[00:00:02] Speaker 03:
We have four cases on the calendar this morning.

[00:00:06] Speaker 03:
A case from the Court of Federal Claims, a bid to protest case, a patent case from the District Court, a trademark case from the PTO, and a veteran's case.

[00:00:18] Speaker 03:
The latter is being submitted in the briefs and will not be argued.

[00:00:23] Speaker 03:
The first case

[00:00:25] Speaker 03:
His Palladian partners versus the United States, 2014, 51-25, Ms.

[00:00:34] Speaker 03:
Krushner.

[00:00:40] Speaker 02:
May it please the court, the trial court's decision and injunction should be reversed because it erred in failing to list the complaint for Palladian's failure to exhaust its administrative remedies before the SBA Office of Hearings and Appeals, OHA.

[00:00:57] Speaker 02:
The court essentially ruled that exhaustion was not required because it would have been burdensome in terms of time and money for Palladian to participate

[00:01:05] Speaker 02:
in the pending OHAL proceeding that has been brought by its competitor, Information Ventures.

[00:01:11] Speaker 01:
And secondly... Do we have to address your jurisdictional question as a threshold matter, or is the exhaustion of remedies a question that we can address before we get to the jurisdictional question that you raised in your opening brief?

[00:01:28] Speaker 02:
Jurisdictional questions are usually addressed before other issues.

[00:01:34] Speaker 02:
We have not taken the position that there is a lack of jurisdiction.

[00:01:38] Speaker 02:
And I believe we have said in our briefs that certainly the jurisdictional statute is broad enough.

[00:01:46] Speaker 02:
Here, jurisdiction is determined by whether you are challenging the term of a solicitation.

[00:01:53] Speaker 02:
They are challenging the term of a solicitation.

[00:01:55] Speaker 01:
But you did argue below that there was no jurisdiction in the court of claim.

[00:01:59] Speaker 01:
No, we did not.

[00:02:01] Speaker 01:
You did not?

[00:02:02] Speaker 01:
We did not.

[00:02:02] Speaker 01:
And you argued in your blue brief.

[00:02:04] Speaker 01:
Excuse me?

[00:02:04] Speaker 01:
And it's also in your opening brief.

[00:02:07] Speaker 02:
No, we did not argue lack of jurisdiction.

[00:02:10] Speaker 02:
We argued that they failed to state a proper claim because they have failed to exhaust their administrative remedies.

[00:02:17] Speaker 02:
Okay.

[00:02:20] Speaker 02:
Okay, proceeding then, the trial court's ruling on the exhaustion of administrative remedies question is erroneous.

[00:02:30] Speaker 02:
It's erroneous because both points that were relied upon are in error.

[00:02:36] Speaker 02:
As the Supreme Court stated in the Orban Regional Medical Center case, an agency has the authority to promulgate regulations

[00:02:44] Speaker 02:
governing administrative procedures.

[00:02:46] Speaker 03:
Getting right down to it, 121-1102 is what you're relying on, isn't it?

[00:02:55] Speaker 03:
Excuse me?

[00:02:57] Speaker 03:
Section 121-1102.

[00:03:00] Speaker 03:
That's the exhaustion provision.

[00:03:04] Speaker 03:
The OHA, as you say, appeal is an administrative remedy that must be exhausted, doesn't state by whom, before judicial review of a co-designation may be sought in a court, doesn't state by whom either.

[00:03:21] Speaker 03:
That's the weakness of your position, isn't it?

[00:03:25] Speaker 02:
That is the argument that is being made by Palladium, the principal argument.

[00:03:30] Speaker 02:
The government reasonably interprets all the regulations considered as a whole to require administrative exhaustion by all parties.

[00:03:41] Speaker 02:
The regulation does not limit its applicability to only certain parties.

[00:03:46] Speaker 02:
The regulation 121.1102 that the court cited.

[00:03:51] Speaker 02:
Further, the regulations, when you look at the regulations, there is a provision that states that the contracting officer

[00:03:58] Speaker 02:
has to stay at the solicitation and give the public notice of the appeal and the procedures and deadline for, quote, interested parties to file and serve their arguments concerning the appeal.

[00:04:13] Speaker 01:
factually between a circumstance in which a party who is not aggrieved by a contracting officer's determination does not intervene and a circumstance where someone's clearly aggrieved by that determination and still fails to intervene.

