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8000 - Miscellaneous Statutes and Regulations
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PART 180CONSOLIDATED HUD HEARING PROCEDURES FOR CIVIL RIGHTS
Subpart AGeneral Information
Sec. 180.100
Definitions.
180.105
Scope of rules.
Subpart BAdministrative Law Judge
180.200
Designation.
180.205
Authority.
180.210
Withdrawal or disqualification of ALJ.
180.215
Ex Parte communications.
180.220
Separation of functions.
Subpart CParties
180.300
Rights of parties.
180.305
Representation.
180.310
Parties.
180.315
Standards of conduct.
Subpart DProceedings Prior to Hearing
180.400
Service and filing.
180.405
Time computations.
180.410
Charges under the Fair Housing Act.
180.415
Notice of proposed adverse action regarding Federal financial
assistance in Non-Fair Housing Act matters.
180.420
Answer.
180.425
Amendments to pleadings.
180.430
Motions.
180.435
Prehearing statements.
180.440
Prehearing conferences.
180.445
Settlement negotiations before a settlement judge.
180.450
Resolution of charge or notice of proposed adverse action.
Subpart EDiscovery
180.500
Discovery.
180.505
Supplementation of responses.
180.510
Interrogatories.
180.515
Depositions.
180.520
Use of deposition at hearings.
180.525
Requests for production of documents or things for inspection or other
purposes, including physical and mental examinations.
180.530
Requests for admissions.
180.535
Protective orders.
180.540
Motion to compel discovery.
180.545
Subpoenas.
Subpart FProcedures at Hearing
180.600
Date and place of hearing.
180.605
Conduct of hearings.
180.610
Waiver of right to appear.
180.615
Failure of party to appear.
180.620
Evidence.
180.625
Record of hearing.
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180.630
Stipulations.
180.635
Written testimony.
180.640
In camera and protective orders.
180.645
Exhibits.
180.650
Public document items.
180.655
Witnesses.
180.660
Closing of record.
180.665
Arguments and briefs.
180.670
Initial decision of ALJ.
180.671
Assessing civil penalties for Fair Housing Act cases.
180.675
Petitioners for review.
180.680
Final decisions.
Subpart GPost-Final Decision in Fair Housing Cases
180.700
Action upon issuance of a final decision in Fair Housing Act cases.
180.705
Attorney's fees and costs.
180.710
Judicial review of final decision.
180.715
Enforcement of final decision.
Subpart HPost-Final Decision in Non-Fair Housing Act Matters
180.800
Post-termination proceedings.
180.805
Judicial review of final decision.
Authority: 29 U.S.C. 794; 42 U.S.C. 2000d--1, 3535(d), 3601--3619,
5301--5320, and 6103.
Source: The provisions of this Part 180 appear at 61 Fed. Reg.
52218, October 4, 1996, effective November 4, 1996, except as otherwise
noted.
Subpart AGeneral Information
§ 180.100 Definitions.
As used in this part:
(a) The terms ALJ, Department, Fair Housing Act, General
Counsel, and HUD are defined in 24 CFR part 5, subpart
A.
(b) The terms Aggrieved Person, Assistant Secretary, Attorney
General, Discriminatory Housing Practice, Person, and State
are defined in 24 CFR part
103, subpart A.
(c) Other terms used in this part are defined as follows:
Agency has the same meaning as HUD.
Applicant and Application have the meanings
provided in 24 CFR 1.2 or 24 CFR 8.3, as applicable.
Charge means the statement of facts issued under
24 CFR 103.405 upon which
HUD has found reasonable cause to believe that a discriminatory housing
practice has occurred or is about to occur.
Chief Docket Clerk is the docket clerk for HUD's Office
of Administrative Law Judges, 1707 H Street, NW., Eleventh Floor,
Washington, DC 20006. The telephone number is (202) 254--0000 and the
facsimile number is (202) 254--0011.
Complaint means a complaint filed under the statutes
covered by this part.
Complainant means the person (including the Assistant
Secretary) who filed a complaint under the statutes covered by this
part.
Fair Housing Act matters refers to proceedings under this
part pursuant to the Fair Housing Act and the implementing regulations
at 24 CFR parts 100 and 103.
Federal financial assistance has the meaning provided in
24 CFR 1.2, 6.3, 8.3 or 146.7, as applicable.
Hearing means a trial-type proceeding that involves the
submission of evidence, either by oral presentation or written
submission, and briefs and oral arguments on the evidence and
applicable law.
Intervenor is a person entitled by law or permitted by
the ALJ to participate as a party.
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Non-Fair Housing Act Matters refers to proceedings under
this part pursuant to:
(1) Title VI of the Civil Rights Act of 1964, as amended, (42
U.S.C. 2000d--1) and the implementing regulations at 24 CFR part 1;
(2) Section 504 of the Rehabilitation Act of 1973, as amended (29
U.S.C. 794) and the implementing regulations at 24 CFR part 8;
(3) The Age Discrimination Act of 1975, as amended, (42 U.S.C.
6103) and the implementing regulations at 24 CFR part 146;
(4) Section 109 of Title I of the Housing and Community
Development Act of 1974, as amended, (42 U.S.C. 5301--5321) and the
implementing regulations at 24 CFR part 6;
(5) Section 109 of Title I of the Housing and Community
Development Act of 1974 (42 U.S.C. 5301--5321) and the implementing
regulations at 24 CFR part 6.
Notice of Proposed Adverse Action is the statement of
facts issued pursuant to a non-Fair Housing Act matter upon which HUD
has found reason to terminate or refuse to grant or continue Federal
financial assistance.
Party is a person who has full participation rights in a
proceeding under this part.
Prevailing party has the same meaning as the term has in
section 722 of the Revised Statutes of the United States (42 U.S.C.
1988).
Recipient has the meaning provided in 24 CFR 1.2, 24 CFR
8.3, or 24 CFR 146.7, as applicable.
Respondent means the person accused of violating one of
the statutes covered by this part, including a recipient.
Secretary means the Secretary of HUD, or to the extent of
any delegation of authority by the Secretary to act under any of the
statutory authorities listed in § 180.105(a), any other HUD official
to whom the Secretary may hereafter delegate such authority.
[Codified to 24 C.F.R. § 180.100]
[Section 180.100 amended at 72 Fed. Reg. 53879, September 20, 2007,
effective October 22, 2007]
§ 180.105 Scope of rules.
(a) This part contains the rules of practice and procedure
applicable to administrative proceeding before an ALJ under the
following authorities:
(1) The Fair Housing Act (42 U.S.C. 3601--3619) and the
implementing regulations at 24 CFR parts 100 and 103, where no election
to proceed in federal district court has been made;
(2) Title VI of the Civil Rights Act of 1964 (42 U.S.C.
2000d--1), and the implementing regulations at 24 CFR part 1;
(3) Section 504 of the Rehabilitation Act of 1973, as amended (29
U.S.C. 794), and the implementing regulations at 24 CFR part 8; and
(4) The Age Discrimination Act of 1975 (42 U.S.C. 6103), and the
implementing regulations at 24 CFR part 146.
(b) In the absence of a specific provision, the Federal Rules of
Civil Procedure shall serve as a general guide.
(c) Hearings under this part shall be conducted as expeditiously
and inexpensively as possible, consistent with the needs and rights of
the parties to obtain a fair hearing and a complete record.
(d) Except to the extent that a waiver would otherwise be contrary
to law, the ALJ may, after adequate notice to all interested persons,
modify or waive any of the rules in this part upon a determination that
no person will be prejudiced and that the ends of justice will be
served.
(e) All pleadings, correspondence, exhibits, transcripts of
testimony, exceptions, briefs, decisions, and other documents filed in
any proceeding may be inspected in the Chief Docket Clerk's office
during regular business hours.
[Codified to 24 C.F.R. § 180.105]
Subpart BAdministrative Law Judge
§ 180.200 Designation.
Proceedings under this part shall be presided over by an
ALJ appointed under 5 U.S.C. 3105.
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[Codified to 24 C.F.R. § 180.200]
[Section 180.200 amended at 73 Fed. Reg. 13723, March 13, 2008,
effective April 14, 2008]
§ 180.205 Authority.
The ALJ shall have all powers necessary to conduct fair, expeditious
and impartial hearings, including the power to:
(a) Administer oaths and affirmations and examine witnesses;
(b) Rule on offers of proof and receive evidence;
(c) Take depositions or have depositions taken when the ends of
justice would be served;
(d) Regulate the course of the hearing and the conduct of persons
at the hearing;
(e) Hold conferences for the settlement or simplification of the
issues by consent of the parties;
(f) Rule on motions, procedural requests, and similar matters;
(g) Make and issue initial decisions;
(h) Impose appropriate sanctions against any person failing to obey
an order, refusing to adhere to reasonable standards of orderly and
ethical conduct, or refusing to act in good faith;
(i) Issue subpoenas if authorized by law; and
(j) Exercise any other powers necessary and appropriate for the
purpose and conduct of the proceeding as authorized by the rules in
this part or in conformance with statute, including
5 U.S.C. 551--59.
[Codified to 24 C.F.R.
