[00:00:00] Speaker 02: Our next case is Swift and Staley versus United States number 22-1601. [00:00:06] Speaker 02: Councilor Cook, you have five minutes of rebuttal, is that correct? [00:00:12] Speaker 03: That's correct, your honor. [00:00:13] Speaker 02: Okay. [00:00:16] Speaker 02: Everybody get their water. [00:00:19] Speaker 03: Sorry, little parts today. [00:00:22] Speaker 02: OK, you may begin, sir. [00:00:25] Speaker 03: Your honors, and may it please the court, my name is Danny Cook for the appellant Swift and Staley, Inc. [00:00:31] Speaker 03: There's a long procedural history of this case, which is an important history. [00:00:36] Speaker 03: But the issue on appeal today is a singular issue, and it's a straightforward one. [00:00:42] Speaker 03: Whether the Small Business Administration, the SBA's Office of Hearings and Appeals, I'm going to call that OHA, violated the law, [00:00:51] Speaker 03: by finding Swift and Staley other than small based on a theory of affiliation through negative control. [00:00:58] Speaker 03: We've discussed in our briefs that OHA did violate the law with this finding, and the Court of Federal Claims should have reached that conclusion. [00:01:09] Speaker 03: There's several reasons for this. [00:01:11] Speaker 03: First, the party that initiated this litigation, the protester that challenged Swift and Staley's size in the first instance, said nothing about affiliation through negative control. [00:01:23] Speaker 02: But that issue was brought up before, correct? [00:01:28] Speaker 03: Respectfully, Your Honor, no. [00:01:29] Speaker 03: The protest was filed based on a theory that involved a regulation. [00:01:36] Speaker 03: that the Court of Federal Claims subsequently found to be not applicable. [00:01:40] Speaker 03: So the initial basis for the protest that we obviously asserted that that legal argument had no merit, the Court of Federal Claims agreed with us. [00:01:51] Speaker 00: That's all the joint venture stuff, right? [00:01:53] Speaker 03: That's right. [00:01:53] Speaker 03: It's the proportionate share populated on the populated issue. [00:01:56] Speaker 00: But what difference does it make? [00:01:58] Speaker 00: Are you saying that? [00:01:59] Speaker 00: that OHA can't look at the record or whatever the office below that, the initial deciding people, can't also undertake their own view of whether these people are small businesses or not? [00:02:12] Speaker 03: Your Honor, they absolutely can, and they did not. [00:02:15] Speaker 03: So the second point here is that not only the protester did not raise this issue, but the area office, that's the body within the Small Business Administration that is by law tasked with investigating, looking, [00:02:29] Speaker 03: They reached no conclusions about. [00:02:32] Speaker 00: Well, that's because they account against you on the other grounds, right? [00:02:36] Speaker 00: Correct. [00:02:36] Speaker 00: They didn't reach this. [00:02:38] Speaker 03: They did not reach it at all. [00:02:39] Speaker 03: And the OHA, at that point in time, when we appealed their legal obligation, their jurisdiction was to. [00:02:46] Speaker 00: Here's the problem. [00:02:47] Speaker 00: Didn't you raise this? [00:02:49] Speaker 03: Your honor, you've brought up what is the crux of the issue. [00:02:52] Speaker 03: Did we, as the party whose size has been challenged, raise an issue for the purposes of the regulation that matters here? [00:03:00] Speaker 03: 13 CFR 134.316C. [00:03:04] Speaker 03: the regulation that says an OHA judge shall not. [00:03:06] Speaker 00: I mean, you certainly suggested in your papers that you weren't also barred because of this negative limitation. [00:03:14] Speaker 00: So there's a structural argument in your papers about this issue, right? [00:03:18] Speaker 03: Your Honor, you are absolutely correct. [00:03:19] Speaker 03: There is a discussion, a meaningful, substantive discussion. [00:03:25] Speaker 03: It was not in response to an allegation that had been raised. [00:03:28] Speaker 03: It was a response to [00:03:31] Speaker 03: to illustrate the problems with the argument that had been raised. [00:03:36] Speaker 03: It was a... So it was there. [00:03:39] Speaker 00: I really don't understand all this procedural jousting. [00:03:42] Speaker 00: Sure. [00:03:43] Speaker 00: Is there something you think you would have put in the record on