10028 Federal Register / Vol. 87, No. 35 / Tuesday, February 22, 2022 / Rules and Regulations 

1Title X of the Dodd-Frank Wall Street Reform 

and Consumer Protection Act, Public Law 111–203, 

124 Stat. 1376, 1955–2113 (2010). 

2 12 U.S.C. 5563; see also section 1052(b), 12 

U.S.C. 5562(b) (addressing subpoenas). 

3 77 FR 39057 (June 29, 2012); see also 76 FR 

45337 (July 28, 2011) (interim final rule). 

4 79 FR 34622 (June 18, 2014); see also 78 FR 

59163 (Sept. 26, 2013) (interim final rule). 

5 12 U.S.C. 5563(e). As courts have recognized, 

the term ‘‘necessary’’ is ‘‘a ‘chameleon-like’ word’’ 

whose meaning can vary based on context; in the 

context of section 1053(e), the Bureau interprets 

‘‘ ‘necessary’ to mean ‘useful,’ ‘convenient’ or 

‘appropriate’ rather than ‘required’ or 

‘indispensable.’ ’’ Prometheus Radio Project v. FCC, 

373 F.3d 372, 391–94 (3d Cir. 2004). Section 1053 

sets out the fundamental features of Bureau 

adjudications, but it leaves many details open that 

can only be addressed through more specific 

Bureau procedures. In turn, those Bureau 

procedures could not be effective, or fair to the 

parties, if they were limited to only the most 

rudimentary steps that would be indispensable to 

holding a skeletal proceeding. Instead, the Bureau 

believes that Congress gave the Bureau room to 

adopt procedures that are useful in carrying out 

section 1053. 

6 12 U.S.C. 5512(b)(1). 

7 In the event of a conflict between the redline 

and the version in the Federal Register, the latter 

controls. 

BUREAU OF CONSUMER FINANCIAL 

PROTECTION 

12 CFR Part 1081 

[Docket No. CFPB–2022–0009] 

RIN 3170–AB08 

Rules of Practice for Adjudication 

Proceedings 

AGENCY: Bureau of Consumer Financial 

Protection. 

ACTION: Procedural rule; request for 

public comment. 

SUMMARY: The Consumer Financial 

Protection Bureau (Bureau) is issuing 

this procedural rule to update its Rules 

of Practice for Adjudication Proceedings 

(Rules of Practice). This rule expands 

the opportunities for parties in 

adjudication proceedings to conduct 

depositions. It also contains various 

amendments regarding timing and 

deadlines, the content of answers, the 

scheduling conference, bifurcation of 

proceedings, the process for deciding 

dispositive motions, and requirements 

for issue exhaustion, as well as other 

technical changes. Overall, the 

amendments will provide the parties 

with earlier access to relevant 

information and also foster greater 

procedural flexibility, which should 

ultimately contribute to more effective 

and efficient proceedings. The Bureau 

welcomes comments on this rule, and 

the Bureau may make further 

amendments if it receives comments 

warranting changes. 

DATES: This procedural rule is effective 

on February 22, 2022. Comments must 

be received on or before April 8, 2022. 

ADDRESSES: You may submit comments, 

identified by Docket No. CFPB–2022– 

0009 or RIN 3170–AB08, by any of the 

following methods: 

• Federal eRulemaking Portal: 

https://www.regulations.gov. Follow the 

instructions for submitting comments. 

• Email: 2022-Rules-of-Practice@

cfpb.gov. Include Docket No. CFPB– 

2022–0009 or RIN 3170–AB08 in the 

subject line of the message. 

• Mail/Hand Delivery/Courier: 

Comment Intake—Rules of Practice for 

Adjudication Proceedings, Consumer 

Financial Protection Bureau, 1700 G 

Street NW, Washington, DC 20552. 

Instructions: The Bureau encourages 

the early submission of comments. All 

submissions should include the agency 

name and docket number or Regulatory 

Information Number (RIN) for this 

rulemaking. Because paper mail in the 

Washington, DC area and at the Bureau 

is subject to delay, and in light of 

difficulties associated with mail and 

hand deliveries during the COVID–19 

pandemic, commenters are encouraged 

to submit comments electronically. In 

general, all comments received will be 

posted without change to https://

www.regulations.gov. In addition, once 

the Bureau’s headquarters reopens, 

comments will be available for public 

inspection and copying at 1700 G Street 

NW, Washington, DC 20552, on official 

business days between the hours of 10 

a.m. and 5 p.m. Eastern Time. At that 

time, you can make an appointment to 

inspect the documents by telephoning 

202–435–7275. 

All comments, including attachments 

and other supporting materials, will 

become part of the public record and 

subject to public disclosure. Proprietary 

information or sensitive personal 

information, such as account numbers 

or Social Security numbers, or names of 

other individuals, should not be 

included. Comments will not be edited 

to remove any identifying or contact 

information. 

FOR FURTHER INFORMATION CONTACT: 

Kevin E. Friedl or Christopher Shelton, 

Senior Counsels, Legal Division, at 202– 

435–7700. If you require this document 

in an alternative electronic format, 

please contact CFPB_Accessibility@

cfpb.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Consumer Financial Protection 

Act of 2010 (CFPA) establishes the 

Bureau as an independent bureau in the 

Federal Reserve System and assigns the 

Bureau a range of rulemaking, 

enforcement, supervision, and other 

authorities.1 The Bureau’s enforcement 

powers under the CFPA include section 

1053, which authorizes the Bureau to 

conduct adjudication proceedings.2 The 

Bureau finalized the original version of 

the Rules of Practice, which govern 

adjudication proceedings, in 2012 (2012 

Rule).3 The Bureau later finalized 

certain amendments, which addressed 

the issuance of temporary cease-anddesist orders, in 2014 (2014 Rule).4

II. Legal Authority 

Section 1053(e) of the CFPA provides 

that the Bureau ‘‘shall prescribe rules 

establishing such procedures as may be 

necessary to carry out’’ section 1053.5

Additionally, section 1022(b)(1) 

provides, in relevant part, that the 

Bureau’s Director ‘‘may prescribe rules 

. . . as may be necessary or appropriate 

to enable the Bureau to administer and 

carry out the purposes and objectives of 

the Federal consumer financial laws, 

and to prevent evasions thereof.’’ 6 The 

Bureau issues this rule based on its 

authority under section 1053(e) and 

section 1022(b)(1). 

III. Section-by-Section Analysis 

Overview 

The Bureau is republishing the entire 

Rules of Practice in the Code of Federal 

Regulations. The changes that the 

Bureau is making in this rule, compared 

to the previous version of the Rules of 

Practice, are summarized in the sectionby-section analysis below. Also, the 

Bureau will include an unofficial, 

informal redline of the changes in the 

docket for this rule on https://

www.regulations.gov in order to assist 

stakeholders’ review.7

1081.114(a) Construction of Time Limits 

The Bureau is amending 12 CFR 

1081.114(a) (Rule 114(a)) to simplify 

and clarify the provisions describing 

how deadlines are computed. It governs 

the computation of any time limit in 

this part, by order of the Director or the 

hearing officer, or by any applicable 

statute. These amendments are based on 

similar amendments made to Federal 

Rule of Civil Procedure 6(a) in 2009. 

Under the previous Rule 114(a), a 

period of ten days or less was computed 

differently than a longer period. 

Intermediate Saturdays, Sundays, and 

Federal holidays were included in 

computing longer periods, but excluded 

in computing shorter periods. The 

previous Rule 114(a) thus made 

computing deadlines unnecessarily 

complicated and led to counterintuitive 


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8See, e.g., amended 12 CFR 1081.105(c)(2), 

1081.200(c), 1081.202(a). 9 81 FR 50211, 50219–20 (July 29, 2016). 10 77 FR 39057, 39072 (June 29, 2012). 

results. For example, a 10-day period 

and a 14-day period that started on the 

same day usually ended on the same 

day—and the 10-day period not 

infrequently ended later than the 14-day 

period. 

Under the amended Rule 114(a), all 

deadlines stated in days are computed 

in the same way. The day of the event 

that triggers the deadline is not counted. 

All other days—including intermediate 

Saturdays, Sundays, and Federal 

holidays—are counted, with one 

exception: If the period ends on a 

Saturday, Sunday, or Federal holiday as 

set forth in 5 U.S.C. 6103(a), then the 

deadline falls on the next day that is not 

a Saturday, Sunday, or Federal holiday. 

Periods previously expressed as ten 

days or less will be shortened as a 

practical matter by the decision to count 

intermediate Saturdays, Sundays, and 

legal holidays in computing all periods. 

The Bureau is lengthening many of 

those periods to compensate for the 

change.8

The Bureau is also adjusting most of 

the 10-day periods in the Rules of 

Practice to account for the change in 

computation method, by setting 14 days 

as the new period. A 14-day period 

corresponds to the most frequent result 

of a 10-day period under the previous 

computation method—two Saturdays 

and two Sundays were excluded, giving 

14 days in all. A 14-day period has an 

additional advantage. The final day falls 

on the same day of the week as the 

event that triggered the period—the 14th 

day after a Monday, for example, is a 

Monday. This advantage of using weeklong periods also led in many cases to 

adopting 7-day periods to replace many 

of the periods with periods using 7-day 

increments. 

1081.115(b) Considerations in 

Determining Whether To Extend Time 

Limits or Grant Postponements, 

Adjournments and Extensions 

Previously, 12 CFR 1081.115(b) (Rule 

115(b)) stated that the Director or the 

hearing officer should adhere to a policy 

of strongly disfavoring granting motions 

for extensions of time, except in 

circumstances where the moving party 

makes a strong showing that the denial 

of the motion would substantially 

prejudice its case. It then listed factors 

that the Director or hearing officer will 

consider. The Bureau is simplifying this 

provision to state only that such 

motions are generally disfavored, while 

retaining the same list of factors that the 

Director or hearing officer will consider. 

The Bureau continues to believe that 

extensions of time should generally be 

disfavored, but it believes that relatively 

more flexibility than the previous 

language provided may be appropriate. 

1081.201(b) Content of Answer 

The previous 12 CFR 1081.201(b) 

(Rule 201(b)) required a respondent to 

file an answer containing, among other 

things, any affirmative defense. The 

Bureau is amending Rule 201(b) to make 

clear that this includes any avoidance, 

including those that may not be 

considered ‘‘affirmative defenses.’’ As 

the Securities and Exchange 

Commission (SEC) explained when it 

adopted a similar amendment to its 

rules of practice, timely assertion of 

such theories should help focus the use 

of prehearing discovery, foster early 

identification of key issues and, as a 

result, make the discovery process more 

effective and efficient.9

1081.203 Scheduling Conference 

The provision at 12 CFR 1081.203 

(Rule 203) requires a scheduling 

conference with all parties and the 

hearing officer for the purpose of 

scheduling the course and conduct of 

the proceeding. Before that scheduling 

conference, Rule 203 requires the 

parties to meet to discuss the nature and 

basis of their claims and defenses, the 

possibilities for settlement, as well as 

the matters that will be discussed with 

the hearing officer at the scheduling 

conference. The Bureau is making 

certain changes to Rule 203, including 

renumbering of provisions. This 

discussion cites the provisions as 

renumbered. 

First, the Bureau is amending Rule 

203(b) to require that the parties 

exchange a scheduling conference 

disclosure after that initial meeting, but 

before the scheduling conference. That 

disclosure must include a factual 

summary of the case, a summary of all 

factual and legal issues in dispute, and 

a summary of all factual and legal bases 

supporting each defense. The disclosure 

must also include information about the 

evidence that the party may present at 

the hearing, other than solely for 

impeachment, including (i) the contact 

information for anticipated witnesses, as 

well as a summary of the witness’s 

anticipated testimony; and (ii) the 

identification of documents or other 

exhibits. 

The Bureau is also adopting certain 

amendments to Rules 203(c), (d), and 

(e). Amended Rule 203(c) provides that 

a party must supplement or correct the 

scheduling conference disclosure in a 

timely manner if the party acquires 

other information that it intends to rely 

upon at a hearing. Amended Rule 203(d) 

provides a harmless-error rule for 

failures to disclose in scheduling 

conference disclosures. Finally, the 

Bureau is adopting certain minor 

clarifications to Rule 203(e), which 

governs the scheduling conference 

itself. 

These amendments to Rule 203 are 

intended to foster early identification of 

key issues and, as a result, make the 

adjudication process, including any 

discovery process, more effective and 

efficient. They are also intended to, 

early in the process, determine whether 

the parties intend to seek the issuance 

of subpoenas or file dispositive motions 

so that, with input from the parties, the 

hearing officer can set an appropriate 

hearing date, taking into account the 

time necessary to complete the 

discovery or decide the anticipated 

dispositive motions. 

The Bureau recognizes that, in most 

cases, the deadline for making the 

scheduling conference disclosure will 

also be the date the Office of 

Enforcement must commence making 

documents available to the respondent 

under 12 CFR 1081.206 (Rule 206). As 

the Bureau explained in the preamble to 

the 2012 Rule, it is the Bureau’s 

expectation that the Office of 

Enforcement will make the material 

available as soon as possible in every 

case.10 And even in cases where the 

Office of Enforcement cannot make 

those documents available within that 

time, a respondent may request a later 

hearing date and can move the hearing 

officer to alter the dates for either the 

scheduling conference or the scheduling 

conference disclosure. 

1081.204(c) Bifurcation 

The Bureau is adding a new 12 CFR 

1081.204(c) (Rule 204(c)) to address 

bifurcation of proceedings. It provides 

that the Director may order that the 

proceeding be divided into two or more 

stages, if the Director determines that it 

would promote efficiency in the 

proceeding or for other good cause. For 

example, the Director may order that the 

proceeding have two stages, so that at 

the conclusion of the first stage the 

Director issues a decision on whether 

there have been violations of law and at 

the conclusion of the second stage the 

Director issues a final decision and 

order, including with respect to any 

remedies. The Director may make an 

order under Rule 204(c) either on the 

motion of a party or on the Director’s 

own motion after inviting submissions 

by the parties. The Director may 


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10030 Federal Register / Vol. 87, No. 35 / Tuesday, February 22, 2022 / Rules and Regulations 

11The new provision also clarifies that only the 

decision and order of the Director after the final 

stage, and not a decision of the Director after an 

earlier stage, will be a final decision and order for 

purposes of specified provisions of the Rules of 

Practice and section 1053(b) of the CFPA. 

12 81 FR 50211, 50222 (July 29, 2016). 13 77 FR 39057, 39070 (June 29, 2012). 

14 77 FR 39057, 39058 (June 29, 2012). 

15 81 FR 50211 (July 29, 2016). 

16 Id. at 50216. 

include, in that order or in later orders, 

modifications to the procedures in the 

Rules of Practice in order to effectuate 

an efficient division into stages, or the 

Director may assign such authority to 

the hearing officer.11

Bifurcation is a standard casemanagement tool available to Federal 

district courts. The new Rule 204(c) will 

provide the Bureau with the flexibility 

to use bifurcation in adjudication 

proceedings, if warranted by particular 

cases, and to tailor its procedures to the 

circumstances of those bifurcated cases. 

1081.206 Availability of Documents 

for Inspection and Copying 

Rule 206 provides that the Bureau’s 

Office of Enforcement will make certain 

documents available for inspection and 

copying. The Bureau is amending Rule 

206 to clarify certain categories of 

documents that may be withheld or 

information that may be redacted, as 

well as to make clear that the Office of 

Enforcement may produce those 

documents in an electronic format 

rather than making the documents 

available for physical inspection and 

copying. 

The clarifying amendments regarding 

documents that may be withheld or 

information that may be redacted are 

based on amendments the SEC recently 

made to its rules of practice. Amended 

Rule 206(b)(1)(iv) makes clear that the 

Office of Enforcement need not produce 

a document that reflects only settlement 

negotiations between the Office of 

Enforcement and a person or entity who 

is not a current respondent in the 

proceeding. As the SEC explained when 

it amended its rules of practice, this 

amendment is consistent with the 

important public policy interest in 

candid settlement negotiations, will 

help to preserve the confidentiality of 

settlement discussions, and help 

safeguard the privacy of potential 

respondents with whom the Office of 

Enforcement has negotiated.12 Amended 

Rule 206 also permits the Office of 

Enforcement to redact from the 

documents it produces information it is 

not obligated to produce (Rule 

206(b)(2)(i)) and sensitive personal 

information about persons other than 

the respondent (Rule 206(b)(2)(ii)). 

These amendments also track the SEC’s 

recent amendments to its rules of 

practice and are designed to provide 

further protections for sensitive 

personal information and to permit the 

redaction of information that is not 

required to be produced in the first 

place. 

The Bureau is also amending Rule 

206(d) to change the date by which the 

Office of Enforcement must commence 

making documents available to the 

respondent, changing that date from 

seven days after service of the notice of 

charges to fourteen. This clarification 

harmonizes these timing provisions 

with 12 CFR 1081.119 (Rule 119), which 

protects the rights of third parties who 

have produced documents under a 

claim of confidentiality. The previous 

Rule 119 required a party to give a third 

party notice at least ten days prior to the 

disclosure of information obtained from 

that third party subject to a claim of 

confidentiality. Under the previous 

Rules of Practice, that meant that the 

Office of Enforcement had to provide 

notice to third parties before it 

commenced the adjudication 

proceeding because the Office of 

Enforcement had to give those third 

parties at least ten days’ notice before 

producing the documents and the Office 

of Enforcement had to commence 

making documents available seven days 

after filing. Rule 119 is amended to 

require parties to notify the third parties 

at least seven days prior to the 

disclosure of information the third party 

produced under a claim of 

confidentiality. Together, Rules 119 and 

206 now require the Office of 

Enforcement to commence making 

documents available fourteen days after 

service of the notice of charges and to 

notify third parties who produced 

documents subject to that disclosure 

requirement under a claim of 

confidentiality at least seven days before 

producing those documents. 

The previous Rule 206(e) provided 

that the Office of Enforcement must 

make the documents available for 

inspection and copying at the Bureau’s 

office where they are ordinarily 

maintained. As the preamble to the 2012 

Rule explained, the Bureau anticipated 

providing electronic copies of 

documents to respondents in most 

cases.13 The Bureau is amending Rule 

206(e) to recognize this practice and 

expressly provide that the Office of 

Enforcement may produce those 

documents in an electronic format 

rather than making the documents 

available for inspection and copying. 

Under the amended Rule 206(e), the 

Office of Enforcement retains the 

discretion to make documents available 

for inspection and copying. 

1081.208 Subpoenas and 1081.209

Depositions 

The Bureau is making certain 

interrelated changes to 12 CFR 1081.208 

and 1081.209 (Rules 208 and 209). 

Rule 209 previously permitted parties 

to take depositions only if the witness 

was unable to attend or testify at a 

hearing. As the Bureau noted in the 

preamble to the 2012 Rule, the Bureau’s 

Rules of Practice were modeled in part 

on the approach that the SEC took in its 

rules of practice.14 Since that time, the 

SEC has amended its rules of practice to 

permit depositions.15

The Bureau is now amending Rule 

209 to permit discovery depositions in 

addition to depositions of unavailable 

witnesses. The amendments to Rule 209 

allow respondents and the Office of 

Enforcement to take depositions by oral 

examination pursuant to subpoena. The 

amended Rule 209 also permits parties 

to take a deposition by written questions 

upon motion and pursuant to a 

subpoena. If a proceeding involves a 

single respondent, the amendment 

allows the respondent and the Office of 

Enforcement to each depose up to three 

persons (i.e., up to three depositions per 

side). If a proceeding involves multiple 

respondents, the amendment allows 

respondents to collectively depose up to 

five persons and the Office of 

Enforcement to depose up to five 

persons (i.e., up to five depositions per 

side). This approach is consistent with 

the approach the SEC adopted when it 

amended its rules of practice to allow 

depositions.16 A party may also move to 

take additional depositions, though that 

motion must be filed no later than 28 

days prior to the hearing date. Amended 

Rule 209 also sets forth the procedure 

for requesting to taking additional 

depositions. 

The above amendments to Rule 209 

are intended to provide parties with 

further opportunities to develop 

arguments and defenses through 

deposition discovery, which may 

narrow the facts and issues to be 

explored during the hearing. Allowing 

depositions should facilitate the 

development of the case during the 

prehearing stage, which may result in 

more focused prehearing preparations, 

with issues distilled for the hearing and 

post-hearing briefing. 

Under amendments to Rules 208 and 

209, a party must request that the 

hearing officer issue a subpoena for the 

deposition. If the subpoena is issued, 

the party must also serve written notice 

of the deposition. The amendments to 


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Federal Register / Vol. 87, No. 35 / Tuesday, February 22, 2022 / Rules and Regulations 10031 

17Under amended Rule 209, this type of proposed 

deponent must have witnessed or participated in 

any event, transaction, occurrence, act, or omission 

that forms the basis for any claim asserted by the 

Office of Enforcement, any defense, or anything else 

required to be included in an answer pursuant to 

Rule 201(b), by any respondent in the proceeding 

(this excludes a proposed deponent whose only 

knowledge of these matters arises from the Bureau’s 

investigation, the Bureau’s examination, or the 

proceeding). 

18This excludes Bureau officers or personnel who 

have custody of documents or data that was 

produced from the Office of Enforcement to the 

respondent. In most circumstances, the Bureau 

officers or personnel were not the original 

custodian of the documents. Where the Bureau was 

the original custodian of the document—for 

example, a report of examination under 12 CFR 

1081.303(d)(2) (Rule 303(d)(2))—there is no need to 

depose a document custodian as that report is 

admissible without a sponsoring witness. 

19 81 FR 50211, 50215–17 (July 29, 2016). 

20 12 U.S.C. 5563(b). 

21 77 FR 39057, 39076 (June 29, 2012). 

22Rule 208(l) goes on to specify that the hearing 

officer will decide whether to grant such a request. 

If the request is granted, the hearing officer will set 

a deadline for the completion of discovery and 

schedule the specific date of the hearing, in 

consultation with the parties. Rule 208(l) does not 

apply to a subpoena for the attendance and 

testimony of a witness at the hearing or a subpoena 

to depose a witness unavailable for the hearing. 

Rule 208, governing the issuance of 

subpoenas, correspond with the new 

provisions on depositions in Rule 209 

by defining the standards for issuing a 

subpoena requiring the deposition of a 

witness. The amendment adds a new 

Rule 208(e) governing the standard for 

issuance of subpoenas seeking 

depositions upon oral examination. 

