Response ( Non Motion ), Oakley et al. v. DeVos, No. 4:20-cv-03215 (N.D. Cal.), Doc. 38 (June 10, 2020)

Summary

Defendants' response to the June 9, 2020 minute order in Oakley, et al. v. DeVos, et al., Case No. 4:20-cv-3215-YGR, in the U.S. District Court for the Northern District of California, Oakland Division, dated June 10, 2020 (Doc. 38). The response states that, based on a search of the Federal Register, counsel identified Interim Final Rules issued by the Small Business Administration and the Department of the Treasury, as well as rules by other federal agencies, implementing provisions of the CARES Act. It lists each rule with its Federal Register citation and exhibit letter, for example the Small Business Administration interim final rule on the Paycheck Protection Program at 85 Fed. Reg. 20,811 (April 15, 2020) (Exhibit B). The signature block names Kathryn L. Wyer, with /s/ Kathryn L. Wyer.

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“Response ( Non Motion ), Oakley et al. v. DeVos, No. 4:20-cv-03215 (N.D. Cal.), Doc. 38 (June 10, 2020).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/response-non-motion-oakley-et-al-v-devos-no-4-20-cv-03215-n-d-cal-doc-9a476cef4c/, SHA-256 bc9808402169495fb05e5966ae61c8c577eeb81c332ef9f2a8067f9b2f4b65e1.

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                 Case 4:20-cv-03215-YGR Document 38 Filed 06/10/20 Page 1 of 4




         JOSEPH H. HUNT
 1
         Assistant Attorney General
 2       MARCIA BERMAN
         Assistant Director, Federal Programs Branch
 3       KATHRYN L. WYER (Utah Bar No. 9846)
         M. ANDREW ZEE (California Bar No. 272510)
 4
         U.S. Department of Justice, Civil Division
 5       1100 L Street, N.W., Room 12014
         Tel. (202) 616-8475
 6       kathryn.wyer@usdoj.gov
 7       Attorneys for Defendants
                                       UNITED STATES DISTRICT COURT
 8                            FOR THE NORTHERN DISTRICT OF CALIFORNIA
                                               OAKLAND DIVISION
 9
10       ELOY ORTIZ OAKLEY, et al.,
                                                       Case No. 4:20-cv-3215-YGR
11               Plaintiffs,
                                                       DEFENDANTS’ RESPONSE TO JUNE 9, 2020
12               v.                                    MINUTE ORDER
13
         BETSY DEVOS, et al.,
14
                 Defendants.
15
16
17             Defendants submit this response to the Court’s oral directive during the hearing that took

18   place on June 9, 2020 and its minute order of that date [ECF 37]. Based on a search of the Federal

19   Register, undersigned counsel identified the following Interim Final Rules issued by the Small

20   Business Administration and the Department of the Treasury, as well as rules by other federal

21   agencies, 1 implementing provisions of the CARES Act. The Federal Register documents are

22   attached.

23         •   Office of the Comptroller of the Currency; Board of Governors of the Federal Reserve
               System; Federal Deposit Insurance Corporation, Interim Final Rule, Regulatory Capital
24
               Rule: Paycheck Protection Program Lending Facility and Paycheck Protection Program
25             Loans, 85 Fed. Reg. 20,387 (April 13, 2020) (Exhibit A)

26
     1
27    Defendants have included here Rules from additional federal agencies in order to respond as
     comprehensively as possible to the Court’s original inquiry.
28

     DEFENDANTS’ RESPONSE TO MINUTE ORDER
     Case No. 4:20-cv-3215-YGR
                                                   1
              Case 4:20-cv-03215-YGR Document 38 Filed 06/10/20 Page 2 of 4




