Defendant-Appellant's Reply Brief — 112 Genesee Street, LLC v. United States, No. 25-1373
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Defendant-Appellant's Reply Brief, filed May 15, 2025 in the Federal Circuit, No. 25-1373, Plaintiffs-Appellees, v. United States. The Department of Justice argues that Section 9009c is not money-mandating under Maine Community Health, that the trial court's decision conflicts with this Court's grant precedent, and that the trial court misunderstood the scope of Tucker Act jurisdiction. It argues in the alternative that plaintiffs fail to state a claim because 15 U.S.C. § 9009c(b)(2)(A) imposes a statutory cap on the Restaurant Revitalization Fund (RRF) program, and that the covered period for using the funds ended on March 11, 2023. The reply asks the Court to reverse the trial court and dismiss the complaint for lack of jurisdiction, and is signed by William J. Grimaldi and Margaret J. Jantzen.
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Case: 25-1373 Document: 27 Page: 1 Filed: 05/15/2025
No. 25-1373
IN THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
112 GENESEE STREET, LLC, et. al.,
Plaintiffs-Appellees,
v.
UNITED STATES,
Defendant-Appellant.
DEFENDANT-APPELLANT’S REPLY BRIEF
YAAKOV M. ROTH
Acting Assistant Attorney General
PATRICIA M. MCCARTHY
Director
WILLIAM J. GRIMALDI
MARGARET J. JANTZEN
Attorneys, Commercial Litigation Branch
Civil Division, U.S. Department of Justice
P.O. Box 480, Ben Franklin Station
Washington, DC 20044
(202) 353-7994ȱ
Case: 25-1373 Document: 27 Page: 2 Filed: 05/15/2025
TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................................. ii
ARGUMENT ............................................................................................................................ 1
I. Section 9009c Is Not Money-Mandating ................................................................... 1
A. The Statute is Not Money-Mandating under Maine Community Health ....... 1
B. The Trial Court Erred in Reading Implied Money-Mandating
Obligations into Non-Monetary Administrative Requirements ............... 10
C. The Trial Court Erred in Relying on Cases That Discuss When a
Discretionary Statute is Money-Mandating.................................................. 12
II. The Trial Court’s Decision conflicts With This Court’s Grant Precedent ......... 14
III. The Trial Court Misunderstands The Scope of Tucker Act Jurisdiction............ 17
A. The Trial Court Failed to Ascertain the True Nature of Plaintiffs’ Claims
............................................................................................................................ 17
B. The Trial Court Failed to Properly Apply Bowen and Katz ........................ 18
C. The Trial Court Erred in Determining that there is Concurrent
Jurisdiction ........................................................................................................ 22
IV. Trial Court Erred in Holding that Plaintiffs State a Claim Upon Which Relief
Can Be Granted ........................................................................................................... 23
A. 15 U.S.C. § 9009c(b)(2)(A) Imposes a Statutory Cap on the Amount
That Congress Intended to Spend For the RRF Program ........................ 24
B. Congress Subsequently Eliminated Any Payment Obligation .................. 25
CONCLUSION ...................................................................................................................... 26
i
Case: 25-1373 Document: 27 Page: 3 Filed: 05/15/2025
TABLE OF AUTHORITIES
Cases
Agwiak v. United States,
347 F.3d 1375 (Fed. Cir. 2003) ............................................................................................ 2
Bowen v. Massachusetts,
487 U.S. 879 (1988) ................................................................................................ 18, 19, 20
Doe v. United States,
100 F.3d 1576 (Fed. Cir. 1996) ............................................................................................ 5
Doe v. United States,
463 F.3d 1314 (Fed. Cir. 2006) ..........................................................................................12
Dorsey v. United States,
567 U.S. 260 (2012) .............................................................................................................25
Eastport S.S. Corp. v. United States,
372 F.2d 1002 (Ct. Cl. 1967) .......................................................................... 10, 11, 12, 22
Fisher v. United States,
402 F.3d 1167 (Fed. Cir. 2005) ..........................................................................................21
Greenlee Cnty. Ariz. v. United States,
487 F.3d 871 (Fed. Cir. 2007) ......................................................................................... 2, 5
Ind. Mun. Power Agency v. United States,
154 Fed. Cl. 752 (2021) .......................................................................................................25
Kanemoto v. Reno,
41 F.3d 641 (Fed. Cir. 1994) ......................................................................................... 5, 22
Katz v. Cisneros,
16 F.3d 1204 (Fed. Cir. 1994) ........................................................................ 15, 18, 20, 21
Lummi Tribe v. United States,
99 Fed. Cl. 584 (2011) .........................................................................................................13
Lummi Tribe v. United States,
870 F.3d 1313 (Fed. Cir. 2017) ...................................................................... 13, 14, 15, 16
Case: 25-1373 Document: 27 Page: 4 Filed: 05/15/2025
Maine Cmty. Health Options v. United States,
590 U.S. 296 (2020) ..................................................................................................... passim
Mitchell v. United States,
930 F.2d 893) (Fed. Cir. 1991) ...........................................................................................22
Nat’l Ctr. for Mfg. Scis. v. United States,
114 F.3d 196 (Fed. Cir. 1997) ............................................................................... 14, 15, 16
Off. of Pers. Mgmt. v. Richmond,
496 U.S. 414 (1990) .............................................................................................................26
Perri v. United States,
340 F.3d 1337 (Fed. Cir. 2003) ................................................................................... 13Sla
Prairie Cnty. v. United States,
782 F.3d 685 (Fed. Cir. 2015) .............................................................................................. 5
Samish Indian Nation v. United States,
419 F.3d 1355 (Fed. Cir. 2005) .................................................................................. 13, 14
Silver State Land LLC v. United States,
