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StarEvents, Inc. v. Small Business Administration — Opposition to Motion to Dismiss (D.D.C., Dkt. 16)

Summary

Plaintiff's Memorandum in Opposition to Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment in StarEvents, Inc. v. Small Business Administration, et al., Civ. A. No. 22-00380 (JDB), in the U.S. District Court for the District of Columbia, filed July 7, 2022 as Document 16. StarEvents argues that the court has subject matter jurisdiction and that the Amended Complaint states claims for unreasonable delay and for declaratory relief after SBA rescinded its denial of the company's Shuttered Venue Operators Grant application. The opposition reviews the TRAC factors and cites a June 8, 2022 minute order in Champion Matters LLC v. Small Business Administration. It argues summary judgment is premature because SBA has not filed the administrative record under LCvR 7(n)(1). It is signed by Jeffrey E. McFadden, Counsel for Plaintiff.

Summary drafted by a model from the text of the original file linked on this page and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Cite this document

“StarEvents, Inc. v. Small Business Administration — Opposition to Motion to Dismiss (D.D.C., Dkt. 16).” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/response-no-1-22-cv-00380-dkt-16-d-d-c-b8c4ced120/, SHA-256 5bb6a7f502a566377da878f2640a6216c56d8ee4e965e713bc13e21f6ee3bbb5.

Full text

       Case 1:22-cv-00380-JDB           Document 16        Filed 07/07/22      Page 1 of 10




                         IN THE UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA



  STAREVENTS, INC.,

                         Plaintiff,                           Civ. A. No. 22-00380 (JDB)

         v.

  SMALL BUSINESS ADMINISTRATION, et al.,

                         Defendants.


                        PLAINTIFF’S MEMORANDUM IN OPPOSITION
                           TO DEFENDANTS’ MOTION TO DISMISS
                   OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

       Defendants’ dispositive motions (ECF No. 15) filed in response to Plaintiff’s Amended

Complaint (ECF No. 14) – and which have been filed without Defendants certifying or

producing the administrative record or affording Plaintiff any opportunity for discovery – are

substantively and procedurally flawed. This Court’s subject matter jurisdiction is not seriously

questioned. Plaintiff has pleaded claims sufficiently to move forward to a merits hearing based

on a full, factual record, which has yet to be compiled or disclosed. Further, at least one other

judge in this District has recognized the plausibility and legal sufficiency of a claim of

“unreasonable delay” by the SBA under circumstances similar to those presented here. See

Minute Order, June 8, 2022, Champion Matters LLC v. Small Business Administration, No. 22-

cv-00616-RDM (attached hereto as Exhibit 1). Thus, neither Rule 12 nor Rule 56 provides a

basis for dismissal at this juncture. Defendant’s motions should be denied.

                                        INTRODUCTION

       In December 2020 Congress established the SVOG Program and appropriated $15 billion

for grants of emergency financial assistance to eligible businesses impacted by the global

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COVID-19 pandemic. Pub. L. No. 116-260 § 324. The American Rescue Plan, enacted March

11, 2021, provided an additional $1,249,500,000 for SVOG awards. Pub. L. No. 117-2 §

5005(a). Eligible businesses that suffered a minimum 25% reduction in revenue in 2020 and

losses in 2021 of 70% as compared to 2019 were eligible for both initial and supplemental

SVOG awards. 15 U.S.C. § 9009a(a)(A)(i)(II), (b)(3). Initial and supplemental awards can be

used for specified business expenses including rent, maintenance, and administrative costs. Id. §

9009a(d). The Economic Aid Act specifies that SVOG award funds may be used for costs

incurred between March 1, 2020 and December 31, 2021. Id. § 9009a(d)(1)(A)(i). For businesses

eligible for both an initial and supplemental award, the deadline to incur allowable costs is

extended to June 30, 2022. Id. § 9009a(d)(1)(A)(ii). For recipients of only initial awards, any

funds that are not expended on eligible costs within one year of disbursement of the award must

be returned to the SBA. Id. § 9009a(d)(1)(B)(i). Recipients of both initial and supplemental

awards must return any expended funds not used within 18 months of disbursement. Id. §

9009a(d)(1)(B)(ii).

       Plaintiff StarEvents, Inc. (“StarEvents” or the “Company”), a live performing arts

organization operator based in Chicago, IL that, for the past 25 years, has produced large

festivals with live entertainment for thousands of attendees, applied for emergency assistance

through the Shuttered Venue Operators Grant (“SVOG”) Program in April 2021. Over a year

after first applying, and nearly three months after StarEvents filed this lawsuit, the SBA

rescinded its denial of StarEvents’s application without substantive explanation, essentially

going back to the starting line on its review of StarEvents’s eligibility for an SVOG grant. With

no final decision for StarEvents to accept or challenge, the SBA’s latest action in rescinding its




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prior decision merely seeks to insulate its original, “final” action from judicial review, while

forcing StarEvents back to simply waiting for a new, “final” decision from the SBA.

