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sioner or an Examiner the direct testimony of any witness will be offered in written form as an exhibit: Provided, That copies of such written testimony shall have been served upon all parties to the proceeding or their attorneys of record as provided in $ 503.23e(2) relating to documentary evidence. When written testimony is offered, its author must be available for cross-examination, and the written testimony will be subject to motions to strike.

(b) Record of excluded evidence. If an objection to a question propounded to a witness is sustained, the examining attorney may make a specific offer of what he expects to prove by the answer of the witness, except that upon request the evidence shall be reported in full, unless it clearly appears that the evidence is not admissible on any ground or that the evidence of the witness is privileged.

(c) Affirmation in lieu of oath. Whenever under the rules in this part an oath is required to be taken, a solemn affirmation may be accepted in lieu thereof.

(d) Rulings, exceptions unnecessary. The Commission or person presiding at any hearing shall rule on the competency, relevancy and materiality of all evidence offered. Formal exceptions to rulings or orders are unnecessary.

(e) Documentary evidence. (1) When at any hearing documentary evidence is offered and objection is made thereto the Commission, Commissioner, or Examiner conducting the hearing, shall rule upon the same and, if the ruling is adverse to the party offering said evidence, the document may be marked for identification and added to the record.

(2) All documentary evidence (including excerpts from documents and written testimony of any witness) which is to be offered on any question before the Commission shall be filed with the Clerk and copies thereof delivered by mail, or otherwise, to the opposing parties at least 30 days in advance of the day on which such evidence is to be used, unless otherwise ordered. This will be done to permit study, cross-examination and rebuttal evidence. Each party shall have 20

days after the filing of such documentary evidence with the Clerk within which to file with the Clerk and deliv. er to the opposing parties countervailing or rebuttal evidence. Countervailing or rebuttal evidence is evidence in rebuttal of specific evidence previously filed.

(3) When portions only of a document are to be relied upon, the offering party shall prepare, file and deliver, as provided in subparagraph (2) of this paragraph, the pertinent excerpts, adequately identified as to source and place where source is located, and only such excerpts will be received in the record. When excerpts from a document not available within the District of Columbia are relied upon the entire document shall be filed with the excerpt for examination by the opposing party.

(4) Accompanying the documents and excerpts of documents filed with the Clerk shall be a list thereof which shall include the following: (i) Exhibit number, (ii) date of the document, (iii) a general description of the exhibit including a very brief digest of its contents and very briefly what is claimed for the exhibit as a matter of evidence, and (iv) a reference identifying the document and its source. Such documents shall be, by the Clerk, kept separate from the other files in the case and shall not become part of the record in any case until admitted therein by the Commission. Documents not offered in evidence by any party shall at the close of the evidence be returned to the party filing the same, unless the Commission shall order their retention by the Clerk. The Clerk shall stamp on such list the date the documents were received and also note thereon the documents which were returned.

(5) Documentary evidence not filed and delivered in advance in accordance with subparagraphs (2) and (3) of this paragraph shall not be received in evidence in the absence of a clear showing that the offering party had good cause for his failure to produce the evidence sooner.

(6) That the authenticity of all documents filed in advance in a proceeding in which such filing is required, be deemed admitted unless written objection thereto is filed prior to the hearing, except that a party will be permitted to challenge such authenticity at a later time upon a clear showing of good cause for failure to have filed such written objection.

behalf of the United States, fees and mileage need not be tendered.

(2) The fees and mileage shall be the same as allowed by law for service of subpoenas issued by United States District Courts, which shall be paid by the party requesting the service.

(d) Return. The person serving the process shall make proof of service thereon to the Commission promptly and in any event within the time during which the person served must respond to the process. If service is made by a person other than a United States Marshall or his deputy, he shall make affidavit thereof. Failure to make proof of service does not affect the validity of the service.

8 503.24 Subpoena.

(a) For attendance of witnesses; form; issuance; fees. (1) Every subpoena shall be issued in the name of the Commission and shall be signed by the Clerk under the seal of the Commission. Every subpoena shall state the title of the claim and the number and shall command each person to whom it is directed to attend and give testimony at a time and place therein specified. The Clerk shall issue a subpoena, or a subpoena for the production of documentary evidence, signed and sealed but otherwise in blank, to a party requesting it, who shall fill it in before service.

(2) The fees and mileage of witnesses shall be such as are now or may hereafter be prescribed by statute, for like service in the District Courts of the United States, and shall be paid by the party at whose instance the witnesses appear.

(b) For production of documentary evidence. A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein; but the Commission, upon motion made promptly, and in any event, at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable and oppressive, or (2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible items.

(c) Service. (1) A subpoena may be served by any person who is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and by tendering to him the fees for one day's attendance and the mileage allowed by law. When the subpoena is issued on

8 503.25 Consolidation; separate trials.

(a) Consolidation. When actions involving a common question of law or fact are pending before the Commission, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

(b) Separate trials. The Commission in furtherance of convenience or to avoid prejudice may order a separate trial of any claim or of any separate issue or of any number of claims or issues.

