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, Patrick 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 

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No. 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 denied full funding 

due to difficulties verifying his identity and business. 

After Administrator Guzman removed the suit to the United States 

District Court for the Southern District of Texas, Shumaker filed an 

amended complaint and a Motion for Emergency Injunction. He sought to 

have the district court order Guzman and 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 Administrator 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 later 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 denied 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 jurisdiction “when the 

court lacks the statutory or constitutional power to adjudicate the case.” 

Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th 

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Cir. 1998) (quotation marks and citation omitted). When claims are brought 

against the United States and its agencies, 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 marks and citation omitted). The court 

lacks jurisdiction if “the United States has not consented 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 plaintiff must provide the grounds of his 

entitlement to relief, which “requires more 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 complaint, Shumaker sought a “temporary 

restraining order prohibiting the Defendant from paying out any economic 

injury disaster loan, until the Plaintiff’s EIDL increases, targeted, and 

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supplement advance are funded.” 1 As the district court 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 injunctive relief against the SBA. In re 

Hidalgo Cnty. Emergency Serv. Found., 962 F.3d 838, 840 (5th Cir. 2020). 

We next consider whether the SBA’s decision regarding Shumaker’s 

EIDL requests is, as the district court 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 the 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 actions against federal government agencies, 

seeking nonmonetary relief, if the agency 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, judicial review does not apply “to the 

extent that . . . agency action is committed 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 law 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 judgment 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). 

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165 (5th Cir. 2015) (quotation marks, citations, and alterations omitted). 

“[I]f the statute is drawn so that a court 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 days 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 requested EIDL Advances; that decision is 

also “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). 

Finally, the remaining breach of contract claims, constitutional claims, 

and alleged violations by the SBA of civil rights and lending statutes in 

Shumaker’s amended complaint are conclusory allegations that lack factually 

specific support to state a legally cognizable claim on which relief may be 

granted. See Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678. 

AFFIRMED.

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