Complaint against Isabel Guzman, Small Business Administration, The — No. 7:22-cv-04973 (Dkt. 2, S.D.N.Y.)

Summary

A pro se Complaint for Declaratory Judgment and injunctive relief by Dante Hyndman against the Small Business Administration, Isabel Guzman as SBA Administrator, Janet Yellen as Secretary of the Treasury, and the United States, filed 06/13/22 as Document 2 in No. 7:22-cv-04973-PMH in the U.S. District Court for the Southern District of New York. It challenges the SBA's denial of a COVID EIDL loan for a consulting business. The complaint states the plaintiff reapplied 12 times throughout 2020 and 2021 and describes denials, an appeal, a legal review citing discrepancies, and a final denial on April 28th 2022. It asks for declaratory judgments that the SBA acted contrary to the CARES Act and arbitrarily, writs of mandamus, and an order enjoining the defendants from dispensing $473,000 of EIDL funds to hold the plaintiff's place in line.

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Case 7:22-cv-04973-PMH Document 2 Filed 06/13/22 Page 1 of 17

IN THE UNITED STATES DISTRICT COURE® $3 PHI2# 58
FOR THE SOUTHERN DISTRICT OF

NEWYORK
DANTE HYNDMAN )
Plaintiff )
)
V. )
)
)
)
SMALL BUSINESS ADMINASTRATION)
ISABEL GUZMAN, in her official )
capacity as Administrator of the Small )
Business Administration; )
JANET YELLEN, in her official )

capacity as Secretary of the Treasury; and )
THE UNITED STATES OF AMERICA )

Plaintiff Dante Hyndman submit this Complaint for Declaratory Judgment and request for
Temporary, Preliminary, and Permanent Injunctive Relief to invalid the SBA, decision to deny
Plaintiff an EIDL Loan as described in the CARES Act, for ‘unverifiable information’ based upon
a finding and conclusion the SBA had no authority to find or conclude. The challenged portion of
SBA’s Final Decision purport to make Plaintiff ineligible for the CARES Act, EIDL Loan. EIDL
Loans under the CARES Act in contravention of the unambiguous statutory text and limited
authority that Congress delegated to the SBA. In support of this request, Plaintiff claims and states
as follows:

INTRODUCTORY STATEMENT

1, The outbreak of COVID-19 and the government’s response to that virus have decimated
the American economy. To help mitigate the economic damage and keep small businesses afloat

during these unprecedented times, the United States Congress passed the Coronavirus Aid, Relief
Case 7:22-cv-04973-PMH Document 2 Filed 06/13/22 Page 2 of 17

and the Economic Security Act (“CARES Act") and the EIDL Program. Congress tasked the Small
Business Administration (“SBA”) with promulgating regulations to administer EIDL loans to any
business concern based in the United States, so long as the small business was in operation by
February 15, 2020.
2. Plaintiff owns such business: Dante Hyndman of which is principally located 738
Pelhamdale avenue, New Rochelle, NY, 10801. But the SBA has refused to uphold its statutory
duty to make EIDL loans available to Plaintiff. With no delegation of authority to do so, the SBA
took it upon itself to exclude Plaintiff. Nevertheless, the SBA has applied its facially invalid reason
to indiscriminately exclude Plaintiff from EIDL loans that Congress made available to all small
businesses

JURISDICTION AND VENUE

3. The Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1346, 1361, and
2201. Additionally, this Court has jurisdiction to review agency action under 5 U.S.C. § 702, which
provides, in part: “A person suffering legal wrong because of agency action, or adversely affected
ency action within the meaning of a relevant statute, is entitled to judicial review
thereof.” And pursuant to 15 U.S.C. § 634(b), jurisdiction is conferred upon any United States
District Court to determine controversies against the Administrator of SBA. This Court has
jurisdiction to grant injunctive relief pursuant to 28 U.S.C. § 2202 and Rule 65 of the Federal Rules
of Civil Procedure. Venue is proper in the District of Saint Louis, Missouri, pursuant to 28 U.S.C.
§ 1391, as the events giving rise to the Plaintiff causes of action arose or exist in this District.

