
1. Represented
Entities.
Fed. Cir. R. 47.4(a)(1).
2. Real Party in
Interest.
Fed. Cir. R. 47.4(a)(2).
3. Parent Corporations
and Stockholders.
Fed. Cir. R. 47.4(a)(8).
Provide the full names of
all entities represented by
undersigned counsel in
this case.
Provide the full names of
all real parties in interest
for the entities. Do not list
the real parties if they are
the same as the entities.
None/Not Applicable
Provide the full names of
all parent corporations for
the entities and_ all
publicly held companies
that own 10% or more
stock in the entities.
None/Not Applicable
Daniel Marciano LLC
Danlex LLC
Darr Works, LLC
DB California Hero Inc
Diamond Girls Bartenders, LLC
Dish Functional, Inc.
DLS US LLC
DM Concessions, Inc
DOC Restaurant Group LLC
Dos Pulpos LLC
DOSEY DOE, INC
Additional pages attached
Case: 25-1373
FORM 9. Certificate of Interest
Document: 18
Page: 13 Filed: 04/23/2025
Form 9 (p. 2)
March 2023
1. Represented
Entities.
Fed. Cir. R. 47.4(a)(1).
2. Real Party in
Interest.
Fed. Cir. R. 47.4(a)(2).
3. Parent Corporations
and Stockholders.
Fed. Cir. R. 47.4(a)(8).
Provide the full names of
all entities represented by
undersigned counsel in
this case.
Provide the full names of
all real parties in interest
for the entities. Do not list
the real parties if they are
the same as the entities.
None/Not Applicable
Provide the full names of
all parent corporations for
the entities and_ all
publicly held companies
that own 10% or more
stock in the entities.
None/Not Applicable
Dozen Bagels Co. Inc.
Dragonmead LLC
Driftwood Bay Concepts, Inc.
DT Deli LLC
Dust Investments, Inc.
EBVA1, LLC
EC Sparty LLC
ECI Investments, LLC
Educational Catering, Inc.
EJC Entertainment LLC
Emmar Biggens LLC DBA The Diner
Additional pages attached
Case: 25-1373
FORM 9. Certificate of Interest
Document: 18
Page: 14
Filed: 04/23/2025
Form 9 (p. 2)
March 2023
1. Represented
Entities.
Fed. Cir. R. 47.4(a)(1).
2. Real Party in
Interest.
Fed. Cir. R. 47.4(a)(2).
3. Parent Corporations
and Stockholders.
Fed. Cir. R. 47.4(a)(8).
Provide the full names of
all entities represented by
undersigned counsel in
this case.
Provide the full names of
all real parties in interest
for the entities. Do not list
the real parties if they are
the same as the entities.
None/Not Applicable
Provide the full names of
all parent corporations for
the entities and_ all
publicly held companies
that own 10% or more
stock in the entities.
None/Not Applicable
ETM CFC Holdings, Inc. as successor-
in-interest of Componere Fine Catering
Inc.
Exquisite Catering LLC
Field Day Incorporated
Florentynas Inc.
Food Services, Inc.
Fresh Pulp Holdings LLC
Frozen Smiles Incorporated
Fruit Caboose Concessions Inc
Galbreath Enterprises Inc.
Ganesh Laxmi
Garvey's Sports Bar and Grill LLC
Additional pages attached
Case: 25-1373
FORM 9. Certificate of Interest
Document: 18
Page: 15
Filed: 04/23/2025
Form 9 (p. 2)
March 2023
1. Represented
Entities.
Fed. Cir. R. 47.4(a)(1).
2. Real Party in
Interest.
Fed. Cir. R. 47.4(a)(2).
3. Parent Corporations
and Stockholders.
Fed. Cir. R. 47.4(a)(8).
Provide the full names of
all entities represented by
undersigned counsel in
this case.
Provide the full names of
all real parties in interest
for the entities. Do not list
the real parties if they are
the same as the entities.
None/Not Applicable
Provide the full names of
all parent corporations for
the entities and_ all
publicly held companies
that own 10% or more
stock in the entities.
[] None/Not Applicable
GHM Trading Inc.
Goosecup Coffee LLC
Goosecup Holdings LLC
Gowa Inc
Grace Skye LLC
Gracie’s Inspiration, LLC
Great Food 57th ST, LLC
Greater Buffalo Restaurants, Inc.
Griffon Enterprises, Inc
Griffon Gastro Pub Inc
Griggs Industries LLC
H&D Restaurants, LLC
Additional pages attached
Case: 25-1373
FORM 9. Certificate of Interest
Document: 18
Page: 16
Filed: 04/23/2025
Form 9 (p. 2)
March 2023
1. Represented
Entities.
Fed. Cir. R. 47.4(a)(1).
2. Real Party in
Interest.
Fed. Cir. R. 47.4(a)(2).
3. Parent Corporations
and Stockholders.
Fed. Cir. R. 47.4(a)(8).
Provide the full names of
all entities represented by
undersigned counsel in
this case.
Provide the full names of
all real parties in interest
for the entities. Do not list
the real parties if they are
the same as the entities.
None/Not Applicable
Provide the full names of
all parent corporations for
the entities and_ all
publicly held companies
that own 10% or more
stock in the entities.
None/Not Applicable
H&H Restaurants, Inc. Trading Inc.
H.S. Cheema, Inc
Hackstaff Restaurants, LLC
Harry Bassilakis dba Quaker Diner
HDH Investments, LLC
Hearth Bakery, Inc.
Hennepin Enterprises Inc
Heritage Northwest, Inc.
Hill Country Chicken NY, LLC
Hill Country DC LLC
Hill Country NY LLC
Additional pages attached
Case: 25-1373
FORM 9. Certificate of Interest
Document: 18
Page: 17
Filed: 04/23/2025
Form 9 (p. 2)
March 2023
1. Represented
Entities.
Fed. Cir. R. 47.4(a)(1).
2. Real Party in
Interest.
Fed. Cir. R. 47.4(a)(2).
3. Parent Corporations
and Stockholders.
Fed. Cir. R. 47.4(a)(8).
Provide the full names of
all entities represented by
undersigned counsel in
this case.
Provide the full names of
all real parties in interest
for the entities. Do not list
the real parties if they are
the same as the entities.
None/Not Applicable
Provide the full names of
all parent corporations for
the entities and_ all
publicly held companies
that own 10% or more
stock in the entities.
None/Not Applicable
HK Express Falls Church Inc
Hot Indian Foods LLC
HSD Enterprises, Inc
Hunan Cafe Alexandria Inc.
Hystike A.W., LLC
I WRAP LLC
J&H Breakfastology Inc.
James Fraser
Jamestown Mercantile Cafe LLC
Jay Square LLC
Jimmy Ks Restaurants LLC
Additional pages attached
Case: 25-1373
FORM 9. Certificate of Interest
Document: 18
Page: 18
Filed: 04/23/2025
Form 9 (p. 2)
March 2023
1. Represented
Entities.
Fed. Cir. R. 47.4(a)(1).
2. Real Party in
Interest.
Fed. Cir. R. 47.4(a)(2).
3. Parent Corporations
and Stockholders.
Fed. Cir. R. 47.4(a)(8).
Provide the full names of
all entities represented by
undersigned counsel in
this case.
Provide the full names of
all real parties in interest
for the entities. Do not list
the real parties if they are
the same as the entities.
None/Not Applicable
Provide the full names of
all parent corporations for
the entities and_ all
publicly held companies
that own 10% or more
stock in the entities.
None/Not Applicable
Jin Li Yuan Inc
JK Food Inc
JKC Fine Dining Inc.
JNE CANDY Co LLC
Johnnys Gone Fishing
JT's Cafe Blue Point Inc
JT's Farmhouse Inc
Kate O'Briens, Inc.
Katlo Inc
Kefaya's Cafe
Kenco Catering, Inc.
Additional pages attached
Case: 25-1373
FORM 9. Certificate of Interest
Document: 18
Page: 19
Filed: 04/23/2025
Form 9 (p. 2)
March 2023
1. Represented
Entities.
Fed. Cir. R. 47.4(a)(1).
2. Real Party in
Interest.
Fed. Cir. R. 47.4(a)(2).
3. Parent Corporations
and Stockholders.
Fed. Cir. R. 47.4(a)(8).
Provide the full names of
all entities represented by
undersigned counsel in
this case.
Provide the full names of
all real parties in interest
for the entities. Do not list
the real parties if they are
the same as the entities.
None/Not Applicable
Provide the full names of
all parent corporations for
the entities and_ all
publicly held companies
that own 10% or more
stock in the entities.
L] None/Not Applicable
Kimberly Ann Hartman
Kitchen at the Dovegate Inn, LLC
KY-LA Development
L Carpentier Inc
La Vela Ristorante Inc.
Lake Park Steakhouse
Lakes Hospitality Inc
Laser Entertainment Group, Inc
Le Qi De Inc.
Le Royale LLC
Hadidi Capital, LLC
Leadville Grill, LLC
Additional pages attached
Case: 25-1373
FORM 9. Certificate of Interest
Document: 18
Page: 20
Filed: 04/23/2025
Form 9 (p. 2)
March 2023
1. Represented
Entities.
Fed. Cir. R. 47.4(a)(1).
2. Real Party in
Interest.
Fed. Cir. R. 47.4(a)(2).
3. Parent Corporations
and Stockholders.
Fed. Cir. R. 47.4(a)(8).
Provide the full names of
all entities represented by
undersigned counsel in
this case.
Provide the full names of
all real parties in interest
for the entities. Do not list
the real parties if they are
the same as the entities.
None/Not Applicable
Provide the full names of
all parent corporations for
the entities and_ all
publicly held companies
that own 10% or more
stock in the entities.
None/Not Applicable
Lincoln Liquor LLC
Lix LLC
Local Buffalo Inc
Local Grille and Catering LLC
LouLou LLC
Lynden Pioneers, Inc.
M&M Establishments Inc.
M. D. Associates, LLC
Mad Raven Inc
Maideneire LLC
Make Beverage Group LLC
Additional pages attached
Case: 25-1373
FORM 9. Certificate of Interest
Document: 18
Page: 21
Filed: 04/23/2025
Form 9 (p. 2)
March 2023
1. Represented
Entities.
Fed. Cir. R. 47.4(a)(1).
2. Real Party in
Interest.
Fed. Cir. R. 47.4(a)(2).
3. Parent Corporations
and Stockholders.
Fed. Cir. R. 47.4(a)(8).
Provide the full names of
all entities represented by
undersigned counsel in
this case.
Provide the full names of
all real parties in interest
for the entities. Do not list
the real parties if they are
the same as the entities.
None/Not Applicable
Provide the full names of
all parent corporations for
the entities and_ all
publicly held companies
that own 10% or more
stock in the entities.
None/Not Applicable
Mama Jennie's Italian Restaurant Inc.
Mangia You Food LLC
Mary Lane Cafe
MateVeza USA, LLC
Maurices Deli At South Pearl St LLC
Mexican Mafia LLC
Millers LLC
Mineshaft Properties LLC
MM Associates, LLC
Moderne Barn Armonk, Inc
Muscle Bar LLC
Additional pages attached
Case: 25-1373
FORM 9. Certificate of Interest
Document: 18
Page: 22
Filed: 04/23/2025
Form 9 (p. 2)
March 2023
1. Represented
Entities.
Fed. Cir. R. 47.4(a)(1).
2. Real Party in
Interest.
Fed. Cir. R. 47.4(a)(2).
3. Parent Corporations
and Stockholders.
Fed. Cir. R. 47.4(a)(8).
Provide the full names of
all entities represented by
undersigned counsel in
this case.
Provide the full names of
all real parties in interest
for the entities. Do not list
the real parties if they are
the same as the entities.
None/Not Applicable
Provide the full names of|
all parent corporations for
the entities and_ all
publicly held companies
that own 10% or more
stock in the entities.
—] None/Not Applicable
Nada Nashville, LLC
Nada Development, LLC
Napa Valley Brewing Co. Inc.
Natalie Castaneda
NBJ Concepts, Inc
New England Venture Group, LLC
New Jersey ABP Ine.
Next Rep Solutions LLC
Night Owl Inc
Northeast Pie, LLC
Nostrana, LLC
Not Just Chocolate LLC
Additional pages attached
Case: 25-1373
FORM 9. Certificate of Interest
Document: 18
Page: 23 Filed: 04/23/2025
Form 9 (p. 2)
March 2023
1. Represented
Entities.
Fed. Cir. R. 47.4(a)(1).
2. Real Party in
Interest.
Fed. Cir. R. 47.4(a)(2).
3. Parent Corporations
and Stockholders.
Fed. Cir. R. 47.4(a)(8).
Provide the full names of
all entities represented by
undersigned counsel in
this case.
Provide the full names of
all real parties in interest
for the entities. Do not list
the real parties if they are
the same as the entities.
None/Not Applicable
Provide the full names of
all parent corporations for
the entities and_ all
publicly held companies
that own 10% or more
stock in the entities.