[00:04:33] Speaker 02:
Certainly those are different circumstances.

[00:04:36] Speaker 02:
But what here the regulations provide for is that PARTY is defined in 13 CFR 134.101 as quote, a petitioner appellant responded

[00:04:48] Speaker 02:
interveners and the contracting officer.

[00:04:50] Speaker 02:
And then further in 121.1103C2i, the contracting officer gives notice of the proceeding and of the deadline for all interested parties to file and serve their arguments.

[00:05:07] Speaker 02:
And the regulations further require that parties will present their arguments to OHA, and OHA will address their arguments.

[00:05:16] Speaker 01:
What I'm trying to understand, though, is do you define interested party as someone who simply wants to support the contracting officer?

[00:05:24] Speaker 01:
Because in this particular instance, wouldn't it be logical for someone to say, all right, someone else appeals, but the contracting officer is going to defend the determination?

[00:05:34] Speaker 02:
Certainly, the definition of party

[00:05:37] Speaker 02:
includes a party that wishes to support the contracting officer and parties that support the contracting officer's views regularly participate in OHA proceedings.

[00:05:51] Speaker 02:
The regulation is clear that it covers anyone that wants to support the contracting officer's view as well.

[00:05:58] Speaker 00:
And couldn't they have preserved their ability to appeal here by simply filing a single piece of paper that just says, we want to be on record that we agree with the contracting officer and his race in this case?

[00:06:10] Speaker 00:
And then that alone would have entitled them to the seek judicial review if that position wasn't adopted.

[00:06:18] Speaker 00:
I guess I'm going to the point of burdensomeness.

[00:06:22] Speaker 00:
The lower court held part of the reason that she would not apply administrative exhaustion the way the government sought to apply it, which I think is the standard way which applies, is because to do so would be burdensome on small parties, forcing them to engage in litigation and reviews.

[00:06:40] Speaker 00:
And I guess my point is, isn't there a very not so burdensome way they could have preserved this right?

[00:06:47] Speaker 02:
They could have preserved their right to judicial review by participating, by filing a letter.

[00:06:54] Speaker 02:
I'll note that the OHA proceedings are paper proceedings.

[00:06:57] Speaker 02:
They don't have any oral argument.

[00:06:59] Speaker 02:
They don't have any hearings.

[00:07:01] Speaker 00:
But a Me Too letter would have been sufficient, right?

[00:07:03] Speaker 00:
The government doesn't dispute that had they filed a Me Too letter, you know, we expressly support the contracting officer's original position, that that would have been enough to allow them then to seek judicial review, right?

[00:07:16] Speaker 00:
Isn't that the case?

[00:07:17] Speaker 02:
They would be entitled to judicial review in that case.

[00:07:24] Speaker 02:
further the regulations and OHA precedent.

[00:07:27] Speaker 01:
At what point would they be entitled to judicial review?

[00:07:29] Speaker 01:
I'm just curious as to how this works because the contracting officer, when there's a new code that's chosen, still has to go back and make some initial determinations before the contracting officer enforces the OHA decision, right?

[00:07:46] Speaker 02:
The OHA decision is issued and that is final agency action for the SBA.

[00:07:54] Speaker 02:
Now the contracting officer then, depending upon the decision, if the decision is adverse to the contracting officer, the contracting officer is obligated to then

[00:08:04] Speaker 02:
amend the solicitation, which is what he did in this case.

[00:08:08] Speaker 02:
And at that point, the palladium or some other contractor could bring an action in the court of federal claims, providing that they had participated before OHA.

[00:08:20] Speaker 02:
But it would be after the contracting officer amends the solicitation.

[00:08:25] Speaker 02:
I think that makes eminent sense.

[00:08:32] Speaker 02:
And what I was just going to say before that, though, is that the regulations contemplate and precedent contemplates establishes that there is only one proceeding, only one OHA proceeding on the merits of the code.

[00:08:46] Speaker 02:
So there is really only one opportunity for any party to participate

[00:08:51] Speaker 02:
and to have its views heard by OHA and addressed by OHA.

[00:08:56] Speaker 02:
And there's no motion for reconsideration in this context?