PARTIES

4. Plaintiff is a resident and business owner located at 738 Pelhamdale Avenue, New

Rochelle, NY, 10801. Plaintiff has a consulting business.
Case 7:22-cv-04973-PMH Document 2 Filed 06/13/22 Page 3 of 17

5. Defendant SBA is a federal agency created and authorized pursuant to 15 U.S.C. § 633 et
seq. SBA maintains a local office in 26 Federal Plaza Suite 3100, New York, NY.

6. Defendant Isabell Guzman is the Administrator of SBA (the “Administrator”), a Cabinet-
level position. She is sued in her official capacity. The Administrator may be sued pursuant to
15U.S.C. § 634(b) (“In the performance of, and with respect to, the functions, powers, and duties
vested in [her] by this chapter the Administrator may ... sue and be sued ... in any United States
district court[.]”’).

7. Defendant Janet Yallen (the “Secretary”) is the Secretary of the United States Department
of the Treasury (“Treasury”). She is sued in his official capacity.

8. Defendant the United States of America is a sovereign nation dedicated to protecting life,
liberty, and property, as provided for in the U.S. Constitution.

STATEMENT OF FACT
9. Section 7(b)(2) of the Small Business Act authorizes SBA to make EIDL loans to eligible

small businesses and nonprofit organizations located in a disaster area. 15 U.S.C. 636(b)(2). On
March 6, 2020, Congress deemed COVID-19 to be a disaster in Title II of the Coronavirus
Preparedness and Response Supplemental Appropriations Act of 2020, Public Law 116-123, 134
Stat. 146, 147, allowing SBA to declare disasters and make EIDL loans available to small
businesses and nonprofit organizations suffering substantial economic injury as a result of the
COVID-19 pandemic. The Coronavirus Aid, Relief, and Economic Security Act (CARES Act)
Public Law 116-136, expanded eligibility and waived certain rules and requirements for COVID
EIDL loans. Section 1110 of the CARES Act permitted SBA to waive rules related to personal
guarantees on COVID EIDL loans of not more than $200,000 and the requirement that an applicant

be unable to obtain credit elsewhere. Section 1110 also provided SBA with the
Case 7:22-cv-04973-PMH Document 2 Filed 06/13/22 Page 4 of 17

authority to approve an applicant based solely on the credit score of the applicant or use alternative
appropriate methods to determine an applicant's ability to repay.

10. Asa direct and proximate cause of COVID-19 and economic downturn, Plaintiff business
was negatively impacted and suffered substantial economic injury. In order to mitigate the negative
impact and stabilize Plaintiff business, On April 8th, 2020 Plaintiff applied for an EIDL loan that
was offered to businesses at a 3.75% interest rate fixed for 30 years with the first payment starting
2 years after the date received.

11. On or about March 14” 2020 Plaintiff used the IRS non-filer to update banking info with
the IRS to receive stimulus payments.

12. On April 01* 2020 Plaintiff applied for an EIDL Loan, shortly afterward Plaintiff was
denied June 13" 2020. “Denied due to economic injury not substantiated”

13. Shortly after, due to Plaintiff having Covid-19 symptoms, quarantining with family
members and government orders shutting down Plaintiff city, Plaintiff was unable to amend his
non-filer federal tax return until July 1‘ 2021, 12 months from the due date July 15, 2020. In

addition, Plaintiff also filed Plaintiff 2020 tax return at the same time as amending 2019 non-filer

14. Plaintiff reapplied 12 times throughout 2020 and 2021 and denied again on August 19"
2021. “The applicant business is not eligible because there are significant discrepancies
between the information you provided in your application and the information we received
from the IRS.” Plaintiff informed the SBA customer service representatives that Plaintiff 2019
amended return wasn’t processed at IRS and to wait before ordering transcripts. The SBA still
ordered plaintiff transcripts which led to the decline dated August 19 2021,

15. Defendant, SBA, informed Plaintiff that in order to go through reconsideration again, an
appeal request must be submitted. The appeal request was submitted and confirmed one week
later.

