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2000 - Rules and Regulations
§ 308.21 Failure to appear.
Failure of a respondent to appear in person at the hearing or by a
duly authorized counsel constitutes a waiver of respondent's right to a
hearing and is deemed an admission of the facts as alleged and consent
to the relief sought in the notice. Without further proceedings or
notice to the respondent, the administrative law judge shall file with
the Board of Directors a recommended decision containing the findings
and the relief sought in the notice.
[Codified to 12 C.F.R. § 308.21]
§ 308.22 Consolidation and severance of actions.
(a) Consolidation. (1) On the motion of any party, or
on the administrative law judge's own motion, the administrative law
judge may consolidate, for some or all purposes, any two or more
proceedings, if each such proceeding involves or arises out of the same
transaction, occurrence or series of transactions or occurrences, or
involves at least one common respondent or a material common question
of law or fact, unless such consolidation would cause unreasonable
delay or injustice.
(2) In the event of consolidation under paragraph (a)(1) of this
section, appropriate adjustment to the prehearing schedule must be made
to avoid unnecessary expense, inconvenience, or delay.
(b) Severance. The administrative law judge may, upon
the motion of any party, sever the proceeding for separate resolution
of the matter as to any respondent only if the administrative law judge
finds that:
(1) Undue prejudice or injustice to the moving party would result
from not severing the proceeding; and
(2) Such undue prejudice or injustice would outweigh the
interests of judicial economy and expedition in the complete and final
resolution of the proceeding.
[Codified to 12 C.F.R. § 308.22]
§ 308.23 Motions.
(a) In writing. (1) Except as otherwise provided
herein, an application or request for an order or ruling must be made
by written motion.
(2) All written motions must state with particularity the relief
sought and must be accompanied by a proposed order.
{{6-28-96 p.2137}}
(3) No oral argument may be held on written motions except as
otherwise directed by the administrative law judge. Written memoranda,
briefs, affidavits or other relevant material or documents may be filed
in support of or in opposition to a motion.
(b) Oral motions. A motion may be made orally on the
record unless the administrative law judge directs that such motion be
reduced to writing.
(c) Filing of motions. Motions must be filed with the
administrative law judge, except that following the filing of the
recommended decision, motions must be filed with the Executive
Secretary for disposition by the Board of Directors.
(d) Responses. (1) Except as otherwise provided
herein, within ten days after service of any written motion, or within
such other period of time as may be established by the administrative
law judge or the Executive Secretary, any party may file a written
response to a motion. The administrative law judge shall not rule on
any oral or written motion before each party has had an opportunity to
file a response.
(2) The failure of a party to oppose a written motion or an oral
motion made on the record is deemed a consent by that party to the
entry of an order substantially in the form of the order accompanying
the motion.
(e) Dilatory motions. Frivolous, dilatory or repetitive
motions are prohibited. The filing of such motions may form the basis
for sanctions.
(f) Dispositive motions. Dispositive motions are
governed by §§ 308.29 and 308.30.
[Codified to 12 C.F.R. § 308.23]
§ 308.24 Scope of document discovery.
(a) Limits on discovery. (1) Subject to the
limitations set out in paragraphs (b), (c), and (d) of this section, a
party to a proceeding under this subpart may obtain document discovery
by serving a written request to produce documents. For purposes of a
request to produce documents, the term "documents" may be defined
to include drawings, graphs, charts, photographs, recordings, data
stored in electronic form, and other data compilations from which
information can be obtained, or translated, if necessary, by the
parties through detection devices into reasonably usable form, as well
as written material of all kinds.
(2) Discovery by use of deposition is governed by subpart I of
this part.
(3) Discovery by use of interrogatories is not permitted.
(b) Relevance. A party may obtain document discovery
regarding any matter, not privileged, that has material relevance to
the merits of the pending action. Any request to produce documents that
calls for irrelevant material, that is unreasonable, oppressive,
excessive in scope, unduly burdensome, or repetitive of previous
requests, or that seeks to obtain privileged documents will be denied
or modified. A request is unreasonable, oppressive, excessive in scope
or unduly burdensome if, among other things, it fails to include
justifiable limitations on the time period covered and the geographic
locations to be searched, the time provided to respond in the request
is inadequate, or the request calls for copies of documents to be
delivered to the requesting party and fails to include the requestor's
written agreement to pay in advance for the copying, in accordance with
§ 308.25.
(c) Privileged matter. Privileged documents are not
discoverable. Privileges include the attorney-client privilege,
work-product privilege, any government's or government agency's
deliberative-process privilege, and any other privileges the
Constitution, any applicable act of Congress, or the principles of
common law provide.
