Scope of rules (§134.1201). This section provides a process for appealing to OHA for certain final SBA Decisions, for first draw and second draw PPP loans. An appealable final SBA Decision is an official written decision by the SBA, made after the SBA completes a review of a PPP loan, that a borrower either:

This section also specifies what type of decisions can (and cannot) be appealed directly to OHA and specifies other rules that are applicable to this rule, including subpart B, OHA's general Rules of Practice.

The IFR clarifies that a timely appeal of a final SBA Decision extends the deferment period of the PPP loan until a final decision is issued. However, if the SBA remits the PPP loan forgiveness amount to the lender, the borrower may not file an OHA appeal, and must begin repaying its PPP loan. A PPP borrower must file an appeal with OHA before appealing to the appropriate Federal district court.

Commencement of appeals of final SBA Decisions (§134.1202). Appeals must be filed with OHA within 30 calendar days of receipt of the final SBA Decision through the OHA Case Portal, whereby the appeal will automatically be served upon the Associate General Counsel for Litigation at [email protected].

The section provides specific information on how to calculate days and makes clear that a timely appeal of a final SBA Decision extends the deferment period of the PPP loan until a final decision is issued. It also requires an appellant to provide the lender with a copy of its appeal in order for the lender to extend the deferment period of the PPP loan until a final decision is issued.

Standing (§134.1203). This section provides that the only party with standing to appeal the final SBA Decision to OHA is the PPP borrower (not individual owners of a borrower entity or PPP lenders).

The appeal petition (§134.1204). An appeal petition must include:

A Notice of Paycheck Protection Program Forgiveness Payment does not provide a borrower with a right to appeal to OHA. An appeal petition that does not include the information above may be dismissed by the judge and permits the SBA to move for a motion for more definite statement or otherwise comply with the requirements of this section.

Dismissal (§134.1205). The judge must dismiss the appeal under any of the following conditions:

The judge may dismiss the appeal if the appeal does not allege specific facts that warrant reversal or remand of the final SBA Decision.

Notice and Order (§134.1206). Upon receipt of an appeal, OHA will assign the matter to an administrative law judge or an administrative judge. Unless the appeal is dismissed, the judge will issue a Notice and Order establishing deadlines for producing the administrative record and for the SBA to respond to the appeal.

The administrative record (§134.1207). The administrative record is due 20 calendar days after issuance of the Notice and Order and will include non-privileged, relevant documents that the SBA considered in making its decision. The SBA will file the administrative record with OHA and serve it on the appellant through the OHA Case Portal. If privileged or confidential information is disclosed in the administrative record, it will not waive any claim of privilege or confidentiality by the SBA. The appellant may object to the absence of any document that it believes should have been included in the administrative record. Objections must be filed with OHA and served on the SBA using the OHA Case Portal no later than 30 calendar days after issuance of the Notice and Order.

Response to an appeal petition (§134.1208). Only the SBA may respond to an appeal, though a response is not required. OHA can request that the SBA respond for good cause shown by OHA. The response should state the relevant facts and legal arguments to the issues presented on appeal. If the SBA elects not to respond to the appeal, it will not be an admission or waiver of any allegation of law or fact. Except for good cause shown, a response filed after the close of record will not be considered. If the SBA elects to respond, the SBA must file its response with OHA and serve a copy of the response upon the appellant through the OHA Case Portal. No reply to a response will be permitted unless the judge directs otherwise.

Evidence beyond the record, discovery and oral hearings (§ 134.1209). Generally, the judge may not admit evidence beyond the written administrative record, and discovery or oral hearings will not be permitted. All appeals will be decided solely on a review of the written administrative record, the appeal petition, any response, any reply, and filings related to objection to the administrative record.

Standard of review (§134.1210). The standard of review is whether the final SBA Decision was based on clear error of fact or law. The appellant has the burden of proof.

Decision on appeal (§134.1211). Within 45 calendar days after the close of record, the judge will issue the decision which 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 the appellant and the SBA through the OHA Case Portal.

The judge's decision on the appeal is an initial decision. Unless a request for reconsideration is filed or the SBA Administrator (Administrator) decides to review or reverse the initial decision, an initial decision will become the final decision of the SBA 30 calendar days after its service. Thereafter, it can be appealed to the appropriate Federal district court.

This section allows for a request for reconsideration by the SBA or the appellant. It also gives the Administrator sole discretion to review or reverse an initial or reconsidered initial OHA decision. This discretionary authority of the Administrator does not create additional rights of appeal by the appellant not otherwise specified in the SBA regulations.

This section also provides that decisions issued by OHA under this rule are not precedential and that OHA has discretion to publish decisions with any necessary redactions of confidential business and financial information or personally identifiable information. Final decisions may be appealed only to the appropriate Federal district court.

Effects of the decision (§134.1212). OHA may affirm, reverse, or remand a final SBA Decision. If remanded, OHA no longer has jurisdiction over the matter unless a new appeal is filed as a result of a new final SBA Decision.

Equal Access to Justice Act (EAJA) (§134.1213). A prevailing appellant is not entitled to recover attorney's fees. Proceedings for appeals to OHA from final SBA Decisions are not required to be conducted by an administrative law judge.

Confidential information (§134.1214). If a filing or other submission made with an appeal contains confidential business and financial information, personally identifiable information, source selection sensitive information, income tax returns, documents and information covered under §120.1060, or any other exempt information, that information is not available to the public under the Freedom of Information Act (FOIA), 5 U.S.C. § 552.