Abandonment of Appeal/Default

Section 336 Section 336.200  Abandonment of Appeal/Default a)         The AHU will declare that the Department or appellant has abandoned the appeal when, during the pre-hearing conference or the hearing: 1)         the Department's legal representative, the appellant or the appellant's authorized representative, without good cause, fails to participate after receiving written notice from the AHU and after the ALJ has waited a reasonable time for the Department's legal representative, appellant or appellant's authorized representative to appear; or 2)         the appellant failed to notify the Chief ALJ of a change of address and a notice of the administrative hearing, sent to the appellant's last known address, was returned as "undeliverable", "unclaimed", "refused", "moved", "no forwarding address", or for similar circumstances by the US Postal Service or other third party delivery service. b)         Good cause for failure to appear includes but is not limited to: 1)         death or serious illness in the immediate family of the appellant, the appellant's representative, any witness, or the Department's legal representative; 2)         failure of the AHU to give notice of the proceeding to the appellant or the appellant's representative at the last known address available to the AHU; or 3)         failure of the AHU to give notice by fax, inter-office mail or electronic mail to the Department's legal representative. c)         When the Department's legal representative fails to appear at a pre-hearing conference or hearing, without good cause, and without having received a continuance, the ALJ may issue orders as are appropriate, including, but not limited to, a finding of default for failure to appear or participate.  All orders regarding a Department legal representative's failure to appear at a pre-hearing or hearing shall be sent to the attention of the Department's General Counsel. d)         Any party seeking to vacate an order of abandonment or default shall file a motion within 14 days after notice of the entry of an order of abandonment or default, showing good cause why the party failed to appear or participate.  All such motions will be timely ruled upon by the ALJ. Copies of the motion shall be served upon the ALJ, the AHU and the opposing party.