(d) Time limits. All discovery, including all responses
to discovery requests, shall be completed at least 20 days prior to the
date scheduled for the commencement of the hearing. No exceptions to
this time limit shall be permitted, unless the administrative law judge
finds on the record that good cause exists for waiving the requirements
of this paragraph.
[Codified to 12 C.F.R. § 308.24]
[Section 308.24 amended at 61 Fed. Reg. 20348, May 6,
1996, effective June 5, 1996]
{{6-28-96 p.2138}}
§ 308.25 Request for document discovery from parties.
(a) General rule. Any party may serve on any other
party a request to produce for inspection any discoverable documents
that are in the possession, custody, or control of the party upon whom
the request is served. The request must identify the documents to be
produced either by individual item or by category, and must describe
each item and category with reasonable particularity. Documents must be
produced as they are kept in the usual course of business or must be
organized to correspond with the categories in the request.
(b) Production or copying. The request must specify a
reasonable time, place, and manner for production and performing any
related acts. In lieu of inspecting the documents, the requesting party
may specify that all or some of the responsive documents be copied and
the copies delivered to the requesting party. If copying of fewer than
250 pages is requested, the party to whom the request is addressed
shall bear the cost of copying and shipping charges. If a party
requests 250 pages or more of copying, the requesting party shall pay
for the copying and shipping charges. Copying charges are the current
per-page copying rate imposed by 12
CFR part 310 implementing the Freedom of Information Act
(5 U.S.C. 552). The party to
whom the request is addressed may require payment in advance before
producing the documents.
(c) Obligation to update responses. A party who has
responded to a discovery request with a response that was complete when
made is not required to supplement the response to include documents
thereafter acquired, unless the responding party learns that:
(1) The response was materially incorrect when made; or
(2) The response, though correct when made, is no longer true and
a failure to amend the response is, in substance, a knowing
concealment.
(d) Motions to limit discovery. (1) Any party that
objects to a discovery request may, within ten days of being served
with such request, file a motion in accordance with the provisions of
§ 308.23 to strike or otherwise limit the request. If an objection is
made to only a portion of an item or category in a request, the portion
objected to shall be specified. Any objections not made in accordance
with this paragraph and § 308.23 are waived.
(2) The party who served the request that is the subject of a
motion to strike or limit may file a written response within five days
of service of the motion. No other party may file a response.
(e) Privilege. At the time other documents are
produced, the producing party must reasonably identify all documents
withheld on the grounds of privilege and must produce a statement of
the basis for the assertion of privilege. When similar documents that
are protected by deliberative process, attorney-work-product, or
attorney-client privilege are voluminous, these documents may be
identified by category instead of by individual document. The
administrative law judge retains discretion to determine when the
identification by category is insufficient.
(f) Motions to compel production. (1) If a party
withholds any documents as privileged or fails to comply fully with a
discovery request, the requesting party may, within ten days of the
assertion of privilege or of the time the failure to comply becomes
known to the requesting party, file a motion in accordance with the
provisions of § 308.23 for the issuance of a subpoena compelling
production.
(2) The party who asserted the privilege or failed to comply with
the request may file a written response to a motion to compel within
five days of service of the motion. No other party may file a response.
(g) Ruling on motions. After the time for filing
responses pursuant to this section has expired, the administrative law
judge shall rule promptly on all motions filed pursuant to this
section. If the administrative law judge determines that a discovery
request, or any of its terms, call for irrelevant material, is
unreasonable, oppressive, excessive in scope, unduly burdensome, or
repetitive of previous requests, or seeks to obtain privileged
documents, he or she may deny or modify the request, and may issue
appropriate protective orders, upon such conditions as justice may
require. The pendency of a motion
{{2-29-00 p.2139}}to strike or limit discovery or
to compel production is not a basis for staying or continuing the
proceeding, unless otherwise ordered by the administrative law judge.
Notwithstanding any other provision in this part, the administrative
law judge may not release, or order a party to produce, documents
withheld on grounds of privilege if the party has stated to the
administrative law judge its intention to file a timely motion for
interlocutory review of the administrative law judge's order to produce
the documents, and until the motion for interlocutory review has been
decided.
(h) Enforcing discovery subpoenas. If the
administrative law judge issues a subpoena compelling production of
documents by a party, the subpoenaing party may, in the event of
noncompliance and to the extent authorized by applicable law, apply to
any appropriate United States district court for an order requiring
compliance with the subpoena. A party's right to seek court enforcement
of a subpoena shall not in any manner limit the sanctions that may be
imposed by the administrative law judge against a party who fails to
produce subpoenaed documents.
[Codified to 12 C.F.R. § 308.25]
[Section 308.25 amended at 61 Fed. Reg. 20348, May 6,
1996, effective June 5, 1996]
§ 308.26 Document subpoenas to nonparties.
