Consolidated HUD Hearing Procedures for Civil Rights Matters

Federal RegisterOct 4, 1996

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SUMMARY: This final rule consolidates HUD's hearing procedures for

nondiscrimination and equal opportunity matters in a new 24 CFR part

180. Currently, the hearing procedures established under the various

civil rights statutory authorities are described in different parts of

title 24. The consolidation of these procedures will eliminate

redundancy from title 24, present uniformity, and assist in HUD's

efforts to streamline the contents of its regulations. Additionally,

this final rule makes appropriate adjustments in stated penalty amounts

pursuant to the Debt Collection Improvement Act of 1996.

EFFECTIVE DATE: November 4, 1996.

FOR FURTHER INFORMATION CONTACT: Carole W. Wilson, Associate General

Counsel for Litigation and Fair Housing Enforcement, or Harry L. Carey,

Assistant General Counsel for Fair Housing Enforcement, Department of

Housing and Urban Development, 451 Seventh Street, SW, Room 10270,

Washington, DC 20410, telephone number (202) 708-0570 (this number is

not toll-free). Hearing- or speech-impaired persons may access this

number via TTY by calling the toll-free Federal Information Relay

Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

A. Consolidating HUD's Civil Rights Hearing Procedures

On March 4, 1995, President Clinton issued a memorandum to all

Federal departments and agencies regarding regulatory reinvention. In

response to this memorandum, HUD conducted a page-by-page review of its

regulations to determine which could be eliminated, consolidated, or

otherwise improved. As a result of this review, HUD has decided to

streamline its regulations governing the hearing procedures for civil

rights matters.

Currently, the procedures for administrative hearings under the

various statutory civil rights authorities are described in different

parts of title 24. For example, HUD's regulations governing

administrative proceedings under the Fair Housing Act (42 U.S.C. 3601-

3619) are found at 24 CFR part 104. The HUD regulations describing the

hearing procedures under title VI of the Civil Rights Act of 1964 (42

U.S.C. 2000d-1) and the Age Discrimination Act of 1975 (42 U.S.C. 6103)

are located at 24 CFR part 2. The procedures for hearings under section

504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) are found at 24

CFR part 8.

Many of these regulations contain nearly identical provisions. In

order to eliminate redundancy from title 24 of the Code of Federal

Regulations, HUD is consolidating its civil rights hearing procedures

in a new 24 CFR part 180. The establishment of a uniform set of hearing

procedures will also assist in reducing confusion among HUD program

participants, who in the past were faced with separate implementing HUD

regulations for each civil rights statutory authority. This final rule

also assists participants in HUD programs by making several clarifying,

non-substantive, revisions to the existing civil rights hearing

procedures. On April 23, 1996 (61 FR 18026), HUD published a rule for

public comment proposing to consolidate many of its non-civil rights

hearing procedures in 24 CFR part 26. The rule finalizing the April 23,

1996 proposed rule was published on September 24, 1996 (61 FR 50208),

and takes effect on October 24, 1996.

New 24 CFR part 180 extends to all nondiscrimination hearings many

procedures that previously were found only in the regulations governing

hearings under the Fair Housing Act. In the seven years since HUD

published 24 CFR part 104 (54 FR 3298, January 23, 1989), these

procedures have assisted parties in obtaining equitable resolutions to

complaints of unlawful discrimination. Because of this success, 24 CFR

part 180 adopts many of these procedures for use in administrative

hearings under other civil rights authorities. For instance,

Sec. 180.445 incorporates the settlement judge process that was

developed by HUD's administrative law judges to resolve cases without

the need for hearings. This rule also requires the parties to exchange

exhibits and lists of witnesses prior to a hearing (See Secs. 180.440

and 180.645).

B. Changes to Title 24

In addition to establishing new part 180, this final rule makes

several necessary conforming amendments to HUD's regulations in title

24. For example, 24 CFR part 2 (Practice and Procedure for Hearings

Under Title VI of the Civil Rights Act of 1964) and 24 CFR part 104

(Administrative Proceedings Under Section 812 of the Fair Housing Act),

are rendered obsolete by the consolidated hearing procedures in new

part 180. Accordingly, the final rule removes these parts from title

24. This rule also amends the following HUD regulations to remove any

provisions describing nondiscrimination hearing procedures and to

reference new 24 CFR part 180:

1. 24 CFR part 1 (Nondiscrimination in Federally Assisted Programs

of the Department of Housing and Urban Development--Effectuation of

Title VI of the Civil Rights Act of 1964);

2. 24 CFR part 8 (Nondiscrimination Based On Handicap in Federally

assisted Programs and Activities of the Department of Housing and Urban

Development);

3. 24 CFR part 103 (Fair Housing--Complaint Processing); and

4. 24 CFR part 146 (Nondiscrimination on the Basis of Age in HUD

Programs or Activities Receiving Federal Financial Assistance).

