This memorandum was issued by Acting Deputy Counsel for Fair Hearings Russell J. Hanks as part of the Stipulation and Order of Settlement and Discontinuance in Chatfield v Bane, 91-CV-6310T (W.D.N.Y. August 5, 1992). This memo provides instructions for Administrative Law Judges (ALJs) to meet their responsibilities under 45 CFR § 205.10(a)(13)(vi), 7 CFR § 273.15(p)(5), and 42 CFR § 431.242(a), which "provide that the appellant, or the appellant's representative, shall have adequate opportunity to:
"'...question or refute any testimony or evidence, including opportunity to confront and cross-examine adverse witnesses.'"
ALJs are directed to look for guidance at the decisions issued in Ortiz v Eichler, 616 F.Supp. 1046, 1061 (D.Del. 1985), mot. for reargument granted 616 F.Supp. 1066 (D.Del. 1985), affd. 794 F.2d 889 (3d Cir. 1986), which, Mr. Hanks explains,
"specifically address the opportunity to confront and cross-examine an adverse witness when the witness' statement is submitted at the hearing (in the form of a document or testimony from another witness) and the declarant is not present."
"If a pro se appellant or an appellant represented by someone other than an attorney or law firm expresses an interest in questioning the declarant, the ALJ should determine the relevance of the statement offered into evidence in relation to the issues under review. If not relevant, no action to secure the declarant's presence is necessary. If the statement is relevant, and not otherwise admissible, the ALJ must seek the presence of the declarant, either through agency cooperation or subpoena, or exclude the statement.
"If appellant's counsel is interested in an opportunity to confront and cross-examine the declarant, counsel should be reminded of her/his power to subpoena the witness. An adjournment should be offered in order to afford counsel that opportunity."
See the September 18, 2007 Memo to ALJs from Henry Pedicone on the subject of "Subpoenas: An Overview," available at:
http://onlineresources.wnylc.net/FairHearingResources/showquestion.asp?faq=4&fldAuto=115
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