this? [00:03:47] Speaker 03: Yes, Your Honor. [00:03:48] Speaker 03: Absolutely. [00:03:50] Speaker 03: And that is the crux of the issue is that had, let's say hypothetically, how should this have played out, the reference in our response to the size protest, the discussion that you just mentioned, had the area office [00:04:05] Speaker 03: believed that that was a relevant area to look into, they could have and should have asked us specific questions, given us a chance to respond and provide the context surrounding that operating. [00:04:17] Speaker 00: What kind of information would you have put in that's not already there? [00:04:19] Speaker 00: And I know some of this stuff is confidential, so I'm not asking you about that. [00:04:23] Speaker 00: No, no, that's fine. [00:04:23] Speaker 00: But what kind of information? [00:04:25] Speaker 00: And did you tell the Court of Federal Claims these are the categories that if we had been given the opportunity, we would have told [00:04:33] Speaker 00: OHA and had the regional office consider it. [00:04:38] Speaker 03: Yes. [00:04:38] Speaker 03: Yes to the answer to your second question. [00:04:41] Speaker 03: We did discuss this in oral arguments at the court, the Court of Federal Claims. [00:04:47] Speaker 03: The answer to what would have been provided is, I think, [00:04:51] Speaker 03: well illustrated by one of the cases that we've cited in our briefs, Clement. [00:04:58] Speaker 03: And it talks about a situation where the plain language of an operating agreement might suggest that the parties have certain rights. [00:05:06] Speaker 03: But there can be countervailing things that are not in the plain language of that operating agreement. [00:05:11] Speaker 03: In that case, it was a corporate law in the state of Alabama that undermined one of the alleged rights that the minority party had. [00:05:20] Speaker 00: But you're not arguing anything like that, because that you could have raised to the Court of Federal Claims. [00:05:26] Speaker 00: Your Honor, respectfully, the- I was asking, did you specifically tell the Court of Federal Claims, if this had been properly raised, and if we were on notice, here is the one, two, three pieces [00:05:41] Speaker 00: evidence, not legal argument, because you can make the legal argument to the Court of Federal Crimes, evidence that we would have put in. [00:05:47] Speaker 03: Your Honor, the answer is yes. [00:05:49] Speaker 03: There was a declaration by the company's president, who is actually here today, describing why the plain language of the operating agreement, when read on the four corners of the paper, does not explain the context and does not articulate why, as a practical matter, [00:06:10] Speaker 03: Negative control cannot be exercised. [00:06:13] Speaker 03: It is not a situation where they had the right and didn't exercise it. [00:06:19] Speaker 03: It is quite literally the type of negative control that a minority owner can exert [00:06:28] Speaker 03: a control over ordinary business actions that the provisions in the operating agreement that suggested that they were ordinary business actions are not in fact in p m a's case ordinary business actions for reasons that again are not clear on the face of the operating agreement but make a lot of sense when you hear the company president [00:06:49] Speaker 03: describe how this entity actually operates and what its purpose is. [00:06:54] Speaker 02: So that was something... Just to be clear, Counselor, isn't it the case that SSI expressly argued to the area office that SSI lacked negative control? [00:07:08] Speaker 02: Your Honor, it is absolutely correct that we... So with respect to the issue of whether OHA wrongly considered [00:07:17] Speaker 02: the negative control because it raised it so respondly. [00:07:21] Speaker 02: If you argued it before, if you raised the issue before the area office, then I don't see a problem with the OHA considering that issue. [00:07:33] Speaker 03: Your honor, I would say I would agree with you if you consider our discussion of it raising the issue. [00:07:40] Speaker 03: And our position is that raising an issue in the context of this particular regulatory provision is not [00:07:48] Speaker 03: the party whose size is being challenged, throwing out another basis for its size to be undermined? [00:07:55] Speaker 03: No, it's someone who is challenging the size, bringing