Henze Industries, No. SDBA-111 (November 4, 1999) Docket No. SDBA-99-06-24-09 UNITED STATES OF AMERICA SMALL BUSINESS ADMINISTRATION OFFICE OF HEARINGS AND APPEALS WASHINGTON, D.C. _______________________________ ) IN THE MATTER OF: ) Docket No. SDBA-99-06-24-09 ) Henze Industries ) Decided: November 4, 1999 ) Petitioner ) _______________________________) APPEARANCES Daniel G. Cohen, Esq. Charfoos, Reiter, Peterson, Holmquist & Pilchak, P.C. For Henze Industries LaTonia M. Fisher, Esq. For the Small Business Administration DIGEST The deliberative process privilege applies to a memorandum, prepared by a Business Opportunity Specialist for the review of the Associate Administrator for Small Disadvantaged Business Certification and Eligibility (AA/SDBCE), prior to the AA/SDBCE's decision on the application. The attorney-client privilege applies to a memorandum from Agency counsel to an Agency official, even if that official will not make the ultimate decision on the matter discussed in the memorandum. This Office will not consider on appeal new evidence not before SBA at the time of its determination, unless the Administrative Judge determines that manifest injustice would occur if he does not do so. This Office will not consider new evidence on appeal if the evidence addresses an issue irrelevant to the appeal. To sustain its burden of persuasion under the "preponderance of the evidence" standard, the SDB applicant must present to the AA/SDBCE evidence which is of greater weight, or more convincing, than the evidence offered in opposition; that is, the evidence as a whole must show that social disadvantage is more probable than not. An individual has failed to establish, by a preponderance of the evidence, individual social disadvantage because of gender, where the Administrative Record contains no evidence of any disadvantage that individual might have suffered attributable to gender. The publication of regulations in the Federal Register constructively notifies all affected of their content, and they are binding regardless of their actual knowledge of the regulations' content or of the hardship resulting from their innocent ignorance of their content. The Business Opportunity Specialist's allegedly erroneous advice regarding the requirements of the social disadvantage regulation, even if actually given, does not estop SBA from applying the correct requirements in determining eligibility. INITIAL DECISION HOLLEMAN, Administrative Judge: Jurisdiction This appeal petition is decided under the Small Business Act of 1958, 15 U.S.C. Sections 631 et seq., and 13 C.F.R. Parts 124 and 134 (1999). Issues Whether the deliberative process privilege applies to a memorandum, prepared by a Business Opportunity Specialist for the review of the Associate Administrator for Small Disadvantaged Business Certification and Eligibility (AA/SDBCE), prior to the AA/SDBCE's decision on the application. Whether the attorney-client privilege applies to a memorandum from Agency counsel to an Agency official, when that official will not make the ultimate decision on the matter discussed in the memorandum. Whether this Office will consider on appeal new evidence not before SBA at the time of its determination. Whether this Office will consider new evidence on appeal if the evidence addresses an issue irrelevant to the appeal. What is the type of evidence an SDB applicant must present under the "preponderance of the evidence" standard. Whether an individual has failed to establish, by a preponderance of the evidence, individual social disadvantage because of gender, where the Administrative Record contains no evidence of any disadvantage that individual might have suffered attributable to gender. Whether regulations published in the Federal Register are binding on all affected, regardless of whether they had actual notice of the regulations' content, or experienced hardship because of their innocent ignorance of the regulations' content. Whether the Business Opportunity Specialist's allegedly erroneous advice regarding the requirements of the social disadvantage regulation, even if actually given, may estop SBA from applying the correct requirements in determining eligibility. I. BACKGROUND A. Procedural Background On March 22, 1999, Henze Industries (Petitioner) applied for certification as a Small Disadvantaged Business (SDB) to the Small Business Administration's (SBA or Agency) Acting Associate Administrator for Small Disadvantaged Business Certification and Eligibility (Acting AA/SDBCE). 