Iowa Admin. Code r. 641-33.26

Current through Register Vol. 47, No. 11, December 11, 2024

Rule 641-33.26 - Default

(1) If a party fails to appear or participate in a contested case proceeding after proper service of notice, the presiding officer may, if no adjournment is granted, enter a default decision or proceed with the hearing and render a decision in the absence of the party.

(2) Where appropriate and not contrary to law, any party may move for default against a party who has failed to appear after proper service.

(3) Default decisions or decisions rendered on the merits after a party has failed to appear or participate in a contested case proceeding become final board action unless, within 15 days after the date of notification or mailing of the decision, a motion to vacate is filed and served on all parties or an appeal of a decision on the merits is timely initiated within the time provided by subrule 33.30(2). A motion to vacate must state all facts relied upon by the moving party which establish that good cause existed for that party's failure to appear or participate at the contested case proceeding. Each fact so stated must be substantiated by at least one sworn affidavit of a person with personal knowledge of each such fact, which affidavit(s) must be attached to the motion.

(4) The time for further appeal of a decision for which a timely motion to vacate has been filed is stayed pending a decision on the motion to vacate.

(5) Properly substantiated and timely filed motions to vacate will be granted only for good cause shown, with burden of proof as to good cause on the moving party. Adverse parties will have ten days to respond to a motion to vacate. Adverse parties will be allowed to conduct discovery as to the issue of good cause and to present evidence on the issue prior to a decision on the motion, if a request to do so is included in that party's response.

(6) "Good cause" for purposes of this rule has the same meaning as "good cause" for setting aside a default judgment under the Iowa Rules of Civil Procedure.

(7) A decision denying a motion to vacate is subject to further appeal within the time limit allowed for further appeal of a decision on the merits in the contested case proceeding. A decision granting a motion to vacate is subject to interlocutory appeal by the adverse party pursuant to rule 641-33.29 (17A).

(8) If a motion to vacate is granted and no interlocutory appeal has been taken, the presiding officer will issue another statement of charges and notice of hearing and the contested case will proceed accordingly.

(9) A default decision may provide either that the default is to be stayed pending a timely motion to vacate or that the default decision is to take effect immediately, subject to a request for stay under rule 641-33.33 (17A).

Iowa Admin. Code r. 641-33.26

ARC 9057B, IAB 9/8/10, effective 10/13/10

Adopted by IAB May 15, 2024/Volume XLVI, Number 24, effective 6/19/2024