it up. [00:07:59] Speaker 00: So Akima could have raised the issue. [00:08:05] Speaker 00: The SBA people are not bound by the arguments from the other company raising the size protest. [00:08:11] Speaker 00: So they can raise arguments on their own. [00:08:14] Speaker 00: So of course it makes sense for you to come in and say, well, yeah, that company is wrong on the arguments it raised. [00:08:20] Speaker 00: But we're aware of these other things that you sometimes use. [00:08:24] Speaker 00: So we're going to say, those don't qualify either. [00:08:27] Speaker 00: Why isn't that raising the issue in the records? [00:08:31] Speaker 03: So your honor, if I may, the analogy that I would put out is we absolutely threw out a fishing line that if the area office had bit that bait, we would have raised it. [00:08:42] Speaker 03: In other words, it's a raised issue when it becomes an issue in dispute. [00:08:47] Speaker 02: But when you cast that fishing line, you can't later complain that the OHA wrongly considered the issue. [00:08:53] Speaker 02: You already raised it. [00:08:54] Speaker 00: I mean, the regional office, is it a... It's a local area office. [00:08:59] Speaker 00: I'm sorry. [00:09:00] Speaker 00: We call the regional offices in the VA stuff, regional offices, whatever the... We call it area regional. [00:09:05] Speaker 00: Area office. [00:09:06] Speaker 00: But they didn't need to address that argument, because they ruled against you on another thing. [00:09:11] Speaker 00: And I think they could have said, oh, in support, we also disagree and find negative control. [00:09:19] Speaker 03: And had they said that, we would be having a very different discussion now. [00:09:24] Speaker 00: Why is it necessary? [00:09:27] Speaker 00: that the OHA is not confined to just the rationale raised by the regional offices. [00:09:35] Speaker 00: Isn't it allowed to look at anything that was raised before the regional office? [00:09:40] Speaker 00: Let me ask you this. [00:09:42] Speaker 00: What if the other company had raised both arguments and the office had said the area office had only ruled on the joint venture? [00:09:52] Speaker 03: Then it would absolutely be raised. [00:09:54] Speaker 03: absolutely the all hot same record saying that it is if i keep us protest a footnote said in the event were wrong on this issue that they ultimately become wrong on we also know affiliation through negative control [00:10:10] Speaker 03: that would have raised the issue but it came it didn't do that and the area office although they absolutely could have responded to what we put in that in that response and said but again they didn't need to because they'd already found the basis to declare you not small they did not correct and so what what what i'm really troubled about this is the regulation you're relying on is is oha's regulation about you know not considering issues not raised for [00:10:39] Speaker 00: Why is it, you know, why are we going to care whether they think an issue was raised or not? [00:10:45] Speaker 00: They looked at it and they said it was raised sufficiently for us to make a decision on that. [00:10:50] Speaker 00: We're going to make the decision. [00:10:52] Speaker 00: This is procedural stuff up there. [00:10:53] Speaker 00: If they thought it hadn't been raised sufficiently, why isn't it up to them? [00:10:58] Speaker 03: Because of the prejudice, Your Honor, because the reason. [00:11:01] Speaker 00: Well, that's a different question now. [00:11:02] Speaker 00: So we've been jousting about whether it's raised or not. [00:11:06] Speaker 00: Now you have to show me why there's prejudice and why that OHA's decision and then subsequently the Court of Federal Claims decision that it wasn't arbitrary and capricious is infected with prejudicial error. [00:11:21] Speaker 03: So as to why do we care about what OHA does and what OHA decides, it's because OHA, as a quasi-judicial body, is subject to procedural rules, laws that bind them. [00:11:34] Speaker 00: They can waive their procedural rules, probably. [00:11:37] Speaker 03: Your Honor, I'm not aware of any [00:11:39] Speaker 03: statute or regulation or case law. [00:11:42] Speaker 00: Well maybe because it's an administrative regulation they can't. [00:11:44] Speaker 00: We certainly as a court can decide issues that aren't necessarily raised to us. [00:11:49] Speaker 00: We don't have