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19. Alternatives to an oral hearing

An oral hearing (i.e., a hearing at which witnesses are called and testify) is not the only procedure that the ALJ may use to hear and decide a case.

  1. Summary judgment.
    1. Any party to a case may file a motion for summary judgment at any time prior to the scheduling of a hearing, or as directed by the ALJ. 
    2. Unless otherwise stated in the applicable regulations or ALJ order, the non-moving party may respond to a motion for summary judgment no later than 30 days following the date the motion for summary judgment was filed.  If a party moves for summary judgment simultaneously with its prehearing exchange, then the non-moving party’s response will be due at the same time its prehearing exchange or reply is due, as set forth in the ALJ’s prehearing order. 
    3. Matters presented to the ALJ for summary judgment will follow Rule 56 of the Federal Rules of Civil Procedure and federal case law related thereto or they will proceed in accordance with an ALJ order.
  2. Written direct testimony. 
    An ALJ may direct the parties to submit the written direct testimony of proposed witnesses in lieu of holding an oral hearing to obtain that direct testimony.  Any written direct testimony must be in the form of a sworn affidavit or declaration under penalty of perjury.  Written direct testimony must be submitted and properly labeled as a proposed exhibit with a party’s prehearing exchange.  If the ALJ orders written direct testimony, then an oral hearing would be convened only for the purposes of permitting cross-examination and re-direct testimony of the witnesses. 
  3. Waiver of Oral Hearing. 
    Parties may waive oral hearing, subject to the approval of the ALJ, and have the case decided on the written record.
  4. Decision on written submissions. 
    The ALJ may determine that an oral hearing is unnecessary and not in the overall interest of judicial economy if the parties do not identify any proposed witnesses, do not offer the written direct testimony of any witnesses when ordered to do so, or do not request an opportunity to cross-examine a witness whose written direct testimony has been offered.  Under these circumstances, the ALJ may decide the case based on the written record.
Content created by Departmental Appeals Board (DAB)
Content last reviewed on December 16, 2014