§ 180.205]
§ 180.210 Withdrawal or disqualification of ALJ.
(a) Disqualification. If an ALJ finds that there is a
basis for his/her disqualification in a proceeding, the ALJ shall
withdraw from the proceeding. Withdrawal is accomplished by entering a
notice in the record and providing a copy of the notice to the Director
of the Office of Hearings and Appeals.
(b) Motion for recusal. If a party believes that the
presiding ALJ should be disqualified for any reason, the party may file
a motion to recuse with the ALJ. The motion shall be supported by an
affidavit setting forth the alleged grounds for disqualification. The
ALJ shall rule on the motion, stating the grounds therefor.
(c) Redesignation of ALJ. If an ALJ is disqualified,
another ALJ shall be designated to preside over further proceedings.
[Codified to 24 C.F.R. § 180.210]
[Section 180.210 amended at 73 Fed. Reg. 13723, March 13, 2008,
effective April 14, 2008]
§ 180.215 Ex Parte Communications.
(a) An ex parte communication is any direct or indirect
communication concerning the merits of a pending proceeding, made by a
party in the absence of any other party, to the presiding ALJ, and
which was neither on the record nor on reasonable prior notice to all
parties. Ex parte communications do not include communications made for
the sole purpose of scheduling hearings, requesting extensions of time,
or requesting information on the status of cases.
(b) Ex parte communications are prohibited.
(c) If the ALJ receives an ex parte communication that the ALJ
knows or has reason to believe is prohibited, the ALJ shall promptly
place the communication, or a written statement of the substance of the
communication, in the record and shall furnish copies to all parties.
Unauthorized communications shall not be taken into consideration in
deciding any matter in issue. Any party making a prohibited ex parte
communication may be subject to sanctions including, but not limited
to, exclusion from the proceeding and an adverse ruling on the issue
that is the subject of the prohibited communication.
[Codified to 24 C.F.R. § 180.215]
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§ 180.220 Separation of functions.
No officer, employee, or agent of the Federal Government engaged in
the performance of investigative, conciliatory, or prosecutorial
functions in connection with the proceeding shall, in that proceeding
or any factually related proceeding under this part, participate or
advise in the decision of the ALJ, except as a witness or counsel
during the proceedings or in its appellate review.
[Codified to 24 C.F.R. § 180.220]
Subpart CParties
§ 180.300 Rights of parties.
Each party may appear in person, be represented by counsel, examine
or cross-examine witnesses, introduce documentary or other relevant
evidence into the record and, in Fair Housing Act matters, request the
issuance of subpoenas.
[Codified to 24 C.F.R.
§ 180.300]
§ 180.305 Representation.
(a) HUD is represented by the General Counsel.
(b) Any party may appear on his/her/its own behalf or by an
attorney. Each party or attorney shall file a notice of appearance. The
notice must identify the matter before the ALJ, the party on whose
behalf the appearance is made, and the mailing address and telephone
number of the person appearing. Similar notice shall also be given for
any withdrawal of appearance.
(c) An attorney must be admitted to practice before a Federal Court
or the highest court in any State. The attorney's representation that
he/she is in good standing before any of these courts is sufficient
evidence of the attorney's qualifications under this section, unless
otherwise ordered by the ALJ.
[Codified to 24 C.F.R.
§ 180.305]
§ 180.310 Parties.
(a) Parties to proceedings under this part are HUD, the
respondent(s), and any intervenor(s). Respondents include persons named
as such in a charge issued under
24 CFR part 103 and
Recipients/applicants named as respondents in hearing notices issued
under 24 CFR parts 1, 6, 8, or 146 and notices of proposed adverse
action under this part.
(b) An aggrieved person is not a party but may file a motion to
intervene. Requests for intervention shall be filed within 50 days
after the filing of the charge; however, the ALJ may allow intervention
beyond that time. An intervenor's right to participate as a party may
be restricted by order of the ALJ pursuant to statute, the rules in
this part or other applicable law. Intervention shall be permitted if
the person requesting intervention is
(1) The aggrieved person on whose behalf the charge is issued; or
(2) An aggrieved person who claims an interest in the property or
transaction that is the subject of the charge and the disposition of
the charge may, as a practical matter, impair or impede this person's
ability to protect that interest, unless the aggrieved person is
adequately represented by the existing parties.
(c) A complainant in a non-Fair Housing Act matter is not a party
but may file a motion to become an amicus curiae.
(d) Any person may file a petition to participate in a proceeding
under this part as an amicus curiae. An amicus curiae is not a party to
the proceeding and may not introduce evidence at the hearing.
(1) A petition to participate as amicus curiae shall be filed
before the commencement of the hearing, unless the petitioner shows
good cause for filing the petition later. The petition may be granted
if the ALJ finds that the petitioner has a legitimate interest in the
proceedings, and that such participation will not unduly delay the
outcome and may contribute materially to the proper disposition
thereof.
(2) The amicus curiae may submit briefs within time limits set by
the ALJ or by the Secretary in the event of an appeal to the Secretary.
(3) When all parties have completed their initial examination of
a witness, the amicus curiae may request the ALJ to propound specific
questions to the witness. Any such
{{4-30-08 p.9796}}request may be
granted if the ALJ believes the proposed additional testimony may
assist materially in elucidating factual matters at issue between the
parties and will not expand the issues.
[Codified to 24 C.F.R. § 180.310]
[Section 180.310 amended at 69 Fed. Reg. 3801, January 25, 1999,
effective February 24, 1999]
§ 180.315 Standards of conduct.
(a) All persons appearing in proceedings under this part shall act
with integrity and in an ethical manner.
(b) The ALJ may exclude parties or their representatives for
refusal to comply with directions, continued use of dilatory tactics,
refusal to adhere to reasonable standards of orderly and ethical
conduct, failure to act in good faith, or violations of the
prohibitions against ex parte communications. If an ALJ suspends or
bars an attorney from participating in a proceeding, the ALJ shall
include in the record the reasons for such action. An attorney who is
suspended or barred from participation may appeal to another ALJ
designated by the Director of the Office of Hearings and Appeals. The
proceeding will not be delayed or suspended pending disposition on the
appeal, except that the ALJ shall suspend the proceeding for a
reasonable time to enable the party to obtain another attorney.
[Codified to 24 C.F.R. § 180.315]
[Section 180.315 amended at 73 Fed. Reg. March 13, 2008, effective
April 14, 2008]
Subpart DProceedings Prior to
Hearing
§ 180.400 Service and filing.
(a) Service--(1) Service by the Office of ALJs.
The Office of ALJs shall serve all notices, orders, decisions and
other such documents by mail to each party and amicus curiae at the
last known address.
(2) Service by others. A copy of each filed document
shall be served on each party and each amicus curiae. Service shall be
made upon counsel if a party is represented by counsel. Service on
counsel shall constitute service on the party. Service may be made to
the last known address by first-class mail or other more expeditious
means, such as:
(i) Hand delivery to the person to be served or a person of
suitable age and discretion at the place of business, residence, or
usual place of abode of the person to be served;
(ii) Overnight delivery; or
(iii) Facsimile transmission or electronic means. The ALJ may
place appropriate limits on service by facsimile transmission or
electronic means.
(3) Certificate of service. Every document served shall
be accompanied by a certificate of service containing a statement as to
the date of service, the method of service, the parties served and the
address at which they were served, which is signed and dated by the
person making service.
(b) Filing--(1) Method. All documents shall
be filed with the Chief Docket Clerk. Filing may be by first class
mail, delivery, facsimile transmission, or electronic means; however,
the ALJ may place appropriate limits on filing by facsimile
transmission or electronic means.
(2) Form. Every pleading, motion, brief, or other
document shall contain a caption setting forth the title of the
proceeding, the docket number assigned by the Office of ALJs, and the
designation of the type of document (e.g., charge, motion).
(3) Signature. Every document filed by a party shall
be signed by the party or the party's attorney and must include the
signer's address and telephone number. The signature constitutes a
certification that: the signer has read the document; to the best of
the signer's knowledge, information and belief, the statements made
therein are true; and the document is not interposed for delay.
[Codified to 24 C.F.R. § 180.400]
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§ 180.405 Time computations.
(a) In computing time under this part, the time period begins the
day following the act, event, or default and includes the last day of
the period, unless the last day is a Saturday, Sunday, or legal holiday
observed by the Federal Government, in which case the time period
includes the next business day.
(b) Modification of time periods. Except for time
periods required by statute, the ALJ may enlarge or reduce any time
period required under this part where necessary to avoid prejudicing
the public interest or the rights of the parties. Requests for
extension of time should set forth the reasons for the request.
(c) Entry of orders. In computing any time period
involving the date of the ALJ's issuance of an order or decision, the
date of issuance is the date of service by the Chief Docket Clerk.