13 C.F.R. Section 124.1008(a). On April 1, 1999, SBA's Business Opportunity Specialist (BOS) sent Petitioner a three-page instructional document titled "Preponderance of the Evidence", and requested Petitioner to submit relevant information relating to Ms. Canning's social disadvantage. Petitioner responded on April 6, 1999. On May 11, 1999, the Acting AA/SDBCE denied certification. Petitioner, through counsel, filed an Appeal Petition with this Office on June 24, 1999. On June 29, 1999, the Administrative Judge issued a Notice and Order (June 29th Order), ordering SBA to file either the Administrative Record (AR) within 15 days of service of the Appeal Petition, or a statement that it would file the AR, together with an Answer, within 45 days of service of the Appeal Petition. On July 8, 1999, SBA complied with the June 29th Order. On August 6, 1999, SBA timely filed the AR, together with its Answer. SBA requested permission to withhold portions of two documents, claiming the deliberative process and the attorney- client privileges. On August 16, 1999, Petitioner objected to SBA's claims of privilege. On August 17, 1999, the Administrative Judge issued an Order (August 17th Order) which ordered the SBA to respond to Petitioner's objection, and to serve upon Petitioner a copy of Exhibit E, which Petitioner asserted was missing from its copy of the AR. On August 24, 1999, SBA complied with the August 17th Order. B. The SDB Application Petitioner was incorporated in 1979. Its primary Standard Industrial Classification code is 3465, Automotive Stampings, with a corresponding 500-employee size standard. On January 3, 1994, Judith A. Canning, the individual on whom Petitioner's claim of eligibility is based, became Petitioner's 52% shareholder. Ms. Canning is Petitioner's President and CEO. William D. Canning, Ms. Canning's husband, is Petitioner's other shareholder, and its Vice President, Secretary, and Treasurer. Petitioner asserts Ms. Canning is socially disadvantaged because she is a woman. The AR contains the "Preponderance of the Evidence" instructions, which cite to and discuss the social disadvantage regulation at 13 C.F.R. Section 124.103. AR, Tab D at 2-4. The AR also contains Petitioner's April 6, 1999 response to the BOS' April 1st request for information, which articulates its claim that Ms. Canning experienced cultural bias because of her gender. AR, Tab E. The AR also contains Petitioner's certification as a Women Business Enterprise. AR, Tab S. In addition, the AR contains two documents Petitioner sent with its April 6th response: an October 17, 1994 Automotive News article, discussing the impact of the Ford Motor Company (Ford) Project 2000 program on Ford's suppliers; and Ford's April 22, 1993 letter informing Petitioner that it "will not be considered as a long term supplier." Ford states it reached this conclusion following its evaluation of its parts suppliers, based on their "relative strengths and weaknesses (in the areas of quality, delivery, technology, and commercial performance)". AR, Tab J. Petitioner asserted Ford accounted for 90% of its business until 1993 when, under the Ford Project 2000 program, Ford eliminated many of its small parts suppliers. Ford expected Petitioner to continue production of existing parts during a winding-down phase which lasted several years. Petitioner also has borne $250,000 in compliance costs under the automotive industries' mandatory quality initiative, but lost most of its remaining Ford work in 1997, when Ford sold its heavy truck business. Petitioner asserted its loss of Ford work and its winding-down obligation harmed both its cash flow and its ability to attract new business. AR, Tabs E and I. C. The SBA Determination On May 11, 1999, the Acting AA/SDBCE issued her determination, denying Petitioner's request for SDB certification because Ms. Canning, the individual on whom Petitioner's claim of eligibility was based, was not socially disadvantaged. The determination stated Petitioner did not claim discrimination in Ms. Canning's education or employment history. Further, Petitioner's own evidence established Ford did not terminate Petitioner as a supplier because of Ms. Canning's gender. Therefore, Petitioner did not provide sufficient documentation and evidence to allow SBA to conclude Ms. Canning had been subjected to cultural bias because of her gender, as required by 13 C.F.R. Section 124.103(c). D. The Appeal Petition Petitioner presents two new exhibits with its Appeal Petition: First, Ms. Canning's sworn affidavit describing her telephone conversation with the BOS concerning the narrative portion of the application, states the BOS "indicated" she should not address how her gender put Petitioner at a disadvantage. Ms. Canning interpreted this to mean SBA was aware of the under- representation of women in the automotive industry. Second, a magazine article in Michigan Business Network, discussing minority-owned businesses and the effect of the Ford Project 2000 Program. Petitioner also asserts, for the first time on appeal, that the low percentage of Michigan women-owned automobile dealerships evidences cultural bias against women in that industry. Petitioner asserts that it would be manifest injustice not to consider this new evidence, especially if SBA argues gender is not an appropriate issue in this appeal. As