[Code of Federal Regulations]
[Title 34, Volume 1]
[Revised as of July 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 34CFR81.20]

[Page 233-234]
 
                           TITLE 34--EDUCATION
 
PART 81_GENERAL EDUCATION PROVISIONS ACT_ENFORCEMENT--Table of Contents
 
                      Subpart A_General Provisions
 
Sec. 81.20  Interlocutory appeals to the Secretary from rulings of an ALJ.

    (a) A ruling by an ALJ may not be appealed to the Secretary until 
the issuance of an initial decision, except that the Secretary may, at 
any time prior to the issuance of an initial decision, grant review of a 
ruling upon either an ALJ's certification of the ruling to the Secretary 
for review, or the filing of a petition seeking review of an interim 
ruling by one or both of the parties, if--
    (1) That ruling involves a controlling question of substantive or 
procedural law; and
    (2) The immediate resolution of the question will materially advance 
the final disposition of the proceeding or subsequent review will be an 
inadequate remedy.
    (b)(1) A petition for interlocutory review of an interim ruling must 
include the following:
    (i) A brief statement of the facts necessary to an understanding of 
the issue on which review is sought.
    (ii) A statement of the issue.

[[Page 234]]

    (iii) A statement of the reasons showing that the ruling complained 
of involves a controlling question of substantive or procedural law and 
why immediate review of the ruling will materially advance the 
disposition of the case, or why subsequent review will be an inadequate 
remedy.
    (2) A petition may not exceed ten pages, double-spaced, and must be 
accompanied by a copy of the ruling and any findings and opinions 
relating to the ruling. The petition must be filed with the Office of 
Hearings and Appeals, which immediately forwards the petition to the 
Office of the Secretary.
    (c) A copy of the petition must be provided to the ALJ at the time 
the petition is filed under paragraph (b)(2) of this section, and a copy 
of a petition or any certification must be served upon the parties by 
certified mail, return receipt requested. The petition or certification 
must reflect that service.
    (d) If a party files a petition under this section, the ALJ may 
state to the Secretary a view as to whether review is appropriate or 
inappropriate by submitting a brief statement addressing the party's 
petition within 10 days of the ALJ's receipt of the petition for 
interlocutory review. A copy of the statement must be served on all 
parties by certified mail, return receipt requested.
    (e)(1) A party's response, if any, to a petition or certification 
for interlocutory review must be filed within seven days after service 
of the petition or certification, and may not exceed ten pages, double-
spaced, in length. A copy of the response must be filed with the ALJ by 
hand delivery, by regular mail, or by facsimile transmission.
    (2) A party shall serve a copy of its response on all parties on the 
filing date by hand-delivery or regular mail. If agreed upon by the 
parties, service of a copy of the response may be made upon the other 
parties by facsimile transmission.
    (f) The filing of a request for interlocutory review does not 
automatically stay the proceedings. Rather, a stay during consideration 
of a petition for review may be granted by the ALJ if the ALJ has 
certified or stated to the Secretary that review of the ruling is 
appropriate. The Secretary may order a stay of proceedings at any time 
after the filing of a request for interlocutory review.
    (g) The Secretary notifies the parties if a petition or 
certification for interlocutory review is accepted, and may provide the 
parties a reasonable time within which to submit written argument or 
other existing material in the administrative record with regard to the 
merit of the petition or certification.
    (h) If the Secretary takes no action on a request for interlocutory 
review within 15 days of receipt of it, the request is deemed to be 
denied.
    (i) The Secretary may affirm, modify, set aside, or remand the ALJ's 
ruling.

(Authority: 5 U.S.C. 557(b); 20 U.S.C. 1234(f)(1))

[58 FR 43473, Aug. 16, 1993]