Page images
PDF
EPUB

subpoena requiring the appearance of an or of an appeals officer on the Interstate official or employee of the Office of Inter- Land Sales Board rests, in whole or in state Land Sales Registration shall be part, upon the taking of official notice of made in the form of a written motion a material fact not appearing in evidence filed in accordance with the provisions of of record opportunity to disprove such $ 1720.230.

noticed fact shall be granted any party (b) The motion shall specify as ex- making timely request therefor. actly as possible the material to be produced, the nature of the material to be

f 1720.320 Reporting and transcription. produced, the nature of the informa- Hearings shall be stenographically or tion to be disclosed or the expected testi- mechanically reported and transcribed mony of the official or employee of the under the supervision of the hearing exOffice of Interstate Land Sales Registra- aminer. The original transcript shall be tion and shall contain a statement show- a part of the record and the sole official ing the general relevancy of the material, transcript. Copies of transcripts are information, or testimony and the rea- available from the reporter at rates not sonableness of the scope of the appli- to exceed the maximum rates fixed by cation, together with a showing that such

contract between the Secretary or his material, information, or testimony is not designee and the reporter. available from other sources by voluntary

§ 1720.325 Corrections. methods or through other provisions of the rules in this subpart.

Corrections of the official transcript (C) Applications in the form of written

ordered by the administrative law judge motions shall be ruled upon by the ad

shall be included in the record. Correcministrative law judge and to the extent

tions shall not be ordered by the administhat such a motion is granted provision

trative law judge except upon notice and shall be made for such terms and condi

opportunity for the hearing of objections relating to the production of the

tions. Such corrections shall be made by material, the disclosure of the informa

the reporter by furnishing substitute tion or the appearance of the official or

pages, under the usual certificate of the employee of the Office of Interstate Land

reporter, for insertion in the official Sales Registration as may appear neces

record. sary and appropriate for the protection § 1720.330 Proposed findings, concluof the public interest.

sions, and order. (d) Appeals to the appeals officer on the Interstate Land Sales Board from

The administrative law judge may fix rulings on motions to limit or quash

a reasonable time, not to exceed 30 days

after the close of the evidence, during subpoenas within the scope of paragraph (a) of this section shall be made on the

which any party may file with the adrecord and shall be in the form of a brief

ministrative law judge proposed findings not to exceed 30 pages in length which

of fact, conclusions of law and rules or

orders together with briefs in support shall be filed within 5 days after notice

thereof. Such proposals shall be in writof the ruling is received by the objecting

ing, shall be served upon all parties and party. Any answer to such appeal shall

shall contain adequate references to the be filed within 5 days after service of the record and to authorities relied on. The appeal brief. The appeal shall not operate record shall show the administrative law to suspend the hearing unless otherwise judge's ruling on each proposed finding ordered by the administrative law judge and conclusion, except when his rule or or the appeals officer.

order disposing of the proceeding other§ 1720.300 Official notice.

wise informs the parties of the action

taken by him thereon. Official notice may be taken of any material fact which might be judicially

§ 1720.345 Initial decisions: Time for noticed by a District Court of the United

filing; when effective. States, any matter in the public official (a) The administrative law judge records of the Office of Interstate Land shall make and file an initial decision Sales Registration or any matter which is within 60 days after the close of the takpeculiarly within the knowledge of the ing of evidence in cases in which a hearappeals officer on the Interstate Land ing is held. Sales Board; provided, that when any (b) The initial decision shall become decision of an administrative law judge the decision of the Secretary 30 days

after service thereof upon the parties unless one of the following occurs:

(1) An appeal is perfected under $ 1720.365.

(2) The appeals oficer on the Interstate Land Sales Board by order stays the effective date of the decision. $ 1720.350 Initial decision-content.

The initial decision shall include a statement of (a) findings, with specific references to principal supporting items of evidence in the record and conclusions, as well as the reasons or bases therefor, upon all of the material issues of fact, law or discretion presented on the record, and (b) an appropriate order. The initial decision shall be based upon a consideration of the whole record and supported by reliable, probative and substantial evidence. 8 1720.360 Reopening of proceeding by

administrative law judge; termina

tion of jurisdiction. (a) At any time prior to the filing of his initial decision, administrative law judge may reopen the proceeding for the reception of further evidence.

