Title 28—Judicial Administration--Volume 1
PART 18—OFFICE OF JUSTICE PROGRAMS HEARING AND APPEAL PROCEDURES
§ 18.1   Purpose.
The purpose of this regulation is to implement the hearing and appeal procedures available to State block or formula grant applicants or recipients and existing categorical grantees under sections 802 through 804 of title I of the Omnibus Crime Control and Safe Streets Act of 1968, as amended (Crime Control Act); sections 223(d), 226 and 228(e) of the Juvenile Justice and Delinquency Prevention Act of 1974, as amended (Juvenile Justice Act); and section 1407(F) of the Victims of Crime Act of 1984 (Victims of Crime Act).
§ 18.2   Application.
(a) These procedures apply to all appeals and hearings of State formula or block grant applicants or recipients and all existing recipients of categorical grants or cooperative agreements requested under section 802 of the Justice Assistance Act; sections 223(d), 226 and 228(e) of the Juvenile Justice Act; section 1407(F) of the Victims of Crime Act; the nondiscrimination provision of section 809 of the Crime Control Act, or the cross-referenced provisions of the Emergency Federal Law Enforcement Assistance Program. The method of notifying recipients of their non-compliance with section 809 (the nondiscrimination provison of the Crime Control Act and 28 CFR 42.208.
(b) These procedures do not apply to hearings requested under the Public Safety Officers' Benefits Act, 42 U.S.C. 3796, et seq. The hearing and appeal procedures available to claimants denied benefits under that Act are set forth in the appendix to 28 CFR part 32.
(c) These procedures do not apply to subgrant applicants or to recipients or third party beneficiaries of block or formula grants awarded to a State.
(d) These procedures do not apply to categorical grant applicants.
(e) These procedures do not apply to private sector/prison industry enhancement certification applicants; Regional Information Sharing Systems grant applicants; surplus Federal property certification applicants; or the State reimbursement program for Incarcerated Mariel-Cubans.
§ 18.3   Definitions.
(a) Block or formula grant applicant or recipient means an applicant for a grant awarded under the provisions of part D of the Crime Control Act; part B, subpart I of the Juvenile Justice Act; and sections 1403 and 1404 of the Victims of Crime Act.
(b) Categorical grant recipient means a public or private agency which has received a research, statistics, discretionary, technical assistance, special emphasis, training, concentration of Federal effort or other direct Federal assistance award of grant funds.
(c) Categorical grant applicant means a public or private agency which has applied for a research, statistics, discretionary, technical assistance, special emphasis, training, concentration of Federal effort or other direct Federal assistance award of grant funds.
(d) Grant includes cooperative agreements and means a direct award of financial assistance from OJP, BJA, NIJ, OJJDP, BJS or OVC.
(e) Crime Control Act means the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. 3701, et seq., as amended.
(f) Juvenile Justice Act means the Juvenile Justice and Delinquency Prevention Act of 1974, 42 U.S.C. 5601, et seq., as amended.
(g) Responsible agency means the organizational unit whose action is being appealed. This will be OJP, NIJ, BJS, OJJDP, BJA or OVC as appropriate. In hearings requested under the nondiscrimination provisions of the Crime Control Act, the responsible agency is OJP. In hearings requested to contest block or formula grant denials or terminations or categorical grant terminations, the responsible agency is the organizational unit that took the action at issue: OJP, BJA, OJJDP, NIJ, BJS or OVC.
(h) Responsible agency official means the Assistant Attorney General, Office of Justice Programs (OJP); the Director, Bureau of Justice Assistance (BJA); the Director, National Institute of Justice (NIJ); the Director, Bureau of Justice Statistics (BJS); the Director, Office for Victims of Crime (OVC); or the Administrator, Office of Juvenile Justice and Delinquency Prevention (OJJDP), as appropriate.
(i) Sub-grant applicant or recipient means the State agency, unit of local government or private non-profit organization which applies for, or receives, a grant from a State agency which administers a block or formula grant.
(j) Victims of Crime Act means the Victims of Crime Act of 1984, 42 U.S.C. 10601, et seq.
§ 18.4   Preliminary hearings.
(a) A grantee determined to be in noncompliance with the nondiscrimination provisions of the Crime Control Act, the Juvenile Justice Act or the Victims of Crime Act may request a preliminary hearing within 90 days after receipt of the notification of noncompliance.
(b) The preliminary hearing shall be initiated within 30 days of the request.
(c) The sole issue to be adjudicated by the hearing officer is whether the grantee is likely to prevail on the merits of the issue at a full hearing requested under 28 CFR 42.215. The grantee shall have the burden of persuading the hearing officer that the grantee is likely to prevail on the merits.