Under the amendment, the hearing 

officer will promptly issue any 

subpoena requiring the attendance and 

testimony of witnesses at a deposition 

only if the subpoena complies with Rule 

209 and if the proposed deponent: (i) Is 

a witness identified in the other party’s 

scheduling conference disclosure now 

required under revised Rule 203(b); (ii) 

a fact witness; 17 (iii) is a designated 

expert witness under 12 CFR 

1081.210(b) (Rule 210(b)); or (iv) a 

document custodian.18 Fact witnesses, 

expert witnesses, and document 

custodians, whose knowledge of 

relevant facts does not arise from the 

Bureau’s investigation, the Bureau’s 

examination, or the proceeding, are the 

individuals most likely to have 

information relevant to the issues to be 

decided. Because the Bureau will also 

disclose to respondents the documents 

described in Rule 206 as well as witness 

statements upon request under 12 CFR 

1081.207 (Rule 207), deposing Bureau 

staff whose only knowledge of relevant 

facts arose from the investigation, 

examination, or proceeding is unlikely 

to shed light on the events underlying 

the proceeding and will likely lead to 

impermissible inquiries into the mental 

processes and strategies of Bureau 

attorneys or staff under their direction. 

Not only does this implicate privileges 

or the work-product doctrine, but 

deposition of Bureau staff in this 

manner can be burdensome and 

disruptive because it embroils the 

parties in controversies over the scope 

of those protections. 

The amendments to Rule 208 also 

provide a process for the hearing officer 

to request more information about the 

relevance or scope of the testimony 

sought and to refuse to issue the 

subpoena or issue it only upon 

conditions. This provision is intended 

to foster use of depositions where 

appropriate and encourage meaningful 

discovery, within the limits of the 

number of depositions provided per 

side. This provision should encourage 

parties to focus any requested 

depositions on those persons most 

likely to yield relevant information and 

thereby make efficient use of time 

during the prehearing stage. 

Rule 208 previously permitted parties 

to request issuance of subpoenas 

requiring the attendance and testimony 

of witnesses at the designated time and 

place of the hearing, for the production 

of documentary or other tangible 

evidence, or for the deposition of a 

witness who will be unavailable for the 

hearing. The Rules of Practice also 

permitted the deposition of expert 

witnesses under Rule 210. The 

amendments keep those provisions, 

making conforming amendments to 

account for the new provision 

permitting discovery depositions. A 

subpoena seeking the deposition of a 

witness who will be unavailable for the 

hearing does not count against the 

number of depositions permitted under 

Rule 209(a). 

These new and amended provisions 

expand the available legitimate 

mechanisms respondents may use to 

conduct discovery, providing 

respondents a clearer understanding of 

the bases of the Bureau’s factual 

contentions while reducing the costs 

and burdens of hearings on all parties. 

Additionally, the grounds for a hearing 

officer denying a request to issue a 

subpoena under Rule 208—that it is 

‘‘unreasonable, oppressive, excessive in 

scope, or unduly burdensome’’—are 

consistent with well-established judicial 

standards, and hearing officers will, in 

their consideration of requests for 

subpoenas, act diligently and in good 

faith to implement the standards for 

refusing or modifying deposition 

subpoenas set forth under the amended 

rule. These combined changes are 

overall less burdensome yet are equally 

effective in the resolution of the case on 

the merits. 

Amended Rule 209 also adds 

procedures governing the taking of 

depositions, including depositions by 

written question. In general, once a 

subpoena for a deposition is issued, the 

party seeking the deposition must serve 

written notice of the deposition. That 

notice must include several things, 

including the time and place of the 

deposition, the identity of the deponent, 

and the method for recording the 

deposition. These and other procedural 

provisions track the SEC’s recent 

amendments to its rules of practice.19

They govern the process for seeking 

depositions by written questions and 

the taking of all depositions, including 

setting forth the deposition officer’s 

duties, the process for stating objections, 

motions to terminate or limit the 

deposition, and the process for 

finalizing a transcript. 

Finally, the Bureau is adding Rule 

208(l), which addresses the relationship 

of subpoenas to the scheduling of the 

hearing. In the 2012 Rule, one reason 

why the Bureau did not—as a general 

matter—permit discovery depositions 

was because the additional time 

required for depositions before the 

hearing could be in tension with the 

statutory timetable for hearings under 

section 1053(b) of the CFPA.20 As the 

preamble to the 2012 Rule noted, 

prehearing depositions would present 

extreme scheduling difficulties in those 

cases in which respondents did not 

request hearing dates outside the default 

timeframe under section 1053(b), which 

provides for the hearing to be held 30 

to 60 days after service of the notice of 

charges, unless an earlier or a later date 

is set by the Bureau, at the request of 

any party so served.21 The new Rule 

208(l) addresses this scheduling 

obstacle to depositions and other 

discovery, by specifying that a 

respondent’s request for issuance of a 

subpoena constitutes a request that the 

hearing not be held until after a 

reasonable period, determined by the 

hearing officer, for the completion of 

discovery.22 This is because a request 

for discovery reasonably entails a delay 

for the discovery process to be 

completed. 

Given this resolution of the 2012 

Rule’s scheduling concern, the Bureau 

believes that the benefits of discovery 

depositions under the amended Rule 

209, as described earlier, outweigh other 

concerns expressed in the preamble to 

the 2012 Rule about the time, expense, 


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10032 Federal Register / Vol. 87, No. 35 / Tuesday, February 22, 2022 / Rules and Regulations 

23 77 FR 39057, 39076 (June 29, 2012). 

24Rule 212(g) goes on to state that the hearing 

officer will decide whether to grant such a request. 

If the request is granted, the hearing officer will 

schedule the specific date of the hearing, in 

consultation with the parties. 

25 12 CFR 1081.211(a). 

26 16 CFR 3.22(a). This FTC provision does not 

specifically discuss a situation where the agency 

head rules on the motion in part and refers it in 

part. The Bureau has included language in Rule 

213(a) to specifically discuss this situation. 

27 74 FR 1803, 1809–10 (Jan. 13, 2009). 

28 Id. at 1809–10. 

29 16 CFR 3.22(a). This FTC provision includes an 

interval of 45 days, but as discussed elsewhere in 

this section-by-section analysis the Bureau is 

generally adopting time intervals in increments of 

seven days. 

30See 12 CFR 1081.115 (change of time limits). 

31Carr v. Saul, 141 S. Ct. 1352, 1358 (2021). 

32 Id. 

and risk of collateral disputes arising 

from depositions.23

1081.211 Interlocutory Review 

The provision at 12 CFR 1081.211 

(Rule 211) governs interlocutory review. 

Rule 211(e) previously included 

language that stated that interlocutory 

review is disfavored, and that the 

Director will grant a petition to review 

a hearing officer’s ruling or order prior 

to the Director’s consideration of a 

recommended decision only in 

extraordinary circumstances. The 

Bureau is simplifying this language to 

state only that interlocutory review is 

generally disfavored. This is because, 

although interlocutory review remains 

disfavored, the Bureau believes that 

there can be situations where 

interlocutory review can contribute to 

the efficiency of proceedings short of 

extraordinary circumstances. 

1081.212 Dispositive Motions 

The Bureau is relocating the previous 

12 CFR 1081.212(g) and (h) (Rule 212(g) 

and (h)), which addressed oral argument 

and decisions on dispositive motions, 

respectively, to form part of 12 CFR 

1081.213 (Rule 213). Rule 213 is 

discussed in the next section of this 

section-by-section analysis. 

Additionally, the Bureau is adopting 

a new Rule 212(g) to address the 

relationship of dispositive motions to 

the scheduling of the hearing, which is 

codified as Rule 212(g) but unrelated to 

the previous Rule 212(g). It is analogous 

to Rule 208(l), discussed above. It 

specifies that a respondent’s filing of a 

dispositive motion constitutes a request 

that the hearing not be held until after 

the motion is resolved.24 This is because 

the filing of a dispositive motion, whose 

purpose is to avoid or limit the need for 

a hearing, reasonably entails a delay of 

that hearing so that the motion can be 

resolved. 

1081.213 Rulings on Dispositive 

Motions 

The Bureau is amending Rule 213 to 

adopt a new procedure for rulings on 

dispositive motions, based on a 

procedure used by the Federal Trade 

Commission (FTC). The Bureau is also 

making related technical changes for 

clarity. 

Under the Bureau’s existing Rules of 

Practice, the Director ‘‘may, at any time, 

direct that any matter be submitted to 

him or her for review.’’ 25 However, 

there was previously no specific 

procedure for the Director to exercise 

this discretion in the context of 

dispositive motions. 

The new Rule 213(a) provides that the 

Director will either rule on a dispositive 

motion, refer the motion to the hearing 

officer, or rule on the motion in part and 

refer it in part. This is based on a similar 

process under the FTC’s rules of 

practice.26 The Bureau agrees with the 

reasoning of the FTC when it adopted 

this process a decade ago. The FTC 

explained that the head of the agency 

has authority and expertise to rule 

initially on dispositive motions, and 

doing so can improve the quality of 

decision-making and expedite the 

proceeding.27 As the FTC further noted, 

an erroneous decision by an 

administrative law judge on a 

dispositive motion may lead to 

unnecessary briefing, hearing, and 

reversal, resulting in substantial costs 

and delay to the litigants.28 Adopting 

this process will give the Director the 

flexibility to decide whether a given 

dispositive motion would be most 

efficiently addressed by the hearing 

officer, with ultimate review by the 

Director, or simply by the Director. 

The new Rule 213(b) provides that, if 

the Director rules on the motion, the 

Director must do so within 42 days 

following the expiration of the time for 

filing all responses and replies, unless 

there is good cause to extend the 

deadline. If the Director refers the 

motion to the hearing officer, the 

Director may set a deadline for the 

hearing officer to rule. This is based on 

the parallel timing requirements under 

the FTC’s rules of practice.29 Previously, 

Rule 212(h) provided a 30-day 

timeframe for the hearing officer to 

decide dispositive motions, subject to 

extension.30 But the Bureau believes 

that the FTC’s somewhat more flexible 

approach to timing is warranted, given 

that the Director must first decide 

whether or not to refer the motion to the 

hearing officer and also has other 

responsibilities as the head of the 

agency. The Bureau believes that the 

overall efficiency gains to adjudication 

proceedings from the new process, as 

discussed above, should generally 

compensate for any delays associated 

with a more flexible deadline. 

The new Rule 213(c) provides that, at 

the request of any party or on the 

Director or hearing officer’s own 

motion, the Director or hearing officer 

(as applicable) may hear oral argument 

on a dispositive motion. Rule 213(c) is 

identical to the previous Rule 212(g), 

except that it is updated to reflect the 

fact that the Director would be the 

appropriate official to hear oral 

argument, if any, to the extent the 

Director is deciding the motion. 

Finally, the new Rule 213(d) describes 

the types of rulings that the Director or 

hearing officer may make on a 

dispositive motion. It consolidates 

language from the previous Rules 212(h) 

and 213, with updates to reflect the fact 

that the Director may be the official who 

decides the motion, as well as other 

technical changes for clarity. 

1081.400(a) Time Period for Filing 

Preliminary Findings and Conclusions 

Under the previous 12 CFR 

1081.400(a) (Rule 400(a)), subject to 

possible extensions, the hearing officer 

was required to file a recommended 

decision no later than 90 days after the 

deadline for filing post-hearing 

responsive briefs pursuant to 12 CFR 

1081.305(b) (Rule 305(b)) and in no 

event later than 300 days after filing of 

the notice of charges. The Bureau is 

amending the latter, 300-day interval to 

360 days, in light of the amendments to 

Rule 209 that expand the opportunities 

for depositions. Additionally, as 

explained later in this section-bysection analysis, the Bureau is changing 

terminology from ‘‘recommended 

decision’’ to ‘‘preliminary findings and 

conclusions’’ throughout the Rules of 

Practice. 

1081.408 Issue Exhaustion 

The Bureau is adding a new 12 CFR 

1081.408 (Rule 408) to address issue 

exhaustion. 

As the Supreme Court has explained: 

‘‘Administrative review schemes 

commonly require parties to give the 

agency an opportunity to address an 

issue before seeking judicial review of 

that question.’’ 31 These requirements 

can be ‘‘creatures of statute or 

regulation’’ or else are ‘‘judicially 

created.’’ 32 It is ‘‘common for an 

agency’s regulations to require issue 

exhaustion in administrative appeals. 

And when regulations do so, courts 

reviewing agency action regularly 


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33Sims v. Apfel, 530 U.S. 103, 108 (2000) 

(internal citation omitted). 

34 86 FR 6612, 6619 (Jan. 22, 2021) 

(recommendation 2.k). 

35See generally section 1053(b), 12 U.S.C. 

5563(b). 

36Section 1053(e), 12 U.S.C. 5563(e). The issue 

exhaustion provision is also independently 

authorized by section 1022(b)(1), 12 U.S.C. 

5512(b)(1), based on either of two grounds. First, 

establishing orderly rules for issue exhaustion is 

appropriate to enable the Bureau to ‘‘administer and 

carry out the purposes and objectives of’’ section 

1053, for the reasons discussed above and below. 

Id. Second, these issue-exhaustion rules ‘‘prevent 

evasions’’ of section 1053 and the Rules of Practice 

by some parties, who otherwise may not adequately 

present their arguments to the Bureau. Id.; see 

Woodford v. Ngo, 548 U.S. 81, 90 (2006) (explaining 

that ‘‘exhaustion requirements are designed to deal 

with parties who do not want to exhaust’’). 

37The Bureau notes that in cases where Rule 

408(b) interacts with the Bureau’s revisions to Rule 

213, it yields a common-sense result. If the Director 

rules on a dispositive motion under Rule 213 rather 

than referring it to the hearing officer, then the first 

sentence of Rule 408(b)—which normally requires 

parties to raise arguments before the hearing officer 

in the first instance—would be inapplicable to the 

Director’s consideration of the motion. This is 

because the Director’s ruling on the motion would 

not be ‘‘later’’ consideration by the Director after the 

hearing officer. On the other hand, the second 

sentence of Rule 408(b) would be applicable, and 

arguments not properly raised before the Director in 

briefing on the motion would not be preserved for 

later consideration by a court. 

38See, e.g., Am. Farm Lines v. Black Ball Freight 

Serv., 397 U.S. 532, 539 (1970) (It ‘‘is always within 

the discretion of . . . an administrative agency to 

relax or modify its procedural rules adopted for the 

orderly transaction of business before it when in a 

given case the ends of justice require it.’’). 

39Fed. R. Civ. P. 1, advisory committee’s notes to 

2007 amendment. 

40 12 U.S.C. 5512(b)(2)(A). 

41 12 U.S.C. 5512(b)(2)(B). Whether section 

1022(b)(2)(A) and section 1022(b)(2)(A)(B) are 

applicable to this rule is unclear, but in order to 

inform the rulemaking more fully the Bureau 

performed the described analysis and consultations. 

ensure against the bypassing of that 

requirement by refusing to consider 

unexhausted issues.’’ 33 Consistent with 

the Court’s case law, the Administrative 

Conference of the United States has 

recommended that agencies address 

issue exhaustion requirements in their 

regulations.34

The Bureau is now adopting an 

express regulation on issue exhaustion. 

Section 1053 of the CFPA contemplates 

that the Bureau will conduct a 

proceeding to decide whether to issue a 

final order, and then parties may 

petition courts to review the Bureau’s 

decision, based on the record that was 

before the Bureau.35 But if parties do not 

adequately present their arguments to 

the Bureau, it frustrates this statutory 

scheme. Accordingly, the Bureau 

believes that having procedures to 

address issue exhaustion in 

adjudication proceedings is important to 

carry out section 1053.36 The Bureau 

also notes that having express 

procedures on this subject should 

benefit both the Bureau and the parties, 

by avoiding any potential confusion 

about how parties must raise arguments 

in adjudication proceedings. 

Rule 408(a) defines the new Rule 

408’s scope. It applies to any argument 

to support a party’s case or defense, 

including any argument that could be a 

basis for setting aside Bureau action 

under 5 U.S.C. 706 or any other source 

of law. This broad scope ensures that 

the Bureau has the opportunity to 

consider any issue affecting its 

proceedings. 

Rule 408(b) provides, first, that a 

party must raise an argument before the 

hearing officer, or else it is not 

preserved for later consideration by the 

Director. Second, a party must raise an 

argument before the Director, or else it 

is not preserved for later consideration 

by a court. This is consistent with the 

roles of the hearing officer and 

Director.37

Rule 408(c) provides that an argument 

must be raised in a manner that 

complies with the Rules of Practice and 

that provides a fair opportunity to 

consider the argument. 

Finally, Rule 408(d) clarifies that the 

Director has discretion to consider an 

unpreserved argument, including by 

considering it in the alternative. It also 

clarifies that, if the Director considers 

an unpreserved argument in the 

alternative, the argument remains 

unpreserved. Because issue exhaustion 

requirements serve to protect the 

agency’s processes, it is appropriate for 

the head of the agency to retain 

discretion to waive those issue 

exhaustion requirements in appropriate 

cases.38 If a party believes that there is 

good cause for the issue exhaustion 

requirements to not be applied in a 

particular context, the proper course is 

to timely request that the Director 

exercise this discretion. The Director 

may also do so on the Director’s own 

initiative. On the other hand, if the 

Director merely considers an 

unpreserved argument in the 

alternative, that should not be construed 

as a waiver by the Director of the party’s 

failure to appropriately raise the 

argument. 

Global Technical Amendments 

In addition to the specific changes 

outlined above, the Bureau is making 

certain technical amendments 

throughout the Rules of Practice. 

First, the Bureau is retitling the 

hearing officer’s ‘‘recommended 

decision’’ as ‘‘preliminary findings and 

conclusions.’’ The Bureau believes that 

this title is more descriptive of this 

component of an adjudication 

proceeding. This is a terminological 

change, and preliminary findings and 

conclusions remain a recommended 

decision for purposes of the 

Administrative Procedure Act. 

Second, the Bureau is making changes 

to ensure that the language of the Rules 

of Practice is gender inclusive. Third, 

consistent with the current Federal 

Rules of Civil Procedure, the Bureau is 

replacing use of the term ‘‘shall’’ with 

the terms ‘‘must,’’ ‘‘may,’’ ‘‘will,’’ or 

‘‘should,’’ depending on the context, 

because the term ‘‘shall’’ can sometimes 

be ambiguous.39 Fourth, the 

amendments replace certain uses of the 

term ‘‘the Bureau’’ with either ‘‘the 

Director,’’ ‘‘the Office of Administrative 

Adjudication,’’ or ‘‘the Office of 

Enforcement,’’ in order to avoid 

ambiguity about which Bureau organ is 

being referenced. Fifth, as also 

discussed in the section-by-section 

analysis for Rule 114(a), the Bureau is 

adjusting various time periods in the 

Rules of Practice. Finally, the Bureau is 

making technical changes to 

requirements in 12 CFR 1081.111(a), 

1081.113(d)(2), and 1081.405(e) (Rules 

111(a), 113(d)(2), and 405(e)) regarding 

filing of certain papers by the hearing 

officer and Director and service of those 

papers by the Office of Administrative 

Adjudication. 

IV. Section 1022(b)(2) Analysis 

In developing this rule, the Bureau 

has considered the rule’s benefits, costs, 

and impacts in accordance with section 

1022(b)(2)(A) of the CFPA.40 In 

addition, the Bureau has consulted or 

offered to consult with the prudential 

regulators and the FTC, including 

regarding consistency of this rule with 

any prudential, market, or systemic 

objectives administered by those 

agencies, in accordance with section 

1022(b)(2)(B) of the CFPA.41

As with the 2012 Rule, this rule 

neither imposes obligations on 

consumers, nor is it expected to affect 

their access to consumer financial 

products or services. For purposes of 

this 1022(b)(2) analysis, the Bureau 

compares the effect of the rule against 

the baseline of the Rules of Practice as 

they currently exist, as established by 

the 2012 Rule and amended by the 2014 

Rule. 

The Rules of Practice amended by this 

rule are intended to provide an 

expeditious decision-making process. 

An expeditious decision-making process 

may benefit both consumers and 


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42 5 U.S.C. 553(b). 

43 5 U.S.C. 603, 604. 

44 5 U.S.C. 605(b). 

45 44 U.S.C. 3501–3521. 

covered persons to the extent that it is 

used in lieu of proceedings initiated in 

federal district court. A clear and 

efficient process for the conduct of 

adjudication proceedings benefits 

consumers by providing a systematic 

process for protecting them from 

unlawful behavior. At the same time, a 

more efficient process affords covered 

persons with a cost-effective way to 

have their cases heard. The 2012 Rule 

adopted an affirmative disclosure 

approach to fact discovery, pursuant to 

which the Bureau makes available to 

respondents the information obtained 

by the Office of Enforcement from 

persons not employed by the Bureau 

prior to the institution of proceedings, 

in connection with the investigation 

leading to the institution of proceedings 

that is not otherwise privileged or 

protected from disclosure. This 

affirmative disclosure obligation was 

intended to substitute for the traditional 

civil discovery process, which can be 

both time-consuming and expensive. By 

changing this process to allow for a 

limited number of depositions by both 

the Office of Enforcement and 

respondents, the rule will increase the 

cost of the process in both time and 

money, relative to the baseline. At the 

same time, to the extent that a limited 

number of depositions makes hearings 

proceed more efficiently, the rule may 

reduce costs. In addition, since 

promulgating the 2012 Rule, the Bureau 

has only brought two cases through the 

administrative adjudication process 

from start to finish. As such, the Bureau 

expects there to be few cases in the 

future that would have benefited from 

the more limited deposition procedure 

in the 2012 Rule. The Bureau expects 

the amended procedure to still be faster 

and less expensive than discovery 

through a Federal district court. To the 

extent that adding additional discovery 

enables more cases that would 

otherwise be initiated in Federal court 

to instead be initiated through the 

administrative adjudication process, 

both consumers and covered persons 

will benefit. 

In addition, in the 1022(b)(2) analysis 

for the 2012 Rule, the Bureau stated that 

a benefit of the Rule was its similarity 

to existing rules of the prudential 

regulators, the FTC, and the SEC. The 

SEC has since amended its rules, and 

many of the changes in these 

amendments will align the Bureau’s 

rules with the new SEC rules and those 

of other agencies. The Rule’s similarity 

to other agencies’ rules should further 

reduce the expense of administrative 

adjudication for covered persons. 

Further, these amendments have no 

unique impact on insured depository 

institutions or insured credit unions 

with less than $10 billion in assets 

described in section 1026(a) of the 

CFPA. Finally, the amendments do not 

have a unique impact on rural 

consumers. 

V. Regulatory Requirements 

As a rule of agency organization, 

procedure, or practice, this rule is 

exempt from the notice-and-comment 

rulemaking requirements of the 

Administrative Procedure Act.42

However, the Bureau is accepting 

comments on the rule. If, based on the 

comments, the Bureau decides to make 

further amendments, the Bureau 

requests comment on whether those 

amendments should apply to any 

adjudication proceedings that may be 

pending at that time. 

Because no notice of proposed 

rulemaking is required, the Regulatory 

Flexibility Act does not require an 

initial or final regulatory flexibility 

analysis.43 Moreover, the Bureau’s 

Director certifies that this rule will not 

have a significant economic impact on 

a substantial number of small entities. 

