Vol. 80

Vol. 80

Tuesday,

No. 96

May 19, 2015

Part II

Department of Labor

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Office of the Secretary

29 CFR Part 18

Rules of Practice and Procedure for Administrative Hearings Before the

Office of Administrative Law Judges; Final Rule

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Federal Register / Vol. 80, No. 96 / Tuesday, May 19, 2015 / Rules and Regulations

DEPARTMENT OF LABOR

Office of the Secretary

29 CFR Part 18

RIN 1290–AA26

Rules of Practice and Procedure for

Administrative Hearings Before the

Office of Administrative Law Judges

AGENCY: Office of the Secretary, Labor.

ACTION: Final rule.

SUMMARY: This is the final text of

regulations governing practice and

procedure for proceedings before the

United States Department of Labor,

Office of Administrative Law Judges

(OALJ). The regulations were first

published as a final rule in 1983 and

were modeled on the Federal Rules of

Civil Procedure (FRCP). A Notice of

Proposed Rulemaking was published in

the Federal Register on December 4,

2012 requesting public comment on

proposed revisions to and

reorganization of these regulations. The

revisions make the regulations more

accessible and useful to parties. The

revisions also harmonize administrative

hearing procedures with the current

FRCP and with the types of claims now

heard by OALJ, which increasingly

involve whistleblower and other

workplace retaliation claims, in

addition to a longstanding caseload of

occupational disease and injury claims.

The Department received sixteen

comments to the proposed rule. This

rule responds to those comments and

establishes the final text of the revised

regulations.

DATES:

Effective Date: This rule is effective

June 18, 2015.

Compliance Date: This rule is

effective June 18, 2015.

FOR FURTHER INFORMATION CONTACT:

Todd Smyth at the U.S. Department of

Labor, Office of Administrative Law

Judges, 800 K Street NW., Suite 400North, Washington, DC 20001–8002;

telephone (202) 693–7300.

SUPPLEMENTARY INFORMATION:

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I. Background

On December 4, 2012, the Department

published a Notice of Proposed

Rulemaking (NPRM) with a request for

comments amending 29 CFR part 18,

subpart A. Rules of Practice and

Procedure for Hearings Before the Office

of Administrative Law Judge, 77 FR

72142 (Dec. 4, 2012). The Department

proposed to amend comprehensively its

procedural rules to reflect the changes

to civil litigation since the OALJ

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promulgated its rules in 1983.

Moreover, the need to update the

OALJ’s procedural rules was evident as

the OALJ’s authority to hear

whistleblower cases increased. The new

procedural rules are analogous to the

FRCP used in the United States district

courts and are intended to provide more

guidance and clarity to parties

practicing before the OALJ.

The Department provided an

opportunity for the public to comment

even though the changes are to rules of

agency organization, procedure and

practice, which are exempt from the

notice and public comment

requirements of the Administrative

Procedure Act (APA). See 5 U.S.C.

553(b)(3)(A). The comment period

ended on February 4, 2013. The

Department reviewed and responded to

each pertinent comment submitted. See

infra Part 3. Accordingly, the NPRM

amending 29 CFR part 18, subpart A,

that was published on December 4,

2012, is being adopted as a final rule

with the changes made below.

The Department has found that a

handful of departmental specific

program regulations reference these

rules, and that these references may

now be inaccurate due to shifts in

numbering. The Department plans to

correct these references in the near

future through technical corrections,

which will be published in the Federal

Register.

II. Summary of General Comments on

the Notice of Proposed Rulemaking

The Department received several

general comments regarding the

proposed changes to the OALJ rules of

practice and procedure. Each comment

is addressed as follows:

Compliance with the APA. The

Department stated in the NPRM that

while the proposed changes consist of

amendments to rules of agency

organization, procedure and practice

that are exempt from the notice and

public comment requirements of the

APA, the Department wished to provide

the public with an opportunity to

comment on any aspect of the proposed

rule. Accordingly, the proposed changes

were published in the Federal Register,

and public comment was invited. Two

commenters challenged the

Department’s reference to the APA’s

procedural rules exception and claimed

that the Department thus misinformed

the public and chilled the pool of public

comment on the proposed rule changes.

These commenters asserted that the

public harm resulting from this alleged

error could only be remedied by

withdrawing the proposed rules and

reissuing them in conformity with the

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full notice and comment protections of

the APA. One commenter argued that

because the rules contain provisions for

sanctions, they ‘‘substantially alter the

rights and interests of parties’’ which

triggers the APA’s requirements for

public notice and comment. This

comment principally relied on the

vacated decision of the Court of Appeals

for the District of Columbia in Air

Transp. Ass’n of Am. v. Dep’t of

Transp., 900 F.2d 369 (1990), cert.

granted, 498 U.S. 1023 (1991), vacated,

933 F.2d 1043 (1991). The other

commenter stated that the OALJ rules of

practice and procedure constitute

agency rules with the ‘‘force and effect

of law’’ that must be published for

public comment in accordance with the

Supreme Court’s decisions in United

States v. Mead Corp., 533 U.S. 218

(2001), and Christensen v. Harris Cnty.,

529 U.S. 576 (2000).

The Department disagrees with these

claims. In decisions issued subsequent

to its vacated ruling in Air Transp.