to the merits, Petitioner first asserts SBA's denial is arbitrary, capricious, and contrary to law because SBA failed to consider the most significant aspect of Petitioner's disadvantage: its difficulty in replacing its lost business. Petitioner asserts it lost this business because of the Ford Project 2000 Program and, because it is woman-owned business, as well as because of the circumstances of the Ford winding-down, it has been unable to attract new automotive work. Petitioner notes it originally had obtained Ford's business when males owned and controlled Petitioner. Second, Petitioner asserts it relied to its detriment on the BOS' erroneous advice not to focus on gender. Ms. Canning submitted a narrative that did not discuss gender issues. Ms. Canning also did not discuss gender because she interpreted the SDB application form as suggesting SBA will presume that woman-owned businesses are disadvantaged. E. The SBA Answer SBA opposes Petitioner's introduction of new evidence on appeal, noting the Administrative Judge's review is limited to the facts before SBA at the time of the determination, unless Petitioner establishes that manifest injustice would occur if the appeal were limited to the record. SBA asserts Petitioner has failed to do so. [1] SBA asserts the determination was not arbitrary, capricious, or contrary to law because the applicant has the burden of establishing social disadvantage, and Petitioner did not submit with its application any specific examples of chronic and substantial discrimination Ms. Canning experienced based on her gender. Instead, Petitioner relies solely on the harm it suffered as a result of Ford's elimination of small suppliers. SBA also urges rejection of Petitioner's second argument, because it asserts a defense of equitable estoppel against the Government, which is not supported by the case law. F. SBA's Claim of Privilege SBA withheld from the AR two documents (Exhibits F and G), which it asserts are privileged. Specifically, SBA asserts the deliberative process privilege for Exhibit F, the April 22, 1999 BOS Analysis of Petitioner's application, because it includes the predecisional opinions and recommendations as to whether to certify Petitioner as an SDB, made during the deliberative process by the BOS, a subordinate official, who is not the final decision-maker. The SBA asserts the attorney-client privilege for Exhibit G, a legal memorandum addressed to the BOS regarding Petitioner's application, because it contains the legal opinions of an SBA attorney. Petitioner opposes SBA's privilege claims. It first asserts Exhibit F is not privileged because SBA previously had asserted the BOS is the person "responsible for reviewing" SDB applications, and Ms. Canning believed he was the decisionmaker. SBA now downplays the BOS' role. Petitioner asserts this raises the question of the BOS' "subjective motivation" for denying it SDB status, and thus renders the privilege inapplicable. Petitioner asserts Exhibit G is not privileged, because the attorney addressed the memorandum to someone other than the decisionmaker. SBA responds that Exhibit F properly falls within the deliberative process privilege, because it includes the BOS' predecisional recommendations. SBA previously disclosed all factual material in the document in the AR. Further, SBA asserts Petitioner impermissibly is attempting to introduce a new argument on appeal: asserting the BOS' intent is at issue and suggesting SBA acted in bad faith. SBA also asserts it properly asserted the attorney-client privilege as to Exhibit G, because the BOS was the Agency attorney's client. II. DISCUSSION 1. Threshold Matters A. Timeliness and SBA's Privilege Claims Petitioner filed its Appeal Petition within 45 days after SBA denied its SDB application and, thus, it is timely. 13 C.F.R. Sections 134.202(a), 134.204(e)(2). The deliberative process privilege, under which SBA seeks to protect the BOS' analysis, is a well-established privilege and is based on the following rationale: (1) to encourage open, frank discussions on matters of policy between subordinates and superiors within a government agency; (2) to protect against premature disclosure of proposed policies before they are finally adopted; and (3) to protect against public confusion that might result from disclosure of rationales that were not ultimately the grounds for an agency's action. Coastal States Gas Corporation v. Department of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). In order to conclude that the privilege protects a document, the Administrative Judge must find: (1) the document is predecisional, that is, it was generated prior to the decision in question; and (2) the document is deliberative in nature, in that it makes recommendations or expresses opinions on the matters discussed. Id. The BOS prepared his analysis and recommendations concerning Petitioner's application (Exhibit F) for the Acting AA/SDBCE's