148 Fed. Cl. 217 (2020) .......................................................................................................23
Slattery v. United States,
635 F.3d 1298 (Fed. Cir. 2011) ..........................................................................................23
Suburban Mortg. Assocs., Inc. v. U.S. Dep't of Hous. & Urb. Dev.,
480 F.3d 1116, (Fed. Cir. 2007) ............................................................................ 17, 18, 20
United States v. Testan,
424 U.S. 392 (1976) ...................................................................................................... 11, 12
United States v. Tohono O'Odham Nation,
563 U.S. 307 (2011) .............................................................................................................23
Vitolo v. Guzman,
999 F.3d 353 (6th Cir. 2021) ..............................................................................................23
W6 Rest. Grp., Ltd. v. Guzman,
732 F.Supp.3d 739 (N.D.Oh. 2024)........................................................................... 12, 21
Case: 25-1373 Document: 27 Page: 5 Filed: 05/15/2025
Statutes
2 U.S.C. § 2064.........................................................................................................................25
5 U.S.C. § 8334.........................................................................................................................25
15 U.S.C. § 9009a....................................................................................................................... 3
15 U.S.C. § 9009c ............................................................................................................passim
22 U.S.C. § 2906 ......................................................................................................................25
28 U.S.C. § 1500 ......................................................................................................................23
Case: 25-1373 Document: 27 Page: 6 Filed: 05/15/2025
IN THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
112 GENESEE STREET, LLC, et. al., )
)
Plaintiffs-Appellees, )
)
v. )
No. 25-1373
)
THE UNITED STATES, )
)
Defendant-Appellant. )
DEFENDANT-APPELLANT’S REPLY BRIEF
I. Section 9009c Is Not Money-Mandating
As detailed in our opening brief, the statute establishing the Restaurant
Revitalization Fund (RRF), 15 U.S.C. § 9009c, is not money-mandating, which
deprives the trial court of jurisdiction. Although plaintiffs-appellees disagree, they fail
to establish the trial court’s jurisdiction.
A. The Statute Is Not Money-Mandating Under Maine Community
Health
Plaintiffs-appellees argue that the language of § 9009c is “materially
indistinguishable” from the statute at issue in Maine, which was found to be money-
mandating. Resp. Br. 4 (citing Me. Cmty. Health Options v. United States, 590 U.S. 296
(2020)). This is incorrect. As an initial matter, plaintiffs-appellees acknowledge that
the statutory mandate of the RRF was to “award grants to eligible entities.” Resp. Br.
2 But awarding grants is not the same as a mandate to pay money to someone, as was
the mandate in Maine. There, the Supreme Court pointed to the statute’s “mandatory
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text” as “significant” in directing that the HHS Secretary “‘shall pay’ qualifying
insurers.” 590 U.S. at 324. Section 90009c, in contrast, contains no “shall pay”
language at all. Indeed, plaintiffs-appellees identify no “shall pay” text in the statute
but instead mischaracterize the statute as containing “‘shall pay’ language” that
“mandates payment.” Resp. Br. 10, 21. That is insufficient.
It is equally insufficient that Congress simply used the word “shall” throughout
the statute. Resp. Br. 15 (“The prime indicator that an agency’s obligation to make
payments is mandatory is Congress’ use of the word ‘shall.’”). This Court has not
held otherwise, as plaintiffs-appellees suggest. See Resp. Br. at 15-16 (citing to Greenlee
Cnty. Ariz. v. United States, 487 F.3d 871, 877 (Fed. Cir. 2007) and Agwiak v. United
States, 347 F.3d 1375, 1380 (Fed. Cir. 2003)). The statutory language in Greenlee
provided that “‘the Secretary of the Interior shall make a payment for each fiscal year . .
.’” 487 F.3d at 877. And in Agwiak, the statutory mandate “provide[d] that ‘[an]
allowance shall be paid under regulations prescribed by the President.’” 347 F.3d at
1380. In light of that language, this Court in both cases noted its repeated recognition
that “use of the word ‘shall’ generally makes a statute money-mandating.” But “shall,”
on its own, and uncoupled from a derivative of “to pay,” does no such thing.1
1
Indeed, the Supreme Court has observed that such “so-called money-mandating
provisions are uncommon,” making the statutory language in Maine “rare.” 590 U.S.
at 324. The Supreme Court explained that this was “because Congress has at its
disposal several blueprints for conditioning and limiting obligations . . .” Id. “But
Congress used none of those tools in [the statute at issue],” making it “one of the rare
2
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Plaintiffs-appellees contrast use of the word “shall” in § 9009c with another
COVID-relief program, codified at 15 U.S.C. § 9009a, which used the discretionary
word “may” in several key instances. Resp. Br. 18. They argue that Congress’s use of
“may” in one context but “shall” in another “underscores the mandatory nature of
9009c’s ‘shall’ directions.” Id. In fact, comparing the language found in both statutes
only proves our point. In § 9009a, the statute states, “[t]he Administrator may make
initial grants to eligible persons or entities in accordance with this section []” and
“[a]fter the end of the initial 28-day period during which the Administrator awards
grants under this paragraph, the Administrator may award an initial grant to any
eligible person or entity.” 15 U.S.C. § 9009a(b)(2)(A); 9009a(b)(2)(C).
But plaintiffs-appellees cannot analogize to the § 9009a program to
demonstrate that the RRF program is money-mandating because the language they
rely upon is not otherwise identical across statues. Although similar in structure and
purpose, § 9009c does not simply contain the language from § 9009a with the word
“shall” transposed in the place of “may.” Section 9009c does not contain provisions
laws permitting a damages suit in the Court of Federal Claims.” Id. Section 9009c,
however, is no such rarity. Accordingly, plaintiffs-appellees’ argument that § 9009c is
presumptively money-mandating because it was passed “less than a year” after the
Supreme Court decided Maine cannot hold water. See Resp. Br. 3-4, 16, 30. If
Congress intended to imitate the language found to be money-mandating in Maine, it
certainly knew how to do so. It did not.
