UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
COGNITIVE PROFESSIONAL )
SERVICES INC., )
)
Plaintiff, )
)
v. ) No. 15-cv-0715 (KBJ)
)
U.S. SMALL BUSINESS )
ADMINISTRATION, )
)
Defendant. )
)
MEMORANDUM OPINION
In March of 2014, Plaintiff Cognitive Professional Services (“CPS”) applied to
the U.S. Small Business Administration (“SBA”) for admission to the Section 8(a)
Business Development program (“Section 8(a) program” or “8(a) BD program”). (See
Compl., ECF No. 1, ¶ 11.) SBA denied CPS’s Section 8(a) application, citing various
grounds, including the agency’s conclusion that CPS was neither a small business
owned and controlled by an “economically disadvantaged individual[,]” nor one that
had demonstrated “the potential to successfully meet the business development
objectives of the 8(a) BD program.” (See Letter from Assoc. Adm’r for Bus. Dev.,
SBA, to Cassandra Coleman (Nov. 6, 2014) (“Final Denial Letter”), ECF No. 30-2, J.A.
at 29, 33 (citing 13 C.F.R. §§ 124.104, 124.107).) 1 The three-count complaint that CPS
has filed in this Court maintains that the agency’s determination that CPS failed to
satisfy the eligibility criteria for admission into the Section 8(a) program was arbitrary
1
Page-number citations to the parties’ legal filings refer to page numbers that the Court’s electronic
filing system assigns, while page-number citations to documents contained in the Joint Appendix refer
to the Bates numbers.
and capricious in violation of the Administrative Procedure Act (“APA”), 5 U.S.C.
§§ 70106 (see Compl. ¶¶ 41–43 (Count I)), and was also contrary to certain
provisions of the Small Business Act of 1953 (“the Act”), 15 U.S.C. §§ 631–57s (see
Compl. ¶¶ 44–45 (Count II)). CPS further contends that the SBA regulation that
addresses the potential-for-success factor—13 C.F.R. § 124.107—is “itself invalid”
because it does not “reflect the congressional intent of the governing statute.” ( Id.
¶¶ 4647 (Count III).)
Before this Court at present are the parties’ cross-motions for summary
judgment. (See Pl.’s Mem. in Supp. of Mot. for Summ. J. (“Pl.’s Mem.”), ECF No.
32-2; Def.’s Mem. of Law in Supp. of Def.’s Cross-Mot. for Summ. J & Opp’n to Pl.’s
Mot. (“Def.’s Mem.”), ECF No. 31-1.) CPS argues that it is entitled to judgment as a
matter of law because both SBA’s regulation governing “potential for success” and the
agency’s related conclusion that CPS failed to satisfy this criterion are contrary to the
text and purpose of the Small Business Act. (See Pl.’s Mem. at 2426.) CPS also
contends that the record evidence did not support SBA’s findings regarding CPS’s
potential for success, and that SBA’s determination that CPS was not economically
disadvantaged for Section 8(a) program purposes was based on a plainly erroneous
interpretation of the agency’s own rules. (See id. at 2021, 25.) SBA’s cross-motion
for summary judgment rejects each of these contentions and asserts that the agency
must prevail as a matter of law. (See Def.’s Mem. at 1321.)
On March 31, 2017, this Court issued an Order in which it DENIED CPS’s
motion for summary judgment and GRANTED SBA’s cross-motion. (See Order of
Mar. 31, 2017, ECF No. 37.) This Memorandum Opinion explains the reasons for that
2
Order. In short, and as explained fully below, CPS misreads the Small Business Act
and misunderstands the nature of the Section 8(a) program, and as a result, mistakenly
maintains that SBA’s efforts to ensure that Section 8(a) program applicants have a track
record of successful prior business performance are unlawful. To the contrary, the
Small Business Act is silent regarding the particular findings that SBA must make when
it denies a Section 8(a) program application, and it also does not prescribe the particular
manner in which SBA must evaluate a Section 8(a) program applicant’s potential for
success. Noting this silence, the Court has determined that both SBA’s probing
potential-for-success regulation and its potential-for-success finding in the instant case
are permissible and reasonable in light of the text and purpose of the Small Business
Act, and therefore, the Court has concluded that neither agency act is contrary to law.
This Court has also found that the record evidence and relevant regulations support
SBA’s determination that CPS lacked the requisite potential for success and failed to
satisfy the economic disadvantage requirement.
I. BACKGROUND
A. Statutory And Regulatory Framework: The Section 8(a) Program
Congress enacted the Small Business Act of 1953 in order to encourage and
develop the “capacity of small business” in America, and thereby promote national
“economic well-being” and “security[.]” 15 U.S.C. § 631(a). The Act tasks the Small
Business Administration with effectuating the statute’s purposes and provisions, see id.
§ 633(a); per the statute, SBA administers “a preferential contracting program for
socially and economically disadvantaged small businesses,” which is called the Section
3
8(a) Business Development program, Desa Grp., Inc. v. U.S. SBA, 190 F. Supp. 3d 61,
63 (D.D.C. 2016); see also 15 U.S.C. § 637(a)(1).
Through the Section 8(a) program—which is specifically designed to combat the
pervasive effects of discrimination that have historically prevented small, minority-
owned businesses from competing on equal footing in the mainstream business
economy, see DynaLantic Corp. v. U.S. Dep’t of Def., 885 F. Supp. 2d 237, 25357
(D.D.C. 2012); see also Rothe Dev., Inc. v. Dep’t of Def., 107 F. Supp. 3d 183, 188
(D.D.C. 2015), aff’d, 836 F.3d 57 (D.C. Cir. 2016), petition for cert. filed, (U.S. April
13, 2017) (No. 16-1239)—eligible participants are provided with “technological,
financial, and practical assistance, as well as support through preferential awards of
government contracts.” DynaLantic Corp, 885 F. Supp. 2d at 243. “[A]dmission to the
program is highly desirable” because “the SBA may award a subcontract to an 8(a)
program participant on a sole source, i.e., noncompetitive, basis,” Larry Grant Constr.
v. Mills, 956 F. Supp. 2d 93, 93–94 (D.D.C. 2013) (citations omitted), and also because
“[p]rogram participants are eligible to receive management and technical assistance
provided through SBA’s private sector service providers, including (i) counseling and
training in the operation of small business and business development; (ii) assistance in
developing comprehensive business plans; and (iii) assistance obta ining equity and debt
financing[,]” DynaLantic Corp, 885 F. Supp. 2d at 245; see also 15 U.S.C.
§ 636(j)(10)(A); 13 C.F.R. § 124.404. Significantly, however, the remedial assistance
that the Section 8(a) program offers is available only to those small and minority-owned
4
businesses that are able to satisfy certain criteria set forth in the Act and in SBA
regulations. 2
As a general matter, in order to qualify for the Section 8(a) program, an
applicant must be “[1] a small business which is [2] unconditionally owned and
controlled by one or more [3] socially and economically disadvantaged individuals who
are of good character and citizens of and residing in the United States, and which [4]
demonstrates potential for success.” 13 C.F.R. § 124.101; see also 15 U.S.C.
§ 637(a)(4)(A), (a)(4)(B), (a)(5), (a)(6)(A), (a)(7)(A). To determine whether a
business is considered “small,” the agency assigns an industry code to each applicant
(there are codes associated with all types economic activity, broken down into “twenty
broad sectors”), and then uses a table in the regulations to identify the applicant’s
corresponding “size standard[.]” Id. § 121.101; see also id. § 124.102(a)(1); id.
§ 121.201 (“The size standards . . . are expressed either in number of employees or
annual receipts in millions of dollars[.]”). The ownership and control requirements are
satisfied when a business is “51 percent unconditionally and directly owned” by one or
more socially and economically disadvantaged individuals, id. § 124.105, and when one
or more disadvantaged individuals conduct the business’s “management and daily
business operations[,]” id. § 124.106. See also 15 U.S.C. § 637(a)(4)(A), (a)(4)(B). 3
2
Congress has granted SBA “statutory authority to develop standards for eligibility for the section 8(a)
program.” Fagan v. U.S. SBA, 783 F. Supp. 1455, 1457 (D.D.C.), aff’d 19 F.3d 684 (D.C. Cir. 1992);
see also 15 U.S.C. § 634(b)(6) (authorizing the SBA Administrator to “make such rules and regulations
as he deems necessary to carry out the authority vested in him by or pursuant to this chapter”). Thus,
while the Small Business Act itself contains certain eligibility requirements, the implementing
regulations that SBA has promulgated further define and explicate the statutory criteria, as described
below.
