4.10 - Summary Decision

(a) Generally

A party may file a motion for summary decision on all or any part of the complaint.

(b) Timing

A motion for summary decision may not be filed within either of the following time periods:

• if by the complainant, fewer than 30 days after receipt of the complaint by the respondent; or
• if by any party, within 20 days prior to any hearing.

(c) Responses

Within 10 days after service of a motion for summary decision, any other party may file a response to the motion. A party filing a response to a motion for summary decision may support or oppose the motion and may file a counter-motion for summary decision. The ALJ may extend the time for filing responses to motions for summary decision.

(d) Affidavits

A party filing a motion for summary decision or a response to a motion for summary decision may file affidavits in support of the motion or response. Any affidavits submitted with the motion must set forth such facts as would be admissible as evidence in OCAHO proceedings and must show affirmatively that the affiant is competent to testify to the matters stated therein.

(e) Arguments and Briefs

The ALJ may direct the parties to conduct oral argument or submit briefs related to a motion for summary decision.

(f) Standards for Summary Decision

The ALJ will enter a summary decision for either party if the pleadings, affidavits, material obtained by discovery or otherwise, or matters officially noticed show that there is no genuine issue of material fact and that a party is entitled to summary decision.

When a motion for summary decision is properly filed and supported, a party opposing the motion cannot rest upon the mere allegations or denials of their pleadings. The party’s response must set forth specific facts showing that there is a genuine issue of material fact for the hearing.

(g) Form of Summary Decision

Any final order entered as a summary decision by the ALJ will conform to the requirements for all final orders. See Chapter 7 (Final Orders and Attorney’s Fees); 28 C.F.R. § 68.52. A final order entered as a summary decision must include:

• findings of fact and conclusions of law (and the reasons therefor) on all issues presented; and
• any terms and conditions of the final order.

(h) Genuine Issue of Material Fact

If a genuine issue of material fact is raised, the ALJ will set the case for an evidentiary hearing.