        •   Small Business Administration, Interim Final Rule, Business Loan Program Temporary
 1
            Changes; Paycheck Protection Program, 85 Fed. Reg. 20,811 (April 15, 2020) (Exhibit B)
 2
        •   Small Business Administration, Interim Final Rule, Business Loan Program Temporary
 3          Changes; Paycheck Protection Program—Additional Eligibility Criteria and
            Requirements for Certain Pledges of Loans, 85 Fed. Reg. 21,747 (April 20, 2020) (Exhibit
 4
            C)
 5
        •   Board of Governors of the Federal Reserve System, Loans to Executive Officers, Directors,
 6          and Principal Shareholders of Member Banks, Interim Final Rule, 85 Fed. Reg. 22,345
            (April 22, 2020) (Exhibit D)
 7
 8      •   Office of the Comptroller of the Currency; Board of Governors of the Federal Reserve
            System; Federal Deposit Insurance Corporation, Interim Final Rule, Regulatory Capital
 9          Rule: Temporary Changes to the Community Bank Leverage Ratio Framework, 85 Fed.
            Reg. 22,924 (April 23, 2020) (Exhibit E)
10
11      •   Office of the Comptroller of the Currency; Board of Governors of the Federal Reserve
            System; Federal Deposit Insurance Corporation, Interim Final Rule, Regulatory Capital
12          Rule: Transition for the Community Bank Leverage Ratio Framework, 85 Fed. Reg. 22,930
            (April 23, 2020) (Exhibit F)
13
14      •   National Credit Union Administration, Interim Final Rule, Regulatory Capital Rule:
            Paycheck Protection Program Lending Facility and Paycheck Protection Program Loans,
15          85 Fed. Reg. 23,212 (April 27, 2020) (Exhibit G)
16      •   Small Business Administration, Interim Final Rule, Business Loan Program Temporary
17          Changes;     Paycheck       Protection     Program—Requirements—Promissory           Notes,
            Authorizations, Affiliation, and Eligibility, 85 Fed. Reg. 23,450 (April 28, 2020) (Exhibit
18          H)
19      •   National Credit Union Administration, Interim Final Rule, Central Liquidity Facility, 85
20          Fed. Reg. 23,731 (April 29, 2020) (Exhibit I)

21      •   Department of the Treasury, Interim Final Rule, Small Business Administration Business
            Loan Program Temporary Changes; Paycheck Protection Program-Additional Criterion
22          for Seasonal Employers, 85 Fed. Reg. 23,917 (April 30, 2020) (Exhibit J)
23
        •   Small Business Administration, Interim Final Rule, Business Loan Program Temporary
24          Changes; Paycheck Protection Program-Requirements-Disbursements, 85 Fed. Reg.
            26,321 (May 4, 2020) (Exhibit K)
25
26      •   Small Business Administration, Interim Final Rule, Business Loan Program Temporary
            Changes; Paycheck Protection Program-Requirements-Corporate Groups and Non-Bank
27
28

     DEFENDANTS’ RESPONSE TO MINUTE ORDER
     Case No. 4:20-cv-3215-YGR
                                                 2
             Case 4:20-cv-03215-YGR Document 38 Filed 06/10/20 Page 3 of 4




