[Code of Federal Regulations]
[Title 28, Volume 2]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 28CFR68.38]

[Page 234]
 
                    TITLE 28--JUDICIAL ADMINISTRATION
 
              CHAPTER I--DEPARTMENT OF JUSTICE (Continued)
 
 PART 68--RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE ADMINISTRATIVE LAW JUDGES IN CASES INVOLVING ALLEGATIONS OF UNLAWFUL EMPLOYMENT OF 
ALIENS, UNFAIR IMMIGRATION-RELATED EMPLOYMENT PRACTICES, AND DOCUMENT FRAUD--Table of Contents
 
Sec. 68.38  Motion for summary decision.

    (a) A complainant, not fewer than thirty (30) days after receipt by 
respondent of the complaint, may move with or without supporting 
affidavits for summary decision on all or any part of the complaint. 
Motions by any party for summary decision on all or any part of the 
complaint will not be entertained within the twenty (20) days prior to 
any hearing, unless the Administrative Law Judge decides otherwise. Any 
other party, within ten (10) days after service of a motion for summary 
decision, may respond to the motion by serving supporting or opposing 
papers with affidavits, if appropriate, or countermove for summary 
decision. The Administrative Law Judge may set the matter for argument 
and/or call for submission of briefs.
    (b) Any affidavits submitted with the motion shall set forth such 
facts as would be admissible in evidence in a proceeding subject to 5 
U.S.C. 556 and 557 and shall show affirmatively that the affiant is 
competent to testify to the matters stated therein. When a motion for 
summary decision is made and supported as provided in this section, a 
party opposing the motion may not rest upon the mere allegations or 
denials of such pleading. Such response must set forth specific facts 
showing that there is a genuine issue of fact for the hearing.
    (c) The Administrative Law Judge shall enter a summary decision for 
either party if the pleadings, affidavits, material obtained by 
discovery or otherwise, or matters officially noticed show that there is 
no genuine issue as to any material fact and that a party is entitled to 
summary decision.
    (d) Form of summary decisions. Any final order entered as a summary 
decision shall conform to the requirements for all final orders. A final 
order made under this section shall include a statement of:
    (1) Findings of fact and conclusions of law, and the reasons 
therefor, on all issues presented; and
    (2) Any terms and conditions of the final order.
    (e) Hearings on issue of fact. Where a genuine question of material 
fact is raised, the Administrative Law Judge shall set the case for an 
evidentiary hearing.

[Order No. 2203-99, 64 FR 7078, Feb. 12, 1999]