Therefore, an analysis is also not 

required for that reason.44 The rule 

imposes compliance burdens only on 

the handful of entities that are 

respondents in adjudication 

proceedings or third-party recipients of 

discovery requests. Some of the handful 

of affected entities may be small entities 

under the Regulatory Flexibility Act, but 

they would represent an extremely 

small fraction of small entities in 

consumer financial services markets. 

Accordingly, the number of small 

entities affected is not substantial. 

The Bureau has also determined that 

this rule does not impose any new or 

revise any existing recordkeeping, 

reporting, or disclosure requirements on 

covered entities or members of the 

public that would be collections of 

information requiring approval by the 

Office of Management and Budget under 

the Paperwork Reduction Act.45

List of Subjects in 12 CFR Part 1081 

Administrative practice and 

procedure, Banks, Banking, Consumer 

protection, Credit unions, Law 

enforcement, National banks, Savings 

associations, Trade practices. 

Authority and Issuance 

■ For the reasons set forth above, the 

Bureau revises 12 CFR part 1081 to read 

as follows: 

PART 1081—RULES OF PRACTICE 

FOR ADJUDICATION PROCEEDINGS 

Subpart A—General Rules 

Sec. 

1081.100 Scope of the rules of practice. 

1081.101 Expedition and fairness of 

proceedings. 

1081.102 Rules of construction. 

1081.103 Definitions. 

1081.104 Authority of the hearing officer. 

1081.105 Assignment, substitution, 

performance, disqualification of hearing 

officer. 

1081.106 Deadlines. 

1081.107 Appearance and practice in 

adjudication proceedings. 

1081.108 Good faith certification. 

1081.109 Conflict of interest. 

1081.110 Ex parte communication. 

1081.111 Filing of papers. 

1081.112 Formal requirements as to papers 

filed. 

1081.113 Service of papers. 

1081.114 Construction of time limits. 

1081.115 Change of time limits. 

1081.116 Witness fees and expenses. 

1081.117 Bureau’s right to conduct 

examination, collect information. 

1081.118 Collateral attacks on adjudication 

proceedings. 

1081.119 Confidential information; 

protective orders. 

1081.120 Settlement. 

1081.121 Cooperation with other agencies. 

Subpart B—Initiation of Proceedings and 

Prehearing Rules 

1081.200 Commencement of proceeding 

and contents of notice of charges. 

1081.201 Answer and disclosure statement 

and notification of financial interest. 

1081.202 Amended pleadings. 

1081.203 Scheduling conference. 

1081.204 Consolidation, severance, or 

bifurcation of proceedings. 

1081.205 Non-dispositive motions. 

1081.206 Availability of documents for 

inspection and copying. 

1081.207 Production of witness statements. 

1081.208 Subpoenas. 

1081.209 Depositions. 

1081.210 Expert discovery. 

1081.211 Interlocutory review. 

1081.212 Dispositive motions. 

1081.213 Rulings on dispositive motions. 

1081.214 Prehearing conferences. 

1081.215 Prehearing submissions. 

1081.216 Amicus participation. 

Subpart C—Hearings 

1081.300 Public hearings. 

1081.301 Failure to appear. 

1081.302 Conduct of hearings. 

1081.303 Evidence. 

1081.304 Record of the hearing. 

1081.305 Post-hearing filings. 

1081.306 Record in proceedings before 

hearing officer; retention of documents; 

copies. 

Subpart D—Decision and Appeals 

1081.400 Preliminary findings and 

conclusions of the hearing officer. 

1081.401 Transmission of documents to 

Director; record index; certification. 


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1081.402 Notice of appeal; review by the 

Director. 

1081.403 Briefs filed with the Director. 

1081.404 Oral argument before the Director. 

1081.405 Decision of the Director. 

1081.406 Reconsideration. 

1081.407 Effective date; stays pending 

judicial review. 

1081.408 Issue exhaustion. 

Subpart E—Temporary Cease-and-Desist 

Proceedings 

1081.500 Scope. 

1081.501 Basis for issuance, form, and 

service. 

1081.502 Judicial review, duration. 

Authority: 12 U.S.C. 5512(b)(1), 5563(e). 

Subpart A—General Rules 

§ 1081.100 Scope of the rules of practice. 

This part prescribes rules of practice 

and procedure applicable to 

adjudication proceedings authorized by 

section 1053 of the Consumer Financial 

Protection Act of 2010 (12 U.S.C. 5563). 

The rules of practice in this part do not 

govern the conduct of Bureau 

investigations, investigational hearings 

or other proceedings that do not arise 

from proceedings after a notice of 

charges. 

§ 1081.101 Expedition and fairness of 

proceedings. 

To the extent practicable, consistent 

with requirements of law, the Bureau’s 

policy is to conduct such adjudication 

proceedings fairly and expeditiously. In 

the conduct of such proceedings, the 

hearing officer and counsel for all 

parties must make every effort at each 

stage of a proceeding to avoid delay. 

With the consent of the parties, the 

Director, at any time, or the hearing 

officer at any time prior to the filing of 

the hearing officer’s preliminary 

findings and conclusions, may change 

any time limit prescribed by this part. 

§ 1081.102 Rules of construction. 

For the purposes of this part: 

(a) Any term in the singular includes 

the plural, and the plural includes the 

singular, if such use would be 

appropriate; 

(b) Any use of a masculine, feminine, 

or neutral gender encompasses all three, 

if such use would be appropriate; 

(c) Unless context requires otherwise, 

a party’s counsel of record, if any, may, 

on behalf of that party, take any action 

required to be taken by the party; and 

(d) To the extent this part uses terms 

defined by section 1002 of the 

Consumer Financial Protection Act of 

2010 (12 U.S.C. 5481), such terms have 

the same meaning as set forth therein, 

unless defined differently by § 1081.103. 

§ 1081.103 Definitions. 

For the purposes of this part, unless 

explicitly stated to the contrary: 

Adjudication proceeding means a 

proceeding conducted pursuant to 

section 1053 of the Consumer Financial 

Protection Act of 2010 (12 U.S.C. 5563) 

and intended to lead to the formulation 

of a final order other than a temporary 

order to cease and desist issued 

pursuant to section 1053(c) of that Act 

(12 U.S.C. 5563(c)). 

Bureau means the Consumer 

Financial Protection Bureau. 

Chief hearing officer means the 

hearing officer charged with assigning 

hearing officers to specific proceedings, 

in the event there is more than one 

hearing officer available to the Bureau. 

Counsel means any person 

representing a party pursuant to 

§ 1081.107. 

Decisional employee means any 

employee of the Bureau who has not 

engaged in an investigative or 

prosecutorial role in a proceeding and 

who may assist the Director or the 

hearing officer, respectively, in 

preparing orders, preliminary findings 

and conclusions, decisions, and other 

documents under this part. 

Director means the Director of the 

Bureau or a person authorized to 

perform the functions of the Director in 

accordance with the law. 

Enforcement counsel means any 

individual who files a notice of 

appearance as counsel on behalf of the 

Office of Enforcement in an 

adjudication proceeding. 

Final order means an order issued by 

the Bureau with or without the consent 

of the respondent, which has become 

final, without regard to the pendency of 

any petition for reconsideration or 

review. 

General Counsel means the General 

Counsel of the Bureau or any Bureau 

employee to whom the General Counsel 

has delegated authority to act under this 

part. 

Hearing officer means an 

administrative law judge or any other 

person duly authorized to preside at a 

hearing. 

Notice of charges means the pleading 

that commences an adjudication 

proceeding, as described in § 1081.200, 

except that it does not include a 

stipulation and consent order under 

§ 1081.200(d). 

Office of Administrative Adjudication 

means the office of the Bureau 

responsible for conducting adjudication 

proceedings. 

Office of Enforcement means the 

office of the Bureau responsible for 

enforcement of Federal consumer 

financial law or other laws enforceable 

by the Bureau. 

Party means the Office of 

Enforcement, any person named as a 

party in any notice of charges issued 

pursuant to this part, and, to the extent 

applicable, any person who intervenes 

in the proceeding pursuant to 

§ 1081.119(a) to seek a protective order. 

Person means an individual, 

partnership, company, corporation, 

association (incorporated or 

unincorporated), trust, estate, 

cooperative organization, or other 

entity. 

Person employed by the Bureau 

means Bureau employees, contractors, 

agents, and others acting for or on behalf 

of the Bureau, or at its direction, 

including consulting experts. 

Respondent means the party named in 

the notice of charges. 

State means any State, territory, or 

possession of the United States, the 

District of Columbia, the 

Commonwealth of Puerto Rico, the 

Commonwealth of the Northern Mariana 

Islands, Guam, American Samoa, or the 

United States Virgin Islands or any 

federally recognized Indian tribe, as 

defined by the Secretary of the Interior 

under section 104(a) of the Federally 

Recognized Indian Tribe List Act of 

1994, 25 U.S.C. 479a–1(a). 

§ 1081.104 Authority of the hearing officer. 

(a) General rule. The hearing officer 

will have all powers necessary to 

conduct a proceeding in a fair and 

impartial manner and to avoid 

unnecessary delay. No provision of this 

part may be construed to limit the 

powers of the hearing officers provided 

by the Administrative Procedure Act, 5 

U.S.C. 556, 557. 

(b) Powers. The powers of the hearing 

officer include but are not limited to the 

power: 

(1) To administer oaths and 

affirmations; 

(2) To issue subpoenas, subpoenas 

duces tecum, and protective orders, as 

authorized by this part, and to quash or 

modify any such subpoenas or orders; 

(3) To take depositions or cause 

depositions to be taken; 

(4) To receive relevant evidence and 

to rule upon the admission of evidence 

and offers of proof; 

(5) To regulate the course of a 

proceeding and the conduct of parties 

and their counsel; 

(6) To reject written submissions that 

materially fail to comply with the 

requirements of this part, and to deny 

confidential status to documents and 

testimony without prejudice until a 

party complies with all relevant rules of 

this chapter; 


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(7) To hold conferences for 

settlement, simplification of the issues, 

or any other proper purpose and require 

the attendance at any such conference of 

at least one representative of each party 

who has authority to negotiate 

concerning the resolution of issues in 

controversy; 

(8) To inform the parties as to the 

availability of one or more alternative 

means of dispute resolution, and to 

encourage the use of such methods; 

(9) To certify questions to the Director 

for the Director’s determination in 

accordance with the rules of this part; 

(10) To consider and rule upon, as 

justice may require, all procedural and 

other motions appropriate in 

adjudication proceedings; 

(11) To issue and file preliminary 

findings and conclusions; 

(12) To recuse oneself by motion 

made by a party or on the hearing 

officer’s own motion; 

(13) To issue such sanctions against 

parties or their counsel as may be 

necessary to deter repetition of 

sanctionable conduct or comparable 

conduct by others similarly situated, as 

provided for in this part or as otherwise 

necessary to the appropriate conduct of 

hearings and related proceedings, 

provided that no sanction will be 

imposed before providing the 

sanctioned person an opportunity to 

show cause why no such sanction 

should issue; and 

(14) To do all other things necessary 

and appropriate to discharge the duties 

of a presiding officer. 

§ 1081.105 Assignment, substitution, 

performance, disqualification of hearing 

officer. 

(a) How assigned. In the event that 

more than one hearing officer is 

available to the Bureau for the conduct 

of proceedings under this part, the 

presiding hearing officer will be 

designated by the chief hearing officer, 

who will notify the parties of the 

hearing officer designated. 

(b) Interference. Hearing officers will 

not be subject to the supervision or 

direction of, or responsible to, any 

officer, employee, or agent engaged in 

the performance of investigative or 

prosecuting functions for the Bureau, 

and all direction by the Bureau to the 

hearing officer concerning any 

adjudication proceedings must appear 

in and be made part of the record. 

(c) Disqualification of hearing officers. 

(1) When a hearing officer deems the 

hearing officer disqualified to preside in 

a particular proceeding, the hearing 

officer must issue a notice stating that 

the hearing officer is withdrawing from 

the matter and setting forth the reasons 

therefore. 

(2) Any party who has a reasonable, 

good faith basis to believe that a hearing 

officer has a personal bias, or is 

otherwise disqualified from hearing a 

case, may make a motion to the hearing 

officer that the hearing officer withdraw. 

The motion must be accompanied by an 

affidavit setting forth the facts alleged to 

constitute grounds for disqualification. 

Such motion must be filed at the earliest 

practicable time after the party learns, or 

could reasonably have learned, of the 

alleged grounds for disqualification. If 

the hearing officer does not disqualify 

the hearing officer within 14 days, the 

hearing officer must certify the motion 

to the Director pursuant to § 1081.211, 

together with any statement the hearing 

officer may wish to have considered by 

the Director. The Director must 

promptly determine the validity of the 

grounds alleged, either directly or on 

the report of another hearing officer 

appointed to conduct a hearing for that 

purpose, and will either direct the 

reassignment of the matter or confirm 

the hearing officer’s continued role in 

the matter. 

(d) Unavailability of hearing officer. If 

the hearing officer withdraws or is 

otherwise unable to perform the duties 

of the hearing officer, the chief hearing 

officer or the Director will designate 

another hearing officer to serve. 

§ 1081.106 Deadlines 

The deadlines for action by the 

hearing officer established by 

§§ 1081.203, 1081.205, 1081.211, 

1081.212, and 1081.400, or elsewhere in 

this part, confer no substantive rights on 

respondents. 

§ 1081.107 Appearance and practice in 

adjudication proceedings. 

(a) Appearance before the Bureau or 

a hearing officer—(1) By attorneys. Any 

member in good standing of the bar of 

the highest court of any State may 

represent others before the Bureau if 

such attorney is not currently 

suspended or debarred from practice 

before the Bureau or by a court of the 

United States or of any State. 

(2) By non-attorneys. So long as such 

individual is not currently suspended or 

debarred from practice before the 

Bureau: 

(i) An individual may appear on the 

individual’s own behalf; 

(ii) A member of a partnership may 

represent the partnership; 

(iii) A duly authorized officer of a 

corporation, trust, or association may 

represent the corporation, trust, or 

association; and 

(iv) A duly authorized officer or 

employee of any government unit, 

agency, or authority may represent that 

unit, agency, or authority. 

(3) Notice of appearance. Any 

individual acting as counsel on behalf of 

a party, including Enforcement counsel, 

must file a notice of appearance at or 

before the time that the individual 

submits papers or otherwise appears on 

behalf of a party in the adjudication 

proceeding. The notice of appearance 

must include a written declaration that 

the individual is currently qualified as 

provided in paragraph (a)(1) or (2) of 

this section and is authorized to 

represent the particular party, and if 

applicable, must include the attorney’s 

jurisdiction of admission or 

qualification, attorney identification 

number, and a statement by the 

appearing attorney attesting to the 

attorney’s good standing within the 

legal profession. By filing a notice of 

appearance on behalf of a party in an 

adjudication proceeding, the counsel 

agrees and represents that counsel is 

authorized to accept service on behalf of 

the represented party and that, in the 

event of withdrawal from 

representation, counsel will, if required 

by the hearing officer, continue to 

accept service until a new counsel has 

filed a notice of appearance or until the 

represented party indicates that the 

party will proceed on a pro se basis. The 

notice of appearance must provide the 

representative’s email address, 

telephone number, and business address 

and, if different from the 

representative’s addresses, electronic or 

other address at which the represented 

party may be served. 

(b) Sanctions. Dilatory, obstructionist, 

egregious, contemptuous, or 

contumacious conduct at any phase of 

any adjudication proceeding may be 

grounds for exclusion or suspension of 

counsel from the proceeding. An order 

imposing a sanction must describe the 

sanctioned conduct and explain the 

basis for the sanction. 

(c) Standards of conduct; disbarment. 

(1) All attorneys practicing before the 

Bureau must conform to the standards 

of ethical conduct required by the bars 

of which the attorneys are members. 

(2) If for good cause shown, the 

Director believes that any attorney is not 

conforming to such standards, or that an 

attorney or counsel to a party has 

otherwise engaged in conduct 

warranting disciplinary action, the 

Director may issue an order requiring 

such person to show cause why the 

attorney should not be suspended or 

disbarred from practice before the 

Bureau. The alleged offender will be 

granted due opportunity to be heard in 


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the alleged offender’s own defense and 

may be represented by counsel. 

Thereafter, if warranted by the facts, the 

Director may issue against the attorney 

or counsel an order of reprimand, 

suspension, or disbarment. 

§ 1081.108 Good faith certification. 

(a) General requirement. Every filing 

or submission of record following the 

issuance of a notice of charges must be 

signed by at least one counsel of record 

in counsel’s individual name and must 

state counsel’s address, email address, 

and telephone number. A party who 

acts as the party’s own counsel must 

sign the party’s individual name and 

state the party’s address, email address, 

and telephone number on every filing or 

submission of record. Papers filed by 

electronic transmission may be signed 

with an ‘‘/s/’’ notation, which will be 

deemed the signature of the party or 

representative whose name appears 

below the signature line. 

(b) Effect of signature. (1) The 

signature of counsel or a party 

constitutes a certification that: The 

counsel or party has read the filing or 

submission of record; to the best of 

one’s knowledge, information, and 

belief formed after reasonable inquiry, 

the filing or submission of record is 

well-grounded in fact and is warranted 

by existing law or a good faith argument 

for the extension, modification, or 

reversal of existing law; and the filing or 

submission of record is not made for 

any improper purpose, such as to harass 

or to cause unnecessary delay or 

needless increase in the cost of 

litigation. 

(2) If a filing or submission of record 

is not signed, the hearing officer must 

strike the filing or submission of record, 

unless it is signed promptly after the 

omission is called to the attention of the 

filer. 

(c) Effect of making oral motion or 

argument. The act of making any oral 

motion or oral argument by any counsel 

or party constitutes a certification that 

to the best of one’s knowledge, 

information, and belief formed after 

reasonable inquiry, one’s statements are 

well-grounded in fact and are warranted 

by existing law or a good faith argument 

for the extension, modification, or 

reversal of existing law, and are not 

made for any improper purpose, such as 

to harass or to cause unnecessary delay 

or needless increase in the cost of 

litigation. 

(d) Sanctions. Counsel or a party that 

fails to abide by the requirements of this 

section may be subject to sanctions 

pursuant to § 1081.104(b)(13). 

§ 1081.109 Conflict of interest. 

(a) Conflict of interest in 

representation. No person may appear 

as counsel for another person in an 

adjudication proceeding if it reasonably 

appears that such representation may be 

materially limited by that counsel’s 

responsibilities to a third person or by 

the counsel’s own interests. The hearing 

officer may take corrective measures at 

any stage of a proceeding to cure a 

conflict of interest in representation, 

including the issuance of an order 

limiting the scope of representation or 

disqualifying an individual from 

appearing in a representative capacity 

for the duration of the proceeding. 

(b) Certification and waiver. If any 

person appearing as counsel represents 

two or more parties to an adjudication 

proceeding or also represents a nonparty on a matter relevant to an issue in 

the proceeding, counsel must certify in 

writing at the time of filing the notice 

of appearance required by 

§ 1081.107(a)(3): 

(1) That the counsel has personally 

and fully discussed the possibility of 

conflicts of interest with each such 

party and non-party; and 

(2) That each such party and/or nonparty waives any right it might 

otherwise have had to assert any known 

conflicts of interest or to assert any 

conflicts of interest during the course of 

the proceeding. 

§ 1081.110 Ex parte communication. 

(a) Definitions. (1) For purposes of 

this section, ex parte communication 

means any material oral or written 

communication relevant to the merits of 

an adjudication proceeding that was 

neither on the record nor on reasonable 

prior notice to all parties that takes 

place between: 

(i) An interested person not employed 

by the Bureau (including such person’s 

counsel); and 

(ii) The hearing officer handling the 

proceeding, the Director, or a decisional 

employee. 

(2) A request for status of the 

proceeding does not constitute an ex 

parte communication. 

(3) Pendency of an adjudication 

proceeding means the time from when 

the Bureau issues a notice of charges, 

unless the person responsible for the 

communication has knowledge that a 

notice of charges will be issued, in 

which case the pendency of an 

adjudication will commence at the time 

of that person’s acquisition of such 

knowledge, or from when an order by a 

court of competent jurisdiction 

remanding a Bureau decision and order 

for further proceedings becomes 

effective, until the time the Director 

enters a final decision and order in the 

proceeding and the time permitted to 

seek reconsideration of that decision 

and order has elapsed. For purposes of 

this section, an order of remand by a 

court of competent jurisdiction is 

deemed to become effective when the 

Bureau’s right to petition for review or 

for a writ of certiorari has lapsed 

without a petition having been filed, or 

when such a petition has been denied. 

If a petition for reconsideration of a 

Bureau decision is filed pursuant to 

§ 1081.406, the matter will be 

considered to be a pending adjudication 

proceeding until the time the Bureau 

enters an order disposing of the petition. 

(b) Prohibited ex parte 

communications. During the pendency 

of an adjudication proceeding, except to 

the extent required for the disposition of 

ex parte matters as authorized by law or 

as otherwise authorized by this part: 

(1) No interested person not employed 

by the Bureau will make or knowingly 

cause to be made to the Director, or to 

the hearing officer, or to any decisional 

employee, an ex parte communication; 

and 

(2) The Director, the hearing officer, 

or any decisional employee will not 

make or knowingly cause to be made to 

any interested person not employed by 

the Bureau any ex parte communication. 

(c) Procedure upon occurrence of ex 

parte communication. If an ex parte 

communication prohibited by paragraph 

(b) of this section is received by the 

hearing officer, the Director, or any 

decisional employee, that person must 

cause all such written communications 

(or, if the communication is oral, a 

memorandum stating the substance of 

the communication) to be placed on the 

record of the proceeding and served on 

all parties. All other parties to the 

proceeding will have an opportunity, 

within 14 days of receipt of service of 

the ex parte communication, to file 

responses thereto and to recommend 

any sanctions, in accordance with 

paragraph (d) of this section, that they 

believe to be appropriate under the 

circumstances. 

(d) Sanctions—(1) Adverse action on 

claim. Upon receipt of an ex parte 

communication knowingly made or 

knowingly caused to be made by a party 

and prohibited by paragraph (b) of this 

section, the Director or hearing officer, 

as appropriate, may, to the extent 

consistent with the interests of justice 

and the policy of the underlying 

statutes, require the party to show cause 

why the party’s claim or interest in the 

proceeding should not be dismissed, 

denied, disregarded, or otherwise 

adversely affected on account of such 

violation. 


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(2) Discipline of persons practicing 

before the Bureau. The Director may, to 

the extent not prohibited by law, 

censure, suspend, or revoke the 

privilege to practice before the Bureau 

of any person who makes, or solicits the 

making of, an unauthorized ex parte 

communication. 

(e) Separation of functions. Except to 

the extent required for the disposition of 

ex parte matters as authorized by law, 

the hearing officer may not consult a 

person or party on any matter relevant 

to the merits of the adjudication, unless 

upon notice and opportunity for all 

parties to participate. An employee or 

agent engaged in the performance of 

investigative or prosecuting functions 

for the Bureau in a case, other than the 

Director, may not, in that or a factually 

related case, participate or advise in the 

decision, preliminary findings and 

conclusions, or agency review of the 

preliminary findings and conclusions, 

except as witness or counsel in public 

proceedings. 

