§ 1.251   Summary decision.

   (a)(1) Any party to an adjudicatory proceeding may move for summary decision
   of all or any of the issues set for hearing. The motion shall be filed at
   least 20 days prior to the date set for commencement of the hearing. The
   party filing the motion may not rest upon mere allegations or denials but
   must show, by affidavit or by other materials subject to consideration by
   the presiding officer, that there is no genuine issue of material fact for
   determination at the hearing.

   (2) With the permission of the presiding officer, or upon his invitation, a
   motion for summary decision may be filed at any time before or after the
   commencement of the hearing. No appeal from an order granting or denying a
   request  for permission to file a motion for summary decision shall be
   allowed. If the presiding officer authorizes a motion for summary decision
   after  the  commencement of the hearing, proposed findings of fact and
   conclusions of law on those issues which the moving party believes can be
   resolved shall be attached to the motion, and any other party may file
   findings of fact and conclusions of law as an attachment to pleadings filed
   by him pursuant to paragraph (b) of this section.

   (b) Within 14 days after a motion for summary decision is filed, any other
   party  to the proceeding may file an opposition or a countermotion for
   summary  decision.  A party opposing the motion may not rest upon mere
   allegations or denials but must show, by affidavit or by other materials
   subject to consideration by the presiding officer, that there is a genuine
   issue of material fact for determination at the hearing, that he cannot, for
   good cause, present by affidavit or otherwise facts essential to justify his
   opposition, or that summary decision is otherwise inappropriate.

   (c) Affidavits shall be made on personal knowledge, shall set forth such
   facts as would be admissible in evidence, and shall show affirmatively that
   the affiant is competent to testify to the matters stated therein.

   (d)  The  presiding officer may, in his discretion, set the matter for
   argument and call for the submission of proposed findings, conclusions,
   briefs or memoranda of law. The presiding officer, giving appropriate weight
   to the nature of the proceeding, the issue or issues, the proof, and to the
   need for cross-examination, may grant a motion for summary decision to the
   extent that the pleadings, affidavits, materials obtained by discovery or
   otherwise, admissions, or matters officially noticed, show that there is no
   genuine issue as to any material fact and that a party is otherwise entitled
   to summary decision. If it appears from the affidavits of a party opposing
   the motion that he cannot, for good cause shown, present by affidavit or
   otherwise facts essential to justify his opposition, the presiding officer
   may deny the motion, may order a continuance to permit affidavits to be
   obtained or discovery to be had, or make such other order as is just.

   (e) If all of the issues (or a dispositive issue) are determined on a motion
   for summary decision no hearing (or further hearing) will be held. The
   presiding officer will issue a Summary Decision, which is subject to appeal
   or review in the same manner as an Initial Decision. See § § 1.271 through
   1.282. If some of the issues only (including no dispositive issue) are
   decided on a motion for summary decision, or if the motion is denied, the
   presiding officer will issue a memorandum opinion and order, interlocutory
   in character, and the hearing will proceed on the remaining issues. Appeal
   from interlocutory rulings is governed by § 1.301.

   (f) The presiding officer may take any action deemed necessary to assure
   that summary decision procedures are not abused. He may rule in advance of a
   motion that the proceeding is not appropriate for summary decision, and may
   take such other measures as are necessary to prevent any unwarranted delay.

   (1) Should it appear to the satisfaction of the presiding officer that a
   motion for summary decision has been presented in bad faith or solely for
   the purpose of delay, or that such a motion is patently frivolous, he will
   enter a determination to that effect upon the record.

   (2) If, on making such determination, the presiding officer concludes that
   the facts warrant disciplinary action against an attorney, he will certify
   the matter to the Commission with his findings and recommendations, for
   consideration under § 1.24.

   (3) If, on making such determination, the presiding officer concludes that
   the facts warrant a finding of bad faith on the part of a party to the
   proceeding, he will certify the matter to the Commission, with his findings
   and recommendations, for a determination as to whether the facts warrant
   addition of an issue as to the character qualifications of that party.

   [ 37 FR 7507 , Apr. 15, 1972, as amended at  42 FR 56508 , Oct. 26, 1977]

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