(d) The hearing officer may permit the parties to argue the issue by briefs, oral argument, or the presentation of testimony and exhibits. The hearing officer shall accept as evidence documents and other exhibits which can reasonably be authenticated and subjected to cross-examination at a full hearing.
(e) The hearing officer shall make the final decision on the issue within 15 days after the conclusion of the preliminary hearing.
§ 18.5   Hearings.
(a) Whenever the responsible agency official finds that there has been a substantial failure to comply with:
(1) The provisions of the Crime Control Act, the Juvenile Justice Act, or the Victims of Crime Act;
(2) Regulations promulgated by the responsible agency pursuant to appropriate statutory authority; or
(3) A plan or application submitted in accordance with the provisions of the Crime Control Act; the Juvenile Justice Act, the Victims of Crime Act, or the provisions of any other applicable Federal act, regulation or guideline;
(b) The notice shall contain:
(1) A statement of facts sufficient to inform the party of the reasons for the agency's proposed action;
(2) A statement of the nature of the action proposed to be taken; and
(3) A reference of the available appeal rights.
(c) If a block or formula grant applicant or recipient or a categorical grant recipient wishes to appeal any action covered by § 18.5(a) it may request a review of the issues in controversy within 30 days after notice of termination, noncompliance or denial by writing to:
(d) The request for a review shall contain:
(1) A factual statement sufficient to inform the responsible agency of the nature of the issues involved;
(2) A recital of the relief requested; and
(3) A request for an oral hearing, or in the alternative, an opportunity to submit only written information or argument to a hearing officer.
(e) If the responsible agency official determines that basis for the appeal in § 18.5(c) would not, if substantiated, establish a basis for grant award or continuation, the official may take final agency action on the appeal.
(f) The responsible agency or its representative may attempt to informally resolve a controversy arising under this section prior to initiating a hearing. Unless it is expressly agreed otherwise, an agreement to attempt informal resolution does not waive the right to the formal hearing.
(g) If the responsible agency or its representaive does not receive a request for a review within 30 days after notice has been sent, the opportunity for review is waived.
(h) All oral hearings requested under this section shall be held in Washington, DC, unless the hearing officer decides that the hearing could be conducted in a more expeditious, fair, or cost effective manner in another location.
(i) The responsible agency may suspend all or part of the grantee's funding pending the completion of the review process. If, at the conclusion of the review process, the responsible agency determines that the grantee is in compliance, it shall restore all previously suspended funding to the grantee.
(j) Any person may request the responsible agency official to determine whether a grantee has failed to comply with the terms of the statute under which the grant was awarded, agency regulations or the terms and conditions of the grant. The responsible agency may, in its discretion, conduct an investigation into the matter and, if warranted, make a determination of noncompliance. Only a grantee determined to be in noncompliance may request a compliance hearing.
§ 18.6   Conduct of hearings.
(a) A hearing officer appointed by the responsible agency official shall preside over the hearing. The hearing officer may be an administrative law judge, or an employee of the Department of Justice who was not involved in the administration, investigation or prosecution of the matter at issue. In hearings held under the nondiscrimination provisions of the Crime Control Act, the Juvenile Justice Act or the Victims of Crime Act, the hearing officer shall be an administrative law judge.
(b) If the hearing officer appointed is unacceptable to the appellant, it shall promptly inform the responsible agency official of the reasons for its position. The responsible agency official may select another hearing officer, or affirm the initial selection. In either case, the official shall inform the appellant of the reasons for the decision.
(c) The hearing officer shall have the following powers and duties:
(1) The power to hold hearings and regulate the course of the hearings and the conduct of the parties and their counsel;
(2) The power to sign and issue subpoenas and other orders requiring access to records;
(3) The power to administer oaths and affirmations;
(4) The power to examine witnesses;
(5) The power to rule on offers of proof and to receive evidence;
(6) The power to take depositions or to cause depositions to be taken;
(7) The power to hold conferences under § 18.6(d) for the settlement or simplification of the issues or for any other proper purpose;
(8) The power to consider and rule upon procedural requests and other motions, including motions for default;
(9) The duty to conduct fair and impartial hearings;
(10) The duty to maintain order;
(11) The duty to avoid unnecessary delay; and
(12) All powers and duties reasonably necessary to perform the functions enumerated in subsections (1)-(11).
(d) The hearing officer may call upon the parties to consider:
(1) Simplification or clarification of the issues;
(2) Stipulations, admissions, agreements on documents, or other understandings which will expedite conduct of the hearing;
(3) Limitation of the number of witnesses and of cumulative evidence;
(4) Settlement of all or part of the issues in dispute;
(5) Such other matters as may aid in the disposition of the case.
(e) All hearings under this part shall be public unless otherwise ordered by the responsible agency official.
