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Guidelines -- Civil Rights Reviewing Authority Review of Civil Rights Enforcement Decisions for HHS Programs

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Introduction
Parts 80, 81, 83, 84, and 86 of Title 45 of the Code of Federal Regulations (C.F.R.) provide for compliance proceedings to implement:  1) title VI of the Civil Rights Act of 1964, 2) titles VII and VIII of the Public Health Service Act, 3) section 504 of the Rehabilitation Act of 1973, and 4) title IX of the Education Amendments of 1972. If there appears to be a failure or threatened failure to comply with the nondiscrimination provisions of these regulations, and if the noncompliance or threatened noncompliance cannot be corrected by informal means, compliance may be effected by suspending, terminating, or refusing to grant or continue federal financial assistance or by any other means authorized by law.

The enforcement process begins when the responsible Department of Health & Human Services official makes a determination of a failure (or threatened failure) to comply and determines that compliance cannot be secured by voluntary means. The recipient of or applicant for federal financial assistance is then entitled to a hearing before an administrative law judge (ALJ). The designation of the ALJ as presiding officer specifies whether the ALJ is to make an initial decision or to certify the entire record including his recommended decision to the Department’s Civil Rights Reviewing Authority (CRRA).  See 45 C.F.R. § 81.62. 

A dissatisfied party may request review of the ALJ’s initial or recommended decision by the CRRA in accordance with the procedures in section 80.10 and Part 81 of 45 C.F.R. (These procedures are made applicable to cases under the authorities in 2) -4) above by 45 C.F.R.  §§ 83.20, 84.61, and 86.71.) The current members of the Departmental Appeals Board (Board) have been appointed by the Secretary to be the members of the CRRA. These guidelines have been designed to assist the parties in understanding and following the procedures relating to the review by the Board, acting in its capacity as the CRRA.

If you have any questions about these guidelines, you may call Appellate Division attorney Carolyn Reines-Graubard at (202) 565-0116.

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Starting the Review Process
(a) Under 45 C.F.R. §§ 80.10 and 81.103, an affected recipient or applicant or the General Counsel of the Department, if dissatisfied with the initial or recommended decision of the ALJ, may appeal that decision to the Board by filing a request for review including exceptions within the specified time period. The Board may hear an interlocutory appeal of a ruling by the ALJ only if the ALJ certifies that an interlocutory appeal is clearly necessary to prevent exceptional delay, expense, or prejudice to any party, or substantial detriment to the public interest and the appeal is filed within such period as the ALJ directs. See 45 C.F.R. § 81.86.

(b) An affected recipient or applicant has a right to be represented before the Board, at its own expense, by an attorney or someone else. A representative should file with the Board a signed statement that he or she has been authorized to represent the entity, unless the same representative appeared in the proceedings before the ALJ. 

(c) Your request for review of the ALJ’s initial or recommended decision must be filed within 20 days after the mailing of that decision. If no request for review of an initial decision is timely filed, that decision becomes the final decision of the Department. The Board reviews a recommended decision whether or not a request for review is filed. See 45 C.F.R. §§ 81.103, 81.104, 81.106. 

(d) Your request for review must specify each finding of fact and conclusion of law with which you disagree, and your basis for contending that each such finding or conclusion is unsupported or incorrect. The Board expects that the basis for each challenge to a finding or conclusion in the ALJ decision will be set forth in a separate numbered paragraph or section, and that the accompanying arguments will be concisely stated. In addition, where appropriate, each argument should be supported by precise citations to the record before the ALJ and/or by precise citations to statutes, regulations or other authorities upon which you are relying.

(e) A complainant is not a party but may petition, after proceedings are initiated, to become an amicus curiae. See 45 C.F.R. §§ 81.22, 82.23.

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Filing Requirements for All Submissions
(a) A submission is considered “filed” with the Board on the postmark date, the date sent by registered or certified mail, the date deposited with a commercial delivery service, or the date a fax (where permitted) is sent.

