(a) For the Government. At any time after the expiration of 20 days
from the commencement of the action, or after service of a motion for
summary judgment by the respondent, the Government may move with or
without supporting affidavits for a summary judgment upon all claims or
any part.
(b) For defendant. The defendant may, at any time after commencement
of the action, move with or without supporting affidavits for summary
judgment in its favor as to all claims or any part.
(c) Other parties. Any other party to a formal proceeding under this
part may support or oppose motions for summary judgment made by the
Government or respondent, in accordance with this section, but may not
move for a summary judgment in his own behalf.
(d) Statement of uncontested facts. All motions for summary judgment
shall be accompanied by a ``Statement of Uncontested Facts'' in which
the moving party sets forth all alleged uncontested material facts which
shall provide the basis for its motion. At least 5 days prior to the
time fixed for hearing on the motion, any party contending that any
material fact regarding the matter covered by the motion is in dispute,
shall file a ``Statement of Disputed Facts.'' Failure to file a
``Statement of Disputed Facts'' shall be deemed as an admission to the
``Statement of Uncontested Facts.''
(e) Motion and proceedings. The motion shall be served upon all
parties at least 15 days before the time fixed for the hearing on the
motion. The adverse party or parties may serve opposing affidavits prior
to the day of hearing. The judgment sought shall be rendered forthwith
if the complaint and answer, depositions, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law. Summary judgment rendered for or against
the Government or the respondent shall constitute the findings and
recommendations on the issues involved. Hearings on motions made under
this section shall be scheduled by the Administrative Law Judge.
(f) Case not fully adjudicated on motion. If on motion under this
section judgment is not rendered upon the whole case or for all the
relief asked and a final hearing is necessary, the Administrative Law
Judge at the hearing of the motion, by examining the notice and answer
and the evidence before him and by interrogating counsel, shall, if
practicable, ascertain what material facts exist without substantial
controversy and what material facts are actually and in good faith
controverted. He shall thereupon make an order specifying the facts that
appear without substantial controversy, including the extent to which
relief is not in controversy, and directing such further proceedings as
are just. At the hearing on the merits, the facts so specified shall be
deemed established, and the final hearing shall be conducted
accordingly.
[43 FR 49259, Oct. 20, 1978; 43 FR 51401, Nov. 3, 1978]