(b) Except for the correction of clerical errors, the jurisdiction of the administrative law judge is terminated upon the filing of his initial decision unless and until the proceeding is remanded to him by the appeals officer on the Interstate Land Sales Board. § 1720.365 Appeal from initial decision.

(a) Notice of intention.-Any party to & proceeding may appeal an initial decision to an appeals officer on the Interstate Land Sales Board: Provided, That within 10 days after the completion of service of the initial decision such party files a notice of intention to appeal.

(b) Appeal brief.—The appeal shall be perfected by filing and serving on all parties to the proceeding a brief conforming to § 1720.385 to be filed within 30 days after completion of service of the initial decision. In addition, the appeal brief shall contain a proposed form of rule or order for the consideration of the appeals officer on the Interstate Land Sales Board in lieu of the rule or order contained in the initial decision. § 1720.375 Answering brief.

Within 20 days after service of an appeal brief upon a party, such party may file an answering brief conforming to the requirements of $ 1720.385.

§ 1720.380 Reply brief.

A brief in reply to an answering brief, limited to rebuttal of matters in the answering brief, may be filed and served by a party within 7 days after receipt of the answering brief or the day preceding oral argument whichever is earlier. No answer to a reply brief will be permitted. (38 FR 23899, Sept. 4, 1973; 38 FR 32445, Nov. 26, 1973) § 1720.385 Length and form of briefs.

No brief shall exceed 60 pages in length except with the permission of the administrative law judge or the appeals of ficer on the Interstate Land Sales Board and shall contain, in the order indicated, the following:

(1) The title of the proceeding, file number, the name of the party on whose behalf it is submitted and the name and address of his attorney in the matter on the front cover or title page.

(2) Subject index with page references.

(3) Table of cases alphabetically arranged, statutes, texts, and other authorities and materials cited, with page references.

(4) A concise statement of the facts of the case, without argument.

(5) A concise statement of the questions sought to be raised.

(6) The argument, presenting clearly the points of fact and law relied upon in support of the position taken on each question with specific page references to the record so far as available, and to legal authority or other material relied upon in support of statements contained in the agrument. $ 1720.390 Oral argument.

Oral arguments will not be heard in cases on appeal to the appeals officer on the Interstate Land Sales Board unless the officer otherwise orders, and stenographic or mechanical record of such oral argument may be made, in the officer's discretion. The purpose of oral argument is to emphasize and clarify the written argument appearing in the briefs and to answer questions. § 1720.400 Decision on appeal or review,

(a) Upon appeal from or review of an initial decision, the appeals officer on the Interstate Land Sales Board will consider such parts of the record as are cited or as may be necessary to resolve

Subpart E-Miscellaneous Rules § 1720.410 Qualifications for appear

ances.

the issues and, in addition, will, to the extent necessary or desirable, exercise all the powers which he could have exercised if he had made the initial decision. Unless exceptional circumstances are present, however, all appeals and reviews will be determined upon the record made before the administrative law judge.

(b) In rendering his decision, the appeals officer may affirm, reverse, modify, set aside or remand for further proceedings, in whole or in part, the initial decision by the hearing officer, and shall include in his decision a statement of the reasons or bases for his action and any concurring or dissenting opinions.

(c) In those cases where the appeals officer believes that he should have further information or additional arguments of the parties as to the form and content of the rule or order to be issued, he may withhold final decision pending the receipt of such additional information or argument under procedures specified.

(d) The decision of the appeals officer shall be final, and shall become the decision of the Secretary 30 days after service thereof upon the parties, unless the appeals officer determines that the protection of the public interest necessitates an earlier effective date under the circumstances, in which event he will specify in the order his specific findings as to such circumstances. § 1720.405 Reconsideration.

Within 10 days after completion of service of a decision by an appeals officer on the Interstate Land Sales Board, any party may file with the Interstate Land Sales Board a petition for reconsideration of such decision, setting forth the relief desired and the grounds in support thereof. Any petition filed hereunder must relate to new questions raised by the decision or final order and upon which the petitioner had no opportunity to argue before an appeals officer on the Interstate Land Sales Board. Any party desiring to oppose such a petition shall file an answer thereto within 10 days after service upon him of the petition. The filing of a petition for reconsideration shall not operate to stay the effective date of the decision or order to toll the running of any statutory period affecting such decision or order unless specifically so ordered by the Interstate Land Sales Board.

