Departmental Appeals Board

• Introduction
• Starting the Review Process
• Development of the Record on Appeal
• The Review Process at the Board
• Appeal of the decision from the CRRA

Introduction

The Department's regulations at 45 C.F.R. Parts 80, 81 83, 84 and 86 provide compliance proceedings to implement title VI of the Civil Rights Act of 1964 and other civil rights legislation, section 504 of the Rehabilitation Act of 1973, which is designed to eliminate discrimination on the basis of handicap, and titles VII and VIII of the Public Health Service Act and title IX of the Education Amendments of 1972, which are designed to eliminate discrimination on the basis of sex in training and education programs or activities. If there appears to be a failure or threatened failure to comply with the discrimination prohibitions of the regulations, and if the noncompliance or threatened noncompliance cannot be corrected by informal means, compliance may be effected by suspending, terminating, or refusing to grant or continue federal financial assistance or by any other means authorized by law.

The enforcement process begins when the responsible Department official makes a determination of a failure (or threatened failure) to comply and determines that compliance cannot be secured by voluntary means. The recipient of or applicant for federal financial assistance is then entitled to a hearing before an administrative law judge (ALJ). The ALJ decision is in turn subject to review by the Department's Civil Rights Reviewing Authority (CRRA). The current members of the Departmental Appeals Board have been appointed by the Secretary to be the members of the CRRA. These guidelines have been designed to assist the parties in understanding and following the procedures relating to the review by the CRRA.

If you have any questions about these guidelines, you may call Carolyn Reines-Graubard at 202-565-0116.

Starting the Review Process

• Under 45 C.F.R. �� 80.10 and 81.103, any party may seek review of the initial decision of the ALJ. A party must file a request for review and supporting reasons within 20 days after the mailing of the initial decision. In the event the ALJ issued a recommended decision, as is also permitted under the regulations, you may file an appeal of that decision in the same manner. "Filing" for purposes of review of the ALJ decision means the date on which your request for review is mailed or delivered to the Board.

• To file for review, submit your request for review to the Civil Rights Reviewing Authority, Department of Health and Human Services, Departmental Appeals Board, MS6127, Appellate Division, 330 Independence Ave., S.W., Cohen Building, Room G-644, Washington, DC 20201.

• Your request for review must include a written brief specifying findings of fact and conclusions of law with which you disagree (exceptions), and your basis for contending that each such finding or conclusion is unsupported or incorrect. This requirement to state your entire argument is important, because you may not have an opportunity to file additional briefs. Do not merely incorporate by reference a brief previously submitted to the ALJ. The basis for challenging each element of the ALJ decision should be set forth in a separate numbered paragraph or section, and the accompanying arguments concisely stated. Where appropriate, each argument should be supported by precise citations to the record before the ALJ or by precise citations to statutes, regulations or other authorities relied upon. Do not submit materials already in the record.

• Whenever you submit anything to the CRRA, provide an original and two copies to the CRRA and a copy to your opponent. Include in your submission to the CRRA a statement that you have sent a copy to your opponent. All submissions and requests shall be served upon any amicus curiae at the same time and in the same manner required for service on parties.

Development of the Record on Appeal

• The appeal and the record are immediately referred to a Panel of three Board members serving as the CRRA in the appeal, with one of them presiding. The Panel is assisted by a staff attorney who also functions as the parties' contact for questions about case status and procedures. The Panel oversees any further record development and issues a decision on appeal.

• The Presiding Panel Member will grant reasonable extensions for filing of the exceptions (and the response to exceptions discussed below) upon request and a showing of good cause.

• The opponent of the party filing the exceptions may submit a response. The response should follow the guidelines on completeness and citations prescribed above. The response must be filed within 30 days after the mailing of the ALJ decision unless an extension has been granted for good cause shown.

• Unless oral argument is permitted as discussed below, the exceptions and the response are the only additions to the record on appeal.

• If any party desires to appear before the CRRA to present oral argument, the party shall request oral argument in writing as soon as possible in the review process. The Panel may grant or deny such a request in its discretion. If the request is granted, the Panel will serve notice of oral argument on all parties. Participants should confine their arguments during oral argument to points of controlling importance and to points upon which exceptions have been filed. No written materials, such as pamphlets or charts, may be presented at oral argument unless filed with the Board at least seven days before the argument. Any such material must be limited to facts already in the record.

• The Panel, in its sole discretion, may allow further submissions by the parties.

The Review Process at the Board

• The Panel may affirm, modify, or reverse the initial or recommended decision of the ALJ. The Panel also may remand the case to the ALJ for further proceedings. If the exceptions are not filed timely or fail to meet jurisdictional requirements, the Panel will decline to review the decision. Generally, the Panel will complete its review and issue a final decision within 30 days after it receives the last submission from the parties.

• The standard of review on a disputed factual issue is whether the ALJ decision is supported by substantial evidence in the record. The standard of review on a disputed legal issue is whether the decision is erroneous. The bases for modifying, reversing, or remanding an ALJ decision include the following: a finding of material fact necessary to the outcome of the decision is not supported by substantial evidence; a legal conclusion necessary to the outcome of the decision is erroneous; the decision is contrary to law or applicable regulations; a prejudicial error of procedure (including an abuse of discretion under the law or applicable regulations) was committed.

• The Panel will review only those parts of the record before the ALJ which are cited by the parties or which the Panel considers necessary to decide the appeal. The Panel will not consider issues not raised in the request for review, nor issues which could have been presented to the ALJ but were not.

• The parties may still negotiate to resolve or narrow the issues in dispute at any time in the review process. Mediation services can be provided by the Board if both parties agree.

Appeal of the decision from the CRRA

A party may request the Secretary to review the Panel's decision within 20 days of the mailing of the decision. The Secretary may grant or deny such request, in whole or in part, or serve notice of her intent to review the decision, in whole or in part, upon her own motion.

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