(a) Any party may file a motion that the Board refer a case to an administrative law judge for a hearing. The motion must state:
- (1) What specific issues of material fact require a hearing;
- (2) What evidence concerning these issues must be presented by oral testimony, or be subject to cross-examination;
- (3) What witnesses need to be examined; and
- (4) What documentary evidence requires explanation, if any.
(b) In response to a motion under paragraph (a) of this section or on its own initiative, the Board may order a hearing if there are:
- (1) Any issues of material fact which, if proved, would alter the disposition of the appeal; or
- (2) Significant factual or legal issues remaining to be decided, and the record without a hearing would be insufficient for resolving them.
(c) If the Board orders a hearing, it must:
- (1) Specify the issues of fact upon which the hearing is to be held; and
(2) Request the administrative law judge to issue:
- (i) Proposed findings of fact on the issues presented at the hearing;
- (ii) A recommended decision that includes findings of fact and conclusions of law; or
- (iii) A decision that will be final for the Department unless a notice of appeal is filed in accordance with § 4.411.
(d) If the Board orders a hearing, it may do one or more of the following:
- (1) Suspend the effectiveness of the decision under review pending a final Departmental decision on the appeal if it finds good cause to do so;
- (2) Authorize the administrative law judge to specify additional issues; or
- (3) Authorize the parties to agree to additional issues that are material, with the approval of the administrative law judge.
- (e) The hearing will be conducted under §§ 4.430 to 4.438 and the general rules in subpart B of this part. Unless the Board orders otherwise, the administrative law judge may consider other relevant issues and evidence identified after referral of the case for a hearing.
[75 FR 64666, Oct. 20, 2010]