Page images

For requirements of service on amici days, and legal holidays shall be excuriae, see § 18b.76.

cluded from the computation. $18b.23 Service; how made.

8 18b.27 Extension of time or postponeService shall be made by personal de

nal de

ment. livery of one copy to each person to be Requests for extension of time should served or by mailing by first-class be served on all parties and should set mail, properly addressed with postage forth the reasons for the application. prepaid. When a party or amicus has Applications may be granted upon a appeared by attorney or other rep

showing of good cause by the applicant. resentative, service upon such attorney

From the designation of a presiding ofor representative, will be deemed serv

ficer until the issuance of a decision ice upon the party or amicus. Docu

such requests should be addressed to ments served by mail preferably should

the presiding officer. Answers to such be mailed in sufficient time to reach

requests are permitted, if made the addressee by the date on which the

promptly. original is due to be filed, and should be airmailed if the addressee is more [35 FR 10760, July 2, 1970, as amended at 51 than 300 miles distant.

FR 10386, Mar. 26, 1986) $185.24 Date of service.

818b.28 Reduction of time to file docuThe date of service shall be the day ments. when the matter is deposited in the For good cause, the reviewing auU.S. mail or is delivered in person, ex

thority or the presiding officer, with cept that the date of service of the ini

respect to matters pending before tial notice of hearing or opportunity

them, may reduce any time limit prefor hearing shall be the date of its de

scribed by the rules in this part, except livery, or of its attempted delivery if

as provided by law or in part 18 of this refused.

chapter. $ 18b.25 Certificate of service.

PROCEEDINGS BEFORE HEARING The original of every document filed and required to be served upon parties $18b.30 Notice of hearing or opporto a proceeding shall be endorsed with tunity for hearing. a certificate of service signed by the

Proceedings are commenced by mailparty making service or by the party's

ing a notice of hearing or opportunity attorney or representative, stating

for hearing to an affected applicant or that such service has been made, the

recipient, pursuant to $818.9 and 18a.5 date of service, and the manner of serv

of this chapter. ice, whether by mail or personal delivery.

8 18b.31 Answer to notice. (35 FR 10760, July 2, 1970, as amended at 51

The respondent, applicant or recipiFR 10386, Mar. 26, 1986)

ent may file an answer to the notice TIME

within 20 days after service thereof.

Answers shall admit or deny specifi$ 18b.26 Computation.

cally and in detail each allegation of In computing any period of time the notice, unless the respondent party under the rules in this part or in an

is without knowledge, in which case order issued hereunder, the time begins the answer should so state, and the with the day following the act, event, statement will be deemed a denial. Alor default, and includes the last day of legations of fact in the notice not dethe period, unless it is a Saturday, nied or controverted by answer shall be Sunday, or legal holiday observed in deemed admitted. Matters alleged as the District of Columbia, in which affirmative defenses shall be separately event it includes the next following stated and numbered. Failure of the rebusiness day. When the period of time spondent to file an answer within the prescribed or allowed is less than 7 20-day period following service of the days, intermediate Saturdays, Sun- notice may be deemed an admission of

all matters of fact recited in the notice.

(35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986)

$ 18b.32 Amendment of notice or an.

swer. The General Counsel may amend the notice of hearing or opportunity for hearing once as a matter of course before an answer thereto is served, and each respondent may amend the answer once as a matter of course not later than 10 days before the date fixed for hearing but in no event later than 20 days from the date of service of the original answer. Otherwise a notice or answer may be amended only by leave of the presiding officer. A respondent shall file the answer to an amended notice within the time remaining for filing the answer to the original notice or within 10 days after service of the amended notice, whichever period may be the longer, unless the presiding officer otherwise orders.

$ 18b.35 Motions.

Motions and petitions shall state the relief sought, the authority relied upon, and the facts alleged. If made be fore or after the hearing, these matters shall be in writing. If made at the hearing, they may be stated orally; but thpresiding officer may require that they be reduced to writing and filed and served on all parties in the same macner as a formal motion. Motions, answers, and replies shall be addressed to the presiding officer, if the case is pending before the officer. A repetitious motion will not be entertained.

(35 FR 10760, July 2, 1970, as amended at 5. FR 10386, Mar. 26, 1986)

§ 18b.36 Responses to motions and pe

titions. Within 8 days after a written motion or petition is served, or such other period as the reviewing authority or the presiding officer may fix, any party may file a response thereto. An imme diate oral response may be made to an oral motion.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]

§ 18b.33 Request for hearing.

Within 20 days after service of a notice of opportunity for hearing which does not fix a date for hearing the respondent, either in the answer or in a separate document, may request a hearing. Failure of the respondent to request a hearing shall be deemed a waiver of the right to a hearing and to constitute consent to the making of a decision on the basis of such information as is available.