3
The Act and SBA’s regulations contain specific criteria for the identification of “socially and
economically disadvantaged individuals[.]” See 15 U.S.C. § 637(a)(6), (a)(6)(A); 13 C.F.R. § 124.103,
124.104. For example, the Act defines “[s]ocially disadvantaged individuals” as “those who ha ve been
5
The final two eligibility requirements—“social and economic disadvantage” and
“potential for success”—comprise the bulk of the Court’s forthcoming analysis, and
thus warrant more detailed explanations.
1. Economically Disadvantaged Individuals
Section 637(a)(6)(A) of Title 15 of the U.S. Code defines “[e]conomically
disadvantaged individuals” as “socially disadvantaged individuals whose ability to
compete in the free enterprise system has been impaired due to diminished capital and
credit opportunities as compared to others in the same business a rea who are not
socially disadvantaged.” 15 U.S.C. § 637(a)(6)(A); accord 13 C.F.R. § 124.104(a). As
previously noted, it is undisputed that CPS is led by a socially disadvantaged individual
(see supra n. 3); consequently, the economic disadvantage criterion is what is at issue
here. In order to determine whether a socially disadvantaged individual has
experienced “diminished capital and credit opportunities,” SBA’s regulations provide
that the agency will examine the individual’s “income for the past three years . . . ,
personal net worth, and the fair market value of all assets, whether encumbered or
not.” 13 C.F.R. § 124.104(c). An individual who exceeds any of the applicable
thresholds for personal income, net worth, or total assets “will generally be deemed . . .
not economically disadvantaged.” Id.
With respect to the applicable threshold for an individual’s personal income,
SBA’s regulations provide: “If an individual’s adjusted gross income [“AGI”] averaged
subjected to racial or ethnic prejudice or cultural bias because of their identity as a member of a group
without regard to their individual qualities.” 15 U.S.C. § 637(a)(5). By statute, “such groups include,
but are not limited to, Black Americans, Hispanic Americans, Native Americans, Indian tribes, Asian
Pacific Americans, Native Hawaiian Organizations, and other minorities[.]” Id. § 631(f)(1)(C). It is
undisputed that CPS is led by a socially disadvantaged individual within the meaning of t he relevant
statutory and regulatory provisions; therefore, this Court will focus its analysis on the economic
disadvantage requirement.
6
over the three years preceding submission of the 8(a) application exceeds $250,000,
SBA will presume that such individual is not economically disadvantaged.” Id.
§ 124.104(c)(3)(i). In order to calculate the aforementioned AGI, the regulation
specifies that
[i]ncome received from an applicant or Participant that is an S
corporation, LLC or partnership will be excluded from an individual’s
income where the applicant or Participant provides documentary
evidence demonstrating that the income was reinvested in the firm or
used to pay taxes arising in the normal course of operations of the firm.
Id. § 124.104(c)(3)(ii). In other words, income that (1) an individual receives from a
business that is a Section 8(a) program applicant or Participant that (2) that individual
reinvests into the applicant or Participant company, will be excluded from the
individual’s personal income calculation, so long as the applicant or Participant is an S
corporation, LLC, or partnership and provides documentary evidence demonstrating the
reinvestment. See id.
2. Potential For Success
The Small Business Act also expressly conditions entry into the Section 8(a)
program on SBA’s determination that, with SBA support, the applicant business will be
able to perform contracts awarded through the program and has the potential to succeed
in the private sector. The Act states:
No small business concern shall be deemed eligible for any assistance
pursuant to this subsection unless the Administration determines that
with contract, financial, technical, and management support the small
business concern will be able to perform contracts which may be
awarded to such concern under paragraph (1)(C) and has reasonable
prospects for success in competing in the private sector.
15 U.S.C. § 637(a)(7)(A).
7
An SBA regulation further expounds upon the “reasonable prospects for
success” requirement, providing that an applicant will be deemed to possess reasonable
prospects for success in competing in the private sector if it has been “in business in its
primary industry classification for at least two full years immediately prior to the date
of its 8(a) BD application[.]” 13 C.F.R. § 124.107. “To satisfy this two-years-in-
business rule, the applicant must provide tax returns for the two previous years
‘show[ing] operating revenues’ in the industry to which it is applying.” Ardmore
Consulting Grp., Inc. v. Contreras-Sweet, 118 F. Supp. 3d 388, 390 (D.D.C. 2015)
(alteration in original) (quoting 13 C.F.R. § 124.107(a)). Moreover, per the regulation,
an applicant business that cannot satisfy the two-years-in-business rule may
nevertheless be deemed to have the potential for success if the applicant meets five
enumerated conditions and SBA, in its discretion, decides to grant the applicant a
waiver of the two-year rule. See 13 C.F.R. § 124.107(b)(1) (“SBA may waive the two
years in business requirement if each of the following five conditions are met[.]”). To
be eligible for such a waiver, the applicant business must , inter alia, have “a record of
successful performance on contracts from governmental or nongovernmental sources in
its primary industry category[.]” 13 C.F.R. § 124.107(b)(1)(iv). 4
B. Background Facts
In March of 2014, CPS—a corporation that provides workforce and
organizational improvement solutions—applied for admission into the Section 8(a)
4
The remaining waiver prerequisites are: “(i) The individual or individuals upon whom eligibility is
based have substantial business management experience; (ii) The applicant has demonstrated technical
experience to carry out its business plan with substantial likelihood for success if admitted to the 8(a)
BD Program; (iii) The applicant has adequate capital to sust ain its operations and carry out its business
plan as a Participant”; and “(v) The applicant has, or can demonstrate its ability to timely obtain, the
personnel, facilities, equipment, and any other requirements needed to perform contracts as a
Participant.” 13 C.F.R. § 124.107(b)(1)(i)(iii), (v).
8
program. (See Def.’s Mem. at 6, 7; Pl.’s Mem. at 6.) SBA denied CPS’s application
approximately six months later, citing a variety of reasons for this decision, including
that: (1) Cassandra Coleman, the individual upon whom CPS based its eligibility, was
not economically disadvantaged; (2) CPS failed to meet the unconditi onal ownership
requirement; (3) CPS failed to comply with the requirements governing the
participation of non-disadvantaged individuals; and (4) CPS had not demonstrated the
requisite reasonable prospects for success because it could not satisfy the two-years-in-
business rule and did not meet the conditions for a waiver of this requirement. ( See
Letter from Assoc. Admin., SBA, to Cassandra Coleman (Sept. 17, 2014) (“Initial
Denial Letter”), ECF No. 30-2, J.A. at 2025.)
In response to SBA’s denial of its application, CPS timely filed a reconsideration
request, in which it provided additional information addressing SBA’s stated concerns.
(See Reconsideration Request, ECF Nos. 30-4 to 30-6, J.A. at 44327.) SBA reviewed
CPS’s request for reconsideration, but concluded that CPS had provided insufficient
evidence to warrant rescinding the denial. (See Final Denial Letter, J.A. at 29.) In its
final denial letter, dated November 6, 2014, SBA reaffirmed all of its original reasons
for denying CPS’s application (see id., J.A. at 2934); two of these reasons are
discussed at length below. 5
5
SBA’s final denial letter made clear that CPS had failed to satisfy all four Section 8(a) program
eligibility requirements. (See Final Denial Letter, J.A. at 2934 (concluding that (1) CPS had not met
the unconditional ownership requirement; (2) non -disadvantaged individuals controlled or had the
power to control the firm; (3) CPS had not satisfied the potential -for-success requirement; and (4) Ms.
Coleman was not economically disadvantaged).) However, CPS’s failure to satisfy any one
requirement would have justified the agency’s denial decision, see 13 C.F.R. § 124.101, and thus, this
Court has opted to focus its attention on the agency’s conclusions regarding CPS’s prospects for
success and Ms. Coleman’s lack of economic disadvantage.
9
1. SBA’s Findings Regarding CPS’s Prospects For Success
In its final denial letter, SBA concluded that CPS had failed to meet a number of
criteria which, under 13 C.F.R. § 124.107, are necessary to demonstrate reasonable
prospects for success. (See id., J.A. at 3234.) First, SBA concluded that CPS had “not
generated revenues in its primary industry for two consecutive years[,]” and therefore
failed to satisfy the two-years-in-business requirement. (Id., J.A. at 32.)