L] None/Not Applicable
NYC Burger No. 1 LLC
O.R.S.I LLC
Old Town Properties, LLC
Ollies 42nd LLC
On My Grind Coffee
Oregon Enterprises Inc.
Organic Juice Bar Cranberry LLC
P&C Sweet Home LLC
P.DiBurro & Sons Inc
P2 Inc.
PITCH DEV LLC
Papanicolaou Enterprises
Additional pages attached
Case: 25-1373
FORM 9. Certificate of Interest
Document: 18 Page: 24
Filed: 04/23/2025
Form 9 (p. 2)
March 2023
1. Represented
Entities.
Fed. Cir. R. 47.4(a)(1).
2. Real Party in
Interest.
Fed. Cir. R. 47.4(a)(2).
3. Parent Corporations
and Stockholders.
Fed. Cir. R. 47.4(a)(8).
Provide the full names of
all entities represented by
undersigned counsel in
this case.
Provide the full names of
all real parties in interest
for the entities. Do not list
the real parties if they are
the same as the entities.
None/Not Applicable
Provide the full names of
all parent corporations for
the entities and_ all
publicly held companies
that own 10% or more
stock in the entities.
None/Not Applicable
PBS Creative Inc
Peppercini's Deli & Catering
Petra NY LLC
Picnic Time Inc
Pippo Pluto Paperino Inc
Pirate Petes Soda Pop LLC Enterprises
Inc.
Pitchoun Inc.
Planet Popcorn, Inc.
Plaza Restaurant LLC
Polvora, Inc.
Popop Corporation
Additional pages attached
Case: 25-1373
FORM 9. Certificate of Interest
Document: 18 Page: 25
Filed: 04/23/2025
Form 9 (p. 2)
March 2023
1. Represented
Entities.
Fed. Cir. R. 47.4(a)(1).
2. Real Party in
Interest.
Fed. Cir. R. 47.4(a)(2).
3. Parent Corporations
and Stockholders.
Fed. Cir. R. 47.4(a)(8).
Provide the full names of
all entities represented by
undersigned counsel in
this case.
Provide the full names of
all real parties in interest
for the entities. Do not list
the real parties if they are
the same as the entities.
None/Not Applicable
Provide the full names of
all parent corporations for
the entities and_ all
publicly held companies
that own 10% or more
stock in the entities.
None/Not Applicable
Potomac Cuisinary Services Inc
Potomac Food Services Inc
Propaganda Wynwood LLC
PublicUs LLC
Queen City Foods, LLC
Quins Bar LLC
Rappahannock Entertainment Center
Inc.
RC Investment Group, LLC
Red Lantern Inc
Red Parrot Restaurant Inc.
Reel and Karat Restaurant Group, LLC
Additional pages attached
Case: 25-1373
FORM 9. Certificate of Interest
Document: 18 Page: 26
Filed: 04/23/2025
Form 9 (p. 2)
March 2023
1. Represented
Entities.
Fed. Cir. R. 47.4(a)(1).
2. Real Party in
Interest.
Fed. Cir. R. 47.4(a)(2).
3. Parent Corporations
and Stockholders.
Fed. Cir. R. 47.4(a)(8).
Provide the full names of
all entities represented by
undersigned counsel in
this case.
Provide the full names of
all real parties in interest
for the entities. Do not list
the real parties if they are
the same as the entities.
None/Not Applicable
Provide the full names of
all parent corporations for
the entities and_ all
publicly held companies
that own 10% or more
stock in the entities.
None/Not Applicable
Restaurant Associate of Cincinnati, Inc.
Restaurantes Kayarda, Inc
Ristorante Piemontese
Rokamco Distributing Inc.
Rougefox Entertainment LLC
Royal Nepal LLC
Salad Heads Inc.
San Francisco Pub Company LLC
Sandusky Star Lanes Inc
Sanko Restaurant Inc
Savory Kitchen, LLC
Additional pages attached
Case: 25-1373
FORM 9. Certificate of Interest
Document: 18
Page: 27
Filed: 04/23/2025
Form 9 (p. 2)
March 2023
1. Represented
Entities.
Fed. Cir. R. 47.4(a)(1).
2. Real Party in
Interest.
Fed. Cir. R. 47.4(a)(2).
3. Parent Corporations
and Stockholders.
Fed. Cir. R. 47.4(a)(8).
Provide the full names of
all entities represented by
undersigned counsel in
this case.
Provide the full names of
all real parties in interest
for the entities. Do not list
the real parties if they are
the same as the entities.
None/Not Applicable
Provide the full names of
all parent corporations for
the entities and_ all
publicly held companies
that own 10% or more
stock in the entities.
L] None/Not Applicable
Schwarz2 Corporation
Sheryl Ann Catering LLC
Shibumi LLC
Solo Restaurant LLC
South Indian LLC
Southern Restaurant Operations, LLC
Southern Restaurant Holdings, LLC
Stag Dining Group, Inc.
StandEatDrink, LLC
Star Lanes at the Harbor Ltd
Sternbach Holdings LLC
Stove 3 West Chester LLC
Additional pages attached
Case: 25-1373
FORM 9. Certificate of Interest
Document: 18 Page: 28
Filed: 04/23/2025
Form 9 (p. 2)
March 2023
1. Represented
Entities.
Fed. Cir. R. 47.4(a)(1).
2. Real Party in
Interest.
Fed. Cir. R. 47.4(a)(2).
3. Parent Corporations
and Stockholders.
Fed. Cir. R. 47.4(a)(8).
Provide the full names of
all entities represented by
undersigned counsel in
this case.
Provide the full names of
all real parties in interest
for the entities. Do not list
the real parties if they are
the same as the entities.
None/Not Applicable
Provide the full names of
all parent corporations for
the entities and_ all
publicly held companies
that own 10% or more
stock in the entities.
None/Not Applicable
Strike Holdings, LLC
Sub of Subs, LLC
Surfridge Brewing Company East, LLC
Susette Slevin
SW3, LLC
Szakacs Investments LLC
Tacky Tarpon, Inc.
Taj Niel Inc
Taste of A'Roma, Inc.
Tastings Inc
Additional pages attached
Case: 25-1373
FORM 9. Certificate of Interest
Document: 18 Page: 29
Filed: 04/23/2025
Form 9 (p. 2)
March 2023
1. Represented
Entities.
Fed. Cir. R. 47.4(a)(1).
2. Real Party in
Interest.
Fed. Cir. R. 47.4(a)(2).
3. Parent Corporations
and Stockholders.
Fed. Cir. R. 47.4(a)(8).
Provide the full names of
all entities represented by
undersigned counsel in
this case.
Provide the full names of
all real parties in interest
for the entities. Do not list
the real parties if they are
the same as the entities.
None/Not Applicable
Provide the full names of
all parent corporations for
the entities and_ all
publicly held companies
that own 10% or more
stock in the entities.
None/Not Applicable
TC Dugan Enterprises Inc
TDMull Properties, Inc.
Tereneo 3634 LLC
The City Catering Company, Inc.
The Dirty Bourbon Dance Hall &
Saloon CS LLC
The Dirty Bourbon Dance Hall &
Saloon LLC
The Dudes' Brewing Company, LLC
The Falls Bar Limited Partnership
The Firehouse BBQ, LLC
The Gutter Bar LES LLC
The Gutter Bar LLC
Additional pages attached
Case: 25-1373
FORM 9. Certificate of Interest
Document: 18 Page: 30
Filed: 04/23/2025
Form 9 (p. 2)
March 2023
1. Represented
Entities.
Fed. Cir. R. 47.4(a)(1).
2. Real Party in
Interest.
Fed. Cir. R. 47.4(a)(2).
3. Parent Corporations
and Stockholders.
Fed. Cir. R. 47.4(a)(8).
Provide the full names of
all entities represented by
undersigned counsel in
this case.
Provide the full names of
all real parties in interest
for the entities. Do not list
the real parties if they are
the same as the entities.
None/Not Applicable
Provide the full names of
all parent corporations for
the entities and_ all
publicly held companies
that own 10% or more
stock in the entities.
kK] None/Not Applicable
The Hearthstone Restaurant Group, Inc.
The Katie Catlin Corporation
The Phoenix Irish Bar, LLC
The Pulpo Group Inc.
The Regatta On Grand
The Sleek Greek LLC
The Stave, Inc.
The Studio, an Artistic Dining
Experience, Inc
The Victor Cafe
Thomas Costa dba North Plank Road
Tavern
Three Sheets, LLC
Additional pages attached
Case: 25-1373
FORM 9. Certificate of Interest
Document: 18 Page: 31
Filed: 04/23/2025
Form 9 (p. 2)
March 2023
1. Represented
Entities.
Fed. Cir. R. 47.4(a)(1).
2. Real Party in
Interest.
Fed. Cir. R. 47.4(a)(2).
3. Parent Corporations
and Stockholders.
Fed. Cir. R. 47.4(a)(8).
Provide the full names of
all entities represented by
undersigned counsel in
this case.
Provide the full names of
all real parties in interest
for the entities. Do not list
the real parties if they are
the same as the entities.
None/Not Applicable
Provide the full names of
all parent corporations for
the entities and_ all
publicly held companies
that own 10% or more
stock in the entities.
None/Not Applicable
Three-Zero-Eight, LLC
Timios Enterprises Corp
Tom Ralys
Trel Restaurant Inc
Updog LLC
Ushers of Moorhead LLC
Vasiliki Corp
Village Food Court LLC
Village Tavern Salem, Inc
VS Services, L.L.C.
Waterstone Events, Inc.
Additional pages attached
Case: 25-1373
FORM 9. Certificate of Interest
Document: 18 Page: 32
Filed: 04/23/2025
Form 9 (p. 2)
March 2023
1. Represented
Entities.
Fed. Cir. R. 47.4(a)(1).
2. Real Party in
Interest.
Fed. Cir. R. 47.4(a)(2).
3. Parent Corporations
and Stockholders.
Fed. Cir. R. 47.4(a)(8).
Provide the full names of
all entities represented by
undersigned counsel in
this case.
Provide the full names of
all real parties in interest
for the entities. Do not list
the real parties if they are
the same as the entities.
None/Not Applicable
Provide the full names of
all parent corporations for
the entities and_ all
publicly held companies
that own 10% or more
stock in the entities.
None/Not Applicable
Whiskey R. LLC
Whitney's Inn, LLC
Winchester Inn LLC
WLC Restaurant LLC
Xenia Enterprises Inc
Yajika Restaurants, Inc
Zechsan Business Development Inc.
LJ Additional pages attached
Case: 25-1373 Document:18 Page:39 _ Filed: 04/23/2025
STATEMENT OF RELATED CASES
No other appeal in or from the present civil action has previously been
before this or any other appellate court. Plaintiffs are not aware of any related
cases within the meaning of Federal Circuit Rule 47.5(b).
vill
Case: 25-1373 Document:18 Page:40 _ Filed: 04/23/2025
INTRODUCTION
The COVID-19 pandemic required restaurants to severely limit their
operations to help contain the virus. Appx.52-53. The financial effects were
devastating. The restaurant industry saw sales drop in 2020 by an estimated
$240 billion. Appx.53. And as revenue plummeted, restaurants were
simultaneously hit with skyrocketing operating expenses due to labor and
supply-chain shortages. Congress took note: “Restaurants across the
country, a notoriously-thin margin business, faced full or partial shutdowns,
and limited capacity and abbreviated hours when they were open.”' Through
legislation creating the Restaurant Revitalization Fund (“RRF”), enacted in
March 2021, Congress committed to compensating restaurants for revenue
they lost in 2020 as a result of the pandemic.”
Congress started off the Fund with $28.6 billion “in addition to amounts
otherwise available.” 15 U.S.C. § 9009c(b)(2). Congress required the Small
Business Administration (“SBA”) to administer the program, and it laid down
detailed mandatory rules regarding who would receive grants and how grant
‘ Committee on the Budget, United States House of Representatives, H.R.
Rep. No. 117-7 (Feb. 24, 2021), at 457.
2 See American Rescue Plan Act of 2021, Pub. L. 117-2, 135 Stat. 5 (Mar. 11,
2021), Section 5003, codified at 15 U.S.C. § 9009c.
Case: 25-1373 Document:18 Page:41 ~ Filed: 04/23/2025
amounts were to be determined. Congress mandated that the SBA “shall use
amounts in the Fund to make grants” and “shall award grants to eligible
entities in the order in which applications are received.” Jd. §§ 9009c(b)(3),
(c)(1). And Congress specified that the amount paid out to each recipient “shall
be equal to the pandemic-related revenue loss of the eligible entity.” 15 U.S.C.
§ 9009c(c)(4).
Plaintiffs are small businesses in the restaurant industry. Many are
family-owned restaurants passed down through generations. All submitted
RRF applications on the first day, and many within the first hour, that SBA
accepted applications from the public. Appx.49. But SBA had not yet awarded
grants to Plaintiffs when it announced closure of the program. Appx.50-51.
Plaintiffs later learned that SBA had violated the statutory mandate to award
applications in the order received, and instead had depleted the Fund by
unlawfully awarding grants to applicants in line behind Plaintiffs.
