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8 1264.109 Default upon failure to file an ing officer denies the motion. The answer.

timely filing of a notice of appeal shall (a) If the defendant does not file an

stay the initial decision until the auanswer within the time prescribed in thority head decides the issue. $ 1264.108(a), the reviewing official (i) If the defendant files a timely may refer the complaint to the presid- notice of appeal with the authority ing officer.

head, the presiding officer shall for(b) Upon the referral of the com- ward the record of the proceeding to plaint, the presiding officer shall the authority head. promptly serve on defendant, in the (j) The authority head shall decide manner prescribed in $ 1264.107, a expeditiously whether extraordinary notice that an initial decision will be circumstances excuse the defendant's issued under this section.

failure to file a timely answer based (c) If the defendant fails to answer,

solely on the record before the presidthe presiding officer shall assume the

ing officer. facts alleged in the complaint to be

(k) If the authority head decides true and, if such facts establish liabil

that extraordinary circumstances exity under 1264.102, the presiding offi

cused the defendant's failure to file a cer shall issue an initial decision im

timely answer, the authority head posing the maximum amount of penalities and assessments allowed under

shall remand the case to the presiding

officer with instructions to grant the the statute. (d) Except as otherwise provided in

defendant an opportunity to answer.

(1) If the authority head decides that this section, by failing to file a timely answer, the defendant waives any

the defendant's failure to file a timely right to further review of the penal

answer is not excused, the authority ties and assessments imposed under

head shall reinstate the initial deciparagraph (c) of this section, and the sion of the presiding officer, which initial decision shall become final and

shall become final and binding upon binding upon the parties 30 days after

the parties 30 days after the authority it is issued.

head issues such decision. (e) If, before such an initial decision becomes final, the defendant files a

8 1264.110 Referral of complaint and motion with the presiding officer seek answer to the presiding officer. ing to reopen on the grounds that ex Upon receipt of an answer, the retraordinary circumstances prevented viewing official shall file the comthe defendant from filing an answer,

plaint and answer with the presiding the initial decision shall be stayed officer, and include the name and adpending the presiding officer's deci

dress of the attorney who will represion on the motion.

sent the authority before the presid(f) If, on such motion, the defendant

ing officer. can demonstrate extraordinary circumstances excusing the failure to file 8 1264.111 Notice of hearing. a timely answer, the presiding officer

(a) When the presiding officer reshall withdraw the initial decision under paragraph (c) of this section, if

ceives the complaint and answer, the such a decision has been issued, and

presiding officer shall promptly serve shall grant the defendant an opportu

a notice of hearing upon the defendnity to answer the complaint.

ant in the manner prescribed by (g) A decision of the presiding offi.

§ 1264.107. At the same time, the precer denying a defendant's motion

siding officer shall send a copy of such under paragraph (e) of this section is

notice to the representative of the aunot subject to reconsideration under

thority. § 1264.137.

(b) Such notice shall include(h) The defendant may appeal to (1) The tentative time and place, and the authority head the decision deny the nature of the hearing; ing a motion to reopen by filing a (2) The legal authority and jurisdicnotice of appeal with the authority tion under which the hearing is to be head within 15 days after the presid held;

(3) The matters of fact and law as. 81264.114 Ex parte contacts. serted;

No party or person (except employ. (4) A description of the precedures

ees of the presiding officer's office) for the conduct of the hearing;

shall communicate in any way with (5) The name, address, and tele- the presiding officer on any matter at phone number of the representative of issue in a case, unless on notice and the authority and of the defendant; opportunity for all parties to partici

(6) An opportunity for a settlement pate. This provision does not prohibit conference or proposals of adjustment a person or party from inquiring about through alternative dispute resolu the status of a case or asking routine tions, if not already explored; and

questions concerning administrative (7) Such other matters as the presid

functions or procedures. ing officer deems appropriate.

(54 FR 600, Jan. 9, 1989) § 1264.112 Parties to the hearing.