SBA also found that CPS had not satisfied two out of the five criteria for a
waiver of the two-years-in-business requirement. (See id., J.A. at 33.) Specifically,
SBA noted that CPS had failed to demonstrate “a record of successful performance on
contracts from governmental or nongovernmental sources in its primary Industry
category[,]” as required by 13 C.F.R. § 124.107(b)(1)(iv). (Id.) SBA acknowledged
that CPS had recently changed its primary industry code, but the lack of evidence of
completed contracts in CPS’s (current) primary industry meant that SBA was unable to
“verify a track record of performance on contracts from governmental or
nongovernmental sources in [CPS’s] primary industry.” (Id.) SBA further concluded
that CPS did not have “adequate capital to sustain its operations and carry out its
business plan as a Participant”—another requirement for a waiver of the two-years-in-
business rule, see 13 C.F.R. § 124.107(b)(1)(iii)—because CPS had “only generated a
small portion of its sales from” the industry code under which it sought certification
and had “generated most of its revenues” from its former i ndustry code. (Id., J.A. at
33.)
10
2. SBA’s Findings Regarding Economic Disadvantage
SBA also determined that CPS had failed to satisfy the economic disadvantage
requirement because Coleman had averaged an adjusted gross income in excess of
$250,000 over the previous three years. (See id., J.A. at 30.) SBA specifically noted
that Coleman had listed her AGI on her IRS 1040 Forms as follows: $260,107 (2013),
$1,084,957 (2012), and $67,833 (2011). (See id.) SBA took the average of these three
figures to arrive at a three-year AGI of over $400,000, which exceeded the applicable
$250,000 threshold and thus triggered a presumption that Coleman was not
economically disadvantaged. (See id.) See also 13 C.F.R. § 124.104(c)(3)(i).
SBA further explained its reasons for rejecting the alternative calculation that
CPS had proffered in its reconsideration request. (See Final Denial Letter, J.A. at 30.)
CPS argued that SBA should have excluded from its calculation of Coleman’s 2012
AGI approximately $922,000 that Coleman received as income from an organization
called Harvest Professional Services Company (“Harvest”). (See Reconsideration
Request, J.A. at 4950; see also Final Denial Letter, J.A. at 30.) Coleman had
purportedly invested this $922,000 from Harvest into CPS, and CPS argued that, per 13
C.F.R. § 124.104(c)(3)(ii)—which is quoted above—SBA should have excluded this
income from Coleman’s AGI. (See Reconsideration Request, J.A. at 4950; see also
Pl.’s Mem. at 78.) SBA responded that “[s]ince Harvest Professional Services
Company is not the applicant or Participant, income from this company cannot be
excluded” under that regulation, and “there are no provisions in the regulations for
excluding the Income from Harvest Professional Services Company[,]” as CPS had
requested. (Final Denial Letter, J.A. at 30; see also id. (noting that CPS’s “request to
11
exclude this income was reviewed by Senior Legal Counsel, who concurred that this
income could not be excluded and that your adjusted average three year income was
excessive”).)
C. Procedural History
After it received SBA’s final denial letter, CPS filed a timely appeal petition to
SBA’s Office of Hearings and Appeals (“OHA”), requesting a review of the agency’s
decision. (See Order Granting Agency’s Mot. to Dismiss (“ALJ Decision”), ECF No.
30-1, J.A. at 1.) In lieu of an Answer, SBA filed a motion to dismiss for lack of
jurisdiction, which the ALJ granted, citing 13 C.F.R. § 134.405(a)(1). (See ALJ
Decision, J.A. at 5; Mot. to Dismiss for Lack of Jurisdiction (“SBA’s Mot. to
Dismiss”), ECF No. 30-2, J.A. at 1218.) See also 13 C.F.R. § 134.405(a)(1)
(instructing Administrative Law Judges to dismiss certain types of appeals for lack of
jurisdiction, “including appeals of denials of 8(a) BD program admission based in
whole or in part on grounds other than a negative finding of social disadvantage,
economic disadvantage, ownership or control”). The ALJ’s summary dismissal made
SBA’s denial letter of November 5, 2014 the agency’s final action. See 13 C.F.R.
§ 124.206(a).
Then, on May 11, 2015, CPS filed the instant complaint, which alleges, in Count
One, that SBA violated the APA because all of the agency’s stated reasons for denying
CPS admission to the Section 8(a) program, including its potential-for-success and
economic disadvantage findings, were arbitrary, capricious, and unsupported by the
evidence before the agency. (See Compl. ¶¶ 4243.) The complaint also asserts, in
Counts Two and Three, that both the SBA regulation governing potential for success
12
and SBA’s conclusion that CPS had not demonstrated potential for success violated the
Small Business Act, because neither “required [a] determination from the SBA as to
whether the applicant firm would have reasonable prospects for success with SBA’s
assistance[.]” (See id. ¶ 47; see also id. ¶ 45.)
CPS filed its motion for summary judgment on November 13, 2015. (See Pl.’s
Mot. for Summ. J., ECF No. 14.) In its memorandum in support of the motion, CPS
expanded upon and clarified its theories of relief, which appear to fit into three general
categories. For example, the motion asserts that SBA’s regulation regarding potential
for success (13 C.F.R. § 124.107) is contrary to law because it “does not include a
required determination from the SBA as to whether the applicant firm would have
reasonable prospects for success with SBA’s assistance[.]” (Pl.’s Mem. at 26 (“The
pertinent regulation . . . does not reflect the congressional intent of the governing
statute.”).) Relatedly, CPS contends that SBA’s finding regarding CPS’s potential for
success was facially non-complaint with the enabling statute because it failed to include
a “statutorily required” determination regarding CPS’s potential for success with the
agency’s support. (Id. at 25 (emphasis omitted); see also id. at 24 (“SBA’s findings in
this regard were not consistent with the statute under which the reg ulation was
written.”).) CPS further maintains that it provided SBA with ample evidence to
demonstrate that it satisfied the potential for success requirement as written, and that
the agency’s conclusion to the contrary was unsupported by the record evidence. ( See
Pl.’s Combined Reply in Supp. of Pl.’s Mot. for Summ. J. & Opp’n to Def.’s Cross-
Mot. for Summ. J. (“Pl.’s Opp’n”), ECF No. 32-4, at 1521; see also id. at 15
(“Plaintiff demonstrated that it had the potential to successfully meet the business
13
development objectives of the 8(a) Program.”).) Finally, CPS argues that SBA’s
conclusion that Coleman was not economically disadvantaged was based on a plainly
erroneous interpretation of SBA’s own regulation. (See Pl.’s Mem. at 2021; see also
id. at 21 (“If the SBA had correctly calculated Ms. Coleman’s AGI under the . . .
regulation, the Agency would have seen that her average income over the three years
. . . did not exceed $250,000.”).)
In its cross-motion for summary judgment, which was filed on January 29, 2016,
SBA contends that its potential-for-success regulation and conclusion were both
consistent with the Small Business Act. (See Def.’s Mem. at 1821.) In addition, SBA
maintains that it is entitled to judgment as a matter of law because its decision to deny
CPS admission into the Section 8(a) program was supported by substantial evidence and
was not based on a plainly erroneous interpretation of its own regulation. ( See id. at
1318; Def.’s Reply in Supp. of Def.’s Mot. (“Def.’s Reply”), ECF No. 32 -2 at 910.)
The parties’ cross-motions are now ripe for this Court’s review. (See Pl.’s Mem.;
Def.’s Mem.; Pl.’s Opp’n; Def.’s Reply.)
II. LEGAL STANDARDS
A. Summary Judgment Motions In APA Cases
“Although Federal Rule of Civil Procedure 56 provides the ordinary summary
judgment standard, it is well established that, in cases involving review of a final
agency action[,] . . . the standard set forth in [Rule 56] does not apply because of the
limited role of a court in reviewing the administrative record.” Otsuka Pharm. Co., Ltd.
v. Burwell, No. 15-cv-1688, 2016 WL 4098740, at *6 (D.D.C. July 28, 2016)
(alterations in original) (internal quotation marks and citation omitted). When
14
assessing a motion for summary judgment in an APA case, “the district judge sits as an
appellate tribunal[,]” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir.
2001), and “[t]he entire case on review is a question of law, and only a question of
law[,]” Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir.