SBA does not dispute that it violated Congress’ instructions to award
grants in the order in which applications were received or that Plaintiffs would
have received urgently-needed RRF grants had SBA complied with the law.
Appx.51. Plaintiffs would have been able to pay their expenses with the grant
money owed to them under Section 9009¢, but instead were forced to pay out
Case: 25-1373 Document:18 Page:42 Filed: 04/23/2025
of pockets already emptied by the pandemic. Many were forced to take out
loans, as the SBA had encouraged them to do in anticipation of receiving grant
money. Appx.51. Now, with mounting and compounding debt, many Plaintiffs
are on the verge of losing their businesses while they pursue damages claims
in this case. Mot. to Expedite at 9-11.
With no other options available, Plaintiffs filed this suit to recover what
they are owed: money damages for the injuries caused by SBA’s past violation
of the clear statutory payment mandate. As the trial court found in a
comprehensive opinion, the Tucker Act and its waiver of sovereign immunity
provide the proper avenue for Plaintiffs’ claims.
The government disagrees. In its view, Plaintiffs have no legal remedy
for SBA’s decision to flout Congress’ mandate. The government is wrong.
Section 9009c employs classic money-mandating language bringing this case
comfortably within the Tucker Act’s scope. Indeed, Section 9009c was written
and enacted in the wake of the Supreme Court’s seminal Tucker-Act-
jurisdiction decision, which held that the Affordable Care Act’s Risk Corridor
provision is money-mandating. See Me. Cmty. Health Options v. United
States, 590 U.S. 296, 324-25 (2020). Against that immediate backdrop,
Congress in Section 9009¢ chose to repeatedly use mandatory language that is
Case: 25-1373 Document:18 Page:43 Filed: 04/23/2025
materially indistinguishable from the language found to be money-mandating
in Maine. Congress also squarely focused Section 9009c on compensating
grant recipients for past injury under a “backwards-looking formula”—
revenue loss in the year before enactment—another feature which
“{blolster[ed]” the Supreme Court’s money-mandating holding in Maine. Id.
Maine provided the roadmap for creating a money-mandating obligation, and
Congress followed it to a tee in Section 9009c.
On the merits, SBA similarly contends that its statutory violations
cannot be remedied because it has already (by virtue of its statutory violation)
misspent all the money Congress provided. But as the trial court correctly
concluded, SBA “cannot evade its obligations by paying the wrong entities out
of the RRF and then claiming there is no money left to the pay the plaintiffs,
the text of the statute notwithstanding.” Appx.32.
At bottom, the government in this case seeks a holding that would have
the effect of broadly immunizing an executive-branch agency from judicial
review of its compliance with Congress’ mandatory directions on how to spend
appropriated funds in a short-term, one-time spending program. When
Congress mandates that agencies pay out certain money to certain entities in
a certain order, the agency must comply, and it cannot escape judicial review
Case: 25-1373 Document:18 Page: 44 Filed: 04/23/2025
by rushing money out the door in violation of Congress’ directives and then
claiming that it is too late for the courts to review its actions. When an agency’s
statutory violation causes injury, as here, the Court of Federal Claims has
jurisdiction to adjudicate damages claims arising from the statutory violation.
That straightforward and well-established principle decides this case.
STATEMENT OF JURISDICTION
This Court has jurisdiction pursuant to 28 U.S.C. §1292(d). The trial
court properly exercised jurisdiction under the Tucker Act.
STATEMENT OF THE ISSUES
1. Whether the trial court had jurisdiction over Plaintiffs’ suit.
2. Whether Plaintiffs have stated a claim upon which relief can be
granted.
STATEMENT OF THE CASE
1. The pandemic and government shutdown orders inflicted devastating
economic injury on restaurants across the country in 2020. Appx.48-49, 52-53.
The effects of those injuries were reverberating through the broader U.S.
economy when in March 2021 Congress established the Restaurant
Revitalization Fund (““RRF”) to compensate restaurants for “pandemic-
related revenue loss” incurred in the prior year. Section 9009c(c)(4)(B)(i).
RRF grants were computed under a backwards-looking statutory formula for
5
Case: 25-1373 Document:18 Page:45 _ Filed: 04/23/2025
determining the decline of gross receipts during 2020 as compared to 2019. Jd.
§ 9009¢(a)(7).
Congress required the Small Business Administration (“SBA”) to
administer the RRF program according to detailed statutory directives, 2d.
§ 9009c(a)(1); appropriated $28.6 billion exclusively for RRF grants “{iJn
addition to amounts otherwise available,” id. § 9009c(b)(2)(A); and mandated
that the SBA “shall award grants to eligible entities in the order in which
applications are received by the Administrator.” Jd. § 9009¢(¢)(1).
2. Plaintiffs are 303 businesses in the restaurant industry who met all
statutory requirements for RRF grants.? Appx.51-52, 82-83. Plaintiffs
submitted RRF applications on the first day the program was open to the
public, many within the first hour of Day 1. Appx.49. Plaintiffs’ applications
were among the first $28.6 billion eligible applications received by the SBA.
Appx.50-51, 86-87. But SBA announced that the program had closed before
Plaintiffs’ grants were awarded. Appx.50-51. Plaintiffs then learned that SBA
had disbursed RRF money in violation of Section 9009c. Despite that date and
®* The government has not challenged the sufficiency of the Complaint’s factual
allegations, nor attempted to contravene them. Accordingly, Plaintiffs’ factual
allegations are accepted as true for this appeal. See Shoshone Indian Tribe of
Wind River Rsrv. v. United States, 672 F.3d 1021, 1029-30 (Fed. Cir. 2012).
6
Case: 25-1373 Document:18 Page:46 Filed: 04/23/2025
time stamps recorded the receipt of every application, Appx.82, SBA ignored
the plain language of Section 9009c by awarding grants in the order
applications were processed instead of the order received. Appx.50. Plaintiffs
later determined that SBA had unlawfully disbursed to applicants in line
behind Plaintiffs an amount of grant money that exceeded the total that SBA
was required to award Plaintiffs. Appx.86. Accordingly, Plaintiffs allege (and
the government does not dispute on appeal) that their grants would have been
awarded had the agency followed the statutory command. Appx.51, 87. SBA
failed to award grants to Plaintiffs as required by Section 9009c. See Appx.50-
51.
3. Plaintiffs filed this suit asserting a single count seeking presently due
damages for SBA’s violation of a money-mandating statute. The government
moved to dismiss for lack of subject matter jurisdiction. After oral argument,
the trial court swa sponte ordered supplemental briefing on the question
whether the complaint failed to state a claim upon which relief could be
granted. The trial court issued an order and 33-page opinion denying the
government’s motion to dismiss. Appx.1-33.
a. The trial court first concluded that Section 9009c is money-
mandating. The court reached that conclusion because Section 9009e: (i)
Case: 25-1373 Document:18 Page:47 Filed: 04/23/2025
requires that the SBA establish and administer the RRF program using
appropriated funds only for RRF grants; (ii) provides a backwards-looking
statutory formula for computing grants to compensate for prior pandemic-
related losses, and (iii) mandates that the agency “shall award grants to
eligible entities in the order in which applications are received.” Appx.13-14,
17-19.
b. The trial court further concluded that Plaintiffs were not required to
bring their claims under the Administrative Procedure Act (“APA”).
Examining the “true nature” of the action, the trial court explained that
“{P]laintiffs are seeking a one-time payment of a specific amount of money
they contend is due to them and are not seeking prospective relief nor are
[they] in an ongoing, long-term relationship with the federal government.”
Appx.15. The trial court rejected the government’s attempt to recharacterize
Plaintiffs’ claims as seeking prospective equitable relief by “shoehorn[ing]”
them into Bowen, explaining that the “complaint’s singular cause of action is
explicitly limited to a claim for money damages under the Tucker Act.”
Appx.10-11.
ec. Finally, the trial court held that Plaintiffs stated a claim upon which
relief can be granted. Appx.2. The court found that Section 9009¢ is not
Case: 25-1373 Document:18 Page:48 Filed: 04/23/2025
“capped” within the meaning of this Court’s precedents because it does not
include limiting language like “subject to available appropriations,” but
instead contains the open-ended phrase “in addition to amounts otherwise
available.” Appx.31. The trial court, moreover, explained that even if Section
9009c capped liability, Plaintiffs’ claims would survive because they should
have been awarded grants before funds were exhausted had the SBA complied
with Section 9009c. Appx.32-33. The trial court concluded that the
government “cannot evade its obligations by paying the wrong entities out of
the RRF and then claiming there is no money left to pay the plaintiffs.”
Appx.32.
SUMMARY OF THE ARGUMENT
I. The Court of Federal Claims has Tucker Act jurisdiction over this
suit. This case is on all fours with the Supreme Court’s controlling decision in
Maine, 590 U.S. 296. Here, as in Maine, the two relevant requirements for
jurisdiction are met: Section 9009c is money-mandating and Plaintiffs’ suit is
for money damages.
A. Section 9009¢ is money-mandating. The Supreme Court in Maine
confirmed the two key indicators that a statute is money-mandating: (1)
mandatory language and (2) compensation for past injury. Id. at 324-25.
Case: 25-1373 Document:18 Page:49 _ Filed: 04/23/2025
Section 9009c contains both features: It uses classic “shall” pay language
three times over to direct payments to a specified group to compensate for
past injuries stemming from COVID-19.
The government’s efforts to muddy this straightforward analysis are
unavailing. The government claims that Section 9009¢c merely sought to
establish a program while giving SBA carte blanche over the program’s
administration, including the decision whether to make payments at all. That
contention cannot be squared with the plain statutory text, which mandates
payments and directs SBA whom to pay. The government argues that because
Section 9009c contains an ordering requirement, Section 9009¢’s command
that SBA “shall award” should instead be interpreted to mean “may award”
such that payment obligations become discretionary. But as a matter of logic
and English, the additional requirement that SBA pay entities in the order in
which applications are received further constrains SBA’s discretion, rather
than enabling it.
Ultimately, the government fails to identify a single decision of any court
holding that a statute with mandatory language and a backwards-looking
formula to compensate for past injury is not money-mandating. One set of
cases cited by the government involve statutes without “shall” or similar
10
Case: 25-1373 Document:18 Page:50 _ Filed: 04/23/2025
mandatory language. The other set of cases (which the government labels as
“orant program” cases) involve statutes that did not seek to compensate
recipients for past injuries, but instead instituted forward-looking, long-term,
cooperative grant programs solely to subsidize future expenses. Supreme
Court precedent expressly distinguishes such statutes from this one, which
seeks to compensate for past injuries and calculates compensation by utilizing
a backwards-looking formula.
B. Plaintiffs’ suit is for money damages. While the government is
correct that suits for prospective injunctive relief typically cannot be brought
in the Court of Federal Claims and must instead proceed in district court
under the APA, this suit seeks no prospective relief. Plaintiffs were injured
by the SBA’s statutory violations that led to Plaintiffs not receiving funds
when they were due. Plaintiffs do not seek a judgment obligating SBA to
properly administer the now-defunct program going forward. Rather,
Plaintiffs request compensation for past injury: the SBA’s unlawful failure to
award their grants resulting in their payment of expenses out of pocket that
should have been paid by grant money.
II. Plaintiffs have stated a claim. Had SBA complied with Section
9009¢’s directives, Plaintiffs would have received money. The government
11
Case: 25-1373 Document:18 Page:51 Filed: 04/23/2025
contends that Plaintiffs’ suit for damages cannot succeed because SBA has
already misspent the money. That is not the law. Recovery in suits for money
damages like this one can come out of the Judgment Fund—a point the
government does not contest in its brief and has forfeited.
The government instead claims that Congress capped liability under the
RRF by appropriating a specific amount of money to the program. But
Congress went out of its way to specify that the amount it appropriated was to
be available “in addition to amounts otherwise available.” 15 U.S.C.
§ 9009c(b)(2)(A). This is open-ended language that does not evidence any
intent to limit liability for the SBA’s statutory violations and distinguishes the
RRF from the inapposite authorities upon which the government relies.
In any event, even if Section 9009c were read to create a capped
obligation, Plaintiffs’ claims are cognizable because SBA’s obligation to pay
Plaintiffs arose before the RRF’s funds were depleted. Put differently, even
if Congress capped the money-mandating obligation at $28.6 billion, Plaintiffs’
uncontroverted allegations establish that their applications fall within the
scope of that obligation. The government’s only argument on this point
collapses entirely into its jurisdictional arguments, effectively forfeiting it.
12
Case: 25-1373 Document:18 Page:52 Filed: 04/23/2025
STANDARD OF REVIEW
The trial court found that it had subject-matter jurisdiction over this
case and that Plaintiffs stated a claim upon which relief can be granted. These
holdings are reviewed de novo. Biltmore Forest Broad. FM, Inc. v. United
States, 555 F.3d 1375, 1880 (Fed. Cir. 2009); Cambridge v. United States, 558
F.3d 1331, 1835 (Fed. Cir. 2009).