§ 1264.115 Disqualification of reviewing (a) The parties to the hearing shall

official or presiding officer. be the defendant and the authority.

(a) A reviewing official or presiding (b) Pursuant to 31 U.S.C. 3730(c)(5), officer in a particular case may disa private plaintiff under the False qualify himself or herself at any time. Claims Act, as amended, may partici

(b) A party may file with the presidpate in these proceedings to the

ing officer a motion for disqualificaextent authorized by the provisions of

tion of a reviewing official or a presidthat Act. (See section 3 of the False

ing officer. Such motion shall be acClaims Amendments Act of 1986, Pub.

companied by an affidavit alleging

personal bias or other reason for disL. 99-562, October 27, 1986.)

qualification. 8 1264.113 Separation of functions.

(c) Such motion and affidavit shall

be filed promptly upon the party's dis(a) The investigating official, the re- covery of reasons for disqualification, viewing official, and any employee or or such objections shall be deemed agent of the authority who takes part waived. in investigating, preparing, or present (d) Such affidavit shall state specific ing a particular case may not, in such facts that support the party's belief case or a factually related case

that personal bias or other reason for (1) Participate in the hearing as the disqualification exists and the time presiding officer;

and circumstances of the party's dis(2) Participate or advise in the initial covery of such facts. It shall be accomdecision or the review of the initial de panied by a certificate of the reprecision by the authority head, except as sentative of record that it is made in a witness or as the authority repre

good faith. sentative in the administrative or judi

(e) Upon the filing of such a motion cial proceedings; or

and affidavit, the presiding officer (3) Make the collection of penalties

shall proceed no further in the case

until the matter of disqualification is and assessments under 31 U.S.C. 3806.

resolved in accordance with paragraph (b) The presiding officer shall not be

(f) of this section. responsible to, or subject to the super

(f)(1) If the presiding officer detervision or direction of, the investigating

mines that a reviewing official is disofficial or the reviewing official.

qualified, the presiding officer shall (c) Except as provided in paragraph

dismiss the complaint without preju(a) of this section, the representative

dice. for the Government must be a (2) If the presiding officer disquali. member of the legal staff of the au- fies himself or herself, the case shall thority. Nothing in this paragraph is be reassigned promptly to another intended to prevent assistance to the presiding officer. Government representative by attor (3) If the presiding officer denies & neys in the NASA organization or motion to disqualify, the authority other governmental entities.

head may determine the matter only

as part of his or her review of the ini. tial decision upon appeal, if any.

8 1264.116 Rights of parties.

Except as otherwise limited by this part, all parties may

(a) Be accompanied, represented, and advised by a representative;

(b) Paticipate in any conference held by the presiding officer; (c) Conduct discovery; (d) Agree to stipulations of fact or law, which shall be made part of the record;

(e) Present evidence relevant to the issues at the hearing;

(f) Present and cross-examine witnesses;

(g) Present oral arguments at the hearing as permitted by the presiding officer; and

(h) Submit written briefs and proposed findings of fact and conclusions of law after the hearing.

(8) Regulate the course of the hearing and the conduct of representatives and parties;

(9) Examine witnesses;

(10) Receive, rule on, exclude, or limit evidence;

(11) Upon motion of a party, take of ficial notice of facts;

(12) Upon motion of a party, decide cases, in whole or in part, by summary judgment where there is no genuine issue as to any material fact;

(13) Conduct any conference, argument, or hearing on motions in person or by telephone; and

(14) Exercise such other authority as is necessary to carry out the responsibilities of the presiding officer under this part.

(c) The presiding officer does not have the authority to find Federal statutes or regulations invalid. (52 FR 39498, Oct. 22, 1987, as amended at 54 FR 600, Jan. 9, 1989)

8 1264.117 Authority of the presiding offi- 81264.118 Prehearing conferences. cer.