1993).
Notably, “[t]he Court’s review is based on the agency record and limited to
determining whether the agency acted arbitrarily or capriciously, or in violation of
another [APA] standard[.]” Desa Grp., 190 F. Supp. 3d at 68. That is, “under the APA,
it is the role of the agency to resolve factual issues to arrive at a decision that is
supported by the administrative record, whereas the function of the district court is to
determine whether or not as a matter of law the evidence in the administrative record
permitted the agency to make the decision it did.” Clarian Health West, LLC v.
Burwell, 206 F. Supp. 3d 393, 406 (D.D.C. 2016) (internal quotation marks, citation,
and alteration omitted).
B. The APA’s Review Standards
The parameters of the district court’s authority to decide “whether the agency
acted arbitrarily or capriciously, or in violation of another [APA] standard[,]” Desa
Grp., 190 F. Supp. 3d at 68 (internal quotation marks and citation omitted), are set forth
in the APA itself. That statute requires reviewing courts to set aside agency action that
is, inter alia, “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). The Supreme Court has made clear that,
when evaluating agency actions under this standard, a court must be satisfied that the
agency has “examine[d] the relevant data and articulate[d] a satisfactory explanation for
15
its action including a rational connection between the facts found and the choice made.”
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,
43 (1983) (internal quotation marks and citation omitted).
Moreover, “[a]gency fact finding, even in an informal adjudication, must be
supported by substantial evidence[.]” Desa Grp., 190 F. Supp. 3d at 68 (internal
quotation marks and citation omitted); see also Ass’n of Data Processing Serv. Orgs.,
Inc. v. Bd. of Governors of Fed. Reserve Sys., 745 F.2d 677, 683–84 (D.C. Cir. 1984)
(“When the arbitrary or capricious standard is performing [the] function of assuring
factual support, there is no substantive difference between what it requires and what
would be required by the substantial evidence test, since it is impossible to conceive of
a ‘nonarbitrary’ factual judgment supported only by evidence that is not substantial in
the APA sense[.]” (emphasis in original)). Substantial evidence is evidence that “a
reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (internal quotation marks and citation omitted).
Accordingly, an agency’s findings of fact should be set aside “only when the record is
so compelling that no reasonable factfinder” could have reached the agency’s
conclusion, Pac. Ranger, LLC v. Pritzker, 211 F. Supp. 3d 196, 222 (D.D.C. 2016), or
when the agency has “ignore[d] evidence contradicting its position,” Butte Cnty., Cal.
v. Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010).
Notably, if what is at issue in an APA case is the “agency’s interpretation of a
statute that it administers[,]” the court employs “the two-step framework” that the
Supreme Court adopted in Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 842–43 (1984). W. Minn. Mun. Power Agency v. FERC, 806 F.3d
16
588, 591 (D.C. Cir. 2015) (citing Chevron, 467 U.S. at 842–43 (1984)). Step One
directs that, if “Congress has directly spoken to the precise question at issue,” then the
court must give effect to that “unambiguously expressed intent.” Nat’l Treasury Emps.
Union v. Fed. Labor Relations Auth., 414 F.3d 50, 57 (D.C. Cir. 2005) (internal
quotation marks and citation omitted); see also Cal. Indep. Sys. Operator Corp. v.
FERC, 372 F.3d 395, 400 (D.C. Cir. 2004) (explaining that the Step One question is not
whether the pertinent statutory terms are “in some abstract sense, ambiguous, but rather
whether, read in context and using the traditional tools of statutory construction,” the
terms unambiguously mean what the party claiming victory at Step One says they mean
(citation omitted)). But if the statute at issue “can be read more than one way[]” and is
thus ambiguous, AFL-CIO v. FEC, 333 F.3d 168, 173 (D.C. Cir. 2003) (citation
omitted), or if the statute is “silent” regarding the relevant question, see Van Hollen, Jr.
v. FEC, 811 F.3d 486, 495 (D.C. Cir. 2016), the court moves on to Step Two, which
requires the court to defer to the agency’s interpretation so long as it “is based on a
permissible construction of the statute[,]” Chevron, 467 U.S. at 843.
Finally, in appropriate cases, agencies are entitled to a special category of
deference called Auer deference. See generally Auer v. Robbins, 519 U.S. 452 (1997).
Under Auer, when an agency interprets “its own ambiguous regulation[s],” a court
should defer to that interpretation unless it is “plainly erroneous or inconsistent with the
regulation[s][,]” or there “is reason to suspect that the agency’s interpretation does not
reflect the agency’s fair and considered judgment on the matter in question.”
Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2166 (2012) (internal
quotation marks and citations omitted). “The clear corollary of the Auer rule is that
17
deference to the agency’s interpretation of its own regulations is not required if the
meaning of the regulation is plain.” Otsuka, 2016 WL 4098740, at *7.
III. ANALYSIS
CPS makes three primary arguments in its cross-motion for summary judgment.
First, it maintains that this Court should set aside SBA’s decision denying CPS
admission to the Section 8(a) program as a matter of law, because neither the agency’s
denial letter to CPS nor the agency’s implementing regulation included or required a
purportedly mandatory agency determination regarding CPS’s “prospects for success
with contract, financial, and management support from the Agency” (Pl.’s Reply at 19
(emphasis omitted))—at least not in the manner that CPS believes is legally required
(see Pl.’s Mem. at 5 (emphasizing that Congress intended the 8(a) program to “be a
‘business development’ program[,]” and arguing that SBA impermissibly “puts the onus
on the applicant to show that it ‘qualifies’ for admission to the program while putting
no responsibility on the Agency itself”)). Second, CPS argues that the evidence it
submitted to SBA clearly demonstrated that CPS was entitled to a waiver of the two-
years-in-business requirement (which would satisfy the potential-for-success mandate)
as a matter of fact, and that the record did not support the agency’s conclusion to the
contrary. (See Pl.’s Reply at 1518; see also Compl. ¶ 33.) Third, and finally, CPS
contends that SBA’s determination about economic disadvantage as it relates to CPS’s
owner, Cassandra Coleman, was based on a plainly erroneous interpretation of SBA’s
own regulation. (See Pl.’s Mem. at 2021.) As explained fully below, CPS appears to
have a fundamental misunderstanding about the nature of the Section 8(a) program that
the Small Business Act establishes, as well as SBA’s role in implementing it, and its
18
view fails to recognize this Court’s limited role in evaluating an agency’s regulations
and determinations in the context of an APA action. Thus, all three of CPS’s
arguments—many of which involve strained contentions about SBA’s regulations and
findings—miss the mark.
A. SBA’s Potential-For-Success Regulation, And The Related Agency
Findings That Appear In CPS’s Denial Letter, Are Not Contrary To
Law
CPS argues that the Small Business Act requires SBA to make a determination
regarding a Section 8(a) program applicant’s “reasonable prospects for success” with
“contract, financial, technical, and management support[,]” yet SBA’s potential-for-
success regulation (13 C.F.R. § 124.107) requires no such determination, and SBA did
not mention having conducted this evaluation in its denial letter to CPS. (See Pl.’s
Mem. at 25 (“In the Decision Letter there was no mention of any determination by the
SBA of whether Petitioner would have reasonable prospects for succ ess with contract,
financial, technical, and management support from the Agency in compliance with the
statute.” (emphasis omitted) (citing 15 U.S.C. § 627(a)(2)(A))); id. at 26; see also Pl.’s
Opp’n at 20 (“Petitioner was not afforded that determination a s is facially apparent in
the decision letter itself.” (emphasis in original)).) In addition, and relatedly, CPS
suggests that 13 C.F.R. § 124.107 is inconsistent with the Small Business Act because
the regulation does not require SBA to evaluate an applicant’s potential for success
with agency support in the manner that the statute requires. (See Pl.’s Opp’n at 21, 22
(asserting that the regulation “does not reflect the congressional intent of the governing
statute[]” because “the 8(a) BD Program is not a ‘contracts program,’ [but] is by its
very title a ‘business development program’”).)
