[Code of Federal Regulations]

[Title 34, Volume 1]

[Revised as of July 1, 2006]

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

[CITE: 34CFR81.20]



[Page 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.

    (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]



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