16. On November 5" 2021 the IRS had fully processed Plaintiff tax return.
Case 7:22-cv-04973-PMH Document 2 Filed 06/13/22 Page 5 of 17

17. On November 14 2021 Paintiff was assigned a congressional loan specialist via
congressional inquiry.

18. On December 14" 2021, Plaintiff was denied again on appeal. This decline was done by
an inexperienced 24-year-old loan specialist that prior to becoming a loan specialist for the SBA,
was newly out of college, graduating from health and science and immediately became an Covid-
19 loan specialist for the SBA giving the power to decline and approve applications. The loan
specialist declined reason “identified discrepancies with other applications submitted, no tax
transcripts for other businesses on applications submitted by Plaintiff. Plaintiff submitted
multiple applications under his own name and doesn’t have other businesses. Multiple
applications were submitted, in error, but for the same business only the original application
can be processed and because of multiple applications not having transcripts, the file was
declined.

19. Upon information and belief, Defendant never processed the original application which
had all necessary documents and didn't need other applications to be considered.

20. Plaintiff then requested to speak with the loan specialist, supervisor, and as a result, was
appointed a new loan officer as stated in appeals decline letter dated December 14th 2021.

21. Plaintiff contacted the local congressional district director and manager of the local SBA
office about the matter. The local SBA office manager sent out an email on behalf of the Plaintiff
regarding the appeal application being wrongfully declined. The congressional loan specialist

assigned to the Plaintiff was also notified but unresponsive.
Case 7:22-cv-04973-PMH Document 2 Filed 06/13/22 Page 6 of 17

22. December 21st 2021, Plaintiff's portal updated to reflect required documents; 2019 bank
statements, 2019 tax return, social security card, 4506 T, P-022 Standard Resolution. All
documents besides the social security card were previously uploaded, but I immediately uploaded
the documents again.

23. For the first time since receiving Plaintiff tax transcripts from the IRS on November 23"
2021, plPintiff inquired about the SBA, requesting documents already provided and how Plaintiff
file was declined by a loan specialist who hasn't worked at the SBA until after the Plaintiff applied
for a loan.

24. The congressional loan specialist informed the Plaintiff that a request for “legal review”
was submitted. Plaintiff asked about this process and was told by the congressional loan specialist
that it is a process that consists of multiple loan specialists of various ranks who review a file for
discrepancies.

25. February 9th 2022, Congressional Loan specialist informed Plaintiff that the legal review
team has identified multiple discrepancies with his file. “These discrepancies included , taxes
appear to be filed only to obtain ioan, amended tax return was filed 07/2021 after SBA
declined application, 2018 tax return was not filed, no evidence business was operational
prior to disaster date, the bank statement welcome letter verifies that the applicant did not
open a business account until 2021, borrower submitted 12 applications, all vary in
information and seem to be for different businesses, applicant is using 7 different bank
accounts throughout the application, and applicant’s explanation for duplicate applications
is insufficient.”

26. Plaintiff explained to the congressional loan specialist and drafted letters explaining that
all applications were submitted for one business, but only the original application needed to be
processed and multi bank account info was giving to the SBA so the SBA could update Plaintiff
bank account from the one Plaintiff gave in the original application.

27. Plaintiff highlighted, explaining that all required documents were provided and that the
Case 7:22-cv-04973-PMH Document 2 Filed 06/13/22 Page 7 of 17

discrepancies were all discretionary which could have been explained if requested, but were not
valid reasons to decline a file.

28. All documents provided were legitimate and the SBA already had full tax transcripts from
the IRS.

29. Upon information and belief, the SBA dragged Plaintiff files through a fake legal review
process that was kept secret until 2022.

30. Plaintiff highlights disorganization by the SBA through calling loan specialists, loan
officers, and using a various network of loan specialists who all work together or are supervisors
of each other all with the common goal of deflecting and distracting applicants.

