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IN THE MATTER OF: KC CONSULTING, LLC, PETITIONER

SBA No. BDPT-563, 20172017 WL 4737143October 11, 2017

SBA No. BDPT-563, 2017 (S.B.A.), 2017 WL 4737143
Small Business Administration (S.B.A.)
Office of Hearings and Appeals
[Bussiness Development Plan]
*1 IN THE MATTER OF: KC CONSULTING, LLC, PETITIONER
*1 SBA Docket No. BDPT-563
*1 October 11, 2017
 
RULING AND ORDER ON SBA'S MOTION TO DISMISS FOR LACK OF JURISDICTION OR, IN THE ALTERNATIVE, FOR SUMMARY DECISION FOR FAILURE TO STATE AN ACTIONABLE APPEAL
 
*1 On July 31, 2017, the Small Business Administration (“SBA” or “the Agency”) filed a Motion to Dismiss Lack of Jurisdiction or, In the Alternative, for Summary Judgment (“Motion to Dismiss” or “Motion”). The Agency contends that the Appeal Petition filed by KC Consulting, LLC (“Petitioner”) on June 13, 2017, “does not, on its face, allege facts that, if proven to be true, would warrant reversal or modification” of the Agency's decision to terminate Petitioner from the 8(a) Business Development Program (“8(a) BD Program”). As a result, the Agency claims, this Court should decline to accept jurisdiction to hear the appeal, pursuant to 13 C.F.R. § 134.405(a)(1). The SBA therefore requests that this proceeding be dismissed, or that the Court grant summary judgment in the Agency's favor.
*1 Petitioner was required to file a response, if any, on or before August 15, 2017. 13 C.F.R. §§ 134.211(c) and 134.212(a)(2). Petitioner did not do so and on September 18, 2017, the Court ordered Petitioner, by September 25, 2017, to show cause as to why the Motion to Dismiss should not be granted. To date, the Court has received no response to the Motion to Dismiss or the Order to Show Cause.1
 
APPLICABLE LAW
 
*1 Participation in the 8(a) BD Program. The 8(a) BD Program was designed to provide business development for small businesses owned by socially and economically disadvantaged individuals. 13 C.F.R. § 124.1. Once admitted, businesses participate in the Program for a term of nine years. 13 C.F.R. § 124.2. The term can only be shortened by termination, early graduation, or voluntary withdrawal. Id. A Program participant who does not maintain its eligibility is susceptible to termination. Id. Additionally, the SBA may terminate a business' participation for “good cause.” 13 C.F.R. § 124.303(a). Agency regulations offer a non-exhaustive list of actions that constitute good cause for termination, among them:
*1 (7) [a] pattern of failure to make required submissions or responses to SBA in a timely manner, including a failure to provide required financial statements, requested tax returns, reports, updated business plans, information requested by SBA's Office of Inspector General, or other requested information or data within 30 days of the date of request
*2 13 C.F.R. § 124.303(a).
*2 Prior to terminating a participant from the 8(a) BD Program, the SBA must first notify the concern in writing of its intent and “the specific facts and reasons for SBA's findings.” 13 C.F.R. § 124.304(b). The SBA must also inform the concern that “[the concern] has 30 days from the date it receives the letter to submit a written response to SBA explaining why the proposed ground(s) should not justify termination.” Id. After the 30-day period for a response has passed, the SBA considers the proposed termination and any response by the concern in determining whether termination is warranted. 13 C.F.R. § 124.304(c).
*2 Standard of Review. The SBA's decision to terminate a concern's participation in the 8(a) BD program can only be overturned if the reviewing court concludes—after considering the entire administrative record—that the determination was arbitrary, capricious, or contrary to law. 13 C.F.R. § 134.402, 134.406(a)-(b); 5 U.S.C. § 706(A)(2). The reviewing court's task is to decide whether the agency reached a reasonable conclusion in light of the facts available in the administrative record. It does not ask whether the conclusion was the best one, or even the correct one. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29 (1983); Griffis v. Delta Family-Care Disability, 723 F.2d 822, 825 (11th Cir. 1984) (“This court's judicial role is limited to determining whether the [agency's] interpretation was made rationally and in good faith-not whether it was right.”); Ace Technical, SBA No. SDBA-178, at 3 (“[Examination] is not a de novo review of the administrative record to decide whether the SBA's ultimate conclusions are correct”). Any reasonable conclusion must be upheld, even if it differs from the conclusion the reviewing court would have reached. State Farm, 463 U.S. at 42-43; Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971); 13 C.F.R. § 134.406(b).
*2 A business that has been terminated from the 8(a) BD Program may appeal the termination within 45 days of receiving the SBA's determination. 13 C.F.R. § 134.404. This Court is authorized to hear such appeals pursuant to 13 C.F.R. § 134.103(j)(l). However, the Court must decline jurisdiction if the appeal does not state any facts that would warrant reversal or modification of the SBA's decision. 13 C.F.R. § 134.405(a)(1); C.J. Hearne Constr. Co., SBA No. BDP-449, 2012 WL 6562294 (SBA Nov. 2, 2012).
 
