4.1127—Initial orders and decisions.
(a) Dismissal without prejudice.
In certain cases, appeals docketed before the Board are required to be placed in a suspense status and the Board is unable to proceed with the disposition thereof for reasons not within the control of the Board. Where the suspension has continued, or may continue, for an inordinate length of time, the board may, in its discretion, dismiss such an appeal from the docket without prejudice to its reinstatement when the cause of suspension has been removed. Unless either party or the Board acts within 3 years to reinstate any appeal dismissed without prejudice, the dismissal shall be deemed to have been made with prejudice.
(b) Dismissal for failure to prosecute or defend.
Whenever a record discloses the failure of either party to file documents required by these rules, respond to notices or correspondence from the Board, comply with orders of the Board, or otherwise indicates an intention not to continue the prosecution or defense of an appeal, the Board may issue an order requiring the offending party to show cause why the appeal should not be either dismissed or granted, as appropriate. If no cause is shown, the Board may take appropriate action.
An initial order or decision disposing of a case shall incorporate—
(a)
Findings of fact and conclusions of law and the basis and reasons therefore on all the material issues of fact, law, and discretion presented on the record; and
(a)
Any party may petition the Board to review an order or decision by an administrative law judge disposing of a civil penalty proceeding under § 4.1150.
(b)
A petition under this section shall be filed on or before 30 days from the date of receipt of the order or decision sought to be reviewed and the time for filing may not be extended.
(c)
A petitioner under this section shall list the alleged errors of the administrative law judge and shall attach a copy of the order or decision sought to be reviewed.
(d)
Any party may file with the Board a response to the petition for review within 10 days of receipt of a copy of such petition.
(e)
Not later than 30 days from the filing of a petition under this section, the Board shall grant or deny the petition in whole or in part.
(f)
If the petition is granted, the rules in §§ 4.1273 through 4.1277 are applicable and the Board shall use the point system and conversion table contained in 30 CFR part 723 or 845 in recalculating assessments; however, the Board shall have the same authority to waive the civil penalty formula as that granted to administrative law judges in § 4.1157(b)(1). If the petition is denied, the decision of the administrative law judge shall be final for the Department, subject to § 4.5.
[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 61511, Oct. 1, 2002]
(a)
Any aggrieved party may file a notice of appeal from an order or decision of an administrative law judge disposing of a proceeding under §§ 4.1160 through 4.1171, 4.1200 through 4.1205, 4.1260 through 4.1267, 4.1290 through 4.1296, and 4.1350 through 4.1356.
(b)
Except in an expedited review proceeding under § 4.1180, or in a suspension or revocation proceeding under § 4.1190, a notice of appeal shall be filed with the Board on or before 30 days from the date of receipt of the order or decision sought to be reviewed and the time for filing may not be extended.
[43 FR 34386, Aug. 3, 1978, as amended at 59 FR 1489, Jan. 11, 1994]
(a)
If a party has sought certification under § 4.1124, that party may petition the Board for permission to appeal from an interlocutory ruling by an administrative law judge.
(c)
If the correctness of the ruling sought to be reviewed involves a controlling issue of law the resolution of which will materially advance final disposition of the case, the Board may grant the petition.
(d)
Upon granting a petition under this section, the Board may dispense with briefing or issue a briefing schedule.
(e)
Unless the Board or the administrative law judge orders otherwise, an interlocutory appeal shall not operate as a stay of further proceedings before the judge.
(f)
In deciding an interlocutory appeal, the Board shall confine itself to the issue presented on appeal.
(h)
Upon affirmance, reversal or modification of the administrative law judge's interlocutory ruling or order, the jurisdiction of the Board shall terminate, and the case shall be remanded promptly to the administrative law judge for further proceedings.
(a)
Unless the Board orders otherwise, an appellant's brief is due on or before 30 days from the date of receipt of notice by the appellant that the Board has agreed to exercise discretionary review authority pursuant to § 4.1270 or a notice of appeal is filed.
(b)
If any appellant fails to file a timely brief, an appeal under this part may be subject to summary dismissal.
(c)
An appellant shall state specifically the rulings to which there is an objection, the reasons for such objections, and the relief requested. The failure to specify a ruling as objectionable may be deemed by the Board as a waiver of objection.
(d)
Unless the Board orders otherwise, within 20 days after service of appellant's brief, any other party to the proceeding may file a brief.
(e)
If any argument is based upon the evidence of record and there is a failure to include specific record citations, when available, the Board need not consider the arguments.
(g)
Unless the Board provides otherwise, appellant's brief shall not exceed 50 typed pages and an appellee's brief shall not exceed 25 typed pages.
The Board may remand cases if further proceedings are required.
The Board may adopt, affirm, modify, set aside, or reverse any finding of fact, conclusion of law, or order of the administrative law judge.
(a)
A party may move for reconsideration under § 4.21(d); however, the motion shall be filed with the Board within 30 days of the date of the decision.
(b)
The filing of a petition for reconsideration shall not stay the effect of any decision or order and shall not affect the finality of any decision or order for purposes of judicial review.
[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 61511, Oct. 1, 2002]