(d) Computation of time for delivery by mail. When
documents are filed by mail, three days shall be added to the
prescribed time period for filing any responsive pleading. Documents
are not filed until received by the Chief Docket Clerk.
(e) Untimely filing. The ALJ may refuse to consider any
motion or other document that is not filed in a timely fashion.
[Codified to 24 C.F.R.
§ 180.405]
§ 180.410 Charges under the Fair Housing Act.
(a) Filing and service. Within three days after the
issuance of a charge, the General Counsel shall file the charge with
the Chief Docket Clerk and serve copies (with the additional
information required under paragraph (b) of this section) on all
respondents and aggrieved persons.
(b) Contents. The charge shall consist of a short and
plain written statement of the facts upon which reasonable cause has
been found to believe that a discriminatory housing practice has
occurred or is about to occur. A notification shall be served with the
charge containing the following information:
(1) Any complainant, respondent, or aggrieved person may elect to
have the claims asserted in the charge decided in a civil action under
42 U.S.C. 3612(o), in lieu of
an administrative proceeding under this part.
(2) Such election must be made not later than 20 days after
receipt of service of the charge by serving written notice of such on
the Chief Docket Clerk, each respondent, each aggrieved person on whose
behalf the charge was issued, the Assistant Secretary, and the General
Counsel.
(3) If no person timely elects to have the claims asserted in the
charge decided in a civil action under 42 U.S.C. 3612(o), an
administrative proceeding will be conducted under this part.
(4) If an administrative hearing is conducted:
(i) The hearing will be held at a date and place specified.
(ii) The respondent will have an opportunity to file an answer to
the charge within 30 days after service of the charge.
(iii) The aggrieved person may participate as a party to the
administrative proceeding by filing a request for intervention within
50 days after service of the charge.
(iv) All discovery must be concluded 15 days before the date set
for hearing.
(v) The rules in this part will govern the proceeding.
(5) If, at any time following service of the charge on the
respondent, the respondent intends to enter into a contract, sale,
encumbrance, or lease with any person regarding the property that is
the subject of the charge, the respondent must provide a copy of the
charge to such person before the respondent and the person enter into
the contract, sale, encumbrance or lease.
(c) Election of judicial determination. If the
complainant, the respondent, or the aggrieved person on whose behalf a
complaint was filed makes a timely election to have the
{{4-30-08 p.9798}}claims asserted in
the charge decided in a civil action under 42 U.S.C. 3612(o), the
administrative proceeding shall be dismissed.
(d) Effect of a civil action on administrative proceeding.
An ALJ may not continue an administrative proceeding under the
Fair Housing Act after the beginning of the trial of a civil action
commenced by the aggrieved person under an act of Congress or a State
law seeking relief with respect to that discriminatory housing
practice. If such a trial is commenced, the ALJ shall dismiss the
administrative proceeding. The commencement and maintenance of a civil
action for appropriate temporary or preliminary relief under
42 U.S.C. 3610(e) or
42 U.S.C. 3613 does not affect
administrative proceedings under this part.
[Codified to 24 C.F.R. § 180.410]
[Section 180.410 amended at 73 Fed. Reg. 13723, March 13, 2008,
effective April 14, 2008]
§ 180.415 Notice of proposed adverse action regarding Federal
financial assistance in non-Fair Housing Act matters.
(a) Filing and service. Within 10 days after a
Recipient/applicant has requested a hearing as provided for in 24 CFR
part 1, 6, 8, or 146, the General Counsel shall file a notice of
proposed adverse action with the Chief Docket Clerk and serve copies
(with the additional information required under paragraph (b) of this
section) on all respondents and complainants.
(b) Contents. The notice of proposed adverse action
shall consist of a short and plain written statement of the facts and
legal authority upon which the proposed action is based. A notification
shall be served with the notice containing the following information:
(1) That an administrative hearing will be held at a date and
place specified.
(2) That the respondent will have an opportunity to file an
answer to the notice of adverse action within 30 days after its
service.
(3) That the complainant may participate as an amicus curiae by
filing a timely request to do so.
(4) That discovery must be concluded by a date specified.
(5) That the rules specified in this part shall govern the
proceeding.
(c) Consolidation. The ALJ may provide for non-Fair
Housing Act proceedings at HUD to be joined or consolidated for hearing
with proceedings in other Federal departments or agencies, by agreement
with such other departments or agencies. All parties to any proceeding
consolidated subsequent to service of the notice of proposed adverse
action shall be promptly served with notice of such consolidation.
[Codified to 24 C.F.R. § 180.415]
[Section 180.415 amended at 69 Fed. Reg. 3801, January 25, 1999,
effective February 24, 1999]
§ 180.420 Answer.
(a) Within 30 days after service of the charge or notice of
proposed adverse action, a respondent may file an answer. The answer
shall include:
(1) A statement that the respondent admits, denies, or does not
have and is unable to obtain sufficient information to admit or deny,
each allegation made. A statement of lack of information shall have the
effect of a denial. Any allegation that is not denied shall be deemed
to be admitted.
(2) A statement of each affirmative defense and a statement of
facts supporting each affirmative defense.
(b) Failure to file an answer within the 30-day period following
service of the charge or notice of proposed adverse action shall be
deemed an admission of all matters of fact recited therein and may
result in the entry of a default decision.
[Codified to 24 C.F.R.
§ 180.420]
§ 180.425 Amendments to pleadings.
(a) By right. HUD may amend the charge or notice of
proposed adverse action once as a matter of right prior to the filing
of the answer.
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(b) By leave. Upon such conditions as are necessary to
avoid prejudicing the public interest and the rights of the parties,
the ALJ may allow amendments to pleadings upon a motion of a party.
(c) Conformance to the evidence. When issues not raised
by the pleadings are reasonably within the scope of the original charge
or notice of proposed adverse action and have been tried by the express
or implied consent of the parties, the issues shall be treated in all
respects as if they had been raised in the pleadings, and amendments
may be made as necessary to make the pleading conform to evidence.
(d) Supplemental pleadings. The ALJ may, upon reasonable
notice, permit supplemental pleadings concerning transactions,
occurrences or events that have happened or been discovered since the
date of the pleadings and which are relevant to any of the issues
involved.
[Codified to 24 C.F.R.
§ 180.425]
§ 180.430 Motions.
(a) Motions. Any application for an order or other
request shall be made by a motion on which, unless made during an
appearance before the ALJ, shall be in writing and shall state the
specific relief requested and the basis therefor. Motions made during
an appearance before the ALJ shall be stated orally and made a part of
the transcript. All parties shall be given a reasonable opportunity to
respond to written or oral motions or requests.
(b) Responses to written motions. Within seven calendar
days after a written motion is served, any party to the proceeding may
file a response in support of, or in opposition to, the motion. Unless
otherwise ordered by the ALJ, no further responsive documents may be
filed. Failure to file a response within the response period
constitutes a waiver of any objection to the granting of the motion.
(c) Oral argument. The ALJ may order oral argument on
any motion.
[Codified to 24 C.F.R.
§ 180.430]
§ 180.435 Prehearing statements.
(a) Before the commencement of the hearing, the ALJ may direct the
parties to file prehearing statements.
(b) The prehearing statement must state the name of the party
presenting the statement and, unless otherwise directed by the ALJ,
briefly set forth the following:
(1) The issues involved in the proceeding;
(2) The facts stipulated by the parties and a statement that the
parties have made a good faith effort to stipulate to the greatest
extent possible;
(3) The facts in dispute;
(4) The witnesses (together with a summary of the testimony
expected) and exhibits to be presented at the hearing;
(5) A brief statement of applicable law;
(6) Conclusions to be drawn;
(7) Estimated time required for presentation of the party's case;
and
(8) Such other information as may assist in the disposition of
the proceeding.
[Codified to 24 C.F.R.
§ 180.435]
§ 180.440 Prehearing conferences.
(a) Before the commencement of or during the course of the hearing,
the ALJ may direct the parties to participate in a conference to
expedite the hearing. Failure to attend a conference may constitute a
waiver of all objections to the agreements reached at the conference
and to any order with respect thereto.
(b) During the conference, the ALJ may dispose of any procedural
matters on which he/she is authorized to rule. At the conference, the
following matters may be considered;
(1) Pre-trial motions;
{{4-30-08 p.9800}}
(2) Identification, simplification and clarification of the
issues;
(3) Necessary amendments to the pleadings;
(4) Stipulations of fact and of the authenticity, accuracy, and
admissibility of documents;
(5) Limitations on the number of witnesses;
(6) Negotiation, compromise, or settlement of issues;
(7) The exchange of proposed exhibits and witness lists;
(8) Matters of which official notice will be requested;
(9) Scheduling actions discussed at the conference; and
(10) Such other matters as may assist in the disposition of the
proceeding.