        The SBA cannot be allowed to evade judicial review, potentially indefinitely, by using

this technique of rescinding prior decisions as soon as they are about to have consequences

because of litigation deadlines. The SBA has offered no reasonable or rational basis for why

StarEvents is being treated differently than the tens of thousands of other SVOG applicants who

received final decisions on their awards in the fall of 2020, and many of which have received

supplemental awards, even though the statutory scheme clearly contemplated that initial awards

for timely applicants would be decided before the awarding of supplemental awards. StarEvents

has pleaded valid claims for unreasonable delay and for as-applied constitutional challenges (on

equal protection due process grounds) to the statutory deadlines that the SBA is ignoring.

Defendants’ motions should be denied.

        Further, the SBA cannot obtain Rule 56 relief at this time through a one-sided motion

procedure in which it refuses to produce its administrative record to Plaintiff, in violation of local

rules, yet submits a self-serving affidavit that Plaintiff has had no opportunity to test or challenge

through discovery and by examination against the administrative record. Defendant has not

properly moved for Rule 56 relief, and thus the Court should either deny the motion outright, or,

defer any ruling on it until after Plaintiff has had an opportunity to receive and review the

administrative record and conduct discovery.

                                           ARGUMENT

   I.      This Court has subject matter jurisdiction.

        Defendants first argue that Plaintiff’s complaint is subject to dismissal under Rule

12(b)(1) for lack of subject matter jurisdiction. This argument fails for two reasons: (1) as



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Defendants concede, there is statutory jurisdiction and a waiver of sovereign immunity for

Plaintiffs’ first claim of “unreasonably delay” by the SBA in reaching a final determination of

Plaintiff’s application for an SVOG grant (ECF No. 15, at pp. 10-11) 1; and (2) Defendants do not

even challenge the Court’s subject matter jurisdiction over Plaintiff’s Count II, seeking

declaratory relief, and there is clear subject matter jurisdiction for that claim as alleged in the

Amended Complaint under 28 U.S.C. § 2201. Thus, Rule 12(b)(1) provides no basis to dismiss

Plaintiff’s Amended Complaint.

       Defendants’ merits-based arguments under the “TRAC factors” articulated in

Telecommunications Research and Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984) are

premature and do not go to subject-matter jurisdiction. No sovereign-immunity-based

jurisdictional issue was raised in TRAC; the only jurisdictional issue raised in TRAC is not

present here (whether the Court of Appeals had exclusive subject matter jurisdiction over the

mandamus action). Further, the Court in TRAC expressly held that it had jurisdiction and would

retain jurisdiction over the claim of unreasonable delay alleged in that case. Thus, neither the

TRAC case, itself, nor any other case cited by Defendants supports the relief Defendants seek

here – for the Court to perform a merits-based application of the TRAC factors to an incomplete

factual record to reach a conclusion that it has no subject matter jurisdiction. Clearly, there is no

issue here of the Court’s subject matter jurisdiction under Rule 12(b)(1).

       Thus, while consideration of the TRAC factors is a merits inquiry that should await the

full administrative record and any limited discovery that is appropriate here on the SBA’s



1
 Defendants recognize that, when the Small Business Administration (“SBA”) Administrator
acts outside of her authority through unreasonable delay, the no-injunction provision of the Small
Business Act’s sue-and-be-sued clause, 15 U.S.C. § 634(b)(1), does not bar injunctive relief.
Defs.’ Opp. at 11, ECF No. 15 (citing U.S. Women’s Chamber of Com. v. U.S. Small Bus.
Admin., No. 1:04-CV-01889, 2005 WL 3244182, at *15 (D.D.C. Nov. 30, 2005)).
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unreasonable delay, to the extent the Court examines those factors at this juncture, the only lens

through which they should be considered at this point is whether, under Rule 12(b)(6), Plaintiff’s

Amended Complaint sufficiently states a claim for relief for “unreasonable delay” by the SBA,

viewing all allegations in the light most favorable to Plaintiff.

    II.      Plaintiff’s Amended Complaint sufficiently states claims for relief.

          As Defendants concede, ECF No. 15, at p. 9, to survive a motion to dismiss under Rule

12(b)(6), Plaintiff’s Amended Complaint “must contain sufficient factual matter, accepted as

true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 570 (2007)). The pleadings are to be

construed broadly, accepting as true all facts pleaded therein, and all inferences are viewed in a

light favorable to plaintiff. Id.