[00:08:59] Speaker 02:
No, no motion for reconsideration.

[00:09:01] Speaker 02:
And the precedent recited in our brief, pages 19 to 20, OHA precedent establishes that any OHA decision is controlling in the case of a subsequent, should someone bring a subsequent proceeding, the early decision controls.

[00:09:20] Speaker 02:
That would be the integrated systems case from OHA 2005 going as far back as all state maintenance from 1990 that precedent was established.

[00:09:32] Speaker 02:
Our interpretation of OHA's regulations is a reasonable interpretation that is entitled to discourse deference.

[00:09:43] Speaker 02:
It is also consistent with general principles of administrative law.

[00:09:48] Speaker 02:
General principles of administrative law recognize that a party's failure to participate is a failure to exhaust the administrative remedies.

[00:10:00] Speaker 02:
And they also recognize that agency decision making is enhanced where interested parties present their facts and arguments to the agency and the agency has the opportunity to address them.

[00:10:14] Speaker 02:
the court's second era was inflicting the contracting officer for failing to implement the OHA's decision.

[00:10:23] Speaker 02:
We cited in our brief at pages 24 to 25 various court of federal claims decisions which recognized that once OHA has issued a decision, the contracting officer, and if it is adverse to the contracting officer, and if it is also issued prior to the time, the offers are due.

[00:10:44] Speaker 02:
The contracting officer then must implement the OHA decision.

[00:10:48] Speaker 01:
Could the Court of Federal Claims have said that the OHA decision was arbitrary and capricious?

[00:10:54] Speaker 01:
Could the Court of Federal Claims alternatively have said that the OHA decision was arbitrary and capricious?

[00:11:00] Speaker 02:
Assuming Palladian had exhausted its administrative remedies.

[00:11:04] Speaker 02:
then we think the proper way for the court to go about its relationship with OHA was to review the OHA decision and if it had been exhausted and if it concluded that OHA was arbitrary and capricious for it to so state and to reverse the OHA decision.

[00:11:27] Speaker 02:
I did just want to state that also the Comptroller General in the Eagle Home Medical Corporation case has also pointed out that the agency is obligated to adhere to the OHA decision in the circumstances that I indicated, which was the case here.

[00:11:47] Speaker 02:
The court's third error was going beyond the record that was before OHA and not giving sufficient deference to the OHA decision.

[00:11:59] Speaker 03:
But we don't get to that if we agree with you on exhaustion, right?

[00:12:03] Speaker 02:
Correct.

[00:12:04] Speaker 02:
Correct.

[00:12:06] Speaker 02:
But I'd just like to say briefly that on the merits, OHA's view of this standard was

[00:12:15] Speaker 02:
of this code was fundamentally different from the court's view.

[00:12:19] Speaker 02:
OHA cited to its precedent and indicated that it had understood this code as being much broader and that it covered basic administrative services.

[00:12:31] Speaker 02:
the contractor was acting as a coordination center and coordinating the whole process of developing these case scenarios.

[00:12:45] Speaker 03:
We will reserve it for you, Mr. Chud.

[00:12:58] Speaker 04:
Thank you, Your Honor.

[00:12:59] Speaker 04:
May it please the court?

[00:13:00] Speaker 04:
My name is Daniel Chubb.

[00:13:02] Speaker 04:
I represent Planting Partners.

[00:13:06] Speaker 04:
We ask this court to affirm the judgment of the Court of Federal Claims.

[00:13:11] Speaker 04:
I originally had wanted to address two issues, both exhaustion and the jurisdictional issue, because I do think that the jurisdictional issue, especially with respect to the OHA decision, can resolve any of the concerns that the DOJ may have and the government may have about the

[00:13:28] Speaker 04:
contracting officer's discretion or their argument of the lack of discretion that the contracting officer had.

[00:13:34] Speaker 04:
I'm also happy to discuss any other.

[00:13:36] Speaker 01:
Well, if you both agree that there's jurisdiction, then why does the jurisdictional issue change anything?

[00:13:45] Speaker 04:
Well, I think the reason that the jurisdictional issue could change things from the perspective of the briefs in this matter

[00:13:52] Speaker 04:
is that the court below accepted jurisdiction only with respect to the contracting officer's decision and did not reach the issue, jurisdictional issue of whether or not the Court of Federal Claims had jurisdiction over the OHAP.