3
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that state only that SBA “shall make grants to eligible persons or entities” or that SBA
“shall award a grant to any eligible person or entity” after a certain time period.
Nor does the Supreme Court’s decision in Maine support plaintiffs-appellees’
argument as they suggest. Resp. Br. 18. The language from Maine on which plaintiffs-
appellees rely, comes from the Court’s analysis of the first question the Court
addressed: whether § 1342 of the Affordable Are Act obligated the Government to
pay participating insurers the full amount calculated by the statute. Maine, 590 U.S. at
307, 310. But this was an entirely separate issue from whether the statute was money-
mandating such that petitioners may sue the Government under the Tucker Act “to
recover on that obligation.” Id. (identifying the three issues presented to the Court).
Plaintiffs-appellees also liken the mandate of § 9009c to the “triple mandate” of
the statutory language in Maine which the Court found “falls comfortably within the
class of moneymandating [sic] statutes that permit recovery of money damages in the
Court of Federal Claims.” Resp. Br. 19-20; 590 U.S. at 324-25. The comparison is
misplaced and does not match what the Supreme Court found significant about the
statutory language in Maine. Two of the three mandates in Maine specifically
commanded payment: “the HHS Secretary . . . ‘shall provide’ for payment according
to the statutory formula, and ‘shall pay’ qualifying insurers.” 590 U.S. at 324-25. The
closest that plaintiffs-appellees get to similar language here is that “the Administrator
shall use amounts in the Fund to make grants described in subsection (c)” and “the
Administrator shall award grants to eligible entities in the order in which application
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are received.” 15 U.S.C. §§ 9009c(b)(3), (c)(1). But nowhere does the statute
command payment at all, to anyone in particular.
As we explained in our opening brief, the statute does not command payment
to a defined group, as required, but simply instructs the agency to “award grants to
eligible entities in the order in which applications are received.” 15 U.S.C.
§ 9009c(c)(1). This does not define a “class of plaintiffs” to whom payment is owed,
but constitutes a process instruction for how an agency is to review and disburse grant
money.
Money-mandating statutory language must couple the command to pay with a
specific group to whom the Government shall make payment. See, e.g., Maine, 590
U.S. at 302 (“shall pay” insurers with unprofitable plans); Greenlee, 487 F.3d at 877
(“Secretary of the Interior shall make a payment . . .to each unit of general local
government in which entitlement land is located”); Prairie County, 782 F.3d at 686
(same); Kanemoto, 41 F.3d 641, 643, 646 (Fed. Cir. 1994) (Attorney General “shall pay
out of the fund the sum of $20,000 to each eligible individual”). The case relied on by
plaintiffs-appellees, Doe 100 F.3d 1576, 1579 (Fed. Cir. 1996)2, similarly commands
payment to a specific individual – i.e., “Secretary may award and pay such person
2
Plaintiffs-appellees read into the statute in Doe a baffling “ordering
requirement.” Resp. Br. 25. Plaintiffs-appellees suggest that a long line of informers
seek to be compensated under the moiety statute – but only the first person to submit
information will be paid because only “original information” will be compensated.
Id.; Doe, 100 F.3d at 1579. But “original” is not synonymous with “first.” Surely,
more than one person could submit original information about an instance of fraud.
5
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[who furnishes original information which leads to recovery, fine, penalty or
forfeiture] an amount that does not exceed 25 percent of the net amount so
recovered.”
Plaintiffs-appellees repeatedly argue that the statue identifies a “class of
plaintiffs” who are entitled to payment, but never actually identity or describe who
comprises that class. Instead, plaintiffs-appellees rely upon their own allegations that
they are entitled to money in the RRF fund because they were eligible entities and,
had the SBA awarded grant money in the order in which applications were received,
plaintiffs-appellees would have qualified for a grant. That is not a class of persons
defined by statute, but instead by plaintiffs-appellees’ own legal theory. Indeed, the
argument is circular: before we can define the class to whom payment is required, we
must believe plaintiffs-appellees’ allegations that SBA disbursed funds in the wrong
order, the “correct” order of disbursement would have included plaintiffs-appellees;
and, therefore, plaintiffs-appellees are within the class of persons to whom payment is
owed. That is far too convoluted to be fairly interpreted as mandating compensation
to a claimant.
In addition to plaintiffs-appellees’ textual arguments, plaintiffs-appellees argue
that the statute is money-mandating because it compensates for past injury. Plaintiffs-
appellees point to Maine as setting forth “two key indicators” of whether a statute is
money-mandating – mandatory language, and “a focus on compensating for past
injury.” Resp. Br. 14, 28, 40 (arguing that Maine “imposed a simple rule: If the statue
6
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compensates for past injuries, go to the Court of Federal Claims.”). The Supreme
Court in Maine said nothing about “two key indicators” and looked only to the
statute’s “focus on compensating insurers for past conduct” as a “[b]olster[]” to its
finding that the statute is money-mandating. 590 U.S. at 325. The statutory language
is clearly the determinative factor of whether a statute is money-mandating. Id.
Even if we consider the “bolstering” aspect of the Supreme Court’s decision in
Maine, the RRF program does not reflect an “attempt to compensate a particular class
of persons for past injuries or labors.” 590 U.S at 325; Resp. Br. 28-31. The RRF
statute does not speak of “compensating” restaurants for a “past injury” at all. Id. In
fact, the opposite is true. This was an economic stimulus benefit program. The
statute is titled “Support for restaurants” and is found within subchapter I of the
Coronavirus Economic Stabilization Act, titled Keeping American Workers Paid and
Employed. See 15 U.S.C. §§ 9001 to 9013, § 9009c, et seq. Money was paid from the
Restaurant Revitalization Fund – not a restaurant compensation fund. Id. at § 9009c(b)
(emphasis supplied). To qualify for grant money, restaurants had to certify that “the
uncertainty of current economic conditions makes necessary the grant request to
support the ongoing operations of the eligible entity.” § 9009c(c)(2)(A)(i) (emphasis
supplied). Congress was plainly attempting to address an ongoing social problem by
using grant money to prop up restaurants during the pandemic that might otherwise
shutter.
