24 C.F.R. PART 26—HEARING PROCEDURES
Title 24 - Housing and Urban Development
Authority: 42 U.S.C. 3535(d).
Source: 48 FR 43304, Sept. 23, 1983, unless otherwise noted.
This part sets forth rules of procedure in certain proceedings of the Department of Housing and Urban Development presided over by a hearing officer. These rules of procedure apply to hearings with respect to determinations by the Multifamily Participation Review Committee pursuant to 24 CFR part 200, subpart H, to hearings conducted pursuant to referrals by debarring or suspending officials under 24 CFR part 24, and to hearings conducted pursuant to referrals by a hearing official under 24 CFR part 25, unless such regulations at 24 CFR parts 24, 25, or 200, provide otherwise. They also apply in any other case where a hearing is required by statute or regulation, to the extent that rules adopted under such statute or regulation are not inconsistent. [48 FR 43304, Sept. 23, 1983, as amended at 60 FR 39239, Aug. 1, 1995] (a) Hearing officer. Proceedings conducted under these rules shall be presided over by a hearing officer who shall be an Administrative Law Judge or Board of Contract Appeals Judge authorized by the Secretary or designee to conduct proceedings under this part. (b) Time and place of hearing. The hearing officer shall set the time and place of any hearing and shall give reasonable notice to the parties. (c) Powers of hearing officers. The hearing officer shall conduct a fair and impartial hearing and take all action necessary to avoid delay in the disposition of proceeding and to maintain order. The hearing officer shall have all powers necessary to those ends, including but not limited to the power: (1) To administer oaths and affirmations; (2) To cause subpoenas to be issued as authorized by law; (3) To rule upon offers of proof and receive evidence; (4) To order or limit discovery as the interests of justice may require; (5) To regulate the course of the hearing and the conduct of the parties and their counsel; (6) To hold conferences for the settlement or simplification of the issues by consent of the parties; (7) To consider and rule upon all procedural and other motions appropriate in adjudicative proceedings; (8) To take notice of any material fact not appearing in evidence in the record which is properly a matter of judicial notice; and (9) To make and file determinations. If a party refuses or fails to comply with an order of the hearing officer, the hearing officer may enter any appropriate order necessary to the disposition of the hearing including a determination against the noncomplying party. (a) Definition. An ex parte communication is any communication with a hearing officer, direct or indirect, oral or written, concerning the merits of procedures of any pending proceeding which is made by a party in the absence of any other party. (b) Prohibition of ex parte communications. Ex parte communications are prohibited except where: (1) The purpose and content of the communication have been disclosed in advance or simultaneously to all parties; or (2) The communication is a request for information concerning the status of the case. (c) Procedure after receipt of ex parte communication. Any hearing officer who receives an ex parte communication which the hearing officer knows or has reason to believe is unauthorized shall promptly place the communication, or its substance, in all files and shall furnish copies to all parties. Unauthorized ex parte communications shall not be taken into consideration in deciding any matter in issue. [48 FR 43304, Sept. 23, 1983; 48 FR 46980, Oct. 17, 1983] When a hearing officer believes there is a basis for disqualification in a particular proceeding, the hearing officer shall withdraw by notice on the record and shall notify the Secretary and the official initiating the action under appeal. Whenever any party believes that the hearing officer should be disqualified from presiding in a particular proceeding, the party may file a motion with the hearing officer requesting the hearing officer to withdraw from presiding over the proceedings. This motion shall be supported by affidavits setting forth the alleged grounds for disqualification. If the hearing officer does not withdraw, a written statement of his or her reasons shall be incorporated in the record and the hearing shall proceed. In each case heard before a hearing officer under this part, the Department shall be represented by the General Counsel or designee. The party against whom the administrative action is taken may be represented at hearing as follows: (a) Individuals may appear on their own behalf; (b) A member of a partnership or joint venture may appear on behalf of the partnership or joint venture; (c) A bona fide officer may appear on behalf of a corporation or association upon a showing of adequate authorization; (d) An attorney who files a notice of appearance with the hearing officer may represent any party. For purposes of this paragraph, an attorney is defined as a member of the bar of a Federal court or of the highest court of any State; or (e) An individual not included within paragraphs (a) through (d) of this section may represent the respondent upon an adequate showing, as determined by the hearing officer, that the individual possesses the legal, technical or other qualifications necessary to advise and assist in the presentation of the case. Attorneys shall conform to the standards of professional and ethical conduct required of practitioners in the courts of the United States and by the bars of which the attorneys are members. Any attorney may be prohibited by the Hearing Officer from representing a party if the attorney is not qualified under §26.7 or if such action is necessary to maintain order in or the integrity of the pending proceeding. In every case, there shall be a notice of administrative action. The notice shall be in writing and inform the party of the determination. The notice shall state the reasons for the proposed or imposed action except where general terms are permitted by 24 CFR part 24. The notice shall inform the party of any right to a hearing to challenge the determination, and the manner and time in which to request such hearing. A supplemental notice may be issued in the discretion of the initiating official to add to or modify the reasons for the action. (a) Respondent. A complaint shall be served upon the party against whom an administrative action is taken, who shall be called the respondent. (b) Grounds. The complaint shall state the grounds upon which the administrative action is based. The grounds set forth in the complaint may not contain allegations beyond the scope of the