[00:14:07] Speaker 04:
I agree now that both parties agree and below I think both parties agreed that the term in connection with a procurement would include both the contracting officer's action and the

[00:14:19] Speaker 04:
OHA action and I think from a fair reading of the court's decision you can also you also know what the court's decision would be with respect to the arbitrary and capricious nature of the OHA decision itself.

[00:14:34] Speaker 01:
So you think that resolves the question of whether she could call a contracting officer arbitrary and capricious for enforcing something that by regulation is required to enforce?

[00:14:45] Speaker 04:
I think it would resolve that issue because

[00:14:48] Speaker 04:
The decision is saying that he was arbitrary and capricious, the contracting officer was arbitrary and capricious for following this decision, which was arbitrary and capricious.

[00:15:00] Speaker 04:
Because Judge Horn only reached the merits of the jurisdiction of the contracting officer and didn't reach the OHA opinion, then there does become this bit of a quagmire as to whether or not the contracting officer actually had discretion simply to change the

[00:15:17] Speaker 04:
the NAICS code, we would argue that he has discretion to do other things.

[00:15:22] Speaker 04:
But if you went to the heart of it and went back to the OHA opinion and said because the OHA opinion itself could be reversed or appealed and reversed and considered arbitrary and capricious, then

[00:15:35] Speaker 04:
there wouldn't be a need to reach the issue of what the county has.

[00:15:38] Speaker 01:
So if we accept that proposition, though, that doesn't change the at least argument that you had an obligation to exhaust even as it relates to the OHA.

[00:15:48] Speaker 04:
No, I think the exhaustion issue is a separate issue from jurisdiction.

[00:15:53] Speaker 04:
That's correct.

[00:15:53] Speaker 01:
So let's turn to that.

[00:15:57] Speaker 01:
When I first looked at this, I thought one of your strongest arguments was why should you have to participate in an appeal if you're happy with what the number is and you know the contracting officer is going to defend his position on appeal.

[00:16:10] Speaker 01:
And yet, when you dig into it, you weren't so happy with the original decision.

[00:16:15] Speaker 01:
You actually argued that some third code provision is most appropriate.

[00:16:22] Speaker 01:
Doesn't that even change at least the equities of the argument that you're trying to make?

[00:16:27] Speaker 04:
Well, I think we're happy with the original code, because that original code allowed Bulletin Partners to compete.

[00:16:36] Speaker 04:
It was a code for all small businesses with fewer than 500 employees.

[00:16:43] Speaker 01:
But you don't argue that it's accurate.

[00:16:46] Speaker 04:
We don't argue that it's the best code.

[00:16:49] Speaker 04:
And that's what the RFP actually, or what

[00:16:52] Speaker 04:
requirements actually require and regulations require is that the best code be provided.

[00:16:56] Speaker 04:
But these codes, it's not like one code says 500 employees and another says 450.

[00:17:03] Speaker 04:
They're into specific categories.

[00:17:05] Speaker 01:
So you look at the code and you say, okay, we qualify under this, but it's going up on appeal and we don't actually think it's the best code.

[00:17:11] Speaker 01:
So our safest bet is to participate in the appeal.

[00:17:14] Speaker 04:
I don't know that, I think that gives a lot more

[00:17:20] Speaker 04:
credit to the thought process that went into whether or not to appeal.

[00:17:24] Speaker 04:
I actually, I personally don't know why Palladian did not intervene at the time.

[00:17:29] Speaker 04:
I do think that had we intervened, or had Palladian intervened though, from a, from the perspective of what's going to be in the best interest of Palladian at that time, best interest likely would have been to support the government's position because that was the

[00:17:46] Speaker 04:
contracting officer saying this is the code and we were happy with that with that code and for any other potential offers that were out there and hadn't decided whether or not to compete on the solicitation then it could have led to even harder issues for them because they would have had to decide whether or not to intervene before having decided whether or not to even

[00:18:10] Speaker 04:
compete for the contract itself.

[00:18:13] Speaker 01:
Well, these pre-bid appeals always are in that circumstance, aren't they?

[00:18:17] Speaker 04:
Well, I don't think that they are, because an interested party at the Court of Federal Claims needs to be a prospective bidder or prospective offeror.