§ 1081.111 Filing of papers. 

(a) Filing. The following papers must 

be filed by parties in an adjudication 

proceeding: The notice of charges, proof 

of service of the notice of charges, 

notices of appearance, answer, the 

disclosure statement required under 

§ 1081.201(e), motion, brief, request for 

issuance or enforcement of a subpoena, 

response, opposition, reply, notice of 

appeal, or petition for reconsideration. 

The hearing officer or Director (as 

applicable) will file all written orders, 

rulings, notices, or requests. Any papers 

required to be filed must be filed with 

the Office of Administrative 

Adjudication, except as otherwise 

provided in this section. 

(b) Manner of filing. Unless otherwise 

specified by the Director or the hearing 

officer, filing may be accomplished by: 

(1) Electronic transmission in 

accordance with guidance issued by the 

Office of Administrative Adjudication; 

or 

(2) Any of the following methods if 

respondent demonstrates, in accordance 

with guidance issued by the Office of 

Administrative Adjudication, that 

electronic filing is not practicable: 

(i) Personal delivery; 

(ii) Delivery to a reliable commercial 

courier service or overnight delivery 

service; or 

(iii) Mailing the papers through the 

U.S. Postal Service by First Class Mail, 

Registered Mail, Certified Mail or 

Express Mail. 

(c) Papers filed in an adjudication 

proceeding are presumed to be public. 

Unless otherwise ordered by the 

Director or the hearing officer, all papers 

filed in connection with an adjudication 

proceeding are presumed to be open to 

the public. The Bureau may provide 

public access to and publish any papers 

filed in an adjudication proceeding 

except if there is a pending motion for 

a protective order filed pursuant to 

§ 1081.119, or if there is an order from 

the Director, hearing officer, or a Federal 

court authorizing the confidential 

treatment of the papers filed. 

§ 1081.112 Formal requirements as to 

papers filed. 

(a) Form. All papers filed by parties 

must: 

(1) Set forth the name, address, 

telephone number, and email address of 

the counsel or party making the filing; 

(2) Be double-spaced (except for 

single-spaced footnotes and singlespaced indented quotations) and printed 

or typewritten on 81⁄2 x 11 inch paper 

in 12-point or larger font; 

(3) Include at the head of the paper, 

or on a title page, a caption setting forth 

the title of the case, the docket number 

of the proceeding, and a brief 

descriptive title indicating the purpose 

of the paper; 

(4) Be paginated with margins at least 

one inch wide; and 

(5) If filed by other than electronic 

means, be stapled, clipped, or otherwise 

fastened in a manner that lies flat when 

opened. 

(b) Signature. All papers must be 

dated and signed as provided in 

§ 1081.108. 

(c) Number of copies. Unless 

otherwise specified by the Director or 

the hearing officer, one copy of all 

documents and papers must be filed if 

filing is by electronic transmission. If 

filing is accomplished by any other 

means, an original and one copy of all 

documents and papers must be filed, 

except that only one copy of transcripts 

of testimony and exhibits must be filed. 

(d) Authority to reject document for 

filing. The Office of Administrative 

Adjudication or the hearing officer may 

reject a document for filing that 

materially fails to comply with this part. 

(e) Sensitive personal information. 

Sensitive personal information means 

an individual’s Social Security number, 

taxpayer identification number, 

financial account number, credit card or 

debit card number, driver’s license 

number, State-issued identification 

number, passport number, date of birth 

(other than year), and any sensitive 

health information identifiable by 

individual, such as an individual’s 

medical records. Sensitive personal 

information must not be included in, 

and must be redacted or omitted from, 

filings unless the person filing the paper 

determines that such information is 

relevant or otherwise necessary for the 

conduct of the proceeding. If the person 

filing a paper determines the sensitive 

personal information contained in the 

paper is relevant or necessary to the 

proceeding, the person must file the 

paper in accordance with paragraph (f) 

of this section, including filing an 

expurgated copy of the paper with the 

sensitive personal information redacted. 

(f) Confidential treatment of 

information in certain filings. A party 

seeking confidential treatment of 

information contained in a filing must 

contemporaneously file either a motion 

requesting such treatment in accordance 

with § 1081.119 or a copy of the order 

from the Director, hearing officer, or 

Federal court authorizing such 

confidential treatment. The filing must 

comply with any applicable order of the 

Director or hearing officer and must be 

accompanied by: 

(1) A complete, sealed copy of the 

documents containing the materials as 

to which confidential treatment is 

sought, with the allegedly confidential 

material clearly marked as such, and 

with the first page of the document 

labeled ‘‘Under Seal.’’ If the movant 

seeks or has obtained a protective order 

against disclosure to other parties as 

well as the public, copies of the 

documents will not be served on other 

parties; and 

(2) An expurgated copy of the 

materials as to which confidential 

treatment is sought, with the allegedly 

confidential materials redacted. The 

redacted version must indicate any 

omissions with brackets or ellipses, and 

its pagination and depiction of text on 

each page must be identical to that of 

the sealed version. 

(g) Certificate of service. Any papers 

filed in an adjudication proceeding 

must contain proof of service on all 

other parties or their counsel in the form 

of a statement of the date and manner 

of service and of the names of the 

persons served, certified by the person 

who made service. The certificate of 

service must be affixed to the papers 

filed and signed in accordance with 

§ 1081.108. 

§ 1081.113 Service of papers. 

(a) When required. In every 

adjudication proceeding, each paper 

required to be filed by § 1081.111 must 

be served upon each party in the 

proceeding in accordance with the 

provisions of this section; provided, 

however, that absent an order to the 

contrary, no service is required for 

motions which are to be heard ex parte. 

(b) Upon a person represented by 

counsel. Whenever service is required to 


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be made upon a person represented by 

counsel who has filed a notice of 

appearance pursuant to § 1081.107(a)(3), 

service shall be made pursuant to 

paragraph (c) of this section upon 

counsel, unless service upon the person 

represented is ordered by the Director or 

the hearing officer, as appropriate. 

(c) Method of service. Except as 

provided in paragraph (d) of this section 

or as otherwise ordered by the hearing 

officer or the Director, service must be 

made by delivering a copy of the filing 

by one of the following methods: 

(1) Transmitting the papers by 

electronic transmission where the 

persons so serving each other have 

consented to service by specified 

electronic transmission and provided 

the Bureau and the parties with notice 

of the means for service by electronic 

transmission (e.g., email address or 

facsimile number); 

(2) Handing a copy to the person 

required to be served; or leaving a copy 

at the person’s office with a clerk or 

other person in charge thereof, or, if 

there is no one in charge, leaving it in 

a conspicuous place therein; or, if the 

office is closed or the person to be 

served has no office, leaving it at the 

person’s dwelling or usual place of 

abode with some person of suitable age 

and discretion then residing therein; 

(3) Mailing the papers through the 

U.S. Postal Service by First Cass Mail, 

Registered Mail, Certified Mail or 

Express Mail delivery addressed to the 

person; or 

(4) Sending the papers through a 

third-party commercial courier service 

or express delivery service. 

(d) Service of certain papers by the 

Office of Enforcement or the Office of 

Administrative Adjudication—(1) 

Service of a notice of charges by the 

Office of Enforcement—(i) To 

individuals. Notice of a proceeding shall 

be made to an individual by delivering 

a copy of the notice of charges to the 

individual or to an agent authorized by 

appointment or by law to receive such 

notice. Delivery, for purposes of this 

paragraph (d)(1)(i), means handing a 

copy of the notice to the individual; or 

leaving a copy at the individual’s office 

with a clerk or other person in charge 

thereof; or leaving a copy at the 

individual’s dwelling house or usual 

place of abode with some person of 

suitable age and discretion then residing 

therein; or sending a copy of the notice 

addressed to the individual through the 

U.S. Postal Service by Registered Mail, 

Certified Mail or Express Mail delivery, 

or by third-party commercial carrier, for 

overnight delivery and obtaining a 

confirmation of receipt. 

(ii) To corporations or entities. Notice 

of a proceeding must be made to a 

person other than a natural person by 

delivering a copy of the notice of 

charges to an officer, managing or 

general agent, or any other agent 

authorized by appointment or law to 

receive such notice, by any method 

specified in paragraph (d)(1)(i) of this 

section. 

(iii) Upon persons registered with the 

Bureau. In addition to any other method 

of service specified in paragraph 

(d)(1)(i) or (ii) of this section, notice may 

be made to a person currently registered 

with the Bureau by sending a copy of 

the notice of charges addressed to the 

most recent business address shown on 

the person’s registration form by U.S. 

Postal Service certified, registered, or 

Express Mail and obtaining a 

confirmation of receipt or attempted 

delivery. 

(iv) Upon persons in a foreign 

country. Notice of a proceeding to a 

person in a foreign country may be 

made by any method specified in 

paragraph (d)(1) of this section, or by 

any other method reasonably calculated 

to give notice, provided that the method 

of service used is not prohibited by the 

law of the foreign country. 

(v) Record of service. The Office of 

Enforcement will maintain and file a 

record of service of the notice of charges 

on parties, identifying the party given 

notice, the method of service, the date 

of service, the address to which service 

was made, and the person who made 

service. If service is made in person, the 

certificate of service must state, if 

available, the name of the individual to 

whom the notice of charges was given. 

If service is made by U.S. Postal Service 

Registered Mail, Certified Mail, or 

Express Mail, the Office of Enforcement 

will maintain the confirmation of 

receipt or attempted delivery. If service 

is made to an agent authorized by 

appointment to receive service, the 

certificate of service must be 

accompanied by evidence of the 

appointment. 

(vi) Waiver of service. In lieu of 

service as set forth in paragraph (d)(1)(i) 

or (ii) of this section, the party may be 

provided a copy of the notice of charges 

by First Class Mail or other reliable 

means if a waiver of service is obtained 

from the party and placed in the record. 

(2) Service of papers by the Office of 

Administrative Adjudication. Unless 

otherwise ordered by the hearing officer 

or Director, the Office of Administrative 

Adjudication must serve papers filed by 

the hearing officer or Director promptly 

on each party pursuant to any method 

of service authorized under paragraph 

(c) or (d)(1) of this section. Unless 

otherwise ordered by the hearing officer 

or Director, if a party is represented by 

counsel who has filed a notice of 

appearance pursuant to § 1081.107(a)(3), 

the Office of Administrative 

Adjudication serves that party by 

serving its counsel. 

§ 1081.114 Construction of time limits. 

(a) General rule. In computing any 

time period prescribed by this part, by 

order of the Director or a hearing officer, 

or by any applicable statute, exclude the 

day of the event that triggers the period, 

count every day, including intermediate 

Saturdays, Sundays, and Federal 

holidays, and include the last day of the 

period unless it is a Saturday, Sunday, 

or Federal holiday as set forth in 5 

U.S.C. 6103(a). When the last day is a 

Saturday, Sunday, or Federal holiday, 

the period runs until the end of the next 

day that is not a Saturday, Sunday, or 

Federal holiday. 

(b) When papers are deemed to be 

filed or served. Filing and service are 

deemed to be effective: 

(1) In the case of personal service or 

same day commercial courier delivery, 

upon actual receipt by person served; 

(2) In the case of overnight 

commercial delivery service, Express 

Mail delivery, First Class Mail, 

Registered Mail, or Certified Mail, upon 

deposit in or delivery to an appropriate 

point of collection; or 

(3) In the case of electronic 

transmission, upon transmission. 

(c) Calculation of time for service and 

filing of responsive papers. Whenever a 

time limit is measured by a prescribed 

period from the service of any notice or 

paper, the applicable time limits are 

calculated as follows: 

(1) If service is made by First Class 

Mail, Registered Mail, or Certified Mail, 

add three calendar days to the 

prescribed period; 

(2) If service is made by Express Mail 

or overnight delivery service, add one 

calendar day to the prescribed period; or 

(3) If service is made by electronic 

transmission, add one calendar day to 

the prescribed period. 

§ 1081.115 Change of time limits. 

(a) Generally. Except as otherwise 

provided by law, the hearing officer 

may, in any proceeding before him or 

her, for good cause shown, extend the 

time limits prescribed by this part or by 

any notice or order issued in the 

proceedings. After appeal to the Director 

pursuant to § 1081.402, the Director may 

grant extensions of the time limits for 

good cause shown. Extensions may be 

granted on the motion of a party after 

notice and opportunity to respond is 

afforded all non-moving parties or on 


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10040 Federal Register / Vol. 87, No. 35 / Tuesday, February 22, 2022 / Rules and Regulations 

the Director’s or the hearing officer’s 

own motion, as appropriate. 

(b) Considerations in determining 

whether to extend time limits or grant 

postponements, adjournments and 

extensions. Motions for extensions of 

time filed pursuant to paragraph (a) of 

this section are generally disfavored. In 

determining whether to grant any 

motions, the Director or hearing officer, 

as appropriate, will consider, in 

addition to any other relevant factors: 

(1) The length of the proceeding to 

date; 

(2) The number of postponements, 

adjournments or extensions already 

granted; 

(3) The stage of the proceedings at the 

time of the motion; 

(4) The impact of the motion on the 

hearing officer’s ability to complete the 

proceeding in the time specified by 

§ 1081.400(a); and 

(5) Any other matters as justice may 

require. 

(c) Time limit. Postponements, 

adjournments, or extensions of time for 

filing papers may not exceed 21 days 

unless the Director or the hearing 

officer, as appropriate, states on the 

record or sets forth in a written order 

the reasons why a longer period of time 

is necessary. 

(d) No effect on deadline for 

preliminary findings and conclusions. 

The granting of any extension of time 

pursuant to this section does not affect 

any deadlines set pursuant to 

§ 1081.400(a). 

§ 1081.116 Witness fees and expenses. 

Respondents must pay to witnesses 

subpoenaed for testimony or 

depositions on their behalf the same 

fees for attendance and mileage as are 

paid in the United States district courts 

in proceedings in which the United 

States is a party, provided that, in the 

case of a deposition subpoena addressed 

to a party, no witness fees or mileage 

need be paid. Fees for witnesses must be 

tendered in advance by any respondent 

requesting the issuance of a subpoena, 

except that fees and mileage need not be 

tendered in advance where the Office of 

Enforcement is the party requesting the 

subpoena. The Bureau must pay to 

witnesses subpoenaed for testimony or 

depositions on behalf of the Office of 

Enforcement the same fees for 

attendance and mileage as are paid in 

the United States district courts in 

proceedings in which the United States 

is a party, but the Bureau need not 

tender such fees in advance. 

§ 1081.117 Bureau’s right to conduct 

examination, collect information. 

Nothing contained in this part limits 

in any manner the right of the Bureau 

to conduct any examination, inspection, 

or visitation of any person, to conduct 

or continue any form of investigation 

authorized by law, to collect 

information in order to monitor the 

market for risks to consumers in the 

offering or provision of consumer 

financial products or services, or to 

otherwise gather information in 

accordance with law. 

§ 1081.118 Collateral attacks on 

adjudication proceedings. 

Unless a court of competent 

jurisdiction, or the Director for good 

cause, so directs, if an interlocutory 

appeal or collateral attack is brought in 

any court concerning all or any part of 

an adjudication proceeding, the 

challenged adjudication proceeding will 

continue without regard to the 

pendency of that court proceeding. No 

default or other failure to act as directed 

in the adjudication proceeding within 

the times prescribed in this part will be 

excused based on the pendency before 

any court of any interlocutory appeal or 

collateral attack. 

§ 1081.119 Confidential information; 

protective orders. 

(a) Rights of third parties. Any party 

that intends to disclose information 

obtained from a third party that is 

subject to a claim of confidentiality 

must provide notice to the third party at 

least seven days prior to the proposed 

disclosure of such information. In 

response to such notice, the third party 

may consent to the disclosure of such 

information, which may be conditioned 

on the entry of an appropriate protective 

order, or may intervene in the 

proceeding for the limited purpose of 

moving for a protective order pursuant 

to this section. Any written filing by a 

party that contains such confidential 

information must be accompanied by a 

certification that proper notice was 

provided. The act of making any oral 

motion or oral argument by any counsel 

or party which contains such 

confidential information constitutes a 

certification that proper notice was 

provided. A third party wishing to 

intervene for purposes of protecting its 

confidential information may file a 

single motion, in conformity with all 

applicable rules, setting forth the basis 

of both the third party’s right to 

intervene and the basis for the 

protective order, in conformity with 

paragraph (b) of this section. 

(b) Procedure. In any adjudication 

proceeding, a party, including a third 

party who has intervened pursuant to 

paragraph (a) of this section, may file a 

motion requesting a protective order to 

limit from disclosure to other parties or 

to the public documents or testimony 

that contain confidential information. 

The motion should include a general 

summary or extract of the documents or 

testimony without revealing 

confidential details, and a copy of the 

proposed protective order. A motion for 

confidential treatment of documents 

should be filed in accordance with 

§ 1081.112(f), and all other applicable 

rules of this chapter. 

(c) Basis for issuance. Documents and 

testimony introduced in a public 

hearing, or filed in connection with an 

adjudication proceeding, are presumed 

to be public. A motion for a protective 

order will be granted: 

(1) Upon a finding that public 

disclosure will likely result in a clearly 

defined, serious injury to the party or 

third party requesting confidential 

treatment; 

(2) After finding that the material 

constitutes sensitive personal 

information, as defined in § 1081.112(e); 

(3) If all parties, including third 

parties to the extent their information is 

at issue, stipulate to the entry of a 

protective order; or 

(4) Where public disclosure is 

prohibited by law. 

(d) Requests for additional 

information supporting confidentiality. 

The hearing officer may require a 

movant under paragraph (b) of this 

section to furnish in writing additional 

information with respect to the grounds 

for confidentiality. Failure to supply the 

information so requested within seven 

days from the date of receipt by the 

movant of a notice of the information 

required will be deemed a waiver of the 

objection to public disclosure of that 

portion of the documents to which the 

additional information relates, unless 

the hearing officer otherwise orders for 

good cause shown at or before the 

expiration of such seven-day period. 

(e) Confidentiality of documents 

pending decision. Pending a 

determination of a motion under this 

section, the documents as to which 

confidential treatment is sought and any 

other documents that would reveal the 

confidential information in those 

documents will be maintained under 

seal and may be disclosed only in 

accordance with orders of the hearing 

officer. Any order issued in connection 

with a motion under this section will be 

public unless the order would disclose 

information as to which a protective 

order has been granted, in which case 

that portion of the order that would 

reveal the protected information will be 

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§ 1081.120 Settlement. 

(a) Availability. Any respondent in an 

adjudication proceeding instituted 

under this part, may, at any time, 

propose in writing an offer of 

settlement. 

(b) Procedure. An offer of settlement 

must state that it is made pursuant to 

this section; must recite or incorporate 

as a part of the offer the provisions of 

paragraphs (c)(3) and (4) of this section; 

must be signed by the person making 

the offer, not by counsel; and must be 

submitted to enforcement counsel. 

(c) Consideration of offers of 

settlement. (1) Offers of settlement will 

be considered when time, the nature of 

the proceedings, and the public interest 

permit. 

(2) Any settlement offer will be 

presented to the Director with a 

recommendation, except that, if the 

recommendation is unfavorable, the 

offer will not be presented to the 

Director unless the person making the 

offer so requests. 

(3) By submitting an offer of 

settlement, the person making the offer 

waives, subject to acceptance of the 

offer: 

(i) All hearings pursuant to the 

statutory provisions under which the 

proceeding has been instituted; 

(ii) The filing of proposed findings of 

fact and conclusions of law; 

(iii) Proceedings before, and 

preliminary findings and conclusions 

by, a hearing officer; 

(iv) All post-hearing procedures; 

(v) Judicial review by any court; and 

(vi) Any objection to the jurisdiction 

of the Bureau under section 1053 of the 

Consumer Financial Protection Act of 

2010 (12 U.S.C. 5563). 

(4) By submitting an offer of 

settlement the person further waives: 

(i) Such provisions of this part or 

other requirements of law as may be 

construed to prevent any Bureau 

employee from participating in the 

preparation of, or advising the Director 

as to, any order, opinion, finding of fact, 

or conclusion of law to be entered 

pursuant to the offer; and 

(ii) Any right to claim bias or 

prejudgment by the Director based on 

the consideration of or discussions 

concerning settlement of all or any part 

of the proceeding. 

(5) If the Director rejects the offer of 

settlement, the person making the offer 

will be notified of the Director’s action 

and the offer of settlement will be 

deemed withdrawn. The rejected offer 

will not constitute a part of the record 

in any proceeding against the person 

making the offer, provided, however, 

that rejection of an offer of settlement 

does not affect the continued validity of 

waivers pursuant to paragraph (c)(4) of 

this section with respect to any 

discussions concerning the rejected 

offer of settlement. 

(d) Consent orders. If the Director 

accepts the offer of settlement, all terms 

and conditions of a settlement entered 

into under this section will be recorded 

in a written stipulation signed by each 

settling respondent, and a consent order 

concluding the proceeding as to the 

settling respondents. The stipulation 

and consent order must be filed 

pursuant to § 1081.111, and must recite 

or incorporate as a part of the 

stipulation the provisions of paragraphs 

(c)(3) and (4) of this section. The 

Director will then issue a consent order, 

which will be a final order concluding 

the proceeding as to the settling 

respondents. 

§ 1081.121 Cooperation with other 

agencies. 

It is the policy of the Bureau to 

cooperate with other governmental 

agencies to avoid unnecessary overlap 

or duplication of regulatory functions. 

Subpart B—Initiation of Proceedings 

and Prehearing Rules 

§ 1081.200 Commencement of proceeding 

and contents of notice of charges. 

(a) Commencement of proceeding. A 

proceeding governed by subparts A 

through D of this part is commenced 

when the Bureau, through the Office of 

Enforcement, files a notice of charges in 

accordance with § 1081.111. The notice 

of charges must be served by the Office 

of Enforcement upon the respondent in 

accordance with § 1081.113(d)(1). 

(b) Contents of a notice of charges. 

The notice of charges must set forth: 

(1) The legal authority for the 

proceeding and for the Bureau’s 

jurisdiction over the proceeding; 

(2) A statement of the matters of fact 

and law showing that the Bureau is 

entitled to relief; 

(3) A proposed order or request for an 

order granting the relief sought; 

(4) The time and place of the hearing 

as required by law or regulation; 

(5) The time within which to file an 

answer as required by law or regulation; 

(6) That the answer must be filed and 

served in accordance with subpart A of 

this part; and 

(7) The docket number for the 

adjudication proceeding. 

(c) Publication of notice of charges. 

Unless otherwise ordered by the 

Director, the notice of charges will be 

given general circulation by release to 

the public, by publication on the 

Bureau’s website and, where directed by 

the hearing officer or the Director, by 

publication in the Federal Register. The 

Bureau may publish any notice of 

charges after 14 days from the date of 

service except if there is a pending 

motion for a protective order filed 

pursuant to § 1081.119. 

