§  1.251   Summary decision.

   (a)(1) Any party to an adjudicatory proceeding may move for summary
   decision of all or any of the issues designated for hearing. The motion
   shall be filed at least 20 days prior to the date set for commencement
   of the hearing or, in hearing proceedings conducted pursuant to § § 1.370
   through 1.377, at least 20 days before the date that the presiding
   officer sets as the deadline for filing the affirmative case. See
   § 1.372. The party filing the motion may not rest upon mere allegations
   or denials but must show, by affidavit or by other materials subject to
   consideration by the presiding officer, that there is no genuine issue
   of material fact for determination in the hearing proceeding.

   (2) A party may file a motion for summary decision after the deadlines
   in paragraph (a)(1) of this section only with the presiding officer's
   permission, or upon the presiding officer's invitation. No appeal from
   an order granting or denying a request for permission to file a motion
   for summary decision shall be allowed. If the presiding officer
   authorizes a motion for summary decision after the deadlines in
   paragraph (a)(1) of this section, proposed findings of fact and
   conclusions of law on those issues which the moving party believes can
   be resolved shall be attached to the motion, and any other party may
   file findings of fact and conclusions of law as an attachment to
   pleadings filed by the party pursuant to paragraph (b) of this section.

   (3) Motions for summary decision should be addressed to the Commission
   in any hearing proceeding in which the Commission is the presiding
   officer and it has appointed a case manager pursuant to § 1.242. The
   Commission, in its discretion, may defer ruling on any such motion
   until after the case manager has certified the record for decision by
   the Commission pursuant to § 1.377.

   (b) Within 14 days after a motion for summary decision is filed, any
   other party to the proceeding may file an opposition or a countermotion
   for summary decision. A party opposing the motion may not rest upon
   mere allegations or denials but must show, by affidavit or by other
   materials subject to consideration by the presiding officer, that there
   is a genuine issue of material fact for determination at the hearing,
   that he cannot, for good cause, present by affidavit or otherwise facts
   essential to justify his opposition, or that summary decision is
   otherwise inappropriate.

   (c) Affidavits shall be made on personal knowledge, shall set forth
   such facts as would be admissible in evidence, and shall show
   affirmatively that the affiant is competent to testify to the matters
   stated therein.

   (d) The presiding officer may, in his or her discretion, set the matter
   for argument and may call for the submission of proposed findings,
   conclusions, briefs or memoranda of law. The presiding officer, giving
   appropriate weight to the nature of the proceeding, the issue or
   issues, the proof, and the need for cross-examination, if any, may
   grant a motion for summary decision to the extent that the pleadings,
   affidavits, materials obtained by discovery or otherwise, admissions,
   or matters officially noticed, show that there is no genuine issue as
   to any material fact and that a party is otherwise entitled to summary
   decision. If it appears from the affidavits of a party opposing the
   motion that the party cannot, for good cause shown, present by
   affidavit or otherwise facts essential to justify the party's
   opposition, the presiding officer may deny the motion, may order a
   continuance to permit affidavits to be obtained or discovery to be had,
   or make such other order as is just.

   (e) If all of the issues (or a dispositive issue) are determined on a
   motion for summary decision, the hearing proceeding shall be
   terminated. When a presiding officer (other than the Commission) issues
   a Summary Decision, it is subject to appeal or review in the same
   manner as an Initial Decision. See § § 1.271 through 1.282. If some of
   the issues only (including no dispositive issue) are decided on a
   motion for summary decision, or if the motion is denied, the presiding
   officer will issue a memorandum opinion and order, interlocutory in
   character, and the hearing proceeding will continue on the remaining
   issues. Appeal from interlocutory rulings is governed by § 1.301.

   (f) The presiding officer may take any action deemed necessary to
   assure that summary decision procedures are not abused. The presiding
   officer may rule in advance of a motion that the proceeding is not
   appropriate for summary decision, and may take such other measures as
   are necessary to prevent any unwarranted delay.

   (1) Should it appear to the satisfaction of the presiding officer that
   a motion for summary decision has been presented in bad faith or solely
   for the purpose of delay, or that such a motion is patently frivolous,
   the presiding officer will enter a determination to that effect upon
   the record.

   (2) If, on making such determination, the presiding officer concludes
   that the facts warrant disciplinary action against an attorney, the
   matter, together with any findings and recommendations, will be
   referred to the Commission for consideration under § 1.24.

   (3) If, on making such determination, the presiding officer concludes
   that the facts warrant a finding of bad faith on the part of a party to
   the proceeding, the presiding officer will certify the matter to the
   Commission, with findings and recommendations, for a determination as
   to whether the facts warrant the addition of an issue to the hearing
   proceeding as to the character qualifications of that party.

   [ 37 FR 7507 , Apr. 15, 1972, as amended at  42 FR 56508 , Oct. 26, 1977;
    85 FR 63177 , Oct. 6, 2020]