Mc Management of Rochester LLC, Pane Vino LLC, Pharaohs GC Inc., Veneto Westside LLC, MJM Fitch, Inc., 759 Canandaigua, Inc., Grand Central Wine Bar, LLC, William James Development Corp., Raphael’s Corp., and WMK Management, Inc., Plaintiffs v. Joseph R. Biden, in his official capacity as President of the United States, Kevin Mcarthy, in his official capacity as the Speaker of the United States House of Representatives, Charles Schumer, in his official capacity as the United States Senate Majority Leader, Hakeem Jeffries, in his official capacity as Minority Leader of the United States House of Representatives, Mitch McConnell, in his official capacity as Minority Leader of the United States Senate, Isabel Casillas Guzman, in her official capacity as administrator of the United States Small Business Administration, and the United States Small Business Administration1, Defendants
DECISION AND ORDER INTRODUCTION In early 2021, Congress passed and the President signed into law the American Rescue Plan Act, a $1.9 trillion dollar stimulus bill intended, among other things, to ameliorate the economic impacts of the COVID-19 pandemic. See Pub. L. No. 117-2, 135 Stat. 4 (2021). One facet of the American Rescue Plan Act was the Restaurant Revitalization Fund (the “RRF”), a $28.6 billion dollar grant program for restaurants and bars struggling to meet payroll and other expenses. See 15 U.S.C. §9009c. The American Rescue Plan Act provided that the RRF would be implemented by the Small Business Administration (the “SBA”) and required the SBA to prioritize applications from businesses owned by women, veterans, and socially and economically disadvantaged individuals for the first 21 days of the RRF’s operation. See id. Plaintiffs are businesses that applied for an RRF grant but did not receive an award. They assert four causes of action, contending that: the SBA’s implementation of the 21-day priority period violated their Fifth Amendment right to equal protection; the SBA’s implementation of the 21-day priority period violated their Fifth Amendment right to due process; defendant Isabel Casillas Guzman (the “Administrator”), the Administrator of the SBA, is liable in damages for the alleged violation of their constitutional rights; and the President and Congress violated their Fifth Amendment right to due process by enacting the American Rescue Plan Act without providing sufficient appropriations to fund grants to eligible entities through the RRF. (Dkt. 1). Defendants have moved to dismiss the complaint in its entirety for lack of subject matter jurisdiction or, in the alternative, for failure to state a claim upon which relief can be granted. (Dkt. 8). For the reasons set forth below, Defendants’ motion is granted. BACKGROUND2 I. Factual Background In March through May of 2020, during the onset of the COVID-19 pandemic, spending at restaurants “plummeted 29 percent compared with the same period in 2019.” United States Dep’t of Agriculture Economic Research Service, COVID-19 Working Paper: The Impact of COVID-19 Pandemic on Food-Away-From-Home Spending, at 4 (2022). Restaurant spending remained at depressed levels throughout 2020 and into early 2021. Id. The average total dollars spent in full-service restaurants in February to April of 2021 “was 21.52 percent lower than the same period pre-pandemic[.]” Id. “ Approximately 90,000 restaurants have been forced to close their doors due to the COVID pandemic[.]” (Dkt. 1 at 8). The RRF was established “to provide funding to help restaurants and other eligible businesses keep their doors open.” U.S. Small Business Administration, Restaurant Revitalization Fund, https://www.sba.gov/funding-programs/loans/covid-19-reliefoptions/ restaurant-revitalization-fund (last visited June 22, 2023). Eligible entities could apply for funding “equal to their pandemic-related revenue loss up to $10 million per business and no more than $5 million per physical location.” Id. By statute, the Administrator was required “[d]uring the initial 21 day period in which the Administrator award[ed] grants” from the RRF to “prioritize awarding grants to eligible entities that are small business concerns owned and controlled by women (as defined in section 632(n) of this title), small business concerns owned and controlled by veterans (as defined in section 632(q) of this title), or socially and economically disadvantaged small business concerns (as defined in section 637(a)(4)(A) of this title).” 15 U.S.C. §9009c(c)(3)(A). Upon the expiration of this initial 21-day priority period, the Administrator was required to “award grants to eligible entities in the order in which applications are received by the Administrator.” Id. §9009c(c)(1). The 21-day priority period began on May 3, 2021. (Dkt. 1 at 4). Plaintiffs did not qualify for priority consideration under the terms of the American Rescue Plan Act, and despite having timely applied for RRF grants, no grants were awarded to them. (Id. at