C. The Debt Collection Improvement Act of 1996

Pursuant to the Federal Civil Penalties Inflation Adjustment Act of

1990 (28 U.S.C. 2461 note; Pub. L. 101-410, approved October 5, 1990;

104 Stat. 890), as amended by the Debt Collection Improvement Act of

1996 (31 U.S.C. 3701 note; Pub. L. 104-134, approved April 26, 1996;

110 Stat. 1321-358), each Federal agency is required to issue

regulations adjusting for inflation the maximum civil money penalties

that can be imposed pursuant to such agency's statutes. This final rule

adjusts the penalty amounts formerly described in Sec. 104.910 and set

forth in Sec. 180.607 of this final rule.

II. Justification for Final Rulemaking

In accordance with its own regulations on rulemaking in 24 CFR part

10, HUD generally publishes a rule for public comment before issuing a

rule for effect. However, part 10 provides an exception to the public

comment requirement if the agency finds good cause to omit advance

notice and public participation. The good cause requirement is

satisfied when public comment is ``impracticable, unnecessary, or

contrary to the public interest'' (24 CFR 10.1). HUD finds that in this

case it is unnecessary to solicit public comment prior to publication

of the rule for effect.

[[Page 52217]]

This final rule consolidates HUD's regulations governing

nondiscrimination hearing procedures in a new 24 CFR part 180.

Currently, the administrative hearing procedures under the various

civil rights statutory authorities are described in different parts of

title 24. Many of these regulations contain nearly identical

provisions. Consolidation of these requirements in a single part will

eliminate redundancy, streamline the content of title 24, and establish

uniformity. Although this final rule makes several clarifying revisions

to the existing nondiscrimination hearing procedures, it does not

affect or establish substantive policy.

This rule also amends the maximum penalty amounts which may be

imposed pursuant to a nondiscrimination hearing. These amendments are

mandated by Debt Collection Improvement Act of 1996. Accordingly, it is

unnecessary for HUD to solicit public comment on the adjustments to the

penalty amounts.

III. Findings and Certifications

Executive Order 12866, Regulatory Planning and Review

This final rule was reviewed by the Office of Management and Budget

under Executive Order 12866, Regulatory Planning and Review. Any

changes made to the final rule as a result of that review are clearly

identified in the docket file, which is available for public inspection

in the office of the Department's Rules Docket Clerk, Room 10276, 451

Seventh Street, SW, Washington, DC 20410-0500.

Unfunded Mandates Reform Act

The Secretary has reviewed this rule before publication and by

approving it certifies, in accordance with the Unfunded Mandates Reform

Act of 1995 (2 U.S.C. 1532), that this rule does not impose a Federal

mandate that will result in the expenditure by State, local, and tribal

governments, in the aggregate, or by the private sector, of $100

million or more in any one year.

Regulatory Flexibility Act

The Secretary, in accordance with the Regulatory Flexibility Act (5

U.S.C. 605(b)), has reviewed and approved this final rule, and in so

doing certifies that this rule will not have a significant economic

impact on a substantial number of small entities. As part of HUD's

continuing efforts to implement the President's regulatory reform

initiative, and to eliminate redundancy from title 24, this rule

consolidates HUD's nondiscrimination hearing procedures. This final

rule establishes a new 24 CFR part 180 which sets forth a uniform set

of hearing procedures for civil rights matters. The rule will have no

adverse or disproportionate economic impact on small entities.

Environmental Impact

In accordance with 40 CFR 1508.4 of the regulations of the Council

on Environmental Quality and 24 CFR 50.20(k) of HUD regulations, the

policies and procedures contained in this rule relate only to hearing

procedures and administrative law decisions, which do not constitute

development decisions and do not affect the physical condition of a

project area or building site. Therefore, this rule categorically is

excluded from the requirements of the National Environmental Policy

Act.

Executive Order 12612, Federalism

The General Counsel, as the Designated Official under section 6(a)

of Executive Order 12612, Federalism, has determined that this rule

will not have substantial direct effects on States or their political

subdivisions, or the relationship between the Federal government and

the States, or on the distribution of power and responsibilities among

the various levels of government. This final rule merely consolidates

HUD's nondiscrimination hearing procedures. No programmatic or policy

changes will result from this rule that would affect the relationship

between the Federal Government and State and local governments.

Executive Order 12606, The Family

The General Counsel, as the Designated Official under Executive

Order 12606, The Family, has determined that this rule will not have

the potential for significant impact on family formation, maintenance,

or general well-being, and thus is not subject to review under the

Order. This final rule eliminates redundancy from title 24 by

consolidating HUD's nondiscrimination hearing procedures in a new 24

CFR part 180. No significant change in existing HUD policies or

programs will result from promulgation of this rule.