(c) Conferences may be conducted by telephone or in person, but
generally shall be conducted by telephone, unless the ALJ determines
that this method is inappropriate. The ALJ shall give reasonable notice
of the time, place and manner of the conference.
(d) Record of conference. Unless otherwise directed by
the ALJ, the conference will not be stenographically recorded. The ALJ
will reduce the actions taken at the conference to a written order or,
if the conference takes place less than seven days before the beginning
of the hearing, may make a statement at the hearing and on the record
summarizing the actions taken at the conference.
[Codified to 24 C.F.R.
§ 180.440]
§ 180.445 Settlement negotiations before a settlement judge.
(a) Appointment of settlement judge. The ALJ, upon the
motion of a party or upon his or her own motion, may request the
Director of the Office of Hearings and Appeals to appoint another ALJ
to conduct settlement negotiations. The order shall direct the
settlement judge to report to the presiding ALJ within specified time
periods.
(b) Duties of settlement judge. (1) The settlement
judge shall convene and preside over conferences and settlement
negotiations between the parties and assess the practicalities of a
potential settlement.
(2) The settlement judge shall report to the Chief ALJ describing
the status of the settlement negotiations, evaluating settlement
prospects, and recommending the termination or continuation of the
settlement negotiations.
(c) Termination of settlement negotiations. Settlement
negotiations shall terminate upon the order of the chief ALJ issued
after consultation with the settlement judge. The conduct of settlement
negotiations shall not unduly delay the commencement of the hearing.
[Codified to 24 C.F.R. § 180.445]
[Section 180.445 amended at 73 Fed. Reg. 13723, March 13, 2008,
effective April 1, 2008]
§ 180.450 Resolution of charge or notice of proposed adverse
action.
At any time before a final decision is issued, the parties may
submit to the ALJ an agreement resolving the charge or notice of
proposed adverse action. A charge under the Fair Housing Act can only
be resolved with the agreement of the aggrieved person on whose behalf
the charge was issued. If the agreement is in the public interest, the
ALJ shall accept it by issuing an initial decision and consent order
based on the agreement.
[Codified to 24 C.F.R. § 180.450]
Subpart EDiscovery
§ 180.500 Discovery.
(a) In general. This subpart governs discovery in aid of
administrative proceedings under this part. Discovery in Fair Housing
Act matters shall be completed 15 days before the date scheduled for
hearing or at such time as the ALJ shall direct. Discovery in non-Fair
Housing Act matters shall be completed as the ALJ directs.
{{6-30-97 p.9801}}
(b) Scope. The parties are encouraged to engage in
voluntary discovery procedures. Discovery shall be conducted as
expeditiously and inexpensively as possible, consistent with the needs
of all parties to obtain relevant evidence. Unless otherwise ordered by
the ALJ, the parties may obtain discovery regarding any matter, not
privileged, that is relevant to the subject matter involved in the
proceeding, including the existence, description, nature, custody,
condition, and location of documents or persons having knowledge of any
discoverable matter. It is not grounds for objection that information
sought will be inadmissible if the information appears reasonably
calculated to lead to the discovery of admissible evidence.
(c) Methods. Parties may obtain discovery by one or more
of the following methods:
(1) Deposition upon oral examination or written questions.
(2) Written interrogatories.
(3) Requests for the production of documents or other evidence
for inspection and other purposes.
(4) Requests for admissions.
(5) Upon motion of a party, the presiding ALJ may issue an order
requiring a physical or mental examination of a party or of a person in
the custody or under the legal control of a party.
(d) Frequency and sequence. Unless otherwise ordered by
the ALJ or restricted by this subpart, the frequency or sequence of
these methods is not limited.
(e) Non-intervening aggrieved person. For purposes of
obtaining discovery from a non-intervening aggrieved person, the term
party as used in this subpart includes the aggrieved person.
[Codified to 24 C.F.R.
§ 180.500]
§ 180.505 Supplementation of responses.
A party is under a duty, in a timely fashion, to:
(a) Supplement a response with respect to any question directly
addressed to:
(1) The identity and location of persons having knowledge of
discoverable matters; and
(2) The identity of each person expected to be called as an
expert witness, the subject matter on which the expert witness is
expected to testify, and the substance of the testimony.
(b) Amend a response if the party later obtains information upon
the basis of which:
(1) The party knows the response was incorrect when made, or
(2) The party knows the response, though correct when made, is no
longer true, and the circumstances are such that a failure to amend the
response is, in substance, a knowing concealment.
(c) Supplement other responses, as imposed by order of the ALJ or
by agreement of the parties.
[Codified to 24 C.F.R.
§ 180.505]
§ 180.510 Interrogatories.
(a) Any party may serve on any other party written interrogatories
to be answered by the party served. If the party served is a public or
private corporation, a partnership, an association, or a governmental
agency, the interrogatories may be answered by any authorized officer
or agent who shall furnish such information as may be available to the
party. A party may serve not more than 30 written interrogatories on
another party without an order of the ALJ.
(b) Each interrogatory shall be answered separately and fully in
writing under oath or affirmation, unless it is objected to, in which
event, the reasons for the objection shall be stated in lieu of an
answer. The answers shall be signed by the person making them, and the
objections may be signed by the attorneys or other representative
making them. The answers and objections shall be served within 15 days
after service of the interrogatories.
{{6-30-97 p.9802}}
(c) It is a sufficient answer to an interrogatory to specify the
records from which the answer may be derived or ascertained if:
(1) The answer to the interrogatory may be derived or ascertained
from the records of the party on whom the interrogatory has been served
or from an examination, audit or inspection of such records, or from a
compilation, abstract or summary based thereon, and
(2) The burden of deriving or ascertaining the answer is
substantially the same for the party serving the interrogatory as the
party served. The party serving the interrogatory shall be afforded
reasonable opportunity to examine, audit or inspect such records and to
make copies, compilations, abstracts or summaries. The specification
shall include sufficient detail to permit the interrogating party to
locate and identify the individual records from which the answer may be
ascertained.
(d) Objections to the form of written interrogatories are waived
unless served in writing upon the party propounding the
interrogatories.
[Codified to 24 C.F.R.
§ 180.510]
§ 180.515 Depositions.
(a) Notice. Upon written notice to the witness and to
all other parties, a party may take the testimony of a witness by
deposition and may request the production of specified documents or
materials by the witness at the deposition. Notice of the taking of a
deposition shall be given not less than five days before the deposition
is scheduled. The notice shall state:
(1) The purpose and general scope of the deposition;
(2) The time and place of the deposition;
(3) The name and address of the person before whom the deposition
is to be taken;
(4) The name and address of the witness; and
(5) A specification of the documents and materials that the
witness is requested to produce.
(b) Deposition of an organization. If the deposition of
a public or private corporation, partnership, association, or
governmental agency is sought, the organization so named shall
designate one or more officers, directors or agents to testify on its
behalf, and may set forth, for each person designated, the matters on
which he/she will testify.
(c) Procedure at deposition. Depositions may be taken
before any disinterested person having power to administer oaths in the
location where the deposition is to be taken. Each deponent shall be
placed under oath or affirmation, and the other parties will have the
right to cross-examine. The deponent may have counsel present during
the deposition. The questions propounded and all answers and objections
thereto shall be reduced to writing, read by or to and subscribed by
the witness, and certified by the person before whom the deposition was
taken. Non-intervening aggrieved persons may be present at depositions
in which they are not the deponent.
(d) Motion to terminate or limit examination. During the
taking of a deposition, a party or the witness may request suspension
of the deposition on the grounds of bad faith in the conduct of the
examination, oppression of the witness or party, or improper
questioning or conduct. Upon request for suspension, the deposition
will be adjourned. The objecting party or witness must immediately move
the ALJ for a ruling on the objection. The ALJ may then limit the scope
or manner of taking the deposition.
(e) Waiver of deposing officer's disqualification.
Objection to taking a deposition because of the disqualification
of the officer before whom it is taken is waived unless made before the
taking of the deposition begins or as soon thereafter as the
disqualification becomes known or could have been discovered with
reasonable diligence.
(f) Payment of costs of deposition. The party requesting
the deposition shall bear all costs of the deposition.
[Codified to 24 C.F.R. § 180.515]
{{6-30-97 p.9803}}
§ 180.520 Use of deposition at hearings.
(a) In general. At the hearing, any part or all of a
deposition, so far as admissible under the Federal Rules of Evidence,
may be used against any party who was present or represented at the
taking of the deposition or who had due notice of the taking of the
deposition, in accordance with the following provisions:
(1) Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of the deponent as a witness.
(2) The deposition of an expert witness may be used by any party
for any purpose, unless the ALJ rules that such use is unfair or in
violation of due process.
(3) The deposition of a party, or of anyone who at the time of
the taking of the deposition was an officer, director, or duly
authorized agent of a public or private corporation, partnership, or
association that is a party, may be used by any other party for any
purpose.