(a) The presiding officer may sched(a) The presiding officer shall con- ule prehearing conferences as approduct a fair and impartial hearing, priate. avoid delay, maintain order, and (b) Upon the motion of any party, assure that a record of the proceeding the presiding officer shall schedule at is made.

least one prehearing conference at a (b) The presiding officer has the au reasonable time in advance of the thority to

hearing. (1) Set and change the date, time, (c) The presiding officer may use and place of the hearing upon reason prehearing conferences to discuss the able notice to the parties;

following: (2) Continue or recess the hearing in (1) Simplification of the issues; whole or in part for a reasonable (2) The necessity or desirability of period of time;

amendments to the pleadings, includ. (3) Hold conferences to identify or ing the need for a more definite statesimplify the issues, or to consider ment; other matters, including settlement (3) Stipulations and admissions of conferences or other alternative dis- fact or as to the contents and authenpute resolution, that may aid in the ticity of documents; fair and expeditious disposition of the (4) Whether the parties can agree to proceeding;

submission of the case on a stipulated (4) Administer oaths and affirma. record; tions;

(5) Whether a party chooses to (5) Issue subpoenas, requiring the atwaive appearance at an oral hearing tendance of witnesses and the produc- and to submit only documentary evition of documents at depositions or at dence (subject to the objections of hearings, which the presiding officer other parties) and written arguments; considers relevant and material;

(6) Limitation of the number of wit(6) Rule on motions and other proce nesses; dural matters;

(7) Scheduling dates for the ex(7) Regulate the scope and timing of change of witness lists and of proposed discovery;

exhibits;

[blocks in formation]

(8) Discovery; (9) The time and place for the hear. ing; and

(10) Such other matters, including settlement, as may tend to expedite the fair and just disposition of the proceedings.

(d) The presiding officer may issue an order containing all matters agreed upon by the parties or ordered by the presiding officer at a prehearing conference. (52 FR 39498, Oct. 22, 1987, as amended at 54 FR 600, Jan. 9, 1989)

8 1264.119 Disclosure of documents.

(a) Upon written request to the reviewing official, the defendant may review any relevant and material documents, transcripts, records, and other materials that relate to the allegations set out in the complaint and upon which the findings and conclusions of the investigating official under § 1264.103(b) are based unless such documents are subject to a privilege under Federal law. Upon payment of a reasonable fee for duplication, the defendant may obtain copies of such documents.

(b) Upon written request to the reviewing official, the defendant also may obtain a copy of all exculpatory information in the possession of the reviewing official or investigating official relating to the allegations in the complaint, even if it is contained in a document that would otherwise be privileged. If the document would otherwise be privileged, only that portion containing exculpatory information must be disclosed.

(C) The notice sent to the Attorney General from the reviewing official as described in § 1264.104 is not discoverable under any circumstances.

(d) The defendant may file a motion to compel disclosure of the documents subject to the provisions of this sec. tion. Such a motion may only be filed with the presiding officer following the filing of an answer pursuant to $ 1264.108.

(2) Requests for admissions of the authenticity of any relevant document or of the truth of any relevant fact;

(3) Written interrogatories; and
(4) Depositions.

(b) For the purpose of this section and $$ 1264.121 and 1264.122, the term “documents" includes information, documents, reports, answers, records, accounts, papers, and other data and documentary evidence which the presiding officer considers relevant and material to the hearing. Nothing contained herein shall be interpreted to require the creation of a document.

(c) Unless mutually agreed to by the parties, discovery is available only as ordered by the presiding officer. The presiding officer shall regulate the timing of discovery.

(d) Motions for discovery. (1) A party seeking discovery may file a motion with the presiding officer. Such a motion shall be accompanied by a copy of the discovery request or, in the case of depositions, a summary of the scope of the proposed deposition.

(2) Within 10 days of service, a party may file an opposition to the motion and/or a motion for protective order as provided in § 1264.123.