to apply waiver or we don't have to apply forfeiture. [00:11:53] Speaker 00: But again, they found it was raised. [00:11:57] Speaker 00: So the documents are the documents. [00:12:01] Speaker 00: What's arbitrary and capricious about the view based upon the record here? [00:12:05] Speaker 03: What's arbitrary and capricious, Your Honor, is that the procedures are laid out to protect the due process and structure. [00:12:13] Speaker 00: So you're not talking about the merits of the decision? [00:12:16] Speaker 03: The merits of the decision are a secondary issue. [00:12:18] Speaker 03: We do believe, obviously, if it were to be explored by the area office, [00:12:24] Speaker 03: At the level of detail that we think it should have, we believe the appropriate conclusion would have been no negative control for the reasons that are explained in the declaration from the company president that never got admitted. [00:12:37] Speaker 03: So the critical threshold issue is whether it was appropriate to treat our discussion of this topic as raising the issue. [00:12:46] Speaker 03: And we firmly believe it was not, because raising an issue [00:12:50] Speaker 03: in the context of the OHA case law on this, and there is a lot of OHA case law on this, is bringing up a basis for finding a company other than small, and it's an allegation, it's a count. [00:13:04] Speaker 03: It's not a discussion by the party defending itself. [00:13:07] Speaker 03: The government has not cited, and we are not aware of, a single case [00:13:14] Speaker 03: where an issue was raised by the party whose size is being challenged. [00:13:20] Speaker 03: And logically, when you think about it, a party whose size is being challenged and puts out, like we did, a defense to a hypothetical allegation that was never made, yes, we open the door for that issue to be raised. [00:13:37] Speaker 03: We open the door because it's in the record, and a party who is [00:13:41] Speaker 03: In that posture, trying to find us other than small, the protester or the area office could have bitten that bait. [00:13:49] Speaker 03: And then we've got a situation where we can provide additional responses, additional documentation. [00:13:56] Speaker 03: It becomes a raised issue. [00:13:58] Speaker 02: OK. [00:13:58] Speaker 02: You're into your rebuttal time. [00:14:00] Speaker 03: Oh. [00:14:00] Speaker 03: Your Honor, then if no further questions, I'm going to save those extra minutes. [00:14:03] Speaker 02: Thank you. [00:14:05] Speaker 02: Councilor Weiser? [00:14:07] Speaker 02: Is it wiser, whizzer, whizzer? [00:14:10] Speaker 01: Whizzer. [00:14:10] Speaker 01: May it please the court. [00:14:11] Speaker 01: I'd like to start just by making sure the record is clear from some of Judge Hughes' questions. [00:14:16] Speaker 01: The area office in its very first decision did address affiliation. [00:14:20] Speaker 01: And we can look. [00:14:22] Speaker 01: I'm happy to point to the record citations, but it's between appendix 3838, 3840. [00:14:27] Speaker 01: And then there's some of the sort of boilerplate scope and standard review that it cited in 3836 and 37. [00:14:36] Speaker 01: But what the area office did in the very first decision was it looked at the argument that Swift and Staley had presented. [00:14:42] Speaker 01: It said, OK, we've got kind of two things going on here. [00:14:45] Speaker 01: One, is there a joint venture issue that we have to worry about? [00:14:49] Speaker 01: And then two, if not, we have to consider affiliation, as Swift and Staley's own argument to the area office suggested. [00:14:57] Speaker 01: And the area office cited specifically to those portions of the arguments that Swift and Staley raised. [00:15:04] Speaker 01: It cited to the specific affiliation regulations related to control, including negative control. [00:15:09] Speaker 01: And then it gave a decision. [00:15:11] Speaker 01: It said that the parties are not otherwise affiliated. [00:15:16] Speaker 01: And it listed at least some of the elements, including the minority ownership percentage and things like that. [00:15:20] Speaker 01: So the area office, we will admit, it was not as thorough a discussion as a joint venture piece. [00:15:25] Speaker 01: But the area office did decide the issue of negative control. [00:15:31] Speaker 01: It was in the first OHA opinion where that didn't get decided because the only