ARGUMENT
Text and precedent make clear that Congress created an enforceable
legal obligation in the RRF that required the SBA to award grants to a
specified group of applicants that includes Plaintiffs. SBA’s undisputed
violation of this clear statutory mandate gave rise to a claim for money
damages under the Tucker Act that was properly brought in the Court of
Federal Claims.
I. The Trial Court Had Jurisdiction Under The Tucker Act
When an agency fails to comply with a statutory directive to pay money,
the Court of Federal Claims has jurisdiction under the Tucker Act for an
ensuing suit if two key requirements are satisfied. First, a suit must invoke a
money-mandating statute. United States v. White Mountain Apache
Tribe, 537 U.S. 465, 472 (2003); Fisher v. United States, 402 F.3d 1167, 1172
(Fed. Cir. 2005) (en banc in relevant part). And second, the suit must be for
13
Case: 25-1373 Document:18 Page:53 _ Filed: 04/23/2025
relief that the Court of Federal Claims is authorized to provide—typically,
money damages. See Suburban Mortg. Assocs. v. HUD, 480 F.8d 1116, 1124-
26 (Fed. Cir. 2007). Both requirements are satisfied here.
A. Section 9009c Is Money-Mandating
A statute creates a right capable of grounding a claim within the Tucker
Act’s waiver of sovereign immunity if it can “fairly be interpreted as
mandating compensation by the Federal Government for the damage
sustained.” White Mountain, 537 U.S. at 472 (cleaned up). The jurisdictional
inquiry turns on the question whether the plaintiff “is within the class of
plaintiffs entitled to recover under the statute if the elements of a cause of
action are established.” Greenlee Cownty v. United States, 487 F.3d 871, 876
(Fed. Cir. 2007).
As the Supreme Court recently explained in Mazne, there are two key
indicators that a statute is money-mandating: mandatory language and a focus
on compensating for past injury. See zd. at 324-25 (holding that the statute is
money-mandating because it contained mandatory language and focused on
compensating for past injury); see also Sanford Health Plan v. United States,
969 F.3d 13870, 1380, 1381 (Fed. Cir. 2020) (same). Both of those indicators are
present here.
14
Case: 25-1373 Document:18 Page:54 Filed: 04/23/2025
1. Section 9009c Uses Mandatory Language To Direct
Payments
A. “[A] statute commanding the payment of a specified amount of money
by the United States impliedly authorizes (absent other indication) a claim for
damages in the defaulted amount.” See Maine, 590 U.S. at 324 (cleaned up).
“Satisfying this rubric is generally both necessary and sufficient to permit a
Tucker Act suit for damages in the Court of Federal Claims.” Jd. at 323-24
(citation omitted). The prime indicator that an agency’s obligation to make
payments is mandatory is Congress’ use of the word “shall”: “[U]se of the
word ‘shall’ generally makes a statute money-mandating.” Greenlee County,
487 F.3d at 877 (citation omitted). As the Supreme Court has explained,
Congress’ use of “shall pay’ language often reflects congressional intent to
create both a right and a remedy under the Tucker Act.” Maine, 590 U.S. at
324 (cleaned up).
This presumption regarding Congress’ use of “shall” makes “good
sense.” Jd. at 323 n.12. Courts presume that “when Congress enacts statutes,
itis aware of relevant judicial precedent,” including the “history and precedent
surrounding the use of [a given] word”—here, “shall.” See Merck & Co. v.
Reynolds, 559 U.S. 633, 648 (2010). And courts have “repeatedly recognized
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that use of the word ‘shall’ generally makes a statute money-mandating.”
Agwiak v. United States, 347 F.3d 1375, 1880 (Fed. Cir. 2003).
Against this backdrop, Congress used the word “shall” multiple times in
Section 9009¢ when directing the SBA to make payments to a particular class
of persons. Congress directed that (i) the “Administrator shall use amounts
in the Fund to make grants”; (ii) that the Administrator “shall award grants
to eligible entities in the order in which applications are received by the
Administrator,” and (iii) that “the Amount of a grant made to an eligible entity
... Shall be equal to the pandemic-related revenue loss of the eligible entity.”
15 U.S.C. § 9009c(b)(8), (c)(), (c)(4) (emphases added). Section 9009c
therefore imposes a crystal-clear mandate to issue payments to eligible
entities in conformity with Congress’ directives. This makes the statute
money-mandating.
B. Making Congress’ intent all the more apparent is the fact that
Congress enacted Section 9009¢ and its triple “shall” mandate less than a year
after the Supreme Court issued Maine, which could not have been clearer
about the legal significance of Congress’ use of “shall” instead of “may” in
statutes directing payment. Maine concerned the Risk Corridors Program—
a program to issue payments to reduce health insurers’ financial risk during
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the first three years of the Affordable Care Act’s marketplaces. 590 U.S. at
300-01. Under that program, certain qualified health plans “with losses below
[a] threshold would receive payments from the Government.” Jd. at 302.
Congress refused to appropriate funds for the agency to make the payments,
and the government racked up a “deficit exceed[ing] $12 billion.” Jd. at 305.
The plaintiff health insurers subsequently sued for damages.
The Supreme Court concluded that Congress’ use of “shall” in that
statute (e.g., “shall establish and administer a program of risk corridors,”
“shall pay to” certain plans in certain circumstances, 42 U.S.C. § 18062(a), (b))
instead of “may” (which Congress used in nearby provisions) rendered the
statute “comfortably” “money-mandating.” Jd. at 310-11, 324-25 (cleaned up).
99 66
As the Court emphasized, Congress’ use of “mandatory” “shall pay” language
is “significant,” as it “often reflects congressional intent to create both a right
and a remedy under the Tucker Act.” Jd. at 324.
Just as in Maane, Section 9009¢’s mandatory language requires SBA to
“establish and administer the program,” mandates that the program “shall
provide for payment according to the statutory formula,” and directs SBA to
pay “qualifying” entities. See id. at 324-25. Section 9009c therefore also “falls
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comfortably within the class of money-mandating statutes that permit
recovery of money damages in the Court of Federal Claims.” Id.
And just as in Maine, “[a]djacent provisions also underscore [Section
9009¢’s] mandatory nature.” Jd. at 310. Section 9009a is another SBA
pandemic relief provision enacted in the wake of Maine. There, in contrast to
Section 9009c, Congress chose to use the discretionary “may award”
formulation, providing that the “Administrator may make ... grants to eligible
persons or entities.” 15 U.S.C. § 9009a(b)(2) (emphasis added). That choice
underscores the mandatory nature of 9009c’s “shall” directions. See Maine,
590 U.S. at 310-11. “Congress’ choice of words is presumed to be deliberate.”
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 357 (20138). And “[w]hen,
as is the case here, Congress distinguishes between ‘may’ and ‘shall,’ it is
generally clear that ‘shall’ imposes a mandatory duty.” Maine, 590 U.S. at
310-11 (cleaned up).
C. The government makes three main counterarguments. First, that
the triple “shall” mandate in Section 9009¢ requires only that SBA create and
administer a program, not that SBA actually pay qualifying applicants.
Second, that by including a requirement that SBA pay applicants in the order
in which SBA received applications, Congress made any payment obligation
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non-mandatory. And third, that courts have hesitated to conclude that
statutes without mandatory language are money-mandating. None of these
arguments are persuasive.
1. The government (at 16-17) makes the sweeping argument that
Section 9009c’s triple “shall” mandate does not require SBA to make any
payments at all and instead reflects only an obligation to “establish and
administer” a program, leaving everything else—including the question of
whether to spend any money at all—to SBA’s discretion. The government (at
16-17) claims that this distinguishes Section 9009c from the Risk Corridors
Statute at issue in Maine. This argument is plainly wrong: Section 9009c has
a triple mandate that is indistinguishable from Maine and required SBA to
make payments according to Congress’ dictates. Section 9009c speaks for
itself:
Mandate 1 - establish and administer a program:
e “There is established ... a fund to be known as the Restaurant
Revitalization Fund.” 15 U.S.C. § 9009e(b)(1).
e Congress provided a minimum amount of money to that fund,
specifying that the “Restaurant Revitalization Fund” “is
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appropriated” “$28,600,000,000” “{iJn addition to amounts
otherwise available.” 15 U.S.C. § 9009c(b)(2).
e “The Administrator shall use amounts in the Fund to make
grants described in subsection (c)” (i.e., in the order in which
applications are received). 15 U.S.C. § 9009c(b)(3).
Mandate 2 — payment according to a backwards-looking statutory
formula:
e “(T]he amount of a grant made to an eligible entity under this
subsection shall be equal to the pandemic-related revenue loss
of the eligible entity.” 15 U.S.C. § 9009¢(c)(4); see also id.
§ 9009c(a)(7) (detailing formula for calculation of “pandemic-
related revenue loss”).
Mandate 3 — the agency shall pay a defined class of beneficiaries:
e Congress mandated that “the Administrator shall award
grants to eligible entities in the order in which applications are
received.” 15 U.S.C. § 9009c(c)(1).
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This detailed series of mandates cannot plausibly be read as permitting
SBA discretion to not use the provided funds to award grants or to withhold
grants from earlier applicants in favor of later applicants.*
In any event, even if the government were correct that Section 9009c
contains only a single mandate, nothing in Maine suggests that Congress must
follow precisely the format of the Risk Corridors provision to render a statute
money-mandating. As Maine explains, the relevant question for purposes of
the Tucker Act is simply whether a statute can “fairly be interpreted as
mandating compensation by the Federal Government.” Maine, 590 U.S. at
323 (citation omitted). The use of “shall pay” language—which Section 9009c
indisputably contains—is by itself a sufficient basis for deeming a statute
money-mandating, whether or not it is paired with additional mandates from
Congress.
2. The government (at 17-20) argues that Section 9009¢ is not money-
mandating because it contains an ordering requirement, directing SBA to pay
“Tn fact, the government appears to agree in a different section of its brief that
Section 9009¢ does not contain discretionary language that would afford the
agency such discretion. See Gov. Br. at 28 (arguing that line of cases
pertaining to discretionary grant programs is not relevant due to lack of
discretionary statutory language in RRF).
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money to eligible applicants in the order in which applications are received.
According to the government, Section 9009c only provides “direction[] on how
the agency should make awards in general” and does not contain a “directly
stated ... payment mandate” and a “specified ... group to which the
Government shall make the payment.” Gov. Br. 17 (emphasis in original). This
argument is wrong for several reasons.
a. The premise of the government’s argument is incorrect. As
explained, Section 9009c does far more than merely provide “direction[] on
how the agency should make awards.” Contra Gov. Br. 17. Congress
mandated that awards be made, and it specified to whom the awards should
go and in what amounts. Congress expressly required that “[t]he
Administrator shall use amounts in the Fund to make grants described in
subsection (c).” 15 U.S.C. § 9009c(b)(3). That provision alone imposes a
mandatory obligation. Subsection (c) then repeats the payment command and
details to whom the payments must go and how much must be paid.
Even zooming in on subsection (c) alone, that provision’s use of an
ordering requirement does not make its “shall award grants” command any
less mandatory. As a matter of ordinary English and logic, imposing an
ordering requirement does not make mandatory language discretionary—it
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makes the language more prescriptive, by mandating an additional
consideration the actor must account for. Ifthe operator of a music venue tells
an employee that he “shall let people into the concert in the order in which
they lined up,” the employee would not have discretion to not let anyone in (or
to let late-arrivers in at the expense of those first in line). So too here,
Congress’ directive that the SBA “shall” award grants in the order
applications are received does not somehow vest the agency with discretion to
make awards in a different order.
Tellingly, the government (at 18) concedes that if Section 9009c had
provided that SBA “shall award grants” to “all eligible entities” or to “first-
day applicants,” the statute would be money-mandating. There is no
meaningful distinction between the government’s hypothetical instruction to
pay “first-day” applicants and the language Congress chose in Section 9009c.
In both situations, Congress identifies the class to whom the statute is money-
mandating: in the government’s hypothetical, to those who applied on the first
day; in Section 9009c, to those whose applications were received first in time
before the agency ran out of funds. Under the government’s own concession,
Section 9009c is money-mandating notwithstanding the fact that it contains an
ordering requirement.
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b. To the extent that the government’s theory is that Section 9009¢c is
not money-mandating because (given its ordering requirement) it could not be
known in advance which businesses would ultimately get paid, that theory
would not work either. For one thing, the same problem would face the
government’s hypothetical money-mandating statute directing payment to
“first-day applicants.” Gov. Br. 18. Until the applications come in, there is no
way of knowing who will be paid. For another, this ex ante indeterminacy is a
common feature of money-mandating statutes. Take for instance the
statutory scheme found to be money-mandating by the Supreme Court in
Maine. In the Risk Corridors Program, Congress required insurers who
profited to pay the agency, and insurers who lost money to be paid by the
agency. Maine, 590 U.S. at 302. No one knew in advance which insurers would
profit and which would lose money.”
Section 9009c required the agency to award grants in the order
applications were received until the appropriated funds were fully obligated.