(d) Commencement of proceeding 

through a consent order. 

Notwithstanding paragraph (a) of this 

section, where the parties agree to 

settlement before the filing of a notice 

of charges, a proceeding may be 

commenced by filing a stipulation and 

consent order. The stipulation and 

consent order must be filed pursuant to 

§ 1081.111. The stipulation must 

contain the information required under 

§ 1081.120(d), and the consent order 

must contain the information required 

under paragraphs (b)(1) and (2) of this 

section. The proceeding will be 

concluded upon issuance of the consent 

order by the Director. 

(e) Voluntary dismissal—(1) Without 

an order. The Office of Enforcement 

may voluntarily dismiss an adjudication 

proceeding without an order entered by 

a hearing officer by filing either: 

(i) A notice of dismissal before the 

respondent(s) serves an answer; or 

(ii) A stipulation of dismissal signed 

by all parties who have appeared. 

(2) Effect. Unless the notice or 

stipulation states otherwise, the 

dismissal is without prejudice, and does 

not operate as an adjudication on the 

merits. 

§ 1081.201 Answer and disclosure 

statement and notification of financial 

interest. 

(a) Time to file answer. Within 14 

days of service of the notice of charges, 

respondent must file an answer as 

designated in the notice of charges. 

(b) Content of answer. An answer 

must specifically respond to each 

paragraph or allegation of fact contained 

in the notice of charges and must admit, 

deny, or state that the party lacks 

sufficient information to admit or deny 

each allegation of fact. A statement of 

lack of information has the effect of a 

denial. Denials must fairly meet the 

substance of each allegation of fact 

denied; general denials are not 

permitted. When a respondent denies 

part of an allegation, that part must be 

denied and the remainder specifically 

admitted. Any allegation of fact in the 

notice of charges which is not denied in 

the answer is deemed admitted for 

purposes of the proceeding. A 

respondent is not required to respond to 

the portion of a notice of charges that 

constitutes the request for relief or 

proposed order. A respondent must 

affirmatively state in the answer any 

avoidance or affirmative defense, 


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including but not limited to res judicata 

and statute of limitations. Failure to do 

so will be deemed a waiver. 

(c) If the allegations of the notice of 

charges are admitted. If the respondent 

elects not to contest the allegations of 

fact set forth in the notice of charges, the 

answer will consist of a statement that 

the respondent admits all the material 

allegations to be true. Such an answer 

constitutes a waiver of hearings as to the 

facts alleged in the notice of charges, 

and together with the notice of charges 

will provide a record basis on which the 

hearing officer will issue preliminary 

findings and conclusions, containing 

appropriate findings and conclusions 

and a proposed order disposing of the 

proceeding. In such an answer, the 

respondent may, however, reserve the 

right to submit proposed findings of fact 

and conclusions of law under 

§ 1081.305. 

(d) Default. (1) Failure of a respondent 

to file an answer within the time 

provided will be deemed to constitute a 

waiver of the respondent’s right to 

appear and contest the allegations of the 

notice of charges and to authorize the 

hearing officer, without further notice to 

the respondent, to find the facts to be as 

alleged in the notice of charges and to 

enter preliminary findings and 

conclusions containing appropriate 

findings and conclusions. In such cases, 

respondent will have no right to appeal 

pursuant to § 1081.402, but must instead 

proceed pursuant to paragraph (d)(2) of 

this section. 

(2) A motion to set aside a default 

must be made within a reasonable time, 

state the reasons for the failure to appear 

or defend, and specify the nature of the 

proposed defense in the proceeding. In 

order to prevent injustice and on such 

conditions as may be appropriate, the 

hearing officer, at any time prior to the 

filing of the preliminary findings and 

conclusions, or the Director, at any time, 

may for good cause shown set aside a 

default. 

(e) Disclosure statement and 

notification of financial interest—(1) 

Who must file; contents. A respondent, 

nongovernmental intervenor, or 

nongovernmental amicus must file a 

disclosure statement and notification of 

financial interest that: 

(i) Identifies any parent corporation, 

any publicly owned corporation owning 

ten percent or more of its stock, and any 

publicly owned corporation not a party 

to the proceeding that has a financial 

interest in the outcome of the 

proceeding and the nature of that 

interest; or 

(ii) States that there are no such 

corporations. 

(2) Time for filing; supplemental 

filing. A respondent, nongovernmental 

intervenor, or nongovernmental amicus 

must: 

(i) File the disclosure statement with 

its first appearance, pleading, motion, 

response, or other request addressed to 

the hearing officer or the Bureau; and 

(ii) Promptly file a supplemental 

statement if any required information 

changes. 

§ 1081.202 Amended pleadings. 

(a) Amendments before the hearing. 

The notice of charges, answer, or any 

other pleading may be amended or 

supplemented only with the opposing 

party’s written consent or leave of the 

hearing officer. The respondent must 

answer an amended notice of charges 

within the time remaining for the 

respondent’s answer to the original 

notice of charges, or within 14 days after 

service of the amended notice of 

charges, whichever is later, unless the 

hearing officer orders otherwise for good 

cause. 

(b) Amendments to conform to the 

evidence. When issues not raised in the 

notice of charges or answer are tried at 

the hearing by express or implied 

consent of the parties, they will be 

treated in all respects as if they had 

been raised in the notice of charges or 

answer, and no formal amendments are 

required. If evidence is objected to at the 

hearing on the ground that it is not 

within the issues raised by the notice of 

charges or answer, the hearing officer 

may admit the evidence when 

admission is likely to assist in 

adjudicating the merits of the action and 

the objecting party fails to satisfy the 

hearing officer that the admission of 

such evidence would unfairly prejudice 

that party’s action or defense upon the 

merits. The hearing officer may grant a 

continuance to enable the objecting 

party to meet such evidence. 

§ 1081.203 Scheduling conference. 

(a) Meeting of the parties before 

scheduling conference. As early as 

practicable before the scheduling 

conference described in paragraph (e) of 

this section, counsel for the parties must 

meet to discuss the nature and basis of 

their claims and defenses and the 

possibilities for a prompt settlement or 

resolution of the case. The parties must 

also discuss and agree, if possible, on 

the matters set forth in paragraph (e) of 

this section. 

(b) Scheduling conference disclosure. 

After the meeting required in paragraph 

(a) of this section and at least seven days 

prior to the scheduling conference 

described in paragraph (e) of this 

section, the parties must exchange a 

scheduling conference disclosure, 

which must be signed by the party or by 

the party’s attorney if one has appeared 

on behalf of the party. The scheduling 

conference disclosure must include: 

(1) A factual summary of the case, a 

summary of all factual and legal issues 

in dispute, and a summary of all factual 

and legal bases supporting each defense; 

and 

(2) The following information about 

the evidence that the party may present 

at the hearing other than solely for 

impeachment: 

(i) The name, address, and telephone 

number of each witness, together with a 

summary of the witness’s anticipated 

testimony; and 

(ii) An identification of each 

document or other exhibit, including 

summaries of other evidence, along with 

a copy of each document or exhibit 

identified unless the document or 

exhibit has already been produced to 

the other party. 

(c) Duty to supplement. A party must 

supplement or correct the scheduling 

conference disclosure in a timely 

manner if the party acquires other 

information that it intends to rely upon 

at a hearing. 

(d) Failure to disclose—harmless 

error. In the event that information 

required to be disclosed in the 

scheduling conference disclosure is not 

disclosed, no rehearing or redecision of 

a proceeding already heard or decided 

will be required unless the other party 

establishes that the failure to disclose 

was not harmless error. 

(e) Scheduling conference. Within 21 

days of service of the notice of charges 

or such other time as the parties and 

hearing officer may agree, counsel for all 

parties must appear before the hearing 

officer in person at a specified time and 

place or by electronic means for the 

purpose of scheduling the course and 

conduct of the proceeding. This meeting 

is called a scheduling conference. At the 

scheduling conference, counsel for the 

parties must be prepared to address: 

(1) Determination of the dates and 

location of the hearing, including, in 

proceedings under section 1053(b) of 

the Consumer Financial Protection Act 

of 2010 (12 U.S.C. 5563(b)), whether the 

hearing should commence later than 60 

days after service of the notice of 

charges, considering, among other 

factors, whether the respondent intends 

to file a dispositive motion or to seek 

the issuance of subpoenas; 

(2) Simplification and clarification of 

the issues; 

(3) Amendments to pleadings; 

(4) Settlement of any or all issues; 

(5) Production of documents as set 

forth in § 1081.206 and of witness 


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statements as set forth in § 1081.207, 

and prehearing production of 

documents in response to subpoenas 

duces tecum as set forth in § 1081.208; 

(6) Whether the parties intend to file 

dispositive motions; 

(7) Whether the parties intend to seek 

the issuance of subpoenas, the identity 

of any anticipated deponents or 

subpoena recipients, and a schedule for 

completing that discovery; 

(8) A schedule for the exchange of 

expert reports and the taking of expert 

depositions, if any; and 

(9) Such other matters as may aid in 

the orderly disposition of the 

proceeding. 

(f) Transcript. The hearing officer may 

require that a scheduling conference be 

recorded by a court reporter. A 

transcript of the conference and any 

materials filed, including orders, 

becomes part of the record of the 

proceeding. A party may obtain a copy 

of the transcript at that party’s expense. 

(g) Scheduling order. At or within 

seven days following the conclusion of 

the scheduling conference, the hearing 

officer will serve on each party an order 

setting forth the date and location of the 

hearing and any agreements reached 

and any procedural determinations 

made. 

(h) Failure to appear, default. Any 

person who is named in a notice of 

charges as a person against whom 

findings may be made or sanctions 

imposed and who fails to appear, in 

person or through counsel, at a 

scheduling conference of which the 

person has been duly notified may be 

deemed in default pursuant to 

§ 1081.201(d)(1). A party may make a 

motion to set aside a default pursuant to 

§ 1081.201(d)(2). 

(i) Public access. The scheduling 

conference will be public unless the 

hearing officer determines, based on the 

standard set forth in § 1081.119(c), that 

the conference (or any part thereof) 

should be closed to the public. 

§ 1081.204 Consolidation, severance, or 

bifurcation of proceedings. 

(a) Consolidation. (1) On the motion 

of any party, or on the hearing officer’s 

own motion, the hearing officer may 

consolidate, for some or all purposes, 

any two or more proceedings, if each 

such proceeding involves or arises out 

of the same transaction, occurrence or 

series of transactions or occurrences, or 

involves at least one common 

respondent or a material common 

question of law or fact, unless such 

consolidation would cause 

unreasonable delay or injustice. 

(2) In the event of consolidation under 

paragraph (a)(1) of this section, 

appropriate adjustment to the 

prehearing schedule may be made to 

avoid unnecessary expense, 

inconvenience, or delay. 

(b) Severance. The hearing officer 

may, upon the motion of any party, 

sever the proceeding for separate 

resolution of the matter as to any 

respondent only if the hearing officer 

finds that: 

(1) Undue prejudice or injustice to the 

moving party would result from not 

severing the proceeding; and 

(2) Such undue prejudice or injustice 

would outweigh the interests of judicial 

economy and expedition in the 

complete and final resolution of the 

proceeding. 

(c) Bifurcation. The Director may 

order that the proceeding be divided 

into two or more stages, if the Director 

determines that it would promote 

efficiency in the proceeding or for other 

good cause. For example, the Director 

may order that the proceeding have two 

stages, so that at the conclusion of the 

first stage the Director issues a decision 

on whether there have been violations 

of law and at the conclusion of the 

second stage the Director issues a final 

decision and order, including with 

respect to any remedies. The Director 

may make an order under this paragraph 

(c) either on the motion of a party or on 

the Director’s own motion after inviting 

submissions by the parties. The Director 

may include, in that order or in later 

orders, modifications to the procedures 

in this part in order to effectuate an 

efficient division into stages, or the 

Director may assign such authority to 

the hearing officer. Only the decision 

and order of the Director after the final 

stage, and not a decision of the Director 

after an earlier stage, will be a final 

decision and order for purposes of 

§§ 1081.110, 1081.405(d) and (e), 

1081.407, and 1081.502 and section 

1053(b) of the Consumer Financial 

Protection Act of 2010 (12 U.S.C. 

5563(b)). 

§ 1081.205 Non-dispositive motions. 

(a) Scope. This section applies to all 

motions except motions to dismiss and 

motions for summary disposition. A 

non-dispositive motion filed pursuant to 

another section of this part must comply 

with any specific requirements of that 

section and this section to the extent the 

requirements in this section are not 

inconsistent. 

(b) In writing. (1) Unless made during 

a hearing or conference, an application 

or request for an order or ruling must be 

made by written motion. 

(2) All written motions must state 

with particularity the relief sought and 

must be accompanied by a proposed 

order. 

(3) No oral argument may be held on 

written motions except as otherwise 

directed by the hearing officer. Written 

memoranda, briefs, affidavits or other 

relevant material or documents may be 

filed in support of or in opposition to a 

motion. 

(c) Oral motions. The Director or the 

hearing officer, as appropriate, may 

order that an oral motion be submitted 

in writing. 

(d) Responses and replies. (1) Except 

as otherwise provided in this section, 

within 14 days after service of any 

written motion, or within such other 

period of time as may be established by 

the hearing officer or the Director, as 

appropriate, any party may file a written 

response to a motion. The hearing 

officer will not rule on any oral or 

written motion before each party has 

had an opportunity to file a response. 

(2) Reply briefs, if any, may be filed 

within seven days after service of the 

response. 

(3) The failure of a party to oppose a 

written motion or an oral motion made 

on the record is deemed consent by that 

party to the entry of an order 

substantially in the form of the order 

accompanying the motion. 

(e) Length limitations. No motion 

subject to this section (together with the 

brief in support of the motion) or brief 

in response to the motion may exceed 

15 pages in length, exclusive of pages 

containing the table of contents, table of 

authorities, and any addendum that 

consists solely of copies of applicable 

cases, pertinent legislative provisions or 

rules, and exhibits. No reply brief may 

exceed six pages in length, exclusive of 

pages containing the table of contents, 

table of authorities, and any addendum 

that consists solely of copies of 

applicable cases, pertinent legislative 

provisions or rules, and exhibits. 

Motions for leave to file motions and 

briefs in excess of these limitations are 

disfavored. 

(f) Meet and confer requirements. 

Each motion filed under this section 

must be accompanied by a signed 

statement representing that counsel for 

the moving party has conferred or made 

a good faith effort to confer with 

opposing counsel in a good faith effort 

to resolve by agreement the issues raised 

by the motion and has been unable to 

reach such an agreement. If some of the 

matters in controversy have been 

resolved by agreement, the statement 

must specify the matters so resolved and 

the matters remaining unresolved. 

(g) Ruling on non-dispositive motions. 

Unless otherwise provided by a relevant 

section of this part, a hearing officer will 


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rule on non-dispositive motions. Such 

ruling must be issued within 14 days 

after the expiration of the time period 

allowed for the filing of all motion 

papers authorized by this section. The 

Director, for good cause, may extend the 

time allowed for a ruling. 

(h) Proceedings not stayed. A motion 

under consideration by the Director or 

the hearing officer does not stay 

proceedings before the hearing officer 

unless the Director or the hearing 

officer, as appropriate, so orders. 

(i) Dilatory motions. Frivolous, 

dilatory, or repetitive motions are 

prohibited. The filing of such motions 

may form the basis for sanctions. 

§ 1081.206 Availability of documents for 

inspection and copying. 

For purposes of this section, the term 

documents includes any book, 

document, record, report, 

memorandum, paper, communication, 

tabulation, chart, logs, electronic files, 

or other data or data compilations stored 

in any medium. 

(a) Documents to be available for 

inspection and copying. (1) Unless 

otherwise provided by this section, or 

by order of the hearing officer, the 

Office of Enforcement will make 

available for inspection and copying by 

any respondent documents obtained by 

the Office of Enforcement prior to the 

institution of proceedings, from persons 

not employed by the Bureau, in 

connection with the investigation 

leading to the institution of proceedings. 

Such documents will include: 

(i) Any documents turned over in 

response to civil investigative demands 

or other written requests to provide 

documents or to be interviewed issued 

by the Office of Enforcement; 

(ii) All transcripts and transcript 

exhibits; and 

(iii) Any other documents obtained 

from persons not employed by the 

Bureau. 

(2) In addition, the Office of 

Enforcement will make available for 

inspection and copying by any 

respondent: 

(i) Each civil investigative demand or 

other written request to provide 

documents or to be interviewed issued 

by the Office of Enforcement in 

connection with the investigation 

leading to the institution of proceedings; 

and 

(ii) Any final examination or 

inspection reports prepared by any 

other Office of the Bureau if the Office 

of Enforcement either intends to 

introduce any such report into evidence 

or to use any such report to refresh the 

recollection of, or impeach, any witness. 

(3) Nothing in paragraph (a) of this 

section limits the right of the Office of 

Enforcement to make available any 

other document, or limits the right of a 

party to seek access to or production 

pursuant to subpoena of any other 

document, or limits the authority of the 

hearing officer to order the production 

of any document pursuant to subpoena. 

(4) Nothing in paragraph (a) of this 

section requires the Office of 

Enforcement to produce a final 

examination or inspection report 

prepared by any other Office of the 

Bureau or any other government agency 

to a respondent who is not the subject 

of that report. 

(b) Documents that may be withheld. 

(1) The Office of Enforcement may 

withhold a document if: 

(i) The document is privileged; 

(ii) The document is an internal 

memorandum, note, or writing prepared 

by a person employed by the Bureau or 

another Government agency, other than 

an examination or supervision report as 

specified in paragraph (a)(2)(ii) of this 

section, or would otherwise be subject 

to the work product doctrine and will 

not be offered in evidence; 

(iii) The document was obtained from 

a domestic or foreign governmental 

entity and is either not relevant to the 

resolution of the proceeding or was 

provided on condition that the 

information not be disclosed; 

(iv) The document would disclose the 

identity of a confidential source; 

(v) Applicable law prohibits the 

disclosure of the document; 

(vi) The document reflects only 

settlement negotiations between the 

Office of Enforcement and a person or 

entity who is not a current respondent 

in the proceeding; or 

(vii) The hearing officer grants leave 

to withhold a document or category of 

documents as not relevant to the subject 

matter of the proceeding or otherwise, 

for good cause shown. 

(2) Nothing in paragraph (b)(1) of this 

section authorizes the Office of 

Enforcement in connection with an 

adjudication proceeding to withhold 

material exculpatory evidence in the 

possession of the Office that would 

otherwise be required to be produced 

pursuant to paragraph (a) of this section. 

(c) Withheld document list. The 

hearing officer may require the Office of 

Enforcement to produce a list of 

documents or categories of documents 

withheld pursuant to paragraphs 

(b)(1)(i) through (vi) of this section or to 

submit to the hearing officer any 

document withheld, except for any 

documents that are being withheld 

pursuant to paragraph (b)(1)(iii) of this 

section, in which case the Office of 

Enforcement must inform the other 

parties of the fact that such documents 

are being withheld, but no further 

disclosures regarding those documents 

will be required. The hearing officer 

may determine whether any withheld 

document should be made available for 

inspection and copying. When similar 

documents are withheld pursuant to 

paragraphs (b)(1)(i) through (vi) of this 

section, those documents may be 

identified by category instead of by 

individual document. The hearing 

officer retains discretion to determine 

when an identification by category is 

insufficient. 

(d) Timing of inspection and copying. 

Unless otherwise ordered by the hearing 

officer, the Office of Enforcement must 

commence making documents available 

to a respondent for inspection and 

copying pursuant to this section no later 

than 14 days after service of the notice 

of charges. 

(e) Place of inspection and copying. 

Documents subject to inspection and 

copying pursuant to this section will be 

made available to the respondent for 

inspection and copying at the Bureau 

office where they are ordinarily 

maintained, or at such other place as the 

parties, in writing, may agree. A 

respondent will not be given custody of 

the documents or leave to remove the 

documents from the Bureau’s offices 

pursuant to the requirements of this 

section other than by written agreement 

of the Office of Enforcement. Such 

agreement must specify the documents 

subject to the agreement, the date they 

must be returned, and such other terms 

or conditions as are appropriate to 

provide for the safekeeping of the 

documents. If the Office of Enforcement 

determines that production of some or 

all the documents required to be 

produced under this section can be 

produced in an electronic format, the 

Office of Enforcement may instead 

produce the documents in an electronic 

format. 

(f) Copying costs and procedures. The 

respondent may obtain a photocopy of 

any documents made available for 

inspection or, at the discretion of the 

Office of Enforcement, electronic copies 

of such documents. The respondent is 

responsible for the cost of 

photocopying. Unless otherwise 

ordered, charges for copies made by the 

Office of Enforcement at the request of 

the respondent will be at the rate 

charged pursuant to part 1070 of this 

chapter. The respondent will be given 

access to the documents at the Bureau’s 

offices or such other place as the parties 

may agree during normal business hours 

for copying of documents at the 

respondent’s expense. 


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(g) Duty to supplement. If the Office 

of Enforcement acquires information 

that it intends to rely upon at a hearing 

after making its disclosures under 

paragraph (a)(1) of this section, the 

Office of Enforcement must supplement 

its disclosures to include such 

information. 

(h) Failure to make documents 

available—harmless error. In the event 

that a document required to be made 

available to a respondent pursuant to 

this section is not made available by the 

Office of Enforcement, no rehearing or 

redecision of a proceeding already heard 

or decided will be required unless the 

respondent establishes that the failure to 

make the document available was not 

harmless error. 

(i) Disclosure of privileged or 

protected information or 

communications; scope of waiver; 

obligations of receiving party. (1) The 

disclosure of privileged or protected 

information or communications by any 

party during an adjudication proceeding 

does not operate as a waiver if: 

(i) The disclosure was inadvertent; 

(ii) The holder of the privilege or 

protection took reasonable steps to 

prevent disclosure; and 

(iii) The holder promptly took 

reasonable steps to rectify the error, 

including notifying any party that 

received the information or 

communication of the claim and the 

basis for it. 

(2) After being notified, the receiving 

party must promptly return, sequester, 

or destroy the specified information and 

any copies it has; must not use or 

disclose the information until the claim 

is resolved; must take reasonable steps 

to retrieve the information if the party 

disclosed it before being notified; and 

may promptly present the information 

to the hearing officer under seal for a 

determination of the claim. The 

producing party must preserve the 

information until the claim is resolved. 

(3) The disclosure of privileged or 

protected information or 

communications by any party during an 

adjudication proceeding will waive the 

privilege or protection, with respect to 

other parties to the proceeding, as to 

undisclosed information or 

communications only if: 

(i) The waiver is intentional; 

(ii) The disclosed and undisclosed 

information or communications concern 

the same subject matter; and 

(iii) They ought in fairness to be 

considered together. 

§ 1081.207 Production of witness 

statements. 