review, prior to her determination on the application. The Administrative Judge's in camera examination shows it clearly meets the above criteria for a predecisional document. The Administrative Judge rejects as inapposite Petitioner's argument that the privilege is inapplicable here because Petitioner questions the BOS' subjective motivation, citing In re Subpoena Duces Tecum, 156 F.3d 1279 (D.C. Cir. 1998). The court there limited its holding to those cases where the cause of action itself was directed at the government's intent, specifically fraud on the Bankruptcy Trustee. In re Subpoena Duces Tecum, 145 F.3d 1422, 1424 (D.C. Cir. 1998). Here, Petitioner challenges the AA/SDBCE's determination as arbitrary and capricious, but SBA's intent is not an element of this cause of action. The Administrative Judge notes the deliberative process privilege is not absolute. A litigant may obtain deliberative materials only if its need for them and the need for accurate fact-finding override the government's interest in non- disclosure. Federal Trade Commission v. Warner Communications Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). The factors the Administrative Judge must consider in making the determination are: (1) the relevance of the evidence; (2) availability of other evidence; (3) the government's role in the litigation, i.e., is there any evidence of bad faith or misconduct; and (4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions. Id. at 1161. Based on his in camera examination of the withheld portions of Exhibit F, the Administrative Judge finds that, while the evidence may be relevant and unavailable elsewhere, Petitioner has made no showing of bad faith or misconduct by SBA. Even if the Administrative Judge construes the evidence in Petitioner's favor, the BOS merely misstated the requirements for certification. Finally, to compel disclosure of BOS recommendations would injure the quality of Agency decisions, by chilling frank discussion and deliberation among those responsible for making governmental decisions. Accordingly, the Administrative Judge concludes SBA's redactions from Exhibit F fall within the deliberative process privilege, and GRANTS SBA's claims of privilege as to that document. The second privilege SBA claims, the attorney-client privilege, is the oldest common-law privilege for confidential communications. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). Its purpose is to encourage full and frank communication between attorneys and their clients and, thereby, to promote the broader public interest in the administration of justice. Id. The privilege also extends to the Federal government and protects communications between government attorneys, and client agencies and agency officials. In re Lindsey, 148 F.3d 1100, 1105 (D.C. Cir. 1998). The Administrative Judge has examined, in camera, the withheld portions of Exhibit G, a legal memorandum addressed to the BOS in his official capacity. This document clearly is a communication between an SBA attorney and his Agency client. The fact the BOS is not the final decisionmaking official does not affect this finding, because the privilege extends to communications with subordinate officials. Upjohn, supra at 392- 93. The Administrative Judge finds inapposite here the case on which Petitioner relies to challenge SBA's claim of privilege. There, the court found an individual pension plan trustee could not assert the privilege on his own behalf for conversations between himself and the pension plan's attorney, because he was not the client. United States v. Evans, 796 F.2d 264, 265-66 (9th Cir. 1986). Here, the Agency, not the BOS as an individual, is the client and is asserting the privilege. Accordingly, the Administrative Judge concludes SBA's redactions from Exhibit G are within the attorney-client privilege, and GRANTS SBA's claims of privilege as to that document. He, therefore finds that the AR, as filed and served upon Petitioner, comprises the entire record on which this Office will base its decision. This Office will seal the documents withheld and make them part of the docket file. 13 C.F.R. Section 134.204(f). 2. New Evidence on Appeal The Administrative Judge EXCLUDES Petitioner's proffered new factual evidence. The Administrative Judge notes the applicable regulation explicitly limits this Office's review of an SDB determination to the facts before SBA at the time of the determination, and to the arguments on appeal. 