[37 FR 21939, Oct. 17, 1972]

$ 503.26 Preliminary decisions and report.

(a) Upon the closing of proof by the parties, the Commissioner or Examiner who has heard the case may request the parties to submit proposed statements of the ultimate issues to be decided. After defining such issues, the Commissioner or Examiner may request oral argument within one (1) day or such other period as he may specify.

(b) The Commissioner or Examiner shall issue to the Commission and to the parties a report containing his preliminary decisions on the issues within fourteen (14) days of the closing of proof, or within that time report to the Commission and to the parties that no decision will be issued.

$ 503.27 Exceptions to the report.

Exceptions, if any, to the issues decided or to the decisions made by the Commissioner or Examiner under the procedure of g 503.26 shall be stated in the briefs submitted under $ 503.28 or shall be deemed to be waived.

brief as matters of defense, and not properly within the scope of plaintiff's original brief, may be discussed by plaintiff in a reply brief, but matters within the proper scope of plaintiff's original brief shall not again te discussed in a reply brief.

(c) After a cause has been submitted any stipulation or additional authori. ties which counsel desires to call to the attention of the Commission shall by leave of the Commission be submitted by appropriate supplemental memorandum of at least 8 copies filed with the Clerk of the Commission, and not by letter. The Clerk shall serve a copy upon opposing counsel. Supplemental or reply briefs shall be permitted only in accordance with the rules in this part.

8 503.28 Briefs.

(a) Plaintiff. (1) The plaintiff shall, within 40 days after the closing of proof in cases heard by the Commission, or within a like time from the filing of the report of a Commissioner or Examiner under the provisions of § 503.26, file its request for findings of fact and brief, which findings of fact and brief shall be printed. The copies required by $ 503.41 shall be filed with the Clerk and 10 copies thereof served on the Attorney General.

(2) The plaintiff's brief shall begin with a clear statement of the case and may include in the statement references to parts of the record. It shall present and discuss in its original brief all propositions upon which it relies for a recovery.

(b) Defendant. Within 40 days from the filing of plaintiff's brief (or if none has been filed within the time on which it should have been filed under paragraph (a)(1) of this section) the defendant shall file with the clerk its request for findings of fact and brief with copies thereof as required by $ 503.41 and serve 10 copies thereof on the plaintiff's attorney of record, or if the plaintiff has no attorney of record the same shall be mailed to any plaintiff or to any one member of a group of plaintiffs, at its or his known address.

$ 503.30 Trial calendar.

(a) The Commission shall dispose of (1) all motions or other pleadings containing the defenses enumerated in $ 503.11(b) and all other motions or requests for action by the Commission, (2) all exceptions to the report of a Commissioner or Examiner, (3) all motions for rehearing and amendments of findings.

(b) Said matters when ordered by the Commission shall be placed on a trial calendar by the Clerk and a copy of said trial calendar mailed to the attorneys of record interested therein in sufficient time to permit the attorneys of record to appear before the Commission on the date and place appointed for the hearing.

(c) All matters shall be calendared for hearing as follows:

(1) Motions and pleadings containing the defenses enumerated in § 503.11(b) when the opposing points and authori. ties have been filed as required by $ 503.22(a)(1).

(2) All other motions or requests for action by the Commission upon the filing of a responsive pleading as provided for in this part.

(3) All exceptions to the report of a Commissioner or Examiner when the briefs have been filed as provided in $ $ 503.28 and 503.29.

(4) Motions for rehearing and amendments of findings when the

$ 503.29 Reply brief.

(a) Plaintiff may file a printed reply brief within 20 days after the filing of defendant's brief, unless the time is extended by order of the Commission, and no brief shall be received after the prescribed time except upon order of the Commission for cause shown; nor shall any briefs other than those described in $ 503.28 and this section be received at any time except upon such order.

(b) Statements of fact or propositions of law presented in defendant's

briefs have been filed as provided in one motion. After the Commission has $ 503.39.

announced its decision

upon such (d) Nonappearance of parties. If at motion no other motion for a rehearthe time set for hearing there be no ing shall be filed by the same party appearance for the moving party, the unless by leave of the Commission. Commission may treat the motion as Motions for a rehearing shall be filed submitted or waived, or, for good within 30 days from the time the Comcause shown, continue or strike it from mission's aforesaid conclusions on its the motion calendar. If there be no ap- findings of fact are filed with the pearance for the opposing side, it may Clerk. be treated as conceded.