(a) Members of the bar of a Federal Court or of the highest court of any state or of the United States are eligible to practice before the Secretary. No register of attorneys will be maintained.

(b) Any individual or member of a partnership involved in any proceeding or investigation may appear on behalf of himself or of such partnership upon adequate identification. A corporation or association may be represented by a bona fide officer thereof upon a showing of adequate authorization.

(c) A person shall not be represented except as stated in paragraphs (a) and (b) of this section unless otherwise permitted. § 1720.415 Restrictions on appearances

as to former officers and employees. (a) Except as specifically authorized by the Secretary, no former oficer or employee of the Department of Housing and Urban Development shall appear as attorney or counsel or otherwise participate through any form of professional consultation or assistance in any proceeding or investigation, formal or informal, which was pending in any manner in the Office of Interstate Land Sales Registration while such former officer or employee served with the Department of Housing and Urban Development.

(b) In cases to which paragraph (a) of this section is applicable, a former officer or employee of the Department of Housing and Urban Development may request authorization to appear or participate in a proceeding or investigation by filing with the Secretary a written application disclosing the following relevant information: (1) The nature and extent of the former officer's or employee's participation in, knowledge of, and connection with the proceeding or investigation during his service with the Department of Housing and Urban Development; (2) whether the files of the proceeding or investigation came to his attention; (3) whether he was employed in the same office, division, or administrative unit in which the proceeding or investigation is or has been pending; (4) whether he worked directly or in close association with Office of Interstate Land Sales Registration personnel as

§ 1720.425 Standards of practice.

(a) Attorneys shall conform to the standards of professional and ethical conduct required by practitioners in the courts of the United States and by the bars of which the attorneys are members.

(b) The privilege of appearing or practicing may be denied, temporarily or permanently, to any person who is found i after notice and opportunity for hearing which at his request or in the discretion of the Secretary may be private, and for presentation of oral argument in the matter (1) not to possess the requisite qualifications to represent others, or (2) to be lacking in character or integrity or (3) to have engaged in unethical or improper professional conduct.

(c) Contemptuous conduct at any hearing shall be grounds for summary exclusion from said hearing for the duration of the hearing. 8 1720.430 Form and filing require

ments.

signed to the proceeding or investigation; (5) whether during his service with the Department of Housing and Urban Development he was engaged in any matter concerning the individual, company, or industry in the proceeding or investigation.

(c) The requested authorization will not be given in any case (1) where it appears that the former officer or employee during his service with the Department of Housing and Urban Development participated personally and substantially in the proceeding or investigation, or (2) where the application is filed within one (1) year after termination of the former officer's or employee's service with the Department of Housing and Urban Development and it appears that within a period of one (1) year prior to the termination of his service the proceeding or investigation was within the official responsibility of the former officer or employee. In other cases, authorization will be given where the Secretary is satisfied that the appearance or participation will not involve any actual conflict of interest or impropriety thereof.

(d) In any case in which a former officer or employee of the Department of Housing and Urban Development is prohibited under this section from appearing or participating in a proceeding or investigation, any partner or legal or business associate of such former officer or employee shall likewise be so prohibited unless: (1) Such partner or legal or business associate files with the Secretary an affidavit that in connection with the matter the services of the disqualified former oficer or employee will not be utilized in any respect and the matter will not be discussed with him in any manner, and that the disqualified former officer or employee shall not share, directly or indirectly, in any fees or retainers received for services rendered in connection with such proceeding or investigation; (2) the disqualified former officer or employee files an affidavit stating that he will not participate in the matter in any manner, and that he will not discuss it with any person involved in the matter; and (3) upon the basis of such affidavits, the Secretary determines that the appearance or participation by the partner or associate would not involve any actual conflict of interest or impropriety thereof.

