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quirements have been satisfied, the ble civil rights official of this DepartSecretary shall restore such eligibility. ment.
(3) If the Secretary denies any request under paragraph (f)(2) of this
Subpart E-Practice and Procedure section, the applicant or recipient may
for Hearings submit a written request for a hearing specifying why the denial of the re
88.60 General information. quest is in error. The applicant or recipient shall thereupon be given an ex
(a) Scope of rules. The rules of propeditious hearing, with a decision on cedure in this subpart supplement subthe record, in accordance with subpart part D and govern the practice for E. The applicant or recipient will be hearings, decisions, and administrative restored to such eligibility if it proves review conducted by HUD, including at such a hearing that it satisfied the each of its organizational units, under requirements of paragraph (f)(1) of this part. this section. While proceedings under (b) Records to be public. All pleadthis paragraph are pending, the sanc- ings, correspondence, exhibits, tran. tions imposed by the order issued scripts of testimony, exceptions, briefs, under paragraph (e) of this section decisions, and other documents filed in shall remain in effect.
the docket in any proceeding may be (g) Judicial review. A final decision inspected and copied in the office of rendered under this section consti- the Civil Rights docket clerk during tutes final action under section 704 of
regular business hours. Inquiries may the Administrative Procedure Act (5 be addressed to the Civil Rights U.S.C. 704) and, to the extent it is not docket clerk, Department of Housing barred by other provisions of law, such
and Urban Development, Washington, a final decision is subject to judicial DC 20410. review under section 706 of the Ad
(c) Use of number. As used in this ministrative Procedure Act (5 U.S.C.
subpart, words importing the singular 706).
number may extend and be applied to (h) Forms and instruction. The re
several persons or things, and vice sponsible civil rights official shall
versa. assure that forms and detailed instructions and procedures for effectuating trative law judge with respect to pend
(d) Suspension of rules. The administhis part are issued and promptlying matters may modify or waive any made available to interested persons.
rule in this subpart upon a determina(i) Supervision and coordination.
tion that no party will be unduly prej. The Secretary may periodically assign
udiced and the ends of justice will be to officials of the Department, or to officials of other departments or agen
served, and upon notice to all parties. cies of the Government with the con
8 8.61 Appearance and practice. sent of the department or agency, responsibilities under this part (other (a) Appearance. A party may appear than responsibility for final decision in person or by counsel and participate as provided in 88.59). Such responsi- fully in any proceeding. A State bilities may include the achievement agency or any instrumentality thereof, of effective coordination and maxi- a political subdivision of the State or mum uniformity within the Depart. instrumentality thereof, or a corporament and within the Executive tion may appear by any of its officers Branch of the Government in the ap- or employees duly authorized to plication of this part to similar pro- appear on its behalf. Counsel must be grams or activities and in similar situa- members in good standing of the bar tions. Any action taken, determination of any State, Territory, or possession made, or requirement imposed by an of the United States or of the District official of another department or of Columbia or the Commonwealth of agency acting under an assignment of Puerto Rico. responsibility under this paragraph (b) Authority for representation. Any shall have the same effect as if the individual acting in a representative action has been taken by the responsi- capacity in any proceeding may be required to show authority to act in the the proceedings under this subpart, capacity.
but may petition, after proceedings (c) Exclusion from hearing for mis- are initiated, to become an amicus conduct. Disrespectful, disorderly, or curiae. In any event a complainant contumacious language or contemptu. shall be advised of the time and place ous conduct, refusal to comply with di- of the hearing. rections, or continued use of dilatory tactics by any person at any hearing 8 8.63 Form, execution, service and filing before an administrative law judge of documents. shall constitute grounds for immediate
(a) Form of documents to be filed. exclusion of the person from the hear
Documents to be filed under the rules ing by the administrative law judge.
of this subpart shall be dated, the 88.62 Parties.
original signed in ink, shall show the
docket description and title of the pro(a) Parties; General Counsel a party.
ceeding and the title, if any, and ad(1) The term party shall include an ap
dress of the signatory. Copies need not plicant or recipient, or other person
be signed, but the name of the person who has been served with a notice of
signing the original shall be reprohearing or opportuntiy for hearing
duced. Documents shall be legible and naming him or her as respondent.
shall not be more than 842 inches wide (2) The General Counsel of HUD
and 12 inches long. shall be a party to all proceedings.