> Tn fact, this uncertainty was central to the dispute in Maine; the government
vehemently argued that it was expected that payments to the losers would be
fully funded by the payments from the winners. When that did not happen,
the government argued that the losers could not collect the obligated money
from the Treasury, but the Supreme Court disagreed.
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That mandate defined a specific and determinable class of applicants that
included Plaintiffs. See Appx.22-23. Congress need not have been more
specific.
c. The government ignores cases holding that statutes with an ordering
requirement are no less money-mandating. For instance, 19 U.S.C. § 1619 has
been repeatedly held to be money-mandating, even though it contains a strict
prioritization requirement. See Doe v. United States, 100 F.3d 1576, 180 (Fed.
Cir. 1996) (collecting cases). That statute states that an informer who provides
“original information” to the government about customs violations that “leads
99 66
to a recovery” “may” be awarded a specified amount of compensation. 19
U.S.C. § 1619(a). In other words, only the “first” person to submit the
information under section 1619 can be paid. See Doe, 100 F.3d at 1579-80
(quoting Tyson v. United States, 32 F. Supp. 135, 136 (Ct. Cl. 1940)).
The statute is nonetheless money-mandating because it “confer[s] upon
the informer an absolute right to demand payment of the award when he ha[s]
met the conditions precedent thereto laid down by Congress,” including the
requirement that “the information” he provided “was the first information
which the secretary had.” Doe, 100 F.3d at 1579-80 (quoting Tyson, 32 F.
Supp. at 136)).
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This case is no different with regard to the ordering requirement: In
Section 9009c, “shall use amounts in the Fund to make grants” and “shall
award grants,” commands payment. And the phrases “to eligible entities” and
“in the order in which applications are received” together define “the class of
plaintiffs entitled to recover under the statute if the elements of a cause of
action are established.” See Greenlee County, 487 F.3d at 876. Plaintiffs have
alleged they were entitled to that money because they were “eligible entities”
whose applications were among the first $28.6 billion received, yet SBA
unlawfully did not follow the statutory command to award their grants.
Because Plaintiffs “met the conditions” Congress provided and SBA
nonetheless refused to pay, plaintiffs have “the right to file suit” under the
Tucker Act.
d. The government (at 17-18) cites cases in which courts have held
statutes without an ordering rule to be money-mandating. But the fact that
courts have held statutes without an ordering requirement to be money-
mandating does not mean that statutes with an ordering requirement are not
money-mandating. More to the point, the government has identified no case
holding or even suggesting that ordering rules render statutes non-money-
mandating. Nor is there any dicta, reasoning, or implication in any of the
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government’s cited cases that the result turned on the lack of an ordering
requirement.
3. The government’s policy arguments likewise fail.
The government (at 25) claims that Plaintiffs’ theory would “turn a wide
variety of alleged agency failures in managing a benefits program into
‘individual rights’ to money damages.” Not so. It is not Plaintiffs’ theory or
any individual right, but instead the statute passed by Congress that created
the mandatory obligation to pay. If the government fails to meet a payment
requirement to someone to whom Congress directed payment, longstanding
precedent dictates that person has a right to sue.
The government also argues that courts should not “read[] into statutes
an implied right of compensation for wrongful Government decisions or
actions.” Gov. Br. 22-26 (citing Kastport S. S. Corp. v. United States, 372 F.2d
1002 (Ct. Cl. 1967) and United States v. Testan, 424 U.S. 392 (1976)). As
explained, however, the payment obligation Plaintiffs seek to vindicate is not
implied—it is expressly provided for under the Tucker Act in light of Section
9009c’s mandatory “shall” language.
The use of mandatory language in Section 9009c distinguishes it from
the statute at issue in Hastport, which had no “shall pay” language or any
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equivalent. 372 F.2d at 1005 n.1. And Eastport emphasized that statutes that
do mandate payment (like Section 9009c) authorize suits for damages: “[A]
claimant who says that he is entitled to money from the United States because
a statute or a regulation (or the Constitution) grants him that right, in terms
or by implication, can properly come to the Court of Claims, at least if his claim
is not frivolous but arguable.” Jd. at 1008 (cleaned up).
Testan is similar to Eastport. Testan involved two statutes: the
Classification Act and the Back Pay Act. The Classification Act, which the
Court held to not be money-mandating, had no “shall pay” or equivalent
mandatory language. 424 U.S. at 399-400 (explaining that the statute contains
no “express provision for an award of backpay to a person who has been
erroneously classified”). The Back Pay Act, however, did create a money-
mandating obligation, and the plaintiffs in that case lost simply because the
statute did not cover them. So, as with Eastport, the principle in Testan is at
most that statutes lacking mandatory language will often not be money-
mandating. Section 9009c, however, imposes plainly mandatory obligations.
2. Section 9009c Compensates For Past Injury
Section 9009c’s backwards-looking statutory formula to compute grants
compensating for past injury confirms jurisdiction under the Tucker Act.
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A. A tell-tale sign that a statutory provision is money-mandating is its
“focus[] on compensating” beneficiaries “for past conduct” as opposed to
“subsidiz[ing] future state expenditures.” Maine, 590 U.S. at 325. The reason
why, the Supreme Court has explained, is that it is “likely that ... Congress
intend[s] ‘shall pay’ language in statutes” that “attempt to compensate ... for
past injuries or labors” “to be self-enforcing—i.e., to create both a right and a
remedy.” Bowen v. Massachusetts, 487 U.S. 879, 905 n.42 (1988). But when
Congress uses “shall pay” language in forward-looking, ongoing multi-year
programs, Congress is more likely to have intended “to provide merely a right,
knowing that the APA provide[s]” the more appropriate avenue for correcting
misapplication of such statutes on a prospective basis, which often requires
declaratory or injunctive relief. See id.
Maine spelled out a clear rule. Precedent “distinguish[es] statutes that
attempt to compensate a particular class of persons for past injuries or labors
from laws that subsidize future state expenditures.” Maine, 590 U.S. at 325
(quoting Bowen, 487 U.S. at 906 n.42). “The first group permits Tucker Act
suits; the second does not.” Jd.
Applying that rule, Maine held that the “Risk Corridors statute sits
securely in the first category” because the statute “uses a backwards-looking
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formula to compensate insurers for losses incurred in providing healthcare
coverage for the prior year.” Jd. The Risk Corridors statute, the Court
explained, is therefore not a “grant-in-aid program” directing an agency “to
subsidize future state expenditures” and as a result suits for money damages
under the statute belong in the Court of Federal Claims. Id. at 326-27 (citation
omitted).
This case is no different. As in Maine, Section 9009¢ “uses a backwards-
looking formula to compensate” restaurants “for losses incurred in ... the prior
year.” Jd. at 325. Congress mandated that a grant provided to an eligible
entity “shall be equal to the pandemic-related revenue loss of the eligible
entity”—i.e., a past loss. 15 U.S.C. § 9009c(c)(4). Congress’ formula for
calculating “pandemic-related revenue loss” in this 2021 legislation directed
compensation based on a restaurant’s 2020 gross receipts subtracted from the
restaurant’s 2019 gross receipts. 15 U.S.C. § 9009¢(a)(7)(A). In other words,
the statute directs compensation for pandemic-related losses a restaurant
suffered in the prior year by utilizing a “backwards-looking formula.” Less
than a year after Maine, Congress’ use of this “backwards-looking formula”
in combination with the “shall award” mandate strongly indicates that
Congress knew and intended that the implication of this statutory formulation
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was that damages claims would be permitted to remedy violations of the
statutory obligation to pay.
Further demonstrating that Congress’ focus was on compensation for
losses caused by the pandemic (as opposed to subsidizing future expenses) are
Section 9009c’s provisions ensuring that grant recipients receive only money
needed to compensate for COVID-caused financial injuries. Subsections (c)(5)
and (c)(6) provide that the entity receiving a grant “may use the grant funds
for [enumerated] expenses incurred as a direct result of, or during, the
COVID-19 pandemic” and require the return of any grant money in excess of
amounts expended in connection with the pandemic. In addition, subsection
(c)(4)(B) provides that in the case of a miscalculation of pandemic-related
losses (e.g., when the grant amount is based on estimations that overstate the
loss of revenue in 2020) the additional money must be returned—again
ensuring that grant money is tied to pandemic-related injury.
B. Section 9009c’s backward-looking nature distinguishes the
government’s “grant program” decisions that it contends conflict with the trial
court’s decision. Gov. Br. 30-34 (citing National Center and Lummz). Those
two decisions (which the government failed to cite below in its motion to
dismiss) involved ongoing programs that subsidized future expenses rather
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than compensated for past injuries—a doctrinally conclusive distinction. See
Bowen, 487 U.S. at 889; Maine, 590 U.S. at 326-27.
1. Start with National Center. The program there looks nothing like
this one. Congress allocated money for scientific research that was to be
utilized by the beneficiary for future expenses under a “Cooperative
Agreement” with the Air Force for joint public-private projects. See Nat'l Ctr.
for Mfg. Scis. v United States, 114 F.3d 196, 198, 201 (Fed. Cir. 1997). The
scheme there contemplated that the government would be “an active
participant” in the use of the funding plaintiff claimed it was entitled to, and
funding was for “collaborative projects” with the government. Jd. at 201. The
dispute in National Center therefore amounted to a dispute regarding “a
cooperative, ongoing relationship between [the plaintiff] and the Air Force in
the allocation and use of [certain] funds.” Jd. The plaintiffs suit “in effect
ask[ed] that the Air Force be required to expand the existing contractual
relationship [with the government] or to create a new one to cover the
remaining appropriated but unobligated funds.” /d. at 202. The claims at issue
sought to compel the government to allocate more money to future contracts
with the plaintiff. It was clear that, unlike here, the plaintiff there was “not
seeking money in compensation for losses that it has suffered or will suffer as
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a result of the withholding of [the disputed] funds.” Jd. at 200. The Court
unsurprisingly held that under Bowen, that suit belonged in federal district
court. Id.
The National Center Court, however, also took care to distinguish that
forward-looking program from provisions like Section 9009c. The Court
explained that “[t]he statutory mandate of a federal grant-in-aid program ...
differs from the mandate of a statute designed to afford ‘compensation for a
past wrong,’ in that the former ‘directs the [government] to pay money to the
[recipient] not as compensation for a past wrong, but to subsidize future ...
expenditures.” Jd. at 201 (quoting Bowen, 487 U.S. at 907 n.42)). Suits
regarding statutes “that provide compensation for specific instances of past
injuries or labors,” in contrast, the Court emphasized, “fall[] squarely within
the competence of the Court of Federal Claims” and a “Tucker Act remedy is
available.” Jd. at 201, 202.
2. Lummi is no different. The program there was an annual “block
grant system” whereby Indian tribes received funding based upon a
“calculated operating subsidy and modernization allocation,” to be held in
trust to provide affordable housing to their members. Lwmmi Tribe of the
Lummi Rsrv.. Wash. v. United States, 870 F.3d 1318, 1815, 1318 (Fed. Cir.
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2017). In other words, the program was not to refill tribal coffers to
compensate for past expenditures; the program subsidized future
expenditures for affordable housing and its modernization.
Moreover, the money would go to the Tribe, not for the Tribe to spend
on its own expenses, but instead to purchase property that must be “held in
trust” by the Tribe for statutory beneficiaries subject to comprehensive
federal oversight. Jd. at 1318. The statute, in other words, authorized grants
of money that the Tribes had to use in cooperation with federal regulators for
the future benefit of third parties. Lwmmi analogized that scheme to the one
in National Center and found that any money paid in satisfaction of the
“underlying claim” would be subsidies for future expenditures that would
entail “subsequent supervision and adjustment.” Jd. at 1819. The tribe was
even restricted as to “particular bidding and bond terms they may use for, say,
housing construction contracts” that it might enter into in the future using any
proceeds from their claims. Jd. at 1318. The subsidy statute at issue in Lummi
therefore was not money-mandating because “any ... claim for relief” had to
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be viewed as seeking prospective relief—the distribution of “thoroughly
scrutinized and cabined” “strings-attached” grants. Id. at 1318-19.°
3. The government argues that the result here should be the same as in
Lummz because “[rJecipients of RRF grants were limited by statute to use the
funds for specified categories of expenses” and to “use the grants for expenses
incurred during the statutory ‘covered period.” Gov. Br. 32 (citations
omitted). But for several reasons Section 9009c’s instructions to use the
money to compensate for specific injuries does not turn Section 9009¢ into the
sort of prospective, “strings-attached” program that Lummz held to be not
money-mandating.
a. RRF grants were firmly rooted in past injury by employing a
backwards-looking statutory formula to calculate grant amounts based
directly on past losses caused by the pandemic. The requirement to use grants
° Although it issued more than seven years ago, the government has failed to
identify a single decision doing what it urges here: apply Lummi to
recharacterize a damages claim filed in the Court of Federal Claims as one for
equitable relief. Lwmmi is a product of the unique forward-looking
cooperative statutory scheme at issue there and is not remotely representative
of this Court’s grant-program jurisprudence. For this reason, it is not
surprising that the government did not cite Lummi at all in its briefing in the
trial court.