(b) A motion for re-hearing shall be

founded upon one or more of the fol$ 503.31 Evidence in other cases.

lowing grounds: First, error of fact; (a) Documents. Any information or second, error of law; and, third, newly papers duly certified from any depart- discovered evidence. ment or agency of the Government (1) A motion founded upon an error and filed in any case may, by leave of of fact shall specify with minuteness the Commission, a Commissioner, or the fact or facts which are regarded as an Examiner in a case being heard by erroneously found or erroneously him, on motion made therefor, be used omitted to be found by the Commisand applied in any other pending sion, with full references to the evi. cause to which the same may be appli- dence which is relied upon to support cable or pertinent.

the motion. (b) Depositions. The deposition of a (2) A motion founded upon error of witness subjected to cross-examina- law shall specify with like minuteness tion, on file in a case may be used by the points upon which the Commisleave of the Commission in another sion is supposed to have erred, with case, notice of the purpose to use it references to the authorities relied being given the adverse party; or if the upon to support the motion. Commission desires the benefit of evi- (3) A motion by either plaintiff or dence appearing in another case it defendant upon the ground of newly may, by appropriate order and upon discovered evidence shall not be enterreasonable notice to the parties and an

tained unless it appears therein that opportunity to them to be heard, con- the newly discovered evidence came to sider the same.

the knowledge of such party, its attor

neys of record, or counsel, after the $ 503.32 Stipulations.

hearing and before the motion was All stipulations shall be signed on made; that it was not for want of due behalf of the plaintiff by the attorney diligence that it did not sooner come of record, and on behalf of the United to its knowledge that it is so material States by the Attorney General, his that it would probably produce a difassistant

other representative, ferent determination if the rehearing unless made at a hearing or other pro- were granted; and that it is not cumuceeding before the Commission, a lative. Such motion shall be accompaCommissioner or an Examiner and re- nied by the affidavit of the party or corded by the reporter.

the attorney of record, setting forth:

(i) the facts in detail which the $ 503.33 Motions for rehearing and for

party expects to be able to prove, and amendment of findings.

whether the same are to be proved by (a) Whenever either party desires to witnesses or by documentary evidence. question the correctness or the suffi- (ii) The name, occupation, and resi. ciency of the Commission's conclu- dence of each and every witness whom sions on its findings of fact or to it is proposed to call to prove said amend the same, the complaining facts. party shall file a motion which shall (iii) That the said facts were unbe known as a motion for a rehearing. known to either the party or the attor. All grounds relied upon for any or all ney of record, and, if other counsel of said objections shall be included in was employed at the hearing, were un

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known to such counsel until after the close of the hearing.

(iv) The reason why the party, the attorney of record, or counsel, could not have discovered said evidence before the hearing by the exercise of due diligence.

(c) A motion for a rehearing shall also be accompanied by the brief of the moving party, a copy of which shall be served upon the opposing party, who may file its brief in response thereto within 15 days, unless the time is extended by the Commission.

(d) All motions for rehearing or for amendment of findings, and briefs thereon, and briefs in reply to such motions, exceeding ten typewritten pages in length, shall be printed before presentation for filing in the Clerk's office, unless by order of the Commission first obtained the time for printing is extended. (33 FR 9236, June 21, 1968, as amended at 37 FR 21939, Oct. 17, 1972)

(b) The Clerk shall keep in a file, separate from the petition, all contracts filed pursuant hereto; they shall be consecutively numbered, show the date filed, and the Clerk shall endorse thereon the docket numbers of the cases to which they apply. The Clerk shall also note on the appearance docket the number of the contract of the attorney, or attorneys, representing the claimant. The Clerk shall prepare and maintain an index, alphabetically arranged, of all contracts filed with him.

8 503.34 Claims filed by attorney.

Claims may be filed on behalf of a claimant by an attorney or firm of attorneys retained for that purpose under the provisions of section 15 of the act creating the Commission. Where a claimant has retained more than one attorney or more than one firm of attorneys, only one of said attorneys shall be designated individually as the attorney of record. All plead. ings, notices or other papers required by these rules or by orders of the Commission to be served upon a claimant, shall be sent to such attorney of record at the address designated by him, and service upon him shall be deemed to be service upon the claimant.

8 503.34b Attorney's fees and expenses.

(a) All applications of attorneys for Indian claimants for allowance of fees and reimbursement of expenses shall be by petition prepared in clear typewritten or reproduced form and shall be filed with the Clerk of the Commission within 60 days from the date of the certification by the Commission of the final award from which allowance of fees and reimbursement of expenses are sought. The petition for reimbursable expenses shall be itemized showing time, place, purpose and amount of each item incurred or paid by the applicants, and as to items paid by or on behalf of the applicants there shall be filed with the petition, receipts or other evidences of payment. However, where the petition requests allowance of expenses incurred in connection with appearances on behalf of the applicant's Indian client in proceedings of record before the Indian Cl ns Commission, a member of the Commission, or an examiner appointed by the Commission and the applicant is unable to supply receipts or other evidence of incurrence or payment of such expenses, they may be allowed in a reasonable amount upon the applicant's affidavit as to their incurrence. The petition for reimbursable expenses shall be verified by affidavit of an applicant stating that the allegations of the petition are true to the best of the knowledge and belief of the affiant, and that no part of any of the items set forth in the petition has been paid by the Indian claimant, or on its behalf, by any officer or agency of the United States, except as shown in the petition.

8 503.34a Attorney's contracts to be filed.

(a) There shall be filed with the Clerk a certified copy of the contract under which the attorney, or attorneys, representing a claimant may act. It shall not be necessary to file more than one contract even though the attorney, or attorneys, representing a claimant files more than one petition for the same claimant.

40-056 0-79--46

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