31. Plaintiff spent 6 weeks going back and forth with congressional loan specialist, her
supervisor, and the SBA about the file being flagged for fraud and having an agency hold for
“discretionary reasons” despite all required documents sitting there in the portal since November
23rd 2021. Plaintiff was constantly asked to give new explanations every week for how his
business operated, how he makes income, why he filed with the non-filers tool and then amended,
why he opened a business bank account in August 2021, and all the other discrepancies on hi
32. March 10th 2022, Plaintiff called, the SBA, customer service to finds out who his loan
officer is and confirm this information with the SBA PDC reconsideration operator. Plaintiff
emails and calls the loan officer for a week and was ignored every single time. One week later,
Plaintiff called the SBA, PDC department to request the supervisor of the loan officer due to the
loan officer refusing to work on Plaintiff file. The PDC operator calls the supervisor of the loan
officer, and before the voicemail recoding could finish saying the supervisor was unavailable the
loan officer emails Plaintiff stating that he is no longer the loan officer on his file and suggests to
Plaintiff to contact customer service.

33. The Plaintiff immediately responds to the loan officer’s email informing him that he
already did that and confirmed with the PDC department that he is already aware and confirmed

with the SBA customer service and the PDC department, multiple representatives from each
Case 7:22-cv-04973-PMH Document 2 Filed 06/13/22 Page 8 of 17

department, that the information is correct. The loan officer finally admits to his and confesses that
he is no longer on the file which was also false.

34. March 29th 2022, the SBA hold was lifted off the file and Plaintiffs congressional loan
specialists’ team lead added notes to Plaintiff file highlighting his amended returns.

35. April 1st 2022, Plaintiff completes the legal review process and is informed by his
congressional loan specialist about the next part of the process, which is waiting on the
congressional high priority team. Plaintiff asks why he was denied by a loan specialist who has
the same rank as his congressional loan specialist and why he must wait for congressional high
priority when the supervisor of the congressional loan specialist is also on the high priority team.
Plaintiff assumes that his loan specialist and her supervisor could approve his file but keep passing
the file off to others.

36. April 9th, 2022 the SBA, requested partial transcripts from IRS. Plaintiff immediately
informs defendant and his congressional loan specialist that the full transcripts is what the
defendant needs, not the partial transcripts, and the full transcripts were already received twice;

November 3rd 2021 and January 8tt

37. April 11th 2022, the hold stipulation on Plaintiff's file was cleared and the SBA sent
Plaintiff file for final reconsideration.

38. April 13th 2022, Plaintiff called the Team lead for the of the congressional loan specialist,
to confirm that SBA has all necessary documents including his amended tax transcripts from IRS.
The team lead confirms everything is ready to go and the file is waiting on congressional high
priority, which is the same department the team lead is in.

39. April 28th 2022, loan specialist Patrick Murphy denied Plaintiff appeal, stating “that
Plaintiff will not get a second appeal due to late filing of taxes” despite Plaintiff completing the
legal review process on April 1st and rectifying that same discrepancy.

40. May Sth, the SBA announces that the EIDL program is ending, and all portals will go down

on May 16th 2022.
Case 7:22-cv-04973-PMH Document 2 Filed 06/13/22 Page 9 of 17

41. Shortly after the SBA announced that all funds are out and that only applicants who are
obligated will be funded. Plaintiff calls the SBA, customer service to confirm his file is still in
processing waiting on congressional high priority. Plaintiff was told yes.

42. May 11th 2022, a representative from Office of Disaster Assistance named Michael Lipari
placed the funding “on hold” for suspected EIDL fraud. Mr. Lipari states: the Plaintiff file is on
agency hold, loan officers and case managers should seek guidance prior to contacting
borrowers, making decisions, or completing tasks by emailing PDC agency hold inquiries
mailbox. Do not discuss agency hold details with customers. Internal inquiries only - mailbox
is not intended for non-SBA employees.” Mr. Lipari finally states that the Plaintiff filed his
returns for purposes of the loan.

43. The Plaintiff called a high priority specialist named Katherine Crane, who is the supervisor
for Patrick Murphy, who flagged the file on April 28th, 2022, to ask her to investigate the file and
see what could be done. Miss. Crane informs the Plaintiff that Mr. Lipari works for the legal review
team. Plaintiff confirms that Mr. Lipari disregarded the consensus reached by the legal review

laintiff’s file for something that was already

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44. Plaintiff contends that no matter what happens with a file, even if all documents are
provided, all discrepancies are resolved through legal review, the SBA has an internal policy to
deny at any means necessary and/or to delay a file any way possible until the SBA can shut the
program down.

