24 C.F.R. Subpart B—Hearings Pursuant to the Administrative Procedure Act
Title 24 - Housing and Urban Development
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.
Title 24: Housing and Urban Development
PART 26—HEARING PROCEDURES
Subpart B—Hearings Pursuant to the Administrative Procedure Act
§ 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.
(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.
§ 26.45 Witnesses.
(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.
§ 26.46 Evidence.
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.
§ 26.47 The record.
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.
§ 26.48 Posthearing briefs.
Posthearing briefs shall be filed only upon order by the ALJ.
§ 26.49 Initial decision.
(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.
§ 26.50 Appeal to the Secretary.
(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.
§ 26.51 Exhaustion of administrative remedies.
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.
§ 26.52 Judicial review.
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.
§ 26.53 Collection of civil penalties and assessments.
Collection of civil penalties and assessments shall be in accordance with applicable statutory provisions.
§ 26.54 Right to administrative offset.
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.
Browse Previous