issue OHA reached was the joint venture regulations It affirmed the area offices joint venture application and said yes, that was correct It was correct for the area office to have said the joint venture regulation and that's what came up first That's correct your honor and so then it went back to OHA [00:15:53] Speaker 01: Now, I do want to point out before we move forward in the procedural history that at the time we were before the Court of Federal Claims first, Swift and Staley agreed with all of that. [00:16:06] Speaker 01: And so if we look at appendix 4029, we look at the brief they submitted to the Court of Federal Claims in the first round of litigation. [00:16:16] Speaker 01: Swift and Staley, in the middle paragraph, made an argument to the Court of Federal Claims that said, if you agree with us, that SBA, I'm sorry, 4029, your honor. [00:16:29] Speaker 01: And so this was in the context of Swift and Staley's argument to the Court of Federal Claims in the first round, saying, if you agree with us, [00:16:34] Speaker 01: that SBA got the joint venture regulation issue wrong, there is no need to remand because we have the alternative finding already in the record. [00:16:42] Speaker 01: We have the alternative finding from the area office that were not affiliated, and so the court can simply reverse. [00:16:48] Speaker 01: And they said, as detailed in the area office's size determination, however, Swift and Staley's business relationship with Northwind does not otherwise create affiliation. [00:16:57] Speaker 01: They added a footnote, footnote 8, where they said, this is a logical conclusion. [00:17:00] Speaker 01: We don't challenge SBA's determination on this point. [00:17:02] Speaker 01: And then they laid out all the same points they made to SBA below, starting from the very beginning of the case. [00:17:08] Speaker 01: It was only when that position and argument became inconvenient after Ohau revisited that issue that Swift and Staley suddenly turned around and said, wait a minute, that issue has never been raised or decided. [00:17:18] Speaker 01: But back at the point in which it was advantageous for them from a litigation standpoint, they said the opposite. [00:17:23] Speaker 01: And the Court of Federal Claims expressly noted that point in its decision, said that was one of the key reasons it simply didn't find Swift and Staley's arguments credible the second time around, that this issue had not been raised by them in a substantive manner as they asserted below and as they assert to this Court. [00:17:41] Speaker 01: And I would just make one other point on that, looking at the regulatory language itself as well. [00:17:47] Speaker 01: Section 121.1009 specifies the scope of what the area office is to review in the basis of its determination. [00:17:56] Speaker 01: Almost all of Swift and Staley's briefing here focuses on the first sentence, which says that the first half of the sentence, the size determination, will be based primarily on the information supplied by the protester. [00:18:10] Speaker 01: or the entity requesting the size determination. [00:18:12] Speaker 01: But the sentence goes on. [00:18:14] Speaker 01: It says, and that provided by the concern whose size status is at issue. [00:18:20] Speaker 01: So the regulation is plain, that it's not simply what ACMA said about the protest. [00:18:25] Speaker 01: It's also the information provided by the protester, which I think we're all in agreement here, included this argument about negative control. [00:18:31] Speaker 01: They submitted the operating agreement. [00:18:33] Speaker 01: They submitted the only scope of evidence that SBA needed and relied upon to make its negative control determination in the first instance to the area office, because it understood, and subsection C says that the concern whose size is under consideration has the burden of proof. [00:18:49] Speaker 01: They understood that it was their burden not simply to address the joint venture allegation that ACMA raised. [00:18:56] Speaker 01: It was their burden to prove their size. [00:18:58] Speaker 01: And the area office makes that decision clear in both instances. [00:19:00] Speaker 01: It's not a narrow question as to simply how are these joint venture receipts allocated. [00:19:05] Speaker 01: The question is, is Swift and Staley small? [00:19:08] Speaker 01: That was the question before the area