(b) Signature of documents. The sig(b) Amici curiae. (1) Any interested
nature of a party, authorized officer, person or organization may file a petition to participate in a proceeding as
employee or attorney constitutes a an amicus curiae. The petition shall be
certificate that he or she has read the filed before the prehearing conference
document, that to the best of his or or, if none is held, before the com
her knowledge, information, and belief mencement of the hearing, unless the
there is good ground to support it, and petitioner shows good cause for filing
that it is not interposed for delay. If a the petition later. The administrative
document is not signed or is signed law judge may grant the petition if he
with intent to defeat the purpose of or she finds that the petitioner has a
this section, it may be stricken as legitimate interest in the proceedings,
sham and false and the proceeding and that the participation will not
may proceed as though the document unduly delay the outcome and may
had not been filed. Similar action may contribute materially to the proper
be taken if scandalous or indecent disposition of the proceeding. An
matter is inserted. amicus curiae is not a party and may
(c) Filing and service. All notices by not introduce evidence at a hearing.
the administrative law judge, and all (2) An amicus curiae may submit a written motions, requests, petitions, statement of position to the adminis- memoranda, pleadings, exceptions, trative law judge before the hearing, briefs, decisions, and correspondence and shall serve a copy on each party.
to the administrative law judge from a The amicus curiae may submit a brief party, or vice versa, relating to a proon each occasion that a decision is to ceeding after its commencement shall be made or a prior decision is subject be filed and served on all parties. Par. to review. The briefs shall be filed and ties shall supply the original and two served on each party within the time copies of documents submitted for limits applicable to the party that the filing. Filings shall be made with the amicus curiae supports; or if the Civil Rights docket clerk at the adamicus curiae does not support the po- dress stated in the notice of hearing or sition of any party, within the longest notice of opportunity for hearing, time limit applicable to any party at during regular business hours. Regular that particular stage of the proceed business hours are every Monday ings.
through Friday (legal holidays in the (c) Complainants not parties. A District of Columbia excepted) from person filing a complaint under 8:45 a.m to 5:15 p.m, e.s.t. or d.s.t.,
8.56(c) of this part is not a party to whichever is effective in the District
of Columbia at the time. Originals quests may be granted upon a showing only of exhibits and transcripts of tes- of good cause by the applicant. From timony need be filed. For require the designation of an administrative ments of service on amici curiae, see law judge until the issuance of his or $ 8.69(f).
her decision, such requests should be (d) Service-how made. Service shall addressed to him or her. Answers to be made by personal delivery of one such requests are permitted if made copy to each person to be served or by promptly. registered or certified mail, return re- (c) Reduction of time to file docuceipt requested, properly addressed ments. For good cause, the administrawith postage prepaid. When a party or tive law judge with respect to pending amicus has appeared by attorney or matters may reduce any time limit other representative, service upon prescribed under this subpart, except such attorney or representative will be as provided by law or other provisions deemed service upon the party or in this part. amicus. Documents served by mail preferably should be mailed in suffi- 8 8.65 Proceedings prior to hearing. cient time to reach the addressee by the date on which the original is due
(a) Notice of hearing or opportunity to be filed.
for hearing. Proceedings are com(e) Date of service. The date of serv
menced by mailing a notice of hearing ice shall be the day when the matter is
or opportunity for hearing to an af. deposited in the U.S. mail or is deliv
fected applicant or recipient under ered in person, except that the date of
this part. service of the initial notice of hearing
(b) Answer to notice. The respondor opportunity for hearing shall be ent, applicant, or recipient may file an the date of its delivery, or of its at
answer to the notice within 20 days tempted delivery if refused.