45. Section 15 USC $9009 (d)(2) did not give the SBA the discretion to create additional

"entity eligibility" criteria.
Case 7:22-cv-04973-PMH Document 2 Filed 06/13/22 Page 10 of 17

COUNT I: SBA PROMULGATED AN INTERIM ELGIBILITY

46. Plaintiff reallege and incorporate by reference the allegations contained in the Introductory
Statement and paragraphs 1 through 45, as if fully set forth herein
47. The plain reading of 15 USC §9009(d)(2)(A) or (B) does not support that if a 2019 tax
return reported filed by the IRS in 2021 renders the applicant ineligible to participate in the EIDL
program. On the contrary, the correct reading of this section is that Congress intends for the SBA
to use information from the Department of the Treasury (IRS) to confirm and verify that financial
information provided by the applicant is verifiable and accurate, and for the SBA to use the said
information in making determinations about the applicant's eligibility for certain grants or specific
loan amount, and not whether an applicant is eligible to participate in the EIDL program.
48. Congress did not delegate any discretion to SBA to deem classes of small businesses
ineligible for reasons not contained in the CARES Acct.

46. SBA’s Unlawfully Denied EIDL Loan to the Plaintiff

47. Plaintiff is fully qualified under the text of the CARES Act to receive a EIDL loan.

48. Plaintiff intended and sti

the provisions of the CARES Act.

COUNT II: UNLAWFULLY WITHHELD AGENCY ACTION
DEFENDANTS FAILED TO CARRY OUT A MINISTERIAL DUTY

49. Plaintiff reallege and incorporate by reference the allegations contained in the Introductory

Statement and paragraphs | through 48, as if fully set forth herein.
Case 7:22-cv-04973-PMH Document 2 Filed 06/13/22 Page 11 of 17

50. The Administrative Procedure Act requires that a reviewing court “compel agency action
unlawfully withheld or unreasonably delayed[.]” 5 U.S.C. § 706(1).

51. Relief under § 706(1) “is like the mandamus remedy, ‘empowering a court only to compel
an agency to perform a ministerial or non-discretionary act or to take action upon a matter, without
directing how it shall act.’” Vill. of Bald Head Island v. U.S. Army Corps of Engineers, 714 F.3d
186, 195 (4th Cir. 2013) (quoting Norton v. S. Utah Wilderness All., 542

U.S. 55, 64 (2004) (cleaned up)).

52. | The CARES Act directed SBA to administer EIDL Loans based on the considerations that
Congress set out in the law.

53. SBA’s failure to administer EIDL Loan to Plaintiff when Plaintiff is eligible under the
dictates of the CARES Act —is an unlawfully withheld agency action.

54. Plaintiff is entitled to relief under 5 U.S.C. § 706(1) by way of ordering the Defendants to

perform the nondiscretionary act of administering EIDL Loans according to the text of the CARES

Act.
COUNT II: INVALID AGENCYACTION CONTRAVENES
THE PLAIN TEXT OF THE CARES ACT
55. Plaintiff reallege and incorporate by reference the allegations contained in their

Introductory Statement and paragraphs | through 54, as if fully set forth herein.

56. A court reviewing an agency action “shall hold unlawful and set aside” any action “in
excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. §
706(2)(C).

37. The text of the CARES Acct is clear and unambiguous as to which businesses

are eligible for EIDL loans.
Case 7:22-cv-04973-PMH Document 2 Filed 06/13/22 Page 12 of 17

58. Because the CARES Act was clear and unambiguous, SBA lacked authority to promulgate
regulations that restricted or otherwise “clarified” which businesses are eligible for EIDL loans.
The Act’s specification that so long as the business was in "operation; prior to J anuary 31st, 2020,
is a reasonable interpretation that Plaintiff is eligible. CARES Act, Pub. L. No. 116-136, § 1110.
59. Finally, by specifying ‘any business,’ (“[O]ne can find nothing in either the CARES Act
or the Small Business Act to suggest that Congress wanted to exclude the Plaintiff from EIDL.

... “[G]iven Congress’s clear intent to extend EIDL loans to all small businesses affected by the
pandemic that was in operation prior to January 31st, 2020 ... it seems highly unlikely that
Congress intended the SBA to apply its exclusion to EIDL.”).