$ 18b.37 Disposition of motions and pe

titions. The reviewing authority or the presiding officer may not sustain or grant a written motion or petition prior to expiration of the time for filing responses thereto, but may overrule or deny such motion or petition without awaiting response: Provided, however, That prehearing conferences, hearings and decisions need not be delayed pending disposition of motions or petitions Oral motions and petitions may be ruled on immediately. Motions and petitions submitted to the reviewing authority or the presiding officer, respectively, and not disposed of in separate rulings or in their respective decisions will be deemed denied. Oral arguments shall not be held on written motions or petitions unless the presiding officer in the officer's discretion expressly so orders.

(35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986)

§ 18b.34 Consolidation.

The reviewing authority may provide for proceedings in the Department of Veterans Affairs to be joined or consolidated for hearing with proceedings in other Federal departments or agencies, by agreement with such other departments or agencies. All parties to any proceeding consolidated subsequent to service of the notice of hearing or opportunity for hearing shall be served with notice of such consolidation.

[35 FR 10760, July 2, 1970, as amended at 5: FR 10386, Mar. 26, 1986)



18b.40 Who presides.

An administrative law judge assigned inder 5 U.S.C. 3105 or 3344 (formerly Section 11 of the Administrative Procelure Act) shall preside over the taking Of evidence in any hearing to which hese rules or procedure apply. 35 FR 10760, July 2, 1970, as amended at 51 R 10386, Mar. 26, 1986)

(c) Require parties and amici curiae to state their position with respect to the various issues in the proceeding.

(d) Administer oaths and affirmations.

(e) Rule on motions, and other procedural items on matters pending before the presiding officer.

(f) Regulate the course of the hearing and conduct of counsel therein.

(g) Examine witnesses and direct witnesses to testify.

(h) Receive, rule on, exclude or limit evidence.

(i) Fix the time for filing motions, petitions, briefs, or other items in matters pending before the presiding officer.

(j) Issue initial or recommended decisions.

(k) Take any action authorized by the rules in this part, or in conformance with the provisions of 5 U.S.C. 551-559 (the Administrative Procedure Act).

18b.41 Designation of an administra

tive law judge. The designation of the administrative law judge as presiding officer shall be in writing, and shall specify whether the administrative law judge is to nake an initial decision or to certify he entire record including recommended findings and proposed decision to the reviewing authority, and may also fix the time and place of hearing. A copy of such order shall be served on all parties. After service of an order designating an administrative law judge to preside, and until such administrative law judge makes a decision, motions and petitions shall be submitted to the administrative law judge. In the case of the death, illness, lisqualification or unavailability of he designated administrative law udge, another administrative law udge may be designated to take that verson's place. 51 FR 10386, Mar. 26, 1986)

[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986)


$ 18b.50 Statements of position and

18b.42 Authority of presiding officer. The presiding officer shall have the luty to conduct a fair hearing, to take .ll necessary action to avoid delay, and o maintain order. The presiding offier shall have all powers necessary to hese ends, including (but not limited o) the power to:

(a) Arrange and issue notice of the ate, time, and place of hearings, or, pon due notice to the parties, to hange the date, time, and place of learings previously set.

(b) Hold conferences to settle, simlify, or fix the issues in a proceeding, r to consider other matters that may id in the expeditious disposition of the roceeding.

trial briefs. The presiding officer may require parties and amici curiae to file written statements of position prior to the beginning of a hearing. The presiding officer may also require the parties to submit trial briefs.

$ 18b.51 Evidentiary purpose.

(a) The hearing is directed to receiving factual evidence and expert opinion testimony related to the issues in the proceeding. Argument will not be received in evidence; rather it should be presented in statements, memoranda, or briefs, as determined by the presiding officer. Brief opening statements, which shall be limited to statement of the party's position and what the party intends to prove, may be made at hearings.

(b) Hearings for the reception of evidence will be held only in cases where issues of fact must be resolved in order to determine whether the respondent has failed to comply with one or more applicable requirements of part 18 of

197-135 D-3

this chapter. In any case where it appears from the respondent's answer to the notice of hearing or opportunity for hearing, from failure timely to answer, or from admissions or stipulations in the record, that there are no matters of material fact in dispute, the reviewing authority or presiding officer may enter an order so finding, vacating the hearing date if one has been set, and fixing the time for filing briefs under $18b.70. Thereafter the proceedings shall go to conclusion in accordance with 88 18b.70 through 18b.76. The presiding officer may allow an appeal from such order in accordance with § 18b.65.

$18b.54 Affidavits.

