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issue decisions thereon, deciding finally for the Department all questions of fact and law necessary for the complete adjudication of the issues. Jurisdiction of the Boards would include, but not be limited to, the appellate and review authority of the Secretary referred to in Parts 13, 21, and 230 of this title, and in 36 CFR Parts 8 and 20. Special regulations applicable to proceedings in such cases are contained in Subpart G of this part. [36 FR 7186, Apr. 15, 1971, as amended at 40 FR 20819, May 13, 1975; 40 FR 33172, Aug. 6, 1975; 43 FR 17942, Apr. 27, 1978)
§ 4.3 Representation before appeals
boards. (a) Appearances generally. Representation of parties in proceedings before Appeals Boards of the Office of Hearings and Appeals is governed by Part 1 of this subtitle, which regulates practice before the Department of the Interior.
(b) Representation of the Government. Department counsel designated by the Solicitor of the Department to represent agencies, bureaus, and offices of the Department of the Interior in proceedings before the Office of Hearings and Appeals, and Government counsel for other agencies, bureaus or offices of the Federal Government involved in any proceeding before the Office of Hearings and Appeals, shall represent the Government agency in the same manner as a private advocate represents a client.
(c) Appearances as amicus curiae. Any person desiring to appear as amicus curiae in any proceeding shall make timely request stating the grounds for such request. Permission to appear, if granted, will be for such purposes as established by the Director or the Appeals Board in the proceeding.
§ 4.2 Membership of appeals boards; deci.
sions, functions of Chief Judges. (a) The Appeals Boards consist of regular members, who are hereby designated Administrative Judges, one of whom is designated as Chief Administrative Judge, the Director as an ex officio member, and alternate members who may serve, when necessary, in place of or in addition to regular members. The Chief Administrative Judge of an Appeals Board may direct that an appeal may be decided by a panel of any two Administrative Judges of the Board, but if they are unable to agree upon a decision, the Chief Administrative Judge may assign one or more additional Administrative Judges of the Board to consider the appeal. The concurrence of a majority of the Board Administrative Judges who consider an appeal shall be sufficient for a decision.
(b) Decisions of the Board must be in writing and signed by not less than a majority of the Administrative Judges who considered the appeal. The Director, being an ex officio member, may participate in the consideration of any appeal and sign the resulting decision.
(c) The Chief Administrative Judge of an Appeals Board shall be responsible for the internal management and administration of the Board, and the Chief Administrative Judge is authorized to act on behalf of the Board in conducting correspondence and in carrying out such other duties as may be necessary in the conduct of routine business of the Board. [39 FR 7931, Mar. 1, 1974)
§ 4.4 Public records; locations of field of
fices. Part 2 of this subtitle prescribes the rules governing availability of the public records of the Office of Hearings and Appeals. It includes a list of the field offices of the Office of Hearings and Appeals and their locations.
$4.5 Power of the Secretary and Director.
(a) Secretary. Nothing in this part shall be construed to deprive the Secretary of any power conferred upon him by law. The authority reserved to the Secretary includes, but is not limited to:
(1) The authority to take jurisdiction at any stage of any case before any employee or employees of the Department, including any administrative law judge or board of the Office, and render the final decision in the matter after holding such hearing as may be required by law; and
(2) The authority to review any deci- a decision may be granted only in exsion of any employee or employees of traordinary circumstances where, in the Department, including any admin the judgment of the Director or an istrative law judge or board of the Appeals Board, sufficient reason apOffice, or to direct any such employee pears therefor. Requests for reconsidor employees to reconsider a decision. eration must be filed promptly, or
(b) The Director. Pursuant to his del within the time required by the reguegated authority from the Secretary, lations relating to the particular type the Director may assume jurisdiction of proceeding concerned, and must of or review any case before any board state with particularity the error of the Office or direct reconsideration claimed. The filing and pendency of a of any decision by any board of the request for reconsideration shall not Office.
operate to stay the effectiveness of [43 FR 37690, Aug. 24, 1978)
the decision involved unless so ordered
by the Director or an Appeals Board. Subpart B-General Rules Relating to
A request for reconsideration need not
be filed to exhaust administrative remProcedures and Practice
edies. $ 4.20 Purpose.
