[Code of Federal Regulations]
[Title 5, Volume 3]
[Revised as of January 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR1210.20]

[Page 94-95]
 
                    TITLE 5--ADMINISTRATIVE PERSONNEL
 
               CHAPTER II--MERIT SYSTEMS PROTECTION BOARD
 
PART 1210_DEPARTMENT OF HOMELAND SECURITY HUMAN RESOURCES MANAGEMENT SYSTEM--
 
Subpart B_Procedures for Appeals of Actions Taken Under 5 CFR Part 9701, 
                                Subpart F
 
Sec. 1210.20  Summary judgment.

    (a) Motion by a party. Any party may file a motion for summary 
judgment if the party believes that material facts are not in genuine 
dispute and that the party may be entitled to judgment as a matter of 
law. Each motion for summary judgment shall be accompanied by a 
statement separately listing all material facts as to which the moving 
party contends there is no genuine dispute. The statement shall include 
references to those parts of the record, including any affidavits, 
declarations under penalty of perjury, or other evidence attached to the 
motion, relied on to support the statement.

[[Page 95]]

    (b) Opposition to motion. An opposition to a motion for summary 
judgment shall be accompanied by a statement separately listing all 
material facts as to which the party contends there exists a genuine 
dispute for hearing. The statement in opposition shall include 
references to those parts of the record, including any affidavits, 
declarations under penalty of perjury or other evidence attached to the 
opposition, relied on to support the statement. The party opposing a 
motion for summary judgment may not rest on the mere allegations or 
denials of his pleadings, but must set forth specific facts showing that 
there is a genuine dispute for hearing.
    (c) Time of filing. Any party may file a motion for summary judgment 
no later than 5 days after the time limit for the completion of 
discovery set in the Board's acknowledgment order, or other time limit 
set by the adjudicating official. An opposition to a motion for summary 
judgment shall be filed within 15 days of service of the motion, or at 
the time specified by the adjudicating official.
    (d) Initiated by adjudicating official. In addition to the authority 
set forth in 5 CFR 1201.41(b), if the adjudicating official determines 
on his or her own initiative that material facts may not be in genuine 
dispute, he or she may, after giving the parties written notice and at 
least 15 days to respond in writing, find that material facts are not in 
genuine dispute. The written notice to the parties shall include a 
statement separately listing all material facts as to which the 
adjudicating official believes there is no genuine dispute.
    (e) Decision by adjudicating official. If, after considering the 
parties' submissions, the adjudicating official finds that material 
facts are not in genuine dispute, he or she must grant summary judgment 
on the law pursuant to 5 CFR 9701.706(k)(5) without conducting a 
hearing.
    (f) Definitions. A fact is material if it is capable of affecting 
the outcome of the appeal. For a dispute to be genuine, there must be 
evidence sufficient for a reasonable person to find in favor of the 
nonmoving party.