notice of administrative action or any amendment thereto. (c) Notice of administrative action as complaint. A notice of administrative action may serve as a complaint provided the notice states it is also a complaint and complies with paragraph (b) of this section. (d) Timing. When the notice does not serve as a complaint, the complaint shall be served on or before the thirtieth day after a request for hearing is made. Respondent shall file an answer within thirty days of receipt of the complaint. The answer shall respond specifically to each factual allegation. A general denial shall not be permitted. Where a respondent intends to rely on an affirmative defense it shall be pleaded specifically. Allegations are admitted when not specifically denied in respondent's answer. (a) Amendments. (1) By right: The Department may amend its complaint without leave at any time within thirty days of the date the complaint is filed or at any time before respondent's responsive pleading is filed, whichever is later. Respondent may amend its answer at any time within thirty days of filing of its answer. A party shall plead in response to an amended pleading within fifteen days of receipt of the amended pleading. (2) By leave: Upon conditions as are necessary to avoid prejudicing the public interest and the rights of the parties, the hearing officer may allow amendments to pleadings upon motion of any party. (3) Conformance to evidence: When issues not raised by the pleadings but reasonably within the scope of the proceeding initiated by the complaint are tried by express or implied consent to the parties, they shall be treated in all respects as if they had been raised in the pleadings, and amendments of the pleadings necessary to make them conform to the evidence shall be allowed at any time. (b) Supplemental pleadings. The hearing officer may, upon reasonable notice, permit service of a supplemental pleading concerning transactions, occurrences, or events which have happened or been discovered since the date of prior pleadings. (a) Motions. All motions after the commencement of the action until decision shall be addressed to the hearing officer. (b) Content. All written motions shall state the particular order, ruling, or action desired and the grounds for granting the motion. (c) Answers. Within seven (7) days after receipt of any written motion, or within any other period as may be designated by the hearing officer, the opposing party shall answer the motion. Failure to make a timely answer shall constitute a party's consent to the granting of the motion. The moving party shall have no right to reply, except as permitted by the hearing officer. (d) Oral argument. The hearing officer may order oral argument on any motion. (e) Motions for extensions. The hearing officer may waive the requirements of this section as to motions for extensions of time. (f) Rulings on motions for dismissal. When a motion to dismiss the proceeding is granted, the hearing officer shall make and file a determination and order in accordance with the provisions of §26.24. (a) Filing. An original and two copies of a request for a hearing shall be filed with the Docket Clerk, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410, on official business days between 8:45 a.m. and 5:15 p.m. The Clerk shall assign the docket number and designate a hearing officer. An original and two copies of all other pleadings, submissions and documents should be filed directly with the appropriate hearing officer. A document is considered timely filed if postmarked on or before the date due or delivered to the appropriate person by close of business on the date due. (b) Title. Documents shall show clearly the title of the action and the docket number. (c) Form. Except as otherwise permitted, all documents shall be printed or typewritten in clear, legible form. (a) Method of service. Pleadings, motions, and other documents required or permitted under these rules shall be served upon all parties. Whenever these rules require or permit service to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party is ordered by the hearing officer. Service shall be made by delivering a copy to the person to be served or by mailing it to that person at the last known address. Delivery of a copy within this rule means: handing it to the person to be served; or leaving it at that person's office with a clerk or other person in charge; or, if there is no one in charge, leaving it in a conspicuous place in the office; or, if the office is closed or the person to be served has no office, leaving it at that person's residence of usual place of abode with some person of suitable age and discretion who resides there. Service by mail is complete upon deposit in a mail box or upon posting. (b) Proof of service. Proof of service shall not be required unless the fact of service is put in issue by appropriate motion or objection on the part of the person allegedly served. In these cases, service may be established by written receipt signed by or on behalf of the person to be served, or may be established prima facie by affidavit or certificate of service of mailing. (a) Generally. Computation of any period of time prescribed or allowed by this part shall begin with the first business day following the day on which the act, event, development or default initiating the period of time occurred. When the last day of the period computed is a Saturday, Sunday, or national holiday, or other day on which the Department of Housing and Urban Development is closed, the period shall run until the end of the next following business day. Except when any prescribed or allowed period of time is seven days or less, each of the Saturdays, Sundays, and national holidays shall be included in the computation of the prescribed or allowed period. (b) Extensions of time periods. The hearing officer (or in the case of a review under §26.25, the Secretary or designee) may upon motion enlarge the time within which any act required by these rules must be performed where necessary to avoid prejudicing the public interest or the rights of the parties. The parties are encouraged to engage in voluntary discovery procedures. Parties may seek an order compelling discovery only upon good cause shown. Discovery shall not be permitted where it will unduly delay the hearing, thereby resulting in prejudice to the public interest or the rights of the parties. Every request for discovery, objection to request for discovery, and request for admissions shall be in the form of a motion addressed to the hearing officer. In connection with any discovery procedure, the hearing officer may make any order required to protect a party or other