after service. Answers shall admit or (f) Certificate of service. The origi- deny specifically and in detail each alnal of every document filed and re- legation of the notice, unless the required to be served upon parties to a sponding party is without knowledge, proceeding shall be endorsed with a in which case the answer should so certificate of service signed by the state, and the statement will be party making service or by his or her deemed a denial. Allegations of fact in attorney or representative. The certifi- the notice that are not denied or concate of service shall state that service troverted by answer shall be deemed has been made, the date of service, admitted. Matters alleged as affirmaand the manner of service, whether by
tive defenses shall be separately stated mail or personal delivery.
and numbered. Failure of the respond
ent to file an answer within the 20-day 8 8.64 Time.
period following service of the notice (a) Computation. In computing any may be deemed an admission of all period of time under this subpart or matters of fact recited in the notice. orders issued under this subpart, the (c) Amendment of notice or answer. time begins with the day following the The General Counsel may amend the act, event, or default, and includes the notice of hearing or opportunity for last day of the period, unless it is a hearing once before an answer is Saturday, Sunday, or legal holiday ob- served. Each respondent may amend served in the District of Columbia, in his or her answer once not later than which event it includes the next fol- 10 days before the date fixed for hearlowing business day. When the period ing but in no event later than 20 days of time prescribed or allowed is less from the date of service of his or her than 7 days, intermediate Saturdays, original answer. Otherwise a notice or Sundays, and legal holidays shall be answer may be amended only by leave excluded from the computation.
of the administrative law judge. A re(b) Extension of time or postpone- spondent shall file an answer to an ment. Requests for extension of time amended notice within the time reshall be served on all parties and set maining for filing the answer to the forth the reasons for the request. Re- original notice or within 10 days after
service of the amended notice, which- not be delayed pending disposition of fver period is longer, unless the ad. motions or petitions. Oral motions and ministrative law
judge otherwise petitions may be ruled on immediate. orders.
ly. Motions and petitions submitted to (d) Request for hearing. Within 20 the administrative law judge, and not days after service of a notice of oppor. disposed of in separate rulings or in tunity for hearing that does not fix a their respective decisions, will be date for hearing, the respondent, deemed denied. Oral argument shall either in the answer or in a separate not be held on written motions or petidocument, may request a hearing. tions unless the administrative law Failure of the respondent to request a judge in his or her discretion expressly hearing shall be deemed a waiver of all
so orders. right to a hearing and to constitute consent to the making of a decision on 8 8.66 Responsibilities and duties of adthe basis of such information as is ministrative law judge. available.
(a) Responsibility to preside. An ad(e) Consolidation. The administra
ministrative law judge shall preside tive law judge may provide for pro
over all proceedings held under this ceedings in the Department to be
subpart. joined or consolidated for hearing with proceedings in other Federal de
(b) Designation of administrative
law judge. The designation of an adpartments or agencies, by agreement with such other departments or agen
ministrative law judge shall be in writcies. All parties to any proceeding con
ing, shall specify whether the adminissolidated subsequently to service of
trative law judge is to make an initial the notice of hearing or opportunity
decision or to certify the entire record, for hearing shall be promptly served
including his or her recommended with notice of such consolidation.
findings and proposed decision, to the (f) Motions. Motions and petitions
Secretary, and may fix the time and shall state the relief sought, the au
place of hearing. A copy of such desig. thority relied upon, and the facts al
nation shall be served on all parties. leged. If made before or after the
After service of the designation of an hearing, these matters shall be in writ- administrative law judge, and until the ing. If made at the hearing, they may
administrative law judge makes the be stated orally; but the administra
decision, motions and petitions shall tive law judge may require that they be submitted to him or her. In the be reduced to writing and filed and case of the death, illness, disqualificaserved on all parties in the same
tion, or unavailability of the designatmanner as a formal motion. Motions, ed administrative law judge, another answers, and replies shall be addressed
administrative law judge may be desig. to the administrative law judge. A rep
nated to take his or her place. etitious motion will not be enter- (c) Authority of administrative law tained.
judge. The administrative law judge (g) Responses to motions and peti. shall have the duty to conduct a fair tions. Within 8 days after a written hearing, to take all necessary action to motion or petition is served, or such avoid delay, and to maintain order. He other period as the administrative law or she shall have all powers necessary judge may fix, any party may file a re- to these ends, including (but not limitsponse. An immediate oral response
ed to) the power to: may be made to an oral motion.