Ass’n of Am., the D.C. Circuit has

stressed that the ‘‘ ‘critical feature’ ’’ of a

rule that satisfies the so-called

‘‘procedural exception ‘is that it covers

agency actions that do not themselves

alter the rights or interests of parties,

although it may alter the manner in

which the parties present themselves or

their viewpoints to the agency.’ ’’ James

V. Hurson Assoc., Inc. v. Glickman, 229

F.3d 277, 280 (2000) (quoting JEM Broad

Co. v. FCC, 22 F.3d 320, 326 (D.C. Cir.

1994)). The Court further held in

Hurson that ‘‘an otherwise procedural

rule does not become a substantive one,

for notice and comment purposes,

simply because it imposes a burden on

regulated parties.’’ Id. at 281. As nothing

in the new rules alters the ‘‘substantive

criteria’’ by which claims and

complaints are adjudicated in the

hearing before the OALJ, they are within

the procedural rules exemption. See id.

at 280–81; JEM Broad Co., 22 F.3d at

237; Nat’l Whistleblower Ctr. v. Nuclear

Regulatory Comm’n, 208 F.3d 256, 262

(D.C. Cir. 2000), cert. denied, 531 U.S.

1070 (2001). The Supreme Court’s

decisions in Mead Corp. and

Christensen cited by the other

commenter respectively address

whether a U.S. Customs Service

classification ruling and Department of

Labor opinion letter, neither of which

were issued after APA notice and

comment rulemaking, are entitled to

deference under Chevron, U.S.A., Inc. v.

Natural Res. Def. Council, Inc., 467 U.S.

837 (1984). These decisions do not

address the scope of the APA’s

procedural rules exception.

The Department moreover voluntarily

published the rule changes in

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accordance with the notice and

comment requirements of the APA

consistent with the procedure

recommended by the Administrative

Conference of the United States to avoid

controversy over the scope of the APA’s

notice and comment exceptions. See

The Procedural and Practice Rule

Exemption from the APA Notice-andComment Rulemaking Requirements, 1

CFR 305.92–1 (1995) (ACUS

Recommendation 92–1, available at

www.acus.gov/sites/default/files/

documents/92-1/pdf). The commenters

provided no evidence to support their

claim that the Department’s voluntary

compliance with the APA’s notice and

comment requirements in accordance

with the ACUS recommendation in any

manner chilled or otherwise influenced

public comment. They also cited no

legal authority for their position that the

Department’s mere reference to the

procedural rules exception vitiated the

NPRM. The Department’s receipt of

multiple comments indicates that the

public was neither ‘‘chilled’’ nor

deterred from submitting items for

consideration. Thus, there is no basis for

withdrawing and reissuing the rules

changes.

Conflicts with the LHWCA and BLBA.

Two commenters argued that several

provisions in the new rules providing

for imposition of sanctions conflict with

provisions of the Longshore and Harbor

Workers’ Compensation Act (LHWCA),

33 U.S.C. 901–950, which are also

applicable to claims adjudicated under

the Black Lung Benefits Act (BLBA), 30

U.S.C. 901–945, and therefore those

provisions should either be deleted or

rewritten to specifically state that they

are not applicable to proceedings under

the LHWCA and BLBA. The

commenters identified sections 926,

927(b) and 931 of the LHWCA, 33 U.S.C.

926, 927(b), 931, as conflicting with the

new rules containing sanction

provisions. One commenter also

suggested that some of the new rules

may contravene section 923(a) of the

LHWCA, 33 U.S.C. 923(a). The

Department believes however that any

conflicts between the rules and the

LHWCA and, for that matter, any other

statute governing administrative hearing

proceedings before the OALJ, are

already addressed appropriately in the

rules and do not warrant either

wholesale rescission or rewriting. The

Department also believes that the

commenters overstated the alleged

conflicts between the new rules and the

LHWCA.

Section 923(a) of the LHWCA

provides that officials conducting

hearings ‘‘shall not be bound by

common law or statutory rules of

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evidence or by technical or formal rules

of procedure, except as provided by this

chapter; but may make such

investigation or inquiry or conduct such

hearing in such manner as to best

ascertain the rights of the parties.’’ 33

U.S.C. 923(a). See also 20 CFR 702.339,

725.455(b). The Benefits Review Board

(BRB) and courts of appeals have

nevertheless applied provisions of the

OALJ Rules of Practice and Procedure,

particularly in regard to discovery

issues, in proceedings governed by

section 923(a) of the LHWCA in the

absence of any conflict with a particular

LHWCA or BLBA rule. See, e.g.,

Johnson v. Royal Coal Co., 326 F.3d 421,

426 (4th Cir. 2003); Keener v. Peerless

Eagle Coal Co., 23 Black Lung Rep.

(Juris) 1–229, 1–243 (Ben. Rev. Bd.

2007) (en banc); Cline v. Westmoreland

Coal Co., 21 Black Lung Rep. (Juris) 1–

69, 1–76 (Ben. Rev. Bd. 1997); see also

Prince v. Island Creek Coal Co., BRB No.

01–0448 BLA, 2002 WL 34707263 (Ben.

Rev. Bd. Jan. 24, 2002) (reading 29 CFR

18.14 and 20 CFR 725.455 as

complementary rules providing the ALJ

with broad discretion to direct

discovery), aff’d, 76 Fed.Appx. 67, 2003

WL 22176988 (6th Cir. Sept. 19, 2003).