(a) General rules. (1) Any party may apply to the
administrative law judge for the issuance of a document discovery
subpoena addressed to any person who is not a party to the proceeding.
The application must contain a proposed document subpoena and a brief
statement showing the general relevance and reasonableness of the scope
of documents sought. The subpoenaing party shall specify a reasonable
time, place, and manner for making production in response to the
document subpoena.
(2) A party shall only apply for a document subpoena under this
section, within the time period during which such party could serve a
discovery request under § 308.24(d). The party obtaining the document
subpoena is responsible for serving it on the subpoenaed person and for
serving copies on all parties. Document subpoenas may be served in any
state, territory, or possession of the United States, the District of
Columbia, or as otherwise provided by law.
(3) The administrative law judge shall promptly issue any
document subpoena requested pursuant to this section. If the
administrative law judge determines that the application does not set
forth a valid basis for the issuance of the subpoena, or that any of
its terms are unreasonable, oppressive, excessive in scope, or unduly
burdensome, he or she may refuse to issue the subpoena or may issue it
in a modified form upon such conditions as may be consistent with the
Uniform Rules.
(b) Motion to quash or modify. (1) Any person to whom
a document subpoena is directed may file a motion to quash or modify
such subpoena, accompanied by a statement of the basis for quashing or
modifying the subpoena. The movant shall serve the motion on all
parties, and any party may respond to the motion within ten days of
service of the motion.
(2) Any motion to quash or modify a document subpoena must be
filed on the same basis, including the assertion of privilege, upon
which a party could object to a discovery request under § 308.25(d),
and during the same time limits during which such an objection could be
filed.
(c) Enforcing document subpoenas. If a subpoenaed
person fails to comply with any subpoena issued pursuant to this
section or any order of the administrative law judge which directs
compliance with all or any portion of a document subpoena, the
subpoenaing party or any other aggrieved party may, to the extent
authorized by applicable law, apply to an appropriate United States
district court for an order requiring compliance with so much of the
document subpoena as the administrative law judge has not quashed or
modified. A party's right to seek court enforcement of a document
subpoena shall in no way limit the sanctions that may be imposed by the
administrative law judge on a party who induces a failure to comply
with subpoenas issued under this section.
{{2-29-00 p.2140}}
[Codified to 12 C.F.R. § 308.26]
§ 308.27 Deposition of witness unavailable for hearing.
(a) General rules. (1) If a witness will not be
available for the hearing, a party desiring to preserve that witness'
testimony for the record may apply in accordance with the procedures
set forth in paragraph (a)(2) of this section, to the administrative
law judge for the issuance of a subpoena, including a subpoena duces
tecum, requiring the attendance of the witness at a deposition. The
administrative law judge may issue a deposition subpoena under this
section upon showing that:
(i) The witness will be unable to attend or may be prevented from
attending the hearing because of age, sickness or infirmity, or will
otherwise be unavailable;
(ii) The witness' unavailability was not procured or caused by
the subpoenaing party;
(iii) The testimony is reasonably expected to be material; and
(iv) Taking the deposition will not result in any undue burden to
any other party and will not cause undue delay of the proceeding.
(2) The application must contain a proposed deposition subpoena
and a brief statement of the reasons for the issuance of the subpoena.
The subpoena must name the witness whose deposition is to be taken and
specify the time and place for taking the deposition. A deposition
subpoena may require the witness to be deposed at any place within the
country in which that witness resides or has a regular place of
employment or such other convenient place as the administrative law
judge shall fix.
(3) Any requested subpoena that sets forth a valid basis for its
issuance must be promptly issued, unless the administrative law judge
on his or her own motion, requires a written response or requires
attendance at a conference concerning whether the requested subpoena
should be issued.
(4) The party obtaining a deposition subpoena is responsible for
serving it on the witness and for serving copies on all parties. Unless
the administrative law judge orders otherwise, no deposition under this
section shall be taken on fewer than ten days' notice to the witness
and all parties. Deposition subpoenas may be served in any state,
territory, possession of the United States, or the District of
Columbia, on any person or company doing business in any state,
territory, possession of the United States, or the District of
Columbia, or as otherwise permitted by law.
(b) Objections to deposition subpoenas. (1) The
witness and any party who has not had an opportunity to oppose a
deposition subpoena issued under this section may file a motion with
the administrative law judge to quash or modify the subpoena prior to
the time for compliance specified in the subpoena, but not more than
ten days after service of the subpoena.
(2) A statement of the basis for the motion to quash or modify a
subpoena issued under this section must accompany the motion. The
motion must be served on all parties.
