Sec. 07.01.04.09. Motions

A. Procedure.

(1) Unless otherwise provided by this chapter, a party may move for appropriate relief:

(a) Before a hearing or prehearing conference by submitting a written motion; or

(b) During a hearing or prehearing conference by making an oral motion.

(2) A written motion shall:

(a) Be filed not later than 10 calendar days before a scheduled hearing or prehearing conference;

(b) State concisely the question to be determined;

(c) Be accompanied by any necessary supporting documentation and argument;

(d) Be served on each party; and

(e) Include:

(i) A statement as to whether the party requests a prehearing telephone conference, and

(ii) A telephone number where the party may be reached.

(3) Any answer to a written motion shall:

(a) Be filed on the earlier of:

(i) 5 calendar days after receipt of the motion, or

(ii) The date of any hearing or prehearing conference; and

(b) Include a telephone number where the party may be reached.

(4) When requested, the administrative law judge shall attempt to hold a prehearing conference with the parties by telephone and rule on all written motions that may affect the conduct of the hearing.

(5) The administrative law judge shall rule on all motions:

(a) On the record during a hearing or prehearing conference; or

(b) In a written decision issued before or with the administrative law judge's proposed or final decision.

B. Dispositive Motions.

(1) In ruling on a motion that disposes of the appeal or of a substantive issue in the appeal, the administrative law judge shall issue a proposed or final order in accordance with the Secretary's delegation.

(2) Motion to Dismiss. The administrative law judge may grant a motion to dismiss an appeal that is untimely or that otherwise fails to state a claim for which agency relief may be granted.

(3) Motion for Summary Decision.

(a) A party may move for summary decision on any substantive issue in the case.

(b) The administrative law judge may grant a motion for summary decision if the administrative law judge finds that:

(i) There is no genuine issue as to any material fact; and

(ii) The moving party is entitled to prevail as a matter of law.