person from annoyance, embarrassment, oppression, or undue burden or expense. Those orders may include limitations on the scope, methods, time and place for discovery, and provisions for protecting privileged information or documents. Where a party refuses to honor an order for discovery, the hearing officer may issue such orders in regard to the refusal as justice shall require. Each party shall bear its own expenses associated with discovery. (a) General. A party may take the oral deposition of any person. Upon refusal and, after a showing of good cause, a hearing officer may issue an order compelling a party or its agents to appear for deposition. (b) Procedure. Reasonable written notice of deposition shall be served upon the opposing party and the deponent. The attendance of a deponent may be compelled by subpoena where authorized by law. (c) Objections. Each person testifying on oral deposition shall be placed under oath by the person before whom the deposition is taken. The deponent may be examined and cross-examined. Objection may be made at hearing to receiving in evidence any deposition or part of it for any reason which would require the exclusion if the witness were then present and testifying. The questions and the answers, together with all objections made, shall be recorded by the person before whom the deposition is to be taken, or under that person's direction. (d) Submission to deponent. A transcript of the deposition shall be submitted to the deponent for examination and signature, unless submission is waived. Any changes in form or substance which the deponent desires to make shall be entered upon the transcript by the person before whom the deposition was taken, with a statement of reasons given by the deponent for making them. The transcript shall then be signed by the deponent, unless the parties by stipulation waive the signing or the deponent is ill, cannot be found, or refuses to sign. If the transcript is not signed, the person before whom the deposition was taken shall sign it and state on the record the reason that it is not signed. (e) Certification and filing. The person before whom the deposition was taken shall certify on the transcript as to its accuracy. The original transcript and exhibits shall be sent by mail to the hearing officer unless otherwise directed in the order authorizing the taking of the deposition. Interested parties shall make their own arrangements with the person recording the testimony for copies of the testimony and the exhibits. (f) Deposition as evidence. Subject to appropriate rulings by the hearing officer on objections, the deposition or any part may be introduced into evidence for any purpose if the deponent is unavailable. Only that part of a deposition which is received in evidence at a hearing shall constitute a part of the record in the proceeding upon which a decision may be based. Nothing in this rule is intended to limit the use of a deposition for impeachment purposes. (g) Payment of fees. Fees shall be paid by the person upon whose application the deposition is taken. (a) Request to produce. At any time after a request for hearing has been filed, any party may serve upon any other party a written request to produce, and permit the party making the request to inspect and copy, any relevant designated documents (including writings, drawings, graphs, charts, and other data compilations). The request shall set forth the items to be inspected either by individual item or by category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. (b) Response to request to produce. The party upon whom the request is served shall serve a written response within twenty days after service of the request unless the Hearing Officer determines that a shorter or longer period is appropriate under the circumstances. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which case the reasons for the objection shall be stated. If objection is made to part of an item or category, the part shall be specified. The party submitting the request may move for an order under §26.17 with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested. (a) Request for admissions. At any time after an answer has been filed, any party may serve upon any other party a written request for the admission of the genuineness of any relevant documents described in the request or of the truth of any relevant matters of fact. Copies of documents shall be delivered with the request unless copies have already been furnished. No order of the hearing officer is necessary. (b) Objection. Each requested admission shall be considered admitted unless, within fifteen days after service of the request, the party from whom the admission is sought serves upon the party making the request either (1) a statement denying specifically the relevant matters of which an admission is requested or setting forth in detail the reasons why the party can neither truthfully admit nor deny them, or (2) written objections on the ground that some or all of the matters involved are privileged or irrelevant. Answers on matters to which objections are made may be deferred until the objections are ruled upon, but if written objections are made only to a part of a request, the remainder of the request shall be answered. (c) Limitation. Admissions obtained pursuant to this procedure may be used in evidence only for the purposes of the pending action to the same extent and subject to the same objections as other evidence. (a) Prehearing conference. The hearing officer may, on the hearing officer's own motion or at the request of any party, direct counsel for all parties to confer with the hearing officer before the hearing for the purpose of considering: (1) Simplification and clarification of the issues; (2) Stipulations and admissions of fact and of the contents and authenticity of documents; (3) The disclosure of the names of witnesses; (4) Matters of which official notice will be taken; (5) Other matters as may aid in the orderly disposition of the proceeding, including disclosure of the documents or other physical exhibits which will be introduced in evidence in the course of the proceeding. (b) Recordation of prehearing conference. The prehearing conference shall, at the request of any party, be recorded or transcribed. (c) Order on prehearing conference. The hearing officer shall enter in the record an order which states the rulings upon matters considered during the conference, together with appropriate directions to the parties. The order shall control the subsequent course of the proceeding, subject to modifications upon good cause shown. (a) Public hearings. All hearings in adjudicative proceedings shall be