(a) Availability. Any respondent may 

move that the Office of Enforcement 

produce for inspection and copying any 

statement of any person called or to be 

called as a witness by the Office of 

Enforcement that pertains, or is 

expected to pertain, to the witness’s 

direct testimony and that would be 

required to be produced pursuant to the 

Jencks Act, 18 U.S.C. 3500, if the 

adjudication proceeding were a criminal 

proceeding. For purposes of this section, 

the term ‘‘statement’’ has the meaning 

set forth in 18 U.S.C. 3500(e). Such 

production will be made at a time and 

place fixed by the hearing officer and 

will be made available to any party, 

provided, however, that the production 

must be made under conditions 

intended to preserve the items to be 

inspected or copied. 

(b) Failure to produce—harmless 

error. In the event that a statement 

required to be made available to a 

respondent pursuant to this section is 

not made available by the Office of 

Enforcement, no rehearing or redecision 

of a proceeding already heard or 

decided will be required unless the 

respondent establishes that the failure to 

make the statement available was not 

harmless error. 

§ 1081.208 Subpoenas. 

(a) Availability. In connection with 

any hearing ordered by the hearing 

officer or any deposition permitted 

under § 1081.209, a party may request 

the issuance of subpoenas requiring the 

attendance and testimony of witnesses 

at such depositions or at the designated 

time and place of the hearing, or the 

production of documentary or other 

tangible evidence returnable at any 

designated time or place. 

(b) Procedure. Unless made on the 

record at a hearing, requests for issuance 

of a subpoena must be made in writing, 

and filed and served on each party 

pursuant to subpart A of this part. The 

request must contain a proposed 

subpoena and a brief statement showing 

the general relevance and 

reasonableness of the scope of testimony 

or documents sought. 

(c) Signing may be delegated. A 

hearing officer may authorize issuance 

of a subpoena, and may delegate the 

manual signing of the subpoena to any 

other person. 

(d) Standards for issuance of 

subpoenas requiring the attendance and 

testimony of witnesses at the hearing or 

the production of documentary or other 

tangible evidence. The hearing officer 

will promptly issue any subpoena 

requiring the attendance and testimony 

of witnesses at the designated time and 

place of the hearing or the production 

of documentary or other tangible 

evidence. Where it appears to the 

hearing officer that the subpoena sought 

may be unreasonable, oppressive, 

excessive in scope, or unduly 

burdensome, the hearing officer may, as 

a condition precedent to the issuance of 

the subpoena, require the person 

seeking the subpoena to show further 

the general relevance and reasonable 

scope of the testimony or other evidence 

sought. If after consideration of all the 

circumstances, the hearing officer 

determines that the subpoena or any of 

its terms is unreasonable, oppressive, 

excessive in scope, or unduly 

burdensome, the hearing officer may 

refuse to issue the subpoena, or issue it 

only upon such conditions as fairness 

requires. In making the foregoing 

determination, the hearing officer may 

inquire of the other parties whether they 

will stipulate to the facts sought to be 

proved. 

(e) Standards for issuance of 

subpoenas requiring the deposition of a 

witness pursuant to § 1081.209. (1) The 

hearing officer will promptly issue any 

subpoena requiring the attendance and 

testimony of witnesses at a deposition 

only if the subpoena complies with 

§ 1081.209 and if: 

(i) The proposed deponent is a 

witness identified in the other party’s 

scheduling conference disclosure under 

§ 1081.203(b); 

(ii) The proposed deponent was a 

witness of or participant in any event, 

transaction, occurrence, act, or omission 

that forms the basis for any claim 

asserted by the Office of Enforcement, 

any defense, or anything else required to 

be included in an answer pursuant to 

§ 1081.201(b), by any respondent in the 

proceeding (this excludes a proposed 

deponent whose only knowledge of 

these matters arises from the Bureau’s 

investigation, the Bureau’s examination, 

or the proceeding); 

(iii) The proposed deponent is 

designated as an ‘‘expert witness’’ under 

§ 1081.210(b); provided, however, that 

the deposition of an expert who is 

required to submit a written report 

under § 1081.210(b) may only occur 

after such report is served; 

(iv) The proposed deponent has 

custody of documents or electronic data 

relevant to the claims or defenses of any 

party (this excludes officers or 

personnel of the Bureau who have 

custody of documents or data that was 

produced by the Office of Enforcement 

to the respondent); or 

(v) The proposed deponent is 

unavailable for the hearing as set forth 

in § 1081.209(c). 

(2) Where it appears to the hearing 

officer that the subpoena sought may be 

unreasonable, oppressive, excessive in 

scope, or unduly burdensome, the 


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hearing officer may, as a condition 

precedent to the issuance of the 

subpoena, require the person seeking 

the subpoena to show further the 

general relevance and reasonable scope 

of the testimony or other evidence 

sought. If after consideration of all the 

circumstances, the hearing officer 

determines that the subpoena or any of 

its terms is unreasonable, oppressive, 

excessive in scope, or unduly 

burdensome, the hearing officer may 

refuse to issue the subpoena, or issue it 

only upon such conditions as fairness 

requires. In making the foregoing 

determination, the hearing officer may 

inquire of the other parties whether they 

will stipulate to the facts sought to be 

proved. 

(f) Service. Upon issuance by the 

hearing officer, the party making the 

request will serve the subpoena on the 

person named in the subpoena and on 

each party in accordance with 

§ 1081.113(c). Subpoenas may be served 

in any State, territory, possession of the 

United States, or the District of 

Columbia, on any person or company 

doing business in any State, territory, 

possession of the United States, or the 

District of Columbia, or as otherwise 

permitted by law. 

(g) Tender of fees required. When a 

subpoena compelling the attendance of 

a person at a hearing or a deposition is 

issued at the request of anyone other 

than an officer or agency of the United 

States, service is valid only if the 

subpoena is accompanied by a tender to 

the subpoenaed person of the fees for 

one day’s attendance and mileage 

specified by § 1081.116. 

(h) Place of compliance. A subpoena 

for a deposition may command a person 

to attend a deposition only as follows: 

(1) Within 100 miles of where the 

person resides, is employed, or regularly 

transacts business in person; 

(2) Within the State where the person 

resides, is employed, or regularly 

transacts business in person, if the 

person is a party or a party’s officer; 

(3) At such other location that the 

parties and proposed deponent 

stipulate; or 

(4) At such other location that the 

hearing officer determines is 

appropriate. 

(i) Production of documentary 

material. Production of documentary 

material in response to a subpoena must 

be made under a sworn certificate, in 

such form as the subpoena designates, 

by the person to whom the subpoena is 

directed or, if not a natural person, by 

any person having knowledge of the 

facts and circumstances relating to such 

production, to the effect that all of the 

documentary material required by the 

subpoena and in the possession, 

custody, or control of the person to 

whom the subpoena is directed has been 

produced and made available to the 

custodian. 

(j) Motion to quash or modify—(1) 

Procedure. Any person to whom a 

subpoena is directed, or who is an 

owner, creator, or the subject of the 

documents that are to be produced 

pursuant to a subpoena, or any party 

may, prior to the time specified therein 

for compliance, but in no event more 

than seven days after the date of service 

of such subpoena, move that the 

subpoena be quashed or modified. Such 

motion must be filed and served on all 

parties pursuant to subpart A of this 

part. Notwithstanding § 1081.205, the 

party on whose behalf the subpoena was 

issued or enforcement counsel may, 

within seven days of service of the 

motion, file a response to the motion. 

Reply briefs are not permitted unless 

requested by the hearing officer. Filing 

a motion to modify a subpoena does not 

stay the movant’s obligation to comply 

with those portions of the subpoena that 

the person has not sought to modify. 

(2) Standards governing motion to 

quash or modify. If compliance with the 

subpoena would be unreasonable, 

oppressive, or unduly burdensome, the 

hearing officer must quash or modify 

the subpoena, or may order return of the 

subpoena only upon specified 

conditions. These conditions may 

include but are not limited to a 

requirement that the party on whose 

behalf the subpoena was issued make 

reasonable compensation to the person 

to whom the subpoena was addressed 

for the cost of copying or transporting 

evidence to the place for return of the 

subpoena. 

(k) Enforcing subpoenas. If a 

subpoenaed person fails to comply with 

any subpoena issued pursuant to this 

part or any order of the hearing officer 

which directs compliance with all or 

any portion of a subpoena, the Bureau’s 

General Counsel may, on its own 

motion or at the request of the party on 

whose behalf the subpoena was issued, 

apply to an appropriate United States 

district court, in the name of the Bureau 

but on relation of such party, for an 

order requiring compliance with so 

much of the subpoena as the hearing 

officer has not quashed or modified, 

unless, in the judgment of the General 

Counsel, the enforcement of such 

subpoena would be inconsistent with 

law and the policies of the Consumer 

Financial Protection Act of 2010. 

Failure to request that the Bureau’s 

General Counsel seek enforcement of a 

subpoena constitutes a waiver of any 

claim of prejudice predicated upon the 

unavailability of the testimony or 

evidence sought. 

(l) Relationship to scheduling of 

hearing. The parties must disclose at the 

scheduling conference required under 

§ 1081.203(e) whether they intend to 

request the issuance of subpoenas under 

§ 1081.209. A respondent’s request for 

issuance of a subpoena constitutes a 

request that the hearing not be held 

until after a reasonable period, 

determined by the hearing officer, for 

the completion of discovery. The 

hearing officer will decide whether to 

grant such a request. If the request is 

granted, the hearing officer will set a 

deadline for the completion of discovery 

and schedule the specific date of the 

hearing, in consultation with the 

parties. This paragraph (l) does not 

apply to a subpoena for the attendance 

and testimony of a witness at the 

hearing or a subpoena to depose a 

witness unavailable for the hearing. 

§ 1081.209 Depositions. 

(a) Depositions by oral examination or 

by written questions. Depositions by oral 

examination or by written questions 

may be taken as set forth in this section 

and must be taken pursuant to subpoena 

issued under § 1081.208. Any 

deposition permitted under this section 

may be taken and submitted on written 

questions upon motion of any party, for 

good cause shown, or as stipulated by 

the parties. No other depositions will be 

permitted except as provided in 

paragraph (c) of this section. 

(1) If the proceeding involves a single 

respondent, the respondent may depose 

no more than three persons, and the 

Office of Enforcement may depose no 

more than three persons. 

(2) If the proceeding involves multiple 

respondents, the respondents 

collectively may depose no more than 

five persons, and the Office of 

Enforcement may depose no more than 

five persons. The depositions taken 

under this paragraph (a)(2) cannot 

exceed a total of five depositions for the 

Office of Enforcement, and five 

depositions for all respondents 

collectively. 

(3) Any side may file a motion with 

the hearing officer seeking leave to take 

up to two additional depositions beyond 

those permitted pursuant to paragraphs 

(a)(1) and (2) of this section. 

(i) Procedure. (A) A motion for 

additional depositions must be filed no 

later than 28 days prior to the hearing 

date. If the moving side proposes to take 

the additional deposition(s) by written 

questions, the motion must so state and 

include the proposed questions. Any 

party opposing the motion may submit 

an opposition within seven days after 


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service of the motion. No reply will be 

permitted. The motion and any 

oppositions each must not exceed seven 

pages in length. 

(B) Upon consideration of the motion 

and any opposing papers, the hearing 

officer will issue an order either 

granting or denying the motion. The 

hearing officer will consider the motion 

on an expedited basis. 

(ii) Grounds and standards for 

motion. A motion under paragraph 

(a)(3) of this section will not be granted 

unless the additional depositions satisfy 

§ 1081.208(d) and the moving side 

demonstrates a compelling need for the 

additional depositions by: 

(A) Identifying all witnesses the 

moving side plans to depose under this 

section; 

(B) Describing the role of all 

witnesses; 

(C) Describing the matters concerning 

which all witnesses are expected to be 

questioned, and why the deposition of 

all witnesses is necessary for the moving 

side’s arguments, claims, or defenses; 

and 

(D) Showing that the additional 

deposition(s) requested will not be 

unreasonably cumulative or duplicative. 

(b) Additional procedure for 

depositions by written questions. (1) 

Any motion or stipulation seeking a 

deposition of a witness by written 

questions must include the written 

questions the party seeking the 

deposition will ask the witness. Within 

seven days after service of the motion 

and written questions, any party may 

file objections to such written questions 

and any party may file cross-questions. 

When a deposition is taken by written 

questions, no persons other than the 

witness, counsel to the witness, the 

deposition officer, and, if the deposition 

officer does not act as reporter, a 

reporter, may be present at the 

examination of the witness. No party 

may be present or represented unless 

otherwise permitted by order. The 

deposition officer will propound the 

questions and cross-questions to the 

witness in the order submitted. 

(2) The order for deposition, filing of 

the deposition, form of the deposition, 

and use of the deposition in the record 

will be governed by paragraphs (d) 

through (l) of this section, except that no 

cross-examination will be made. 

(c) Depositions when witness is 

unavailable. In addition to depositions 

permitted under paragraph (a) of this 

section, the hearing officer may grant a 

party’s request for issuance of a 

subpoena if the requesting party shows 

that the prospective witness will likely 

give testimony material to the 

proceeding; that it is likely the 

prospective witness, who is then within 

the United States, will be unable to 

attend or testify at the hearing because 

of age, sickness, infirmity, 

imprisonment, other disability, or 

absence from the United States, unless 

it appears that the absence of the 

witness was procured by the party 

requesting the deposition; and that the 

taking of a deposition will serve the 

interests of justice. 

(d) Service and contents of notice. 

Upon issuance of a subpoena for a 

deposition, the party taking the 

deposition must serve a notice on each 

party pursuant to § 1081.113. A notice 

of deposition must state that the 

deposition will be taken before a 

deposition officer authorized to 

administer oaths by the laws of the 

United States or of the place where the 

deposition is to be held. A notice of 

deposition also must state: 

(1) The name and address of the 

witness whose deposition is to be taken; 

(2) The time and place of the 

deposition; and 

(3) The manner of recording and 

preserving the deposition. 

(e) Method of recording—(1) Method 

stated in the notice. The party who 

notices the deposition must state in the 

notice the method for recording the 

testimony. Unless the hearing officer 

orders otherwise, testimony may be 

recorded by audio, audiovisual, or 

stenographic means. The noticing party 

bears the recording costs. Any party 

may arrange to transcribe a deposition, 

at that party’s expense. Each party will 

bear its own costs for obtaining copies 

of any transcripts or audio or 

audiovisual recordings. 

(2) Additional method. With prior 

notice to the deponent and other parties, 

any party may designate another 

method for recording the testimony in 

addition to that specified in the original 

notice. That party bears the expense of 

the additional record or transcript 

unless the hearing officer orders 

otherwise. 

(f) By remote means. The parties and 

the deponent may stipulate—or the 

hearing officer may on motion order— 

that a deposition be taken by telephone 

or other electronic means. For the 

purpose of this section, the deposition 

takes place where the deponent answers 

the questions. 

(g) Deposition officer’s duties—(1) 

Before the deposition. The deposition 

officer must begin the deposition with 

an on-the-record statement that 

includes: 

(i) The deposition officer’s name and 

business address; 

(ii) The date, time, and place of the 

deposition; 

(iii) The deponent’s name; 

(iv) The deposition officer’s 

administration of the oath or affirmation 

to the deponent; and 

(v) The identity of all persons present. 

(2) Conducting the deposition; 

avoiding distortion. If the deposition is 

recorded non-stenographically, the 

deposition officer must repeat the items 

in paragraphs (g)(1)(i) through (iii) of 

this section at the beginning of each unit 

of the recording medium. The 

deponent’s and attorneys’ appearance or 

demeanor must not be distorted through 

recording techniques. 

(3) After the deposition. At the end of 

a deposition, the deposition officer must 

state on the record that the deposition 

is complete and must set out any 

stipulations made by the attorneys about 

custody of the transcript or recording 

and of the exhibits, or about any other 

pertinent matters. 

(h) Order and record of the 

examination—(1) Order of examination. 

The examination and cross-examination 

of a deponent will proceed as they 

would at the hearing. After putting the 

deponent under oath or affirmation, the 

deposition officer must record the 

testimony by the method designated 

under paragraph (e) of this section. The 

testimony must be recorded by the 

deposition officer personally or by a 

person acting in the presence and under 

the direction of the deposition officer. 

The witness being deposed may have 

counsel present during the deposition. 

(2) Form of objections stated during 

the deposition. An objection at the time 

of the examination—whether to 

evidence, to a party’s conduct, to the 

deposition officer’s qualifications, to the 

manner of taking the deposition, or to 

any other aspect of the deposition— 

must be noted on the record, but the 

examination may still proceed and the 

testimony may be taken subject to any 

objection. An objection must be stated 

concisely in a nonargumentative and 

nonsuggestive manner. A person may 

instruct a deponent not to answer only 

when necessary to preserve a privilege, 

to enforce a limitation ordered by the 

hearing officer, or to present a motion to 

the hearing officer for a limitation on 

the questioning in the deposition. 

(i) Waiver of objections—(1) To the 

notice. An objection to an error or 

irregularity in a deposition notice is 

waived unless promptly served in 

writing on the party giving the notice. 

(2) To the deposition officer’s 

qualification. An objection based on 

disqualification of the deposition officer 

before whom a deposition is to be taken 

is waived if not made: 

(i) Before the deposition begins; or 


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(ii) Promptly after the basis for 

disqualification becomes known or, 

with reasonable diligence, could have 

been known. 

(3) To the taking of the deposition— 

(i) Objection to competence, relevance, 

or materiality. An objection to a 

deponent’s competence—or to the 

competence, relevance, or materiality of 

testimony—is not waived by a failure to 

make the objection before or during the 

deposition, unless the ground for it 

might have been corrected at that time. 

(ii) Objection to an error or 

irregularity. An objection to an error or 

irregularity at an oral examination is 

waived if: 

(A) It relates to the manner of taking 

the deposition, the form of a question or 

answer, the oath or affirmation, a party’s 

conduct, or other matters that might 

have been corrected at that time; and 

(B) It is not timely made during the 

deposition. 

(4) To completing and returning the 

deposition. An objection to how the 

deposition officer transcribed the 

testimony—or prepared, signed, 

certified, sealed, endorsed, sent, or 

otherwise dealt with the deposition—is 

waived unless a motion to suppress is 

made promptly after the error or 

irregularity becomes known or, with 

reasonable diligence, could have been 

known. 

(j) Duration; cross-examination; 

motion to terminate or limit—(1) 

Duration. Unless otherwise stipulated or 

ordered by the hearing officer, a 

deposition is limited to one day of seven 

hours, including cross-examination as 

provided in this paragraph (j)(1). In a 

deposition conducted by or for a 

respondent, the Office of Enforcement 

will be allowed a reasonable amount of 

time for cross-examination of the 

deponent. In a deposition conducted by 

the Office, the respondents collectively 

will be allowed a reasonable amount of 

time for cross-examination of the 

deponent. The hearing officer may allow 

additional time if needed to fairly 

examine the deponent or if the 

deponent, another person, or any other 

circumstance impedes or delays the 

examination. 

(2) Motion to terminate or limit—(i) 

Grounds. At any time during a 

deposition, the deponent or a party may 

move to terminate or limit it on the 

ground that it is being conducted in bad 

faith or in a manner that unreasonably 

annoys, embarrasses, or oppresses the 

deponent or party. If the objecting 

deponent or party so demands, the 

deposition must be suspended for the 

time necessary to present the motion to 

the hearing officer. 

(ii) Order. Upon a motion under 

paragraph (j)(2)(i) of this section, the 

hearing officer may order that the 

deposition be terminated or may limit 

its scope. If terminated, the deposition 

may be resumed only by order of the 

hearing officer. 

(k) Review by the witness; changes— 

(1) Review; statement of changes. On 

request by the deponent or a party 

before the deposition is completed, and 

unless otherwise ordered by the hearing 

officer, the deponent must be allowed 

14 days after being notified by the 

deposition officer that the transcript or 

recording is available, unless a longer 

time is agreed to by the parties or 

permitted by the hearing officer, in 

which: 

(i) To review the transcript or 

recording; and 

(ii) If there are changes in form or 

substance, to sign a statement listing the 

changes and the reasons for making 

them. 

(2) Changes indicated in the 

deposition officer’s certificate. The 

deposition officer must note in the 

certificate prescribed by paragraph (l)(1) 

of this section whether a review was 

requested and, if so, must attach any 

changes the deponent makes during the 

14-day period. 

(l) Certification and delivery; exhibits; 

copies of the transcript or recording—(1) 

Certification and delivery. The 

deposition officer must certify in 

writing that the witness was duly sworn 

and that the deposition accurately 

records the witness’s testimony. The 

certificate must accompany the record 

of the deposition. Unless the hearing 

officer orders otherwise, the deposition 

officer must seal the deposition in an 

envelope or package bearing the title of 

the action and marked ‘‘Deposition of 

[witness’s name]’’ and must promptly 

send it to the attorney or party who 

arranged for the transcript or recording. 

The attorney or party must store it 

under conditions that will protect it 

against loss, destruction, tampering, or 

deterioration. 

(2) Documents and tangible things— 

(i) Originals and copies. Documents and 

tangible things produced for inspection 

during a deposition must, on a party’s 

request, be marked for identification 

and attached to the deposition. Any 

party may inspect and copy them. But 

if the person who produced them wants 

to keep the originals, the person may: 

(A) Offer copies to be marked, 

attached to the deposition, and then 

used as originals—after giving all parties 

a fair opportunity to verify the copies by 

comparing them with the originals; or 

(B) Give all parties a fair opportunity 

to inspect and copy the originals after 

they are marked—in which event the 

originals may be used as if attached to 

the deposition. 

(ii) Order regarding the originals. Any 

party may move for an order that the 

originals be attached to the deposition 

pending final disposition of the case. 

(3) Copies of the transcript or 

recording. Unless otherwise stipulated 

or ordered by the hearing officer, the 

deposition officer must retain the 

stenographic notes of a deposition taken 

stenographically or a copy of the 

recording of a deposition taken by 

another method. When paid reasonable 

charges, the deposition officer must 

furnish a copy of the transcript or 

recording to any party or the deponent, 

as directed by the party or person 

paying such charges. 

(m) Presentation of objections or 

disputes. Any party or deponent seeking 

relief with respect to disputes over the 

conduct of a deposition may file a 

motion with the hearing officer to obtain 

relief as permitted by this part. 

§ 1081.210 Expert discovery. 

(a) At a date set by the hearing officer 

at the scheduling conference, each party 

must serve the other with a report 

prepared by each of its expert witnesses. 

Each party must serve the other parties 

with a list of any rebuttal expert 

witnesses and a rebuttal report prepared 

by each such witness not later than 28 

days after the deadline for service of 

expert reports, unless another date is set 

by the hearing officer. A rebuttal report 

must be limited to rebuttal of matters set 

forth in the expert report for which it is 

offered in rebuttal. If material outside 

the scope of fair rebuttal is presented, a 

party may file a motion not later than 

seven days after the deadline for service 

of rebuttal reports, seeking appropriate 

relief with the hearing officer, including 

striking all or part of the report, leave 

to submit a surrebuttal report by the 

party’s own experts, or leave to call a 

surrebuttal witness and to submit a 

surrebuttal report by that witness. 