List of Subjects

24 CFR Part 1

Administrative practice and procedure, Civil rights, Reporting and

recordkeeping requirements.

24 CFR Part 2

Administrative practice and procedure, Civil rights.

24 CFR Part 103

Administrative practice and procedure, Aged, Fair housing,

Individuals with disabilities, Intergovernmental relations,

Investigations, Mortgages, Penalties, Reporting and recordkeeping

requirements.

24 CFR Part 104

Administrative practice and procedure, Aged, Fair housing,

Individuals with disabilities, Mortgages, Penalties.

24 CFR Part 146

Administrative practice and procedure, Aged, Civil rights, Grant

programs--housing and community development, Loan programs--housing and

community development, Reporting and recordkeeping requirements.

24 CFR Part 180

Administrative practice and procedure, Aged, Civil rights, Fair

housing, Individuals with disabilities, Intergovernmental relations,

Investigations, Mortgages, penalties, Reporting and recordkeeping

requirements.

Accordingly, title 24 of the Code of Federal Regulations is amended

as follows:

PART 1--NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS OF THE

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT--EFFECTUATION OF TITLE

VI OF THE CIVIL RIGHTS ACT OF 1964

1. The authority citation for 24 CFR part 1 is revised to read as

follows:

Authority: 42 U.S.C. 2000d-1 and 3535(d).

2. Section 1.9 is amended by revising paragraph (b) and removing

paragraph (c), (d), and (e), to read as follows:

Sec. 1.9 Hearings.

* * * * *

(b) Hearing procedures. Hearings shall be conducted in accordance

with 24 CFR part 180.

Secs. 1.10,1.11 [Removed]

3. Sections 1.10 and 1.11 are removed.

Sec. 1.112 [Redesignated as Sec. 1.10]

4. Section 1.12 is redesignated as Sec. 1.10.

PART 2--[REMOVED]

5. Under the authority of 42 U.S.C. 3535(d), Part 2 is removed.

[[Page 52218]]

PART 8--NONDISCRIMINATION BASED ON HANDICAP IN FEDERALLY ASSISTED

PROGRAMS AND ACTIVITIES OF THE DEPARTMENT OF HOUSING AND URBAN

DEVELOPMENT

6. The authority citation for part 8 is revised to read as follows:

Authority: 29 U.S.C. 794; 42 U.S.C. 3535(d) and 5309.

7. Section 8.58 is amended by revising paragraph (b) and by

removing paragraphs (c), (d), and (e), to read as follows:

Sec. 8.58 Hearings.

* * * * *

(b) Hearing procedures. Hearings shall be conducted in accordance

with 24 CFR part 180.

8. Section 8.59 and subpart E, consisting of Secs. 8.60 through

8.71, are removed.

PART 103--FAIR HOUSING--COMPLAINT PROCESSING

9. The authority citation for 24 CFR part 103 continues to read as

follows:

Authority: 42 U.S.C. 3601-19; 42 U.S.C. 3535(d).

Secs. 103.45, 103.50, 103.100, 103.115, 103.215, 103.330, 103.405,

103.410, 103.500 [Amended]

10. Sections 103.45, 103.50, 103.100, 103.115, 103.215, 103.330,

103.405, 103.410, 103.500 are amended by replacing all references to

``part 104'' with ``part 180.''

PART 104--[REMOVED]

11. Under the authority of 42 U.S.C. 3535(d), Part 104 is removed.

PART 146--NONDISCRIMINATION ON THE BASIS OF AGE IN HUD PROGRAMS OR

ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE

12. The authority citation for 24 CFR part 146 is revised to read

as follows:

Authority: 42 U.S.C. 3535(d) and 6103.

13. Section 146.43 is revised to read as follows:

Sec. 146.43 Hearings, decisions, post-termination proceedings.

The provisions of 24 CFR part 180 apply to HUD enforcement of this

part.

14. A new part 180 is added to read as follows:

PART 180--HEARING PROCEDURES FOR CIVIL RIGHTS MATTERS

Subpart A--General Information

Sec.

180.100 Definitions.

180.105 Scope of rules.

Subpart B--Administrative 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 C--Parties

180.300 Rights of parties.

180.305 Representation.

180.310 Parties.

180.315 Standards of conduct.

Subpart D--Proceedings 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 E--Discovery

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 F--Procedures 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.

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.

180.675 Petitions for review.

180.680 Final decisions.

Subpart G--Post-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 H--Post-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.

Subpart A--General Information

Sec. 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.