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for certain expenses ensured that the money provided under Section 9009¢
would serve the compensatory and backwards-looking purpose of covering
“expenses incurred as a direct result of, or during, the COVID-19 pandemic.”
15 U.S.C. § 9009¢(¢)(5).
Section 9009¢’s backwards-looking and compensatory focus are very
different from the ongoing programs that led to equitable claims in the cases
on which the government misplaces reliance. Plaintiffs here seek only to be
placed in the same position they would have been in had the government
complied with its statutory payment obligation. The difference is not
semantic. Plaintiffs have alleged, Appx.48, 49, 51, 70, 82-83, and the
government does not dispute, that Plaintiffs had revenue losses caused by the
pandemic and incurred allowable expenses under subsections (c)(5) and (c)(6)
during the “covered period.” Due to the agency’s statutory violations,
Plaintiffs were forced to pay for those expenses out of pocket. Plaintiffs’
claims seek money damages to put them in the same position they would have
been in had the SBA not violated the law. In that world, they would have
received their RRF grants and not had to pay operating expenses out-of-
pocket or take out loans to do so. Plaintiffs’ claims are therefore classic
retrospective damages claims.
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By contrast, the forward-looking grant programs relied upon by the
government in National Center and Lummi were for grants in aid of futwre
expenditures that had not been incurred, a difference that leads inexorably to
equitable claims as a ground for relief. See Lummi, 870 F.3d at 1319. This
Court logically concluded that it could not be fairly inferred that Congress
intended to create damages claims to remedy statutory violations that were
amenable only to equitable relief. Jd. But that conclusion has no application
here. Unlike the Plaintiffs here, the Lummz plaintiffs did not allege that they
were seeking compensation for expenses already incurred; nor could they have
ever done so because the statutory grants at issue there were only to subsidize
future expenses, not compensate for past injury. This Court correctly
concluded that the Lummi plaintiffs therefore were in effect seeking equitable
relief, and the “true nature” of any relief sought by any plaintiff under that
forward-looking statute would be prospective. Jd.
Thus, RRF grants are different in kind than the grants at issue in
Lummi. The payments under Section 9009c cannot fairly be called
“thoroughly scrutinized and cabined” in the way the funds in Lummi were,
such that every suit under the statute must necessarily be one for
disbursement of prospective strings-attached grant funds. Lummi, 870 F.3d
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at 1318-19. Section 9009c requires that the funds must be used to compensate
for the sorts of backwards-looking pandemic-caused losses that the statute
intended to cover. See supra pp. 35-36. In Lummi, by contrast, the program
was ongoing and cooperative and sought to fund future projects for third-party
beneficiaries—the sort of prospective statutory scheme that Bowen and
National Center say requires suits to be brought in federal district court
under the APA.
b. Lummi reasoned that any suit under the statute there would
necessarily seek the disbursement of additional grant funding under the
program that must be spent for third-party beneficiaries. 870 F.3d at 1315,
1318. Lwmmi therefore does not control this case, where the availability of a
standard suit for compensatory damages (like this one) as opposed to
extension of the program through new grant awards is entirely sensible and
well-recognized. See infra pp. 45-48. The compensatory damages that would
make Plaintiffs whole may end up being different than the actual amount
Plaintiffs would have been awarded via grants. But as this Court explained in
Sanford Health Plan, that is a question of what damages are owed, not
whether the statute is money-mandating. See Sanford Health Plan, 969 F. 3d
at 1382-83.
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c. The dividing line between statutes remediable under the Tucker Act
and the APA cannot turn on the existence of restrictions on use of grant funds.
All federal funding comes with use restrictions. The government’s rule would
prove far too much. Take some of the statutory schemes this Court and the
Supreme Court have held to be money-mandating. In Greenlee County, this
Court held that the Payments In Lieu of Taxes statute is money-mandating.
487 F.3d at 877. That statute, however, plainly did not disburse no-strings-
attached funding. Rather, the funding could only be used for “governmental
purpose[s].” 31 U.S.C. § 6902(a)(1). Yet, this Court held the statute to be
money-mandating, even though a suit for damages could result in the plaintiff
obtaining money that could be used for any purpose—governmental or not.
Similarly in Maine, the mandated payment was subject to “post-
payment audits” which could result in mandatory “corrective actions” and
“{ojrder[s] to pay rebates.” 45 C.F.R. §§ 153.540, 158.402; 78 Fed. Reg. 72,322,
72,380 (Dec. 2, 2013). In addition, the acceptance of Risk Corridor payments
would have obligated the receiving entity to comply with various anti-
discrimination measures. See 42 USC § 18116(a). Of course, none of those
conditions would attach to an award of compensatory money damages, yet the
39
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Supreme Court held that the statute nevertheless was money-mandating and
authorized damages awards.
More generally, all disbursements of funding from the government are
subject to potential clawback for “over-payments” or “payments disallowed by
audits.” See 31 U.S.C. §§ 3701, 3711. And all federal funding comes with
strings attached, including, for example, obligations not to discriminate. See,
e.g., 42 U.S.C. § 2000d (Title VI; 29 U.S.C. § 794 (Rehabilitation Act).
Adopting the government’s argument would result in a sea change in well-
settled money-mandating doctrine: Every mandatory payment statute whose
funds come with some obligation or some prospect of clawback would no longer
be money-mandating.
At bottom, however one reads National Center and Lummi, Maine
provides the rule today. Both National Center and Lummi sought to analyze
the Bowen line of precedents to find the dividing line between the statutes in
which Congress envisioned prospective remedies under the APA and the
statutes Congress envisioned damages claims under the Tucker Act. Maine
subsequently clarified that line of cases and imposed a simple rule: If the
statute compensates for past injuries, go to the Court of Federal Claims; if the
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statute subsidizes future expenditures, go to federal district court. That clear
rule resolves this case.
3. The Trial Court’s Alternative Conclusion That
Section 9009c Is Money-Mandating Even If It Affords
SBA Some Discretion Is Correct
The trial court held that “Section 9009c does not provide the
Administrator discretion as to whether to award a grant,” Appx.17, a holding
with which the government (at 28) appears to agree. The trial court went on
to conclude in the alternative that even if Section 9009c afforded the agency
some degree of discretion, it “would still be money-mandating because it would
meet each of the three prongs of the test for determining if a discretionary
statute is money-mandating.” Appx.23.
The government does not attack the trial court’s application of these
factors on appeal, and, thus, has forfeited any argument that they were not
met here. Instead, the government argues (at 28-29) that Section 9009c
provided the SBA with no discretion and, thus, the trial court had no basis to
reach its alternative holding. There is no need to address the government’s
argument if this Court agrees with the trial court’s primary holding (and the
government’s concession) that payment under Section 9009¢ is mandatory, not
discretionary.
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Regardless, the trial court’s alternative holding is correct. Even if a
statute provides some discretion to the agency, it is nevertheless money-
mandating when any one of the following applies: “(1) the statute has ‘clear
standards for paying’ money to recipients, (2) the statute specifies ‘precise
amounts’ to be paid, or (8) the statute compels payment once certain conditions
precedent are met. Doe v. United States, 463 F.3d 1314, 1324 (Fed. Cir. 2006)
(quoting Samish Indian Nation v. United States, 419 F.3d 1355, 1864-65 (Fed.
Cir. 2005))." The trial court correctly concluded that all three factors apply
here. Appx.17-19. Section 9009c sets forth clear numerical standards used to
compute amounts to be paid; the statute provides a statutory formula for those
computations; and it mandates that the agency shall pay according to a
specified condition—the order in which applications are received. See Section
The government’s invocation (at 28) of Samish, 419 F.3d at 1364, is
perplexing. In Samish, the plaintiff tribes had to be recognized by the federal
“The government criticizes (at 28) the trial court for relying on Samish for the
test for when discretionary statutes are money-mandating, but that decision
is routinely cited for the same proposition—no fewer than 62 times according
to the Westlaw database. That includes a citation to Samish by this Court in
Greenlee County, which both sides have relied upon in this case. 487 F.3d 871,
877 (Fed. Cir. 2007).
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government before they would come within the class of plaintiffs to whom the
grant programs at issue would be money-mandating. /d. at 1369. This Court
explained that “the challenge to the federal government’s refusal to accord
recognition is limited by the contours of the political question doctrine.
Recognition is a political act that is generally non-justiciable.” Jd.
Accordingly, unrecognized tribes could not come directly to the Court of
Federal Claims under otherwise money-mandating grant statutes until they
first had been recognized. Section 9009c is not analogous. The scheme in
Samish required the tribes to first go to district court to challenge non-
recognition under one statutory scheme (which would have been nonjusticiable
but-for Congress’ express allowance of APA review), and only after they had
obtained recognition could they bring a claim in the Court of Federal Claims
under the money-mandating grant program. /d. at 1373.
By contrast, determining the “order in which applications are received”
under Section 9009¢ is justiciable and factually determinable, has not been
expressly limited to adjudication under the APA, and is miles apart from the
political act of recognizing a sovereign nation.
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B. ‘Plaintiffs Were Not Required To Bring Their Claims
Under The APA
The government (at 34-48) contends that, notwithstanding the Tucker
Act’s waiver of sovereign immunity, Plaintiffs’ case should have been brought
under the APA. Not so. Suits for money damages belong in the Court of
Federal Claims under the Tucker Act. Suits for equitable relief belong in
federal district court under the APA. Here, Plaintiffs seek money damages,
not equitable relief.
1. Plaintiffs’ claims fall squarely under the Tucker Act’s waiver of
sovereign immunity and the Court of Federal Claims’ jurisdiction. “The
Tucker Act both waives sovereign immunity for, and grants the Court of
Federal Claims exclusive jurisdiction over, actions for money damages of more
than $10,000.” Suburban Mortgage, 480 F.3d at 1121; Maine, 590 U.S. at 322.
In contrast, the Court of Federal claims generally lacks “power to grant
equitable relief.” Suburban Mortg., 480 F.3d at 1123. Thus, when a plaintiff
sues the government for damages for violating a money-mandating statute,
the only pertinent limitation to Tucker Act jurisdiction is the general inability
of the Court of Federal Claims to award prospective equitable relief. See id.
at 1125, 1127. The APA on the other hand, does not permit suits for
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compensatory money damages or suits where there is an adequate remedy in
the Court of Federal Claims. Jd. at 1122.
Under those principles, the ultimate rule for resolving cases like this one
is straightforward: “If the suit is at base a claim for money, and the relief
available through the Court of Federal Claims under the Tucker Act—a
money judgment—will provide an adequate remedy, the inquiry is at an end.”
Id. at 1125.
Here, Plaintiffs have brought a classic suit for compensatory money
damages. Plaintiffs’ claim is that SBA had a duty to follow Congress’ clear
directive, that SBA did not do so, and that plaintiffs were injured by that
violation. Plaintiffs now seek compensation to put them in the place they would
have been had SBA acted lawfully—money damages. In other words,
plaintiffs “want[] the money that would have been [their] due had” SBA
properly administered the statute, making this “a classic Tucker Act suit for
money.” Fisher v. United States, 402 F.3d 1167, 1175 (Fed. Cir. 2005) (en
banc in part). The trial court therefore correctly concluded that Plaintiffs’
“claim properly falls under the Tucker Act.” Appx.15.
2. The government’s arguments to the contrary are unpersuasive.
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a. The government (at 38-43) argues that under Bowen, Plaintiffs’ suit
must be brought under the APA. But Bowen is inapposite here. Bowen held
that a state’s suit against HHS for withheld payments under Medicaid could
be brought under the APA in district court. Bowen, 487 U.S. at 882-87, 901-
05. As this Court has explained, the thrust of Bowen’s reasoning was that
because “the Medicaid program was ongoing and a judgment in the case would
require future cooperation between the parties” a money judgment was not
necessarily “an adequate substitute for prospective relief fashioned in the light
of the rather complex ongoing relationship between the parties”— relief that
can only be provided under the APA, not by the Court of Federal Claims.
Suburban Mortg., 480 F.3d at 1123 (citation omitted). Here, Plaintiffs request
only retrospective money damages and there is no ongoing complicated
relationship that must be governed by injunctive or declaratory relief.
If there was any doubt about whether this Court properly interpreted
Bowen in Suburban Mortgage, Maine removed it. Maine explained that
Bowen was thoroughly “distinguishable on several scores” from the claim for
money damages at issue there, and the same logic applies here. Maine, 590
U.S. at 326; see also Suburban Mortg., 480 F.3d at 1127.
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First, the “relief requested” is like Maine not Bowen. Maine, 590 U.S.
at 326. The state in Bowen “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 327-
28. Thus, the suit in Bowen was not merely for past due sums, but for an
injunction to correct the method of calculating payments going forward.” Jd.
at 326-27 (quoting Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S.
204, 212 (2002)); Suburban Mortg., 480 F.3d at 1127. The prospective nature
of the suit was crucial to Bowen’s outcome: “[B]ecause the Court of Federal
Claims does not have the general equitable powers of a district court to grant
prospective relief, the Court reasoned that Bowen belonged in district court.”