DISCUSSION
 
*3 The SBA issued a Termination Letter on April 12, 2017, terminating Petitioner from the 8(a) BD Program due to Petitioner's pattern of failing to make required submissions or responses to the SBA in a timely manner. Specifically, the Termination Letter noted that Petitioner failed to submit all of the Annual Review update information despite receiving two separate requests for the information.2 The Agency contends that Petitioner's actions violated 13 C.F.R. § 124.303(a)(7), and thus represent good cause for Petitioner's termination.
*3 Petitioner timely filed an Appeal Petition. However, Petitioner does not dispute that it failed to submit the Annual Review update information despite the SBA's requests for it Rather, Mr. E. Kennedy Brandon, President/Managing Member of KC Consulting, LLC, explains that the loss of both his parents in 2014 and 2015, in addition to having to travel out-of-state to care for them prior to their passing, required him to be away from the office. Mr. Brandon also notes that he was in the midst of divorce proceedings that are being finalized. He explains that “these activities have had a significant impact on our small firm” and submits documentation supporting the claims raised in the Appeal Petition. Petitioner asks that it be permitted to remain in the program for one more year and notes that it is “back on track.”
*3 Petitioner's assertions, even when accepted as true, fail to rebut the SBA's claim that Petitioner violated 13 C.F.R. § 124.303(a)(7). To the contrary, the Appeal Petition acknowledges that “reporting to the SBA was one of the tasks impacted by the aforementioned events.” It therefore admits the violation, and confirms the SBA's grounds for termination. It is of no consequence that Petitioner's violation was not intentional or that Petitioner is now in the position to adhere to SBA's requirements for participating in the 8(a) BD Program. The SBA has provided a valid basis for its decision. Petitioner's Appeal Petition does not allege any facts that, if true, would warrant reversal or modification of that decision. Accordingly, the Court must decline jurisdiction to hear this appeal. See Hearne Constr. Co., SBA No. BDP-449, p. 2.
*3 The SBA's Motion to Dismiss for Lack of Jurisdiction, or, in the Alternative, for Summary Decision, is GRANTED. Petitioner's appeal is DISMISSED.
*3 So ORDERED,
*3 Alexander Frenández
*3 United States Administrative Law Judge

Footnotes

Petitioner's failure to respond to the Motion to Dismiss constitutes Petitioner's consent to the Motion being granted. 13 C.F.R. § 134.211(c); see also United Medical Supplies, Inc., 2011 WL 8183061 (SBA Jul. 12, 2011); J. Millennium Enterprises. Inc., 2010 WL 4271516 (SBA Sept. 23, 2012).
The Termination Letter notes that the first letter was mailed on December 29, 2015, and received on January 8, 2016. The second letter was mailed on March 1, 2016 and delivered on March 9, 2016
SBA No. BDPT-563, 2017 (S.B.A.), 2017 WL 4737143
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