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DISCLAIMER: WE PROVIDE THIS INFORMATION ON OUR HOME PAGE TO FACILITATE THE PREPARATION OF AN APPEAL. THE INFORMATION IS NOT INTENDED TO PROVIDE ALL AVAILABLE INFORMATION REGARDING APPEALS.
For the most up-to-date versions of the regulations cited here, please visit http://ecfr.gpoaccess.gov/
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. 13 C.F.R. §§ 124.301-304. The SBA initiates an 8(a) BD termination or graduation action. 13 C.F.R. § 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 the participant does not appeal, the termination or graduation becomes the SBA’s final decision, effective on the forty-fifth day. 13 C.F.R. § 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, §§ 134.101-134.229 and 134.401-09. These regulations state, among other things, what the appeal petition must include, 13 C.F.R. §§ 134.203, 134.402; how to file and serve the appeal, 13 C.F.R. §§ 134.204, 134.403; who may represent the 8(a) BD participant, 13 C.F.R. § 134.208; and how to calculate the filing deadline, 13 C.F.R. §§ 124.304(e), 134.202.
Argue in writing why the 8(a) BD termination or graduation determination is arbitrary, capricious, or contrary to law. 13 C.F.R. §§ 134.402, 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 formulate a 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. 13 C.F.R. § 134.203(a)(2). 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 the termination or graduation determination. 13 C.F.R. §§ 134.206(d), 134.406(c), (d). Usually, this is all the administrative law judge (ALJ) can consider in deciding the case. 13 C.F.R. § 134.406(a).
Prepare a signed certificate of service stating to whom you served the appeal petition, the method used, and the date. 13 C.F.R. § 134.204(d). For a sample certificate of service, click here.
Serve your appeal petition, including the certificate of service, to all parties 13 C.F.R. §§ 134.203(a)(6), 134.204(c), 134.403, and file the appeal petition and all required enclosures with OHA as directed in 13 C.F.R. § 134.204(b).
File the appeal petition on time. 13 C.F.R. §§ 134.202(a)(1). The ALJ must dismiss untimely appeals. 13 C.F.R. § 134.405.
3. I have filed my 8(a) BD termination or graduation appeal. Now what happens?
The ALJ assigned to the appeal will issue an order: requiring the SBA to file a response and the administrative record, 13 C.F.R. §§ 134.206, 134.406; giving the 8(a) BD participant an opportunity to object to the contents of the administrative record, 13 C.F.R. § 134.406(c); and setting the close of record, 13 C.F.R. § 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 ALJ will rule on any motions either in the decision or in one or more separate orders.
4. What happens after the ALJ issues the decision?
Within 20 days after service of the written decision, the ALJ may reconsider it. 13 C.F.R. § 134.409(c). Barring such reconsideration, the decision is the final decision of SBA.