Maine, 590 U.S. at 327 (cleaned up).
Like the suit in Maine, plaintiffs’ suit here “looks nothing like the
9 66
requested redress in Bowen.” Id. Plaintiffs’ “prayer for relief” does not ask
for “prospective, nonmonetary relief to clarify future obligations; [it] seek[s]
specific sums already calculated, past due, and designed to compensate” for
past losses. Id. The Tucker Act “allow[s] that remedy,” so this suit “lies in the
Tucker Act’s heartland.” See id.
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Second, “the parties’ relationship in Bowen differs from the one
implicated here.” Jd. at 327 (citation omitted). In Bowen, the state and federal
government “litigants’ ‘complex ongoing relationship[]’ ... made it important
that a district court adjudicate future disputes” under the APA. Id. at 327
(citation omitted); Suburban Mortg., 480 F.3d at 1127. The rationale was that
the APA is “tailored to manag{[e] the relationships between States and the
Federal Government that occur over time and that involve constantly shifting
balance sheets.” Jd. at 327. The RRF, however, does not involve any long-
term relationship, nor does it involve two sovereigns. Instead, the RRF
envisions a one-time compensatory payment for harms caused over a specific
prior time period. And like the program at issue in Maine, the RRF “expired
years ago” and “presents no special concern about managing a complex on-
going relationship,” which confirms that the plaintiffs “properly sued the
Government in the Court of Federal Claims.” Jd.
The trial court below therefore correctly rejected the government’s
“attempts to shoehorn the plaintiffs’ claims [here] into the Bowen framework.”
Appx.11.
b. The government (at 48-45) also points to this Court’s decision in Katz
v. Cisneros, 16 F.3d 1204 (Fed. Cir. 1994). But Katz is distinguishable on
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similar grounds to Bowen. The plaintiff in Katz “unmistakably ask[ed] for
prospective relief,” not “money as compensation for a loss suffered.” Id. at
1208-09. Specifically, the plaintiff sought to challenge a regulation that
governed the amount that the plaintiff could charge for rent going forward.
See id. at 1206. Here, in contrast to Katz and Bowen, “[t]he relief sought by
the plaintiffs does not require any prospective relief.” Appx.14. Instead, “the
plaintiffs in the present case request retrospective damages resulting from the
SBA’s denial of a one-time payment of money directly from the federal
government under a grant program.” Appx.13-14.
c. The government (at 39) claims that Plaintiffs are not in fact seeking
money damages because Plaintiffs are “attempting to enforce ... the statutory
mandate ... to award grants in the order that applications were received” and
that “any money paid would not be in compensation for an injury.” That is not
true. Plaintiffs are not seeking relief that would direct how SBA administers
the program going forward, nor are they seeking a grant. That would be
impossible because in the RRF Congress created a one-and-done grant
program, which has closed.
Plaintiffs seek only retrospective “money damages,” which is
“compensation for the damage sustained by the failure of the Federal
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Government to pay as mandated.” Suburban Mortg., 480 F.3d at 1123
(cleaned up). Time and again, courts have deemed the Court of Federal Claims
the proper home for such suits “seeking to obtain the financial benefit of a
prior ... obligation that ... has not been honored by the Government” because
such suits are backwards-looking suits for damages. Id. at 1126-27; see also,
e.g., Maine, 590 U.S. at 328.
The government’s argument also proves far too much. The
government’s theory—that the Court of Federal Claims has no jurisdiction
over suits that involve adjudicating whether an agency complied with a
statutory mandate—would absurdly mean that the Court of Federal Claims
can never adjudicate a Tucker Act claim premised on a statutory violation.
And it would mean cases like Maine (which, like this suit, alleged that the
agency had not complied with Congress’ mandate to pay money under a grant
program) were wrongly decided. This Court, however, has been unequivocal:
“The Court of Federal Claims has the power to make a determination of
liability that will give rise to a remedy of monetary relief by finding, for
example, ... that an agency has misinterpreted its statutory mandate to pay
out monies.” Kanemoto v. Reno, 41 F.3d 641, 647 (Fed. Cir. 1994) (citations
omitted). The mere fact that a claim for money damages requires a court to
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engage in statutory interpretation does not turn it into an APA claim. “It is
the statute, not the Government official, that provides for the payment. Ifthe
Government official’s determinations under the statute are in error, the court
is there to correct the matter, and to have the proper determinations made.”
Fisher, 402 F.3d at 1175.
d. The government (at 45) argues that Plaintiffs must be seeking
prospective relief because determining liability and damages in this case would
require “review[ing] a large subset of all applications to figure out who ‘should
have’ received grants.” This misunderstands basic remedial principles. Suits
for damages do not turn into suits for prospective relief simply because the
suit requires consideration of what would have happened absent the illegal
action. For instance, when a plaintiff sues for damages alleging a
discriminatory failure to hire, he must generally show that he would have been
hired absent the discrimination and he must show what his salary would have
been had it not been for the employer’s discrimination. The fact that his
damages may be based upon the salary he would have received had he been
hired does not mean that his suit for money damages is a suit seeking
employment. The same is true here. Plaintiffs seek compensation for the
damages caused by SBA’s statutory violations. That requires the trial court
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to determine whether Plaintiffs should have been awarded grants, and, if so,
to assess the amount of their monetary damages as a result of SBA’s failure to
comply with Section 9009c. That does not mean that Plaintiffs seek to reopen
the RRF program and obtain a new RRF grant.
e. The government (at 46) also mistakenly attributes to the trial court a
belief that the Court of Federal Claims “possess[es] jurisdiction over APA
claims.” That is not what the trial court held. The Court of Federal Claims
lacks jurisdiction over a claim asking for prospective relief under the APA. At
the same time, “it is well established that the potential availability of a remedy
in district court does not of itself withdraw jurisdiction under the Tucker Act.”
Slattery v. United States, 685 F.3d 1298, 1314-15 (Fed. Cir. 2011); see also
Silver State Land LLC v. United States, 148 Fed. Cl. 217, 222 (2020)
(explaining that jurisdiction lies in the Court of Federal Claims to adjudicate
breach of contract claims arising out of the same transaction giving rise to
APA litigation in district court). In other words, just because some claims
regarding a given statute can be brought under the APA, that does not mean
that all claims regarding that statute must be brought under the APA. The
trial court correctly understood and applied this distinction. See Appx.14-15.
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The government’s position, by contrast, is irreconcilable with 28 U.S.C.
§ 1500, which presupposes the existence of claims arising from the same
operative facts over which both district courts and the Court of Federal Claims
could independently exercise jurisdiction depending on the relief sought.
Under the government’s view, there could never be a situation in which 28
U.S.C. § 1500 would do any work because there could never be claims arising
from the same operative facts over which both courts could independently
exercise jurisdiction.
This case is another example of how a single statute can give rise to both
APA and Tucker Act claims. A suit under Section 9009c while the RRF
program remained open seeking to prohibit the agency from continuing to
process applications based upon unconstitutional race or gender priority
would be cognizable under the APA. See Vitolo v. Guzman, 999 F.3d 353 (6th
Cir. 2021) (adjudicating such a claim). In Vitolo, there would not have been
jurisdiction in the Court of Federal Claims because the plaintiffs did not seek
money damages, or even an order that the agency award their grants. The
Vitolo plaintiffs instead sought to avoid an impending injury through
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prospective relief ensuring that SBA would process applications in the future
without unconstitutionally prioritizing on the basis of race and gender.®
But that is in no way inconsistent with the exercise of Tucker Act
jurisdiction over suits for damages in cases like this one. Here, after all grants
had been distributed, plaintiffs learned they would not receive grants. They
were able to sue only after having acquired sufficient information to allege that
they would have received grants had the SBA not violated its statutory
mandate. Unlike Vitolo, this is not a facial challenge to Section 9009c that
could have been brought the day the statute was enacted, and does not seek to
change the administration of the program going forward. Plaintiffs here seek
only compensation for past injury. Indeed, the government concedes (at 37
n.8) that it would be impossible for Plaintiffs here to obtain injunctive relief,
which was the only relief sought in Vitolo, because (as in Mazne) the program
has closed and there is no ongoing relationship with the agency outside of the
litigation. As the trial court correctly recognized, under these circumstances
Plaintiffs can sue only for compensatory damages under the Tucker Act.
® See Vitolo v. Guzman, 548 F. Supp. 3d 765, 773 (E.D. Tenn. 2021).
54
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f. The government (at 35-36) claims that the trial court erred by first
determining that Plaintiffs’ claims are for money damages before deciding
whether Section 9009c is money-mandating. This is not a valid argument.
Trial courts are not constrained in how they choose to structure their opinions.
In any event, the trial court’s ordering was perfectly sensible. The
question of whether plaintiffs fundamentally seek money damages is related
to the question whether the statute authorizes claims for money damages.
And it will often be easier to start with the pleadings before delving into
statutory complexities. This Court’s own decisions make clear that the trial
court was exactly right in its approach. See Appx.10-15 (citing, e.g., Suburban
Mortg., 480 F.3d at 1125); see also Lummi, 870 F.3d at 1319 (first determining
that plaintiffs’ underlying claim was for equitable relief)). The government’s
assertion that the trial court’s sequencing of issues in its opinion “primed” the
trial court to “preemptively” determine Section 9009c to be money-mandating
is contradicted by (and is disrespectful to) the trial court’s extensive and
comprehensive independent analysis of the money-mandating issue. Appx.16-
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23.° There is no indication that the trial court was unable to treat each issue
independently and analytically."°
II. Plaintiffs Have Stated A Claim Upon Which Relief Can Be Granted
A. The Supreme Court in Maine stressed that its holdings “reflect a
principle as old as the Nation itself: The Government should honor its
obligations.” 590 U.S. at 328. Here, Congress created an obligation to pay a
certain class of applicants. Plaintiffs here have plausibly alleged that they fall
within that class and yet were not paid, so Plaintiffs have stated a claim.
* The trial court also made clear that it was not prejudging the money-mandate
issue: “There is no question that the payment of money damages to the
plaintiffs, af available, would provide them with a complete and adequate
remedy for the relief currently sought.” Appx.10 (emphasis added) (citation
omitted).
Tn a footnote, the government (at 36 n.7) observes that the trial court found
that the complaint’s characterization of some agency actions as “arbitrary and
capricious” or “negligent” is not relevant to the court’s jurisdiction. The trial
court was correct. See, eg., Fisher, 402 F.3d at 1175 (concluding that a
complaint alleging arbitrary and capricious agency action was “a classic
Tucker Act suit for money”); Martinez v. United States, 333 F.3d 1295, 1308,
1314 (Fed. Cir. 2003) (en bane); Taylor v. United States, 959 F.3d 1081, 1086
(Fed. Cir. 2020) (“That the complaint suggests the United States may have
acted tortiously towards the appellants does not remove it from the
jurisdiction of the Court of Federal Claims.”) (cleaned up); Keco Indus., Inc.
v. United States, 428 F.2d 1233, 1234, 1237 (Ct. Cl. 1970) (same); Hous. Auth.
of Slidell v. United States, 149 Fed. Cl. 614, 637 (2020) (rejecting government
argument that complaint’s reference to “arbitrary and capricious” converts
case into one under the APA) (citation omitted). The government does not
argue otherwise.
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In particular, Section 9009c imposed an obligation on SBA to pay eligible
applicants out of the Fund in the order in which applications were received.
Plaintiffs’ applications were received before the Fund should have been
depleted. Plaintiffs nonetheless did not obtain the money they were entitled
to because SBA blatantly ignored Congress’ command—a fact the government
does not contest. Through Section 9009c and the Tucker Act, Congress
created a cause of action to sue in such situations and waived sovereign
immunity. Plaintiffs have therefore stated a claim upon which relief can be
eranted.
B. The government argues that Plaintiffs are out of luck because the
funding Congress provided for in the RRF is now depleted. This theory
contradicts the statutory text and well-established precedent. Moreover, the
government forfeits certain Rule 12(b)(6) issues by failing to present in its
brief on appeal any arguments independent of its jurisdictional arguments: (i)
even if Section 9009¢ is capped, Plaintiffs state claims upon which relief can be
granted, see Appx.32-33; Gov. Br. at 53-54; (i) exhaustion of funds through
disbursements to applicants in line behind Plaintiffs does not defeat their
claim, Appx.32; and (iii) the Judgment Fund is available to satisfy a judgment
in favor of Plaintiffs here, Appx.27, 32. Plaintiffs discuss these issues here only
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for completeness. See McIntosh v. Dep’t of Defense, 53 F.4th 630, 641 (Fed.
Cir. 2022) (“Our law is well established that arguments not raised in the
opening brief are forfeited.”) (cleaned up).