An affidavit is not inadmissible as such. Unless the presiding officer fixes other time periods affidavits shall be filed and served on the parties not later than 15 days prior to the hearing; and not less than 7 days prior to hearing a party may file and serve written objection to any affidavit on the ground that it is believed necessary to test the truth of assertions therein at hearing. In such event the assertions objected to will not be received in evidence unless the affiant is made available for cross-examination, or the presiding officer determines that cross-examination is not necessary for the full and true disclosure of facts referred to in such assertions. Notwithstanding any objection, however, affidavits may be considered in the case of any respondent who waives a hearing.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986)

(35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]

$ 18b.52 Testimony.

Testimony shall be given orally under oath or affirmation by witnesses at the hearing; but the presiding officer, in the officer's discretion, may require or permit that the direct testimony of any witness be prepared in writing and served on all parties in advance of the hearing. Such testimony may be adopted by the witness at the hearing, and filed as part of the record thereof. Unless authorized by the presiding officer, witnesses will not be permitted to read prepared testimony into the record. Except as provided in 88 186.54 and 18b.55, witnesses shall be available at the hearing for cross-examination. (35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986)

$18b.55 Depositions.

Upon such terms as may be just, for the convenience of the parties or of the Department of Veterans Affairs, the presiding officer may authorize or direct the testimony of any witness to be taken by deposition.

$ 18b.53 Exhibits.

Proposed exhibits shall be exchanged at the prehearing conference, or otherwise prior to the hearing if the presiding officer so requires. Proposed exhibits not so exchanged may be denied admission as evidence. The authenticity of all proposed exhibits exchanged prior to hearing will be deemed admitted unless written objection thereto is filed prior to the hearing or unless good cause is shown at the hearing for failure to file such written objection.

$18b.56 Admissions as to facts and

documents. Not later than 15 days prior to the scheduled date of the hearing except for good cause shown or prior to such earlier date as the presiding officer may order, any party may serve upon an opposing party a written request for the admission of the genuineness and authenticity of any relevant documents described in and exhibited with the request, or for the admission of the truth of any relevant matters of fact stated in the request. Each of the matters of which an admission is requested shall be deemed admitted, unless within a period designated in the request (not less than 10 days after service thereof, or within such further time as the presiding officer or the reviewing authority if no presiding officer has yet been designated may allow upon motion and notice) the party to whom the

taken, and the party's grounds therefor.

(35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986)

request is directed serves upon the requesting party a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why the party cannot truthfully either admit or deny such matters. Copies of requests for admission and answers thereto shall be served on all parties. Any admission made by a party to such request is only for the purposes of the pending proceeding, or any proceeding or action instituted for the enforcement of any order entered therein, and shall not constitute an admission by the party for any other purpose or be used against the party in any other proceeding or action. [35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986)

$ 18b.62 Official notice.

Where official notice is taken or is to be taken of a material fact not appearing in the evidence of record, any party, on timely request, shall be afforded an opportunity to show the contrary.

$ 18b.57 Evidence.

Irrelevant, immaterial, unreliable, and unduly repetitious evidence will be excluded.

8 18b.63 Public document items.

Whenever there is offered (in whole or in part) a public document, such as an official report, decision, opinion, or published scientific or economic statistical data issued by any of the executive departments (or their subdivisions), legislative agencies or committees, or administrative agencies of the Federal Government (including Government-owned corporations), similar document issued by a State or its agencies, and such document (or part thereof) has been shown by the offeror to be reasonably available to the public, such document need not be produced or marked for identification, but may be offered for official notice, as a public document item by specifying the document or relevant part thereof.



$ 18b.58 Cross-examination.

A witness may be cross-examined on any matter material to the proceeding without regard to the scope of his direct examination.

§ 186.59 Unsponsored written material.

Letters expressing views or urging action and other unsponsored written material regarding matters in issue in a hearing will be placed in the correspondence section of the docket of the proceeding. These data are not deemed part of the evidence or record in the hearing.

$ 18b.64 Offer of proof.

An offer of proof made in connection with an objection taken to any ruling of the presiding officer rejecting or excluding proffered oral testimony shall consist of a statement of the substance of the evidence which counsel contends would be adduced by such testimony; and, if the excluded evidence consists of evidence in documentary or written form or of reference to documents or records, a copy of such evidence shall be marked for identification and shall accompany the record as the offer of proof.

$ 18b.60 Objections.

Objections to evidence shall be timely and briefly state the ground relied upon.

$ 18b.61 Exceptions to rulings of pre

siding officer unnecessary. Exceptions to rulings of the presiding officer are unnecessary. It is sufficient that a party, at the time the ruling of the presiding officer is sought, makes known the action which the party desires the presiding officer to take, or the party's objection to an action

$ 18b.65 Appeals from ruling of pre

siding officer. Rulings of the presiding officer may not be appealed to the reviewing authority prior to consideration of the entire proceeding except with the consent of the presiding officer and where the reviewing authority certifies on

« PreviousContinue »