$ 4.22 Documents. In the interest of establishing and
(a) Filing of documents. A document maintaining uniformity to the extent
is filed in the Office where the filing is feasible, this subpart sets forth gener
required only when the document is al rules applicable to all types of pro
received in that office during the ceedings before the Hearings Division
office hours when filing is permitted and the several Appeals Boards of the Office of Hearings and Appeals.
and the document is received by a
person authorized to receive it. § 4.21 General provisions.
(b) Service generally. A copy of each (a) Effect of decision pending
document filed in a proceeding before
the Office of Hearings and Appeals appeal. Except as otherwise provided by law or other pertinent regulation, a
must be served by the filing party on decision will not be effective during
the other party or parties in the case. the time in which a person adversely
In all cases where a party is representaffected may file a notice of appeal,
ed by an attorney, such attorney will and the timely filing of a notice of
be recognized as fully controlling the appeal will suspend the effect of the
case on behalf of his client, and service decision appealed from pending the
of any document relating to the prodecision on appeal. However, when the
ceeding shall be made upon such atpublic interest requires, the Director
torney in addition to any other service or an Appeals Board may provide that
specifically required by law or by rule, a decision or any part of it shall be in order, or regulation of an Appeals full force and effect immediately.
Board, Where a party is represented (b) Exhaustion of administrative
by more than one attorney, service remedies. No decision which at the upon one of the attorneys shall be suftime of its rendition is subject to ficient. appeal to the Director or an Appeals (c) Retention of documents. All docuBoard shall be considered final so as ments, books, records, papers, etc., reto be agency action subject to judicial ceived in evidence in a hearing or subreview under 5 U.S.C. 704, unless it mitted for the record in any proceedhas been made effective pending a de ing before the Office of Hearings and cision on appeal in the manner pro Appeals will be retained with the offi. vided in paragraph (a) of this section. cial record of the proceeding. Howev.
(c) Finality of decision. No further er, the withdrawal of original docuappeal will lie in the Department from ments may be permitted while the a decision of the Director or an Ap- case is pending upon the submission of peals Board of the Office of Hearings true copies in lieu thereof. When a deand Appeals. Unless otherwise pro cision has become final, an Appeals vided by regulation, reconsideration of Board may, upon request and after
notice to the other party, in its discre- (2) A request for an extension of tion permit the withdrawal of original time must be filed within the time alexhibits or any part thereof, by the lowed for the filing or serving of the party entitled thereto. The substitu- document and must be filed in the tion of true copies of exhibits or any same office in which the document in part thereof may be required by the connection with which the extension Board in its discretion as a condition is requested must be filed. of granting permission for such withdrawal.
§ 4.23 Transcript of hearings. (d) Record address. Every person
Hearings will be recorded verbatim who files a document for the record in
and transcripts thereof shall be made connection with any proceeding before the Office of Hearings and Appeals
when requested by interested parties, shall at the time of his initial filing in
costs of transcripts to be borne by the
requesting parties. Fees for transcripts the matter state his address. Thereafter he must promptly inform the
prepared from recordings by Office of office in which the matter is pending
Hearings and Appeals employees will of any change in address, giving the
be at rates which cover the cost of docket or other appropriate numbers
manpower, machine use and materials, of all matters in which he has made
plus 25 percent, adjusted to the nearsuch a filing. The successors of such
est 5 cents. If the reporting is done person shall likewise promptly inform
pursuant to a contract between the resuch office of their interest in the porter and the Department of the Inmatters and state their addresses. If a terior Agency or office which is inperson fails to furnish a record ad volved in the proceeding, or the Office dress as required herein, he will not be of Hearings and Appeals, fees for tranentitled to notice in connection with scripts will be at rates established by the proceedings.