It would be inappropriate and contrary

to well-established precedent to add a

textual exception to all of the proposed

disclosure and discovery rules for

LHWCA and BLBA cases. Moreover,

§ 18.10(a) provides that ‘‘[t]o the extent

that these rules may be inconsistent

with a governing statute, regulation, or

executive order, the latter controls.’’ 29

CFR 18.10(a).

Section 926 of the LHWCA provides

that ‘‘[i]f the court having jurisdiction of

proceedings in respect of any claim or

compensation order determines that the

proceedings in respect of such claim or

order have been instituted or continued

without reasonable ground, the costs of

such proceedings shall be assessed

against the party who has so instituted

or continued such proceedings.’’ 33

U.S.C. 926. Congress intended claimants

to be subject to costs ‘‘if they brought

their unreasonable claims into court’’

when it enacted section 926. Metro.

Stevedore Co. v. Brickner, 11 F.3d 887,

890 (9th Cir. 1993). The Department

recognizes that federal courts have the

exclusive power to impose section 926

sanctions when a party brings a

frivolous claim under the LHWCA. Id. at

890–91; see also Boland Marine & Mfg.

Co. v. Rihner, 41 F.3d 997, 1004 (5th

Cir. 1995). However, to the extent that

any of the new rules conflict with

section 926, the latter controls. See 29

CFR 18.10(a). There is therefore no

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conflict between section 926 and any of

the new rules.

Section 927(b) in relevant part

provides that if any person in a LHWCA

proceeding ‘‘disobeys or resists any

lawful order or process, or misbehaves

during a hearing or so near the place

thereof as to obstruct the same, or

neglects to produce, after having been

ordered to do so, any pertinent book,

paper, or document, or refuses to appear

after having been subpoenaed, or upon

appearing refuses to take the oath as a

witness, or after having taken the oath

refuses to be examined according to

law,’’ the adjudicatory official ‘‘shall

certify the facts to the district court

having jurisdiction in the place in

which he is sitting (or to the United

States District Court for the District of

Columbia’’ for summary contempt

proceedings). 33 U.S.C. 927(b). The

Department agrees with the commenters

that section 927(b) provides the district

courts with the exclusive power to

punish contumacious conduct

consisting of a refusal to comply with a

judge’s order, lawful process or

subpoena, or hearing room misbehavior

in proceedings under the LHWCA. See

Goicochea v. Wards Cove Packing Co.,

37 Ben. Rev. Bd. Serv. (MB) 4, 6 (2003)

(vacating dismissal of claim as sanction

for claimant’s refusal to comply with a

judge’s discovery order). To the extent

that any of the new rules conflict with

section 927(b), the latter controls. See 29

CFR 18.10(a). However, there are several

situations addressed by the new rules

involving conduct that likely would fall

outside the categories of contumacy

requiring certification to a district court

for a section 927(b) summary contempt

proceeding. See A–Z Intn’l v. Phillips,

323 F.3d 1141, 1146–47 (9th Cir. 2003)

(holding that the district court lacked

section 927(b) jurisdiction over conduct

that did not involve a refusal ‘‘to

comply with a summons, writ, warrant,

or mandate issued by the ALJ’’). See,

e.g., 29 CFR 18.35(c) (sanctions for

violations of § 18.35(b) relating to the

representations made when presenting a

motion or other paper to the judge),

18.50(d)(3) (sanctions for violations of

§ 18.50(d)(1) pertaining to certifications

made when signing disclosures and

discovery requests, responses and

objections), 18.56(d)(1) (sanctions for

violations of the duty under

§ 18.56(c)(1) to protect a person subject

to a subpoena from undue burden),

18.57(c) (sanctions for failures to

disclose information, supplement an

earlier response or to admit as required

by §§ 18.50(c), 18.53 and 18.63(a)),

18.57(d) (sanctions for a party’s failure

to attend its own deposition, serve

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answers to interrogatories, or respond to

a request for inspection), 18.64(d)(2)

(sanctions for impeding, delaying or

frustrating a deposition), 18.64(g)

(sanctions for failing to attend or

proceed with a deposition or serve a

subpoena on a non-party deponent

when another party, expecting the

deposition to be taken, attends),

18.72(h) (sanctions for submitting in bad

faith an affidavit or declaration in

support of or in opposition to a motion

for summary decision). To the extent

these provisions address violations of

the procedural rules falling outside the

scope of section 927(b), there is no

conflict with the statute.

The Department also rejects the

commenters’ argument that section

927(b) provides the exclusive remedy

for any misconduct or rules violation

occurring in LHWCA and BLBA

proceedings. Section 927(b), 44 Stat.

1438 (Mar. 4, 1927) (codified as

amended at 33 U.S.C. 927), was

originally enacted in 1927, decades

before the passage of the APA which

also governs adjudications under the

LHWCA and the BLBA. 33 U.S.C.

919(d); 30 U.S.C. 932(a); Dir., OWCP,

Dep’t of Labor v. Greenwich Collieries,

512 U.S. 267, 280–81 (1994); see also

Lane v. Hollow Coal Co. v. Dir., OWCP,

Dep’t of Labor, 137 F.3d 799, 802–03

(4th Cir. 1998) (requiring ALJ’s decision

to contain findings and conclusions, in

accordance with 5 U.S.C. 557(c)(3)(A));

Cole v. East Kentucky Collieries, 20

Black Lung Rep. (Juris) 1–50, 1–54 (Ben.