7
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The “backwards-looking formula” by which the agency calculated grant awards
does not change this. Resp. Br. 20. The formula set out in § 9009c(a)(7) is a simple
calculation of how the agency would determine the amount of a grant award. See §
9009c(c)(4)(B) (“Determination of grant amount”). It looked (backwards) to past
revenue earned and compared that with revenue earned during the first part of the
pandemic to arrive at an approximation of the impact that the pandemic had on a
restaurant’s revenue. This, in turn, would indicate how much money might
reasonably keep a restaurant operational throughout the pandemic. It was not a
“money-mandating indicator” but a measuring stick for how much funding a
restaurant might need to keep their doors open.
How a restaurant could use the grant money further supports that the RRF
program was not a remedial scheme for compensation of past injuries. See §
9009c(c)(5)(A)-(K). The funds could be used on payroll costs, rent or mortgage
obligations, utilities, maintenance expenses, supplies (including protective equipment
and cleaning materials), food and beverage expenses within the normal business
practice of the entity before the covered period, operational expenses, paid sick leave,
any other expenses deemed to be essential to maintaining the eligible entity. §
9009c(c)(5)(A)-(K). This does not reflect “compensation” for “backwards-looking”
losses. Resp. Br. 38. These are the kinds of expenditures necessary to keep a
restaurant in business, and its employees paid. Indeed, the grant money needed to be
spent on permissible expenses during the “covered period” – which ended no later
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than March 11, 2023 – or be returned to the Treasury. § 9009c(c)(6). And if an entity
that received funding went out of business during that time, its unused funds also
needed to be returned to the Treasury. Id. Finally, restaurants that had not opened
their doors when they applied for grant money could still qualify for an award if they
had incurred payroll costs as of March 11, 2021. § 9009c(a)(7)(D).
Plaintiffs-appellees ignore all of this and instead generate their own “past
injury” for which they claim “compensation.” Resp. Br. 11, 67. Plaintiffs-appellees
point to “not receiving [RRF] funds when they were due” as an injury that required
them to pay “expenses out of pocket.” Id. at 11. That is plainly not the type of past
injury or loss provided for by § 9009c. The statute, not a plaintiff, must supply the
loss or injury and command compensation. In any event, plaintiffs’ legal theory is
necessarily “forward-looking” and invokes equitable relief. The source of plaintiffs-
appellees’ alleged injury is the method SBA employed to award grants. Resp. Br. 11.
Had SBA reviewed applications in a different order, plaintiffs-appellees argue that
they would have received grant money before it ran out. Because the grant money
was finite and there was not enough for all applicants to receive an award, this would
require SBA to reorder all applicants and redetermine who should have received a
grant. This would result in new entitlements to a grant long after the grant money is
gone. In short, plaintiffs-appellees’ legal theory is an attempt to redo the program
using a different interpretation of § 9009c(c)(1) and without the other statutory
limitations.
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B. The Trial Court Erred In Reading Implied Money-Mandating
Obligations Into Non-Monetary Administrative Requirements
As our opening brief explains, the trial court erred by reading into § 9009c an
implied right of compensation based on SBA’s alleged failure to award grants in the
manner provided by the statute. Gov’t Br. 21-26; Appx22. Although plaintiffs-
appellees appear to disclaim the idea that they have an individual right to money
damages, the trial court found the statute to be money-mandating based, at least in
part, on an “individual right to receive payment.” Compare Resp. Br. 27 with Appx22.
The trial court derived this notion from finding that SBA was required to make grants
in the order specified by § 9009c(c)(1), and because SBA lacked discretion over
whether and how much money to pay specific applicants, “section 9009c can fairly be
read to be money-mandating.” Appx22. This type of implied compensation has been
squarely rejected by the C and the Supreme Court.
In Eastport S. S. Corp. v. United States, plaintiff sought compensation under a
regulatory measure that required approval by the Maritime Commission for the
foreign sale of a vessel. 372 F.2d 1002, 1009 (Ct. Cl. 1967). When the Government
failed to timely approve the sale of plaintiff’s ship as provided by the regulations,
plaintiff suffered a business loss which he sought to recover in a suit against the
United States Court of Claims. Id. at 1006-07. Like the plaintiff in Eastport, plaintiffs-
appellees here claim that because they were harmed by an alleged failure of SBA to act
in accordance with § 9009c, they are entitled to compensation for the economic loss
10
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they sustained as a result. Resp. Br. 3, 11, 36, 67. But this theory of recovery was
rejected in Eastport as “an unexpressed summons to compensate plaintiff,” that would
“necessarily [ ] open the doors to” a “mass of other regulatory and prohibitory
activities of the Federal Government (including criminal prosecutions) which can and
do cause pecuniary loss if improperly conducted.” 372 F.2d at 1009-10. The Court
explained that permitting such a suit “would also call for a drastic extension of federal
liability to all of these fields.” Id. at 1010. This is not a “policy argument” as
plaintiffs-appellees characterize it, but an extremely important boundary on the
jurisdiction of the Court of Federal Claims. Resp. Br. 27.
The Supreme Court affirmed the position of the Court of Claims in United
States v. Testan, rejecting the notion “that all substantive rights of necessity create a
waiver of sovereign immunity such that money damages are available to redress their
violation.” 424 U.S. 392, 400-01 (1976). In the face of no “express provision for an
award of backpay to a person who has been erroneously classified,” plaintiffs could
not bring suit. Id. at 399-400.
Plaintiffs-appellees fail to respond to our comparison between their claim and
the theory advanced by plaintiffs in Eastport and Testan. Instead, plaintiffs-appellees
simply reiterate that § 9009c expressly provides for “mandatory ‘shall’ language.”