(c) Procedure upon deposition. (1) Each witness
testifying pursuant to a deposition subpoena must be duly sworn, and
each party shall have the right to examine the witness. Objections to
questions or documents must be in short form, stating the grounds for
the objection. Failure to object to questions or documents is not
deemed a waiver except where the ground for the objection might have
been avoided if the objection had been timely presented. All questions,
answers, and objections must be recorded.
(2) Any party may move before the administrative law judge for an
order compelling the witness to answer any questions the witness has
refused to answer or submit any evidence the witness has refused to
submit during the deposition.
(3) The deposition must be subscribed by the witness, unless the
parties and the witness, by stipulation, have waived the signing, or
the witness is ill, cannot be found, or has refused to sign. If the
deposition is not subscribed by the witness, the court reporter taking
the deposition shall certify that the transcript is a true and complete
transcript of the deposition.
{{6-28-96 p.2141}}
(d) Enforcing subpoenas. If a subpoenaed person fails
to comply with any order of the administrative law judge which directs
compliance with all or any portion of a deposition subpoena under
paragraph (b) or (c)(3) of this section, the subpoenaing party or other
aggrieved party may, to the extent authorized by applicable law, apply
to an appropriate United States district court for an order requiring
compliance with the portions of the subpoena that the administrative
law judge has ordered enforced. A party's right to seek court
enforcement of a deposition subpoena in no way limits the sanctions
that may be imposed by the administrative law judge on a party who
fails to comply with, or procures a failure to comply with a subpoena
issued under this section.
[Codified to 12 C.F.R. § 308.27]
§ 308.28 Interlocutory review.
(a) General rule. The Board of Directors may review a
ruling of the administrative law judge prior to the certification of
the record to the Board of Directors only in accordance with the
procedures set forth in this section and § 308.23.
(b) Scope of review. The Board of Directors may
exercise interlocutory review of a ruling of the administrative law
judge if the Board of Directors finds that:
(1) The ruling involves a controlling question of law or policy
as to which substantial grounds exist for a difference of opinion;
(2) Immediate review of the ruling may materially advance the
ultimate termination of the proceeding;
(3) Subsequent modification of the ruling at the conclusion of
the proceeding would be an inadequate remedy; or
(4) Subsequent modification of the ruling would cause unusual
delay or expense.
(c) Procedure. Any request for interlocutory review
shall be filed by a party with the administrative law judge within ten
days of his or her ruling and shall otherwise comply with § 308.23.
Any party may file a response to a request for interlocutory review in
accordance with § 308.23(d). Upon the expiration of the time for
filing all responses, the administrative law judge shall refer the
matter to the Board of Directors for final disposition.
(d) Suspension of proceeding. Neither a request for
interlocutory review nor any disposition of such a request by the Board
of Directors under this section suspends or stays the proceeding unless
otherwise ordered by the administrative law judge or the Board of
Directors.
[Codified to 12 C.F.R. § 308.28]
§ 308.29 Summary disposition.
(a) In general. The administrative law judge shall
recommend that the Board of Directors issue a final order granting a
motion for summary disposition if the undisputed pleaded facts,
admissions, affidavits, stipulations, documentary evidence, matters as
to which official notice may be taken, and any other evidentiary
materials properly submitted in connection with a motion for summary
disposition show that:
(1) There is no genuine issue as to any material fact; and
(2) The moving party is entitled to a decision in its favor as a
matter of law.
(b) Filing of motions and responses.
(1) Any party who believes that there is no genuine issue of
material fact to be determined and that he or she is entitled to a
decision as a matter of law may move at any time for summary
disposition in its favor of all or any part of the proceeding. Any
party, within 20 days after service of such a motion, or within such
time period as allowed by the administrative law judge, may file a
response to such motion.
(2) A motion for summary disposition must be accompanied by a
statement of the material facts as to which the moving party contends
there is no genuine issue. Such motion must be supported by documentary
evidence, which may take the form of admissions in pleadings,
stipulations, depositions, investigatory depositions,
transcripts,
{{6-28-96 p.2142}}affidavits and any other
evidentiary materials that the moving party contends support his or her
position. The motion must also be accompanied by a brief containing the
points and authorities in support of the contention of the moving
party. Any party opposing a motion for summary disposition must file a
statement setting forth those material facts as to which he or she
contends a genuine dispute exists. Such opposition must be supported by
evidence of the same type as that submitted with the motion for summary
disposition and a brief containing the points and authorities in
support of the contention that summary disposition would be
inappropriate.
(c) Hearing on motion. At the request of any party or
on his or her own motion, the administrative law judge may hear oral
argument on the motion for summary disposition.
