OHA Appeals

Frequently Asked Questions

8(a) Business Development (8(a) BD) Program
Early Graduation or Termination Appeals

 

DISCLAIMER: WE PROVIDE THIS INFORMATION ON OUR HOME PAGE TO FACILITATE  PREPARING AN APPEAL. THE INFORMATION IS NOT INTENDED TO PROVIDE ALL AVAILABLE INFORMATION REGARDING APPEALS.

 
1.  What is an 8(a) BD termination or graduation appeal?

An 8(a) BD termination or graduation appeal is an appeal from an 8(a) BD termination or graduation determination, made by the Director, Office of Business Development (see secs. 124.301-304).  The SBA initiates an 8(a) BD termination or graduation action (sec. 124.305).  After receiving a Notification of Early Graduation or Termination, the participant has 45 days to appeal the termination or graduation to OHA; if it does not, the termination or graduation becomes the SBA’s final decision, effective on the 45th day (sec. 124.304(e)).

2.  I want to appeal an 8(a) BD termination or graduation determination.  What must I do? 

  •    Read the SBA regulations governing 8(a) BD termination or graduation appeals at 13 C.F.R. Part 134, secs. 134.101-134.229 and 134.401-09.  These regulations tell you, among other things, what the appeal petition must include (secs. 134.203 and 134.402), how to file and serve the appeal (secs. 134.204 and 134.403(a)(2)), who may represent your company (sec. 134.208), and how to calculate the filing deadline (secs. 124.304(e), 134.202(a)(1), and 134.103(a)). 
  •    Argue in writing why you think the 8(a) BD termination or graduation determination is arbitrary, capricious, or contrary to law (secs. 134.402 and 134.406(b)).  Use the SBA's regulations governing SBA 8(a) BD termination or graduation determinations at 13 C.F.R. Part 124, Subpart A, and OHA's past decisions to help you formulate your legal argument.  Cite particular regulatory sections by number and cite particular OHA decisions by case name, 3-digit decision number, and year.  To search OHA's past decisions, click here.
    • Include any necessary attachments, such as the termination or graduation determination (sec. 134.203(a)(2)).  Note:  The SBA must provide OHA with the Administrative Record, which consists of all documents the SBA possessed concerning the participant and on which the Director, Office of Business Development relied in its termination or graduation determination (secs. 134.206(d), 134.406(c), (d)).  Usually, this is all the Administrative Law Judge (ALJ) can consider in deciding the case (sec. 134.406(a)).
    • Prepare any needed motions (written requests).  See sec. 134.211.  You must file a motion, for example, if you want to submit new evidence or request discovery (sec. 134.407) or to request an oral hearing (sec. 134.222).
    • Prepare a signed certificate of service stating to whom you served the appeal petition, the method used, and the date.  See sec. 134.204(d).  For a sample certificate of service.
    • Serve your appeal petition, including the certificate of service, to all parties (secs.134.203(a)(6), 134.204(c), and 134.403(a)(2) and (b)) and file the appeal petition and all required enclosures with OHA as directed in sec. 134.204(b). 
    • File the appeal petition ON TIME (secs. 134.202(a)(1) and 134.103(a)).  The ALJ MUST dismiss untimely appeals (secs. 134.103(b), 134.405(a)(2)).

3.  I have filed my 8(a) BD termination or graduation appeal.  Now what happens?

The ALJ assigned to your appeal will issue an order requiring the SBA to file any response and the Administrative Record (sec. 134.206, 134.406(a)-(d)), giving you an opportunity to object to the contents of the Administrative Record (sec. 134.406(c)), and setting the close of record (sec. 134.225(c)). 

The ALJ decides the appeal in a written decision or order setting out the pertinent issues, findings of fact (based on the Administrative Record), and conclusions of law (based on statute, regulation, and case law).  The Judge will rule on any motions either in the decision or in one or more separate orders.

OHA staff cannot estimate the time the ALJ will take to decide your appeal.

4.  What happens after the ALJ issues the decision?

Within 20 days after service of the written decision, the ALJ may reconsider it.  See sec. 134.409(c).  Barring such reconsideration, the decision is the final decision of the SBA.  After that, the only way to challenge the decision is to file a lawsuit in Federal court.