The IFR provides a process for appeal to OHA of certain SBA loan review decisions under the PPP and any other PPP matter referred to OHA by the Administrator of the SBA (Administrator).

An SBA loan review decision is defined as an official written decision by the SBA, after it completes a review of a PPP loan, that finds the borrower was (or is) either:

Only final SBA loan review decisions as defined in the IFR can be appealed to OHA.

A PPP borrower cannot file an OHA appeal of any decision made by a PPP lender concerning a PPP loan.

A PPP borrower can request an SBA review of a lender's decision to deny the borrower’s loan forgiveness application in full, but that request is for a review by the SBA, not an OHA appeal.

A borrower may exercise any other rights it has under applicable law against a PPP lender regarding a lender decision.

The IFR specifies other types of decisions and determinations that are not SBA loan review decisions and are not covered by this IFR, including subpart C, Rules of Practice for Appeals From Size Determinations and NAICS Code Designations. The IFR also sets out the specific provisions of subpart B of the Rules, OHA’s general Rules of Practice, that are applicable to this IFR. Other provisions from subpart B of the Rules do not apply to appeals under this IFR.

An appeal by a PPP borrower of any SBA loan review decision does not extend the deferral period of the PPP loan. Additionally, if the SBA remits to the lender the PPP loan forgiveness amount stated in the lender's decision (except for the deduction of any EIDL advance), the borrower may not file an appeal with OHA, and the borrower must begin repaying any remaining balance of its PPP loan.

An appeal petition must include the following:

The appellant must serve a copy of the appeal petition with attachments on the Associate General Counsel for Litigation, U.S. Small Business Administration, 409 Third Street SW, Washington, DC 20416, [email protected].; attaching to the petition a signed certificate of service meeting the requirements of § 134.204(d).

An appeal petition without the above information may be dismissed by the Judge. In addition, the SBA may move for a motion for more definite statement or otherwise comply with the requirements of this section.

Only the borrower on a loan for which the SBA has issued a final SBA loan review decision has standing to appeal that decision to OHA. Individual owners of a borrower and lenders do not have standing to appeal an SBA loan review decision.

An appeal petition must be filed within 30 calendar days after the earlier of:

The Judge must dismiss the appeal if either:

The Judge may dismiss the appeal if the appeal does not, on its face, allege specific facts that if proven to be true, warrant reversal or remand of the SBA loan review decision.

Upon receipt of an appeal challenging a final SBA loan review decision, OHA will assign the matter to either an Administrative Law Judge or an Administrative Judge in accordance with § 134.218.

Unless the appeal will be dismissed under § 134.1205, the Judge will issue a notice and order establishing a deadline for production of the administrative record (typically due 20 calendar days after issuance of the notice) and specifying a date for the close of record (typically 45 calendar days from the date of OHA’s receipt of the appeal).

The administrative record will include relevant documents that the SBA considered in making its final decision or that were before the SBA at the time of the final decision. The administrative record does not need to contain all documents pertaining to the appellant and the SBA may claim privilege as to certain materials. The administrative record must be certified and authenticated that it is, to the best of the signatory’s knowledge, complete and correct. The SBA will file the administrative record with OHA and serve it on the appellant.

The appellant may object if a document is not included in the administrative record that the appellant believes should have been included. The appellant also may object to any claim that documents in the administrative record are privileged. These objections must be filed with OHA and served on the SBA within 10 calendar days after the appellant’s receipt of the administrative record. The Judge will rule on these objections and decide if the administrative record should be supplemented.

Only the SBA may respond to an appeal. The response should specify the relevant facts and legal arguments to the issues presented. Except for good cause shown, a response filed after the close of record will not be considered. The SBA must file its response with OHA, and serve a copy of the response on the appellant and each person identified in the certificate of service attached to the appellant’s appeal petition. No reply to a response will be permitted unless directed by the Judge.

The Judge may not admit evidence beyond the written administrative record. Discovery will only be permitted in OHA’s appellate proceedings on a showing of good cause by the SBA. Oral hearings will only be held if the Judge concludes that there is a genuine dispute of material fact that cannot be resolved except by the taking of testimony and the confrontation of witnesses. All appeals will be decided solely on a review of the written administrative record, the appeal petition, responses filed thereto, any admitted evidence, and an oral hearing, if held.

Either party may file an interlocutory appeal of a Judge’s ruling on an issue of privilege. Interlocutory appeals will be decided by the Administrator or a designee. An interlocutory appeal must be filed and served no later than 20 calendar days after issuance of the ruling to which the interlocutory appeal applies. A response to the interlocutory appeal must be filed 10 calendar days after the interlocutory appeal is served. The Judge may stay the proceedings before OHA, in whole or in part, pending resolution of the interlocutory appeal.

At any time during the pendency of an appeal, the parties may submit a joint motion requesting permission to use alternative dispute resolution to resolve the issue. If the motion is granted, the Judge will also stay the proceedings before OHA, in whole or in part, pending the outcome of the alternative dispute resolution.

The Assistant Administrator for Hearings and Appeals or a Judge may designate another Judge or attorney assigned to OHA to serve as a neutral in alternative dispute resolution procedures. If OHA provides the neutral and the mediation fails to resolve all the issues, the OHA-provided neutral will not be involved in the adjudication.

The standard of review is whether the SBA loan review decision was based on clear error of fact or law. The appellant has the burden of proof, by a preponderance of the evidence.

Judges will issue their decision within 45 calendar days after the close of record, as practicable. The decision will contain findings of fact and conclusions of law, the reasons for such findings and conclusions, and any relief ordered. The decision will be served on each party. The Judge’s decision on the appeal is an initial decision but will become final 30 calendar days after its service unless a request for review by the Administrator or for reconsideration of the initial decision is filed.

Request for reconsideration of the initial decision can be made by either party or by the Judge on his or her own initiative. Any party may request a review of the initial decision by the Administrator under § 134.228(a), in which case the provisions in § 134.228 will apply. If a request for review is filed, the decision of the Administrator is a final decision of the SBA but can be appealed to the federal district court.

For a borrower to exhaust its administrative remedies and preserve its right to seek judicial review of an SBA final decision in a federal district court, it must file and serve a request for review of an initial decision or reconsidered initial decision by the Administrator under § 134.228(a). If the borrower does not request review by the Administrator under § 134.228(a), the borrower’s right to seek review in federal court is waived due to the borrower’s failure to exhaust administrative remedies.

The final OHA decision creates precedent only for appeals involving the PPP, and does not apply to SBA’s 7(a) Loan Program generally.

OHA decisions are normally published without redactions on OHA’s website but a party may request a redacted public decision by contacting OHA. If a protective order is in place, the Judge will usually issue the unredacted decision under the protective order and a redacted version for public release.

OHA may affirm, reverse, or remand an SBA loan review decision. If remanded, OHA no longer has jurisdiction over the matter unless a new appeal is filed as a result of a new SBA loan review decision.

A prevailing appellant is not entitled to recover attorney’s fees. Appeals to OHA from SBA loan review decisions under the PPP are not proceedings that are required to be conducted by an Administrative Law Judge under § 134.603.

An appeal to OHA and request for review by the Administrator of a disputed initial decision or reconsidered initial decision are administrative remedies that must be exhausted before judicial review of an SBA loan review decision may be sought in a federal district court.

Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. 552, information in a filing or other submission made pursuant to an appeal of a SBA loan review decision will not be available to the public if it contains:

The SBA or an appellant may seek a protective order over any document or information filed pursuant to an appeal, including any document or information exchanged in discovery if permitted in accordance with §134.1209.