(d) Decision on motion. Following receipt of a motion
for summary disposition and all responses thereto, the administrative
law judge shall determine whether the moving party is entitled to
summary disposition. If the administrative law judge determines that
summary disposition is warranted, the administrative law judge shall
submit a recommended decision to that effect to the Board of Directors.
If the administrative law judge finds that no party is entitled to
summary disposition, he or she shall make a ruling denying the motion.
[Codified to 12 C.F.R. § 308.29]
§ 308.30 Partial summary disposition.
If the administrative law judge determines that a party is entitled
to summary disposition as to certain claims only, he or she shall defer
submitting a recommended decision as to those claims. A hearing on the
remaining issues must be ordered. Those claims for which the
administrative law judge has determined that summary disposition is
warranted will be addressed in the recommended decision filed at the
conclusion of the hearing.
[Codified to 12 C.F.R. § 308.30]
§ 308.31 Scheduling and prehearing conferences.
(a) Scheduling conference. Within 30 days of service of
the notice or order commencing a proceeding or such other time as
parties may agree, the administrative law judge shall direct counsel
for all parties to meet with him or her in person at a specified time
and place prior to the hearing or to confer by telephone for the
purpose of scheduling the course and conduct of the proceeding. This
meeting or telephone conference is called a "scheduling
conference." The identification of potential witnesses, the time for
and manner of discovery, and the exchange of any prehearing material
including witness lists, statements of issues, stipulations, exhibits
and any other materials may also be determined at the scheduling
conference.
(b) Prehearing conferences. The administrative law
judge may, in addition to the scheduling conference, on his or her own
motion or at the request of any party, direct counsel for the parties
to meet with him or her (in person or by telephone) at a prehearing
conference to address any or all of the following:
(1) Simplification and clarification of the issues;
(2) Stipulations, admissions of fact, and the contents,
authenticity and admissibility into evidence of documents;
(3) Matters of which official notice may be taken;
(4) Limitation of the number of witnesses;
(5) Summary disposition of any or all issues;
(6) Resolution of discovery issues or disputes;
(7) Amendments to pleadings; and
(8) Such other matters as may aid in the orderly disposition of
the proceeding.
(c) Transcript. The administrative law judge, in his or
her discretion, may require that a scheduling or prehearing conference
be recorded by a court reporter. A transcript of the
{{6-28-96 p.2143}}conference and any materials
filed, including orders, becomes part of the record of the proceeding.
A party may obtain a copy of the transcript at his or her expense.
(d) Scheduling or prehearing orders. At or within a
reasonable time following the conclusion of the scheduling conference
or any prehearing conference, the administrative law judge shall serve
on each party an order setting forth any agreements reached and any
procedural determinations made.
[Codified to 12 C.F.R. § 308.31]
§ 308.32 Prehearing submissions.
(a) Within the time set by the administrative law judge, but in no
case later than 14 days before the start of the hearing, each party
shall serve on every other party, his or her:
(1) Prehearing statement;
(2) Final list of witnesses to be called to testify at the
hearing, including name and address of each witness and a short summary
of the expected testimony of each witness;
(3) List of the exhibits to be introduced at the hearing along
with a copy of each exhibit; and
(4) Stipulations of fact, if any.
(b) Effect of failure to comply. No witness may testify and no
exhibits may be introduced at the hearing if such witness or exhibit is
not listed in the prehearing submissions pursuant to paragraph (a) of
this section, except for good cause shown.
[Codified to 12 C.F.R. § 308.32]
§ 308.33 Public hearings.
(a) General rule. All hearings shall be open to the
public, unless the FDIC, in its discretion, determines that holding an
open hearing would be contrary to the public interest. Within 20
days of service of the notice or, in the case of change-in-control
proceedings under section 7(j)(4) of the FDIA
(12 U.S.C. 1817(j)(4)), within
20 days from service of the hearing order, any respondent may file with
the Executive Secretary a request for a private hearing, and any party
may file a in reply to such a request. A party must serve on the
administrative law judge a copy of any request or reply the party files
with the Executive Secretary. The form of, and procedure for, these
requests and replies are governed by § 308.23. A party's failure to
file a request or a reply constitutes a waiver of any objections
regarding whether the hearing will be public or private.
(b) Filing document under seal. Enforcement Counsel, in
his or her discretion, may file any document or part of a document
under seal if disclosure of the document would be contrary to the
public interest. The administrative law judge shall take all
appropriate steps to preserve the confidentiality of such documents or
parts thereof, including closing portions of the hearing to the public.
[Codified to 12 C.F.R. § 308.33]
[Section 308.33 amended at 61 Fed. Reg. 20349, May 6,
1996, effective June 5, 1996]
§ 308.34 Hearing subpoenas.