(b) If the last day of the period for filing a submission falls on a federal non-workday (a Saturday, Sunday, legal holiday, or a day which by statute or Executive Order is declared to be a non-workday for federal employees), the submission may be filed on the next federal workday. When the period for filing a submission is less than seven days, intermediate Saturdays, Sundays, and legal holidays are excluded. See 45 C.F.R. § 81.41. 

(c) All submissions to the Board should be addressed to:

Department of Health and Human Services
Departmental Appeals Board, MS 6127
Appellate Division, 330 Independence Ave., S.W.
Cohen Building, Room G-644
Washington, D.C.  20201

Faxes should be sent to (202) 565-0238. Do not fax a submission if it is over 10 pages. 

(d) Both parties should provide an original and two copies of all submissions to the Board. If your submission is faxed, the required two copies should be mailed to the Board. Include in your submission to the Board a statement that you have sent a copy to the opposing party (and to any amicuscuriae). A copy of the request for review should be sent to the opposing party (and to any amicuscuriae) by overnight mail.

(e) The parties should not submit to the Board materials already submitted to the ALJ since those materials will be transferred to the Board by the ALJ.

(f) A submission (including the request for review) may not incorporate by reference a brief or parts of a brief previously submitted to the ALJ.

(g) Certain written submissions are subject to page limits, unless the Board grants a motion to increase the number of pages: request for review – no more than 40 pages; response – no more than 40 pages. If typed, the submission should be double-spaced and the font size should be no less than 12. Cover letters and attachments are not included in the page count.

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Development of the Record on Appeal
(a) The request for review is referred to a panel of three Board members, one of whom presides over the development of the record on appeal. The Presiding Board Member is assisted by a staff attorney whom the parties may contact if they have any questions about case status or procedures.  

(b) The opponent of the party that requested review may file a response within 30 days after the mailing of the ALJ decision. See 45 C.F.R. § 81.103. 

(c) The Board expects a party needing an extension for filing the response (or any additional submissions required by the Board) to file a request for an extension before the original due date, to include a statement about whether the opposing party objects to the requested extension, and to state the reasons for the request.  The opposing party may file any objections to the requested extension within two days of its receipt of the request. The Board will grant an extension only for good cause shown. See 45 C.F.R. § 81.42.

(d) The Board may grant a request for oral argument if the Board determines that oral argument would facilitate its decision-making. A party wishing to appear before the Board to present oral argument should request such an opportunity in the request for review or the response and should state the purpose of the requested appearance. No written materials may be presented at oral argument unless filed with the Board at least seven days before the argument. Any such material must be limited to facts already in the record. See 45 C.F.R. § 81.105(b) and (c). Generally, any oral proceeding will be conducted by the Presiding Board Member by telephone conference rather than in person.

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Completion of the Review Process
(a) The Board may affirm, modify, or reverse the initial or recommended decision of the ALJ. The Board also may remand any case to the ALJ, with appropriate instructions. 

(b) The Board has adopted the following standard of review. The standard of review on a disputed factual issue is whether the ALJ decision is supported by substantial evidence in the record as a whole. The standard of review on a disputed legal issue is whether the ALJ decision is erroneous.

(c) The Board will review only those parts of the record before the ALJ which are cited by the parties or which the Board considers necessary to decide the appeal.  The Board need not consider issues not raised in the request for review, nor issues which could have been presented to the ALJ but were not.

(d) A party may request the Secretary to review the Board’s decision within 20 days of the mailing of the decision. The Secretary may grant or deny such request, in whole or in part, or serve notice of her intent to review the Board’s decision, in whole or in part, on her own motion. See 45 C.F.R. § 81.106. 

(e) In the absence of Secretarial review, the Board’s decision becomes the final decision of the Department after the Secretary transmits it to Congressional committees with the report required under section 602 of the Civil Rights Act of 1964 (42 U.S.C. § 2000d-1). See 45 C.F.R. §§ 80.10(e), 81.104. A failure by a party to request Secretarial review shall not be deemed a failure to exhaust administrative remedies for the purpose of obtaining judicial review. See 45 C.F.R. §§ 80.10(e), 81.107.

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Last Revised: November 12, 2010