1. The government argues (at 48-51) that, by appropriating a
guaranteed amount of money and specifying that appropriation is not
exclusive of other available source of funds, Congress limited liability under
the RRF. That gets the analysis backwards.
a. “It has long been established that the mere failure of Congress to
appropriate funds, without further words modifying or repealing, expressly or
by clear implication, the substantive law, does not in and of itself defeat a
Government obligation created by statute.” Greenlee County, 487 F.3d at 877
(citation omitted). Thus, even when Congress has provided no funds towards
a money-mandating program, plaintiffs can state a claim upon which relief can
be granted when the government fails to pay. Maine, 590 U.S. at 306 & n. 8,
312. Congress did better than that here by providing guaranteed funds for the
RRF “liln addition to amounts otherwise available.” 15 U.S.C.
§ 9009c(b)(2)(A).
It is true that in some instances, when Congress appropriates money
and affirmatively “restrict[s] the government’s liability to the amounts
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appropriated,” it may be read to have capped liability at that amount. See
Greenlee County, 487 F.3d at 878. In Greenlee County, for example, the
program provided pro-rated reduced awards to all participants because the
funds appropriated were insufficient. Jd. at 874. The plaintiff received its
properly prorated award, but sought a full award (with no allegation of
erroneous expenditures). This Court held that liability was capped because
the money-mandating obligation was expressly made “subject to the
availability of appropriations.” Jd. at 878.
Here, we have the exact opposite situation. Instead of stating that
“amounts are available only as provided,” the statute says the amount
available is that which is expressly provided “[iJn addition to amounts
otherwise available.” 15 U.S.C. § 9009c(b)(2)(A). Congress’ provision of $28.6
billion dollars in addition to amounts otherwise available cannot be read as an
effort to cap liability. The government unsurprisingly points to no statute that
has been held to cap liability by using a phrase like “in addition to amounts
otherwise available.” The trial court correctly concluded that Section 9009c
does not create a capped liability fund. Appx.32-33.
The government argues that the word “otherwise” (as used in the
statutory phrase “in addition to amounts otherwise available”) renders the
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99 66
Fund capped because “otherwise” “connotes a different situation or a different
set of circumstances.” Gov. Br. 51 (citation omitted). That interpretation of
the word “otherwise” is in no way inconsistent with Plaintiffs’ reading of the
statutory phrase: Congress specified that the referenced $28.6 billion dollars
will be available, and that different sources of money may be available too. The
point is that Congress plainly did not cap the RRF program to only that $28.6
billion dollars.
The government (at 51 n.11) also argues that the phrase “remain
available until expended” suggests a liability cap. That is incorrect. The
phrase “remain available until expended” is a “term of art in appropriations
legislation” that is “commonly understood as a carryover provision, not a
statutory cap,” which indicates that “unexpended funds ‘shall remain available’
for the same purpose during the succeeding fiscal year.” Thompson v.
Cherokee Nation of Okla., 334 F.3d 1075, 1090 (Fed. Cir. 2003), aff'd, 548 U.S.
631 (2005).
b. In any event, the government’s cap argument is beside the point in
this case. Regardless of whether one reads Section 9009¢ as a capped fund,
Plaintiffs’ claims are cognizable because they fall within the scope of the
substantive payment obligation created by Section 9009c. Plaintiffs’ well-pled
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and uncontroverted allegations establish as a factual matter for the purpose of
this appeal that their eligible applications were received before RRF funds
were exhausted. See, e.g., Appx.86. The agency’s obligation to pay Plaintiffs
therefore arose before the fund was depleted.
In Maine, the Supreme Court explained that “Congress can create an
obligation directly through statutory language” and “impose[] a legal duty of
the United States that could mature into legal liability.” 590 U.S. at 310; see
also Sanford, 969 F.3d at 1381 (holding that payment obligation matured into
a legal liability through the plaintiffs’ actions). Here, that obligation arose “by
operation of law” as mandated by statute, GAO Redbook 7-41 (3d ed. 2015)
(hereinafter “GAO Redbook”), and that occurred in the order Plaintiffs’
applications were received (as indicated, e.g., by the date/time applications
were uploaded to SBA’s electronic platform). Thus, the obligation to award
grants to Plaintiffs arose long before the program’s funds were exhausted.
Moreover, a damages suit can be “satisfied through the Judgment Fund,”
" The Supreme Court, the Federal Circuit, and other circuit courts “have
relied on the opinions of the [GAO] as expressed in [the GAO Redbook]...
whose opinions, while not binding, are expert opinion[s], which we should
prudently consider.” Thompson v. Cherokee Nation of Okla., 334 F.3d 1075,
1084 (Fed. Cir. 2003) (cleaned up).
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which is a proper way to obtain compensatory damages for SBA’s breach of its
obligation, even if no money within the initial program remains. See Maine,
590 U.S. at 306 & n.3.
The fact that SBA unlawfully exhausted RRF funds by disbursing them
to applicants in line behind Plaintiffs changes nothing. “(T]he determination
of whether an obligation exceeds the amount available in the appropriation is
based on the unobligated balance in the appropriation account on the day the
obligation is created.” Steven N. Tomanelli, Appropriations Law: Principles
and Practice 48 (2003) (emphasis added). The agency’s obligation to pay
Plaintiffs arose on or before May 38, 2021, when their applications were
received, which was before the RRF was exhausted. Appx.86-87. Plaintiffs’
claims are therefore within the scope of the substantive obligation created by
Section 9009c.
Moreover, the Supreme Court long ago established that erroneous
disbursements do not foreclose damages claims even if there is a statutory cap
on the Government’s liability. See Sutton v. United States, 256 U.S. 575, 582
(1921) (remanding to the Court of Claims because potential erroneous
disbursements did not foreclose plaintiff's damages claims even though the
agency disbursed all available funds). GAO has adopted the same
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straightforward principle: “Payment to the wrong person obviously does not
discharge the government’s obligation. If, through administrative mistake of
fact or law or clerical error, a payment is made to a person not entitled to it,
the government is still obligated to make payment to the proper claimant.”
GAO Redbook 14-50; see also id. at 7-8 (“[F Jailing to record a valid obligation
in no way diminishes its validity or affects the fiscal year to which it is properly
chargeable”); id. at 14-50 (explaining that “payment to the proper claimant
should not be held up pending recovery of the erroneous payment, even though
this may result in a duplicate payment”).
These rules apply here. Had the agency followed the statute and
properly recorded obligations in the order applications were received, funds
for Plaintiffs’ awards would have been reserved within the fixed
appropriation. The government does not contend otherwise and fails to
address the trial court’s reasoning that the “key” difference here is the
agency’s unlawful disbursement to the wrong applicants, which makes the
Judgment Fund available here. Appx.82.
Confirming that the trial court was correct is a persuasive (though not
precedential) decision in which this Court unanimously found that plaintiffs
had stated claims upon which relief could be granted even though the grant
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program at issue had closed and funds had been exhausted before plaintiffs
filed their claims. See Samish Indian Nation v. United States, 657 F.3d 1330,
1335-41 (Fed. Cir. 2011), rehrg. & rehrg. en banc denied, vacated as moot, 568
USS. 936 (2012).” In Samish, this Court unanimously held that the statute at
issue was not “capped in a manner that restricts the government’s liability for
damages” because the obligation to pay was not subject to the limiting
language of the statutes in Star-Glo Assocs., LP v. United States, 414 F.3d
1349 (Fed. Cir. 2005) and Greenlee County. Samish, 657 F.3d at 1840. This
Court found that any monetary damages would be paid by the Judgment Fund
without running afoul of the Anti-Deficiency Act. Jd. at 1341. In short,
because the Samish plaintiffs’ claims were within the scope of the substantive
statutory obligation, exhaustion and expiration of the appropriation, including
” The Samish decision is non-precedential because the plaintiffs in that case
voluntarily dismissed their complaint after this Court’s unanimous panel
decision, but while the government’s petition for certiorari was pending. That
voluntary dismissal prompted the Supreme Court to order this Court’s
decision to be vacated as moot. Prior to that, however, the government went
on record that the Rule 12(b)(6) issues in Samish were “materially similar” to
those in Salazar v. Ramah. U.S. Cert. Pet., United States v. Samish Indian
Nation, 2012 WL1961403, No. 11-1448, at 15 (June 1, 2012). On June 18, 2012,
the Supreme Court rejected the government’s “materially similar” arguments
in Salazar v. Ramah, 567 U.S. 182, 189-95 (2012), suggesting that this Court’s
Samish decision was correctly decided. Cf Maine, 590 U.S. at 308-09
(discussing principles underlying Ramah).
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by erroneously disbursing plaintiffs’ share of the appropriated funds to other
participants, did not foreclose their damages claims.
3. The government (at 51-53) argues that the sunset of the RRF
program and Congress’ subsequent elimination of wnobligated funds in the
Fiscal Responsibility Act (FRA) “eliminated any payment obligation under
th[e] statute.” This also is not true. As explained, the obligation to Plaintiffs
attached when their applications were received. Thus, that obligation to pay
cannot be defeated by subsequent changes to the statute’s funding. Indeed,
even if Congress had repealed the statute entirely, that would not alter
obligations that had already attached.
The government (at 52) claims that Congress is free to “cancel its
previous obligation through further legislation.” While Congress can prevent
Juture obligations from attaching going forward, Congress cannot eliminate
an already-matured and attached obligation without raising “serious
questions” about whether it unconstitutionally “retroactively impaired” a right
to payment.”
® Maine, 590 U.S. at 317 (citing Landgrafv. USI Film Prod., 511 U.S. 244,
265-66, 280 (1994); see GAO Redbook 1-61 to 1-62 (4th ed. 2016).
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In any event, whether or not Congress can cancel already-matured
obligations is not relevant here because Congress did not purport to cancel
any obligations in the FRA. Congress did the opposite in rescinding only
unobligated amounts.“ As a result, the government is wrong to argue that the
FRA’s rescission of unobligated funds is “irreconcilable” with the
enforceability of a preexisting statutory “obligation” through a money
damages judgment. Gov. Br. at 52 (citations omitted).
4, The government (at 52-53) points out that Section 9009c(c)(6) requires
award recipients to return unused funds to the Treasury. The government’s
theory appears to be that because Plaintiffs did not use the illegally withheld
funds that they never received, Plaintiffs have “forfeited” their funds and so
have no right to damages. Aside from the obvious implausibility of this
argument, the argument does not work because Plaintiffs properly allege that
they incurred allowable expenses during the covered period. Appx.83. Those
“ Rescission of wnobligated funds is akin to expiration after which an account
“shall ... remain available for recording, adjusting, and liquidating obligations
properly chargeable to that account.” 31 U.S.C. §1553(a); see also Natl
Guard-Fiscal Year to Be Charged for Mandated Unif. Purchases
(Reconsideration), B-265901 (Oct. 14, 1997) (expired funds could be used to
satisfy obligation retroactively adjudicated). Rescission is different from
closure, which applies to both “obligated” and “unobligated” balances. 31
U.S.C. $1555.
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expenses, which have been paid out of pocket but should have been paid with
grant money, are Plaintiffs’ damages. Notably, the RRF statute permitted
recipients to credit past expenses against grant amounts because the covered
period looked back in time (to February 2020) more than one year before
Section 9009c was enacted (in March 2021). 15 U.S.C. § 9009c(a)(3). The
unstated premise of the government’s argument—that allowable expenses
must be incurred after grant funds are received—is obviously incorrect as it
would nullify more than one year of Section 9009c’s stated covered period.
Congress allowed past expenses to be credited. Put simply, the agency’s
unlawful failure to award grants to Plaintiffs required them to cover allowable
expenses out of their own pockets rather than with the grant funds they should
have received. Plaintiffs bring a classic damages claim to compensate them
for this loss.
CONCLUSION
This Court should affirm the trial court’s order denying the
government’s motion to dismiss.
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Respectfully submitted,
April 23, 2025 /s/ F. GREG BOWMAN
EF. GREG BOWMAN
EDWARD C. REDDINGTON
CHARLES L. MCCLOUD
WILLIAMS & CONNOLLY LLP
680 Maine Avenue, S.W.
Washington, DC 20024
(202) 484-5000
fobowman@we.com
Counsel for Plaintiffs-Appellees
112 Genesee Street, LLC, et al.
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CERTIFICATE OF COMPLIANCE
WITH TYPE-VOLUME LIMITATIONS
I, F. Greg Bowman, counsel for plaintiffs-appellees and a member of the
Bar of this Court, certify, pursuant to Federal Circuit Rule 32(b)(1), that the
attached brief complies with the relevant type-volume limitation of the
Federal Rules of Appellate Procedure and Federal Circuit Rules because it is
proportionately spaced, has a typeface of 14 points or more, and contains
13,847 words.
April 28, 2025 /s/ F. GREG BOWMAN
F. GREG BOWMAN
Case: 25-1373 Document:18 Page: 109 Filed: 04/23/2025
CERTIFICATE OF SERVICE
I, F. Greg Bowman, counsel for plaintiffs-appellees and a member of the
Bar of this Court, certify that a copy of the attached Response Brief was filed
with the Clerk and served on the parties through the Court’s electronic filing
system. I further certify that all parties required to be served have been
served.
April 28, 2025 /s/ F. GREG BOWMAN
F. GREG BOWMAN
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