Resp. Br. 27. They attempt to distinguish Eastport and Testan by arguing that the
statutes at issue there contained no “shall pay” language in contrast to the “plainly
mandatory obligations” of § 9009c. Resp. Br. 27-28. But this is the premise that was
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rejected in Eastport and Testan. Obligations, without more, do not create a cause of
action that can be brought in the Court of Federal Claims. And even statutory
violations that may result in economic loss do not create jurisdiction in the Court of
Federal Claims absent a money-mandating statute. Resp. Br. 5.
Finding that § 9009c is not money-mandating does not “broadly immuniz[e] an
executive-branch agency from judicial review,” as plaintiffs-appellees claim. Resp. Br.
4. Indeed, as many plaintiffs can attest, district court and the Administrative
Procedures Act is the proper forum and vehicle through which to challenge final
agency action – including SBA’s disbursement of grant money under § 9009c. See, e.g.,
W6 Rest. Grp., Ltd. v. Guzman, 732 F.Supp.3d 739 (N.D.Oh. 2024). The Court of
Federal Claims does not share that role.
C. The Trial Court Erred In Relying On Cases That Discuss When A
Discretionary Statute Is Money-Mandating
The trial court incorrectly relied upon the legal framework applying to cases
where a money-mandate appears discretionary. Appx17. These cases are irrelevant to
§ 9009c and whether it is money-mandating. As we explained in our opening brief,
these cases speak to when a statute that appears to give an agency discretion over a
decision whether or not to pay an individual or group is, in fact, money-mandating.
Gov’t Br. 27 (citing Doe v. United States, 463 F.3d 1314, 1324 (Fed. Cir. 2006)). But §
9009c contains no direct payment language – whether framed in discretionary or
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mandatory terms. There is no “shall pay” and there isn’t even “may pay” language in
section 9009c. And no “individual or group” is specified for payment at all.
Instead, the trial court and plaintiffs-appellees err by treating § 9009c’s statutory
mandate that SBA “shall award grants to eligible entities in the order in which
applications are received” as direct payment language and apply the three-factor
discretionary test cited in Doe, Samish Indian Nation v. United States and Perri v. United
States. Appx23.3
This also ignores the significant difference in language between § 9009c and the
statutes at issue in those cases. In Doe, for example, the statutory language provided
that “an employee in a position . . . shall receive premium pay for this duty on an
annual basis . . .” 463 F.3d at 1324-25. The fact that “the head of any agency . . . may
provide” this pay, did not change that it was a money-mandating statute because
“once a condition is met, namely the head of an agency states that a position meets
the criteria listed . . . the statute requires payment to employees with that position.”
Id. at 1325. Section 9009c contains no such statutory language indicating a direct
3
In Lummi Tribe v. United States, 99 Fed. Cl. 584, 594 (Fed. Cl. 2011), the trial court
found this statutory language to be money-mandating: “the Secretary ‘shall . . .make
grants’ and ‘shall allocate any amounts’ among Indian tribes that comply with certain
requirements [ ] and directs that the funding allocation be made pursuant to a
particular formula [ ].” That finding was reversed by this Court which held that the
statute is not money-mandating as tribes are not entitled under the statute to “an
actual payment of money damages in the strictest terms; their only alleged harm is
having been allocated too little in grant funding.” Lummi, 870 F.3d 1313, 1318 (Fed.
Cir. 2017).
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payment to an individual or group to which discretion might apply. It does not
“compel payment” to anyone once certain conditions are met. See id. at 1324 (reciting
the three-factor test in Samish); Resp. Br. 42 (same).
II. The Trial Court’s Decision Conflicts With This Court’s Grant Precedent
The trial court’s decision also conflicts with this Court’s precedent that grant
programs, such as RRF, do not create money-mandating statutes. In National Center
for Manufacturing Sciences v. United States, 114 F.3d 196, 201 (1997) and Lummi Tribe of the
Lummi Reservation, Washington v. United States, 870 F.3d 1313 (Fed. Cir. 2017), this Court
held that Federal grant-in-aid programs at issue do not create rights of action that are
susceptible to “naked money judgments” over which the Court of Federal Claims
could exercise jurisdiction.
Plaintiffs-appellees attempt to distinguish both cases based upon the specific
features of each grant programs at issue. Resp. Br. 32-35. But this is not what drove
the Court’s analysis. Rather it was the “true nature” of the relief sought by the
plaintiffs and whether “a naked money judgment” was appropriate relief. Plaintiffs in
both cases styled their action as a suit for money damages, but in fact what plaintiffs
sought was a larger share of grant funding to which they believed they were owed.
Lummi, 870 F.3d at 1318-19; Nat’l Cntr., 114 F.3d at 201. In making this
determination, the Court did not simply take plaintiffs’ allegations – or characterizations
of their allegations – at face value; instead, the Court looked “behind the complaint”
to “the true nature of the action.” Nat’l Cntr., 114 F.2d at 199; Lummi, 870 F.3d at
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1318-19. The Court determined that plaintiffs’ claims were not for “‘actual, presently
due money damages from the United States,’” simply because a decision may
“ultimately enable the plaintiff to receive money from the government.” Lummi, 870
F.3d at 1319 (citing Katz v. Cisneros, 16 F.3d 1204, 1208-09 (Fed. Cir. 1994)). Instead,
they were equitable in nature – seeking “larger strings-attached [ ] grants.” Lummi, 870
F.3d at 1319. Plaintiffs were not “entitled to a monetary judgment that would allow
[them] to use the funds appropriated under the Act for any purpose, without
restriction.” Nat’l Cntr., 114 F.2d at 201. Indeed, neither statute at issue “authorize[d]
a free and clear transfer of money.” Lummi, 870 F.3d at 1319. These restrictions
precluded plaintiffs from receiving a “naked money judgment” within the competency
of the Court of Federal Claims. Nat’l Cntr., 114 F.2d at 201.