60. Administrative agencies are not entitled to deference. Article III of the Constitution vests
“the judicial power of the United States” in the courts and creates the judicial office held by “[t]he
judges, both of the Supreme Court and inferior courts.” U.S. CONST. art. III, § 1. The judicial
power includes the authority to decide cases and controversies; a judge’s office includes a duty to
exercise independent judgment in the interpretation and application of law in each case. See
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is emphatically the duty of the Judicial
Department to say what the law is. Those who apply the rule to particular cases must, of necessity,
expound and interpret that rule.”).

61. The judicial office requires judges to “exercise independent judgment in accord with the
law.” PHILIP HAMBURGER, IS ADMINISTRATIVE LAW UNLAWFUL? 173 (2014).

62. Judicial deference to the agency’s interpretation would display bias toward SBA, the
government litigant in this case. See Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980)

(explaining that a neutral judiciary “safeguards the two central concerns of procedural due
Case 7:22-cv-04973-PMH Document 2 Filed 06/13/22 Page 13 of 17

process, the prevention of unjustified or mistaken deprivations and the promotion of participation
and dialogue by affected individuals in the decision-making process”).

63. The Plaintiff reading of the CARES Act is more consistent with Congress’s purpose in
providing for EIDL loans in that Congress made EIDL loans available to all business concerns that
meet the considerations set out in the CARES Act, Pub. L. No. 116-136, § 1110.

64. Asa direct and proximate result, the Defendants and have caused Plaintiff and irreparable
harm including but not limited to financial ruin and business ruination.

65. The Plaintiff has been damaged and will continue to be damaged by

Defendants’ conduct.

66. No adequate remedy at law is available that could compensate Plaintiff for their damages.
67. The Plaintiff is entitled to declaratory and injunctive relief.

COUNT IV: AGENCY ACTIONS AND DECISION IS
ARBITRARY AND CAPRICIOUS

68. _ Plaintiff reallege and incorporate by reference the allegations contained in their
Introductory Statement and paragraphs 1 through 45, as if fully set forth herein.

69. A court reviewing must “hold unlawful and set aside agency action” that is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law[.]” Mayor & City
Council of Baltimore v. Azar, No. CV RDB-19-1103, 2020 WL 1873947, at *3 (D. Md. Apr. 15,
2020) (quoting 5 U.S.C. § 706(2)(A)).

70. An agency’s action “‘is arbitrary and capricious if ‘the agency has relied on factors

which Congress has not intended it to consider, entirely failed to consider an important aspect of
the problem, offered an explanation for its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to a difference in view or the product of

agency expertise.” J.O.P. v. U.S. Dep’t of Homeland Sec., No. GJH-19-1944, 2020 WL
Case 7:22-cv-04973-PMH Document 2 Filed 06/13/22 Page 14 of 17

2932922, at *18 (D. Md. June 3, 2020) (quoting Sierra Club v. U.S. Dep’t of the Interior, 899 F.3d
260, 293 (4th Cir. 2018)).

71. “[A] court must “conduct a ‘searching and careful’ review to determine whether the
agency’s decision ‘was based on a consideration of the relevant factors and whether there has been
a clear error of judgment.’” Friends of Capital Crescent Trail v. U.S. Army Corps of Engineers,
No. CV JKB 19-106, 2020 WL 1849704, at *5 (D. Md. Apr. 13, 2020) (quoting Sierra Club, 899
F.3d at 270).

72. A facial review of CARES Act, Pub. L. No. 116-136, § 1110 proves that the SBA acted
arbitrarily and capriciously. Congress did not intend for SBA “to exclude Plaintiff because the
purpose of the EIDL Loan was to provide relief to all small businesses owners negatively impacted
by the pandemic. The SBA failed to rely on the factors that Congress established. In doing so,
SBA excluded Plaintiff businesses.

73. The SBA completely disregarded the important problem that Congress tried to solve
making favorable loans available to all small business's owners expeditiously in a time of national
economic turmoil.

