Summary decision procedures

Any party to the proceeding may move for summary decision on all or any part of the case. This is stated in 1955.21(a)(1).

• The motion may be made with or without supporting affidavits.
• Copies of the motion must be served on all parties while the filing is made with the administrative law judge.

An opposing party has 10 days after service of the motion to either serve opposing affidavits or file a cross motion for summary decision. See 1955.21(a)(1).

• The administrative law judge may also set the matter for argument or request briefs at their discretion.
• All filings are made with the judge and must be served on all parties.

The judge may grant the motion if the record shows there is no genuine issue as to any material fact and a party is entitled to summary decision. This standard is set out in 1955.21(a)(2).

• The judge may consider pleadings, affidavits, discovery materials, or matters officially noticed.
• If those materials show no factual dispute on a material issue, a summary decision is appropriate.

Affidavits must state facts that would be admissible in the hearing and show the affiant is competent to testify to those matters. See 1955.21(a)(2).

• Affidavits cannot be based on inadmissible hearsay unless admissibility is established; they should include facts, not conclusions.
• The opposing party cannot rely only on allegations or denials in their pleadings; they must present specific factual evidence.

If an opposing party merely repeats allegations or denials in the pleading, that is insufficient to defeat a properly supported motion for summary decision. This requirement is explained in 1955.21(a)(2).

• The response must set forth specific facts showing a genuine issue for hearing; general denials don't meet that burden.
• Failure to provide specific factual support can result in the judge granting summary decision.

The judge may deny the summary decision, order a continuance to allow affidavits, depositions, or discovery, or make any other just order. This authority is given in 1955.21(a)(3).

• A continuance lets the opposing party gather the necessary evidence before the judge decides the motion.
• The judge’s goal is to ensure fairness when essential facts cannot be presented immediately.

A denial is not appealable interlocutorily unless the judge certifies in writing that the ruling involves an important question of law or policy with substantial ground for difference of opinion and that an immediate appeal may materially advance termination of the proceeding. See 1955.21(b)(1).

• Both written certifications in 1955.21(b)(1)(i) and 1955.21(b)(1)(ii) must be made for interlocutory appeal to be allowed.
• Without this written certification, the party must wait for a final decision before appealing.

The judge must certify that the ruling (1) involves an important question of law or policy with substantial ground for difference of opinion, and (2) that an immediate appeal may materially advance the ultimate termination of the proceeding. These requirements are in 1955.21(b)(1)(i) and 1955.21(b)(1)(ii).

• Both certifications must be in writing for an interlocutory appeal to be permitted.
• The certifications are discretionary; the judge decides whether both conditions are met.

No, allowing an interlocutory appeal does not automatically stay the proceeding before the administrative law judge unless the Secretary orders a stay. This is stated in 1955.21(b)(2).

• Parties should not assume a stay; they must request one from the Secretary if needed.
• The judge’s certification for appeal is separate from any decision to pause the underlying proceedings.

Motions and any documents filed under 1955.21 must be filed with the administrative law judge and copies served on all parties. This filing and service requirement appears in 1955.21(a)(1).

• Always keep proof of service to show other parties received the filings.
• Failure to serve opposing parties can affect the judge’s handling of the motion.

Yes, a party may move for summary decision with or without supporting affidavits. The allowance for either is set out in 1955.21(a)(1).

• If no affidavits are filed, the judge may rely on pleadings, discovery, or other officially noticed matters to decide whether factual disputes exist.
• Opposing parties still have the 10-day period to respond as provided in the rule.

The administrative law judge may consider pleadings, affidavits, material obtained by discovery or otherwise, or matters officially noticed. This list is provided in 1955.21(a)(2).

• "Material obtained by discovery" can include depositions, interrogatory answers, and document productions.
• Matters officially noticed are facts the judge accepts without formal proof when appropriate.

Yes, the judge may, in their discretion, set the matter for argument and call for submission of briefs. That discretion is described in 1955.21(a)(1).

• Parties should be prepared to submit briefs or appear for argument if the judge requests them.
• Requesting briefs or oral argument helps the judge clarify legal or factual issues before ruling.

The opposing party must state reasons in their affidavits explaining why they cannot present essential facts by affidavit and what facts they expect to obtain. This procedure is described in 1955.21(a)(3).

• If justified, the judge may allow time for depositions, additional discovery, or affidavits.
• The affidavit should be specific about the steps needed and the expected evidence to justify a continuance.