          Defendants’ limited Rule 12(b)(6) argument fails to apply the proper Rule 12(b)(6)

framework. Under a Rule 12(b)(6) review, the Court “may consider only the facts alleged in the

complaint, any documents either attached to or incorporated in the complaint[,] and matters of

which [the Court] may take judicial notice.” Kursar v. Transportation Sec. Admin., 751 F. Supp.

2d 154, 164 (D.D.C. 2010), aff'd, 442 F. App'x 565 (D.C. Cir. 2011) (quoting Equal Emp't

Opportunity Comm'n v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)).

          Rather than undertaking such an argument based upon the alleged insufficiency of the

allegations in the Amended Complaint, however, Defendants’ argument under Rule 12(b)(6)

only adopts or incorporates its fact-based arguments that cite and rely extensively (citing more

than a dozen paragraphs over multiple pages) on the Declaration of Matthew T. Stevens, Director

of the SVOG Program. Defendants do not suggest that the Court should take judicial notice of

the more than 34 paragraphs of testimony offered by Mr. Stevens. Yet, Defendants offer no



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        Case 1:22-cv-00380-JDB          Document 16        Filed 07/07/22       Page 6 of 10




argument for dismissal that is not based, in part, on that declaration, which the Court must ignore

for purposes of Rule 12(b)(6). The Court may deny Defendants’ motion under Rule 12(b)(6) just

based on the fact that the Defendants, themselves, have offered no arguments to the Court for

dismissal under a proper Rule 12(b)(6) framework, despite acknowledging that framework in

their brief.

        Under a proper Rule 12(b)(6) analysis of the Amended Complaint, Plaintiffs’ claims are

sufficiently pled. Both Counts I and II offer facts beyond mere legal conclusions to make

plausible the claims alleged and that support the relief sought. In support of Count I for

unreasonable delay, Plaintiff alleges, for example, that StarEvents applied for an SVOG grant on

April 26, 2021 (ECF Doc. 14 ⁋ 22), that the SBA originally denied the grant on or before August

17, 2021 (Id. ⁋ 24), but that after StarEvents filed this action seeking judicial review of that

denial, the SBA rescinded its earlier final decision, effectively returning StarEvents to a status of

having applied for the grant more than a year ago but still lacking a final decision by the SBA.

(Id. ⁋⁋ 28-30, 37.) Such a delay in even reaching a final decision that Plaintiff could challenge,

if adverse, is particularly unreasonable given the facts, as alleged by Plaintiff, that Congress had

included a timetable for decisions by the SBA that expected the SBA to decide these applications

before December 31, 2021, which was a deadline included in the statutory program at issue for

grantees to use the grant funds (id. ⁋ 36); that the SBA has awarded competitors of Plaintiff

grants under this program, putting Plaintiff at a disadvantage to such competitors (id. ⁋ 38); and

that Plaintiff has a compelling need for these emergency funds to restore its business (id. ⁋ 40),

which is exactly what this grant program was intended to do for applicants like Plaintiff who

have suffered from the adverse effects of the Covid pandemic. All of these allegations




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       Case 1:22-cv-00380-JDB           Document 16        Filed 07/07/22      Page 7 of 10




sufficiently plead a claim for “unreasonable delay” by the SBA. Thus, Defendants’ motion to

dismiss should be denied.

       The legal sufficiency of Plaintiffs’ unreasonable delay claim is further supported by the

legal determination and reasoning of Judge Moss in conveying that Court’s preliminary

inclination to grant the plaintiff’s motion for preliminary injunction on its unreasonable delay

claim, based on similar facts and circumstances, in Champion Matters LLC v. Small Business

Administration, No. 22-cv-00616-RDM.

       Reference to the TRAC factors only supports the conclusion that Defendants’ present

motions should be denied. Factor 1, that the timing with which agencies act must be governed

by a rule of reason, suggests that this inquiry should be done carefully with reference to a full

factual and administrative record, which is not yet present here. Factor 2 supports Plaintiffs’

allegation because Congress did provide a timetable for decision as alleged in the Amended

Complaint, and Defendants have failed to meet that timetable (decisions before December 31,

2021) with respect to Plaintiff. Factor 3 supports Plaintiff in that the statutory program at issue is

not one in the realm of mere “economic regulation,” but arises from the catastrophic economic

consequences of a global pandemic that disrupted jobs, livelihoods, and “human health and

welfare,” and the statutory program at issue was intended to address these effects in an

expeditious manner that has been frustrated by the SBA’s delays. Factor 4 supports Plaintiff

because Defendants have not identified a higher or competing priority for their resources than

completing this program. Factor 5 supports Plaintiff because the nature of the interests

prejudiced by delay are the very interests (expedited and emergency economic relief to

businesses directly impacted by the pandemic) for which the statutory program in question was




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       Case 1:22-cv-00380-JDB               Document 16        Filed 07/07/22      Page 8 of 10




enacted to address – emergency economic relief. Finally, Factor 6 (bad faith) is neither alleged

nor necessary for delays to be found unreasonable.