74. Congress did not call on SBA’s expertise; instead, Congress instructed SBA to administer
EIDL loans based on the considerations enumerated in the CARES Act. SBA departed from the
text of the law and, in doing so, failed entirely to consider the problem Congress sought to.

75. As a direct and proximate result, the Defendants have caused Plaintiff irreparable harm
including but not limited to financial ruin and business ruination.

76. The Plaintiff has been damaged and will continue to be damaged by Defendants’ conduct.

77. No adequate remedy at law is available that could compensate Plaintiff for his damages.
Case 7:22-cv-04973-PMH Document 2 Filed 06/13/22 Page 15 of 17

78. The Plaintiff is entitled to declaratory and injunctive relief invalidating the SBA actions.

COUNT V: MANDAMUS THE INDIVIDUAL DEFENDANTS
FAILED TO CARRY OUT A MINISTERIAL DUTY

79. Plaintiff reallege and incorporate by reference the allegations contained in their
Introductory Statement and paragraphs 1 through 78, as if fully set forth herein. The “ancient
remedy” of mandamus will apply in extraordinary circumstances “to compel the fulfillment of a
duty which is ministerial, plainly and positively ascertained, and free of doubt.” Grice v. Colvin,
97 F. Supp. 3d 684, 705 (D. Md. 2015) (citations omitted).

80. A writ of mandamus is proper when three elements are present: “(1) a clear right in the
Plaintiff to the relief sought; (2) a clear duty on the part of the defendant to do the act in question;
and (3) no other adequate remedy available.” Grice, 97 F. Supp. 3d at 705 (citation omitted).

81. | The second element is satisfied when the defendant’s official action is ministerial or
nondiscretionary. “A ministerial duty, the performance of which may, in proper cases, be required
of the head of a department, by judicial process, is one in respect to which nothing is left to
discretion. It is a simple, definite duty, arising under the conditions admitted or proved to exist,
and imposed by City of Columbus v. Trump, No. CV-18-2364-DKC, 2020 WL 1820074, at *22
(D. Md. Apr. 10, 2020) (quoting Mississippi v. Johnson, 71 U.S. 475, 498 (1866)).

82. One such ministerial duty is dispensing sums of money as directed by Congress. City of
Columbus, 2020 WL 1820074, at *22 (citing Kendall v. U.S. ex rel. Stokes, 37 U.S. (12 Pet.) 524
(1838); Marbury, 5 U.S. (1 Cranch) 137).

83. The equitable writ of mandamus is appropriate in this extraordinary circumstance because
Congress directed SBA to administer EIDL Loans based on the criteria set forth in the CARES
Act. The Plaintiff meets that criteria and is entitled to have his loan applications processed like all

other applicants who meet the criteria that Congress set. There is no adequate
Case 7:22-cv-04973-PMH Document 2 Filed 06/13/22 Page 16 of 17

remedy at law by which the Plaintiff can compel the Defendants to carry out their statutorily
imposed ministerial duty.
84. The Plaintiff is entitled to mandamus relief ordering the Defendants to administer and
process Plaintiff EIDL Loan applications as required by the plain terms of the CARES Act.
PRAYER FOR RELIEF

Wherefore, Plaintiff pray for the following relief against Defendants:
A. Declaratory judgment that the SBA actions are contrary to the CARES Act.
B. Declaratory judgment that the SBA actions, conclusions and decision is arbitrary and
Capricious.
C. Writs of mandamus ordering the individual Defendants to fulfill their duties to administer
EIDL Loans to Plaintiff that are eligible under the criteria set out in the CARES Acct.
D. Temporary Restraining Order and Preliminary and Permanent Injunction that would
save the Plaintiff place in line for the first-come, first-served funds that Congress allotted for
EIDL loans by enjoining the Defendants from dispensing $473,000 of the funds that the SBA
' 1) and Congress allotted under the CARES Act on April 24,
2020, Pub. L. No. 116-139.
E. Order the Defendants to restore Plaintiff to its place in queue as of the time Plaintiff

application denied for the EIDL Loan.

F. For such other relief as the Court deems just and proper.

The forgoing is true to the best of my knowledge

Respectfully submitted,

Dante Hayndmaii

738 Pelhamdale avenue
New Rochelle, NY, 10801
914.215.2361

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