(b) No party may call an expert 

witness at the hearing unless the expert 

witness has been listed and has 

provided reports as required by this 

section, unless otherwise directed by 

the hearing officer at a scheduling 

conference. Each side will be limited to 

calling at the hearing five expert 

witnesses, including any rebuttal or 

surrebuttal expert witnesses. A party 

may file a motion seeking leave to call 

additional expert witnesses due to 

extraordinary circumstances. 

(c) Each report must be signed by the 

expert and contain a complete statement 

of all opinions to be expressed and the 

basis and reasons therefore; the data, 


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materials, or other information 

considered by the witness in forming 

the opinions; any exhibits to be used as 

a summary of or support for the 

opinions; the qualifications of the 

witness, including a list of all 

publications authored or co-authored by 

the witness within the preceding ten 

years; the compensation to be paid for 

the study and testimony; and a listing of 

any other cases in which the witness 

has testified or sought to testify as an 

expert at trial or hearing, or by 

deposition within the preceding four 

years. A rebuttal or surrebuttal report 

need not include any information 

already included in the initial report of 

the witness. 

(d) A party may depose any person 

who has been identified as an expert 

whose opinions may be presented at 

trial upon subpoena issued under 

§ 1081.208. Unless otherwise ordered by 

the hearing officer, a deposition of any 

expert witness will be conducted after 

the disclosure of a report prepared by 

the witness in accordance with 

paragraph (a) of this section, and at least 

seven days prior to the deadline for 

submission of rebuttal expert reports. A 

deposition of an expert witness must be 

completed no later than 14 days before 

the hearing unless otherwise ordered by 

the hearing officer. No expert deposition 

will exceed seven hours on the record, 

absent agreement of the parties or an 

order of the hearing officer for good 

cause shown. Expert depositions will be 

conducted pursuant to the procedures 

set forth in § 1081.209(d) through (l). 

(e) A party may not discover facts 

known or opinions held by an expert 

who has been retained or specifically 

employed by another party in 

anticipation of litigation or preparation 

for the hearing and who is not listed as 

a witness for the hearing. A party may 

not discover drafts of any report 

required by this section, regardless of 

the form in which the draft is recorded, 

or any communications between 

another party’s attorney and any of that 

other party’s experts, regardless of the 

form of the communications, except to 

the extent that the communications: 

(1) Relate to compensation for the 

testifying expert’s study or testimony; 

(2) Identify facts or data that the other 

party’s attorney provided and that the 

testifying expert considered in forming 

the opinions to be expressed; or 

(3) Identify assumptions that the other 

party’s attorney provided and that the 

testifying expert relied on in forming the 

opinions to be expressed. 

(f) The hearing officer has the 

discretion to dispense with the 

requirement of expert discovery in 

appropriate cases. 

§ 1081.211 Interlocutory review. 

(a) Availability. The Director may, at 

any time, direct that any matter be 

submitted to the Director for review. 

Subject to paragraph (c) of this section, 

the hearing officer may, upon the 

hearing officer’s motion or upon the 

motion of any party, certify any matter 

for interlocutory review by the Director. 

This section is the exclusive remedy for 

review of a hearing officer’s ruling or 

order prior to the Director’s 

consideration of the entire proceeding. 

(b) Procedure. Any party’s motion for 

certification of a ruling or order for 

interlocutory review must be filed with 

the hearing officer within seven days of 

service of the ruling or order, must 

specify the ruling or order or parts 

thereof for which interlocutory review is 

sought, must attach any other portions 

of the record on which the moving party 

relies, and must otherwise comply with 

§ 1081.205. Notwithstanding § 1081.205, 

any response to such a motion must be 

filed within seven days of service of the 

motion. The hearing officer must issue 

a ruling on the motion within seven 

days of the deadline for filing a 

response. 

(c) Certification process. Unless the 

Director directs otherwise, a ruling or 

order may not be submitted to the 

Director for interlocutory review unless 

the hearing officer, upon the hearing 

officer’s motion or upon the motion of 

a party, certifies the ruling or order in 

writing. The hearing officer will not 

certify a ruling or order unless: 

(1) The ruling or order would compel 

testimony of Bureau officers or 

employees, or those from another 

governmental agency, or the production 

of documentary evidence in the custody 

of the Bureau or another governmental 

agency; 

(2) The ruling or order involves a 

motion for disqualification of the 

hearing officer pursuant to 

§ 1081.105(c)(2); 

(3) The ruling or order suspended or 

barred an individual from appearing 

before the Bureau pursuant to 

§ 1081.107(c); or 

(4) Upon motion by a party, the 

hearing officer is of the opinion that: 

(i) The ruling or order involves a 

controlling question of law as to which 

there is substantial ground for difference 

of opinion; and 

(ii) An immediate review of the ruling 

or order is likely to materially advance 

the completion of the proceeding or 

subsequent review will be an 

inadequate remedy. 

(d) Interlocutory review. A party 

whose motion for certification has been 

denied by the hearing officer may 

petition the Director for interlocutory 

review. 

(e) Director review. The Director will 

determine whether or not to review a 

ruling or order certified under this 

section or the subject of a petition for 

interlocutory review. Interlocutory 

review is generally disfavored. The 

Director may decline to review a ruling 

or order certified by a hearing officer 

pursuant to paragraph (c) of this section 

or the petition of a party who has been 

denied certification if the Director 

determines that interlocutory review is 

not warranted or appropriate under the 

circumstances, in which case the 

Director may summarily deny the 

petition. If the Director determines to 

grant the review, the Director will 

review the matter and issue a ruling and 

order in an expeditious fashion, 

consistent with the Bureau’s other 

responsibilities. 

(f) Proceedings not stayed. The filing 

of a motion requesting that the hearing 

officer certify any of the hearing officer’s 

prior rulings or orders for interlocutory 

review or a petition for interlocutory 

review filed with the Director, and the 

grant of any such review, will not stay 

proceedings before the hearing officer 

unless the hearing officer, or the 

Director, so orders. The Director will not 

consider a motion for a stay unless the 

motion was first been made to the 

hearing officer. 

§ 1081.212 Dispositive motions. 

(a) Dispositive motions. This section 

governs the filing of motions to dismiss 

and motions for summary disposition. 

The filing of any such motion does not 

obviate a party’s obligation to file an 

answer or take any other action required 

by this part or by an order of the hearing 

officer, unless expressly so provided by 

the hearing officer. 

(b) Motions to dismiss. A respondent 

may file a motion to dismiss asserting 

that, even assuming the truth of the facts 

alleged in the notice of charges, it is 

entitled to dismissal as a matter of law. 

(c) Motion for summary disposition. A 

party may make a motion for summary 

disposition asserting that the 

undisputed pleaded facts, admissions, 

affidavits, stipulations, documentary 

evidence, matters as to which official 

notice may be taken, and any other 

evidentiary materials properly 

submitted in connection with a motion 

for summary disposition show that: 

(1) There is no genuine issue as to any 

material fact; and 

(2) The moving party is entitled to a 

decision in the moving party’s favor as 

a matter of law. 

(d) Filing of motions for summary 

disposition and responses. (1) After a 


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respondent’s answer has been filed and 

documents have been made available to 

the respondent for inspection and 

copying pursuant to § 1081.206, any 

party may move for summary 

disposition in its favor of all or any part 

of the proceeding. 

(2) A motion for summary disposition 

must be accompanied by a statement of 

the material facts as to which the 

moving party contends there is no 

genuine issue. Such motion must be 

supported by documentary evidence, 

which may take the form of admissions 

in pleadings, stipulations, depositions, 

investigatory depositions, transcripts, 

affidavits, and any other evidentiary 

materials that the moving party 

contends support the moving party’s 

position. The motion must also be 

accompanied by a brief containing the 

points and authorities in support of the 

contention of the moving party. Any 

party opposing a motion for summary 

disposition must file a statement setting 

forth those material facts as to which the 

opposing party contends a genuine 

dispute exists. Such opposition must be 

supported by evidence of the same type 

as may be submitted in support of a 

motion for summary disposition and a 

brief containing the points and 

authorities in support of the contention 

that summary disposition would be 

inappropriate. 

(3) Any affidavit or declaration 

submitted in support of or in opposition 

to a motion for summary disposition 

must set forth such facts as would be 

admissible in evidence, must show 

affirmatively that the affiant is 

competent to testify to the matters stated 

therein, and must be signed under oath 

and penalty of perjury. 

(e) Page limitations for dispositive 

motions. A motion to dismiss or for 

summary disposition, together with any 

brief in support of the motion (exclusive 

of any declarations, affidavits, or 

attachments) may not exceed 35 pages 

in length. Motions for extensions of this 

length limitation are disfavored. 

(f) Opposition and reply response 

time and page limitation. Any party, 

within 21 days after service of a 

dispositive motion, or within such 

period as allowed by the hearing officer, 

may file a response to such motion. The 

length limitations set forth in paragraph 

(e) of this section also apply to such 

responses. Any reply brief filed in 

response to an opposition to a 

dispositive motion must be filed within 

seven days after service of the 

opposition. Reply briefs may not exceed 

ten pages. 

(g) Relationship to scheduling of 

hearing. A respondent’s filing of a 

dispositive motion constitutes a request 

that the hearing not be held until after 

the motion is resolved. The hearing 

officer will decide whether to grant such 

a request. If the request is granted, the 

hearing officer will schedule the 

specific date of the hearing, in 

consultation with the parties. 

§ 1081.213 Rulings on dispositive motions. 

(a) Ruling by Director or hearing 

officer. The Director will rule on a 

dispositive motion, refer the motion to 

the hearing officer, or rule on the 

motion in part and refer it in part. 

(b) Timing of ruling. If the Director 

rules on the motion, the Director must 

do so within 42 days following the 

expiration of the time for filing all 

responses and replies, unless there is 

good cause to extend the deadline. If the 

Director refers the motion to the hearing 

officer, the Director may set a deadline 

for the hearing officer to rule. 

(c) Oral argument. At the request of 

any party or on the Director or hearing 

officer’s own motion, the Director or 

hearing officer (as applicable) may hear 

oral argument on a dispositive motion. 

(d) Types of rulings—(1) Granting 

motion as to all claims and relief. If the 

Director or hearing officer (as 

applicable) determines that dismissal or 

summary disposition is warranted as to 

all claims and relief, then (as applicable) 

the Director will issue a final decision 

and order or the hearing officer will 

issue preliminary findings and 

conclusions. 

(2) Granting motion as to some claims 

or relief. If the Director or hearing officer 

(as applicable) determines that 

dismissal or summary disposition is 

warranted as to some issues, but not all 

claims and relief, the Director or hearing 

officer will issue an order that directs 

further proceedings. Where the 

dispositive motion is a motion for 

summary disposition, the order will 

specify the facts that appear without 

substantial controversy. The facts so 

specified are be deemed established. 

(3) Denial of motion. If the Director or 

hearing officer (as applicable) 

determines that dismissal or summary 

disposition is not warranted, the 

Director or hearing officer may make a 

ruling denying the motion. If it appears 

that a party, for good cause shown, 

cannot present by affidavit, prior to 

hearing, facts essential to justify 

opposition to a motion for summary 

disposition, the Director or hearing 

officer must deny or defer the motion, 

or do so in relevant part. 

§ 1081.214 Prehearing conferences. 

(a) Prehearing conferences. The 

hearing officer may, in addition to the 

scheduling conference, upon the 

hearing officer’s motion or at the request 

of any party, direct counsel for the 

parties to meet with the hearing officer 

(in person or by electronic means) at a 

prehearing conference for further 

discussion of the issues outlined in 

§ 1081.203, or for discussion of any 

additional matters that in the view of 

the hearing officer will aid in an orderly 

disposition of the proceeding, including 

but not limited to: 

(1) Identification of potential 

witnesses and limitation on the number 

of witnesses; 

(2) The exchange of any prehearing 

materials including witness lists, 

statements of issues, exhibits, and any 

other materials; 

(3) Stipulations, admissions of fact, 

and the contents, authenticity, and 

admissibility into evidence of 

documents; 

(4) Matters of which official notice 

may be taken; and 

(5) Whether the parties intend to 

introduce prior sworn statements of 

witnesses as set forth in § 1081.303(h). 

(b) Transcript. The hearing officer has 

discretion to require that a prehearing 

conference be recorded by a court 

reporter. A transcript of the conference 

and any materials filed, including 

orders, becomes part of the record of the 

proceeding. A party may obtain a copy 

of the transcript at that party’s expense. 

(c) Public access. Any prehearing 

conferences will be public unless the 

hearing officer determines, based on the 

standard set forth in § 1081.119(c), that 

the conference (or any part thereof) 

should be closed to the public. 

§ 1081.215 Prehearing submissions. 

(a) Generally. Within the time set by 

the hearing officer, but in no case later 

than 14 days before the start of the 

hearing, each party must serve on every 

other party: 

(1) A prehearing statement, which 

must include an outline or narrative 

summary of the party’s case or defense, 

and the legal theories upon which the 

party will rely; 

(2) A final list of witnesses to be 

called to testify at the hearing, including 

the name and address of each witness 

and a short summary of the expected 

testimony of each witness; 

(3) Any prior sworn statements that a 

party intends to admit into evidence 

pursuant to § 1081.303(h); 

(4) A list of the exhibits to be 

introduced at the hearing along with a 

copy of each exhibit; and 

(5) Any stipulations of fact or liability. 

(b) Expert witnesses. Each party who 

intends to call an expert witness must 

also serve, in addition to the 

information required by paragraph (a)(2) 


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of this section, a statement of the 

expert’s qualifications, a listing of other 

proceedings in which the expert has 

given or sought to give expert testimony 

at trial or hearing or by deposition 

within the preceding four years, and a 

list of publications authored or coauthored by the expert within the 

preceding ten years, to the extent such 

information has not already been 

provided pursuant to § 1081.210. 

(c) Effect of failure to comply. No 

witness may testify and no exhibits may 

be introduced at the hearing if such 

witness or exhibit is not listed in the 

prehearing submissions pursuant to 

paragraph (a) of this section, except for 

good cause shown. 

§ 1081.216 Amicus participation. 

(a) Availability. An amicus brief may 

be filed only if: 

(1) A motion for leave to file the brief 

has been granted; 

(2) The brief is accompanied by 

written consent of all parties; 

(3) The brief is filed at the request of 

the Director or the hearing officer, as 

appropriate; or 

(4) The brief is presented by the 

United States or an officer or agency 

thereof, or by a State or a political 

subdivision thereof. 

(b) Procedure. An amicus brief may be 

filed conditionally with the motion for 

leave. The motion for leave must 

identify the interest of the movant and 

state the reasons why a brief of an 

amicus curiae is desirable. Except as all 

parties otherwise consent, any amicus 

curiae must file its brief within the time 

allowed the party whose position the 

amicus will support, unless the Director 

or hearing officer, as appropriate, for 

good cause shown, grants leave for a 

later filing. If a later filing is allowed, 

the order granting leave to file must 

specify when an opposing party may 

reply to the brief. 

(c) Motions. A motion for leave to file 

an amicus brief is subject to § 1081.205. 

(d) Formal requirements as to amicus 

briefs. Amicus briefs must be filed 

pursuant to § 1081.111, comply with the 

requirements of § 1081.112, and are be 

subject to the length limitation in 

§ 1081.212(e). 

(e) Oral argument. An amicus curiae 

may move to present oral argument at 

any hearing before the hearing officer, 

but such motions will be granted only 

for extraordinary reasons. 

Subpart C—Hearings 

§ 1081.300 Public hearings. 

All hearings in adjudication 

proceedings will be public unless a 

confidentiality order is entered by the 

hearing officer pursuant to § 1081.119 or 

unless otherwise ordered by the Director 

on the grounds that holding an open 

hearing would be contrary to the public 

interest. 

§ 1081.301 Failure to appear. 

Failure of a respondent to appear in 

person or by a duly authorized counsel 

at the hearing constitutes a waiver of 

respondent’s right to a hearing and may 

be deemed an admission of the facts as 

alleged and consent to the relief sought 

in the notice of charges. Without further 

proceedings or notice to the respondent, 

the hearing officer will file preliminary 

findings and conclusions containing 

findings of fact and addressing the relief 

sought in the notice of charges. 

§ 1081.302 Conduct of hearings. 

All hearings will be conducted in a 

fair, impartial, expeditious, and orderly 

manner. Enforcement counsel will 

present its case-in-chief first, unless 

otherwise ordered by the hearing officer, 

or unless otherwise expressly specified 

by law or regulation. Enforcement 

counsel will be the first party to present 

an opening statement and a closing 

statement, and may make a rebuttal 

statement after the respondent’s closing 

statement. If there are multiple 

respondents, respondents may agree 

among themselves as to their order of 

presentation of their cases, but if they 

do not agree, the hearing officer will fix 

the order. 

§ 1081.303 Evidence. 

(a) Burden of proof. Enforcement 

counsel will have the burden of proof of 

the ultimate issue(s) of the Bureau’s 

claims at the hearing. 

(b) Admissibility. (1) Except as is 

otherwise set forth in this section, 

relevant, material, and reliable evidence 

that is not unduly repetitive is 

admissible to the fullest extent 

authorized by the Administrative 

Procedure Act and other applicable law. 

Irrelevant, immaterial, and unreliable 

evidence will be excluded. 

(2) Evidence, even if relevant, may be 

excluded if its probative value is 

substantially outweighed by the danger 

of unfair prejudice or confusion of the 

issues; if the evidence would be 

misleading; or based on considerations 

of undue delay, waste of time, or 

needless presentation of cumulative 

evidence. 

(3) Evidence that constitutes hearsay 

may be admitted if it is relevant, 

material, and bears satisfactory indicia 

of reliability so that its use is fair. 

Hearsay is a statement, other than one 

made by the declarant while testifying 

at the hearing, offered in evidence to 

prove the truth of the matter asserted. If 

otherwise meeting the standards for 

admissibility described in this section, 

transcripts of depositions, 

investigational hearings, prior testimony 

in Bureau or other proceedings, and any 

other form of hearsay will be admissible 

and may not be excluded solely on the 

ground that they are or contain hearsay. 

(4) Evidence that would be admissible 

under the Federal Rules of Evidence is 

admissible in a proceeding conducted 

pursuant to this part. Evidence that 

would be inadmissible under the 

Federal Rules of Evidence may not be 

deemed or ruled to be inadmissible in 

a proceeding conducted pursuant to this 

part solely on that basis. 

(c) Official notice. Official notice may 

be taken of any material fact that is not 

subject to reasonable dispute in that it 

is either generally known or capable of 

accurate and ready determination by 

resort to sources whose accuracy cannot 

reasonably be questioned. If official 

notice is requested or is taken of a 

material fact not appearing in the 

evidence in the record, the parties, upon 

timely request, will be afforded an 

opportunity to disprove such noticed 

fact. 

(d) Documents. (1) A duplicate copy 

of a document is admissible to the same 

extent as the original, unless a genuine 

issue is raised as to whether the copy is 

in some material respect not a true and 

legible copy of the original. 

(2) Subject to the requirements of 

paragraph (b) of this section, any 

document, including a report of 

examination, supervisory activity, 

inspection or visitation, prepared by the 

Bureau, a prudential regulator, as that 

term is defined in section 1002(24) of 

the Consumer Financial Protection Act 

of 2010 (12 U.S.C. 5481(24)), or by a 

State regulatory agency, is 

presumptively admissible either with or 

without a sponsoring witness. 

(3) Witnesses may use existing or 

newly created charts, exhibits, 

calendars, calculations, outlines, or 

other graphic material to summarize, 

illustrate, or simplify the presentation of 

testimony. Such materials may, subject 

to the hearing officer’s discretion, be 

used with or without being admitted 

into evidence. 

(4) As respondents are in the best 

position to determine the nature of 

documents generated by such 

respondents and which come from their 

own files, the burden of proof is on the 

respondent to introduce evidence to 

rebut a presumption that such 

documents are authentic and kept in the 

regular course of business. 

(e) Objections. (1) Objections to the 

admissibility of evidence must be timely 


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made and rulings on all objections must 

appear on the record. 

(2) Whenever evidence is excluded 

from the record, the party offering such 

evidence may make an offer of proof, 

which will be included in the record. 

Rejected exhibits, adequately marked for 

identification, must be retained 

pursuant to § 1081.306(b) so as to be 

available for consideration by any 

reviewing authority. 

(3) Failure to object to admission of 

evidence or to any ruling constitutes a 

waiver of the objection. 

(f) Stipulations. (1) The parties may, 

at any stage of the proceeding, stipulate 

as to any relevant matters of fact or the 

authentication of any relevant 

documents. Such stipulations must be 

received in evidence at a hearing and 

are binding on the parties with respect 

to the matters therein stipulated. 

(2) Unless the hearing officer directs 

otherwise, all stipulations of fact and 

law previously agreed upon by the 

parties, and all documents, the 

admissibility of which have been 

previously stipulated, will be admitted 

into evidence upon commencement of 

the hearing. 

(g) Presentation of evidence. (1) A 

witness at a hearing for the purpose of 

taking evidence must testify under oath 

or affirmation. 

(2) A party is entitled to present its 

case or defense by sworn oral testimony 

and documentary evidence, to submit 

rebuttal evidence, and to conduct such 

cross-examination as, in the discretion 

of the hearing officer, may be required 

for a full and true disclosure of the facts. 

(3) An adverse party, or an officer, 

agent, or employee thereof, and any 

witness who appears to be hostile, 

unwilling, or evasive, may be 

interrogated by leading questions and 

may also be contradicted and 

impeached by the party calling him or 

her. 

(4) The hearing officer will exercise 

reasonable control over the mode and 

order of interrogating witnesses and 

presenting evidence so as to: 

(i) Make the interrogation and 

presentation effective for the 

ascertainment of the truth; 

(ii) Avoid needless consumption of 

time; and 

(iii) Protect witnesses from 

harassment or undue embarrassment. 

(5) The hearing officer may permit a 

witness to appear at a hearing via 

electronic means for good cause shown. 

(h) Introducing prior sworn 

statements of witnesses into the record. 

At a hearing, any party wishing to 

introduce a prior, sworn statement of a 

witness, not a party, otherwise 

admissible in the proceeding, may make 

a motion setting forth the reasons 

therefore. If only part of a statement is 

offered in evidence, the hearing officer 

may require that all relevant portions of 

the statement be introduced. If all of a 

statement is offered in evidence, the 

hearing officer may require that portions 

not relevant to the proceeding be 

excluded. A motion to introduce a prior 

sworn statement may be granted if: 

(1) The witness is dead; 

(2) The witness is out of the United 

States, unless it appears that the absence 

of the witness was procured by the party 

offering the prior sworn statement; 

(3) The witness is unable to attend or 

testify because of age, sickness, 

infirmity, imprisonment, or other 

disability; 

(4) The party offering the prior sworn 

statement has been unable to procure 

the attendance of the witness by 

subpoena; or 

(5) In the discretion of the hearing 

officer, it would be desirable, in the 

interests of justice, to allow the prior 

sworn statement to be used. In making 

this determination, due regard will be 

given to the presumption that witnesses 

will testify orally in an open hearing. If 

the parties have stipulated to accept a 

prior sworn statement in lieu of live 

testimony, consideration should also be 

given to the convenience of the parties 

in avoiding unnecessary expense. 

