# United States Court of Appeals **for the Fifth Circuit**

No. 22-40409 Summary Calendar

consolidated with No. 22-40496

Patrick L. Shumaker,

Plaintiff—Appellant ,

versus

Isabella Guzman, Administrator of United States Small Business,

Defendant—Appellee

.

Appeal from the United States District Court for the Southern District of Texas USDC No. 7:21-CV-477

Before Smith, Dennis, and Southwick, Circuit Judges

. Per Curiam: *
In November 2021, Patric k Shumaker filed suit pro se in Texas state court against Isabella Guzman, the Administrator of the Small Business Administration (“SBA”). Shumaker’s claims are based on Guzman’s failure

* This opinion is not designated for publication. See 5th Cir. R. 47.5

. United States Court of Appeals Fifth Circuit 

### FILED February 1, 2023

Lyle W. Cayce Clerk Case: 22-40409 Document: 00516631239 Page: 1 Date Filed: 02/01/2023No. 22-40496

2 to fund completely his requested Emergency Economic Injury Disaster Loans (“EIDL”). See 15 U.S.C. § 9009(e)(1)–(3). Shumaker argues that such failures violated Section 1110 of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), see Pub. L. No. 116-136, § 1110, 134 Stat. 281 (2020), and Section 5002 of the American Rescue Plan Act, see Pub. L. No. 117-2, § 5002, 135 Stat. 4 (2021) . Shumaker was de nied full funding due to difficulties verifying hi s identity and business.

After Administrator Guzman removed the suit to the United States
District Court for the Southern Dist rict of Texas, Shumaker filed an amended complaint and a Motion for E mergency Injunction. He sought to
have the district court order Guzman an d the SBA to fund his EIDL requests in full and immediately. The district court denied the motion. Shumaker appealed, and we affirmed. We held that the sought injunctive relief was beyond the authority of the district court because the SBA forecloses all injunctive relief “against the Ad ministrator or his property.” Shumaker v.
Guzman , No. 22-40049, 2022 WL 1183712, at *1 (5th Cir. Apr. 21, 2022) (quoting 15 U.S.C. § 634(b)(1)). We la ter denied Shumaker’s separately filed request for a writ of mandamus. Shumaker v. Guzman , No. 22-40042, 2022 WL 1183712, at *1 (5th Cir. June 30, 2022).
This appeal arises from the district court’s grant of Guzman’s motion
to dismiss all claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The district court also de nied Shumaker’s motion for partial summary judgment.

We review the dismissal of Shumaker’s claims de novo. See Cantú v. Moody, 933 F.3d 414, 419 (5th Cir. 2019 ). A party may move under Rule 121(b)(1) to dismiss a claim for lack of subject matter juri sdiction “when the court lacks the statutory or constitution al power to adjudicate the case.” Home Builders Ass’n of Miss., Inc. v. City of Madison , 143 F.3d 1006, 1010 (5th Case: 22-40409 Document: 00516631239 Page: 2 Date Filed: 02/01/2023No. 22-40496

3 Cir. 1998) (quotation marks and citation omitted). When claims are brought against the United States and its agen cies, sovereign immunity means “the United States may not be sued except to the extent that it has consented to suit by statute.” Alabama-Coushatta Tribe of Tex. v. United States , 757 F.3d 484, 488 (5th Cir. 2014) (quotation mark s and citation omitted). The court lacks jurisdiction if “the United Stat es has not consente d to suit or the plaintiff has not met the terms of the statute.” Id . (quoting Koehler v. United
States , 153 F.3d 263, 266 (5th Cir. 1998)).
Dismissal is also appropriate under Rule 12(b)(6) when a plaintiff fails “to state a claim upon which relief can be granted.” Rule 12(b)(6) is read in conjunction with Rule 8(a)(2), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” See Ashcroft v. Iqbal , 556 U.S. 662, 677–78 (2009). Although this standard does not require detailed factual allegations, a plaint iff must provide the grounds of his entitlement to relief, which “requires mo re than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007). The complaint and any other matters properly considered must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal , 556 U.S. at 678 (quoting Twombly , 550 U.S. at 570). The court views the wellpled facts “in the light most favorable to the nonmovant.” Machete Productions, L.L.C. v. Page , 809 F.3d 281, 287 (5th Cir. 2015).
We start with our holding in an earlier appeal that Shumaker is barred from injunctive relief to the extent he requests it. Shumaker , 2022 WL 1183712, at *1. In his amended comp laint, Shumaker sought a “temporary restraining order prohibiting the Defe ndant from paying out any economic injury disaster loan, until the Plaint iff’s EIDL increases, targeted, and Case: 22-40409 Document: 00516631239 Page: 3 Date Filed: 02/01/2023No. 22-40496