the contract. (e) Computation of time for filing and service. Except as otherwise pro
§ 4.24 Basis of decision. vided by law, in computing any period (a) Record. (1) The record of a hearof time prescribed for filing and serv ing shall consist of the transcript of ing a document, the day upon which
testimony or summary of testimony the decision or document to be ap
and exhibits together with all papers pealed from or answered was served or
and requests filed in the hearing. the day of any other event after which
(2) If a hearing has been held on an the designated period of time begins to
appeal pursuant to instructions of an run is not to be included. The last day
Appeals Board, this record shall be the of the period so computed is to be in
sole basis for decision insofar as the cluded, unless it is a Saturday,
referred issues of fact are involved Sunday, Federal legal holiday, or
except to the extent that official other nonbusiness day, in which event
notice may be taken of a fact as prothe period runs until the end of the
vided in paragraph (b) of this section. next day which is not a Saturday, Sunday, Federal legal holiday, or
(3) Where a hearing has been held other nonbusiness day. When the time
in other proceedings, the record made prescribed or allowed is 7 days or less,
shall be the sole basis for decision intermediate Saturdays, Sundays, Fed
except to the extent that official eral legal holidays and other nonbusi
notice may be taken of a fact as proness days shall be excluded in the
vided in paragraph (b) of this section. computation.
(4) In any case, no decision on (f) Extensions of time. (1) The time appeal or after a hearing shall be for filing or serving any document based upon any record, statement, file may be extended by the Appeals or similar document which is not open Board or other officer before whom to inspection by the parties to the the proceeding is pending, except for appeal or hearing. the time for filing a notice of appeal (b) Official notice. Official notice and except where such extension is may be taken of the public records of contrary to law or regulation.
the Department of the Interior and of mer
any matter of which the courts mayment employees who are called as wittake judicial notice.
nesses by the Government. § 4.25 Oral argument.
$ 4.27 Standards of conduct. The Director or an Appeals Board
(a) Inquiries. All inquiries with re. may, in their discretion, grant an op
spect to any matter pending before portunity for oral argument.
the Office of Hearings and Appeals § 4.26 Subpoena power and witness provi.
shall be directed to the Director, the
Chief Administrative Law Judge, or sions generally.
the Chairman of the appropriate (a) Compulsory attendance of wit
(b) Er parte communications. There plication of a party, is authorized to
shall be no communication between issue subpoenas requiring the attend
any party and a member of the Office ance of witnesses at hearings to be
of Hearings and Appeals concerning held before him or at the taking of de
the merits of a proceeding, or an positions to be held before himself or
appeal, unless such communication (if other officers. Subpoenas will be
written) is also furnished to the other issued on a form approved by the Di
party, or (if oral) is made in the presrector. A subpoena may be served by ence of the other party. The Board any person who is not a party and is shall refuse to receive, except as part not less than 18 years of age, and the of the appeals record, any information original subpoena bearing a certificate having a substantial bearing upon of service shall be filed with the ad appeal from persons who do not repreministrative law judge. A witness may sent a party in the appeal but have an be required to attend a deposition or interest in the decision to be rendered. hearing at a place not more than 100 (c) Disqualification. An administra. miles from the place of service.
tive law judge or Board member shall (b) Application for subpoena. Where withdraw from a case if he deems him the file has not yet been transmitted self disqualified under the recognized to the administrative law judge, the canons of judicial ethics. If, prior to a application for a subpoena may be decision of an administrative law filed in the office of the officer who
judge or an Appeals Board, there is made the decision appealed from, or in
filed in good faith by a party an affithe office of the Bureau of Land Man
davit of personal bias or disqualificaagement in which the complaint was
tion with substantiating facts, and the filed, in which cases such offices will
administrative law judge or Board forward the application to the examin
member concerned does not withdraw, er.