(4) The deposition of a witness, whether or not a party, may be
used by any party for any purpose if the ALJ finds:
(i) That the witness is dead;
(ii) That the witness is out of the United States or more than
100 miles from the place of hearing, unless it appears that the absence
of the witness was procured by the party offering the deposition;
(iii) That the witness is unable to attend to testify because of
age, sickness, infirmity, or imprisonment;
(iv) That the party offering the deposition has been unable to
procure the attendance of the witness by subpoena; or
(v) Whenever exceptional circumstances exist as to make it
desirable, in the interest of justice and with due regard to the
importance of presenting the testimony of witnesses orally in open
hearing, to allow the deposition to be used.
(5) If a part of a deposition is offered in evidence by a party,
any other party may require the party to introduce all of the
deposition that is relevant to the part introduced. Any party may
introduce any other part of the deposition.
(6) Substitution of parties does not affect the rights to use
depositions previously taken. If a proceeding has been dismissed and
another proceeding involving the same subject matter is later brought
between the same parties or their representatives or successors in
interest, all depositions lawfully taken in the former proceeding may
be used in the latter proceeding.
(b) Objections to admissibility. Except as provided in
this paragraph, objection may be made at the hearing to receiving in
evidence any deposition or part of a deposition for any reason that
would require the exclusion of the evidence if the witness were present
and testifying.
(1) Objections to the competency of a witness or to the
competency, relevancy, or materiality of testimony are not waived by
failure to make them before or during the taking of the deposition,
unless the basis of the objection is one which might have been obviated
or removed if presented at that time.
(2) Errors and irregularities occurring at the oral examination
in the manner of taking the deposition, in the form of the questions or
answers, in the oath or affirmation or in the conduct of parties, and
errors of any kind which might be obviated, removed or cured if
promptly presented, are waived unless reasonable objection is made at
the taking of the deposition.
[Codified to 24 C.F.R.
§ 180.520]
§ 180.525 Requests for production of documents or things for
inspection or other purposes including physical and mental
examinations.
(a) Any party may serve on any other party a request to:
(1) Produce and/or permit the party, or a person acting on the
party's behalf, to inspect and copy any designated documents, or to
inspect and copy, test, or sample any
{{6-30-97 p.9804}}tangible things that
contain or may lead to relevant information and that are in the
possession, custody, or control of the party upon whom the request is
served.
(2) Permit entry upon designated land or other property in the
possession or control of the party upon whom the request is served for
the purpose of inspection and measuring, photographing, testing, or
other purposes stated in paragraph (a)(1) of this section.
(b) Each request shall set forth with reasonable particularity the
items or categories to be inspected and shall specify a reasonable
time, place and manner for making the inspection and performing the
related acts.
(c) Within 15 days after service of the request, the party upon
whom the request is served shall serve a written response on the party
submitting the request. The response shall state, with regard to each
item or category, that inspection and related activities will be
permitted as requested, unless there are objections, in which case the
reasons for the objection shall be stated.
(d) Upon motion of any party, when the mental or physical condition
(including the blood group) of a party or of a person in the custody or
under the legal control of a party, is in controversy, the presiding
ALJ may order the party to submit to a physical or mental examination
by a suitably licensed or certified examiner or to produce for
examination the person in the party's custody or legal control. The
order may be made only on motion for good cause shown and upon notice
to the person to be examined and to all parties and shall specify the
time, place, manner, conditions, and scope of the examination and the
person or persons by whom it is to be made. A report of the examiner
shall be made in accordance with Rule 35(b) of the Federal Rules of
Civil Procedure.
[Codified to 24 C.F.R.
§ 180.525]
§ 180.530 Requests for admissions.
(a) Any party may serve on any other party a written request for
the admission of the truth or any matters relevant to the adjudication
set forth in the request that relate to statements or opinions of fact
or of application of law to fact, including the genuineness and
authenticity of any documents described in or attached to the request.
(b) Each matter for which an admission is requested is admitted
unless, within 15 days after service of the request, or within such
time as the ALJ allows, the party to whom the request is directed
serves on the requesting party a sworn written answer which:
(1) Specifically denies, in whole or in part, the matter for
which an admission is requested;
(2) Sets forth in detail why the party cannot truthfully admit or
deny the matter; or
(3) States an objection that the matter is privileged, irrelevant
or otherwise improper in whole or in part.
(c) An answering party may not give lack of information or
knowledge as a reason for failure to admit or deny, unless he/she/it
states that he/she/it has made a reasonable inquiry and that the
information known to, or readily obtainable by, him/her/it is
insufficient to enable the party to admit or deny.
(d) The party requesting admissions may move for a determination of
the sufficiency of the answers or objections. Unless the ALJ determines
that an objection is justified, the ALJ shall order that an answer be
served. If the ALJ determines that an answer does not comply with the
requirements of this section, the ALJ may order either that the matter
is admitted or that an amended answer be served.
(e) Any matter admitted under this section is conclusively
established unless, upon the motion of a party, the ALJ permits the
withdrawal or amendment of the admission. Any admission made under this
section is made for the purposes of the pending proceeding only, is not
an admission by the party for any other purpose, and may not be used
against the party in any other proceeding.
[Codified to 24 C.F.R. § 180.530]
{{4-30-08 p.9805}}
§ 180.535 Protective orders.
(a) Upon motion of a party or a person from whom discovery is
sought or in accordance with § 180.540(c), and for good cause shown,
the ALJ may make appropriate orders to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense as a
result of the requested discovery request. The order may direct that:
(1) The discovery may not be had;
(2) The discovery may be had only on specified terms and
conditions, including at a designated time and place;
(3) The discovery may be had by a method of discovery other than
that selected by the party seeking discovery;
(4) Certain matters may not be the subject of discovery, or the
scope of discovery may be limited to certain matters;
(5) Discovery may be conducted with no one present other than
persons designated by the ALJ;
(6) A trade secret or other confidential research, development or
commercial information may not be disclosed, or may be disclosed only
in a designated way; or
(7) The party or other person from whom discovery is sought may
file specified documents or information under seal to be opened as
directed by the ALJ.
(b) The ALJ may permit a party or other person from whom discovery
is sought, who is seeking a protective order, to make all or part of
the showing of good cause in camera. If such a showing is made, upon
motion of the party or other person from whom discovery is sought, an
in camera record of the proceeding may be made. If the ALJ enters a
protective order, any in camera record of such showing shall be sealed
and preserved and made available to the ALJ or, in the event of appeal,
to the Secretary or a court.
[Codified to 24 C.F.R.
§ 180.535]
§ 180.540 Motion to compel discovery.
(a) If a deponent fails to answer a question propounded, or a party
upon whom a discovery request has been made fails to respond
adequately, objects to a request, or fails to produce documents or
other inspection as requested, the discovering party may move the ALJ
for an order compelling discovery in accordance with the request. The
motion shall:
(1) State the nature of the request;
(2) Set forth the response or objection of the deponent or party
upon whom the request was served;
(3) Present arguments supporting the motion; and
(4) Attach copies of all relevant discovery requests and
responses.
(b) For the purposes of this section, an evasive or incomplete
answer or response will be treated as a failure to answer or respond.
(c) In ruling on a motion under this section, the ALJ may enter an
order compelling a response in accordance with the request, may issue
sanctions under paragraph (d) of this section, or may enter a
protective order under § 180.535.
(d) Sanctions. If a party fails to provide or permit
discovery, the ALJ may take such action as is just, including but not
limited to the following:
(1) Inferring that the admission, testimony, document, or other
evidence would have been adverse to the party;
(2) Ordering that, for purposes of the adjudication, the matters
regarding which the order was made or any other designated facts shall
be taken to be established in accordance with the claim of the party
obtaining the order;
(3) Prohibiting the party failing to comply with the order from
introducing evidence concerning, or otherwise relying upon, documents
or other evidence withheld;
(4) Ordering that the party withholding discovery not introduce
into evidence, or otherwise use in the hearing, information obtained in
discovery;
(5) Permitting the requesting party to introduce secondary
evidence concerning the information sought;
{{4-30-08 p.9806}}
(6) Striking any appropriate part of the pleadings or other
submissions of the party failing to comply with such order; or
(7) Taking such other action as may be appropriate.
[Codified to 24 C.F.R.
§ 180.540]
§ 180.545 Subpoenas.
(a) This section governs the issuance of subpoenas in
administrative proceedings under the Fair Housing Act. Except for time
periods stated in the rules in this section, to the extent that this
section conflicts with procedures for the issuance of subpoenas in
civil actions in the United States District Court for the District in
which the investigation of the discriminatory housing practice took
place, the rules of the United States District Court apply.
(b) Issuance of subpoena. Upon the written request of a
party, the presiding ALJ or other designated ALJ may issue a subpoena
requiring the attendance of a witness for the purpose of giving
testimony at a deposition or hearing and requiring the production of
relevant books, papers, documents or tangible things.