public. (b) Conduct of hearing. Hearings shall proceed with all reasonable speed. The hearing officer may order recesses for good cause, stated on the record. The hearing officer may, for convenience of the parties or in the interests of justice, order that hearings be conducted outside Washington, DC, and, if necessary, at more than one place. (c) Transcripts. Hearings shall be recorded and transcribed only by a reporter designated by the Department under the supervision of the hearing officer. The original transcript shall be a part of the record and shall constitute the sole official transcript. Respondents and the public, at their own expense, may obtain copies of transcripts from the reporter. (a) Evidence. Every party shall have the right to present its case or defense by oral and documentary evidence, unless otherwise limited by law or regulation, to submit rebuttal evidence and to conduct such cross-examination as may be required for a full and true disclosure of the facts. Irrelevant, immaterial, privileged, or unduly repetitious evidence shall be excluded. Unless otherwise provided for in this part, the Federal Rules of Evidence shall provide guidance for the conduct of proceedings under this part. Parties may object to clearly irrelevant material, but technical objections to testimony as used in a court of law will not be sustained. (b) Testimony under oath or affirmation. All witnesses shall testify under oath or affirmation. (c) Objections. Objections to the admission or exclusion of evidence shall be in short form, stating the grounds of objections. Rulings on objections shall be a part of the transcript. Failure to object to admission or exclusion of evidence or to any evidentiary ruling shall be considered a waiver of objection, but no exception to a ruling on an objection is necessary in order to preserve it for appeal. (d) Authenticity of documents. Unless specifically challenged, it shall be presumed that all relevant documents are authentic. An objection to the authenticity of a document shall not be sustained merely on the basis that it is not the original. (e) Stipulations. The parties may stipulate as to any relevant matters of fact. Stipulations may be received in evidence at a hearing, and when received shall be binding on the parties with respect to the matters stipulated. (f) Official notice. All matters officially noticed by the hearing officer shall appear on the record. (g) Burden of proof. The burden of proof shall be upon the proponent of an action or affirmative defense unless otherwise provided by law or regulation. (a) Scope of review. The hearing officer shall conduct a de novo review of the administrative action to determine whether it is supported by a preponderance of the evidence unless a different standard of proof is required by law or regulation. Each and every charge alleged by the Department need not be proven to support the administrative action. The hearing officer may modify or vacate the administrative action under review only upon a particularized finding of facts which justifies a deviation from the administrative action. (b) Closing of hearing. At the discretion of the hearing officer, the closing of the record may be postponed in order to permit the admission of other evidence into the record. In the event further evidence is admitted, each party shall be given an opportunity to respond to such evidence. (c) Briefs. Upon conclusion of the hearing, the hearing officer may request the parties to file proposed findings of fact and legal briefs. The hearing officer shall make a written determination and order based upon evidence and arguments presented by the parties. The determination shall be founded upon reliable and probative evidence. This determination and order shall be served upon all parties. (d) Bench decisions. Where the parties agree and where appropriate in the judgment of the hearing officer, a bench decision will be issued. (e) Time period for issuance of decision. The hearing officer shall endeavor to issue a determination within sixty days from the date of the closing of the record. (f) Finality of decision. The determination and order shall be final unless a party timely appeals the decision and within forty days the Secretary decides to review the determination in accordance with §26.25, or to have the determination reviewed by a designee. (a) Petition for review. Any party may request review of the hearing officer's determination or order by filing a written petition for review with the Secretary within fifteen days of receipt of the hearing officer's determination or order. A petition for review may be granted or denied in the discretion of the Secretary or designee. This petition shall not exceed ten pages and shall specifically state the issues and basis upon which the party seeks review. This petition shall be served on all parties and the Secretary simultaneously, in accordance with §26.15. (b) Briefs by opposing parties. Opposing parties may submit briefs, not to exceed ten pages, opposing review. These briefs must be filed within fifteen days of the party's receipt of a petition for review. (c) Secretarial action. Upon granting any petition for review, the Secretary or designee, may require further briefs. Secretarial review shall be limited to the factual record produced before the hearing officer. The Secretary, or designee, shall issue a written determination and shall serve it upon the parties and the hearing officer. (a) Interlocutory rulings by the hearing officer. A party seeking review of an interlocutory ruling shall file a motion with the hearing officer within ten days of the ruling requesting certification of the ruling for review by the Secretary. Certification may be granted if the hearing officer believes that (1) it involves an important issue of law or policy as to which there is substantial ground for difference of opinion and (2) an immediate appeal from the order may materially advance the ultimate termination of the litigation. (b) Petition for review. Any party may file a petition for review of an interlocutory ruling within ten days of the hearing officer's determination regarding certification. (c) Secretarial review. The Secretary, or designee, shall review a certified ruling. The Secretary, or designee, has the discretion to grant or deny a petition for review from an uncertified ruling. (d) Continuation of hearing. Unless otherwise ordered by the hearing officer or the Secretary, or designee, the hearing shall proceed pending the determination of any interlocutory appeal and the order or ruling of the hearing officer shall be effective pending review. Source: 61 FR 50210, Sept. 24, 1996, unless otherwise noted.
