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thirtieth day after a request for hear- (b) Content. All written motions ing is made.
shall state the particular order, ruling,
or action desired and the grounds for 8 26.11 Answer.
granting the motion. Respondent shall file an answer (c) Answers. Within seven (7) days within thirty days of receipt of the after receipt of any written motion, or complaint. The answer shall respond within any other period as may be desspecifically to each factual allegation. ignated by the hearing officer, the opA general denial shall not be permit posing party shall answer the motion. ted. Where a respondent intends to Failure to make a timely answer shall rely on an affirmative defense it shall constitute a party's consent to the be pleaded specifically. Allegations are granting of the motion. The moving admitted when not specifically denied party shall have no right to reply, in respondent's answer.
except as permitted by the hearing of.
ficer. 8 26.12 Amendments and supplemental
(d) Oral argument. The hearing offipleadings.
cer may order oral argument on any (a) Amendments. (1) By right: The motion. Department may amend its complaint
(e) Motions for extensions. The hearwithout leave at any time within
ing officer may waive the requirethirty days of the date the complaint ments of this section as to motions for is filed or at any time before respond
extensions of time. ent's responsive pleading is filed,
(f) Rulings on motions for dismissal. whichever is later. Respondent may When a motion to dismiss the proceedamend its answer at any time within
ing is granted, the hearing officer thirty days of filing of its answer. A
shall make and file a determination party shall plead in response to an and order in accordance with the proamended pleading within fifteen days
visions of $ 26.24. of receipt of the amended pleading.
(2) By leave: Upon conditions as are 8 26.14 Form and filing requirements. necessary to avoid prejudicing the public interest and the rights of the
(a) Filing. An original and two copies parties, the hearing officer may allow
of a request for a hearing shall be amendments to pleadings upon motion
filed with the Docket Clerk, Departof any party.
ment of Housing and Urban Develop(3) Conformance to evidence: When
ment, 451 Seventh Street, SW., Washissues not raised by the pleadings but
ington, DC 20410, on official business reasonably within the scope of the
days between 8:45 a.m. and 5:15 p.m. proceeding initiated by the complaint
The Clerk shall assign the docket are tried by express or implied consent
number and designate a hearing offito the parties, they shall be treated in
cer. An original and two copies of all all respects as if they had been raised
other pleadings, submissions and docuin the pleadings, and amendments of
ments should be filed directly with the the pleadings necessary to make them
appropriate hearing officer. A docuconform to the evidence shall be al
ment is considered timely filed if postlowed at any time.
marked on or before the date due or (b) Supplemental pleadings. The
delivered to the appropriate person by hearing officer may, upon reasonable
close of business on the date due. notice, permit service of a supplemen
(b) Title. Documents shall show tal pleading concerning transactions,
clearly the title of the action and the occurrences, or events which have
docket number. happened or been discovered since the (c) Form. Except as otherwise perdate of prior pleadings.
mitted, all documents shall be printed
or typewritten in clear, legible form. 8 26.13 Motions. (a) Motions. All motions after the
8 26.15 Service. commencement of the action until de- (a) Method of service. Pleadings, mocision shall be addressed to the hear- tions, and other documents required ing officer.
or permitted under these rules shall be served upon all parties. Whenever quired by these rules must be per. these rules require or permit service to formed where necessary to avoid prebe made upon a party represented by judicing the public interest or the an attorney, the service shall be made rights of the parties. upon the attorney unless service upon the party is ordered by the hearing of
Subpart Discovery ficer. Service shall be made by delivering a copy to the person to be served 8 26.17 Discovery. or by mailing it to that person at the last known address. Delivery of a copy
The parties are encouraged to
engage in voluntary discovery procewithin this rule means: handing it to
dures. Parties may seek an order comthe person to be served; or leaving it at that person's office with & clerk or
pelling discovery only upon good cause
shown. Discovery shall not be permitother person in charge; or, if there is
ted where it will unduly delay the no one in charge, leaving it in a con
hearing, thereby resulting in prejudice spicuous place in the office; or, if the office is closed or the person to be
to the public interest or the rights of served has no office, leaving it at that
the parties. Every request for discov
ery, objection to request for discovery, person's residence of usual place of
and request for admissions shall be in abode with some person of suitable
the form of a motion addressed to the age and discretion who resides there.