Such restrictions are not a “dividing line” that we created between statutes
remediable under the Tucker Act and the Administrative Procedure Act (APA), as
plaintiffs-appellees argue. Resp. Br. 39. These are distinctions that this Court has
made in cases where plaintiffs attempt to shoehorn their claims into the money-
mandating requirements of the Tucker Act.
Plaintiffs-appellee next dismiss our focus on restrictions by arguing that “all
disbursements of funding from the government are subject to potential clawback”
and all Federal funding comes with strings attached. Resp. Br. 40. But this is hardly
an apt observation. Permitting the Government to audit the money it has paid to an
entity is not the same as conditioning the receipt of specific money on certain uses
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and during limited periods of time. Obligations to not discriminate similarly do not
speak to how money is used or when it is spent. Id.
Nor are Lummi and National Center distinguishable because plaintiffs-appellees
characterize their claims as “classic retrospective damages claims.” Resp. Br. 36. In
fact, they seek a disbursement of funds from the RRF to which they believe they are
entitled. An award of those funds would not be a “free and clear transfer” of money.
Lummi, 870 F.3d at 1319. But under the statute, plaintiffs-appellees would need to
certify that the money they seek is made necessary by “the uncertainty of current
economic conditions,” and “to support the ongoing operations of [their business].” §
9009c(c)(2)(A). Plaintiffs-appellees would then be restricted to spending the money
only on the expenses enumerated in section 9009c(c)(5). And they needed to do so
during the covered period – which ended March 11, 2023 – or return the money to
Treasury. 15 U.S.C. § 9009c(c)(6). Despite plaintiffs-appellees’ characterizations of
their claim, this is not an award that can be cured by a “naked money judgment.” See
Nat’l Cntr., 114 F.2d at 201.
Plaintiffs-appellees continue to argue that section 9009c is “backwards-
looking” and they only seek compensation for past injuries under that statute. Resp.
Br. 31. The only thing that is “backwards-looking” about the RRF is how the agency
would calculate the amount of a grant award. 15 U.S.C. § 9009c(a)(7). But how else
would the agency determine the extent to which a restaurant has been impacted by the
pandemic without looking to the pre-pandemic revenue of that entity? This
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“backwards-looking” formula thus served as a benchmark for measuring impact and
providing future funding.
III. The Trial Court Misunderstood The Scope Of Tucker Act Jurisdiction
A. The Trial Court Failed to Ascertain The True Nature of Plaintiffs’
Claims
Whether plaintiffs-appellees’ claims come within the jurisdiction of the Tucker
Act depends upon whether § 9009c is a money-mandating statute. See, e.g., Maine
Cmmt’y Health, 590 U.S. at 324. Resolving that question turns entirely on the statutory
language. Our opening brief demonstrates that the trial court began its jurisdictional
analysis not with the text of statute but by reference to plaintiffs-appellees’ claims –
specifically, plaintiffs-appellees’ own legal characterization of the allegations. Appx10.
Indeed, the trial court accepted plaintiffs-appellees’ circular argument that because
they sought money damages, money damages were an available remedy. Id.
This was in error. Rather than conducting the searching analysis required by
this Court in Suburban Mortgage Associates, Inc. v. United States, 480 F.3d 1116, 1125 (Fed.
Cir. 2007), the trial court simply took plaintiffs-appellees at their word. The result
infects the entire opinion – indeed, the trial court’s entire legal analysis as to whether
it possessed jurisdiction suffered from the premature conclusion that plaintiffs-
appellees seek retrospective money damages simply because they said so. Plaintiffs-
appellees disagree, claiming that the trial court was “exactly right in its approach”,
Resp. Br. 55, but their argument remains circular: plaintiffs-appellees’ request for
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money damages cannot create jurisdiction when § 9009c is not a money-mandating
statute.
B. The Trial Court Failed To Properly Apply Bowen And Katz
Simply requesting monetary compensation for various agency wrongs does not
create jurisdiction in the Court of Federal Claims. That is the principle which Bowen v.
Massachusetts, 487 U.S. 879 (1988), stands for and which precludes plaintiffs-appellees’
claims here.
As detailed in our opening brief, the trial court rejected our Bowen argument on
the basis that Bowen “has been narrowly interpreted by the Federal Circuit.” Appx12.
Although it is true that this Court has distinguished Bowen on its facts, the Court has
never indicated any intent to “narrow” its holding. Appx12; Suburban Mortg. 480 F.3d
at 1127; Consol. Edison Co. of N.Y. v. Dep’t of Energy, 247 F.3d 1378, 1383 (Fed. Cir.
2001).
Plaintiffs-appellees extend this error, arguing that “the thrust of Bowen’s
reasoning” turned on the nature of the Medicaid program at issue and whether a
money judgment alone would be adequate to compensate plaintiffs. Resp. Br. 46.
Plaintiffs-appellees seek to distinguish Bowen on the grounds that 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.” Resp.
Br. 47. But plaintiffs-appellees omit that this characterization of the suit was
determined by the Supreme Court and was contrary to how the State in that case
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characterized their suit. Bowen, 487 U.S. at 900-01 (“The Secretary’s novel submission
that the entire action is barred by [the APA] must be rejected.”).
And the premise upon which plaintiffs-appellees’ distinction rests is similarly
faulty. As the trial court did, plaintiffs-appellees distinguish their claim from Bowen by
simply declaring that they “request only retrospective money damages and there is no
ongoing complicated relationship” between the agency and the parties. Resp. Br. 46-
47. Plaintiffs-appellees simply characterize their claim as seeking nothing more than
money damages so that jurisdiction might lie with the trial court. The State in Bowen
similarly characterized its claim to avoid adjudication in district court under the APA.
But the Court rejected this, explaining the important distinction between money
damages and equitable relief: “The State’s suit to enforce § 1396b(a) . . . is not a suit
seeking money in compensation for the damage sustained by the failure of the Federal
Government to pay as mandated; rather it is a suit seeking to enforce the statutory
mandate itself, which happens to be one for the payment of money.” 487 U.S. at 900.