[00:18:26] Speaker 04:
And so, again, there'd be no real reason for a party to go to the Court of Federal Claims if they hadn't decided whether or not to bid yet.

[00:18:40] Speaker 01:
But the whole question of the pre-solicitation process of determining the proper code is to make sure that when the bid goes out, it goes out right.

[00:18:47] Speaker 01:
I mean, we've got a mechanism to allow the government to avoid as many hiccups or problems in the bidding process as they can, right?

[00:18:56] Speaker 04:
Right.

[00:18:56] Speaker 01:
So isn't the point that you sort of have to make an initial decision about whether you might want to bid once the solicitation goes out?

[00:19:04] Speaker 04:
Well, you certainly have to decide once a solicitation goes out whether or not to bid.

[00:19:09] Speaker 04:
The solicitation could provide three, six, nine months to actually draft the proposal.

[00:19:16] Speaker 04:
And so there's going to be a decision making process when solicitation is issued by a company of is this an opportunity that we want to pursue?

[00:19:24] Speaker 04:
Is this an opportunity that we have the ability to pursue?

[00:19:28] Speaker 04:
And that process of simply deciding could take a while.

[00:19:32] Speaker 04:
Meanwhile,

[00:19:33] Speaker 04:
from the perspective of an OHA appeal, that original OHA appeal has to be filed within 10 days of the solicitation being issued.

[00:19:42] Speaker 04:
And so long before bids are actually due.

[00:19:46] Speaker 04:
And then it's a, I believe, a 15-day period after the notice goes out that anyone who would like to participate, and the regulations are clear, by the way,

[00:20:01] Speaker 04:
parties may participate.

[00:20:02] Speaker 04:
It's a voluntary statement in the regulations.

[00:20:06] Speaker 04:
Anyone who would like to participate then has 15 days to file a... But the fact that exhaustion is required isn't voluntary, right?

[00:20:17] Speaker 01:
It's clear in the regulations that at least the government believes exhaustion is required.

[00:20:22] Speaker 04:
The government certainly thinks that exhaustion is required.

[00:20:25] Speaker 04:
I don't believe that the

[00:20:27] Speaker 04:
that 1102 language says that exhaustion is required by every single party.

[00:20:36] Speaker 04:
It's akin to a situation where the RFP is actually the party.

[00:20:39] Speaker 04:
The RFP is what is being resolved and decided by the SBA, OHA.

[00:20:46] Speaker 03:
In other words, your view is that exhaustion was satisfied, the issues were raised.

[00:20:52] Speaker 04:
The issues were raised, and the issues were not simply

[00:20:56] Speaker 04:
was the 611 code correct or was the 172 code correct?

[00:21:00] Speaker 04:
The issue, as OHA itself defined it, is what is the best code for this particular procurement?

[00:21:07] Speaker 04:
And so when Poladian Partners actually did file a new protest of Amendment 3, the OHA dismissed that saying these are the identical issues, i.e.

[00:21:22] Speaker 04:
what the NIACS code is that's required for this procurement.

[00:21:27] Speaker 03:
But the fact is that Palladian didn't exhaust its remedy.

[00:21:36] Speaker 04:
Palladian did not intervene.

[00:21:37] Speaker 04:
I don't know that Palladian has a requirement to exhaust its remedy because the remedy is the same.

[00:21:47] Speaker 04:
OHA is looking at the same

[00:21:50] Speaker 04:
the same issue.

[00:21:51] Speaker 04:
Ohai is looking at the same question no matter what.

[00:21:54] Speaker 04:
And this gets into some extent to what sort of exhaustion the government is looking for here.

[00:22:01] Speaker 04:
Judge Moore asked the question earlier about would simply filing a paper be sufficient?

[00:22:07] Speaker 04:
And I think this may have been the first time that the government has said, well, yeah, that would be sufficient.

[00:22:11] Speaker 04:
But then in the briefs and later in the argument,

[00:22:16] Speaker 04:
the government has said, well, it's important to exhaust because you need to hear from everyone what their...

[00:22:22] Speaker 04:
arguments and facts are?

[00:22:23] Speaker 00:
Well, that's because we want the agency to have the ability to have all the arguments before it to make the best possible decision.

