As I’m sure most other attorneys can commiserate with, I often have a recurring nightmare that I miss a filing deadline. Doing so can lead to terrible results: dismissed cases and, in some cases, sanctions against the attorney. For this reason, we always check, double-check, and triple-check our filing deadlines, and strive to file documents early, when possible.
Given my fear, I gain no pleasure in reading about missed filing deadlines, especially when the goof is the subject of a matter outside the attorney’s control.
But as a recent decision by the SBA’s Office of Hearings and Appeals demonstrates, even the most sympathetic of excuses won’t excuse a late appeal filing.
By way of background, the SBA’s regulations include strict deadlines for appealing a size determination. Under 13 C.F.R. § 134.304(a), such an appeal “must be filed within 15 days after receipt of the formal size determination.” The regulations then go on to state that “[a]n untimely appeal will be dismissed.” 13 C.F.R. § 134.304(c) (emphasis added).
In 2019, as part of an application to the HUBZone Program, the SBA conducted a formal size determination of Mid-Continent Group, LLC. On November 5, the Area Office found that Mid-Continent was other-than-small under its primary NAICS code. Thus, Mid-Continent’s appeal was due no later than November 20; however, due to some unfortunate events—including a poor internet connection and a tragedy involving one of Mid-Continent’s attorney’s family members—the appeal was not received until November 21.
Responding to the OHA’s inquiry as to why the appeal shouldn’t be dismissed as untimely, Mid-Continent requested leniency. It noted that no prejudice would befall any party if the appeal was considered, as it stemmed from an application to the HUBZone Program as opposed to a response to a particular solicitation. Moreover, the delay was only by one day, and was caused by “an event extremely devastating to the entire firm[.]”
OHA was sympathetic to this position. But even still, the OHA was required to dismiss the appeal under its regulations, as it was received after the 15-day deadline. The OHA wrote:
Although Appellant provides insight as to why the filing of the appeal petition was untimely, the regulation is clear. While I appreciate the unfortunate circumstances that led to the delay in transmission of the instant appeal, Appellant is asking me to exercise a discretion that the regulation denies me. . . . What Appellant is asking me to do is to, in effect, waive a statute of limitations, and that I cannot do. The regulation mandates that I dismiss this appeal.
In other words, the OHA concluded that its hands were tied, so to speak, and dismissed the appeal.
As an attorney, I read this decision and thought, “there but for the Grace of God go I.” Still, there are nuggets of wisdom that can be gleaned from Mid-Continent’s misfortune:
- When applying for any of the SBA’s socio-economic programs, the prerequisite is that the company be a small business. If there’s any doubt, the SBA can (and oftentimes will) request a formal size determination.
- Filing deadlines are strict. If you are considering filing a size protest or appealing a size determination, seek counsel as soon as possible.
- Triple-check deadlines, and aim to file as early as possible. Given the crush of other matters, sometimes filings occur on the day they are due. When that happens, try to file as early in the day as possible, and reach out to the office to confirm that the filing was received. If not, have an alternate plan for ensuring that the filing is timely received.
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