“The fact that the mandate is one for the payment of money must not be confused
with the question whether such payment, in these circumstances, is a payment of
money as damages or as specific relief.” Id. This principle demonstrates why
plaintiffs’ theory of recovery is not a genuine Tucker Act claim: plaintiffs-appellees
seek to enforce the RRF’s statutory mandate that SBA disburse funds in the order in
which applications are received. That the outcome of such a determination may result
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in money paid to plaintiffs-appellees is a mere “by-product” of the court’s review. Id.
at 909. It does not support jurisdiction in the trial court.
We are not arguing, as plaintiffs-appellees imply, that this Court incorrectly
interpreted Bowen in Suburban Mortgage or Consolidated Edison. Resp. Br. 46. But the
trial court ignored the analyses from those two cases and focused on the unique facts
of Bowen under the misperception that Bowen had been limited by this Court. In
Suburban Mortgage and Consolidated Edison, plaintiffs attempted the same thing that
plaintiffs-appellees here attempt – to avoid the jurisdiction of one court and, through
creative drafting of the complaint, to obtain relief in another. But forum shopping
like this through crafty pleading is not permitted. Suburban Mortg. 480 F.3d at 1124.
The Court – and not the plaintiff – must discern the “true nature” of a plaintiff’s
claim by “look[ing] beyond the form of the pleadings to the substance of the claim.”
Id. (cautioning litigants against “dressing up” a claim for jurisdictional purposes). The
trial court here failed to engage in such an inquiry and instead simply relied upon
plaintiffs-appellees’ own statements about what relief they are seeking.
Similar infirmities extend to the trial court and plaintiffs-appellees’ application
of this Court’s decision in Katz v. Cisneros, 16 F.3d 1204 (Fed. Cir. 1994). By relying
on the characterization of the case ascribed by plaintiffs-appellees in their complaint,
the trial court engaged in the very behavior that this Court warned against. See
Appx13-14 (“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
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government under a grant program administered by the SBA”); Katz, 16 F.3d at 1207
(“[r]egardless of the characterization of the case ascribed by [plaintiffs] in the
complaint, we look to the true nature of the action in determining the existence or not
of jurisdiction.”).
Plaintiffs-appellees can only distinguish their claim from Katz by relying on
their own characterization of their claims. Resp. Br. 49. But the legal principle from
Katz applies and controls – the actual legal theory of plaintiffs-appellees’ suit is that SBA
“bungled” the administration of the RRF program such that they were left without
grant money when they might otherwise be entitled to it. See W6 Restaurant Grp., 732
F.Supp.3d at750. This is not a claim for money damages arising from a money-
mandating statute.
Finally, we do not argue that the trial court lacks jurisdiction over any suits that
“adjudicat[e] whether an agency complied with a statutory mandate.” Resp. Br. 50.
But the statutory mandate must be for the actual payment of money – not for the
agency to do something besides paying money. Plaintiffs-appellees also misunderstand
the scope of statutory interpretation to be performed by the court. Of course, the
trial court is not required to accept an agency’s own interpretation of statutes and
regulations. At the outset of the case, the trial court shall determine whether the
statute (or Constitutional provision or regulation) raised in the complaint is money-
mandating. Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir. 2005). The trial court
therefore must interpret whether the statutory text can be fairly interpreted as
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mandating compensation by the Government. See Eastport, 372 F.2d at 1009. Then, if
the trial court determines that a statute is money-mandating, it “has the power to
make a determination of liability that will give rise to a remedy of monetary relief by
finding . . . that an agency has misinterpreted its statutory mandate to pay out
monies.” Kanemoto v. Reno, 41 F.3d 641, 647 (Fed. Cir. 1994) (citing Mitchell v. United
States, 930 F.2d 893, 895-97) (Fed. Cir. 1991)).
In short, the trial court is limited in its statutory interpretation to determining
whether the agency has misinterpreted its statutory mandate “to pay out monies.” See
id. Plaintiffs-appellees’ complaint extends far beyond such a question and contains a
wide range of allegations, from failure to detect fraud to mismanagement of an online
portal. This is clearly beyond the scope of the court’s jurisdiction.
D. The Trial Court Erred In Determining That There Is Concurrent
Jurisdiction
In our opening brief we explained that the trial court’s holding that concurrent
jurisdiction existed in both the Court of Federal Claims and district court was
incorrect. Gov’t Br. 45-47.4 In response, plaintiffs-appellees ignore that the Court of
Federal Claims is a court of limited jurisdiction and that if the claim does not sit
within the Tucker Act, there is no jurisdiction in the trial court.
4
We did not argue that the trial court held it possesses APA jurisdiction over
this case. Resp. Br. 52.
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There may be instances where the same operative facts could spawn cases in
both a district court and the Court of Federal Claims – as plaintiffs-appellees point
out in reference to 28 U.S.C. § 1500. Resp. Br. 53; United States v. Tohono O'Odham
Nation, 563 U.S. 307 (2011). But each case must be based on legal theories that would
bring them properly within the jurisdiction of both courts.5 And simply asking for
money damages does not create a Tucker Act claim. See Resp. Br. at 53.6
Finally, plaintiffs-appellees argue that their likely inability to get injunctive relief
before a district court – because the program is over – creates Tucker Act jurisdiction.
Resp. Br. 54. It does not. The unavailability of relief elsewhere does not create
jurisdiction before the Court of Federal Claims – it is not a backup forum, but can
only be accessed by stating a claim under the Tucker Act.