§ 1081.304 Record of the hearing. 

(a) Reporting and transcription. 

Hearings will be stenographically 

reported and transcribed under the 

supervision of the hearing officer, and 

the original transcript will be a part of 

the record and the sole official 

transcript. The live oral testimony of 

each witness may be video recorded 

digitally, in which case the video 

recording and the written transcript of 

the testimony will be made part of the 

record. Copies of transcripts will be 

available from the reporter at prescribed 

rates. 

(b) Corrections. Corrections of the 

official transcript may be made only 

when they involve errors affecting 

substance and then only in the manner 

provided in this paragraph (b). 

Corrections ordered by the hearing 

officer or agreed to in a written 

stipulation signed by all counsel and 

parties not represented by counsel, and 

approved by the hearing officer, will be 

included in the record, and such 

stipulations, except to the extent they 

are capricious or without substance, 

must be approved by the hearing officer. 

Corrections will not be ordered by the 

hearing officer except upon notice and 

opportunity for the hearing of 

objections. Such corrections must be 

made by the official reporter by 

furnishing substitute type pages, under 

the usual certificate of the reporter, for 

insertion in the official record. The 

original uncorrected pages will be 

retained in the files of the Bureau. 

(c) Closing of the hearing record. 

Upon completion of the hearing, the 

hearing officer will issue an order 

closing the hearing record after giving 

the parties seven days to determine if 

the record is complete or needs to be 

supplemented. The hearing officer 

retains the discretion to permit or order 

correction of the record as provided in 

paragraph (b) of this section. 

§ 1081.305 Post-hearing filings. 

(a) Proposed findings and conclusions 

and supporting briefs. (1) Using the 

same method of service for each party, 

the hearing officer will serve notice 

upon each party that the certified 

transcript, together with all hearing 

exhibits and exhibits introduced but not 

admitted into evidence at the hearing, 

has been filed promptly after that filing. 

Any party may file with the hearing 

officer proposed findings of fact, 

proposed conclusions of law, and a 

proposed order within 28 days 

following service of this notice by the 

hearing officer or within such longer 

period as may be ordered by the hearing 

officer. 

(2) Proposed findings and conclusions 

must be supported by citation to any 

relevant authorities and by page 

references to any relevant portions of 

the record. A post-hearing brief may be 

filed in support of proposed findings 

and conclusions, either as part of the 

same document or in a separate 

document. 

(b) Responsive briefs. Responsive 

briefs may be filed within 14 days after 

the date on which the parties’ proposed 

findings, conclusions, and order are 

due. Responsive briefs must be strictly 

limited to responding to matters, issues, 

or arguments raised in another party’s 

papers. A party who has not filed 

proposed findings of fact and 

conclusions of law or a post-hearing 

brief may not file a responsive brief. 

Unless directed by the hearing officer, 

reply briefs are not permitted. 

(c) Order of filing. The hearing officer 

may not order the filing by any party of 

any post-hearing brief or responsive 

brief in advance of the other party’s 

filing of its post-hearing brief or 

responsive brief. 

§ 1081.306 Record in proceedings before 

hearing officer; retention of documents; 

copies. 

(a) Contents of the record. The record 

of the proceeding consists of: 


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(1) The notice of charges, the answer, 

and any amendments thereto; 

(2) Each motion, submission, or other 

paper filed in the proceedings, and any 

amendments and exceptions to or 

regarding them; 

(3) Each stipulation, transcript of 

testimony, and any document or other 

item admitted into evidence; 

(4) Any transcript of a conference or 

hearing before the hearing officer; 

(5) Any amicus briefs filed pursuant 

to § 1081.216; 

(6) With respect to a request to 

disqualify a hearing officer or to allow 

the hearing officer’s withdrawal under 

§ 1081.105(c), each affidavit or 

transcript of testimony taken and the 

decision made in connection with the 

request; 

(7) All motions, briefs, and other 

papers filed on interlocutory appeal; 

(8) All proposed findings and 

conclusions; 

(9) Each written order issued by the 

hearing officer or Director; and 

(10) Any other document or item 

accepted into the record by the hearing 

officer. 

(b) Retention of documents not 

admitted. Any document offered into 

evidence but excluded will not be 

considered part of the record. The Office 

of Administrative Adjudication will 

retain any such document until the later 

of the date upon which an order by the 

Director ending the proceeding becomes 

final and not appealable, or upon the 

conclusion of any judicial review of the 

Director’s order. 

(c) Substitution of copies. A true copy 

of a document may be substituted for 

any document in the record or any 

document retained pursuant to 

paragraph (b) of this section. 

Subpart D—Decision and Appeals 

§ 1081.400 Preliminary findings and 

conclusions of the hearing officer. 

(a) Time period for filing preliminary 

findings and conclusions. Subject to 

paragraph (b) of this section, the hearing 

officer must file preliminary findings 

and conclusions no later than 90 days 

after the deadline for filing post-hearing 

responsive briefs pursuant to 

§ 1081.305(b) and in no event later than 

360 days after filing of the notice of 

charges. 

(b) Extension of deadlines. In the 

event the hearing officer presiding over 

the proceeding determines that it will 

not be possible to issue preliminary 

findings and conclusions within the 

time periods specified in paragraph (a) 

of this section, the hearing officer will 

submit a written request to the Director 

for an extension of the time period for 

filing the preliminary findings and 

conclusions. This request must be filed 

no later than 28 days prior to the 

expiration of the time for issuance of 

preliminary findings and conclusions. 

The request will be served on all parties 

in the proceeding, who may file with 

the Director briefs in support of or in 

opposition to the request. Any such 

briefs must be filed within seven days 

of service of the hearing officer’s request 

and may not exceed five pages. If the 

Director determines that additional time 

is necessary or appropriate in the public 

interest, the Director will issue an order 

extending the time period for filing 

preliminary findings and conclusions. 

(c) Content. (1) Preliminary findings 

and conclusions must be based on a 

consideration of the whole record 

relevant to the issues decided, and be 

supported by reliable, probative, and 

substantial evidence. Preliminary 

findings and conclusions must include 

a statement of findings of fact (with 

specific page references to principal 

supporting items of evidence in the 

record) and conclusions of law, as well 

as the reasons or basis therefore, as to 

all the material issues of fact, law, or 

discretion presented on the record and 

the appropriate order, sanction, relief or 

denial thereof. Preliminary findings and 

conclusions must also state that a notice 

of appeal may be filed within 14 days 

after service of the preliminary findings 

and conclusions and include a 

statement that, unless a party timely 

files and perfects a notice of appeal of 

the preliminary findings and 

conclusions, the Director may adopt the 

preliminary findings and conclusions as 

the final decision and order of the 

Bureau without further opportunity for 

briefing or argument. 

(2) Consistent with paragraph (a) of 

this section, when more than one claim 

for relief is presented in an adjudication 

proceeding, or when multiple parties 

are involved, the hearing officer may 

direct the entry of preliminary findings 

and conclusions as to one or more but 

fewer than all of the claims or parties 

only upon an express determination that 

there is no just reason for delay and 

upon an express direction for the entry 

of preliminary findings and 

conclusions. 

(d) By whom made. Preliminary 

findings and conclusions must be made 

and filed by the hearing officer who 

presided over the hearings, except when 

that hearing officer has become 

unavailable to the Bureau. 

(e) Reopening of proceeding by 

hearing officer; termination of 

jurisdiction. (1) At any time from the 

close of the hearing record pursuant to 

§ 1081.304(c) until the filing of the 

hearing officer’s preliminary findings 

and conclusions, a hearing officer may 

reopen the proceeding for the receipt of 

further evidence for good cause shown. 

(2) Except for the correction of clerical 

errors or pursuant to an order of remand 

from the Director, the jurisdiction of the 

hearing officer is terminated upon the 

filing of the hearing officer’s 

preliminary findings and conclusions 

with respect to those issues decided 

pursuant to paragraph (c) of this section. 

(f) Filing, service, and publication. 

Upon filing by the hearing officer of 

preliminary findings and conclusions, 

the Office of Administrative 

Adjudication will promptly transmit the 

preliminary findings and conclusions to 

the Director and serve them upon the 

parties. 

§ 1081.401 Transmission of documents to 

Director; record index; certification. 

(a) Filing of index. At the same time 

the Office of Administrative 

Adjudication transmits preliminary 

findings and conclusions to the 

Director, the hearing officer will furnish 

to the Director a certified index of the 

entire record of the proceedings. The 

certified index must include, at a 

minimum, an entry for each paper, 

document or motion filed in the 

proceeding, the date of the filing, and 

the identity of the filer. The certified 

index must also include an exhibit 

index containing, at a minimum, an 

entry consisting of exhibit number and 

title or description for each exhibit 

introduced and admitted into evidence 

and each exhibit introduced but not 

admitted into evidence. 

(b) Retention of record items by the 

Office of Administrative Adjudication. 

After the close of the hearing, the Office 

of Administrative Adjudication will 

retain originals of any motions, exhibits 

or any other documents filed with, or 

accepted into evidence by, the hearing 

officer, or any other portions of the 

record that have not already been filed 

with the Office of Administrative 

Adjudication. 

§ 1081.402 Notice of appeal; review by the 

Director. 

(a) Notice of appeal—(1) Filing. Any 

party may file exceptions to the 

preliminary findings and conclusions of 

the hearing officer by filing a notice of 

appeal with the Office of Administrative 

Adjudication within 14 days after 

service of the preliminary findings and 

conclusions. The notice must specify 

the party or parties against whom the 

appeal is taken and must designate the 

preliminary findings and conclusions or 

part thereof appealed from. If a timely 

notice of appeal is filed by a party, any 


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other party may thereafter file a notice 

of appeal within seven days after service 

of the first notice, or within 14 days 

after service of the preliminary findings 

and conclusions, whichever period 

expires last. 

(2) Perfecting a notice of appeal. Any 

party filing a notice of appeal must 

perfect its appeal by filing its opening 

appeal brief within 28 days of service of 

the preliminary findings and 

conclusions. Any party may respond to 

the opening appeal brief by filing an 

answering brief within 28 days of 

service of the opening brief. Any party 

may file a reply to an answering brief 

within seven days of service of the 

answering brief. These briefs must 

conform to the requirements of 

§ 1081.403. 

(b) Director review other than 

pursuant to an appeal. In the event no 

party perfects an appeal of the hearing 

officer’s preliminary findings and 

conclusions, the Director will, within 42 

days after the date of service of the 

preliminary findings and conclusions, 

either issue a final decision and order 

adopting the preliminary findings and 

conclusions, or order further briefing 

regarding any portion of the preliminary 

findings and conclusions. The Director’s 

order for further briefing must set forth 

the scope of review and the issues that 

will be considered and will make 

provision for the filing of briefs in 

accordance with the timelines set forth 

in paragraph (a)(2) of this section 

(except that that opening briefs will be 

due within 28 days of service of the 

order of review) if deemed appropriate 

by the Director. 

(c) Exhaustion of administrative 

remedies. Pursuant to 5 U.S.C. 704, a 

perfected appeal to the Director of 

preliminary findings and conclusions 

pursuant to paragraph (a) of this section 

is a prerequisite to the seeking of 

judicial review of a final decision and 

order, or portion of the final decision 

and order, adopting the preliminary 

findings and conclusions. 

§ 1081.403 Briefs filed with the Director. 

(a) Contents of briefs. Briefs must be 

confined to the particular matters at 

issue. Each exception to the findings or 

conclusions being reviewed should be 

stated succinctly. Exceptions must be 

supported by citation to the relevant 

portions of the record, including 

references to the specific pages relied 

upon, and by concise argument 

including citation of such statutes, 

decisions, and other authorities as may 

be relevant. If the exception relates to 

the admission or exclusion of evidence, 

the substance of the evidence admitted 

or excluded must be set forth in the 

brief, in an appendix thereto, or by 

citation to the record. Reply briefs must 

be confined to matters in answering 

briefs of other parties. 

(b) Length limitation. Except with 

leave of the Director, opening and 

answering briefs may not exceed 30 

pages, and reply briefs may not exceed 

15 pages, exclusive of pages containing 

the table of contents, table of 

authorities, and any addendum that 

consists solely of copies of applicable 

cases, pertinent legislative provisions or 

rules, and exhibits. Motions to file briefs 

in excess of these limitations are 

disfavored. 

§ 1081.404 Oral argument before the 

Director. 

(a) Availability. The Director will 

consider appeals, motions, and other 

matters properly before the Director on 

the basis of the papers filed by the 

parties without oral argument unless the 

Director determines that the 

presentation of facts and legal 

arguments in the briefs and record and 

decisional process would be 

significantly aided by oral argument, in 

which case the Director will issue an 

order setting the date on which 

argument will be held. A party seeking 

oral argument must so indicate on the 

first page of that party’s opening or 

answering brief. 

(b) Public arguments; transcription. 

All oral arguments will be public unless 

otherwise ordered by the Director. Oral 

arguments before the Director will be 

reported stenographically, unless 

otherwise ordered by the Director. 

Motions to correct the transcript of oral 

argument must be made according to the 

same procedure provided in 

§ 1081.304(b). 

§ 1081.405 Decision of the Director. 

(a) Upon appeal from or upon further 

review of preliminary findings and 

conclusions, the Director will consider 

such parts of the record as are cited or 

as may be necessary to resolve the 

issues presented and, in addition, will, 

to the extent necessary or desirable, 

exercise all powers which could have 

exercised if the Director had made the 

preliminary findings and conclusions. 

In proceedings before the Director, the 

record will consist of all items part of 

the record in accordance with 

§ 1081.306 as follows: Any notices of 

appeal or order directing review; all 

briefs, motions, submissions, and other 

papers filed on appeal or review; and 

the transcript of any oral argument held. 

Review by the Director of preliminary 

findings and conclusions may be 

limited to the issues specified in the 

notice(s) of appeal or the issues, if any, 

specified in the order directing further 

briefing. On notice to all parties, 

however, the Director may, at any time 

prior to issuance of the Director’s 

decision, raise and determine any other 

matters that the Director deems 

material, with opportunity for oral or 

written argument thereon by the parties. 

(b) Decisional employees may advise 

and assist the Director in the 

consideration and disposition of the 

case. 

(c) In rendering the Director’s 

decision, the Director will affirm, adopt, 

reverse, modify, set aside, or remand for 

further proceedings the preliminary 

findings and conclusions and will 

include in the decision a statement of 

the reasons or basis for the Director’s 

actions and the findings of fact upon 

which the decision is predicated. 

(d) At the expiration of the time 

permitted for the filing of reply briefs 

with the Director, the Office of 

Administrative Adjudication will notify 

the parties that the case has been 

submitted for final Bureau decision. The 

Director will issue and the Office of 

Administrative Adjudication will serve 

the Director’s final decision and order 

within 90 days after such notice, unless 

within that time the Director orders that 

the adjudication proceeding or any 

aspect thereof be remanded to the 

hearing officer for further proceedings. 

(e) The Office of Administrative 

Adjudication will serve copies of a final 

decision and order of the Director upon 

each party to the proceeding in 

accordance with § 1081.113(d)(2); upon 

other persons required by statute, if any; 

and, if directed by the Director or 

required by statute, upon any 

appropriate State or Federal supervisory 

authority. A final decision and order 

will also be published on the Bureau’s 

website or as otherwise deemed 

appropriate by the Bureau. 

§ 1081.406 Reconsideration. 

Within 14 days after service of the 

Director’s decision and order, any party 

may file with the Director a petition for 

reconsideration, briefly and specifically 

setting forth the relief desired and the 

grounds in support thereof. Any petition 

filed under this section must be 

confined to new questions raised by the 

decision or order and upon which the 

petitioner had no opportunity to argue, 

in writing or orally, before the Director. 

No response to a petition for 

reconsideration may be filed unless 

requested by the Director, who will 

request such response before granting 

any petition for reconsideration. The 

filing of a petition for reconsideration 

does not operate to stay the effective 

date of the decision or order or to toll 


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the running of any statutory period 

affecting such decision or order unless 

specifically so ordered by the Director. 

§ 1081.407 Effective date; stays pending 

judicial review. 

(a) Other than consent orders, which 

become effective at the time specified 

therein, an order to cease and desist or 

for other affirmative action under 

section 1053(b) of the Consumer 

Financial Protection Act of 2010 (12 

U.S.C. 5563(b)) becomes effective at the 

expiration of 30 days after the date of 

service pursuant to § 1081.113(d)(2), 

unless the Director agrees to stay the 

effectiveness of the order pursuant to 

this section. 

(b) Any party subject to a final 

decision and order, other than a consent 

order, may apply to the Director for a 

stay of all or part of that order pending 

judicial review. 

(c) A motion for stay must state the 

reasons a stay is warranted and the facts 

relied upon, and must include 

supporting affidavits or other sworn 

statements, and a copy of the relevant 

portions of the record. The motion must 

address the likelihood of the movant’s 

success on appeal, whether the movant 

will suffer irreparable harm if a stay is 

not granted, the degree of injury to other 

parties if a stay is granted, and why the 

stay is in the public interest. 

(d) A motion for stay must be filed 

within 28 days of service of the order on 

the party. Any party opposing the 

motion may file a response within seven 

days after receipt of the motion. The 

movant may file a reply brief, limited to 

new matters raised by the response, 

within seven days after receipt of the 

response. 

(e) The commencement of 

proceedings for judicial review of a final 

decision and order of the Director does 

not, unless specifically ordered by the 

Director or a reviewing court, operate as 

a stay of any order issued by the 

Director. The Director has discretion, on 

such terms as the Director finds just, to 

stay the effectiveness of all or any part 

of an order pending a final decision on 

a petition for judicial review of that 

order. 

§ 1081.408 Issue exhaustion. 

(a) Scope. This section applies to any 

argument to support a party’s case or 

defense, including any argument that 

could be a basis for setting aside Bureau 

action under 5 U.S.C. 706 or any other 

source of law. 

(b) Duties to raise arguments. A party 

must raise an argument before the 

hearing officer, or else it is not 

preserved for later consideration by the 

Director. A party must raise an 

argument before the Director, or else it 

is not preserved for later consideration 

by a court. 

(c) Manner of raising arguments. An 

argument must be raised in a manner 

that complies with this part and that 

provides a fair opportunity to consider 

the argument. 

(d) Discretion to consider unpreserved 

arguments. The Director has discretion 

to consider an unpreserved argument, 

including by considering it in the 

alternative. If the Director considers an 

unpreserved argument in the 

alternative, the argument remains 

unpreserved. 

Subpart E—Temporary Cease-andDesist Proceedings 

§ 1081.500 Scope. 

(a) This subpart prescribes the rules of 

practice and procedure applicable to the 

issuance of a temporary cease-and-desist 

order authorized by section 1053(c) of 

the Consumer Financial Protection Act 

of 2010 (12 U.S.C. 5563(c)). 

(b) The issuance of a temporary ceaseand-desist order does not stay or 

otherwise affect the proceedings 

instituted by the issuance of a notice of 

charges, which are governed by subparts 

A through D of this part. 

§ 1081.501 Basis for issuance, form, and 

service. 

(a) In general. The Director or the 

Director’s designee may issue a 

temporary cease-and-desist order if the 

Director determines that one or more of 

the alleged violations specified in a 

notice of charges, or the continuation 

thereof, is likely to cause the respondent 

to be insolvent or otherwise prejudice 

the interests of consumers before the 

completion of the adjudication 

proceeding. A temporary cease-anddesist order may require the respondent 

to cease and desist from any violation or 

practice specified in the notice of 

charges and to take affirmative action to 

prevent or remedy such insolvency or 

other condition pending completion of 

the proceedings initiated by the 

issuance of a notice of charges. 

(b) Incomplete or inaccurate records. 

When a notice of charges specifies, on 

the basis of particular facts and 

circumstances, that the books and 

records of a respondent are so 

incomplete or inaccurate that the 

Bureau is unable to determine the 

financial condition of the respondent or 

the details or purpose of any transaction 

or transactions that may have a material 

effect on the financial condition of the 

respondent, then the Director or the 

Director’s designee may issue a 

temporary order requiring: 

(1) The cessation of any activity or 

practice which gave rise, whether in 

whole or in part, to the incomplete or 

inaccurate state of the books or records; 

or 

(2) Affirmative action to restore such 

books or records to a complete and 

accurate state, until the completion of 

the adjudication proceeding. 

(c) Content, scope, and form of order. 

Every temporary cease-and-desist order 

accompanying a notice of charges must 

describe: 

(1) The basis for its issuance, 

including the alleged violations and the 

harm that is likely to result without the 

issuance of an order; and 

(2) The act or acts the respondent is 

to take or refrain from taking. 

(d) Effective and enforceable upon 

service. A temporary cease-and-desist 

order is effective and enforceable upon 

service. 

(e) Service. Service of a temporary 

cease-and-desist order will be made 

pursuant to § 1081.113(d). 

§ 1081.502 Judicial review, duration. 

(a) Availability of judicial review. 

Judicial review of a temporary ceaseand-desist order is available solely as 

provided in section 1053(c)(2) of the 

Consumer Financial Protection Act of 

2010 (12 U.S.C. 5563(c)(2)). Any 

respondent seeking judicial review of a 

temporary cease-and-desist order issued 

under this subpart must, not later than 

ten days after service of the temporary 

cease-and-desist order, apply to the 

United States district court for the 

judicial district in which the residence 

or principal office or place of business 

of the respondent is located, or the 

United States District Court for the 

District of Columbia, for an injunction 

setting aside, limiting, or suspending 

the enforcement, operation, or 

effectiveness of such order. 


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(b) Duration. Unless set aside, limited, 

or suspended by the Director or the 

Director’s designee, or by a court in 

proceedings authorized under section 

1053(c)(2) of the Consumer Financial 

Protection Act of 2010 (12 U.S.C. 

5563(c)(2)), a temporary cease-anddesist order will remain effective and 

enforceable until: 

(1) The effective date of a final order 

issued upon the conclusion of the 

adjudication proceeding. 

(2) With respect to a temporary ceaseand-desist order issued pursuant to 

§ 1081.501(b) only, the Bureau 

determines by examination or otherwise 

that the books and records are accurate 

and reflect the financial condition of the 

respondent, and the Director or the 

Director’s designee issues an order 

terminating, limiting, or suspending the 

temporary cease-and-desist order. 

Rohit Chopra, 

Director, Bureau of Consumer Financial 

Protection. 

[FR Doc. 2022–02863 Filed 2–18–22; 8:45 am] 

BILLING CODE 4810–AM–P 


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