General Unless otherwise specified in this title, the rules in this subpart B of this part apply to hearings that HUD is required by statute to conduct pursuant to the Administrative Procedure Act (5 U.S.C. 554 et seq.). The following definitions apply to subpart B of this part: Chief Docket Clerk means the Chief Docket Clerk of the Office of Administrative Law Judges at the following address: 409 3rd Street, S.W., Suite 320, Washington, DC 20024. Complaint means the notice from HUD alleging violations of a HUD statute and/or regulation, citing the legal authority upon which it is issued, stating the relief HUD seeks, and informing a respondent of his or her right to submit a response to a designated office and to request an opportunity for a hearing before an administrative law judge. Response means the written response to a complaint, admitting or denying the allegations in the complaint and setting forth any affirmative defense and/or any mitigating factors or extenuating circumstances. The response shall be submitted to the Office of General Counsel that initiates the complaint or to such other office as may be designated in the complaint. A response is deemed a request for a hearing. The ALJ shall conduct a fair and impartial hearing, avoid delay, maintain order, and ensure that a record of the proceeding is made. The ALJ is authorized to: (a) Set and change the date, time, and place of the hearing upon reasonable notice to the parties; (b) Continue or recess the hearing in whole or in part for a reasonable period of time; (c) Hold conferences to identify or simplify the issues, or to consider other matters that may aid in the expeditious disposition of the proceeding; (d) Administer oaths and affirmations; (e) Issue subpoenas requiring the attendance of witnesses and the production of documents at depositions or at hearings; (f) Rule on motions and other procedural matters; (g) Regulate the scope and timing of discovery; (h) Regulate the course of the hearing and the conduct of representatives and parties; (i) Examine witnesses; (j) Receive, rule on, exclude, or limit evidence; (k) Upon motion of a party, take official notice of facts; (l) Upon motion of a party, decide cases, in whole or in part, by summary judgment where there is no disputed issue of material fact; (m) Conduct any conference, argument, or hearing on motions in person or by telephone; and (n) Exercise such other authority as is necessary to carry out the responsibilities of the ALJ under subpart B of this part. No party or person (except employees of the ALJ's office) shall communicate in any way with the ALJ on any matter at issue in a case, unless on notice and opportunity for all parties to participate. This provision does not prohibit a person or party from inquiring about the status of a case or asking routine questions concerning administrative functions or procedures. (a) An ALJ in a particular case may disqualify himself or herself. (b) A party may file with the ALJ a motion for the ALJ's disqualification. The motion shall be accompanied by an affidavit alleging the grounds for disqualification. (c) Upon the filing of a motion and affidavit, the ALJ shall proceed no further in the case until the matter of disqualification is resolved. (a) General. The parties to the hearing shall be the respondent and HUD. (b) Rights of parties. Except as otherwise limited by subpart B of this part, all parties may: (1) Be accompanied, represented, and advised by a representative; (2) Participate in any conference held by the ALJ; (3) Conduct discovery; (4) Agree to stipulations of fact or law, which shall be made part of the record; (5) Present evidence relevant to the issues at the hearing; (6) Present and cross-examine witnesses; (7) Present oral arguments at the hearing as permitted by the ALJ; and (8) Submit written briefs and proposed findings of fact and conclusions of law after the hearing, as permitted by the ALJ. No officer, employee, or agent of the Federal Government engaged in the performance of investigative, conciliatory, or prosecutorial functions in connection with the proceeding shall, in that proceeding or any factually related proceeding under subpart B of this part, participate or advise in the decision of the administrative law judge, except as a witness or counsel during the proceeding, or in its appellate review. (a) In computing any period of time under subpart B of this part, the time period begins the day following the act, event, or default, and includes the last day of the period, unless the last day is a Saturday, Sunday, or legal holiday observed by the Federal Government, in which case the time period includes the next business day. When the prescribed time period is seven days or less, intermediate Saturdays, Sundays, and legal holidays shall be excluded from the computation. (b) Entry of orders. In computing any time period involving the date of the issuance of an order or decision by an administrative law judge, the date of issuance is the date the order or decision is served by the Chief Docket Clerk. (c) Service by mail. If a document is served by mail, 3 days shall be added to the time permitted for a response. (a) Filing. All documents shall be filed with the Chief Docket Clerk, at the address listed in §26.28. Filing may be by first class mail, delivery, facsimile transmission, or electronic means; however, the ALJ may place appropriate limits on filing by facsimile transmission or electronic means. All documents shall clearly designate the docket number and title of the proceeding. (b) Service. One copy of all documents filed with the Chief Docket Clerk shall be served upon each party by the persons filing them and shall be accompanied by a certificate of service stating how and when such service has been made. Service may be made by delivery, first class mail, facsimile transmission, or electronic means; however, the ALJ may place appropriate limits on service by facsimile transmission or electronic means. Documents shall be served upon a party's address of residence or principal place of business, or, if the party is represented by counsel, upon counsel of record at the address of counsel. Service is complete when handed to the person or delivered to the person's office or residence and deposited in a conspicuous place. If service is by first-class mail, facsimile transmission, or electronic means, service is complete upon deposit in the mail or upon electronic transmission. (a) The ALJ may sanction a person, including any party or representative, for failing to comply with an order, rule, or procedure governing the proceeding; failing to prosecute or defend an action; or engaging in other misconduct that interferes with the speedy, orderly, or fair conduct of the hearing. (b) Any sanction, including but not limited to those listed in paragraphs (c), (d), and (e) of this section, shall reasonably relate to the severity and nature of the failure or misconduct. (c) Failure to comply with an order. When a party fails to comply with an order, including an order compelling discovery, the ALJ may: (1) Draw an inference in favor of the requesting party with regard to the information sought; (2) In the case of requests for admission, regard each matter about which an admission is requested to be admitted; (3) Prohibit the party failing to comply with the order from introducing evidence concerning, or otherwise relying upon, testimony relating to the