(c) Time of request. Requests for subpoenas in aid of
discovery must be submitted in time to permit the conclusion of
discovery 15 days before the date scheduled for the hearing. If a
request for subpoenas of a witness for testimony at a hearing is
submitted three days or less before the hearing, the subpoena shall be
issued at the discretion of the presiding ALJ or other designated ALJ,
as appropriate.
(d) Service. A subpoena may be served by any person who
is not a party and is not less than 18 years of age. Service on a
person shall be made by delivering a copy of the subpoena to the person
and by tendering witness fees and mileage to that person. When the
subpoena is issued on behalf of HUD, witness fees and mileage need not
be tendered with the subpoena.
(e) Amount of witness fees and mileage. A witness
summoned by a subpoena issued under this part is entitled to the same
witness and mileage fees as a witness in proceedings in United States
District Courts. Fees payable to a witness summoned by a subpoena shall
be paid by the party requesting the issuance of the subpoena, or where
the ALJ determines that a party is unable to pay the fees, the fees
shall be paid by HUD.
(f) Motion to quash or limit subpoena. Upon a motion by
the person served with a subpoena or by a party, made within five days
after service of the subpoena (but in any event not less than the time
specified in the subpoena for compliance), the ALJ may:
(1) Quash or modify the subpoena if it is unreasonable and
oppressive or for other good cause shown; or
(2) Condition denial of the motion upon the advancement, by the
party on whose behalf the subpoena was issued, of the reasonable cost
of producing subpoenaed books, papers or documents. Where circumstances
require, the ALJ may act upon such a motion at any time after a copy of
the motion has been served upon the party on whose behalf the subpoena
was issued.
(g) Failure to comply with subpoena. If a person fails
to comply with a subpoena issued under this section, the party
requesting the subpoena may refer the matter to the Attorney General
for enforcement in appropriate proceedings under
42 U.S.C. 3614(c).
[Codified to 24 C.F.R. § 180.545]
[Section 180.545 amended at 73 Fed. Reg. 13723, March 13, 2008,
effective April 14, 2008]
Subpart FProcedures at Hearing
§ 180.600 Date and place of hearing.
(a) For Fair Housing Act cases. (1) Time.
The hearing shall commence not later than 120 days after the
issuance of the charge, unless it is impracticable to do so. If the
hearing cannot be commenced within this time period, the ALJ shall
notify in writing all parties, aggrieved persons, amici, and the
Assistant Secretary of the reasons for the delay.
(2) Place. The hearing will be conducted at a place in
the vicinity in which the discriminatory housing practice is alleged to
have occurred or to be about to occur.
{{6-30-97 p.9807}}
(b) For non-fair housing matters. Hearings shall be held
in Washington, DC, unless the ALJ determines that the convenience of
the respondent or HUD requires that another place be selected.
(c) The ALJ may change the time, date or place of the hearing, or
may temporarily adjourn or continue a hearing for good cause shown.
[Codified to 24 C.F.R.
§ 180.600]
§ 180.605 Conduct of hearings.
The hearing shall be conducted in accordance with the Administrative
Procedure Act (5 U.S.C.
551--559).
[Codified to 24 C.F.R.
§ 180.605]
§ 180.610 Waiver of right to appear.
If all parties waive their right to appear before the ALJ, the ALJ
need not conduct an oral hearing. Such waivers shall be in writing and
filed with the ALJ. The ALJ shall make a record of the pleadings and
relevant written evidence submitted by the parties. These documents may
constitute the evidence in the proceeding, and the decision may be
based upon this evidence.
[Codified to 24 C.F.R.
§ 180.610]
§ 180.615 Failure of party to appear.
A default decision may be entered against a party failing to appear
at a hearing unless such party shows good cause for such failure.
[Codified to 24 C.F.R.
§ 180.615]
§ 180.620 Evidence.
The Federal Rules of Evidence apply to the presentation of evidence
in hearings under this part.
[Codified to 24 C.F.R.
§ 180.620]
§ 180.625 Record of hearing.
(a) All oral hearings shall be recorded and transcribed by a
reporter designated and supervised by the ALJ. The original transcript
shall be a part of the record and shall constitute the sole official
transcript. All exhibits introduced as evidence shall be incorporated
into the record. The parties and the public may obtain transcripts from
the official reporter at rates not to exceed the applicable rates fixed
by the contract with the reporter.
(b) Corrections to the official transcript will be permitted upon
motion of a party. Motions for correction must be submitted within five
days after receipt of the transcript. Corrections of the official
transcript will be permitted only where errors of substance are
involved and upon the ALJs approval.
[Codified to 24 C.F.R.
§ 180.625]
§ 180.630 Stipulations.
The parties may stipulate to any pertinent facts by oral agreement
at the hearing or by written agreement at any time. Stipulations may be
submitted into evidence at any time before the end of the hearing. Once
received into evidence, a stipulation is binding on the parties.
[Codified to 24 C.F.R.
§ 180.630]
§ 180.635 Written testimony.
The ALJ may accept and enter into the record direct testimony of
witnesses made by verified written statement rather than by oral
presentation at the hearing. Unless the ALJ
{{6-30-97 p.9808}}fixes other time
periods, affidavits shall be filed and served on the parties not later
than 14 days prior to the hearing. Witnesses whose testimony is
presented by affidavit shall be available for cross-examination as may
be required.
[Codified to 24 C.F.R.
§ 180.635]
§ 180.640 In camera and protective orders.
The ALJ may limit discovery or the introduction of evidence, or may
issue such protective or other orders necessary to protect privileged
communications. If the ALJ determines that information in documents
containing privileged matters should be made available to a party, the
ALJ may order the preparation of a summary or extract of the
nonprivileged matter contained in the original.
[Codified to 24 C.F.R.
§ 180.640]
§ 180.645 Exhibits.
(a) Identification. All exhibits offered into evidence
shall be numbered sequentially and marked with a designation
identifying the sponsor. The original of each exhibit offered in
evidence or marked for identification shall be filed and retained in
the docket of the proceeding, unless the ALJ permits the substitution
of a copy for the original.
(b) Exchange of exhibits. One copy of each exhibit
offered into evidence must be furnished to each of the parties and to
the ALJ. If the ALJ does not fix a time for the exchange of exhibits,
the parties shall exchange copies of proposed exhibits at the earliest
practicable time before the commencement of the hearing. Exhibits
submitted as rebuttal evidence are not required to be exchanged before
the commencement of the hearing if the submission of such evidence
could not reasonably be anticipated at that time.
(c) Authenticity. The authenticity of all documents
submitted or exchanged as proposed exhibits prior to the hearing shall
be admitted unless written objection is filed before the commencement
of the hearing, or unless good cause is shown for failing to file such
a written objection.
(d) The parties are encouraged to stipulate as to the admissibility
of exhibits.
[Codified to 24 C.F.R.
§ 180.645]
§ 180.650 Public document items.
Whenever a public document, such as an official report, decision,
opinion, or published scientific or economic statistical data issued by
any of the executive departments (or their subdivisions), legislative
agencies or committees, or administrative agencies of the Federal
Government (including Government-owned corporations), or a similar
document issued by a State or its agencies is offered (in whole or in
part), and such document (or part thereof) has been shown by the
offeror to be reasonably available to the public, such document need
not be produced or marked for identification, but may be offered for
official notice, as a public document item by specifying the document
or relevant part thereof.
[Codified to 24 C.F.R.
§ 180.650]
§ 180.655 Witnesses.
(a) Witnesses shall testify under oath or affirmation.
(b) If a witness fails or refuses to testify, the failure or
refusal to answer any question found by the ALJ to be proper may be
grounds for striking all or part of the testimony that may have been
given by the witness, or for any other action deemed appropriate by the
ALJ.
[Codified to 24 C.F.R. § 180.655]
{{10-31-07 p.9809}}
§ 180.660 Closing of record.
(a) Oral hearing. Where there is an oral hearing, the
hearing ends on the day of the adjournment of the oral hearing or,
where written briefs are permitted, on the date that the written briefs
are due.
(b) Hearing on written record. Where the parties have
waived an oral hearing, the hearing ends on the date set by the ALJ as
the final date for the receipt of submissions by the parties.
(c) Receipt of evidence following hearing. Following the
end of the hearing, no additional evidence may be accepted into the
record, except with the permission of the ALJ. The ALJ may receive
additional evidence upon a determination that new and material evidence
was not readily available before the end of the hearing, the evidence
has been timely submitted, and its acceptance will not unduly prejudice
the right of the parties.
[Codified to 24 C.F.R.
§ 180.660]
§ 180.665 Arguments and briefs.
(a) Following the submission of evidence at an oral hearing, the
parties may file a brief, proposed findings of fact and conclusions of
law, or both, or, in the ALJ's discretion, make oral arguments.
(b) Unless otherwise ordered by the ALJ, briefs and proposed
findings of fact and conclusions of law shall be filed simultaneously
by all parties. In Fair Housing Act cases, such filings shall be due
not later than 45 days after the adjournment of the oral hearing. In
other cases, they shall be due as the ALJ orders.