13 C.F.R. Section 124.1008(f)(3)(ii). The Administrative Judge will admit new evidence only if he determines that manifest injustice would occur if he does not do so (id.); that is, if his failure to admit the evidence would be plainly wrong, and would result in substantial prejudice to the Petitioner, such as would shock the judicial conscience. Matter of Aero CNC, Inc., No. SDBA-106 at 6 (1999). Petitioner's proffer of new evidence completely fails to meet this standard. Petitioner makes no showing that manifest injustice would occur if the Administrative Judge were to fail to consider it. Rather, Petitioner's additional evidence is a tardy attempt to comply with the regulations, and to obtain a second chance at SDB certification. This is not the purpose of the appellate process. Id. B. The Merits of the Appeal When a firm applies for SDB certification, it must demonstrate to the AA/SDBCE that those individuals claiming disadvantaged status own and control the firm. 13 C.F.R. Section 124.1008(c)(2). In order for the AA/SDBCE to determine whether the firm has met that burden (13 C.F.R. Section 124.1008(f)(1)), the Agency must examine the relevant data and articulate a satisfactory explanation for its action, including a "rational connection between the facts found and the choice made." Matter of IRECOR, Inc., No. SDBA-104 at 5 (1999). In reviewing an Appeal Petition, this Office's standard of review is whether the record demonstrates the AA/SDBCE's determination was "arbitrary, capricious, or contrary to law." 13 C.F.R. Section 124.1008(f)(3)(ii). The scope of review under the "arbitrary and capricious" standard is narrow, and OHA cannot substitute its judgment for that of the Agency. Matter of Palomar Manufacturing, Inc., No. SDBA-109 at 6 (1999). In its review, this Office must consider "whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." IRECOR, supra at 5. 1. Social Disadvantage An SDB applicant firm must be owned and controlled by socially and economically disadvantaged individuals. 13 C.F.R. Section 124.1001(b). To determine whether firms meet these criteria, the SDB program has adopted the criteria used in the 8(a) program. 13 C.F.R. Section 124.1002(a). The specific issue on appeal here is whether Ms. Canning, the individual on whom Petitioner bases its eligibility, is socially disadvantaged because of her gender. An individual who is not a member of one of the groups presumed to be socially disadvantaged (13 C.F.R. Section 124.103(b)(1)), as here, must establish individual social disadvantage by a preponderance of the evidence. 13 C.F.R. Section 124.103(c)(1); See Director, Office of Workers' Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 279- 80 (1994) (applicant for government benefits always has the burden of persuasion under the Administrative Procedure Act (APA), Section 7(c) (5 U.S.C. Section 556(d)). Agency adjudications are governed by the general principles of administrative law, even if the type of adjudication is not an APA proceeding. Texas-Capital Contractors, Inc. v. Abdnor, 933 F.2d 261, 269 (5th Cir. 1990). Thus, the SDB applicant bears the burden of persuading the AA/SDBCE that the individual upon whom it bases its claim of eligibility is socially disadvantaged. 13 C.F.R. Section 124.1008(f)(1). To sustain its burden of persuasion under the "preponderance of the evidence" standard, the SDB applicant must present to the AA/SDBCE evidence which is of greater weight, or more convincing, than the evidence offered in opposition; that is, the evidence as a whole must show that social disadvantage is more probable than not. Greenwich Collieries v. Director, Office of Workers' Compensation Programs, 990 F.2d 730, 736 (3d Cir. 1993), aff'd, 512 U.S. 267 (1994)). Evidence of individual social disadvantage must include the following elements: (i) At least one objective distinguishing feature that has contributed to social disadvantage, such as gender; (ii) Personal experiences of substantial and chronic social disadvantage in American society; and (iii) Negative impact on entry into or advancement in the business world because of the disadvantage. 13 C.F.R. Section 124.103(c)(2). SBA will consider any relevant evidence in assessing this element. Id. In every case, however, SBA will consider education, employment and business history, where applicable, to determine if the totality of circumstances shows disadvantage in the applicant's entry into or advancement in the business world. 13 C.F.R. Section 124.103(c)(2)(iii). Petitioner presented to the Acting AA/SDBCE no evidence relating to Ms. Canning's education or employment, but only evidence relating to her business history: a narrative, along with supporting documents, relating to its difficulties following Ford's decision to phase out its small suppliers. Petitioner also presented its Women Business Enterprise certification. For business history, SBA considers such factors as unequal access to credit or capital, acquisition of credit or capital under commercially unfavorable circumstances, unequal treatment in opportunities for government contracts or other work, unequal treatment by potential customers and business associates, and exclusion from business or professional organizations. 