Information Sciences Corp., No. MSB-558 (November 18, 1996) Docket No. MSBE-96-9-9-12 UNITED STATES OF AMERICA SMALL BUSINESS ADMINISTRATION OFFICE OF HEARINGS AND APPEALS WASHINGTON, D.C. ______________________________ ) IN THE MATTER OF: ) ) Docket No. MSBE-96-9-9-12 Information Sciences Corp. ) ______________________________) DIGEST It is a well-established practice in proceedings before the Office of Hearings and Appeals to include arguments and briefs in both Appeal Petitions and Answers. A motion to reply to the SBA's Answer will be considered a request to amend an Appeal Petition rather than a request to submit a reply brief or to reply to an argument. A pleading addressing an Appeal Petition is properly called an "Answer" not a "Response." A showing of good cause is required before an Administrative Law Judge will permit an amendment or supplement to a pleading in an 8(a) proceeding. MEMORANDUM OPINION AND ORDER DENYING MOTION TO REPLY November 18, 1996 On October 31, 1996, Petitioner Information Sciences Corp. (ISC) filed a "MOTION FOR LEAVE TO FILE REPLY TO THE AGENCY'S RESPONSE TO APPEAL PETITION."[1] On November 4, 1996, the SBA filed an "OPPOSITION TO MOTION FOR LEAVE TO FILE REPLY." It is a well-established practice in proceedings before the Office of Hearings and Appeals to include arguments and briefs in both Appeal Petitions and Answers. Thus, ISC's motion will be considered as a request to amend its Appeal Petition rather than a request to submit a reply brief or to reply to the argument the SBA presented in its Answer. The regulation provides that, "[i]n 8(a) program appeals, amendments to pleadings and supplemental pleadings will be permitted by the Judge only upon a showing of good cause." 13 C.F.R. Section 134.207(c). Accordingly, ISC's motion to reply can only be granted upon a showing of good cause. ISC contends it must reply because it needs to address published case precedent, which the SBA relied upon in its Answer, and to argue that the SBA's reliance upon that case law is misplaced. Further, ISC contends that it should be able to reply to footnote 4 of the SBA's Answer because acceptance of the contention in that footnote would render ISC's appeal moot. Footnote 4 is an alternative argument for denying the appeal propounded by the SBA. The SBA relies upon 13 C.F.R. Sections 134.207(c), supra, and 134.211(b) in support of its opposition to the motion. Section 134.211(b) which provides that "[u]nless the Judge directs otherwise, the moving party will have no right to reply to a response . . . ." is inapposite because ISC is not attempting to reply to a motion--it is seeking to reply to a pleading. See 13 C.F.R. Section 134.100 (an answer is a pleading). The definition of pleading does not include a motion. Id. ISC seeks to present only additional argument, case authority to support its position, and rebuttal to the SBA's argument. The issues in this matter are clear and have been identified and addressed by the parties in the Appeal Petition and Answer. The published case law was always available to ISC, and ISC had the opportunity to make its argument on the law in its Appeal Petition. The fact that ISC was unable to anticipate all of the arguments and case authority cited by the SBA is not sufficient reason to permit it an additional opportunity to reargue its position. ISC neither seeks to allege a new ground for its appeal nor to dispute a factual assertion of which it first became aware when it received the Administrative Record or the SBA's Answer. Further, ISC has not presented any other sound reason which, in the interest of fairness, requires an additional opportunity to be heard in this matter. Whether good cause has been established is within the discretion of the Administrative Law Judge. ISC has not established that there is good cause warranting a reply to the SBA's Answer. The Motion for Leave to File a Reply is DENIED. _________________________ Richard S. Arkow Administrative Law Judge __________________ [1] What the SBA refers to as its "Response" should be called an "Answer." See 13 C.F.R. Section 134.206.