(a) Issuance. (1) Upon application of a party showing
general relevance and reasonableness of scope of the testimony or other
evidence sought, the administrative law judge may issue a subpoena or a
subpoena duces tecum requiring the attendance of a witness
at the hearing or the production of documentary or physical evidence at
the hearing. The application for a hearing subpoena must also contain a
proposed subpoena specifying the attendance of a witness or the
production of evidence from any state, territory, or possession of the
United States, the District of Columbia or as otherwise provided by law
at any designated place where the hearing is being conducted. The party
making the application shall serve a copy of the application and the
proposed subpoena on every other party.
{{6-28-96 p.2144}}
(2) A party may apply for a hearing subpoena at any time before
the commencement of a hearing. During a hearing, a party may make an
application for a subpoena orally on the record before the
administrative law judge.
(3) The administrative law judge shall promptly issue any hearing
subpoena requested pursuant to this section. If the administrative law
judge determines that the application does not set forth a valid basis
for the issuance of the subpoena, or that any of its terms are
unreasonable, oppressive, excessive in scope, or unduly burdensome, he
or she may refuse to issue the subpoena or may issue it in a modified
form upon any conditions consistent with this subpart. Upon issuance by
the administrative law judge, the party making the application shall
serve the subpoena on the person named in the subpoena and on each
party.
(b) Motion to quash or modify. (1) Any person to whom
a hearing subpoena is directed or any party may file a motion to quash
or modify such subpoena, accompanied by a statement of the basis for
quashing or modifying the subpoena. The movant must serve the motion on
each party and on the person named in the subpoena. Any party may
respond to such motion within ten days of service of the motion.
(2) Any motion to quash or modify a hearing subpoena must be
filed prior to the time specified in the subpoena for compliance, but
not more than ten days after the date of service of the subpoena upon
the movant.
(c) Enforcing subpoenas. If a subpoenaed person fails
to comply with any subpoena issued pursuant to this section or any
order of the administrative law judge which directs compliance with all
or any portion of a document subpoena, the subpoenaing party or any
other aggrieved party may seek enforcement of the subpoena pursuant to
§ 308.26(c).
[Codified to 12 C.F.R. § 308.34]
[Section 308.34 amended at 61 Fed. Reg. 20349, May 6,
1996, effective June 5, 1996]
§ 308.35 Conduct of hearings.
(a) General rules. (1) Hearings shall be conducted so
as to provide a fair and expeditious presentation of the relevant
disputed issues. Each party has the right to present its case or
defense by oral and documentary evidence and to conduct such cross
examinations as may be required for full disclosure of the facts.
(2) Order of hearing. Enforcement Counsel shall present its
case-in-chief first, unless otherwise ordered by the administrative law
judge, or unless otherwise expressly specified by law or regulation.
Enforcement Counsel shall be the first party to present an opening
statement and a closing statement, and may make a rebuttal statement
after the respondent's closing statement. If there are multiple
respondents, respondents may agree among themselves as to their order
of presentation of their cases, but if they do not agree the
administrative law judge shall fix the order.
(3) Examination of witnesses. Only one counsel for
each party may conduct an examination of a witness, except that in the
case of extensive direct examination, the administrative law judge may
permit more than one counsel for the party presenting the witness to
conduct the examination. A party may have one counsel conduct the
direct examination and another counsel conduct re-direct examination of
a witness, or may have one counsel conduct the cross examination of a
witness and another counsel conduct the re-cross examination of a
witness.
(4) Stipulations. Unless the administrative law judge directs
otherwise, all stipulations of fact and law previously agreed upon by
the parties, and all documents, the admissibility of which have been
previously stipulated, will be admitted into evidence upon commencement
of the hearing.
(b) Transcript. The hearing must be recorded and
transcribed. The reporter will make the transcript available to any
party upon payment by that party to the reporter of the cost of the
transcript. The administrative law judge may order the record
corrected, either upon motion to correct, upon stipulation of the
parties, or following notice to the parties upon the administrative law
judge's own motion.
{{6-28-96 p.2144.01}}
[Codified to 12 C.F.R. § 308.35]
[Section 308.35 amended at 61 Fed. Reg. 20349, May 6,
1996, effective June 5, 1996]
§ 308.36 Evidence.
(a) Admissibility. (1) Except as is otherwise set
forth in this section, relevant, material, and reliable evidence that
is not unduly repetitive is admissible to the fullest extent authorized
by the Administrative Procedure Act and other applicable law.
(2) Evidence that would be admissible under the Federal Rules of
Evidence is admissible in a proceeding conducted pursuant to this
subpart.