hearing officer. In connection with Service by mail is complete upon deposit in a mail box or upon posting.
any discovery procedure, the hearing (b) Proof of service. Proof of service
officer may make any order required
to protect a party or other person shall not be required unless the fact of service is put in issue by appropriate
from annoyance, embarrassment, opmotion or objection on the part of the
pression, or undue burden or expense.
Those orders may include limitations person allegedly served. In these cases, service may be established by written
on the scope, methods, time and place
for discovery, and provisions for proreceipt signed by or on behalf of the person to be served, or may be estab
tecting privileged information or doculished prima facie by affidavit or cer
ments. Where a party refuses to honor tificate of service of mailing.
an order for discovery, the hearing of.
ficer may issue such orders in regard 8 26.16 Time computation.
to the refusal as justice shall require. (a) Generally. Computation of any
Each party shall bear its own expenses period of time prescribed or allowed
associated with discovery. by this part shall begin with the first
8 26.18 Depositions. business day following the day on which the act, event, development or
(a) General. A party may take the default initiating the period of time
oral deposition of any person. Upon occurred. When the last day of the
refusal and, after a showing of good period computed is Saturday, cause, a hearing officer may issue an Sunday, or national holiday, or other
order compelling a party or its agents day on which the Department of to appear for deposition. Housing and Urban Development is (b) Procedure. Reasonable written closed, the period shall run until the notice of deposition shall be served end of the next following business day.
upon the opposing party and the depoExcept when any prescribed or al
nent. The attendance of a deponent lowed period of time is seven days or
may be compelled by subpoena where less, each of the Saturdays, Sundays,
authorized by law. and national holidays shall be includ
(c) Objections. Each person testify. ed in the computation of the pre
ing on oral deposition shall be placed scribed or allowed period.
under oath by the person before (b) Extensions of time periods. The hearing officer (or in the case of a
whom the deposition is taken. The de
ponent may be examined and cross-ex. review under $26.25, the Secretary or
amined. Objection may be made at designee) may upon motion enlarge the time within which any act re
hearing to receiving in evidence any deposition or part of it for any reason
Office of the Secretary, HUD
which would require the exclusion if filed, any party may serve upon any the witness were then present and tes- other party a written request to tifying. The questions and the an- produce, and permit the party making swers, together with all objections the request to inspect and copy, any made, shall be recorded by the person relevant designated documents (inbefore whom the deposition is to be cluding writings, drawings, graphs, taken, or under that person's direc- charts, and other data compilations). tion.
The request shall set forth the items (d) Submission to deponent. A tran- to be inspected either by individual script of the deposition shall be sub- item or by category with reasonable mitted to the deponent for examina- particularity. The request shall specify tion and signature, unless submission a reasonable time, place, and manner is waived. Any changes in form or sub- of making the inspection and performstance which the deponent desires to ing the related acts. make shall be entered upon the tran
(b) Response to request to produce. script by the person before whom the
The party upon whom the request is deposition was taken, with a statement served shall serve a written response of reasons given by the deponent for
within twenty days after service of the making them. The transcript shall
request unless the Hearing Officer dethen be signed by the deponent, unless
termines that a shorter or longer the parties by stipulation waive the
period is appropriate under the cirsigning or the deponent is ill, cannot
cumstances. The response shall state, be found, or refuses to sign. If the
with respect to each item or category, transcript is not signed, the person
that inspection and related activities before whom the deposition was taken
will be permitted as requested, unless shall sign it and state on the record
the request is objected to, in which the reason that it is not signed.