the Board or the Director, as appropri(c) Fees payable to witnesses. (1)
ate, shall determine the matter of disWitnesses subpoenaed by any party
There shall be no interlocutory paid by the party at whose instance
appeal from a ruling of an administrathe witness appears.
tive law judge unless permission is (2) Any witness who attends any
first obtained from an Appeals Board hearing or the taking of any deposi
and an administrative law judge has tion at the request of any party to the
certified the interlocutory ruling or controversy without having been sub- abused his discretion in refusing a repoenaed to do so shall be entitled to quest to so certify, Permission will not the same mileage and attendance fees, be granted except upon a showing ti to be paid by such party, to which he the ruling complained of involves a would have been entitled if he had controlling question of law and that been first duly subpoenaed as a wit- an immediate appeal therefrom may ness on behalf of such party. This materially advance the final decision. paragraph does not apply to Govern- An interlocutory appeal shall not op
erate to suspend the hearing unless otherwise ordered by the Board. § 4.29 Remands from courts.
Whenever any matter is remanded from any court for further proceed ings, and to the extent the court's directive and time limitations will permit, the parties shall be allowed an opportunity to submit to the appropri
nit to the appropri. ate Appeals Board, a report recommending procedures to be followed in order to comply with the court's order. The Board will review the reports and
er special orders governing the handling of matters remanded to it for further proceedings by any court. § 4.30 Information required by forms.
Whenever a regulation of the Office of Hearing and Appeals requires a form approved or prescribed by the Director, the Director may in that form require the submission of any information which he considers to be necessary for the effective administration of that regulation.
just and inexpensive determination of appeals without unnecessary delay. Preliminary procedures are available to encourage full disclosure of relevant and material facts, and to discourage unwarranted surprise. All time limitations specified for various procedural actions are computed as maximums, and are not to be fully exhausted if the action described can be accomplished in a lesser period. Where it has authority to extend time limitations, the Board may extend them in appropriate circumstances, on good cause shown. Whenever reference is made to contractor, appellant, contracting officer, respondent and parties, this shall include respective counsel for the parties as soon as appropriate notices of appearance have been filed with the Board.
Subpart C—Special Rules Applicable
to Contract Appeals
AUTHORITY: 5 U.S.C. 301.
CROSS REFERENCE: See Subpart A for the authority, jurisdiction and membership of the Board of Contract Appeals within the Office of Hearings and Appeals. For general rules applicable to proceedings before the Board of Contract Appeals as well as the other Appeals Boards of the Office of Hearings and Appeals, see Subpart B.
$ 4.101 Who may appeal.
Any contractor may appeal to the Board of Contract Appeals, Office of Hearings and Appeals, from decisions of contracting officers of any bureau or office of the Department of the Interior, or their authorized representatives or other authorities, on disputed questions, under contract provisions requiring the determination of such appeals by the head of the agency or his duly authorized representative or Board.
§ 4.100 Guidelines.
(a) When an appeal is taken pursuant to a disputes clause in a contract which limits appeals to disputes con cerning questions of fact, the Board may in its discretion hear, consider, and decide all questions of law necessary for the complete adjudication of the issue.
(b) Emphasis is placed upon the sound administration of the rules in this subtitle in specific cases, because it is impracticable to articulate a rule to fit every possible circumstance which may be encountered. The rules will be interpreted so as to secure a
§ 4.102 Appeals; how taken.
(a) Notice of appeal. Notice of an appeal must be in writing (a suggested form of notice appears herein following $ 4.128). The original, together with two copies, may be filed with the contracting officer from whose decision the appeal is taken. The notice of appeal must be mailed or otherwise filed within the time specified therefor in the contract.
(b) Contents of notice of appeal. A notice of appeal should indicate that an appeal is thereby intended, and should identify the contract (by number), the Department's bureau or office cognizant of the dispute, and the decision from which the appeal is taken. The notice of appeal should be