19
The true gravamen of CPS’s arguments appears to be its concern that, although
the Small Business Act “clearly requires a determination by the SBA of whether an
applicant for the SBA’s 8(a) BD program would have reasonable prospects for success
with contract, financial, technical and management support from the Agency[,]” (Pl.’s
Mem. at 5 (emphasis added)), SBA is essentially requiring applicants for the Section
8(a) program to demonstrate that they have the capacity to perform Section 8(a)
contracts in and of themselves—i.e., that SBA is failing to acknowledge that the Section
8(a) program is “a ‘business development’ program—not a contracts program” (id.). In
this regard, CPS maintains that SBA is improperly “put[ting] the onus on the applicant
to show that it ‘qualifies’ for admission to the program while putting no responsibility
on the Agency itself.” (Id. at 5; see also id. at 25 (asserting that “[a]n SBA applicant
does not apply to the 8(a) Program ‘ready made’ but submits its application in
recognition of its need for special assistance from the SBA” (emphasis in original)).)
Therefore, the argument goes, an SBA regulation that fails to demand that the agency
expressly evaluate an applicant’s prospects for success with the agency’s support is
inconsistent with the Small Business Act, as is any denial letter that does not report the
agency’s conclusions regarding the applicant’s potential for success in this fashion.
(See id. at 5, 2526.)
Of course, whether CPS is right about this alleged violation of the Small
Business Act depends entirely on what determinations the statute actually requires SBA
to make—both in general and in connection with the potential-for-success criterion.
And because that question implicates SBA’s own interpretation of the scope of its
statutory mandate, it must be analyzed pursuant to the two-step Chevron standard. See
20
Council for Urological Interests v. Burwell, 790 F.3d 212, 219 (D.C. Cir. 2015) (“At
step one, to determine whether Congress has directly spoken to the precise question at
issue, we use the traditional tools of statutory interpretation. . . . If the statute is silent
or ambiguous on the matter, we move to a second step that asks whether the agency’s
interpretation is based on a permissible construction of the statute.” (internal quotation
marks and citations omitted)). For the following reasons, this Court concludes that the
Small Business Act is silent regarding the determinations SBA must make when it
denies a Section 8(a) program application, and the agency’s interpretation of its
statutory mandate (as manifested in its regulations and the decision letter here) is
permissible. Therefore, neither SBA’s potential-for-success regulation nor the agency’s
application of that regulation in the instant context violates the Small Business Act.
1. The Small Business Act Is Silent Regarding What Determination, If
Any, The Agency Is Required To Make Under These
Circumstances, As Well As The Particular Manner In Which The
Agency Must Evaluate An Applicant’s Potential For Success
The Chevron analysis begins “as always, by asking whether Congress has spoken
to the precise question at issue.” Consumer Elecs. Ass’n v. FCC, 347 F.3d 291, 297
(D.C. Cir. 2003) (internal quotation marks and citation omitted). CPS’s argument—i.e.,
that the Small Business Act “clearly requires a determination by the SBA of whether an
applicant . . . would have reasonable prospects for success with [agency support],” but
the regulations do not mandate any such determination and SBA failed to make that
statutorily required determination here (Pl.’s Mem. at 5)—implicates two distinct, yet
closely related, legal issues. The first is whether the Act demands that SBA make any
particular finding when it undertakes to evaluate a Section 8(a) program application.
The second relates to how the agency is to consider the potential-for-success-with-
21
agency-support factor; that is, in what manner must SBA evaluate an applicant’s
potential for success with agency support? The pertinent analysis of whether Congress
has spoken directly to either of these issues begins with an evaluation of the text of the
relevant statute. See S. Cal. Edison Co. v. FERC, 195 F.3d 17, 23 (D.C. Cir. 1999)
(citation omitted); see also Abbott Labs. v. Young, 920 F.2d 984, 987 (D.C. Cir. 1990)
(explaining that “the language of the statute itself is always the best indication of
congressional intent[]”); Mylan Pharm., Inc. v. Shalala, 81 F. Supp. 2d 30, 37 (D.D.C.
2000) (“Chevron analysis often begins and ends with the statutory text[.]”).
As mentioned above, in clause (A) of section 637(a)(7), the Small Business Act
states:
No small business concern shall be deemed eligible for any assistance
pursuant to this subsection unless the Administration determines that
with contract, financial, technical, and management support the small
business concern will be able to perform contracts which may be
awarded to such concern under paragraph (1)(C) and has reasonable
prospects for success in competing in the private sector.
15 U.S.C. § 637(a)(7)(A). Notably, the plain text of the statute clearly suggests a
background principle of exclusion, which the subordinate conjunction “unless”
qualifies. See Kansas City Structural Steel Co. v. L.G. Barcus & Sons, Inc. , 535 P.2d
419,423 (Kan. 1975) (“The word ‘unless’ is a subordinating conjunction in common
usage, connecting a dependent or subordinate clause of a sentence with the main or
primary clause.”). Thus, as a general matter, Congress clearly intended for the
assistance that the Section 8(a) program confers to be a restricted commodity that is
available only to certain Section 8(a) program applicants, and only when the agency
determines that certain conditions have been met.
22
With respect to the question of whether this provision demands that SBA make
any particular factual determinations regarding a Section 8(a) program application, the
Act plainly establishes one requirement before SBA can deem any applicant eligible for
assistance: the agency must “determine[]” the applicant “will be able to perform
contracts” and “has reasonable prospects for success” with “contract, financial,
technical, and management support[.]” 15 U.S.C. § 637(a)(7)(A). But the Act does not
indicate that this factual determination is the only relevant criterion the agency can
consider when it evaluates an application, nor does it specify what factual
determinations, if any, SBA must make prior to denying an application. Thus, by its
plain terms, the Act merely sets the floor for a finding of eligibility, and it says nothing
about whether and to what extent SBA can (1) establish via regulations additional
criteria that the successful Section 8(a) program applicant must satisfy in order to be
admitted into the program, and (2) deny an applicant admission into the program on the
grounds that any of those additional criteria are unmet. Indeed, the natural corollary to
the observation that Congress has established necessary but insufficient conditions for
admission into the Section 8(a) program (e.g., that an applicant have the ability to
perform contracts with agency support and have reasonable prospects for success) is
that SBA is free to establish additional regulatory criteria, cf. 15 U.S.C. § 634(b)(6)
(authorizing the SBA Administrator to “make such rules and regulations as he deems
necessary to carry out the authority vested in him by or pursuant to this chapter”) , and
thus SBA can decide that an applicant’s failure to establish any of the regulatory
criteria is grounds for denial of an application, without regard to any determination
23
about whether the applicant has reasonable prospects for success or the ability to
perform contracts with agency support.
This means that CPS is wrong to insist that the Small Business Act
unambiguously mandates that SBA make a prospects-for-success determination,
specifically, in every case. (See Pl.’s Mem. at 25 (arguing that SBA’s denial letter was
arbitrary and capricious because it failed to include this “ statutorily required”
determination (emphasis in original)).) CPS has not pointed to anything in the text or
the broader context of the statute that addresses the agency’s obligations prior to
denying an applicant’s request for admission to the Section 8(a) program, nor has it
demonstrated that the statute requires a determination regarding the potential-for-
success issue in all circumstances. Therefore, the text of the statute is silent regarding
what determination, if any, the agency is required to make when it denies a Section 8(a)
program application, and thus, for the purpose of the first step of the Chevron analysis,
it cannot be said that the Act unambiguously requires SBA to reach a conclusion
regarding the applicant’s prospects for success with agency support and express that
conclusion on the face of an applicant’s denial letter.
For similar reasons, the closely-related legal issue that CPS’s argument
presents—namely, in what manner must SBA evaluate an applicant’s potential for
success with agency support when it undertakes to do so—also cannot be resolved at
Chevron Step One. As explained above, CPS takes issue with SBA’s prospects-for-
success regulation and the denial letter it issued in this case because neither reference
any agency evaluation of CPS’s “prospects of success with contract, financial,
technical, and management support from the Agency[.]” (Pl.’s Mem. at 5 (emphasis
24
added); see also Pl.’s Opp’n at 22 (asserting that “the 8(a) BD Program is not a
‘contracts program,’ [but] is by its very title a ‘business development program’”).) But
CPS has not shown that the Small Business Act requires the agency to evaluate an
applicant’s reasonable prospects for success in any particular fashion, much less engage
in some specific inquiry regarding the extent to which “support from the Agency” (Pl.’s
Mem. at 25 (emphasis in original)) will bolster the applicant’s prospects for success.