case the reasons for the objection (e) Certification and filing. The
shall be stated. If objection is made to person before whom the deposition
part of an item or category, the part was taken shall certify on the tran
shall be specified. The party submitscript as to its accuracy. The original
ting the request may move for an transcript and exhibits shall be sent
order under $26.17 with respect to any by mail to the hearing officer unless
objection to or other failure to reotherwise directed in the order au
spond to the request or any part thorizing the taking of the deposition.
thereof, or any failure to permit inInterested parties shall make their own arrangements with the person re
spection as requested. cording the testimony for copies of the
8 26.20 Admissions as to facts and docutestimony and the exhibits.
ments. (1) Deposition as evidence. Subject to appropriate rulings by the hearing (a) Request for admissions. At any officer on objections, the deposition or time after an answer has been filed, any part may be introduced into evi- any party may serve upon any other dence for any purpose if the deponent party a written request for the admisis unavailable. Only that part of a dep- sion of the genuineness of any releosition which is received in evidence at vant documents described in the rea hearing shall constitute a part of the quest or of the truth of any relevant record in the proceeding upon which a matters of fact. Copies of documents decision may be based. Nothing in this shall be delivered with the request rule is intended to limit the use of a unless copies have already been furdeposition for impeachment purposes. nished. No order of the hearing officer
(g) Payment of fees. Fees shall be is necessary. paid by the person upon whose appli- (b) Objection. Each requested admiscation the deposition is taken.
sion shall be considered admitted
unless, within fifteen days after serv. 8 26.19 Request for production of docu
ice of the request, the party from ments.
whom the admission is sought serves (a) Request to produce. At any time upon the party making the request after a request for hearing has been either (1) a statement denying specifi
callly the relevant matters of which an
Subpart F-Hearings admission is requested or setting forth in detail the reasons why the party 8 26.22 Public nature and timing of hearcan neither truthfully admit nor deny ings, transcripts. them, or (2) written objections on the (a) Public hearings. All hearings in ground that some or all of the matters
adjudicative proceedings shall
be involved are previleged or irrelevant. public. Answers on matters to which objec- (b) Conduct of hearing. Hearings tions are made may be deferred until shall proceed with all reasonable the objections are ruled upon, but if speed. The hearing officer may order written objections are made only to a recesses for good cause, stated on the part of a request, the remainder of the record. The hearing officer may, for request shall be answered.
convenience of the parties or in the in(c) Limitation. Admissions obtained
terests of justice, order that hearings pursuant to this procedure may be
be conducted outside Washington, DC, used in evidence only for the purposes
and, if necessary, at more than one of the pending action to the same
place. extent and subject to the same objec
(c) Transcripts. Hearings shall be re
corded and transcribed only by a retions as other evidence.
porter designated by the Department 8 26.21 Prehearing conference.
under the supervision of the hearing
officer. The original transcript shall (a) Prehearing conference. The hear.
be a part of the record and shall coning officer may, on the hearing offi
stitute the sole official transcript. Recer's own motion or at the request of spondents and the public, at their own any party, direct counsel for all par- expense, may obtain copies of tranties to confer with the hearing officer scripts from the reporter. before the hearing for the purpose of considering:
8 26.23 Rules of evidence. (1) Simplification and clarification (a) Evidence. Every party shall have of the issues;
the right to present its case or defense (2) Stipulations and admissions of by oral and documentary evidence, fact and of the contents and authen
unless otherwise limited by law or regticity of documents;
ulation, to submit rebuttal evidence (3) The disclosure of the names of
and to conduct such cross-examination witnesses;
as may be required for a full and true (4) Matters of which official notice
disclosure of the facts. Irrelevant, imwill be taken;
material, privileged, or unduly repeti
tious evidence shall be excluded. (5) Other matters as may aid in the orderly disposition of the proceeding, Unless otherwise provided for in this including disclosure of the documents part, the Federal Rules of Evidence or other physical exhibits which will shall provide guidance for the conduct be introduced in evidence in the of proceedings under this part. Parties course of the proceeding.
