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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CONCESSIONS HH, JV,
PETITIONER,
v.
THE UNITED STATES SMALL
BUSINESS ADMINISTRATION,
RESPONDENT.
Civil Action No.
1:24-cv-01870-WMR
RESPONDENT’S NOTICE OF SUPPLEMENTAL AUTHORITY
Respondent United States Small Business Administration (SBA), by and
through the United States Attorney for the Northern District of Georgia,
respectfully files this Notice of Supplemental Authority, notifying the Court of a
decision analyzing the same arguments made by Petitioner here. That decision is
Forest View Rehab. v. United States SBA, 2024 U.S. Dist. LEXIS 234023 (N.D. Ill.,
Dec. 30, 2024). While not binding Supreme Court or Eleventh Circuit precedent,
Respondent nevertheless believes that Forest View can substantially inform the
Court’s decision-making for at least two reasons.
First, Forest View involves a challenge to “the SBA’s authority to
implement the Corporate Group Rule under the Administrative Procedures Act
(“APA”), 5 U.S.C. § 706(2)(C), and the SBA’s application of the rule to Forest
View under 5 U.S.C. § 706(2)(A).” Id. at *2. Those are the same issues here.
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Second, the court in Forest View also analyzed an argument similar to
Concessions’ argument here that the Corporate Group Rule (“CGR”) is
inconsistent with the waiver-of-affiliation for eligibility provision of the
Coronavirus Aid, Relief, and Economic Security (“CARES”) Act. Id. at **16- 23;
Doc. 17-1 at pp. 19-23. The Forest View court found “significant that the PPP ‘was
added into the existing § 7(a) program’ and thus its provision should be
interpreted in light of Congress’ broad grant of authority to the SBA reflected in
the existing [§ 7(a)] statutory scheme.” Id. at *23 (citing In re Gateway Radiology
Consultants, P.A., 983 F.3d 1239, 1256 (11th Cir. 2020)). Here, while Concessions
acknowledges that Congress housed the PPP program within § 7(a), it
nevertheless fails to acknowledge the broad regulatory powers Congress gave
the SBA by doing so. Even more telling, Concessions makes no mention of
Gateway and the Eleventh Circuit’s conclusion that Congress delegated broad
powers to the SBA to implement rules like the CGR.
The Forest View court’s recognition of the broad authority that comes with
§ 7(a) also undermines Concessions’ contention, in reply, that Congress was
unaware of the existing CGR rule when it enacted the Economic Aid Act
(“EAA”), after the CARES Act, and left the CGR untouched. Doc. 19 at p. 12.
Concessions ignores Congress’ clear intention, included directly in the CARES
Act and EAA respectively in subparagraphs 636(a)(36)(B) and (37)(B), which
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gives the SBA discretion to guarantee first and second-draw PPP loans in
accordance with “terms, conditions, and processes as a loan made under” § 7(a).
See 15 U.S.C. § 636(a)(36)(B), (37)(B) (emphasis added). As the Forest View court
found, the notion that the SBA lacked authority to enact the CGR is “at odds with
§636(a)(36)(B)’s instruction that the agency could continue guarantee loans under
the same terms, conditions, and processes as other SBA loans.” Forest View
Rehab., 2024 U.S. Dist. LEXIS 234023 at *19. Simply put, Congress knew what §
7(a) was, and it knew what it was doing by housing the EAA in § 7(a). It fully
vested with the SBA authority to set maximum amount of PPP loans a corporate
group could obtain, while simultaneously making it clear that some businesses in
the hospitality industry that would have ordinarily not been eligible for PPP
loans would be eligible for those loans.
For these reasons, Respondent respectfully ask that the Court consider
Forest View Rehab. v. United States SBA, 2024 U.S. Dist. LEXIS 234023 (N.D. Ill.,
Dec. 30, 2024).
Respectfully submitted,
RICHARD S. MOULTRIE, JR.
Acting United States Attorney
600 U.S. Courthouse
75 Ted Turner Drive SW
Atlanta, GA 30303
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(404) 581-6000 fax (404) 581-6181
/s/RODNEY H. ATREOPERSAUD
Assistant United States Attorney
Georgia Bar No. 309454
Rodney.Atreopersaud@usdoj.gov
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Certificate of Compliance
I hereby certify, pursuant to Local Rules 5.1 and 7.1D, that the foregoing brief
has been prepared using Book Antiqua, 13-point font.
/s/RODNEY H. ATREOPERSAUD
Assistant United States Attorney
Case 1:24-cv-01870-WMR Document 20 Filed 01/31/25 Page 5 of 6
Certificate of Service
The United States Attorney’s Office served this document today by filing it
using the Court’s CM/ECF system, which automatically notifies the parties and
counsel of record.
January 31, 2025
/s/ RODNEY H. ATREOPERSAUD
RODNEY H. ATREOPERSAUD
Assistant United States Attorney
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