information sought; or (4) Strike any part of the pleadings or other submissions of the party failing to comply with the order. (d) If a party fails to prosecute or defend an action brought under subpart B of this part, the ALJ may dismiss the action or may issue an initial decision against the respondent. (e) The ALJ may refuse to consider any motion, request, response, brief, or other document that is not filed in a timely fashion. An action under subpart B of this part shall commence with the Government's filing of a complaint, together with the response thereto, as those terms are defined in §26.28, with the Chief Docket Clerk. If the respondent fails to submit a response to the Office of General Counsel or such other office as designated in the complaint, then the Government may file a motion for a default judgment, together with a copy of the complaint, in accordance with §26.39. (a) General. All motions shall state the specific relief requested and the basis therefor and, except during a conference or the hearing, shall be in writing. Written motions shall be filed and served in accordance with §26.35. (b) Response to motions. Unless otherwise ordered by the ALJ, a response to a written motion may be filed within 7 days after service of the motion. A party failing to respond timely to a motion shall be deemed to have waived any objection to the granting of the motion. (a) General. The respondent may be found in default, upon motion, for failure to file a timely response to the Government's complaint. The motion shall include a copy of the complaint and a proposed default order, and shall be served upon all parties. The respondent shall have 7 days from such service to respond to the motion. (b) Default order. The ALJ shall issue a decision on the motion within 15 days after the expiration of the time for filing a response to the default motion. If a default order is issued, it shall constitute the final agency action. (c) Effect of default. A default shall constitute an admission of all facts alleged in the Government's complaint and a waiver of respondent's right to a hearing on such allegations. The penalty proposed in the complaint shall be set forth in the default order and shall be immediately due and payable by respondent without further proceedings. (a) The ALJ may schedule prehearing conferences as appropriate. (b) Upon the motion of any party, the ALJ shall schedule at least one prehearing conference at a reasonable time in advance of the hearing. (c) The ALJ may consider the following at a prehearing conference: (1) Simplification of the issues; (2) Stipulations of fact and of the authenticity, accuracy, and admissibility of documents; (3) Submission of the case on briefs in lieu of an oral hearing; (4) Limitation of the number of witnesses; (5) The exchange of witness lists and of proposed exhibits; (6) Discovery; (7) The time and place for the hearing; and (8) Such other matters as may tend to expedite the fair and just disposition of the proceedings. (a) Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the adjudication, whether it relates to the case or defense of the party seeking discovery or to the case or defense of any other party. It is not grounds for objection that the information sought will be inadmissible at the hearing, if such information appears reasonably calculated to lead to the discovery of admissible evidence. (b) Discovery in Program Fraud Civil Remedies actions (24 CFR part 28), unless agreed to by the parties, shall be available only as ordered by the ALJ. The party opposing discovery shall have 10 days to respond to a motion for discovery. The ALJ shall grant a motion for discovery only if he or she finds that discovery is necessary for the expeditious, fair, and reasonable consideration of the issues, is not unduly costly or burdensome, will not unduly delay the proceeding, and does not seek privileged information. The ALJ may grant discovery subject to a protective order under §26.43. The request for approval sent to the Attorney General from the General Counsel or designee, as described in §28.20 of this title, is not discoverable under any circumstances. (c) The following types of discovery are authorized: (1) Requests for production of documents for inspection and copying. Nothing contained herein shall be interpreted to require the creation of a document. (2) Requests for admissions. (3) Written interrogatories. Such interrogatories shall be limited in number to 25, unless otherwise ordered by the ALJ. (4) Depositions. (d) Motions to compel. A party may file a motion to compel discovery. The motion shall describe the information sought, cite the opposing party's objection, and provide arguments supporting the motion. The opposing party may file a response to the motion, including a request for a protective order. The ALJ may issue an order compelling a response, issue sanctions pursuant to §26.36, or issue a protective order. For purposes of paragraph (d) of this section, an evasive or incomplete answer to a request for discovery is treated as a failure to answer. (e) Each party shall bear its own costs of discovery. (a) General. Upon written request of a party, the ALJ may issue a subpoena requiring the attendance of a witness at a deposition or hearing, and/or the production of documents. The request shall specify any documents to be produced and shall list the names and addresses of the witnesses. (b) Time of request. A request for a subpoena in aid of discovery shall be filed in time to permit the conclusion of discovery 15 days before the date fixed for the hearing. A request for a subpoena to testify at the hearing shall be filed at least 3 days prior to the hearing, unless otherwise allowed by the ALJ for good cause shown. (c) Content. The subpoena shall specify the time and place at which the witness is to appear and any documents the witness is to produce. (d) Service and fees. Subpoenas shall be served, and fees and costs paid to subpoenaed witnesses, in accordance with Rule 45(b)(1) of the Federal Rules of Civil Procedure. (e) Motion to quash. The individual to whom the subpoena is directed or a party may file a motion to quash the subpoena within 10 days after service, or on or before the time specified in the subpoena for compliance if it is less than 10 days after service. (a) A party, a prospective witness, or a deponent may file a motion for a protective order with respect to discovery sought by an opposing party or with respect to the hearing, seeking to limit the availability or disclosure of evidence. (b) In issuing a protective order, the ALJ may issue any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, as provided in Rule 26(c) of the Federal Rules of Civil Procedure. (a) Time of hearing. The hearing shall commence not later than 90 days following the Government's filing of the complaint and response under §26.37, unless the time is extended for good cause. The ALJ shall provide written notice to all parties of the reasons for any extension of time. (b) Location of hearing. The hearing shall be held where the respondent resides or transacts business, or in such other place as may be agreed upon by the parties and the ALJ. Hearings for Program Fraud Civil Remedies Act cases shall be located in accordance with 31 U.S.C. 3803(g)(4). (c) Notice of hearing. The ALJ shall issue a notice of hearing to all parties specifying the time and location of the hearing, the matters of fact and