IV. Trial Court Erred In Holding That Plaintiffs-Appellees State A Claim
Upon Which Relief Can Be Granted
Our opening brief demonstrates that even if this Court finds § 9009c to be
money-mandating, plaintiffs-appellees cannot state a claim upon which relief can be
5
Plaintiffs-appellees’ example of Vitolo v. Guzman proves this point. 999 F.3d
353 (6 Cir. 2021). The Vitolo plaintiffs brough suit under the Equal Protection
th
Clause in district court. If they had tried to bring suit at the Court of Federal Claims,
they would have immediately had the problem that the Equal Protection Clause is not
money-mandating. This is true regardless of when the suit was filed or whether they
sought money damages. Resp. Br. 53.
6
The basis for Tucker Act jurisdiction in Slattery and Silver State, to which
plaintiffs-appellees point, were contracts with the Government. Resp. Br. 52; Slattery
v. United States, 635 F.3d 1298, 1300 (Fed. Cir. 2011); Silver State Land LLC v. United
States 148 Fed. Cl. 217, 223, 257 (2020). Neither case suggests that the Court of
Federal Claims can hear cases that are not within the Tucker Act confines.
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granted because liability under the RRF program was capped at $28.6 billion. Gov’t
Br. 48-54. This money has been expended and Congress has defunded the program.
A. 15 U.S.C. § 9009c(b)(2)(A) Imposes A Statutory Cap On The Amount
Congress Intended To Spend For The RRF Program
There can be no genuine dispute that Congress can “expressly limit[] an
obligation to available appropriations or specific dollar amounts.” Maine Cmmty.
Health, 590 U.S. at 313. Here, section 9009c(b)(2)(A) imposes such a cap.
As we explained in our opening brief, the phrase “in addition to amounts
otherwise available” cannot be read as making the Government’s payment obligation
open-ended. Plaintiffs-appellees agree that “otherwise” in this context means that
different sources of money may be available. Resp. Br. 60. But like statutory
language which caps liability by making funding “subject to the availability of
appropriations” or states “available funding,” the section 9009c language limits
liability if no other amounts become available. Maine, 590 U.S. at 313, at n7. And it is
undisputed that there was never any other money made available for the RRF
program. Resp. Br. 59.
Plaintiffs-appellees claim that we can point to “no statute that has been held to
cap liability by using a phrase like ‘in addition to amounts otherwise available.’” Resp.
Br. 59. In fact, the Supreme Court in Maine, did precisely that. In explaining how
Congress could have capped liability for the risk corridors provision of the Affordable
Care Act, the Court contrasted Congress’ silence with examples of other provisions in
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the Act that capped liability, along with many other statutes where Congress
“restrict[s] ‘shall pay’ language to an appropriation or available funds.” Maine, 590
U.S. at 313 n7. Such “capping” language includes that Government contributions
“shall be made … from the appropriations account,” (2 U.S.C. § 2064), that an
amount shall be contributed “from an appropriation or fund available,” (5 U.S.C. §
8334), and that a designated fund from which the program is paid will consist of
“amounts appropriated,” and “any other amounts received by the Fund,” (22 U.S.C. §
2906). The language here is at least as susceptible to capping as the examples
provided by the Supreme Court in Maine.
B. Congress Subsequently Eliminated Any Payment Obligation
In our opening brief we explained that the Fiscal Responsibility Act (FRA) that
went into effect on June 3, 2023, permanently rescinded unobligated funds from the
RRF program. Gov’t Br. 52. This eliminated any obligation created by the program
and precludes plaintiffs-appellees’ recovery here.
Plaintiffs-appellees seek to avoid the effect of the FRA recission by arguing that
SBA’s obligation to pay “arose before the RRF’s funds were depleted.” Resp. Br. 12,
60-62, 65. But that would nullify the FRA with respect to the RRF program.
Congress is free to create an obligation and then modify or eliminate after the
obligation arose. See Ind. Mun. Power Agency v. United States, 154 Fed. Cl. 752 (2021);
Dorsey v. United States, 567 U.S. 260 (2012).
Plaintiffs-appellees argue that “the agency’s unlawful disbursement to the
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wrong applicants” makes the Judgment Fund available to pay the relief that plaintiffs-
appellees seek. Resp. Br. 63. But the Judgment Fund cannot be used to create an
appropriation and circumvent Congressional intent to limit the Government’s liability.
Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 434 (1990) (“the general appropriation
for payment of judgments, in any event, does not create an all-purpose fund for
judicial disbursement.”).
Finally, plaintiffs-appellees argue that even though the covered period during
which awardees were to use all of their fund money ended years ago, this should not
prevent them from receiving money as damages. Resp. Br. 66. But the RRF program
allowed awardees to use grants for allowable expenses prior to March 11, 2023. There
is no way for plaintiffs-appellees to use any money now. Permitting them to receive
money would be outside of Congress’ stated intent for the program.
CONCLUSION
We respectfully request that this Court reverse the decision of the trial court
and dismiss the complaint for lack of jurisdiction.
Respectfully submitted,
YAAKOV M. ROTH
Acting Assistant Attorney General
PATRICIA M. McCARTHY
Director
/s/William J. Grimald
WILLIAM J. GRIMALDI
Assistant Director
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/s/Margaret J. Jantzen
MARGARET J. JANTZEN
Senior Trial Counsel
Commercial Litigation Branch
Department of Justice, Civil
Division
P.O. Box 480
Washington, DC 20044
Telephone: (202) 353-7994
Margaret.j.jantzen@usdoj.gov
Attorneys for Defendant-Appellant
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CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the word limit of Federal Rule of
Appellate Procedure 32(a)(7) and Federal Circuit Rule 32(b)(1) because the brief was
generated by a computer and contains 6747 words, excluding the parts of the motion
exempted by Federal Rule of Appellate Procedure 32(f). I further certify that this
brief complies with the typeface and type-style requirements of Federal Rules of
Appellate Procedure 27(d)(1)(E), 32(a)(5), and 32(a)(6) because it has been prepared
using Microsoft Word 2013 in a proportionally spaced typeface, 14-point Garamond
font.
/s/ Margaret J. Jantzen
Margaret J. Jantzen
28
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