(a) Filing. Except as otherwise permitted, six copies of all documents shall be filed with the Office of Interstate Land Sales Registration, Department of Housing and Urban Development, Washington, D.C. 20411, on official work days between the hors of 8:45 a.m. and 5:15 p.m.

(b) Title. Documents shall clearly show the file, docket number, and title of the action in connection with which they are filed.

(c) Form. Except as otherwise permitted, all documents shall be printed, typewritten, or otherwise processed in clear legible form and on good unglazed paper. $ 1720.435 Time computation.

Computation of any period of time prescribed or allowed by the rules and regulations in this part, or by order of the Secretary or his designee or of an administrative law judge, shall begin with the first business day following that on which the act, event, development or default initiating such period of time shall have occurred. When the last day of the period so computed is a Saturday, Sunday, or national holiday, or other day on which the Department of Housing and Urban Development is closed, the period shall run until the end of the next following business day. Except when any prescribed or allowed period of time is 7

days or less, each of the Saturdays, Sundays, and national holidays shall be included in the computation of the prescribed or allowed period. $ 1720.440 Service.

Service of notices, orders, processes, determinations and other documents required or permitted to be served under these rules may be effected as follows:

(a) Upon the Secretary. By personal delivery at the office, or by registered or certified mail addressed to the office of any of the following officials in the Office of Intrastate Land Sales Registration: Administrator; Deputy Administrator; Assistant Deputy Administrator; Director, Examination Division; or Director, Administrative Proceedings Division.

(b) Upon any other person. By delivery of a copy of the documents to the person to be served wherever he may be found, or by leaving such copy at his office or place of business with a person apparently in charge thereof, or, if there is no one in charge or if the office is closed or if he has no office, by leaving a copy at his residence with some person of suitable age and discretion then residing therein, or by sending a copy by registered or certified mail, return receipt requested, addressed to the person at his last known residence, or at his or its last known principal office or place of business. If the address of the residence, principal office, or place of business is unknown and cannot with due diligence be ascertained, service by mail may be made to any office at which the person to be served is known to be employed.

(c) Service on corporations, partnerships, associations, other entities. Service may be made upon any corporation, partnership, business association or other entity by serving any officer, director, partner, trustee, agent for service or managing agent thereof. A managing agent, within the meaning of this subsection, is an agent having the principal managerial responsibility in connection with the regular operation of a distinct office or activity of the enterprise.

(d) Service through attorney. When a person other than the Secretary and his staff shall have appeared of record in & proceeding, generally or specially, by attorney, all subsequent services of notices, orders, processes, and other documents in connection with such proceeding may be made upon such person by

serving the attorney, except that subpoenas and other orders by which such person may be brought in contempt shall be served upon him by one of the methods described in paragraphs (b) and (c) of this section. In any case, copies of documents not served by serving such attorney shall be promptly sent to him; but service on such person shall be effective without proof that copies so sent were received.

(e) Proof of service. Proof of service shall not be required unless the fact of service is seasonably put in issue by appropriate motion or objection on the part of the person allegedly served or other party. In such cases, service may be established by written admission signed by or on behalf of the person to be served, or may be established prima facie by affidavit or certificate of service or malling, as appropriate. When service is by registered or certified mail, it is complete upon delivery of the document by the post office. Subpart F-Interstate Land Sales Board

and Appeals Officers $ 1720.500 Functions of the Interstate

Land Sales Board and appeals officers. There is hereby established within the Department of Housing and Urban Development an Interstate Land Sales Board, the members of which are designated as appeals officers and may be appointed from time to time by the Secretary. The functions, powers, and responsibilities delegated to an appeals officer designated from the Board as the authorized representative of the Secretary shall be to hear, consider and determine fully and finally appeals from decisions made pursuant to the rules in this part by administrative law judge and to conduct hearings pursuant to 15 U.S.C. 1715. § 1720.510 Composition of the Inter

state Land Sales Board. The Board shall consist of four (4) appointed employees of the Department of Housing and Urban Development designated as appeals officers, other than employees in the Office of Interstate Land Sales Registration. An appeals officer on the Board shall be available at all times for the hearing of each appeal. Records of proceedings before an appeals officer shall be kept by a Secretary to the Board who shall be an employee of the Office of General Counsel.

« PreviousContinue »