law to be heard, the legal authority under which the hearing is to be held, a description of the procedures for the conduct of the hearing, and such other matters as the ALJ determines to be appropriate. (d) Limitations for Program Fraud Civil Remedies Act cases. The notice of hearing must be served upon the respondent within 6 years after the date on which the claim or statement is made. If the respondent fails to file a timely response to the Government's complaint, service of a default judgment under §26.39 shall be regarded as a notice of hearing for purposes of this section. The statute of limitations may be waived by agreement of the parties. (e) Burden and standard of proof. HUD shall prove the respondent's liability and any aggravating factors by a preponderance of the evidence. Respondent shall prove any affirmative defenses and any mitigating factors by a preponderance of the evidence. (f) Public hearings. Unless otherwise ordered by the ALJ for good cause shown, the hearing shall be open to the public. (a) Except as provided in paragraph (b) of this section, testimony at the hearing shall be given orally by witnesses under oath or affirmation. (b) At the discretion of the ALJ, testimony may be admitted in the form of a written statement or deposition. In order to be admissible, any written statement must be provided to all other parties along with the last known address of the witness, in a manner that allows sufficient time for other parties to subpoena the witness for cross-examination at the hearing. The ALJ shall admit any relevant oral or documentary evidence that is not privileged. The ALJ may, however, exclude evidence if its probative value is substantially outweighed by confusion of the issues, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. The hearing will be recorded and transcribed. The transcript of testimony, exhibits, and other evidence admitted at the hearing and all papers and requests filed in the proceeding constitute the record for the decision by the ALJ and the Secretary or designee. Posthearing briefs shall be filed only upon order by the ALJ. (a) The ALJ shall issue an initial decision based only on the record, which shall contain findings of fact, conclusions of law, and the relief granted. (b) The ALJ shall serve the initial decision on all parties within 60 days after either the close of the record or the expiration of time permitted for submission of posthearing briefs, whichever is later. The initial decision shall include a statement of each party's right to file a request for Secretarial review. The ALJ may extend the 60-day period for serving the initial decision in writing for good cause. (c) If no appeal is timely filed with the Secretary or designee, the initial decision shall become the final agency action. (a) Except as otherwise set forth in paragraph (b) of this section, either party may file with the Secretary a petition for review within 30 days after the ALJ issues an initial decision. The Secretary or designee may extend the 30-day period for good cause. If the Secretary or designee does not act upon the petition for review within 90 days of its service, then the initial decision shall become final. (b) Appeals of Program Fraud Civil Remedies Act decisions (24 CFR part 28). Only the respondent may file a petition for Secretarial review. The petition must be filed within 30 days after the ALJ issues the initial decision. The Secretary or designee may extend the 30-day period for good cause. If the Secretary or designee does not act upon the petition for review within 30 days of its service, then the initial decision shall become final. (c) Brief in support of petition. The petition for review shall be accompanied by a written brief, not to exceed 10 pages, specifying exceptions to the initial decision and reasons supporting the exceptions. (d) Service. The party submitting the petition for review shall serve a copy of the petition and brief in support of the petition on the other parties and on the Chief Docket Clerk. (e) Forwarding of the record. Upon request by the Office of the Secretary, the ALJ shall forward the record of the proceeding to the Secretary or designee. (f) Brief in opposition. Any opposing party may file a brief opposing review, not to exceed 10 pages, within 20 days of receiving the petition for review and accompanying brief. The brief in opposition shall be served on all parties. (g) Additional briefs. If the petition is granted, then the Secretary or designee may order the filing of additional briefs. (h) There is no right to appear personally before the Secretary or designee. (i) There is no right to appeal any interlocutory ruling by the ALJ. (j) In reviewing the initial decision, the Secretary or designee shall not consider any objection that was not raised before the ALJ unless a demonstration is made of extraordinary circumstances causing the failure to raise the objection. (k) The Secretary or designee shall consider only evidence contained in the record forwarded by the ALJ. However, if any party demonstrates to the satisfaction of the Secretary or designee that additional evidence not presented at the hearing is material and that there were reasonable grounds for the failure to present such evidence at such hearing, the Secretary or designee shall remand the matter to the ALJ for consideration of such additional evidence. (l) The prohibitions of ex parte contacts in §26.30 shall apply to contacts with the Secretary or designee. (m) The Secretary or designee may affirm, reduce, reverse, compromise, remand, or settle any relief granted in the initial decision. The Secretary or designee shall consider, and include in any final determination, such factors as may be set forth in applicable statutes or regulations. (n) The Secretary or designee shall promptly serve each party to the appeal with a copy of his or her decision and a statement describing the right to seek judicial review. (o) Judicial review. A party must generally file a petition for judicial review within 20 days of service of the Secretary's determination, or the Secretary's determination shall become final and not subject to judicial review. In Program Fraud Civil Remedies Act matters (24 CFR part 28), the respondent shall have 60 days from the date that the determination is sent to the respondent in which to file a petition. See also §26.52. In order to fulfill the requirement of exhausting administrative remedies, a party must seek Secretarial review under §26.50 prior to seeking judicial review of any initial decision issued under subpart B of this part. Judicial review shall be in accordance with applicable statutory procedures and the procedures of the appropriate Federal court. The Government may not seek judicial review of an adverse determination of a Program Fraud Civil Remedies Act matter. Collection of civil penalties and assessments shall be in accordance with applicable statutory provisions. The amount of any penalty or assessment that has become final under §26.49, or for which a judgment has been entered after action under §§26.52 or 26.53, or agreed upon in a compromise or settlement among the parties, may be collected by administrative offset under 31 U.S.C. 3716 or other applicable law. In Program Fraud Civil Remedies Act matters, an administrative offset may not be collected against a refund of an overpayment of Federal taxes then or later owing by the United States to the respondent.
