45 C.F.R. Subpart C—Challenges to Listing on Eligibility List
Title 45 - Public Welfare
This subpart prescribes the procedure that governs a challenge to a listing on an eligibility list under the Act. A challenge to a listing on an eligibility list may be made only on the basis of fraud or that the challenged person does not have the prescribed qualifications. A challenge shall be filed within 10 days after the listing of the challenged person is made available for public inspection as provided in §801.207 by delivering or mailing the challenge to the Examiner (State Supervisor), U.S. Office of Personnel Management, in the State involved at the address set out in appendix C to this part. (a) A challenge shall be under oath and shall contain: (1) The name and address of the OPM office to which it is submitted; (2) The date of submission; (3) The name and address of the challenger; (4) The name and address of his representative, if any; (5) The name and address of the challenged person and his certificate number as they appear on the eligibility list; (6) A written statement setting forth in plain and concise language the facts constituting the grounds for challenging the listing of the challenged person on the eligibility list; (7) Affidavits of at least two persons (one of whom may be the challenger) with their addresses, stating that they have personal knowledge of the facts that constitute the grounds for challenge and setting forth those facts in plain and concise language. Each affidavit shall be sworn to before a person authorized to administer oaths; and (8) A certification that service of the challenge on the challenged person has been made as required by paragraph (b) of this section. (b) The challenger shall file his challenge in triplicate and shall have a copy of it served on the challenged person. That service may be in person or by first-class mail properly addressed with charges prepaid. (a) When a challenge is not timely filed or served or does not meet the requirements of §801.304, it shall not be entertained but shall be rejected. (b) When a challenge is not rejected under paragraph (a) of this section, the hearing officer shall place it on the docket. If on review of a challenge a hearing officer determines that the information, even if true and known at the time of listing, would not have disqualified the challenged person, he shall issue a decision denying the challenge without further proceeding and notify the parties of his reasons for this decision. After docketing, and if not denied under §801.306, the challenge shall be set for hearing. The challenger and the challenged person shall be sent a notice of the date, time, and place of the hearing and advised of the rights and duties of the parties including the right to request a subpena. The notice of hearing shall be dated and the date of the hearing shall not be less than 5 days from the date of that notice. The notice of hearing shall be served on the challenger and the challenged person either personally or by mail. (a) The challenger has the burden of proceeding and proof at the hearing and shall appear personally or with a representative to prosecute the challenge, except that when a continuance is sought the challenger may appear by a representative. If a challenger fails to appear personally to prosecute the challenge, the hearing officer shall issue a decision denying the challenge or make such other disposition as is warranted by the circumstances. (b) The challenged person has the right to appear at the hearing personally or by or with a representative, and to present witnesses and documentary evidence in his behalf. A request for a continuance of a hearing shall be filed with the hearing officer at the place and on the day of the hearing. The hearing officer shall not grant a continuance except under extraordinary circumstances. A hearing shall be open to the public and held at the time and place specified in the notice of hearing. A hearing shall be recorded by an official reporter designated by the OPM, under the supervision of the hearing officer. A party may obtain a copy of the transcript from the official reporter at a rate not in excess of the maximum rate fixed by contract between the OPM and the reporter. In addition to the powers otherwise vested in a hearing officer by this subpart, a hearing officer shall have the power to: (a) Administer oaths and affirmations; (b) Issue and quash subpenas; (c) Regulate the course of the hearing; (d) Rule on offers of proof; (e) Permit a party to withdraw from a hearing on a showing of good cause; (f) Limit the number of witnesses whose testimony would be cumulative; (g) Deny a challenge for failure to prosecute; (h) Exclude any person from the hearing for contumacious conduct or misbehavior that obstructs the hearing; and (i) Take any other action in the course of the hearing consistent with law that is necessary to carry out the spirit and intent of the Act. (a) A witness shall testify under oath or affirmation and shall be subject to cross-examination. (b) A witness who is summoned and responds is entitled to the same witness and mileage fees as are paid for like service in the courts of the United States. The party at whose instance the testimony is taken shall pay the witness and mileage fees. (a) On the request of a party and for good cause shown, a hearing officer may issue a subpena for the appearance of a witness or for the production of documentary evidence. (b) A hearing officer may quash a subpena for good cause shown. (c) The party at whose request a subpena is issued is responsible for arranging for service. The officer or person making service shall show the original subpena to the person served, read the subpena to him if he is unable to read, and deliver a copy of the subpena to him. (d) When a U.S. Marshal or his deputy serves a subpena, he shall evidence the service by his return on the subpena. When someone other than a U.S. Marshal or his deputy serves a subpena, the person serving the subpena shall make an affidavit, stating the date, time, and the manner of service, and shall return the affidavit on, or with, the original subpena in accordance with the form thereon. When the U.S. Marshal, his deputy, or other person, as appropriate, cannot serve the subpena, he shall state his reason for the failure on the original subpena. When the person named in the subpena accepts service of the subpena in writing, no other evidence of return is necessary. The person responsible for serving a subpena shall return the original subpena, bearing or accompanied by the required return, affidavit, statement, or acceptance of service, to the officer presiding at the hearing at which the person subpenaed is required to appear. (a) The application of the challenged person is prima facie evidence that he has the qualifications that are stated in the application. (b) Rules of evidence are not strictly applied but the hearing officer shall exclude irrelevant or unduly repetitious evidence. (c) Each exhibit of a documentary character shall be submitted to the hearing officer, duly marked, and made a part of the record. An exhibit does not become evidence unless received in evidence by the hearing officer. The hearing officer who presided at the hearing, unless he has become unavailable, shall decide the case on the record. If no hearing is held, the hearing officer to whom the challenge was assigned shall decide the case on the record. The decision shall be in writing and shall state the reasons or basis for the decision. Copies of the decision shall be served on the parties. The decision shall be issued not more than 15 days after the challenge is docketed under §801.305. The record, including the decision, shall be certified as true and complete by the hearing officer and forwarded to the Examiner (State Supervisor), U.S. Office of Personnel Management in the State involved at the address set out in appendix C to this part. It shall be available to interested persons at that office. When a hearing officer sustains a challenge, he shall, after the courts have finally sustained his decision or the time for petitioning for a court review of that decision has expired, instruct an examiner to remove the name of the challenged person from the eligibility list and cancel that person's certificate evidencing his eligibility to vote. The examiner shall notify the challenged person, the appropriate election official, the Attorney General, and the attorney general of the appropriate State of his action. There is no administrative appeal from the decision of a hearing officer or from any of his rulings. A petition for review of the decision of a hearing officer may be filed in court as provided in the Act.
Title 45: Public Welfare
PART 801—VOTING RIGHTS PROGRAM
Subpart C—Challenges to Listing on Eligibility List
§ 801.301 Scope.
§ 801.302 Basis of challenge.
§ 801.303 Time and place of challenge.
§ 801.304 Form of challenge.
§ 801.305 Rejection and docketing of challenge.
§ 801.306 Summary denial of challenge by hearing officer.
§ 801.307 Notice of hearing.
§ 801.308 Rights and duties of parties.
§ 801.309 Continuance.
§ 801.310 Hearing.
§ 801.311 Powers of hearing officer.
§ 801.312 Witnesses.
§ 801.313 Subpena.
§ 801.314 Evidence.
§ 801.315 Decision.
§ 801.316 Action after challenge is sustained.
§ 801.317 Appeal.