Rev. Bd. 1996) (discussing statutory

mechanism whereby APA applies to

BLBA claims); Toyer v. Bethlehem Steel

Corp., 28 Ben. Rev. Bd. Serv. (MB) 347,

351 (1994) (emphasizing APA

applicability in all LHWCA

adjudications). Notably, the APA’s grant

of authority to ‘‘regulate the course of

the hearing,’’ 5 U.S.C. 556(c)(5),

provides a judge with an independent

basis to take such actions as are

necessary to ensure parties a fair and

impartial adjudication. Such authority

includes the power to compel discovery

and impose sanctions for noncompliance pursuant to the OALJ rules

of practice and procedure. See Williams

v. Consolidation Coal Co., BRB No. 04–

0756 BLA, 2005 WL 6748152, at *8

(Ben. Rev. Bd. Aug. 8, 2005), appeal

denied, 453 F.3d 609 (4th Cir. 2006),

cert. denied, 549 U.S. 1278 (2007). The

bifurcation of general adjudicatory

authority and contempt powers between

administrative law judges and the

district courts under the LHWCA is

analogous to adjudication in the federal

courts after passage of the Federal

Magistrates Act, 28 U.S.C. 604, 631–39,

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under which magistrate judges have

general authority to order nondispositive discovery sanctions while

contempt charges must be referred to a

district court judge. See Grimes v. City

and County of San Francisco, 951 F. 2d

236, 240–41 (9th Cir. 1991) (discussing

the scope and limits of magistrate

judges’ sanction authority); see also

Dodd v. Crown Cent. Petroleum Corp.,

36 Ben. Rev. Bd. Serv. (MB) 85, 89 n.6

(2002) (affirming, as not inconsistent

with section 927(b), judge’s imposition

of sanctions pursuant to 29 CFR

18.6(d)(2) for claimant’s noncompliance

with a discovery order). The Department

therefore believes that the commenters’

proposal to exempt LHWCA and BLBA

proceedings from the judge’s authority

under the APA to regulate the course of

the hearing is neither warranted by the

statute nor consistent with the efficient

and impartial conduct of administrative

hearings.

Section 931(a)(1) of the LHWCA

provides that ‘‘[a]ny claimant or

representative of a claimant who

knowingly and willfully makes a false

statement or representation for the

purpose of obtaining a benefit or

payment under this chapter shall be

guilty of a felony, and on conviction

thereof shall be punished by a fine not

to exceed $10,000, by imprisonment not

to exceed five years, or by both.’’ 33

U.S.C. 931(a)(1). Section 931(c)

similarly provides that ‘‘[a] person

including, but not limited to, an

employer, his duly authorized agent, or

an employee of an insurance carrier

who knowingly and willfully makes a

false statement or representation for the

purpose of reducing, denying, or

terminating benefits to an injured

employee, or his dependents pursuant

to section 909 of this title if the injury

results in death, shall be punished by a

fine not to exceed $10,000, by

imprisonment not to exceed five years,

or by both.’’ 33 U.S.C. 931(c). As there

is no provision in the new rules that

authorizes a judge to impose a fine or

other penalty for a knowing and

willfully false statement or

representation for the purpose of

obtaining or opposing a benefit under

the LHWCA, there is no conflict

between section 931 and any of the new

rules.

Authority to Regulate the Conduct of

Administrative Proceedings; Sanctions.

The Department announced in the

NPRM that it intended to bring the

OALJ rules of practice and procedure

into closer alignment with the FRCP.

Doing so takes advantage of the mature

precedent the federal courts have

developed and the broad experience

they have in applying the FRCP.

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Choosing which portions to adopt and

which to omit allows for flexible case

management, given the less formal

nature of administrative proceedings,

which never involve juries. These

changes offer greater clarity and

uniformity so parties can focus on the

merits of their disputes with less

distraction from litigating points of

procedure. To attain these objectives,

the new rules contain a number of

provisions, similar to their FRCP

counterparts, which authorize judges to

take actions necessary to regulate and

ensure the integrity of the hearing

process. See 29 CFR 18.12(b)(10),

18.35(c), 18.50(d)(3), 18.56(c)(1),

18.57(a)(2)(A), 18.57(b), 18.57(c),

18.57(d)(1), 18.57(d)(3), 18.57(e),

18.57(f), 18.64(d)(2), 18.64(g), 18.72(h),

18.87. Two commenters asserted that

these litigation sanction provisions

exceed a judge’s authority under the

APA, and attempt to arrogate contempt

power and claim ‘‘inherent judicial

authority’’ that is vested exclusively in

the Article III courts. The Department

believes these assertions misunderstand

the challenged rules and their intent.