           In support of Count II, for declaratory relief, Plaintiff alleges the statutory and

constitutional grounds for the declaratory relief it seeks, and, identifies the constitutional

standard (rational basis) applicable to its challenge, as well as the facts supporting why that

standard is not present in Plaintiff being treated differently from nearly all other applicants in the

timing with which the SBA has considered its application for SVOG relief. (Id. ⁋⁋ 42-46.)

These allegations clearly are sufficient to state a claim for relief under Rule 12(b)(6). Defendant

does not argue otherwise. To the extent Defendants seek dismissal of the Amended Complaint

under Rule 12(b)(6), despite not arguing for such relief under the proper framework, such motion

should be denied.

    III.      It is premature for Defendants to seek a ruling under Rule 56.

           Similarly, Defendants’ alternative request asking the Court to enter summary judgment in

its favor is premature and must be denied. Local rules are clear that, in cases involving the

judicial review of administrative agency action, and unless otherwise ordered by the Court

(which has not happened here), “the agency must file a certified list of the contents of the

administrative record with the Court . . . simultaneously with the filing of a dispositive motion.”

LCvR 7(n)(1). Defendants have not done so here. Instead, Defendants argue in a footnote that

production of the administrative record is “unnecessary” because, among other things, “the

Agency seeks to dismiss this case not based on administrative record, but instead based on the

facts alleged in the complaint and the present status of the SVOG application.” ECF No. 15, at

p. 19, n.4.




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       Such a concession by Defendants essentially asks the Court not to decide the case under

Rule 56, but rather under Rule 12(b)(6), which, for reasons argued above, is also inappropriate.

Clearly, it is inappropriate and unfair for Defendants to seek summary judgment on the claims

alleged in the Amended Complaint, and to submit an untested Declaration purporting to support

the merits of its position, and yet to provide no access to Plaintiff to the administrative record of

its actions in connection with Plaintiffs’ application, nor, before Plaintiff has had any opportunity

to conduct any limited discovery on its allegations.

       As contemplated by the local rules, Count I of Plaintiff’s Amended Complaint, seeking

review of and relief from the SBA’s “unreasonable delay” in deciding Plaintiff’s SVOG

application, cannot be decided on summary judgment prior to production of the administrative

record. Among other things, the administrative record will inform any merits inquiry into the

reasonableness of the SBA’s actions with respect to Plaintiff. Further, to the extent the SBA

seeks to rely upon testimony from its Director, Matthew Stevens, or others, the Plaintiffs are

entitled to depose Mr. Stevens to cross-examine his testimony and complete that factual record

before the Court should make a merits-based determination or weigh any testimony offered by

the SBA through Mr. Stevens. Plaintiffs may also seek limited discovery regarding the facts

concerning why it has been treated differently than thousands of other SVOG applications whose

decisions were rendered in a timely fashion by the SBA, and whether there is any rational basis

for such differential treatment of Plaintiff, and whether due process has been denied to Plaintiff

or Congressional intent thwarted by the SBA’s delay in reaching a final decision on Plaintiff’s

application.

       All of those issues require and warrant the completion of a factual record before the

Court makes a final, merit-based decision under Rule 56 or otherwise. Defendant has not



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complied with local rules or otherwise afforded Plaintiff with a fair opportunity to complete such

a factual record. Thus, its request for a ruling under Rule 56 is premature and must be denied.

                                        CONCLUSION

       For the foregoing reasons, this Court should deny Defendants’ Motion to Dismiss.

Likewise, this Court should deny Defendants’ Motion for Summary Judgment.

Dated: July 7, 2022                          Respectfully submitted,


                                             /s/_Jeffrey E. McFadden________
                                             Jeffrey E. McFadden
                                             (DC. Bar No. 434234)
                                             LAW OFFICES OF JEFFREY E. MCFADDEN, LLC
                                             312 Prospect Bay Drive East
                                             Grasonville, MD 21638
                                             (410) 490-1163
                                             jmcfadden@jmcfaddenlaw
                                             Counsel for Plaintiff




                                                10


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