§  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.

   (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 § § 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 § 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 § 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]