[00:22:30] Speaker 00:
So if you follow Me Too brief, you wouldn't get in the judicial proceedings to be able to raise new and different arguments and new and different facts.

[00:22:37] Speaker 00:
That much I'm sure the government would agree with, and that would be their position, and that would seem to make sense.

[00:22:43] Speaker 00:
If you don't raise an issue before the administrative body, you're pretty often and almost always precluded from raising it in the judicial process.

[00:22:50] Speaker 04:
I'd actually argue here that this is far more a situation of remedial exhaustion as opposed to issue exhaustion.

[00:22:57] Speaker 04:
Actually, the Sims case that the government had cited to in its brief is an example of this.

[00:23:05] Speaker 04:
In that case, the court was looking at the administrative action of the Social Security Administration.

[00:23:12] Speaker 04:
it was challenged on an issue of issue exhaustion.

[00:23:15] Speaker 04:
There was no question in that case that the individual party had exhausted by going to appeal and going to the council.

[00:23:26] Speaker 04:
But there was a question of whether or not they had raised all of the issues at the time.

[00:23:31] Speaker 04:
And what the court in Sims said was that the SSA process was a far more inquisitorial process than adversarial process.

[00:23:38] Speaker 04:
And some of the touch points for

[00:23:42] Speaker 04:
The reason why was because the ALJ had a duty to investigate all facts and develop arguments both for and against granting benefits.

[00:23:50] Speaker 04:
The Commissioner had no representative before the ALJ.

[00:23:54] Speaker 04:
It permitted but didn't require filing a brief with the Council.

[00:23:58] Speaker 04:
And the Council is supposed to have evaluated the entire record to include new and material evidence.

[00:24:03] Speaker 04:
And there's a short form to request review.

[00:24:05] Speaker 04:
That's actually

[00:24:07] Speaker 04:
very similar to the regulatory scheme that's set up with respect to OHAP.

[00:24:13] Speaker 04:
An OHAP protester who doesn't think the code is correct doesn't need to suggest any other code since the OHAP protester itself can merely say

[00:24:25] Speaker 04:
We don't think that this code is proper.

[00:24:29] Speaker 01:
But even if it's true that we're only talking about remedial exhaustion here, Judge Moore's basic point, which is that it is not a substantial amount of paper that you have to submit.

[00:24:39] Speaker 01:
I mean, the regs tell you exactly what to submit.

[00:24:43] Speaker 01:
That remains true, does it not?

[00:24:45] Speaker 04:
Well, it would be true that to submit, a party that would like to submit or would like to intervene initially only needs to file a

[00:24:55] Speaker 04:
a letter saying we would like to intervene and what the regulations say is that parties may intervene and the OHA judge may grant the intervention on whatever terms the OHA judge would like to.

[00:25:07] Speaker 04:
I'd also like to point out that the difference here in terms of the by whom aspect of this regulation is important because it's a plain reading issue and when Congress and other agencies have wanted

[00:25:24] Speaker 04:
exhaustion by particular parties, they know how to ask that.

[00:25:28] Speaker 04:
So in SINs, there was a specific regulation to require that any individual after any final decision of the Commissioner of Social Security made after a hearing to which he was a party may obtain a review of such decisions by a civil action.

[00:25:45] Speaker 04:
Booth versus Turner said that no action shall be brought with respect to prison conditions

[00:25:51] Speaker 04:
under section 1983 of this title by any prisoner confined in any jail, prison, or other correctional facility until such administrative remedies are available as exhausted.

[00:26:03] Speaker 04:
And in Theodoropoulos versus INS, it again says the alien that requires that the alien has exhausted all administrative remedies.

[00:26:11] Speaker 04:
So I think in this situation, the plain language is important.

[00:26:15] Speaker 04:
And when agencies and regulatory bodies and Congress

[00:26:21] Speaker 04:
would require that individuals, each individual person or party exhaust, then they can write it in that way.

[00:26:34] Speaker 04:
Here, the individual fact, who Palladian is, what Palladian does, is really a material to the question that OHA was answering, which is we have an RFP here, we have a solicitation, and we have a

[00:26:50] Speaker 04:
set of NIACS codes in this manual and which of these NIACS codes best fit the procurement.