(f) The hearing shall be conducted in conformity with sections 5-8 of the Administrative Procedure Act, 5 U.S.C. 554-557.
(g) The responsible agency shall have the burden of going forward with the evidence and shall generally present its evidence first.
(h) Technical rules of evidence shall not apply to hearings conducted pursuant to this part, but rules designed to assure production of the most credible evidence available and to subject testimony to cross-examination shall be applied where reasonably necessary by the hearing officer. The hearing officer may exclude irrelevant, immaterial, or unduly repetitious evidence. All documents and other evidence offered or taken for the record shall be open to examination by the parties, and opportunity shall be given to refute facts and arguments advanced on either side of the issues. A transcript shall be made of the oral evidence except to the extent the substance thereof is stipulated for the record.
(i) During the time a proceeding is before a hearing officer, all motions shall be addressed to the hearing officer and, if within his or her delegated authority, shall be ruled upon. Any motion upon which the hearing officer has no authority to rule shall be certified to the responsible agency official with a recommendation. The opposing party may answer within such time as may be designated by the hearing officer. The hearing officer may permit further replies by both parties.
§ 18.7   Discovery.
(a)(1) At any time after the initiation of the proceeding, the hearing officer may order, by subpoena if necessary, the taking of a deposition and the production of relevant documents by the deponent. Such order may be entered upon a showing that the deposition is necessary for discovery purposes, and that such discovery could not be accomplished by voluntary methods. Such an order may also be entered in extraordinary circumstances to preserve relevant evidence upon a showing that there is substantial reason to believe that such evidence could not be presented through a witness at the hearing. The decisive factors for a determination under this subsection, however, shall be fairness to all parties and the requirements of due process. Depositions may be taken orally or upon written questions before any person who has the power to administer oaths.
(2) Each deponent shall be duly sworn, and any adverse party shall have the right to cross-examine. Objections to questions or documents shall be in short form, stating the grounds upon which objections are made. The questions propounded and the answers thereto, together with all objections made (but not including argument or debate), shall be reduced to writing and certified by the officer before whom the deposition was taken. Thereafter, the officer shall forward the deposition and one (1) copy thereof to the party at whose instance the deposition was taken and shall forward one (1) copy to the representative of the other party.
(3) A deposition may be admitted into evidence as against any party who was present or represented at the taking of the deposition, or who had due notice thereof, if the hearing officer finds that there are sufficient reasons for admission and that the admission of the evidence would be fair to all parties and comport with the requirements of due process.
(b)(1) At any time after the initiation of the appeal, any party may serve upon any other party written interrogatories to be answered by the party served, or by an authorized representative of the party if the party served is a corporate or governmental entity. The party served shall furnish all information which is available to it.
(2) Each interrogatory shall be answered separately and fully in writing under oath by the party addressed or by an authorized representative. The time and manner of returning the interrogatory shall be prescribed by the hearing officer.
§ 18.8   Recommended decision.
Within a reasonable time after the close of the record of the hearings conducted under § 18.6, the hearing officer shall submit findings of fact, conclusions of law, and a recommended order to the responsible agency official, in writing. The hearing officer shall promptly make copies of these documents available to the parties.
§ 18.9   Final agency decision.
(a) In hearings conducted under § 18.6, the responsible agency official shall make the final agency decision, on the basis of the record, findings, conclusions, and recommendations presented by the hearing examiner.
(b) Prior to making a final decision, the responsible agency official shall give the parties an opportunity to submit the following, within thirty (30) days after the submission of the hearing officer's recommendations:
(1) Proposed findings and determinations;
(2) Exceptions to the recommendations of the hearing officer; and
(3) Supporting reasons for the exceptions or proposed findings or determinations; and
(4) Final briefs summarizing the arguments presented at the hearing.
(c) All determinations, findings and conclusions made by the responsible agency official shall be final and conclusive upon the responsible agency and all appellants.
§ 18.10   Rehearing.
(a) Any appellant dissatisfied with a final agency decision under § 18.9 may, within 30 days after the notice of the final agency decision is sent, request the responsible agency official to re-review the record, and present additional evidence which is appropriate and pertinent to support a different decision.
(b) If the responsible agency official finds that the appellant has:
(1) Presented evidence or argument which is sufficiently significant to require the conduct of further proceedings; or
(2) Shown some defect in the conduct of the initial hearing sufficient to cause substantial unfairness or an erroneous finding in that hearing, the responsible agency official may require that another oral hearing be held on one or more of the issues in controversy, or permit the dissatisfied party to present further evidence or argument in writing.
(c) Any rehearing ordered by the responsible agency official shall be conducted pursuant to §§ 18.5-18.8.