[Code of Federal Regulations]

[Title 7, Volume 4]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 7CFR283.5]



[Page 959]

 

                          TITLE 7--AGRICULTURE

 

    CHAPTER II--FOOD AND NUTRITION SERVICE, DEPARTMENT OF AGRICULTURE

 

PART 283_APPEALS OF QUALITY CONTROL (``QC'') CLAIMS--Table of Contents

 

            Subpart B_Appeals of QC Claims of $50,000 or More

 

Sec. 283.5  Motion to dismiss.



    (a) Filing of motion to dismiss. Prior to or at the same time as 

filing the answer, FNS may file a motion to dismiss. The appeal may be 

challenged on the basis that the notice of appeal was not filed within 

10 days or as that time may have been extended by the ALJ, the appeal 

petition was not filed in accordance with Sec. 283.4, or that the 

appeal petition is substantially incomplete and could not be quickly and 

easily cured by amendment. The motion must be accompanied by clear and 

convincing proof of any of these factors alleged as grounds for 

dismissal.

    (b) Service of motion to dismiss. FNS shall serve the State agency 

with a copy of the motion to dismiss. The State agency will have 10 days 

from date of service to submit objections to the motion.

    (c) Ruling on a motion to dismiss. The ALJ will rule on the motion 

to dismiss before any further action proceeds on the basis of the merits 

of the appeal. The basis of the ruling will be clearly documented and 

will become part of the official record. If the ALJ denies the motion, 

FNS shall file its answer in accordance with Sec. 283.6 within 60 days 

of service of the ALJ's ruling, unless there is a motion for 

reconsideration filed pursuant to Sec. 283.17(d) or review by the 

Judicial Officer is sought pursuant to Sec. 283.20.

    (d) Dismissal of appeal. If the ALJ finds the basis for the motion 

to have merit, the appeal may be dismissed. The initial decision of the 

ALJ shall become final and effective 30 days after service in accordance 

with Sec. 283.17(c)(2) unless either party pursues the options as 

discussed in Sec. Sec. 283.17(d) and 283.20.

    (e) Waiver. Failure to file for dismissal of the appeal by the time 

the answer is required to be filed will result in waiver of the right to 

request dismissal.