[00:27:00] Speaker 01:
Even if we agree with your position that the language might be a bit ambiguous as to whether an individual would have to exhaust or it merely is a question of allowing OHA an opportunity to assess it, there's still a question that given that kind of ambiguity that there's some deference that has to be given to the agency for purposes of assessing how you resolve that ambiguity.

[00:27:29] Speaker 04:
question is whether or not it's ambiguous.

[00:27:32] Speaker 04:
And we would argue it's not.

[00:27:34] Speaker 04:
But with respect to the deference that's given, deference may be given even in litigation to agencies that are interpreting.

[00:27:44] Speaker 04:
But that's only given where it's not part of the litigation position of the agency.

[00:27:52] Speaker 04:
And here, the government is really representing two agencies.

[00:27:56] Speaker 04:
It's representing both HHS and SBA.

[00:27:58] Speaker 04:
And with respect to SBA's interpretations of its regulations, all it's really said is we won't reconsider issues that have been raised with respect to their own OHA appeal.

[00:28:09] Speaker 04:
SBA itself hasn't actually weighed in on whether a party not represented at an OHA appeal can go to the Court of Federal Claims.

[00:28:20] Speaker 04:
They haven't answered the question about the Court of Federal Claims.

[00:28:22] Speaker 04:
They've only done it with respect to OHA.

[00:28:26] Speaker 04:
Otherwise, the interpretation that we've seen here today is something that benefits the government's position and so it shouldn't be... As you can see, Mr. Chud, your time has expired.

[00:28:38] Speaker 03:
Do you have one final thought?

[00:28:43] Speaker 04:
I would only add that the key case to what I was just referring to is Bowen versus Georgetown University Hospital.

[00:28:54] Speaker 04:
I said it's because it's not in the brief and that's 488 U.S.

[00:28:58] Speaker 04:
204 at 212.

[00:29:00] Speaker 04:
Thank you very much.

[00:29:02] Speaker 03:
This questioner has a couple of minutes, just under three minutes for rebuttal.

[00:29:09] Speaker 02:
With respect to the exhaustion question, Palladian raised numerous arguments in court that were never presented to OHA in the proceeding that was brought by Information Ventures.

[00:29:20] Speaker 02:
For example, it posed a different code and it argued that the code picked by OHA was improper precisely because Palladian was suggesting a different code, that code being the internet publishing code.

[00:29:34] Speaker 02:
It also made other arguments that the code chosen by OHA was incorrect because it did not fit within any of the illustrations, any of the examples.

[00:29:44] Speaker 02:
That argument also was never presented to OHA.

[00:29:48] Speaker 02:
And then it also made arguments based on other solicitations and arguments based on OHA precedent that were never presented to OHA.

[00:29:56] Speaker 02:
All of this could have been addressed by OHA if it had been properly presented to OHA by Palladian in the proceedings.

[00:30:06] Speaker 02:
With regard to the question of deference, here the government's interpretation of the OHA regulations is a reasonable interpretation.

[00:30:17] Speaker 02:
is the final decision maker.

[00:30:19] Speaker 02:
OHA is the SBA in this proceeding.

[00:30:23] Speaker 02:
The argument I hear is some attempt to put a division between OHA and SBA.

[00:30:31] Speaker 02:
That's not correct.

[00:30:32] Speaker 02:
OHA is the SBA and makes the final decision for the SBA.

[00:30:37] Speaker 02:
Here the regulations have been reasonably interpreted by the government

[00:30:42] Speaker 02:
And that interpretation is entitled to deference.

[00:30:46] Speaker 02:
And as I said, it is consistent with the language of the regulations, consistent with the multiple provisions of the regulations that require that there be notice to all interested parties and that parties include simply someone who has an interest.

[00:31:04] Speaker 02:
They don't even have to be an intervener.

[00:31:07] Speaker 02:
And our interpretation is consistent with

[00:31:10] Speaker 02:
general principles of administrative law.

[00:31:15] Speaker 02:
Further, this court has given deference to positions of the government that are taken in litigation, and there's no argument that deference should not be given just simply because this is the first time this issue has arisen.

[00:31:32] Speaker 03:
Thank you, Ms.

[00:31:34] Speaker 03:
Kershaw.

[00:31:34] Speaker 02:
We'll take the case on reside.