The prior rules authorized judges to

sanction a broad range of inappropriate

conduct during the course of an

administrative proceeding. A judge

could overrule an objection to a

discovery request (such as request for

admission or an interrogatory) and

compel a response. 29 CFR 18.6(d)(1). If

that objecting party thereafter failed to

answer or answered evasively, the judge

could order that a matter be treated as

admitted. Id. If a party failed to comply

with a subpoena, discovery order or any

other order, the judge could take other

just actions, including (i) drawing

adverse inferences; (ii) ruling that the

matter concerning which the subpoena

or order was issued be taken as

established adversely to a noncomplying party; (iii) excluding

evidence a non-complying party offered;

(iv) ruling that a non-complying party

could not object to the use of secondary

evidence to establish what evidence it

withheld should have shown; or (v)

ruling that all or part of a pleading be

stricken, or that a decision be rendered

against the non-complying party. 29

CFR 18.6(d)(2). The prior rules also

recognized that judges have ‘‘all powers

necessary to the conduct of fair and

impartial hearings including, but not

limited to . . . [w]here applicable, take

any appropriate action authorized by

the Rules of Civil Procedure for the

United States District Courts, issued

from time to time and amended

pursuant to 28 U.S.C. 2072. . . .’’ 29

CFR 18.29(a)(8). The new rules preserve

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this longstanding authority to impose

appropriate litigation sanctions, see 29

CFR 18.12(b)(10), 18.57(b), and

additional provisions for sanctions were

made as discussed above in §§ 18.35(c),

18.50(d)(3), 18.56(c)(1), 18.57(c),

18.57(d), 18.64(d)(2), 18.64(g), 18.72(h).

The new rules provide greater clarity

and direction on the scope and

limitations on a judge’s authority to

sanction a party’s unjustified failure to

carry out duties that the procedural

rules establish.

The Department’s appellate boards

and judges have no Article III status or

powers. See, e.g., Temp. Emp’t Serv. v.

Trinity Marine Group, Inc., 261 F.3d

456, 460–61 (5th Cir. 2001); Schmit v.

ITT Fed. Elec. Int’l, 986 F.2d 1103,

1109–10 (7th Cir. 1993); Gibas v.

Saginaw Mining Co., 748 F.2d 1112,

1117 (6th Cir. 1984). The APA vests no

contempt powers in ALJs. The

Department acknowledges that FRCP 11

itself does not vest ALJs with authority

to impose the sanctions embodied in

that rule because it is a rule of the

Article III trial courts. Nor was it clear

whether FRCP 11 had been generally

incorporated into the prior rules by 29

CFR 18.1(a). Metro. Stevedore Co. v.

Brickner, 11 F.3d 887, 891 (9th Cir.

1993) (expressing in dicta doubts about

incorporation). FRCP 11 was

unavailable for incorporation in

Longshore claims, however. Boland

Marine & Mfg. Co. v. Rihner, 41 F.3d

997 (5th Cir. 1995) (Section 26 of the

Longshore Act confines an award of

costs when proceedings are ‘‘instituted

or continued without reasonable

grounds’’ to proceedings that have made

their way into the Article III courts.

Therefore, neither FRCP 11 nor section

26(f) may be incorporated into

Longshore Act proceedings at the

Department through the text of 29 CFR

18.1(a) on the theory that the ‘‘situation

[is] not provided for or controlled by

statute.’’); Metro. Stevedore Co., 11 F.3d

at 891 (finding that under section 26 of

the Longshore Act only courts can

assess costs against a claimant who

institutes or continues a proceeding in

the courts without reasonable grounds);

R.S. [Simons] v. Va. Int’l Terminals, 42

Ben. Rev. Bd. Serv. (MB) 11, 14 (2008)

(rejecting an argument that an ALJ could

assess attorney’s fees against an

employer that were unavailable under

section 28 of the Longshore Act by using

FRCP 11 instead); Valdez v. Crosby &

Overton, 34 Ben. Rev. Bd. Serv. (MB) 69,

77 (2000) (applying the holdings in

Boland Marine & Mfg. Co. and Metro.

Stevedore Co.); Crum v. Wolf Creek

Collieries, 18 Black Lung Rep. (Juris) 1–

80, 1–83 (Ben. Rev. Bd. 1994). Though

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the new rules use the term ‘‘sanction’’

to describe remedies that can be applied

when a party fails to fulfill its duties,

these remedies do not extend to the full

panoply of powers available to Article

III judges under their inherent powers or

under FRCP 11, which encompass the

authority to require an errant lawyer to

participate in seminars or education

programs, or order a fine payable to the

court. See Fed. R. Civ. P. 11 advisory

committee’s note (discussion of 1993

amendments).

Nonetheless, the APA empowers

ALJs, ‘‘[s]ubject to published rules of the

agency and within its powers . . . to

regulate the course of a hearing.’’ 5

U.S.C. 556(a)(3), (c)(5). That authority is

statutorily explicit. The appellate courts

moreover have upheld orders that

impose litigation sanctions on parties

who violate an administrative agency’s

procedural rules. See Roadway Exp.,

Inc. v. U.S. Dept. of Labor, 495 F.3d 477,

484 (7th Cir. 2007) (‘‘[A]gency’s rules

unambiguously permit the ALJ to

impose, as a discovery sanction, an

order excluding evidence that a noncomplying party wishes to introduce in

support of its claim.’’); In re Bogese, 303

F.3d 1362, 1367–68 (Fed. Cir. 2002)

(Patent and Trademark Office, like other

administrative agencies, may impose

reasonable deadlines and requirements

on parties appearing before it and has

broad authority to sanction undue delay

by holding a patent unenforceable);

Atlantic Richfield Co. v. U.S. Dep’t of

Energy, 769 F.2d 771, 793 (D.C. Cir.

1984) (rejecting argument that

administrative agency ‘‘cannot impose

evidentiary sanctions—of course, short

of a fine or imprisonment—when

necessary to preserve the integrity of an

authorized adjudicative proceeding’’).