4 supplement advanc e are funded.” 1 As the district co urt stated, though, the Small Business Act bars injunctive relief against the Administrator or his property. 15 U. S.C. § 634(b)(1). This court has explicitly held that there is an absolute statutory bar to any in junctive relief against the SBA. In re Hidalgo Cnty. Emergency Serv. Found. , 962 F.3d 838, 840 (5 th Cir. 2020).

We next consider whether the SBA’ s decision regarding Shumaker’s EIDL requests is, as the district cour t held, “agency action [] committed to agency discretion by law” and therefore unreviewable. See 5 U.S.C. § 701(a)(2). In his amended complaint, Shumaker sought review under the Administrative Procedure Act (“APA”). Under the APA, “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within th e meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. “Section 702 of the APA ‘waives sovereign immunity for action s against federal government agencies, seeking nonmonetary relief, if the agen cy conduct is otherwise subject to judicial review.’” Louisiana v. United States , 948 F.3d 317, 321 (5th Cir. 2020) (quoting Alabama-Coushatta , 757 F.3d at 488).
As mentioned earlier, though, judici al review does not apply “to the extent that . . . agency action is commi tted to agency discretion by law.” § 701(a)(2). This includes statutes that grant agency discretion “in such broad terms that in a given case there is no la w to apply, such as the allocation of funds from a lump-sum appropriation.” Texas v. United States , 809 F.3d 134,

1 In his brief here, Shumaker requests a “declaratory judg ment commanding the U.S. Small Business Administration immediately fund all EIDL grants that the Petitioner is entitled,” which defendant argues is essentially injunctive relief. Other substantive relief sought by Shumaker in his brief was not included in his amended complaint and appears to be sought for the first time on appeal. “We do not consider theories of relief raised for the first time on appeal.” Edmiston v. Louisiana Small Bus. Dev. Center , 931 F.3d 403, 406 n.3 (5th Cir. 2019). Case: 22-40409 Document: 00516631239 Page: 4 Date Filed: 02/01/2023No. 22-40496

5 165 (5th Cir. 2015) (quota tion marks, citations, and alterations omitted). “[I]f the statute is drawn so that a co urt would have no meaningful standard against which to judge the agency’s exercise of discretion,” it is
unreviewable. Heckler v. Chaney , 470 U.S. 821, 830 (1985).
Under Section 1110(e) of the CARES Act, an eligible entity that applies for a loan under 15 U.S.C. § 636(b)(2) “may request that the Administrator provide an advance” within three da ys of “not more than $10,000.” Pub. L. No. 116-136, § 1110, 134 Stat. 281, 307 (2020); 15 U.S.C. § 9009(e)(1)-(3). There is no statutory requirement, though, that the SBA provide $10,000 or any amount. Congress, instead, has prescribed a cap on the amount, rather than directing the SBA to provide a specific amount. See § 9009(e)(3). We agree with the district court that the SBA has discretion in awarding advances under Section 1110(e), and that discretion is sufficiently unfettered to preclude this court from overturning the agency’s decisions to decline Shumaker’s requests.
Section 5002(b)(2)(B) of the American Rescue Plan Act similarly does not require the SBA to fund all reques ted EIDL Advances; that decision is also “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2).
Finally, the remaining breach of contra ct claims, constitutional claims, and alleged violations by the SBA of civil rights and lending statutes in Shumaker’s amended complaint are conclu sory allegations th at lack factually specific support to state a legally co gnizable claim on which relief may be granted. See Twombly , 550 U.S. at 555; Iqbal , 556 U.S. at 678.

AFFIRMED

. Case: 22-40409 Document: 00516631239 Page: 5 Date Filed: 02/01/2023