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Departmental Appeals Board
CIVIL RIGHTS REVIEWING AUTHORITY GUIDELINES -- REVIEW OF CIVIL RIGHTS ENFORCEMENT DECISIONS FOR HHS PROGRAMS
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
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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.
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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.
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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.
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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
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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.
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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.
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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.
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Unless oral argument is permitted as discussed below, the exceptions and
the response are the only additions to the record on appeal.
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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.
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The Panel, in its sole discretion, may allow further submissions by the
parties.
The Review Process at the Board
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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.
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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.
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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.
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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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