(3) The presiding officer may grant a motion for discovery only if he/she finds that the discovery sought

(i) Is necessary for the expeditious, fair, and reasonable consideration of the issues;

(ii) Is not unduly costly or burdensome;

(iii) Will not unduly delay the proceeding; and

(iv) Does not seek privileged information.

(4) The burden of showing that discovery should be allowed is on the party seeking discovery.

(5) The presiding officer may grant discovery subject to a protective order under § 1264.123.

(e) Depositions. (1) If a motion for deposition is granted, the presiding of ficer shall issue a subpoena for the deponent, which may require the deponent to produce documents. The subpoena shall specify the time and place at which the deposition will be held.

8 1264.120 Discovery.

(a) The following types of discovery are authorized:

(1) Requests for production of documents for inspection and copying;

(2) The party seeking to depose shall hearing may request that the presidserve the subpoena in the manner pre- ing officer issue a subpoena. scribed in § 1264.107.

(b) A subpoena requiring the attend(3) The deponent may file with the ance and testimony of an individual presiding officer a motion to quash may also require the individual to the subpoena or a motion for a protec- produce documents at the hearing. tive order within 10 days of service.

(c) A party seeking a subpoena shall (4) The party seeking to depose shall file a written request therefor not less provide for the taking of a verbatim

than 15 days before the date fixed for transcript of the deposition, which it

the hearing unless otherwise allowed shall make available to all other par

by the presiding officer for good cause ties for inspection and copying.

shown. Such request shall specify any (f) Each party shall bear its own

documents to be produced and shall costs of discovery.

designate the witnesses and describe 8 1264.121 Exchange of witness lists, state

the address and location thereof with ments, and exhibits.

sufficient particularity to permit such

witnesses to be found. (a) At least 15 days before the hear

(d) The subpoena shall specify the ing or at such other time as may be or

time and place at which the witness is dered by the presiding officer, the par

to appear and any documents the witties shall exchange witness lists, copies

ness is to produce. of prior statements of proposed witnesses, and copies of proposed hearing

(e) The party seeking the subpoena

shall serve it in the manner prescribed exhibits, including copies of any written statements that the party intends

in § 1264.107. A subpoena on a party or to offer in lieu of live testimony in ac

upon an individual under the control cordance with paragraph

agraph

(b)
(b) of

of of a party may be served by first class $ 1264.132. At the time the above docu

mail. ments are exchanged, any party that (f) A party or the individual to intends to rely on the transcript of whom the subpoena is directed may deposition testimony in lieu of live tes- file with the presiding officer a motion timony at the hearing, if permitted by to quash the subpoena within 10 days the presiding officer, shall provide after service or on or before the time each party with a copy of the specific specified in the subpoena for complipages of the transcript it intends to in ance if it is less than 10 days after troduce into evidence.

service. (b) If a party objects, the presiding officer shall not admit into evidence 8 1264.123 Protective order. the testimony of any witness whose

(a) A party or a prospective witness name does not appear on the witness

or deponent may file a motion for a list or any exhibit not provided to the

protective order with respect to discovopposing party, in accordance with paragraph (a) of this section, unless

ery sought by an opposing party or the presiding officer finds goods cause

with respect to the hearing, seeking to for the failure or that there is no prej

limit the availability or disclosure of udice to the objecting party.

evidence. (c) Unless another party objects

(b) In issuing a protective order, the within the time set by the presiding

presiding officer may make any order officer, documents exchanged in ac

which justice requires to protect a cordance with paragraph (a) of this party or person from annoyance, emsection shall be deemed to be authen barrassment, oppression, or undue tic for the purpose of admissibility at burden or expense, including one or the hearing.

more of the following:

(1) That the discovery not be had; 8 1264.122 Subpoena for attendance at

(2) That the discovery may be had hearing.

only on specified terms and conditions, (a) A party wishing the appearance including a designation of the time or and testimony of any individual at the place;

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