[Codified to 24 C.F.R.
§ 180.665]
§ 180.670 Initial decision of ALJ.
(a) The ALJ shall issue an initial decision including findings of
fact and conclusions of law upon each material issue of fact or law
presented on the record. The initial decision of the ALJ shall be based
on the whole record of the proceeding. A copy of the initial decision
shall be served upon all parties, aggrieved persons, the Assistant
Secretary, the Secretary, and amici, if any.
(b) Initial decision in Fair Housing Act cases. (1) The
ALJ shall issue an initial decision within 60 days after the end of the
hearing, unless it is impracticable to do so. If the ALJ is unable to
issue the initial decision within this time period (or within any
succeeding 60-day period following the initial 60-day period), the ALJ
shall notify in writing all parties, the aggrieved person on whose
behalf the charge was filed, and the Assistant Secretary, of the
reasons for the delay.
(2) The initial decision shall state that it will become the
final agency decision 30 days after the date of issuance of the initial
decision.
(3) Findings against respondents. If the ALJ finds
that a respondent has engaged, or is about to engage, in a
discriminatory housing practice, the ALJ shall issue an initial
decision against the respondent and order such relief as may be
appropriate. Relief may include, but is not limited to:
(i) Ordering the respondent to pay damages to the aggrieved
person (including damages caused by humiliation and embarrassment).
(ii) Ordering injunctive or such other equitable relief as may be
appropriate. No such order may affect any contract, sale, encumbrance
or lease consummated before the issuance of the initial decision that
involved a bona fide purchaser, encumbrancer or tenant without actual
knowledge of the charge.
(iii) Assessing a civil penalty against any respondent to
vindicate the public interest in accordance with § 180.671.
(A) The amount of the civil penalty may not exceed:
(1) $11,000, if the respondent has not been adjudged
to have committed any prior discriminatory housing practice in any
administrative hearing or civil action permitted under the Fair Housing
Act or any State or local fair housing law, or in any
{{10-31-07 p.9810}}licensing or
regulatory proceeding conducted by a Federal, State or local government
agency.
(2) $32,500, if the respondent has been adjudged to
have committed one other discriminatory housing practice in any
administrative hearing or civil action permitted under the Fair Housing
Act, or any State or local fair housing law, or in any licensing or
regulatory proceeding conducted by a Federal, State, or local
government agency, and the adjudication was made during the five-year
period preceding the date of filing of the charge.
(3) $60,000, if the respondent has been adjudged to
have committed two or more discriminatory housing practices in any
administrative hearings or civil actions permitted under the Fair
Housing Act or any State or local fair housing law, or in any licensing
or regulatory proceeding conducted by a Federal, State, or local
government agency, and the adjudications were made during the
seven-year period preceding the date of filing of the charge.
(B) If the acts constituting the discriminatory housing practice
that is the subject of the charge were committed by the same natural
person who has previously been adjudged, in any administrative
proceeding or civil action, to have committed acts constituting a
discriminatory housing practice, the time periods set forth in
paragraphs (b)(3)(iii)(A)(2) and (3) of this
section do not apply.
(C) In a proceeding involving two or more respondents, the ALJ
may assess a civil penalty as provided under paragraph (b) of this
section against each respondent that the ALJ determines has been
engaged or is about to engage in a discriminatory housing practice.
(4) Findings in favor of respondents. If the ALJ finds
that the charging party has not established that a respondent has
engaged in a discriminatory housing practice, the ALJ shall make an
initial decision dismissing the charge as against that respondent.
(c) Initial decision in non-Fair Housing Act matters.
The ALJ shall issue the initial decision as soon as possible after
the end of the hearing.
(1) Findings against respondents. If the ALJ finds
that a respondent has failed to comply substantially with the statutory
and regulatory requirements that gave rise to the notice of proposed
adverse action, the ALJ shall issue an initial decision against the
respondent.
(i) The initial decision shall provide for suspension or
termination of, or refusal to grant or continue, Federal financial
assistance, in whole or in part, to the involved program or activity.
(ii) The initial decision may contain such terms, conditions, and
other provisions as are consistent with and will effectuate the
purposes of the applicable statute and regulations, including
provisions designed to assure that no Federal financial assistance will
be extended for the program or activity unless and until the respondent
corrects its noncompliance and satisfies the Secretary that it will
fully comply with the relevant statute and regulations.
(iii) The initial decision shall state that it will become final
only upon the Secretary's approval.
(2) Findings in favor of respondents. If the ALJ finds
that a respondent has not failed to comply substantially with the
statutory and regulatory requirements that gave rise to the notice of
proposed adverse action, the ALJ shall make an initial decision
dismissing the notice of proposed adverse action. The initial decision
shall state that it will become the final agency decision 30 days after
the date of issuance.
[Codified to 24 C.F.R. § 180.670]
[Section 180.670 amended at 64 Fed. Reg. 6754, February 10, 1999,
effective, March 12, 1999; 68 Fed. Reg. 12788, March 17, 2003,
effective April 16, 2003; 72 Fed. Reg. 5588, February 6, 2007,
effective March 8, 2007]
§ 180.671 Assessing civil penalties for Fair Housing Act cases.
(a) Amounts. The ALJ may assess a civil penalty against
any respondent under § 180.670(b)(3) for each separate and distinct
discriminatory housing practice (as defined in
{{10-31-07 p.9810.01}}paragraph (b) of
this section) that the respondent committed, each civil penalty in an
amount not to exceed:
(1) $16,000, if the respondent has not been adjudged in any
administrative hearing or civil action permitted under the Fair Housing
Act, or under any state or local fair housing law, or in any licensing
or regulatory proceeding conducted by a federal, state or local
governmental agency, to have committed any prior discriminatory housing
practice.
(2) $37,500, if the respondent has been adjudged in any
administrative hearing or civil action permitted under the Fair Housing
Act, or under any state or local fair housing law, or in any licensing
or regulatory proceeding conducted by a federal, state, or local
government agency, to have committed one other discriminatory housing
practice and the adjudication was made during the five-year period
preceding the date of filing of the charge.
(3) $65,000, if the respondent has been adjudged in any
administrative hearings or civil actions permitted under the Fair
Housing Act, or under any state or local fair housing law, or in any
licensing or regulatory proceeding conducted by a federal, state, or
local government agency, to have committed two or more discriminatory
housing practices and the adjudications were made during the
seven-year-period preceding the date of the filing of the charge.
(b) Definition of separate and distinct discriminatory
housing practice. A separate and distinct discriminatory housing
practice is a single, continuous uninterrupted transaction or
occurrence that violates section 804, 805, 806 or 818 of the Fair
Housing Act. Even if such a transaction or occurrence violates more
than one provision of the Fair Housing Act, violates a provision more
than once, or violates the fair housing rights of more than one person,
it constitutes only one separate and distinct discriminatory housing
practice.
(c) Factors for consideration by ALJ. (1) In
determining the amount of the civil penalty to be assessed against any
respondent for each separate and distinct discriminatory housing
practice the respondent committed, the ALJ shall consider the following
six (6) factors:
(i) Whether that respondent has previously been adjudged to have
committed unlawful housing discrimination;
(ii) That respondent's financial resources;
(iii) The nature and circumstances of the violation;
(iv) The degree of that respondent's culpability;
(v) The goal of deterrence; and
(vi) Other matters as justice may require.
(2)(i) Where the ALJ finds any respondent to have committed a
housing-related hate act, the ALJ shall take this fact into account in
favor of imposing a maximum civil penalty under the factors listed in
paragraphs (c)(1)(iii), (iv), (v), and (vi) of this section.
(ii) For purposes of this section, the term
"housing-related hate act" means any act that
constitutes a discriminatory housing practice under section 818 of the
Fair Housing Act and which constitutes or is accompanied or
characterized by actual violence, assault, bodily harm, and/or harm to
property; intimidation or coercion that has such elements; or the
threat or commission of any action intended to assist or be a part of
any such act.
(iii) Nothing in this paragraph shall be construed to require an
ALJ to assess any amount less than a maximum civil penalty in a
non-hate act case, where the ALJ finds that the factors listed in
paragraphs (c)(1)(i) through (vi) of this section warrant the
assessment of a maximum civil penalty.
(d) Persons previously adjudged to have committed a
discriminatory housing practice. If the acts constituting the
discriminatory housing practice that is the subject of the charge were
committed by the same natural person who has previously been adjudged,
in any administrative proceeding or civil action, to have committed
acts constituting a discriminatory housing practice, the time periods
in paragraphs (a)(2) and (3) of this section do not apply.
(e) Multiple discriminatory housing practices committed by
the same respondent; multiple respondents. (1) In a proceeding
where a respondent has been determined to
{{10-31-07 p.9810.02}}have engaged in, or
is about to engage in, more than one separate and distinct
discriminatory housing practice, a separate civil penalty may be
assessed against the respondent for each separate and distinct
discriminatory housing practice.