As the court of appeals in Atlantic

Richfield Co. stated,

It seems to us incongruous to grant an

agency authority to adjudicate—which

involves vitally the power to find the

material facts—and yet deny authority to

assure the soundness of the fact finding

process. Without an adequate evidentiary

sanction, a party served with a discovery

order in the course of an administrative

adjudicatory proceeding has no incentive to

comply, and often times has every incentive

to refuse to comply.

769 F.2d at 796. The adjudicatory duties

of an ALJ are in many ways

‘‘functionally comparable’’ to those of a

federal district court judge. Butz v.

Economou, 438 U.S. 478, 513–14 (1978).

It would be incongruous to deprive an

ALJ of any procedural tools that assure

the integrity and soundness of the

adjudicative process. The tools include

the authority to impose litigation

sanctions that do not conflict with the

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substantive statute applicable to the

proceeding for procedural violations

that frustrate efficient administrative

adjudication. The Department’s ALJs

used a broad range of sanctions for the

nearly 30 years under the prior rules,

including the dismissal of a claim or

defense, as well as lesser evidentiary

sanctions. Curley v. Grand Rapids Iron

& Metal Co., ARB No. 00–013, ALJ No.

1999–STA–39 (ARB Feb. 9, 1999)

(affirming ALJ’s authority to dismiss

employment protection claim for

abandonment, based on complainant’s

failure to participate in prehearing

conference or reply to order to show

cause why the matter should not be

dismissed for failure to comply with a

lawful order); see also Dodd v. Crown

Cent. Petroleum Corp., BRB No. 02–

0821, slip op. at 9–10 (Ben. Rev. Bd.

Aug. 7, 2003) (affirming the dismissal

for abandonment of a pro se litigant’s

claim under the authority of 29 CFR

18.29(a), which affords ALJs ‘‘all

necessary powers to conduct fair and

impartial hearings and to take any

appropriate action authorized by the

Federal Rules of Civil Procedure,’’

where claimant failed to attend the final

hearing, stated he would not participate,

sustained objections to discovery the

claimant sought, and denied the

claimant’s motion to recuse the ALJ);

Matthews v. LaBarge, Inc., ARB No. 08–

038, ALJ No. 2007–SOX–56 (ARB Nov.

26, 2008) (adopting ALJ’s decision to

dismiss under 29 CFR 18.6(d)(2)

because ALJ found that pro se

complainant failed to comply with

discovery orders repeatedly, willfully,

intentionally, and in bad faith);

Administrator v. Global Horizons

Manpower, Inc., ARB No. 09–016, ALJ

No. 2008–TAE–3 (ARB Dec. 21, 2010)

(affirming ALJ’s order granting, as a

discovery sanction under 29 CFR

18.6(d)(2)(v) and 18.29(a)(8), all the back

pay and civil penalties the

Administrator of the Wage and Hour

Division had sought against employer

for ‘‘willful, contumacious disregard of

the discovery process as well as

disregard of the ALJ’s multiple warnings

and orders’’); Administrator v. Global

Horizons, Inc., ARB No. 11–058, ALJ

No. 2005–TAE–1 & 2005–TLC–6, 2013

WL 2450031, at *4–8 (DOL Admin. Rev.

Bd. May 31, 2013) (affirming an ALJ’s

summary judgment awarding worker’s

back pay, repayment of impermissible

deductions from pay, and awarding the

Administrator civil penalties, which

were based in large part on 145 factual

allegations deemed admitted as the

result of three orders that imposed

sanctions for misconduct in discovery).

But see Goichochea v. Wards Cove

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Packing Co., 37 Ben. Rev. Bd. Serv.

(MB) 4, 7 (2003) (holding that in a claim

for Longshore disability compensation

benefits, the remedy for disobeying an

order compelling discovery is the

procedure described in section 27(b) of

the Longshore Act).

The Department kept in mind the

limits on the authority of an

administrative agency to impose

sanctions when it fashioned the

litigation sanction provisions. Section

558(b) of the APA, cited by some

commenters, states that ‘‘[a] sanction

may not be imposed or a substantive

rule or order issued except within the

jurisdiction delegated to the agency and

authorized by law.’’ 5 U.S.C. 558(b); see

also Am. Bus. Ass’n v. Slater, 231 F.3d

1, 7 (D.C. Cir. 2000) (holding that the

Department of Transportation lacked

statutory authority to require a bus

company to pay monetary damages to

disabled passengers they failed to

accommodate); Windhauser v. Trane,

ARB No. 05–127, OALJ No. 2005–SOX–

17, 2007 WL 7139497, at *2–3 (DOL

Admin. Rev. Bd. Oct 31, 2007)

(reversing ALJs imposition of monetary

sanctions against whistleblower

complainant because such sanctions

‘‘are, by statute, in the jurisdiction of the

federal district courts’’). The Slater

court distinguished between sanctions

that require express statutory authority

under section 558(d) of the APA

because they are directed at modifying

‘‘primary conduct,’’ such as a bus

company’s failure to accommodate

disabled passengers, and litigation

sanctions designed to protect the

integrity of the agency’s administrative

processes. Id. The Slater court

recognized an agency has ‘‘a limited

power to impose sanctions that are not

expressly authorized by statute, but only

ones designed to ‘protect the integrity of

its own processes.’ ’’ Id. (quoting Touche

Ross & Co. v. SEC, 609 F.2d 570, 582 (2d

Cir. 1979)); see also Davy v. SEC, 792

F.2d 1418, 1421 (9th Cir. 1986). The

provisions for the limited sanctions in

the new rules are not directed to any

party’s primary conduct—which would

be the subject matter of the

proceeding—but to violations of

procedural rules that compromise the

integrity of the administrative hearing

process. These litigation sanctions are

consistent with the Department’s

regulatory authority under section

556(c)(5) of the APA, do not require

additional express statutory

authorization under section 558(b) of

the APA, and do not amount to an

exercise of Article III courts’ contempt

or sanction powers.

