Sec. 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.

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    (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 Secs. 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 Sec. 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 Sec. 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]