Rather, by its terms, the Small Business Act requires only that SBA not deem an
applicant eligible for assistance without determining that, with “contract, financial,
technical, and management support[,]” the applicant “will be able to perform [awarded]
contracts” and “has reasonable prospects for success in competing in the private
sector.” 15 U.S.C. § 637(a)(7)(A). It appears that the evaluation of the applicant’s
performance “with contract, financial, technical, and management support” relate s
primarily (if not solely) to the applicant’s performance of future contracts. Id. But in
any event, the statute neither defines “reasonable prospects for success” nor clearly
speaks to the question of how, exactly, SBA should go about making the reasonable-
prospects-for-success determination. In light of this silence, as well as the broad grant
of authority that Congress has given to SBA to implement the Section 8(a) program,
this Court is not persuaded by CPS’s argument that a regulation and decision letter that
do not specifically address the applicant’s prospects for success with agency support (in
the manner that CPS understands this inquiry) run afoul of the unambiguous text of the
statute, and thus, the Court must proceed to Chevron’s Step Two. See Chevron, 467
U.S. at 843 (explaining that courts proceed to Step Two whenever Congress has
25
“implicitly or explicitly . . . left a gap for the agency to fill[]” (internal quotation marks
and citation omitted)).
2. SBA’s Decision To Include Various Criteria In Its Potential-For-
Success Regulation, And To Evaluate CPS’s Application In The
Manner Outlined In Its Denial Letter, Was Entirely Permissible
It is clear beyond cavil that, when Congress is silent as to the relevant issue or
issues, courts must defer to an agency’s construction of a statute “unless it is arbitrary
or capricious in substance, or manifestly contrary to the statute.” Mayo Found. For
Med. Educ. & Research v. U.S., 562 U.S. 44, 53 (2011) (internal quotation marks and
citation omitted). Because this Court has found that the Small Business Act is silent
regarding the particular findings that SBA must make when it denies a Section 8(a)
program application, and also the particular mechanism that SBA must use to evaluate
an applicant’s potential for success, the Court’s task at this stage of the Chevron
analysis is to determine whether SBA’s construction of the Small Business Act (in the
form of the regulations that the agency has adopted pursuant to that statute and its
application of the regulations in this context) is permissible. See Household Credit
Servs., Inc. v. Pfennig, 541 U.S. 232, 239 (2004). As explained below, the Court finds
that SBA’s potential-for-success regulation is consistent with the statutory mandate,
and that it was eminently reasonable for the agency to conclude that its denial letter
satisfied the Act’s directives, for several reasons.
First of all, the regulation contains numerous factors that rationally relate to an
applicant’s potential for success and that help the agency to assess whether t he
applicant can successfully perform Section 8(a) contracts with the agency’s support.
For example, as discussed above, SBA’s potential-for-success regulation provides that
an applicant “must be in business in its primary industry classification for at least two
26
full years immediately prior to the date of its 8(a) BD application, unless a waiver of
this requirement is granted[,]” 13 C.F.R. § 124.107, by demonstrating, inter alia, “a
record of successful performance on contracts from governmental or nongovernmental
sources in its primary industry category[,]” id. § 124.107(b)(1)(iv), and “technical
experience to carry out its business plan with a substantial likelihood for success[,]” id.
§ 124.107(b)(1)(ii). (See supra Part I.A.2.) The requirement that an applicant be in
business in its primary industry category for at least two full years prior to the date of
its application appears reasonably calculated to assess an applicant’s potential for
success with the agency’s support, because an applicant with little or no experience in
its primary field is arguably less likely to succeed “in competing in the private
sector[,]” with or without assistance from SBA. 15 U.S.C. § 637(a)(7)(A).
Likewise, the five enumerated waiver conditions—which include, inter alia, the
“ability to timely obtain[] the personnel, facilities, equipment, and any other
requirements needed to perform contracts[;]” “adequate capital to sustain its operations
and carry out its business plan[;]” and “demonstrated technical experience to carry out
its business plan with a substantial likelihood for success[,]” 13 C.F.R.
§ 124.107(b)(1)—also appear reasonably connected to the statute’s directive. Congress
has tasked SBA with the responsibility to discern which among the many Section 8(a)
program applicants “will be able to perform contracts which may be awarded” and
possess “reasonable prospects for success in competing in the private sector[,]” 15
U.S.C. § 637(a)(7)(A), and the waiver requirements listed in SBA’s regulation are
certainly relevant to this directive. Therefore, notwithstanding CPS’s contention that
the regulation establishes an impermissibly stringent framework from which to evaluate
27
an applicant’s potential for success (see Pl.’s Mem. at 5 (arguing that “the regulation
puts the onus on the applicant to show that it ‘qualifies’”); id. (emphasizing that
Congress intended for the Section 8(a) program to “be a ‘business development’
program—not a contracts program”)), the Court finds that the capacity-related factors
that CPS has incorporated into its regulation are not arbitrary and capricious, or
otherwise inconsistent with the directives of the Small Business Act.
The Court further finds that SBA’s application of the potential-for-success
regulation, as described in the CPS denial letter, was entirely reasonable. For starters,
SBA appears to have scrutinized the regulation’s various factors carefully, and
explained them thoroughly, when it denied CPS’s Section 8(a) program application.
For example, SBA’s six-page letter addresses several different regulatory factors that
the agency concluded CPS failed to satisfy—such as economic disadvantage,
unconditional ownership, and control—and provided detailed justifications for the
agency’s conclusions. (See Final Denial Letter, J.A. at 2934.) In addition, SBA
described how it determined that CPS could neither satisfy the two-years-in-business
requirement nor the conditions necessary for a waiver of this rule. (See id. at 33
(noting the absence of “income tax returns for each of the two previous tax years
showing operating revenues in the primary industry in which [CPS] is seeking”
certification and concluding that, as a result, “the potential for success requirement is
not met”); see also id. (“SBA cannot verify a track record of performance on contracts
from governmental or nongovernmental sources in [CPS’s] primary [i]ndustry.”).)
Having analyzed CPS’s application with this level of specificity, it was reasonable for
SBA to conclude that it need not perform an additional probing analysis of CPS’s
28
prospects “with contract, financial, technical, and management support from the
Agency” in the manner that CPS demands. (Pl.’s Mem. at 5 (emphasis added); see also
id. (suggesting that SBA must make a particularized assessment of each applicant’s
prospects for success with various types of support from SBA).)
To the extent CPS argues that it is entitled to summary judgment because SBA’s
denial letter completely ignores the statutory ‘prospects for success with agency
support’ mandate (see id. at 25), CPS misunderstands what the Small Business Act
requires. First of all, as explained in Part III.A.1 above, the text of the statute makes
clear that the Act is grounded on a background principle of exclusion, and that only a
select group of Section 8(a) applicants can be deemed eligible for inclusion in the
program. Against this backdrop, it appears that Congress’s primary concern was
ensuring that those small businesses that the agency admits into the program have the
capacity to succeed, and not that the program include any and all purported business
ventures that might conceivably be able to perform contracts if supported by the
Agency, as CPS suggests. Indeed, in this Court’s view, CPS’s repeated contention that
the Section 8(a) program “is a business development program—not a contracts
program” and that the assistance it provides was not intended for “‘ready-made’”
companies (id. at 25 (emphasis in original)), not only finds little support in the text and
structure of the relevant statutory provision, it also runs counter to the fact that
underdeveloped, not-yet-ready-to-perform businesses appear to be precisely the
applicants Congress was trying to exclude when it stated that “no small business
concern shall be deemed eligible” without an agency assessment of its prospects for
success. 15 U.S.C. § 637(a)(7)(A). Put another way, far from preventing SBA from
29
evaluating an applicant’s performance history, the statute pl ainly requires the agency to
ensure that Section 8(a) program participants are viable businesses before they are
included in the program.
Even assuming, arguendo, that CPS has a proper conception of what Congress
intended regarding the agency’s evaluation of an applicant’s potential for success with
agency support, it is significant that SBA could have denied CPS’s application without
referencing any potential-for-success-with-agency-support finding at all, because, as
explained above, CPS’s failure to establish any of the various regulatory criteria is
sufficient to justify denial. Moreover, while SBA opted to address CPS’s potential for
success in the denial letter at issue here, SBA may very well have conceived of its
detailed analysis as an assessment of CPS’s potential for success with the types of
agency support the program provides. To be sure, the agency might have provided
more clarity on this front—say, by including language that expressly stated that “CPS
has failed to demonstrate its potential for success with SBA’s support”—but this Court
will not, and cannot, draft the agency’s denial correspondence. Instead, the Court is
tasked solely with ensuring that the agency’s actions are not “arbitrary or capricious in
substance, or manifestly contrary to the statute.” Mayo Found., 562 U.S. at 53 (internal
quotation marks and citation omitted). And, here, the Court finds that SBA’s
consideration of various factors that are reasonably related to CPS’s ability to perform
was permissible, and was certainly not so unreasonable as to render the agency’s
application of the regulation in violation of the law.
