| (a) Dismissal of a proceeding. Upon the motion of the
presiding officer or the motion of any party, the presiding officer
may recommend that the commission dismiss, with or without prejudice,
any proceeding for any reason specified in this section.
(b) Dismissal of issues within a proceeding. Upon the
motion of the presiding officer or the motion of any party, the presiding
officer may dismiss or may recommend that the commission dismiss,
with or without prejudice, one or more issues within a proceeding
for any reason specified in this section.
(c) Dismissal without hearing. A dismissal under this
section requires a hearing unless the facts necessary to support the
dismissal are uncontested or are established as a matter of law.
(d) Reasons for dismissal. Dismissal of a proceeding
or one or more issues within a proceeding may be based on one or more
of the following reasons:
(1) lack of jurisdiction;
(2) moot questions or obsolete petitions;
(3) res judicata;
(4) collateral estoppel;
(5) unnecessary duplication of proceedings;
(6) failure to prosecute;
(7) failure to amend an application such that it is
sufficient after repeated determinations that the application is insufficient;
(8) failure to state a claim for which relief can be
granted;
(9) gross abuse of discovery consistent with §22.161(b)(2)
of this title (relating to Sanctions);
(10) withdrawal of an application consistent with subsection
(g) of this section; or
(11) other good cause shown.
(e) Motion for dismissal, responses, and replies. Dismissal
of a proceeding or one or more issues within a proceeding may be made
upon the motion of the presiding officer or the motion of any party.
(1) A party’s motion for dismissal must specify
at least one of the grounds for dismissal identified in subsection
(d) of this section. The motion must include a statement that explains
the basis for the dismissal and if necessary:
(A) A statement that sets forth the material facts
that support the motion; and
(B) An affidavit that supports the motion and that
includes evidence that is not found in the then-existing record.
(2) A presiding officer’s motion shall be provided
by written order or stated in the record and must specify one or more
grounds for dismissal identified in subsection (d) of this section
and a clear and concise statement of the material facts supporting
the dismissal.
(3) The party that initiated the proceeding or any
other affected party shall have 20 days from the date of receipt to
respond to a motion to dismiss. The response must contain a statement
of reasons the party contends the motion to dismiss should not be
granted, and if necessary:
(A) A statement that refers to each material fact identified
in the motion to dismiss as uncontested that the responding party
contends is contested; and
(B) An affidavit that supports the response to the
motion to dismiss and that includes evidence the party relies upon
to establish contested issues of fact. The affidavit may include evidence
that is not found in the then existing record.
(4) Replies to a response to a motion to dismiss may
be made only by leave of and as directed by the presiding officer.
(f) Action on a motion to dismiss. Action on a motion
to dismiss shall conform to this subsection.
(1) If a hearing on the motion to dismiss is held,
that hearing shall be confined to the issues raised by the motion
to dismiss.
(2) If the administrative law judge determines that
all issues within a proceeding should be dismissed, the administrative
law judge must prepare a proposal for decision in accordance with
§22.261 of this title (relating to Proposals for Decision) to
that effect, unless the reason for dismissal is solely the withdrawal
of an application under subsection (g)(1) or (2) of this section,
in which case the administrative law judge may issue an order dismissing
the proceeding. The commission shall consider the proposal for decision
or motion for rehearing on an order of dismissal as soon as is practicable.
(3) If the commission determines that all issues within
a proceeding should be dismissed, the commission will issue an order
subject to motions for rehearing under §22.264 of this title
(relating to Rehearing).
(4) If the administrative law judge determines that
one or more, but not all, issues within a proceeding should be dismissed,
the administrative law judge may issue a proposal for interim decision
or an interim order dismissing such issues. An interim order issued
by the administrative law judge resulting in partial dismissal is
subject to appeal or reconsideration under §22.123 of this title
(relating to Appeal of an Interim Order and Motions for Reconsideration
of Interim Order Issued by the Commission).
(5) If the commission determines that one or more,
but not all, issues within a proceeding should be dismissed, the commission
may issue an interim order dismissing such issues. An interim order
issued by the commission resulting in partial dismissal is subject
to appeal or reconsideration under §22.123 of this title.
(6) An order of the administrative law judge dismissing
a proceeding under paragraph (2) of this subsection based solely upon
the withdrawal of an application under (g)(1) or (2) of this section
is the final order of the commission and is subject to motions for
rehearing under §22.264 of this title.
(g) Withdrawal of application. An application may be
withdrawn only in accordance with this subsection.
(1) A party that initiated a proceeding may withdraw
its application without prejudice to refiling of same, at any time
before that party has presented its direct case. A party may agree
to withdraw its application with prejudice.
(2) After the presentation of its direct case, but
prior to the issuance of a proposed order or proposal for decision,
a party may request to withdraw its application with or without prejudice,
and withdrawal may be granted only upon a finding of good cause by
the presiding officer.
(3) A request to withdraw an application with or without
prejudice after a proposed order or proposal for decision has been
issued, may be granted only upon a finding of good cause by the commission.
In ruling on the request, the commission will weigh the importance
of the matter being addressed to the jurisprudence of the commission
and the public interest.
(4) A request to withdraw an application with or without
prejudice after the application has been placed on an open meeting
agenda for consideration of an appeal of an interim order, a request
for certified issues, or a preliminary order with threshold legal
or policy issues may be granted only upon a finding of good cause
by the commission. In ruling on the request, the commission will weigh
the importance of the matter being addressed to the jurisprudence
of the commission and the public interest.
(5) If a request to withdraw an application is granted,
the presiding officer shall issue an order of dismissal stating whether
the dismissal is with or without prejudice. If the presiding officer
finds good cause, the order of dismissal under this paragraph shall
not be with prejudice, unless the applicant requests dismissal with
prejudice. Such order must, if applicable, specify the facts on which
good cause is based and the basis of the dismissal and is the final
order of the commission subject to motions for rehearing under §22.264
of this title.
|