Remedial Purpose of Whistleblower

Adjudications. The Department received

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a comment regarding whistleblower

adjudications generally, which

suggested that the procedural rules

should reflect the remedial purpose of

the whistleblower statutes under the

OALJ’s jurisdiction. The Department

notes that the new rules are procedural

rules intended to apply to all

proceedings before OALJ and not any

specific class of proceeding. To the

extent a particular agency seeks the

application of specific procedural rules,

it is incumbent on that agency to

incorporate such rules into its own

regulations. For instance, proceedings

under the Employee Retirement Income

Security Act of 1974 (ERISA), 29 U.S.C.

1132, define specific procedures at 29

CFR 2570, subpart C.

The Department received a similar

comment suggesting that the OALJ

‘‘should strive for better whistleblower

protection than U.S. District Courts’’

because the OALJ has garnered

specialized knowledge and the process

is less formal in an agency adjudication.

The comment however did not offer any

concrete proposal for changes to the text

of the new rules. Any program-specific

change moreover should be addressed to

the particular agency charged with

administering the particular program.

Effect on Pro Se Litigants. One

commenter asserted that the new rules

will make litigation of whistleblower

claims harder on pro se parties. The

commenter noted that, although the

OALJ rules of practice and procedure

are analogous to the FRCP, there are

some differences: For example,

whistleblowers do not ordinarily have

to plead a claim through a complaint.

The commenter remarked that the

Administrative Review Board (ARB) and

other appellate authorities have

construed pro se complainants’

positions liberally and with a degree of

judicial latitude. The commenter also

suggested that the Department’s

comments should make clear that

decisions on the merits are the goal, and

compliance with procedural rules

should ‘‘bend where necessary to meet

that goal.’’

The Department agrees that concerns

relating to the ability of pro se litigants

to submit and litigate complaints

deserve consideration. As the ARB has

enunciated, a pro se litigant’s presumed

lack of familiarity with litigation

procedures may require

accommodation. For example, a pro se

litigant must be informed of the

consequences of failing to respond to

dispositive motions, Motarjemi v. Metro.

Council, Metro. Transit Div., ARB No.

08–135, ALJ No. 2008–NTS–2 (ARB

Sept. 17, 2010), and an untimely filing

may be considered, Wallum v. Bell

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Helicopter Textron, Inc., ARB No. 12–

110, ALJ No. 2009–AIR–20 (Sept. 19,

2012). The new rules provide uniform

procedures for case management, but

simultaneously permit judges the

flexibility to tailor procedures to

specific cases through appropriate

orders. So, for example, where a pro se

complainant requires additional

guidance, under the new rule the judge

may issue more focused or detailed

orders, as necessary. The new rules

provide more detailed procedural

information (particularly regarding

discovery and other pre-hearing

requirements) than had been the case

previously. The Department therefore

declines to adopt the commenter’s

suggestion.

Discovery Rules Regarding

Electronically Stored Information. One

commenter voiced some general

concerns that the rules should clarify

issues related to discovery of

electronically stored information (ESI),

specifically providing that both sides

have access to discovery of ESI and that

ESI is treated the same as paper

documents. The Department believes

those concerns are adequately addressed

in § 18.61, which states that there is no

differentiation in the access to ESI or

paper discovery. Thus, the rule provides

the ALJ with the ability to manage

discovery and minimize gamesmanship

in discovery of both paper documents

and ESI.

Electronic Filing. One commenter

urged that the OALJ adopt and

implement electronic case filing (ECF)

or, in the alternative, allow facsimile

filing and remove the maximum page

limitation on faxes. Those concerns

were also specifically raised in the

comments to proposed § 18.30 and are

fully addressed in that response.

However, the general answer is that the

implementation of ECF is a resource

constrained policy decision. Until the

Department implements ECF,

promulgating rules about ECF would

lead to confusion.

Offer of Judgment. One commenter

suggested that the OALJ’s rules should

include one analogous to FRCP 68, Offer

of Judgment, and should expressly cut

off attorney’s fees and other litigation

costs when a claimant refuses an offer

and fails to obtain a more favorable

result.

The Department declines to adopt the

commenter’s suggestion. An offer of

judgment is significant matter that could

affect an otherwise successful

complainant’s right to recover attorneys’

fees as costs. Marek v. Chesny, 473 U.S.

1 (1985). No analog to FRCP 68 appears

in the OALJ’s previous rules. The

Department stated its intention to align

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its procedural rules more closely with

the FRCP, but did not give any notice

that an offer of judgment rule was

contemplated. The Department believes

the final rule should not include an

offer of judgment provision for three

interrelated reasons.

First, doing so would not have given

interested parties sufficient notice that

such a rule was contemplated, and it is

unclear that doing so now could be

regarded a logical outgrowth of the rules

proposed. See 5 U.S.C. 553(b)(3); Ass’n

of Private Sector Colls. & Univs. v.