(1) Arrange and issue notice of the (h) Disposition of motions and peti- date, time and place of hearings or, tions. The administrative law judge upon due notice to the parties, change may not sustain or grant & written the date, time and place of hearings motion or petition before expiration of previously set. the time for filing responses, but may (2) Hold conferences to settle, simoverrule or deny such motion or peti- plify, or fix the issues in a proceeding, tion without awaiting responses: Pro- or to consider other matters that may vided, however, that prehearing con- aid in the expeditious disposition of terences, hearings, and decisions need the proceeding.
(3) Require parties and amici curiae that there are no matters of material to state their position with respect to fact in dispute, the administrative law the various issues in the proceeding. judge may enter an order so finding,
(4) Administer oaths and affirma. vacating any hearing date and fixing tions.
the time for filing briefs under (5) Rule on motions and other proce- $ 8.69(a). Thereafter the proceedings dural items on matters pending before shall go to conclusion in accordance him or her.
with $ 8.69 of this part. The adminis(6) Regulate the course of the hear- trative law judge may allow an appeal ing and the conduct of counsel there- in accordance with paragraph (p) of in.
this section. (7) Examine witnesses and direct (c) Testimony. Testimony shall be witnesses to testify.
given orally under oath or affirmation (8) Receive, rule on, exclude, or limit by witnesses at the hearing. The adevidence.
ministrative law judge, in his or her (9) Fix the time for filing motions, discretion, may require or permit that petitions, briefs, or other items in mat- the direct testimony of any witness be ters pending before him or her.
prepared in writing and served on all (10) Issue initial or recommended de- parties in advance of the hearing. cisions.
Such testimony may be adopted by (11) Take any action authorized by the witness at the hearing and filed as the rules in this subpart or in con- part of the record. Unless authorized formance with the provisions of 5 by the administrative law judge, witU.S.C. 551-559 (the Administrative nesses will not be permitted to read Procedure Act).
prepared testimony into the record.
Except as provided in paragraphs (e) 8 8.67 Hearing procedures.
and (f) of this section, witnesses shall (a) Statements of positions and trial be available at the hearing for crossbriefs. The administrative law judge examination. may require parties and amici curiae (d) Exhibits. Proposed exhibits shall to file written statements of position be exchanged at the pre-hearing conbefore a hearing, to submit trial briefs, ference, or otherwise before the hearand to participate in conferences to ing if the administrative law judge so settle, simplify, or fix the issues in a requires. Proposed exhibits not exproceeding.
changed may be denied admission as (b) Evidentiary purpose. (1) The ad- evidence. The authenticity of all proministrative law judge is directed to posed exhibits exchanged before hearreceiving factual evidence and expert ing will be deemed admitted unless opinion testimony related to the issues written objection is filed before the in the proceeding. Argument will not hearing, or unless good cause is shown be received in evidence; rather it at the hearing for failure to file such should be presented in statements, written objection. memoranda, or briefs, as determined (e) Affidavits. An affidavit is not inby the administrative law judge. Brief admissible as such. Unless the adminopening statements, which shall be istrative law judge fixes other time pelimited to statement of the party's po- riods, affidavits shall be filed and sition and what he or she intends to served on the parties not later than 15 prove, may be made at hearings.
days before the hearing. Not less than (2) Hearings for the receipt of evi. seven days before the hearing, a party dence will be held only in cases where may file and serve written objection to issues of fact must be resolved in order any affidavit on the ground that it is to determine whether the respondent necessary to test the truth of asserhas failed to comply with one or more tions therein at hearing. In this event applicable requirements of this part. the assertions objected to will not be Where the respondent's answer to the received in evidence unless the affiant notice of hearing or opportunity for is made available for cross-examinahearing, his or her failure timely to tion, or the administrative law judge answer, or from his or her admissions determines that cross-examination is or stipulations in the record, indicate not necessary for the full and true dis