may object to clearly irrelevant mate(b) Recordation of prehearing con
rial, but technical objections to testiference. The prehearing conference
mony as used in a court of law will not
be sustained. shall, at the request of any party, be
(b) Testimony under oath or affirmarecorded or transcribed.
tion. All witnesses shall testify under (c) Order on prehearing conference.
oath or affirmation. The hearing officer shall enter in the
(c) Objections. Objections to the adrecord an order which states the rul
mission or exclusion of evidence shall ings upon matters considered during
be in short form, stating the grounds the conference, together with appro- of objections. Rulings on objections priate directions to the parties. The shall be a part of the transcript. Failorder shall control the subsequent ure to object to admission or exclusion course of the proceeding, subject to of evidence or to any evidentiary modifications upon good cause shown. ruling shall be considered a waiver of
objection, but no exception to a ruling evidence. This determination and on an objection is necessary in order order shall be served upon all parties. to preserve it for appeal.
(d) Bench decisions. Where the par(d) Authenticity of documents. ties agree and where appropriate in Unless specifically challenged, it shall the judgment of the hearing officer, a be presumed that all relevant docu- bench decision will be issued. ments are authentic. An objection to
(e) Time period for issuance of deci. the authenticity of a document shall sion. The hearing officer shall ennot be sustained merely on the basis deavor to issue a determination within that it is not the original.
sixty days from the date of the closing (e) Stipulations. The parties may of the record. stipulate as to any relevant matters of
(f) Finality of decision. The determifact. Stipulations may be received in nation and order shall be final unless evidence at a hearing, and when re
a party timely appeals the decision ceived shall be binding on the parties and within forty days the Secretary with respect to the matters stipulated.
decides to review the determination in (f) Official notice. All matters offi.
accordance with 26.25, or to have the cially noticed by the hearing officer determination reviewed by a designee. shall appear on the record.
(g) Burden of proof. The burden of proof shall be upon the proponent of
Subpart 6-Secretarial Review an action or affirmative defense unless
8 26.25 Review of determination of hear. otherwise provided by law or regula
ing officers. tion.
(a) Petition for review. Any party 8 26.24 Hearing officer's determination may request review of the hearing of. and order.
ficer's determination or order by filing (a) Scope of review. The hearing of
a written petition for review with the ficer shall conduct a de novo review of
Secretary within fifteen days of rethe administrative action to determine ceipt of the hearing officer's determiwhether it is supported by a prepon.
nation or order. A petition for review derance of the evidence unless a dif.
may be granted or denied in the disferent standard of proof is required by
cretion of the Secretary or designee. law or regulation. Each and every
This petition shall not exceed ten charge alleged by the Department pages and shall specifically state the need not be proven to support the ad
issues and basis upon which the party ministrative action. The hearing offi
seeks review. This petition shall be cer may modify or vacate the adminis
served on all parties and the Secretary trative action under review only upon
simultaneously, in accordance with a particularized finding of facts which
§ 26.15. justifies a deviation from the adminis
(b) Briefs by opposing parties. Optrative action.
posing parties may submit briefs, not (b) Closing of hearing. At the discre- to exceed ten pages, opposing review. tion of the hearing officer, the closing These briefs must be filed within fifof the record may be postponed in
teen days of the party's receipt of a order to permit the admission of other petition for review. evidence into the record. In the event
(c) Secretarial action. Upon granting further evidence is admitted, each any petition for review, the Secretary party shall be given an opportunity to
or designee, may require further respond to such evidence.
briefs. Secretarial review shall be lim(c) Briefs. Upon conclusion of the ited to the factual record produced hearing, the hearing officer may re- before the hearing officer. The Secrequest the parties to file proposed find. tary, or designee, shall issue a written ings of fact and legal briefs. The hear- determination and shall serve it upon ing officer shall make a written deter- the parties and the hearing officer. mination and order based upon evidence and arguments presented by the
8 26.26 Interlocutory rulings. parties. The determination shall be (a) Interlocutory rulings by the hearfounded upon reliable and probative ing officer. A party seeking review of