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 ALJs,

409 Third Street, SW, Suite 320, Washington, DC 20024. Telephone

numbers are (202) 708-5004 and FAX (202) 708-5014.

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, 24 CFR 8.3, or 24 CFR 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.

Non-Fair Housing Act matters refers to proceedings under this part

pursuant to:

(1) Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d-1)

and the

[[Page 52219]]

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; or

(3) The Age Discrimination Act of 1975 (42 U.S.C. 6103) and the

implementing regulations at 24 CFR part 146.

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 Sec. 180.105(a), any other HUD official

to whom the Secretary may hereafter delegate such authority.

Sec. 180.105 Scope of rules.

(a) This part contains the rules of practice and procedure

applicable to administrative proceedings 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.

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.

Subpart B--Administrative Law Judge

Sec. 180.200 Designation.

Proceedings under this part shall be presided over by an ALJ

appointed under 5 U.S.C. 3105. HUD's Chief ALJ shall designate the

presiding ALJ.

Sec. 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;

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.

Sec. 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 Chief ALJ.

(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.

shall designate another ALJ to preside over further proceedings.

Sec. 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.

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.

Sec. 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.

Subpart C--Parties

Sec. 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.

[[Page 52220]]

Sec. 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.

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.

Sec. 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, 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.

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 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.

Sec. 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 the Chief ALJ. 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.

Subpart D--Proceedings Prior to Hearing

Sec. 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.

Sec. 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.

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.

[[Page 52221]]

(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.

Sec. 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.

respondent, or the aggrieved person on whose behalf a complaint was

filed makes a timely election to have the claims asserted in the charge

decided in a civil action under 42 U.S.C. 3612(o), the Chief ALJ shall

dismiss the administrative proceeding.

(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.

Sec. 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, 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.

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.

Sec. 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.

Sec. 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.

(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.

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.

Sec. 180.430 Motions.

(a) Motions. Any application for an order or other request shall be

made by

[[Page 52222]]

a motion 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.

Sec. 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.

Sec. 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;

(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.

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.

Sec. 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 Chief ALJ to

appoint another ALJ to conduct settlement negotiations. The order

appointing the settlement judge may confine the scope of settlement

negotiations to specified issues. The order shall direct the settlement

judge to report to the Chief 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.

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.

Sec. 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.

Subpart E--Discovery

Sec. 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.

(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.

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

[[Page 52223]]

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.

Sec. 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.

by agreement of the parties.

Sec. 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 attorney or other representative making

them. The answers and objections shall be served within 15 days after

service of the interrogatories.

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.

Sec. 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.

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.

Sec. 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;

[[Page 52224]]

(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 right 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.

Sec. 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 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.

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.

Sec. 180.530 Requests for admissions.

(a) Any party may serve on any other party a written request for

the admission of the truth of 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.

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.

Sec. 180.535 Protective orders.

(a) Upon motion of a party or a person from whom discovery is

sought or in accordance with Sec. 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

[[Page 52225]]

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 proceedings 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.

Sec. 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.

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 Sec. 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;

(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.

Sec. 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

Chief ALJ or the presiding 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.

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 Chief ALJ or the presiding 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).

Subpart F--Procedures at Hearing

Sec. 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.

(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.

may temporarily adjourn or continue a hearing for good cause shown.

Sec. 180.605 Conduct of hearings.

The hearing shall be conducted in accordance with the

Administrative Procedure Act (5 U.S.C. 551-559).

Sec. 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

[[Page 52226]]

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.

Sec. 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.

Sec. 180.620 Evidence.

The Federal Rules of Evidence apply to the presentation of evidence

in hearings under this part.

Sec. 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 ALJ's approval.

Sec. 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.

Sec. 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 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.

Sec. 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.

Sec. 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.

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.

Sec. 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.

Sec. 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.

Sec. 180.660 Closing of record.

(a) Oral hearings. 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.

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 rights of

the parties.

Sec. 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.

Sec. 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

[[Page 52227]]

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 the respondent to vindicate

the public interest.

(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 licensing or

regulatory proceeding conducted by a Federal, State or local

governmental agency.

(2) $27,500, 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) $55,000, 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 the 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.

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.

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.

Sec. 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 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.

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.

Sec. 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.

[[Page 52228]]

(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.

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.

Subpart G--Post-Final Decision in Fair Housing Cases

Sec. 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 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 Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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).

(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).

Subpart H--Post-Final Decision in Non-Fair Housing Act Matters

Sec. 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.

any hearing.

Sec. 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.

[[Page 52229]]

Dated: September 24, 1996.

Henry G. Cisneros,

Secretary.

[FR Doc. 96-25301 Filed 10-3-96; 8:45 am]

BILLING CODE 4210-32-P

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.