            and Non-Insured Depository Institution Lenders, 85 Fed. Reg. 26,324 (May 4, 2020)
 1
            (Exhibit L)
 2
        •   Office of the Comptroller of the Currency; Board of Governors of the Federal Reserve
 3          System; Federal Deposit Insurance Corporation, Interim Final Rule, Liquidity Coverage
            Ratio Rule: Treatment of Certain Emergency Facilities, 85 Fed. Reg. 26,835 (May 6, 2020)
 4          (Exhibit M)
 5
        •   Small Business Administration, Interim Final Rule, Business Loan Program Temporary
 6          Changes; Paycheck Protection Program-Nondiscrimination and Additional Eligibility
            Criteria, 85 Fed. Reg. 27,287 (May 8, 2020) (Exhibit N)
 7
 8      •   Centers for Medicaid & Medicare Services, Interim Final Rule, Medicare and Medicaid
            Programs, Basic Health Program, and Exchanges; Additional Policy and Regulatory
 9          Revisions in Response to the COVID-19 Public Health Emergency and Delay of Certain
            Reporting Requirements for the Skilled Nursing Facility Quality Reporting Program, 85
10          Fed. Reg. 27,550 (May 8, 2020) (Exhibit O)
11
        •   Small Business Administration, Interim Final Rule, Business Loan Program Temporary
12          Changes; Paycheck Protection Program-Loan Increases, 85 Fed. Reg. 29,842 (May 19,
            2020) (Exhibit P)
13
14      •   Small Business Administration, Interim Final Rule, Business Loan Program Temporary
            Changes; Paycheck Protection Program-Requirements-Extension of Limited Safe Harbor
15          With Respect to Certification Concerning Need for PPP Loan Request, 85 Fed. Reg. 29,845
            (May 19, 2020) (Exhibit Q)
16
17      •   Small Business Administration, Interim Final Rule, Business Loan Program Temporary
            Changes; Paycheck Protection Program-Eligibility of Certain Electric Cooperatives, 85
18          Fed. Reg. 29,847 (May 19, 2020) (Exhibit R)
19      •   Department of Agriculture, Final Rule, Coronavirus Food Assistance Program, 85 Fed.
20          Reg. 30,825 (May 21, 2020) (Exhibit S)

21      •   Small Business Administration, Interim Final Rule, Business Loan Program Temporary
            Changes; Paycheck Protection Program—Treatment of Entities With Foreign Affiliates,
22          85 Fed. Reg. 30,835 (May 21, 2020) (Exhibit T)
23
        •   Rural Business-Cooperative Service and Rural Utilities Service, Interim Final Rule,
24          Guaranteed Loanmaking and Servicing Regulations, 85 Fed. Reg. 31,035 (May 22, 2020)
            (Exhibit U)
25
26      •   Small Business Administration, Interim Final Rule, Business Loan Program Temporary
            Changes; Paycheck Protection Program-Second Extension of Limited Safe Harbor With
27
28

     DEFENDANTS’ RESPONSE TO MINUTE ORDER
     Case No. 4:20-cv-3215-YGR
                                                3
             Case 4:20-cv-03215-YGR Document 38 Filed 06/10/20 Page 4 of 4




            Respect to Certification Concerning Need for PPP Loan and Lender Reporting, 85 Fed.
 1
            Reg. 31,357 (May 26, 2020) (Exhibit V)
 2
        •   Small Business Administration; Department of the Treasury, Interim Final Rule, Business
 3          Loan Program Temporary Changes; Paycheck Protection Program—Requirements—
            Loan Forgiveness, 85 Fed. Reg. 33,004 (June 1, 2020) (Exhibit W)
 4
 5      •   Small Business Administration, Interim Final Rule, Business Loan Program Temporary
            Changes; Paycheck Protection Program—SBA Loan Review Procedures and Related
 6          Borrower and Lender Responsibilities, 85 Fed. Reg. 33,010 (June 1, 2020) (Exhibit X)
 7
     DATED: June 10, 2020                       Respectfully submitted,
 8
 9                                              JOSEPH H. HUNT
10                                              Assistant Attorney General

11                                              MARCIA BERMAN
                                                Assistant Director, Federal Programs Branch
12
13                                              /s/ Kathryn L. Wyer
                                                KATHRYN L. WYER (Utah Bar No. 9846)
14                                              M. ANDREW ZEE (California Bar No. 272510)
                                                U.S. Department of Justice, Civil Division
15                                              1100 L Street, N.W., Room 12014
16                                              Tel. (202) 616-8475
                                                kathryn.wyer@usdoj.gov
17
                                                Attorneys for Defendants
18
19
20
21
22
23
24
25
26
27
28

     DEFENDANTS’ RESPONSE TO MINUTE ORDER
     Case No. 4:20-cv-3215-YGR
                                               4

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