Under 1905.40(a), who may file a motion for summary decision and when must it be filed?
Any party to the proceeding may file a motion for summary decision, and it must be filed at least 20 days before the date set for the hearing. See 1905.40(a).
OSHA 1905.40
Motion for summary decision
Subpart D
Questions & Answers
Under 1905.40(a), can a motion for summary decision be supported by affidavits, and how long does an opposing party have to respond?
Yes — a motion may be filed with or without supporting affidavits, and any other party has 10 days after service of the motion to serve opposing affidavits or file a countermotion. See 1905.40(a).
Regarding filing and service, where must documents in support of or opposing a summary decision be filed and how must they be served?
Documents must be filed with the presiding hearing examiner, and copies must be served according to the service rules in 1905.21. See 1905.40(b) and 1905.21.
Under 1905.40(c), on what legal basis may the hearing examiner grant a motion for summary decision?
The hearing examiner may grant the motion if the pleadings, affidavits, discovery materials, or officially noticed matters show there is no genuine issue as to any material fact and that a party is entitled to summary decision. See 1905.40(c).
Under 1905.40(c), can a hearing examiner deny a motion if the moving party has blocked discovery?
Yes — the hearing examiner may deny the motion whenever the moving party has denied access to information by means of discovery to the opposing party. See 1905.40(c).
Under 1905.40(d), what must an affidavit contain to be considered in a summary decision proceeding?
An affidavit must present facts that would be admissible in a proceeding subject to 5 U.S.C. 556 and 557 and must affirmatively show that the affiant is competent to testify to the matters stated. See 1905.40(d).
Under 1905.40(d), how must a party opposing a properly supported motion for summary decision respond?
A party opposing such a motion may not simply rest on the allegations or denials in the pleadings; the response must set forth specific facts showing there is a genuine issue of material fact for hearing. See 1905.40(d).
Under 1905.40(e), what options does a hearing examiner have when the opposing party shows by affidavit they cannot present essential facts?
The hearing examiner may deny the motion, order a continuance to allow affidavits to be obtained or discovery to occur, or enter any other just order to permit the opposing party to present essential facts. See 1905.40(e).
Under 1905.40(f), is a denial of a motion for summary decision immediately appealable to the Assistant Secretary?
No — the denial is not subject to interlocutory appeal unless the hearing examiner first certifies in writing that the ruling involves an important question of law or policy with substantial grounds for difference of opinion and that immediate appeal may materially advance termination of the proceeding. See 1905.40(f) and 1905.40(f)(1)–1905.40(f)(2).
Under 1905.40(f)(2), does allowing an interlocutory appeal automatically stop the hearing before the hearing examiner?
No — the allowance of an interlocutory appeal does not stay the proceeding before the hearing examiner unless the Assistant Secretary orders a stay. See 1905.40(f)(2).
Under 1905.40(a), can a hearing examiner require oral argument or written briefs on a motion for summary decision?
Yes — the presiding hearing examiner may, in their discretion, set the matter for argument and call for submission of briefs on the motion. See 1905.40(a).
Under 1905.40(d), are hearsay statements automatically admissible in affidavits supporting or opposing summary decision?
No — affidavits must set forth facts that would be admissible in evidence under the procedures governed by 5 U.S.C. 556 and 557, so hearsay that would be inadmissible in such proceedings should be avoided. See 1905.40(d).
Under 1905.40(c)–(e), how should parties use discovery to oppose or support a motion for summary decision?
Discovery materials may be used to show there is or is not a genuine issue of material fact, but if a moving party has denied discovery to the opponent the hearing examiner may deny the motion or order more discovery before ruling. See 1905.40(c) and 1905.40(e).
Under 1905.40(a), can a party move for summary decision on only part of the proceeding?
Yes — a party may move for summary decision in his favor on all or any part of the proceeding, so partial summary decisions are permitted. See 1905.40(a).
Under Part 1905 and related LOIs, can an employer obtain interim relief while a permanent variance application is pending?
No — OSHA has stated that the statute authorizing permanent variances does not provide for interim relief, and the provisions of 29 CFR 1905.11 addressing interim relief are inoperative; employers should not expect interim variances while a permanent variance is under review. See 1905 and the LOI Variance request for safety valves (May 25, 1995).
Under Part 1905, what must an applicant show to obtain a permanent variance, as explained in OSHA letters about variances?
An applicant for a permanent variance must demonstrate that the alternative practices, conditions, or equipment proposed will provide employment and places of employment that are as safe and healthful as those required by the standard from which the variance is sought. See 1905 and the LOI Variance for crane load over people (March 24, 1999).
When a motion for summary decision is denied for part of the claims, what must the hearing examiner do to allow interlocutory appeal under 1905.40(f)?
The hearing examiner must certify in writing that (1) the ruling involves an important question of law or policy with substantial grounds for difference of opinion, and (2) an immediate appeal may materially advance the ultimate termination of the proceeding; only then can an interlocutory appeal be allowed. See 1905.40(f) and 1905.40(f)(1).
Under 1905.40(e), what should an opposing party show in their affidavit if they claim they cannot presently present essential facts?
They should state the reasons why they cannot present those facts by affidavit now and, where possible, identify the facts sought and why discovery or additional time is needed to obtain them so the hearing examiner can consider a continuance or other just order. See 1905.40(e).
Under 1905.40(c) and LOIs about variances, can a party rely on evidence obtained outside formal pleadings to support or oppose summary decision?
Yes — pleadings, affidavits, material obtained by discovery, or other materials officially noticed can be considered in deciding a summary decision, and parties considering variances should include their supporting evidence in the record. See 1905.40(c) and the LOI Variance for crane load over people (March 24, 1999).
Under 1905.40, what practical steps can a moving party take to avoid denial for discovery violations?
You should complete and comply with discovery obligations before filing and fully disclose or produce responsive materials so the hearing examiner cannot reasonably find you denied access to information; failing to do so risks denial under 1905.40(c).
Under 1905.40(a)–(d), what are concise best-practice tips for drafting affidavits used in summary decision motions?
Affidavits should contain admissible, specific, firsthand facts; state the affiant's competence to testify; cite documentary or discovery evidence where possible; avoid conclusory legal arguments; and be timed to comply with the 20-day (motion) and 10-day (opposition) schedules. See 1905.40(a) and 1905.40(d).