(2) In a proceeding involving two or more respondents who have
been determined to have engaged in, or are about to engage in, one or
more discriminatory housing practices, one or more civil penalties, as
provided under this section, may be assessed against each respondent.
[Codified to 24 C.F.R. § 180.671]
[Section 180.671 added at 64 Fed. Reg. 6754, February 10, 1999,
effective March 12, 1999; 68 Fed. Reg. 12788, March 17, 2003, effective
April 16, 2003; 72 Fed. Reg. 5588, February 6, 2007, effective March 8,
2007]
§ 180.675 Petitions for review.
(a) The Secretary may affirm, modify or set aside, in whole or in
part, the initial decision, or remand the initial decision for further
proceedings.
(b) Any party adversely affected by the ALJ's initial decision may
file a motion with the Secretary explaining how and why the initial
decision should be modified, set aside, in
{{6-30-97 p.9811}}whole or in part, or
remanded for further proceedings. Such petition shall be based only on
the following grounds:
(1) A finding of material fact is not supported by substantial
evidence;
(2) A necessary legal conclusion is erroneous;
(3) The decision is contrary to law, duly promulgated rules of
HUD, or legal precedent; or
(4) A prejudicial error of procedure was committed.
(c) Each issue shall be plainly and concisely stated and shall be
supported by citations to the record when assignments of error are
based on the record, statutes, regulations, cases, or other authorities
relied upon. Except for good cause shown, no assignment of error by any
party shall rely on any question of fact or law not presented to the
ALJ.
(d) Such petitions must be received by the Secretary within 15 days
after issuance of the initial decision.
(e) A statement in opposition to the petition for review may be
filed. Such opposition must be received by the Secretary within 22 days
after issuance of the initial decision.
(f) A petition not granted within 30 days after the issuance of the
initial decision is deemed denied.
(g) If the Secretary remands the decision for further proceedings,
the ALJ shall issue an initial decision on remand within 60 days after
the date of issuance of the Secretary's decision, unless it is
impracticable to do so. If the ALJ is unable to issue the initial
decision within this time period (or within any succeeding 60-day
period following the initial 60-day period), the ALJ shall notify in
writing the parties, the aggrieved person on whose behalf the charge
was filed, any amicus curiae and the Assistant Secretary, of the
reasons for the delay.
[Codified to 24 C.F.R.
§ 180.675]
§ 180.680 Final decisions.
(a) Public disclosure. HUD shall make public disclosure
of each final decision.
(b) Where initial decision does not provide for suspension or
termination of, or refusal to grant or continue, Federal financial
assistance.
(1) Issuance of final decision by Secretary. The
Secretary may review any finding of fact, conclusion of law, or order
contained in the initial decision of the ALJ and issue a final decision
in the proceeding. The Secretary shall serve the final decision on all
parties no later than 30 days after the date of issuance of the initial
decision.
(2) No final decision by Secretary. If the Secretary
does not serve a final decision within the time period described in
paragraph (b)(1) of this section, the initial decision of the ALJ will
become the final agency decision. For the purposes of this part, such a
final decision will be considered to have been issued 30 days after the
date of issuance of the initial decision.
(c) Where initial decision provides for suspension or
termination of, or refusal to grant or continue, Federal financial
assistance. When the initial decision provides for the suspension
or termination of, or the refusal to grant or continue, Federal
financial assistance, or the imposition of any other sanction, such
decision shall not constitute an order or final agency action until
approved by the Secretary. Further, in the case of proceedings under
title VI of the Civil Rights Act of 1964, no order suspending,
terminating, or refusing to grant or continue Federal financial
assistance shall become effective until the requirements of 24 CFR
1.8(c) have been met.
[Codified to 24 C.F.R. § 180.680]
Subpart GPost-Final Decision in Fair Housing
Cases
§ 180.700 Action upon issuance of a final decision in Fair
Housing Act cases.
(a) Licensed or regulated businesses.
(1) If a final decision includes a finding that a respondent has
engaged or is about to engage in a discriminatory housing practice in
the course of a business that is subject to
{{6-30-97 p.9812}}licensing or
regulation by a Federal, State or local governmental agency, the
Assistant Secretary will notify the governmental agency of the decision
by:
(i) Sending copies of the findings of fact, conclusions of law
and final decision to the governmental agency by certified mail; and
(ii) Recommending appropriate disciplinary action to the
governmental agency, including, where appropriate, the suspension or
revocation of the respondent's license.
(2) The Assistant Secretary will notify the appropriate
governmental agencies within 30 days after the date of issuance of the
final decision, unless a petition for judicial review of the final
decision as described in § 180.710 of this part has been filed before
the issuance of the notification of the agency. If such a petition has
been filed, the Assistant Secretary will provide the notification to
the governmental agency within 30 days after the date that the final
decision is affirmed upon review. If a petition for judicial review is
timely filed following the notification of the governmental agency, the
Assistant Secretary will promptly notify the governmental agency of the
petition and withdraw his or her recommendation.
(b) Notification to the Attorney General. If a final
decision includes a finding that a respondent has engaged or is about
to engage in a discriminatory housing practice and another final
decision including such a finding was issued under this part within the
five years preceding the date of issuance of the final decision, the
General Counsel will notify the Attorney General of the decisions by
sending a copy of each final decision.
[Codified to 24 C.F.R.
§ 180.700]
§ 180.705 Attorney's fees and costs.
Following the issuance of the final decision, any prevailing party,
except HUD, may apply for attorney's fees and costs. The ALJ will issue
an initial decision awarding or denying such fees and costs. The
initial decision will become HUD's final decision unless the Secretary
reviews the initial decision and issues a final decision on fees and
costs within 30 days. The recovery of reasonable attorney's fees and
costs will be permitted as follows:
(a) If the respondent is the prevailing party, HUD will be liable
for reasonable attorney's fees and costs to the extent provided under
the Equal Access to Justice Act (5
U.S.C. 504) and HUD's regulations at 24 CFR part 14, and an
intervenor will be liable for reasonable attorney's fees and costs only
to the extent that the intervenor's participation in the administrative
proceeding was frivolous or vexatious, or was for the purpose of
harassment.
(b) To the extent that an intervenor is a prevailing party, the
respondent will be liable for reasonable attorney's fees unless special
circumstances make the recovery of such fees and costs unjust.
[Codified to 24 C.F.R.
§ 180.705]
§ 180.710 Judicial review of final decision.
(a) Any party adversely affected by a final decision may file a
petition in the appropriate United States Court of Appeals for review
of the decision under 42 U.S.C.
3612(i). The petition must be filed within 30 days after the
date of issuance of the final decision.
(b) If no petition for review is filed under paragraph (a) of this
section within 45 days after the date of issuance of the final
decision, the findings of facts and final decision shall be conclusive
in connection with any petition for enforcement.
[Codified to 24 C.F.R.
§ 180.710]
§ 180.715 Enforcement of final decision.
(a) Enforcement by HUD. Following the issuance of a
final decision, the General Counsel may petition the appropriate United
States Court of Appeals for the enforcement of the final decision and
for appropriate temporary relief or restraining order in accordance
with 42 U.S.C.
3612(j).
{{6-30-97 p.9813}}
(b) Enforcement by others. If no petition for review has
been filed within 60 days after the date of issuance, and the General
Counsel has not sought enforcement of the final decision as described
in paragraph (a) of this section, any person entitled to relief under
the final decision may petition the appropriate United States Court of
Appeals for the enforcement of the final decision in accordance with 42
U.S.C. 3612(m).
[Codified to 24 C.F.R. § 180.715]
Subpart HPost-Final Decision in Non-Fair Housing Act
Matters
§ 180.800 Post-termination proceedings.
(a) A respondent adversely affected by the order terminating,
discontinuing, or refusing Federal financial assistance in consequence
of proceedings pursuant to this title may request the Secretary for an
order authorizing payment, or permitting resumption, of Federal
financial assistance. Such request shall:
(1) Be in writing;
(2) Affirmatively show that, since entry of the order, the
respondent has brought its program or activity into compliance with
statutory and regulatory requirements; and
(3) Set forth specifically, and in detail, the steps taken to
achieve such compliance.
(b) If the Secretary denies such request, the respondent may
request an expeditious hearing. The request for such a hearing shall be
addressed to the Secretary within 30 days after the respondent is
informed that the Secretary has refused to authorize payment or permit
resumption of Federal financial assistance and shall specify why the
Secretary erred in denying the request.
(c) The procedures established by this part shall be applicable to
any hearing.
[Codified to 24 C.F.R.
§ 180.800]
§ 180.805 Judicial review of final decision.
A termination of or refusal to grant or to continue Federal
financial assistance is subject to judicial review as provided in the
applicable statute.
[Codified to 24 C.F.R. § 180.805]
[End Miscellaneous Statutes and Regulations]
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