Hearing examiner powers and conduct

A hearing must be presided over by a hearing examiner appointed under section 11 of the Administrative Procedure Act. See 1921.21(a) and the general rule in 1921.

The presiding hearing examiner is designated by either the Secretary or the Chief Hearing Examiner. See 1921.21(b).

Yes. A hearing examiner has authority to administer oaths and affirmations during hearings. See 1921.21(c)(1) and the broader powers list in 1921.21(c).

A hearing examiner may issue subpoenas upon proper application as provided in 1921.20. See 1921.21(c)(2).

• If you need a subpoena, file the proper application consistent with the rules in 1921.20.

A hearing examiner may rule upon offers of proof and receive relevant evidence to the extent necessary for a fair hearing. See 1921.21(c)(3) and 1921.21(c).

• The examiner decides what evidence is relevant and can admit or exclude offers of proof accordingly.

Yes. A hearing examiner may take or cause depositions to be taken and determine the scope of those depositions. See 1921.21(c)(4).

• If you request a deposition, the examiner controls how broad or narrow the deposition may be.

A hearing examiner may regulate the course of the hearing and the conduct of the parties and their counsel during the hearing. See 1921.21(c)(5).

• This includes enforcing order, setting time limits, and managing objections so the hearing proceeds fairly and efficiently.

Yes. A hearing examiner may hold conferences for settlement or simplification of issues when the parties consent. See 1921.21(c)(6).

• Conferences are typically used to narrow disputed issues or explore settlement, but they require the parties' consent.

Yes. A hearing examiner is empowered to consider and rule upon procedural requests that arise during the proceeding. See 1921.21(c)(7).

• Procedural requests include motions for extensions, scheduling, or protective orders, and the examiner's rulings help move the case forward.

A hearing examiner may make and file decisions that conform with the procedures in part 1921. See 1921.21(c)(8) and the overall 1921.

• The examiner's decision resolves the issues before the tribunal in accordance with these rules.

A hearing examiner may take any action authorized by the rules in part 1921 or actions that conform with the Administrative Procedure Act. See 1921.21(c)(9).

• This is a catch-all allowing examiners to use any procedural powers granted elsewhere in the part or by the APA to ensure a fair hearing.

No. A hearing examiner may not consult any person or party on a fact in issue unless all parties are given notice and an opportunity to participate. See 1921.21(d).

• If an examiner needs outside input on factual matters, the examiner must allow all parties to be present or otherwise participate.

If a hearing examiner believes they are disqualified from a proceeding, they must withdraw by placing notice of withdrawal on the record and directing it to the Chief Hearing Examiner. See 1921.21(e)(1).

• The withdrawal must be recorded on the official record and sent to the Chief Hearing Examiner.

A party who believes the hearing examiner is disqualified must file a motion to disqualify with the Chief Hearing Examiner supported by affidavits stating the grounds for disqualification; the Chief Hearing Examiner will rule on the motion. See 1921.21(e)(2).

• Include sworn affidavits that explain the facts supporting disqualification.
• File the motion with the Chief Hearing Examiner as required by the rule.

If there is contemptuous conduct, including a witness’s failure or refusal to appear or to answer a proper question, the hearing examiner may take any action reasonable under 41 CFR 50-203.8(l). See 1921.21(f).

• Reasonable actions may include ordering testimony, referring the matter for enforcement, or other remedies consistent with the cited regulation.

Yes. Hearing examiners must act in conformance with the Administrative Procedure Act as they exercise the powers granted in 1921.21(c)(9) and as required by the appointment rule in 1921.21(a).

• The APA shapes impartiality requirements, procedural fairness, and the scope of permissible examiner actions.

No. A hearing examiner may hold conferences for settlement or simplification of issues only with the consent of the parties. See 1921.21(c)(6).

• Examiners can facilitate settlement discussions but cannot impose settlements over a party’s objection.

Affidavits supporting a motion to disqualify must be filed with the Chief Hearing Examiner as required by 1921.21(e)(2).

• Make sure the affidavits set forth the alleged grounds for disqualification and follow any filing procedures in part 1921.