30
B. The Agency’s Conclusion That CPS Lacked The Potential For Success
Was Well Supported
CPS’s second major challenge to the rejection of its Section 8(a) program
application is factual in nature, and requires the Court to examine the evidence that
SBA considered when it determined that CPS lacked the potential for success w ithin the
meaning of 13 C.F.R. § 124.107(b)(1). In short, CPS argues that, while its Section 8(a)
program application did not satisfy the two-years-in-business rule because CPS did not
have two years of business experience in the relevant industry categor y, there was
ample evidence of its satisfaction of the waiver criteria. (See Pl.’s Opp’n at 1518
(suggesting that the record evidence did not support SBA’s conclusion that CPS had
failed to demonstrate its entitlement to a waiver); see also id. at 1517 (pointing to
evidence such as Ms. Coleman’s resume and a four-page letter entitled “‘Two Years in
Business Waiver Request’”).) For the reasons explained below, this Court concludes
that the record evidence fully supports SBA’s conclusion that CPS did not have the
requisite potential for success because it was not entitled to a waiver of the two -years-
in-business rule.
First of all, there is no dispute that CPS failed to satisfy the regulatory
requirement that an applicant “be in business in its primary industry classification for at
least two full years immediately prior to the date of its 8(a) BD application,” 13 C.F.R.
§ 124.107, which is, in essence, a length-of-service mandate. (See Reconsideration
Request, J.A. at 91 (acknowledging that CPS could not satisfy the two-years-in-
business rule because it had recently “rebranded and changed [its] primary [industry
31
code]”).) 6 The regulation also contains a provision that permits the agency to waive
this two-year requirement (see supra Part I.A.2), and notably, under both the default
two-years-in-business rule and the waiver provision, an applicant must provide some
evidence of work performed in the applicant’s primary industry category. See e.g., 13
C.F.R. § 124.107(b)(1)(iv) (requiring the applicant who seeks a waiver to demonstrate a
“record of successful performance on contracts from governmental or nongovernmental
sources in its primary industry category”). The two-year rule and the waiver
requirements differ insofar as the waiver provision seeks evidence of “successful
performance on contracts[,]” and does not require any particular length of service. Id.
(emphasis added).
In the instant case, SBA denied CPS’s request for a waiver on the grounds that
“SBA [could not] verify a track record of performance on contracts from governmental
or nongovernmental sources in [CPS’s] primary [i]ndustry.” (Final Denial Letter, J.A.
at 33.) In this regard, SBA specifically explained that CPS had failed to provide
“evidence of completed contracts in the firm’s primary industry” both in its initial
application and in its reconsideration request (see id.), and after reviewing the evidence
before the agency, this Court agrees that the record supports SBA’s conclusion. See
6
Notably, CPS has expressly abandoned its previously stated position that it had, in fact, met the
regulation’s two-year requirement because it “had generated revenues for at least two consecutive years
immediately prior to the date of its 8(a) BD application being submitted” in its former primary industry
code. (Pl.’s Mem. at 12; see also id. at 1213 (asserting that “after CPS submitted its application for
the 8(a) BD Program, it changed its primary industry code to a different industry that it had been
operating under”).) CPS previously maintained that it was “unreasonable” for SBA to apply the two-
years-in-business rule to CPS because it was “impossible” for CPS “to have generated revenues for the
past two consecutive years in the primary industry that Plai ntiff had just changed to” (id. at 13), but
CPS appears to have settled on the alternative argument that SBA should have granted CPS the waiver
necessary for CPS’s entry into the Section 8(a) program because the proffered evidence satisfied the
waiver requirements. (See Pl.’s Opp’n at 15 (arguing that “[i] n this instance Plaintiff argues that a
waiver was appropriate because CPS had just changed its primary industrial classification just after
applying for admission to the 8(a) [p]rogram and, therefore, could not meet” the two-years-in-business
requirement (emphasis added)); see also id. at 16 (“This answer is different from Plaintiff’s Motion.”) .)
32
Orion Reserves Ltd. P’ship v. Salazar, 553 F.3d 697, 704 (D.C. Cir. 2009) (explaining
that, under the substantial evidence standard, courts “reverse an agency’s decision only
when the record is so compelling that no reasonable factfinder could fail to find to the
contrary” (internal quotation marks and citation omitted)).
Specifically, neither CPS’s application nor its reconsideration request contained
any evidence that CPS had successfully “perform[ed] contracts” in its “primary industry
category,” as subdivision (iv) of the waiver provision requires. See 13 C.F.R.
§ 124.107(b)(1)(iv). Instead, CPS provided in its reconsideration request a letter
captioned, “Clarification on Condition [iv]: Successful Performance in Primary
Industry” (Reconsideration Request, J.A. at 91), to which it attached (1) a corporate
resolution addressing its change in industry code (see id. at 92); (2) “Current Financial
Statements, not Older than 90 Days Old” (id. at 93); and (3) “Documentation Verifying
all Revenues on Interim P & L Statement” (id.). 7 Critically, however, none of the
information contained in these attachments plainly demonstrates that CPS has “ a record
of successful performance on contracts from governmental or nongovernmental sources
in its primary industry category[,]” as the regulation requires. 13 C.F.R.
§ 124.107(b)(1)(iv). And in the absence of this required evidence, there is simply no
basis for maintaining that the agency’s refusal to grant CPS a waiver of the two-years-
in-business requirement was unsupported and should be set aside.
Undaunted, CPS contends that it “clearly demonstrated its ability to meet [the
record of successful performance] requirement” when it submitted, in its original
application, a four-page letter entitled “‘Two Years in Business Waiver Request[,]’”
7
CPS’s financial statements contain a balance sheet, income stateme nts, and aging of accounts payable
and receivable. (See id.)
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which Coleman penned. (Pl.’s Opp’n at 16.) According to CPS, this “detailed letter
. . . more than meets the criteria of (b)(1)(iv).” (Id. at 17.) But the letter to which
CPS refers—while admittedly detailed—primarily describes work that CPS completed
under its former primary industry code. (See Feb. 10, 2014 Two Years in Business
Waiver Request (“Waiver Request”), ECF No. 30-7, J.A. at 32831.) In fact, this letter
expressly acknowledges that “business performed under our primary NAICS code
541611 is at two percent (2%)[,]” while CPS’s “dependency on [its previous] code
624190” is 85%. (Id. 329; see also id. (“I intend to continue changing the direction of
[CPS’s] business plan to encompass social services, IT, and process improvement
utilizing our primary NAICS code.”).) In this regard, CPS seems to return to a
contention that it has expressly abandoned: that the agency should take in to account
CPS’s work in the prior industry code and that failing to do so is improper and/or
unfair. (See supra n.6.) But CPS does not cite any authority to support this
proposition, and this Court is not aware of any. Nor is the regulation unclear tha t what
counts for waiver, as with the two-year rule itself, is an applicant’s demonstrated
success in the pertinent industry code. See Ardmore, 118 F. Supp. 3d 388, 39192
(“[The plaintiff] was also barred by the two-years-in-business rule because it had not
provided tax returns showing two years of revenue in the primary industry in which it
was applying.” (emphasis added)).
The proffered letter similarly fails to identify a single successful contract that
CPS performed in the pertinent primary industry category, as section 124.107(b)(1)(iv)
expressly mandates. And, indeed, CPS itself appears to acknowledge this deficiency,
insofar as its reconsideration request expressed confidence “that in the next year [CPS]
34
will have the necessary accumulation of revenue necessary to satisfy the record of
performance.” (Reconsideration Request, id. at 91 (emphasis added).)
In short, SBA has made clear that, in all events, a successful Section 8(a)
program applicant must have demonstrated either two years of business performance in
its primary industry code or a record of successful completion of contracts in that
industry code. See 13 C.F.R. § 124.107. The absence of any record evidence here that
satisfies either the two-year rule or the “record of successful performance” waiver
requirement leads this Court to conclude that there was substantial evidence to support
SBA’s decision to deny CPS a waiver of the two-years-in-business requirement, as well
as its conclusion that CPS had therefore failed to demonstrate its potential for success. 8
C. SBA’s Conclusion That Coleman Was Not Economically
Disadvantaged Is Consistent With The Unambiguous Text Of Its
Regulation
CPS’s final contention—that SBA’s finding as to economic disadvantage was
based on an improper interpretation of SBA’s own regulation —fares no better.