(3) Evidence that would be inadmissible under the Federal Rules
of Evidence may not be deemed or ruled to be inadmissible in a
proceeding conducted pursuant to this subpart if such evidence is
relevant, material, reliable and not unduly repetitive.
(b) Official notice. (1) Official notice may be taken
of any material fact which may be judicially noticed by a United States
district court and any material information in the official public
records of any federal or state government agency.
(2) All matters officially noticed by the administrative law
judge or Board of Directors shall appear on the record.
(3) If official notice is requested or taken of any material
fact, the parties, upon timely request, shall be afforded an
opportunity to object.
(c) Documents. (1) A duplicate copy of a document is
admissible to the same extent as the original, unless a genuine issue
is raised as to whether the copy is in some material respect not a true
and legible copy of the original.
(2) Subject to the requirements of paragraph (a) of this section,
any document, including a report of examination, supervisory activity,
inspection or visitation, prepared by an appropriate Federal financial
institution regulatory agency or state regulatory agency, is admissible
either with or without a sponsoring witness.
(3) Witnesses may use existing or newly created charts, exhibits,
calendars, calculations, outlines or other graphic material to
summarize, illustrate, or simplify the presentation of testimony. Such
materials may, subject to the administrative law judge's discretion, be
used with or without being admitted into evidence.
(d) Objections. (1) Objections to the admissibility of
evidence must be timely made and rulings on all objections must appear
on the record.
(2) When an objection to a question or line of questioning
propounded to a witness is sustained, the examining counsel may make a
specific proffer on the record of what he or she expected to prove by
the expected testimony of the witness, either by representation of
counsel or by direct interrogation of the witness.
(3) The administrative law judge shall retain rejected exhibits,
adequately marked for identification, for the record, and transmit such
exhibits to the Board of Directors.
(4) Failure to object to admission of evidence or to any ruling
constitutes a waiver of the objection.
(e) Stipulations. The parties may stipulate as to any
relevant matters of fact or the authentication of any relevant
documents. Such stipulations must be received in evidence at a hearing,
and are binding on the parties with respect to the matters therein
stipulated.
(f) Depositions of unavailable witnesses. (1) If a
witness is unavailable to testify at a hearing and that witness has
testified in a deposition to which all parties in a proceeding had
notice and an opportunity to participate, a party may offer as evidence
all or any part of the transcript of the deposition, including
deposition exhibits, if any.
(2) Such deposition transcript is admissible to the same extent
that testimony would have been admissible had that person testified at
the hearing, provided that if a witness refused to answer proper
questions during the depositions, the administrative law judge may, on
that basis, limit the admissibility of the deposition in any manner
that justice requires.
(3) Only those portions of a deposition received in evidence at
the hearing constitute a part of the record.
{{6-28-96 p.2144.02}}
[Codified to 12 C.F.R. § 308.36]
§ 308.37 Post-hearing filings.
(a) Proposed findings and conclusions and supporting briefs.
(1) Using the same method of service for each party, the
administrative law judge shall serve notice upon each party, that the
certified transcript, together with all hearing exhibits and exhibits
introduced but not admitted into evidence at the hearing, has been
filed. Any party may file with the administrative law judge proposed
findings of fact, proposed conclusions of law, and a proposed order
within 30 days following service of this notice by the administrative
law judge or within such longer period as may be ordered by the
administrative law judge.
(2) Proposed findings and conclusions must be supported by
citation to any relevant authorities and by page references to any
relevant portions of the record. A post-hearing brief may be filed in
support of proposed findings and conclusions, either as part of the
same document or in a separate document. Any party who fails to file
timely with the administrative law judge any proposed finding or
conclusion is deemed to have waived the right to raise in any
subsequent filing or submission any issue not addressed in such party's
proposed finding or conclusion.
(b) Reply briefs. Reply briefs may be filed within 15
days after the date on which the parties' proposed findings,
conclusions, and order are due. Reply briefs must be strictly limited
to responding to new matters, issues, or arguments raised in another
party's papers. A party who has not filed proposed findings of fact and
conclusions of law or a post-hearing brief may not file a reply brief.
(c) Simultaneous filing required. The administrative
law judge shall not order the filing by any party of any brief or reply
brief in advance of the other party's filing of its brief.
[Codified to 12 C.F.R. § 308.37]
[Section 308.37 amended at 61 Fed. Reg. 20349, May 6,
1996, effective June 5, 1996]
§ 308.38 Recommended decision and filing of record.
(a) Filing of recommended decision and record. Within 45
days after expiration of the time allowed for filing reply briefs under
§ 308.37(b), the administrative law judge shall file with and certify
to the Executive Secretary, for decision, the record of the proceeding.