office. [00:19:11] Speaker 01: That was the question where Swift and Staley had the burden to meet to prove they are small. [00:19:15] Speaker 01: And they attempted to do so. [00:19:16] Speaker 01: And they did so by addressing both points, the joint venture regulation and the possibility of affiliation through affirmative or negative control. [00:19:25] Speaker 01: like to address a couple of the points about the prejudice piece, because I think that's another point where it's difficult to understand exactly how this would have come out differently or what additional evidence Swift and Staley could have submitted. [00:19:36] Speaker 01: They raised below and here a number of arguments about sort of this informal process for the area office. [00:19:43] Speaker 01: They could have had a back and forth. [00:19:44] Speaker 01: They could have had a conversation. [00:19:46] Speaker 01: We can see in the record at 3765 that that process did actually occur here as well. [00:19:54] Speaker 01: 3765 is an email from Mr. Cook himself to the area office representative. [00:20:01] Speaker 01: Discusses a phone call that they had. [00:20:03] Speaker 01: Says, we're following up on this phone call in the discussion. [00:20:05] Speaker 01: Says, we want to reiterate and relay out our position so we make sure it's clear. [00:20:09] Speaker 01: And they go through the exact same points they made in their briefing. [00:20:12] Speaker 01: Again, they talk about not just the joint venture regulations. [00:20:14] Speaker 01: They also talk about the possibility of affiliation, the possibility of affirmative and negative control, and the references to the specific regulation that [00:20:24] Speaker 01: SBA ultimately applied. [00:20:26] Speaker 01: So that process was followed. [00:20:27] Speaker 01: They had that opportunity. [00:20:29] Speaker 01: There was some discussion about the declaration, about business practices. [00:20:33] Speaker 01: The Court of Federal Claims had that issue before. [00:20:36] Speaker 01: It definitively decided that was irrelevant, because as OHA found and as the regulation may explain, what is the relevant standard to review is what information is in the operating agreement. [00:20:47] Speaker 01: And so extraneous declarations are not necessarily relevant. [00:20:51] Speaker 01: Beyond all that, there's procedures that let parties submit evidence to oh how that Swift and Saley used here. [00:20:58] Speaker 01: When OHA issued its notice saying that we believe there is an issue of affiliation through negative control, we want to ensure that the parties brief that issue, Swift and Staley responded to that and said, we would like permission to submit what we believe are amendments to the operating agreement so that the court has the full set of information it needs to make its determination on the basis of the operating agreement. [00:21:21] Speaker 01: And it did so, and OHA accepted that. [00:21:23] Speaker 01: At no point did they ever suggest that other information was necessary. [00:21:28] Speaker 01: They understood and exercised their rights to submit that information, and they chose not to. [00:21:32] Speaker 02: Was part of what was submitted a declaration from the CEO? [00:21:36] Speaker 01: It was not, Your Honor. [00:21:38] Speaker 01: So when they understood expressly that affiliation through negative control was going to be addressed by OHA because it provided an affirmative notice, and it didn't necessarily have to, but it was trying to put the parties on adequate notice of what it believed to be a relevant issue that had not yet been thoroughly discussed in the prior OHA proceedings. [00:21:57] Speaker 01: When it did so, Swift and Stanley fairly immediately said, we would like to use our rights under the regulations to submit additional evidence that we believe is relevant to that point. [00:22:05] Speaker 01: And they did so. [00:22:06] Speaker 01: were what they purported to be amendments to the operating agreement. [00:22:09] Speaker 01: Now, it ultimately turned out they didn't actually amend the operating agreement, and so OHA didn't have to consider them. [00:22:14] Speaker 01: But they used that right. [00:22:16] Speaker 01: They never attempted to submit this declaration, which, again, just goes to the point that if they believed it was relevant at the time, they had the opportunity and just didn't use it. [00:22:26] Speaker 01: We