Specifically, CPS maintains that SBA improperly calculated Coleman’s AGI to include
approximately $922,000 in income that Coleman received from Harvest, which CPS
argues should have been excluded from the calculation pursuant to (the proper
interpretation of) SBA’s own regulation. (See Pl.’s Mem. at 2021.) This Court is not
persuaded; instead, it concludes that the unambiguous text of the regulation supports
8
On November 19, 2016, CPS filed a Notice of Change in Relevant Regulation, in which it argued that
SBA’s subsequent amendment to the text of 13 C.F.R. § 124.106 —which addresses the issue of who
“controls” an applicant company—had “a clear impact on whether CPS” had reasonable prospects for
success within the meaning of 13 C.F.R. § 124.107. (Pl.’s Notice of Change in Relevant Regulation,
ECF No. 33, at 4; see also id. at 12.) CPS’s notice addresses an amendment that (1) is not clearly
retroactive, and (2) applies to an entirely different regulation that is not at issue here. ( See Def.’s
Resp. to Pl.’s Notice of Change in Relevant Regulation, ECF No. 34.) For these two reasons, among
others, any amendments that SBA subsequently made to 13 C.F.R. § 124.106 have no bearing on this
case.
35
SBA’s refusal to exclude the income that Coleman received from Ha rvest, for the
following reasons.
The text of the regulation at issue here—13 C.F.R. § 124.104(c)(3)(ii)—is plain
and unambiguous. See Chase Bank USA, N.A. v. McCoy, 562 U.S. 195, 20304 (2011)
(noting that a court’s analysis over the “proper interpretation of” a regulation “begins
with the text of [the] [r]egulation”); see also Otsuka, 2016 WL 4098740, at *7
(explaining that “deference to the agency’s interpretation of its own regulations is not
required if the meaning of the regulation is plain”). The regulation, which appears in
the context of a subsection entitled “Eligibility Requirements for Participation in the
8(a) Business Development Program” and addresses the types of income that the agency
considers when determining whether an applicant business is owned by an
“economically disadvantaged” individual, provides:
Income received from an applicant or Participant that is an S
corporation, LLC or partnership will be excluded from an individual’s
income where the applicant or Participant provides documentary
evidence demonstrating that the income was reinvested in the firm or
used to pay taxes arising in the normal course of operations of the firm.
13 C.F.R. § 124.104(c)(3)(ii). Thus, the text plainly provides that the agency will
exclude certain income from its calculation of an individual’s overall income (1) when
the income comes from an applicant or Participant that is itself an S corporation, LLC,
or partnership, and (2) when that income is then reinvested into the firm, or used to pay
the firm’s taxes. See id. Setting aside all other requirements, at least this much is
clear: the only relevant income for the purpose of this provision is “[i]ncome received
from an applicant or Participant[.]” Id. And the terms “applicant” and “Participant”
refer to the organizations that are either currently participating in the Section 8(a)
36
program, or are seeking to participate in that program, as demonstrated by the fact that
these terms appear in the context of a subsection entitled “Eligibility Requirements for
Participation in the 8(a) Business Development Program.” See id. § 124.101124.112.
In the instant case, SBA indicated that CPS had failed to satisfy the economic
disadvantage requirement because the individual upon whom CPS’s disadvantaged
status was based—Coleman—averaged an adjusted three-year income in excess of
$250,000. (See Final Denial Letter, J.A. at 30.) When explaining how it calculated this
figure, SBA specifically referenced Coleman’s AGI for each of the three years prior to
CPS’s application, and specifically considered, and rejected, CPS’s argument that SBA
should exclude from its calculation approximately $922,000 in income that Coleman
received from Harvest in 2012. (See id.) SBA explained that “income from this
company cannot be excluded” because Harvest is not the “applicant or Participant[.]”
(Id.)
This determination was clearly consistent with the unambiguous text of the
applicable regulation, and CPS has not demonstrated otherwise. Simply put, although
CPS contends that Harvest was an S corporation (see Pl.’s Opp’n at 8), there is nothing
in the record to indicate that Harvest was an applicant or Participant in the Section 8(a)
program. 9 Had Coleman received the $922,000 at issue from CPS—the Section 8(a)
program applicant in this matter—and also provided evidence that she reinvested those
funds back into CPS or used them to pay CPS’s taxes, then CPS may justifiably have
argued that the $922,000 should have been excluded from Coleman’s AGI. On the
9
In its opening motion, CPS originally characterized Harvest as a “C -Corporation” (Pl.’s Mem. at 7),
but later referred to it as an S corporation ( see Pl.’s Opp’n at 8). The corporate status of Harvest is not
relevant to the resolution of the economic disadvantage issue in any event because, as explained above,
CPS does not contend that Harvest was an applicant or Participant in the Section 8(a) program.
37
instant facts, however, SBA has made no such mistake, and this Court sees no reason to
disturb SBA’s conclusion.
CPS’s arguments to the contrary are entirely unavailing. CPS contends that SBA
should have excluded the $922,000 from Coleman’s AGI because “[t]he applicant, Ms.
Coleman, owned an ‘S’ corporation in 2012 [Harvest], and Ms. Coleman owned another
‘S’ corporation [CPS] at the time of submitting its 8(a) application.” (Pl.’s Opp’n at 9
(emphasis in original); see also id. (“[I]t is the individual, not the company, on which
the application to the 8(a) Program is based.” (emphasis in original)).) According to
CPS, “[t]o say that the exclusion of reinvested income permitted by [the regula tion] is
applicable to one ‘S’ corporation, but not to another, is simpl y not supported by the
record or the regulation.” (Id.) Once this income is properly excluded, CPS maintains,
Coleman’s average AGI during the relevant period was less than $250,000. (See id. at
8.)
CPS’s argument fails for several reasons. As an initial matter, the plain language
of the regulation clearly distinguishes between an “applicant or Participant” firm
seeking entry into the Section 8(a) program, and the “individual” owner upon whom the
applicant firm relies to satisfy the economic disadvantage requirement. 13 C.F.R.
§ 124.104(c)(3)(ii). Furthermore, it makes little sense to consider Coleman an
“applicant”—as CPS suggests—because Coleman is not (nor can she ever be) an S
corporation, LLC, or partnership. It is also clear to this Court that the question of
whether the regulation can be read to require exclusion of income that is received from
one S corporation and reinvested into a different S corporation is a red herring in the
instant case because, regardless, the regulation unambiguously addresses and excludes
38
only income that is received from an applicant or Participant in the Section 8(a)
program, which happens to be an S corporation, LLC, or partnership. And again, there
is no evidence that Harvest was a Section 8(a) program applicant or Participant, as
explained above. Finally, even if this regulatory language was somehow ambiguous,
SBA’s interpretation of its own regulation is neither plainly erroneous nor inconsistent
with the regulatory text for all of the reasons explained above, and thus would be
entitled to great deference under Auer. See Christopher, 132 S. Ct. at 2166.
This all means that SBA’s economic disadvantage determination was clearly
consistent with the unambiguous text of its regulation, and should be upheld as such .
IV. CONCLUSION
In the end, even the most promising arguments that CPS makes in an attempt to
secure a Court order requiring SBA to reevaluate its denial of CPS’s Section 8(a)
program application are for naught. The Small Business Act is entirely silent regarding
whether and to what extent the agency must make a finding regarding an applicant’s
potential for success with agency support when a Section 8(a) program application is
denied, and SBA’s regulations—which are crafted to ensure that only those business
concerns with reasonable prospects for success are eligible for Section 8(a) program
assistance—are entirely consistent with the statutory scheme that Congress crafted .
There has been no mistake of law, because both the potential -for-success regulation and
SBA’s application of this regulation in the context of the instant case were permissible
and reasonable. And the record facts fully support SBA’s conclusion that CPS failed to
demonstrate both its potential for success and Coleman’s economic disadvantage.
39
Consequently, as set forth in the Order issued previously, CPS’s motion for
summary judgment has been DENIED, and SBA’s motion for summary judgment has
been GRANTED.
DATE: May 11, 2017 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
40