(a) In general—(1) Form and content. Any motion filed with the Board must be in writing and state with particularity the relief sought and provide the reasons for the motion.

(2) Duty to confer. (i) Except as provided in paragraph (a)(2)(ii) of this section, before filing a motion, the moving party must make reasonable efforts to contact each party to determine whether agreement can be reached on the relief sought in the motion. The moving party must state in its motion:

(A) Whether any party it reached agrees to all or part of the motion; and

(B) What steps it took to contact any party it was unable to reach.

(ii) The duty to confer does not apply to a motion by an appellant to withdraw or voluntarily dismiss an appeal or an adversarial motion (for example, a motion to dismiss for lack of jurisdiction).

(3) Responses. Except as provided in paragraph (b)(4) of this section or a Board order, any party has 14 days after service of the motion to file a response.

(4) Replies. A party has 7 days from service of the response to file a reply. The reply may not exceed 10 pages and is limited to new issues or arguments raised in the response.

(b) Extensions of time. (1) Except as otherwise provided in this subpart, a party may seek additional time by filing with the Board a motion for an extension of time.

(2) A motion for an extension must be filed no later than the day before the date the document is due, absent extenuating circumstances.

(3) The party must support its motion for an extension of time by showing there is good cause to grant it.

(4) If a party opposes the motion for an extension of time, the party must file its response within 3 business days after service of the motion to file a response.

(5) A Board order granting or denying a motion for an extension will state when the document must be filed. If the Board does not act on a motion before the document is due, the document must be filed no later than 7 days after the original due date, unless the Board orders otherwise.

(c) Intervention—(1) How to intervene. A person or entity that wishes to intervene must file a motion to intervene within 60 days after the person or entity knew or should have known that the decision had been appealed. The person or entity filing a motion to intervene must serve the motion on all parties to the appeal.

(2) Who may file a motion to intervene. A person or entity may seek to intervene if they had a right to appeal the decision under these rules or would be adversely affected if the Board reversed, vacated, set aside, or modified the decision.

(3) Contents of a motion to intervene. The motion must identify how the proposed intervenor meets the eligibility requirements set forth at paragraph (c)(2) of this section and when the proposed intervenor learned of the appeal.

(4) The Board's action on a motion to intervene. The Board may grant the motion to intervene; grant the motion to intervene but limit the person's or entity's participation in the appeal; or deny the motion to intervene if the proposed intervenor fails to meet the requirements of this paragraph (c) or if the Board determines that granting the motion would prejudice the existing parties or unduly delay adjudication of the appeal. If the intervenor had a right to appeal the decision, the Board will limit participation to the issues raised by the other parties to the appeal, along with any additional limitations deemed necessary to avoid prejudice or undue delay. If the Board denies the motion to intervene, the Board may allow the person or entity to file a brief as amicus curiae. A person or entity granted full or limited intervenor status is a party to the appeal.

(d) Amicus curiae. (1) A person or entity may file a motion to file a brief as an amicus curiae. The motion must state the person's or entity's interest in the appeal and how their brief will contribute to resolving the issues on appeal.

(2) The Board may grant or deny the motion in its discretion.

(3) A person or entity seeking to participate as amicus curiae must serve its motion, and its brief if the motion is granted, on all parties to the appeal.

(4) A person or entity granted amicus curiae status is not a party to the appeal.

(e) Consolidation. The Board, either on a party's motion or at the Board's initiative, may consolidate two or more appeals when they involve common factual or legal issues.

(f) Suspension of consideration of appeal. Any party may file a motion to suspend consideration of a pending appeal. If granted, the Board will toll any remaining filing deadlines until a date specified in a Board notice or order. The Board may require the parties to file periodic status reports. The Board may lift the suspension and place an appeal in an active status upon motion by either party or at the Board's initiative.

(g) Evidentiary Hearing before an ALJ. (1) Any party may file a motion that the Board refer an appeal to an ALJ for a hearing. The motion must state:

(i) What specific issues of material fact require a hearing;

(ii) What evidence concerning these issues must be presented by oral testimony, or be subject to cross-examination;

(iii) What witnesses need to be examined; and

(iv) What documentary evidence requires explanation, if any.

(2) In response to a motion for hearing or on its own initiative, the Board may order a hearing before an ALJ if there are:

(i) Any disputed issues of material fact which, if proved, would alter the disposition of the appeal; or

(ii) Significant factual or legal issues remaining to be decided, and the record without a hearing would be insufficient for resolving them.

(3) If the Board orders a hearing, it must:

(i) Specify the issues of fact upon which the hearing is to be held; and

(ii) Request the ALJ to issue:

(A) Proposed findings of fact on the issues presented at the hearing;

(B) A recommended decision that includes findings of fact and conclusions of law; or

(C) A decision that will be final for the Department unless a notice of appeal is filed in accordance with § 4.403.

(4) The hearing will be conducted under the general rules in subpart C of this part. Unless the Board orders otherwise, the ALJ may consider other relevant issues and evidence identified after referral of the case for a hearing.

(h) Attorney substitution and withdrawal—(1) Attorney substitution—(i) Form and content. A party may substitute attorneys by filing and serving a notice of substitution that includes the pertinent contact information for the new attorney.

(ii) Effective date. The notice of substitution is effective upon filing.

(2) Attorney withdrawal—(i) Form and content. An attorney may request to withdraw from representing a party to an appeal without providing a substitute by filing a written motion to withdraw. The attorney must serve the motion on all parties and the attorney's client(s). The motion must contain the following:

(A) Pertinent contact information for the attorney's client(s);

(B) A statement explaining why the withdrawal will not unfairly prejudice the attorney's client(s); and

(C) A statement that the attorney has taken appropriate steps to protect the interests of the client(s) such as providing reasonable notice, allowing adequate time for the employment of another attorney, and surrendering files related to the appeal.

(ii) Effective date. A withdrawal is not effective unless the Board grants the motion to withdraw. The Board may condition or deny withdrawal to avoid prejudice to the client(s) and other parties.