13 C.F.R. Section 124.103(c)(2)(iii)(C). In examining Petitioner's documents, the Administrative Judge finds they contain no evidence of any disadvantage Petitioner or Ms. Canning might have suffered because of her gender. Specifically, they contain no evidence Ford terminated its business relationship with Petitioner because Petitioner's President and CEO is a woman. Further, Petitioner failed to support its bare assertion that it could not replace Ford's business because it is a woman-owned business. Similarly, the Women Business Enterprise certification contains no evidence of any disadvantage Petitioner or Ms. Canning might have suffered because of gender. Thus, the Acting AA/SDBCE properly concluded, on the basis of the record before her, that Ms. Canning has failed to establish, by a preponderance of the evidence, individual social disadvantage because of gender. Accordingly, the Administrative Judge concludes SBA's determination that Ms. Canning is not socially disadvantaged because of her gender is supported by the record and is not arbitrary, capricious, or contrary to law. [2] 2. The BOS' Advice Petitioner also urges the Administrative Judge to reverse the Acting AA/SDBCE's determination because Petitioner relied to its detriment upon the BOS' erroneous advice to Ms. Canning. The Administrative Judge rejects this argument for two reasons, even assuming, arguendo, the BOS actually provided such erroneous advice (which he does not find). First, the social disadvantage criteria are properly promulgated regulations: They were published in the Federal Register for notice and comment, and republished as a final rule. 62 Fed. Reg. 43584, 43600 (August 14, 1997) (proposed rules); 63 Fed. Reg. 35726, 35741-42; 35767, 35774-75 (June 30, 1998) (final rules). It is settled law that such publication is constructive notice of the regulations' contents to all affected. These regulations are binding, regardless of actual knowledge of the regulations' content or of the hardship resulting from innocent ignorance. Matter of Aero CNC, Inc., No. SDBA-106 at 6 (1999). Therefore, Petitioner's reliance upon the BOS' advice, and its failure to inform itself of the regulations do not exempt it from the regulatory requirements. Second, to the extent Petitioner's argument amounts to an assertion of equitable estoppel against the SBA, the Administrative Judge rejects this argument. It is well settled that Petitioner cannot assert equitable estoppel against the government. [3] Bennett v. Director, Office of Workers' Compensation Programs, 717 F.2d 1167, 1169 (7th Cir. 1983) (citing Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 384-85 (1947)). See Size Appeal of L. Freedman & Associates, P.C., No. 4247 at 7 (1997) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 428-33 (1990) (when government employees offer assurances contrary to federal law, they do not speak for the United States, and the government may not be estopped by their actions); Ingalls Shipbuilding v. Director, Office of Workers' Compensation Programs, 976 F.2d 934, 937 (5th Cir. 1992) (if the government were barred from enforcing the law every time one of its agents erred, laws intended to be generally applicable would become riddled with exceptions). Thus, the BOS' allegedly erroneous advice regarding the requirements of the social disadvantage regulation does not estop SBA from applying the correct requirements in determining eligibility. [4] Therefore, the Administrative Judge concludes Petitioner has established no basis for reversal of the SBA's determination based on the BOS' advice to Ms. Canning. III. CONCLUSION Based on the Administrative Judge's conclusion that the SBA's determination was not arbitrary, capricious or contrary to law, he AFFIRMS the determination, and DENIES the Appeal Petition. This is the initial decision of the SBA. Absent a request for review, this decision will become the SBA's final decision 30 days after the date of this decision. 13 C.F.R. Sections 134.227(b), 134.228(a) (1999). ______________________________ CHRISTOPHER HOLLEMAN Administrative Judge _________________________ [1] In response to Petitioner's new evidence, SBA also attaches the BOS' declaration regarding his telephone conversation with Ms. Canning, asserting Petitioner has raised the issue of the BOS' statements. SBA does not request leave from the Administrative Judge to submit this new evidence. [2] Petitioner's other arguments on this issue depend on its new facts on appeal. Because the Administrative Judge has excluded these new facts, he need not consider these other arguments. [3] A portion of Petitioner's proffer of new evidence addresses the issue of equitable estoppel against SBA, and SBA offers the BOS' affidavit in rebuttal. However, because this argument is not available against the government, the evidence is not relevant here. Therefore, the Administrative Judge EXCLUDES Petitioner's proffered new evidence, and the BOS' affidavit. [4] The Administrative Judge thus need not resolve the conflicting accounts in Ms. Canning's and the BOS' affidavits. Posted: November, 1999