The record must include the administrative law judge's recommended
decision, recommended findings of fact, recommended conclusions of law,
and proposed order; all prehearing and hearing transcripts, exhibits,
and rulings; and the motions, briefs, memoranda, and other supporting
papers filed in connection with the hearing. The administrative law
judge shall serve upon each party the recommended decision, findings,
conclusions, and proposed order.
(b) Filing of index. At the same time the administrative
law judge files with and certifies to the Executive Secretary for final
determination the record of the proceeding, the administrative law
judge shall furnish to the Executive Secretary a certified index of the
entire record of the proceeding. The certified index shall include, at
a minimum, an entry for each paper, document or motion filed with the
administrative law judge in the proceeding, the date of the filing, and
the identity of the filer. The certified index shall also include an
exhibit index containing, at a minimum, an entry consisting of exhibit
number and title or description for: Each exhibit introduced and
admitted into evidence at the hearing; each exhibit introduced but not
admitted into evidence at the hearing; each exhibit introduced and
admitted into evidence after the completion of the hearing; and each
exhibit introduced but not admitted into evidence after the completion
of the hearing.
[Codified to 12 C.F.R. § 308.38]
[Section 308.38 amended at 61 Fed. Reg. 20350, May 6,
1996, effective June 5, 1996]
{{6-28-96 p.2144.03}}
§ 308.39 Exceptions to recommended decision.
(a) Filing exceptions. Within 30 days after service of
the recommended decision, findings, conclusions, and proposed order
under § 308.38, a party may file with the Executive Secretary written
exceptions to the administrative law judge's recommended decision,
findings, conclusions or proposed order, to the admission or exclusion
of evidence, or to the failure of the administrative law judge to make
a ruling proposed by a party. A supporting brief may be filed at the
time the exceptions are filed, either as part of the same document or
in a separate document.
{{12-31-02 p.2145}}
(b) Effect of failure to file or raise
exceptions. (1) Failure of a party to file exceptions to those
matters specified in paragraph (a) of this section within the time
prescribed is deemed a waiver of objection thereto.
(2) No exception need be considered by the Board of Directors if
the party taking exception had an opportunity to raise the same
objection, issue, or argument before the administrative law judge and
failed to do so.
(c) Contents. (1) All exceptions and briefs in support
of such exceptions must be confined to the particular matters in, or
omissions from, the administrative law judge's recommendations to which
that party takes exception.
(2) All exceptions and briefs in support of exceptions must set
forth page or paragraph references to the specific parts of the
administrative law judge's recommendations to which exception is taken,
the page or paragraph references to those portions of the record relied
upon to support each exception, and the legal authority relied upon to
support each exception.
[Codified to 12 C.F.R. § 308.39]
§ 308.40 Review by Board of Directors.
(a) Notice of submission to Board of Directors. When
the Executive Secretary determines that the record in the proceeding is
complete, the Executive Secretary shall serve notice upon the parties
that the proceeding has been submitted to the Board of Directors for
final decision.
(b) Oral argument before the Board of Directors. Upon
the initiative of the Board of Directors or on the written request of
any party filed with the Executive Secretary within the time for filing
exceptions, the Board of Directors may order and hear oral argument on
the recommended findings, conclusions, decision, and order of the
administrative law judge. A written request by a party must show good
cause for oral argument and state reasons why arguments cannot be
presented adequately in writing. A denial of a request for oral
argument may be set forth in the Board of Directors' final decision.
Oral argument before the Board of Directors must be on the record.
(c) Final decision. (1) Decisional employees may
advise and assist the Board of Directors in the consideration and
disposition of the case. The final decision of the Board of Directors
will be based upon review of the entire record of the proceeding,
except that the Board of Directors may limit the issues to be reviewed
to those findings and conclusions to which opposing arguments or
exceptions have been filed by the parties.
(2) The Board of Directors shall render a final decision within
90 days after notification of the parties that the case has been
submitted for final decision, or 90 days after oral argument, whichever
is later, unless the Board of Directors orders that the action or any
aspect thereof be remanded to the administrative law judge for further
proceedings. Copies of the final decision and order of the Board of
Directors shall be served upon each party to the proceeding, upon other
persons required by statute, and, if directed by the Board of Directors
or required by statute, upon any appropriate state or federal
supervisory authority.
[Codified to 12 C.F.R. § 308.40]
§ 308.41 Stays pending judicial review.
The commencement of proceedings for judicial review of a final
decision and order of the FDIC may not, unless specifically ordered by
the Board of Directors or a reviewing court, operate as a stay of any
order issued by the FDIC. The Board of Directors may, in its
discretion, and on such terms as it finds just, stay the effectiveness
of all or any part of its order pending a final decision on a petition
for review of that order.
[Codified to 12 C.F.R. § 308.41]
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