believe that the issues here [00:22:31] Speaker 01: are clearly within this affirmative point about the procedural violation. [00:22:34] Speaker 01: We did brief the alternative issues about whether the underlying decision was arbitrary or capricious, whether the denial of their supplementation of the record was abuse of discretion. [00:22:44] Speaker 01: We're happy to rest on the briefs on those unless the court has any questions. [00:22:47] Speaker 01: We thank you for your audience. [00:22:48] Speaker 01: Thank you, Your Honor. [00:22:50] Speaker 02: Counsel, will we restore your time to three minutes? [00:22:52] Speaker 03: Your honor, Mr. Whistler made a bunch of fantastic points. [00:22:56] Speaker 03: All of them miss a critical, critical, critical distinction in SBA OHA case law. [00:23:02] Speaker 03: And that is discussions about affiliation generally are totally different than affiliation through negative control. [00:23:10] Speaker 03: There is a case directly on point, Chu and Gassman, that we've cited throughout our brief. [00:23:17] Speaker 03: where an OHA judge, in reconsidering his own decision, says negative control, affiliation through negative control, is distinct from other types of affiliation. [00:23:29] Speaker 03: And so the statement that Mr. Wisser read from the area office of size determination talks about ownership interests, affiliation through theoretical stock ownership. [00:23:41] Speaker 03: That's what they [00:23:43] Speaker 03: could have looked at and apparently looked at there is nothing in the record to suggest that the area office explored affiliation through negative control all that is in the record is our discussion of it [00:23:59] Speaker 03: which certainly created an opportunity for the area office to do what the area office always has the right to do, which is look into whatever they think is relevant, but nothing afterwards to suggest that they thought negative control was relevant. [00:24:14] Speaker 03: And OHA, after the Court of Federal Claims reaches its first decision and OHA remands it, [00:24:21] Speaker 03: The remand order from OHA to the area office says nothing about, hey, there were two arguments that you looked at. [00:24:27] Speaker 03: The first one the court just said is wrong. [00:24:29] Speaker 03: now look at this negative control issue, there's nothing about that. [00:24:33] Speaker 03: If this was on OHA's mind, if this was an issue that had been raised, why was that not put in the order? [00:24:42] Speaker 03: The second size determination, again, where the area office has now been told that their understanding of the JV rule is wrong, [00:24:51] Speaker 03: If negative control had been an issue, why is it not in the area office size determination? [00:24:57] Speaker 03: It's nowhere. [00:24:58] Speaker 03: And the opportunity, the alleged opportunity we had, was not the same type of opportunity you get at the area office. [00:25:07] Speaker 03: OHA's job is to review size determinations for violations of fact, to see if there's clear errors of fact or clear error of law. [00:25:17] Speaker 03: That is what their jurisdiction is. [00:25:19] Speaker 03: It is not to bring up an issue. [00:25:22] Speaker 03: that, again, was not in the amended or original size determinations. [00:25:27] Speaker 03: The operative legal document upon which these appeals rest, the size determinations, are silent on this issue. [00:25:37] Speaker 03: And so OHA says, we want you to brief this issue. [00:25:41] Speaker 03: And they don't give the opportunity for us to go through the process of knowing what the actual allegations are. [00:25:49] Speaker 03: There are no allegations before we brief this about what provisions in the operating agreement might give rise to negative control. [00:25:57] Speaker 03: There's nothing. [00:25:58] Speaker 03: There's a suggestion that we should talk about it. [00:26:00] Speaker 03: And so fundamentally, the issue here is that practically, we have not had the opportunity to address this issue at the body that is legally responsible for addressing it, the area office. [00:26:15] Speaker 03: Simple as that. [00:26:17] Speaker 03: If your honors don't have any other further questions, we finish our arguments. [00:26:20] Speaker 02: Thank you. [00:26:21] Speaker 02: We thank all the parties for their arguments today. [00:26:23] Speaker 02: This court now remains in resource.