Title 24: Housing and Urban Development
PART 26—HEARING PROCEDURES
Section Contents
§ 26.1 Purpose.
Hearing Officer
§ 26.2 Hearing officer, powers and duties.
§ 26.3 Failure to comply with an order of the hearing officer.
§ 26.4 Ex parte communications.
§ 26.5 Disqualification of hearing officer.
Representation of the Parties
§ 26.6 Department representative.
§ 26.7 Respondent's representative.
§ 26.8 Standards of practice.
Pleadings and Motions
§ 26.9 Notice of administrative action.
§ 26.10 Complaint.
§ 26.11 Answer.
§ 26.12 Amendments and supplemental pleadings.
§ 26.13 Motions.
§ 26.14 Form and filing requirements.
§ 26.15 Service.
§ 26.16 Time computation.
Discovery
§ 26.17 Discovery.
§ 26.18 Depositions.
§ 26.19 Request for production of documents.
§ 26.20 Admissions as to facts and documents.
§ 26.21 Prehearing conference.
Hearings
§ 26.22 Public nature and timing of hearings, transcripts.
§ 26.23 Rules of evidence.
§ 26.24 Hearing officer's determination and order.
Secretarial Review
§ 26.25 Review of determination of hearing officers.
§ 26.26 Interlocutory rulings.
§ 26.27 Purpose and scope.
§ 26.28 Definitions.
§ 26.29 Powers and duties of the Administrative Law Judge (ALJ).
§ 26.30 Ex parte contacts.
§ 26.31 Disqualification of ALJ.
§ 26.32 Parties to the hearing.
§ 26.33 Separation of functions.
§ 26.34 Time computations.
§ 26.35 Service and filing.
§ 26.36 Sanctions.
Prehearing Procedures
§ 26.37 Commencement of action.
§ 26.38 Motions.
§ 26.39 Default.
§ 26.40 Prehearing conferences.
§ 26.41 Discovery.
§ 26.42 Subpoenas.
§ 26.43 Protective order.
Hearings
§ 26.44 General.
§ 26.45 Witnesses.
§ 26.46 Evidence.
§ 26.47 The record.
§ 26.48 Posthearing briefs.
§ 26.49 Initial decision.
§ 26.50 Appeal to the Secretary.
§ 26.51 Exhaustion of administrative remedies.
§ 26.52 Judicial review.
§ 26.53 Collection of civil penalties and assessments.
§ 26.54 Right to administrative offset.
Subpart A—Hearings Before Hearing Officers
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§ 26.1 Purpose.
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Hearing Officer
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§ 26.2 Hearing officer, powers and duties.
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§ 26.3 Failure to comply with an order of the hearing officer.
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§ 26.4 Ex parte communications.
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§ 26.5 Disqualification of hearing officer.
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Representation of the Parties
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§ 26.6 Department representative.
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§ 26.7 Respondent's representative.
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§ 26.8 Standards of practice.
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Pleadings and Motions
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§ 26.9 Notice of administrative action.
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§ 26.10 Complaint.
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§ 26.11 Answer.
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§ 26.12 Amendments and supplemental pleadings.
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§ 26.13 Motions.
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§ 26.14 Form and filing requirements.
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§ 26.15 Service.
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§ 26.16 Time computation.
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Discovery
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§ 26.17 Discovery.
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§ 26.18 Depositions.
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§ 26.19 Request for production of documents.
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§ 26.20 Admissions as to facts and documents.
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§ 26.21 Prehearing conference.
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Hearings
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§ 26.22 Public nature and timing of hearings, transcripts.
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§ 26.23 Rules of evidence.
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§ 26.24 Hearing officer's determination and order.
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Secretarial Review
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§ 26.25 Review of determination of hearing officers.
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§ 26.26 Interlocutory rulings.
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Subpart B—Hearings Pursuant to the Administrative Procedure Act
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§ 26.27 Purpose and scope.
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§ 26.28 Definitions.
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§ 26.29 Powers and duties of the Administrative Law Judge (ALJ).
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§ 26.30 Ex parte contacts.
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§ 26.31 Disqualification of ALJ.
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§ 26.32 Parties to the hearing.
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§ 26.33 Separation of functions.
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§ 26.34 Time computations.
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§ 26.35 Service and filing.
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§ 26.36 Sanctions.
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Prehearing Procedures
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§ 26.37 Commencement of action.
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§ 26.38 Motions.
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§ 26.39 Default.
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§ 26.40 Prehearing conferences.
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§ 26.41 Discovery.
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§ 26.42 Subpoenas.
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§ 26.43 Protective order.
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Hearings
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§ 26.44 General.
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§ 26.45 Witnesses.
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§ 26.46 Evidence.
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§ 26.47 The record.
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§ 26.48 Posthearing briefs.
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§ 26.49 Initial decision.
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§ 26.50 Appeal to the Secretary.
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§ 26.51 Exhaustion of administrative remedies.
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§ 26.52 Judicial review.
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§ 26.53 Collection of civil penalties and assessments.
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§ 26.54 Right to administrative offset.
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