Duncan, 681 F.3d 427, 461 (D.C. Cir.

2012). Second, the OALJ issues no

judgments; it is not a court, although it

shares many attributes with Article III

federal courts. FRCP 68 would have to

be substantially altered to adapt to the

context of administrative adjudication,

as there is no clerk who could enter a

judgment in the way FRCP 68(a)

contemplates (‘‘The clerk must then

enter judgment.’’). Finally, FRCP 68 is

subject to varying interpretations in the

courts of appeals on how the defense

should address attorney’s fees in the

text of an offer, when the substantive

statute at issue directs the adjudicator to

assess those fees as an item of costs. See

Charles Alan Wright et al., Federal

practice and Procedure § 3005.1 (3d ed.

2014). Any rule the Department adopts

should make a choice between the

competing theories, to make the rule

nationally uniform, and as useful to

litigants as possible. Those choices will

not be made without the benefit of

public comment.

III. Summary of Specific Comments on

the Notice of Proposed Rulemaking

The Department received several

comments regarding specific sections in

the NPRM. Each comment is addressed

as follows:

§ 18.10 Scope and purpose. One

commenter expressed concern that the

principles expressed in section 923 of

the LHWCA, providing that the LHWCA

hearing process is not bound by formal

rules of evidence but conducted in a

manner to best ascertain the rights of the

parties, may be circumvented by

procedural rules not addressed in the

LHWCA and BLBA and respective

implementing regulations. The

commenter suggested part 18 explains

what sections do not apply to LHWCA

or BLBA proceedings ‘‘to avoid

confusion.’’ Another commenter

suggested adding a paragraph ‘‘(d)’’ to

§ 18.10, which would specifically state

that in proceedings under the LHWCA

and BLBA the following list of proposed

rules would not apply: §§ 18.12, 18.23,

18.35, 18.50, 18.56, 18.57, 18.64, 18.70,

18.72, 18.80, and 18.87.

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Future statutory and regulatory

changes in the numerous administered

programs, including the LHWCA, BLBA,

employment discrimination,

‘‘whistleblower’’ and immigration

cannot be foreseen. For instance, recent

litigation has highlighted a BLBAspecific issue—one involving the

disclosure of non-testifying expert

opinions—that may deserve further

consideration. See generally Fox v. Elk

Run Coal Co., 739 F.3d 131 (4th Cir.

2014). Nothing in these rules would

prevent the Department from adopting a

procedural rule that applies only in

BLBA claim adjudications or other

program-specific contexts. Moreover,

listing variations in procedural

requirements for the numerous

programs in each new rule defeats the

purpose of the new rules and would

require constant rulemaking activity to

reflect legislative changes. The

Department thus disagrees with the

submitted proposals to individually

identify superseding statutory,

regulatory or executive order provisions

collectively in the new § 18.10 or

separately in those new rules where a

conflict may exist.

One commenter suggested that the

lack of an appeal process in regard to a

judge’s decision to modify, waive or

suspend a procedural rule in new

§ 18.10(c) ‘‘appears arbitrary and

capricious.’’ The Department disagrees.

First, while the case is at the OALJ, no

rule may be waived, modified or

suspended without notice to the parties.

Second, doing so requires the judge to

make two determinations: That the

specific alteration of the rule ‘‘will not

prejudice a party,’’ and ‘‘will serve the

ends of justice.’’ Finally, a party may

raise before the appropriate appellate

authority on direct review of the final

order any error in modifying a rule.

§ 18.12 Proceedings before

administrative law judge. The

Department combined the designation

provisions of prior § 18.25 and the

authority provisions of prior § 18.29(a).

The Department specifically clarified in

the NPRM that the enumerated powers

mirrored those set forth in section 556

of the APA and that the enforcement

provision of prior § 18.29(b) was deleted

due to its contents of referring

contumacious conduct to an appropriate

federal court is set forth in applicable

statutes, such as Section 927(b) of the

LHWCA.

One commenter proposed that prior

§ 18.29(b) should not be deleted ‘‘even

though the content is contained in

applicable statutes [because] this

provision clearly delineates an

administrative law judge’s restricted

powers, especially under statutes like

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the LHWCA.’’ The Department disagrees

with the comment that the provision on

referring contumacious conduct to

federal court should be retained in the

new rules since controlling program

statutes provide for such referral action

when appropriate. See, e.g., 20 CFR

725.351(c).

The commenter also proposed

deleting § 18.12(b)(10) listing the

authority of an ALJ to ‘‘take actions

authorized by the FRCP’’ because the

language would include all sanctions

authorized by the FRCP and penalty

sanctioning authority is reserved to the

federal courts by the LHWCA and

BLBA. Section 18.12(b)(10) was a

succinct restatement of prior

§ 18.29(a)(8). The Department agrees

that the brevity in which prior

§ 18.29(a)(8) was restated could be

construed as excessively broad. To

ensure consistency, the new

§ 18.12(b)(10) is rewritten to closely

align with prior § 18.29(a)(8) by

returning the words ‘‘where applicable’’

to the rule.

§ 18.22 Representatives. The

Department narrowed the rule on

representatives appearing before OALJ

to reflect the two classes of

representatives who routinely appear—

attorneys and non-attorney

representatives. The rule sets forth the

qualifications required to appear as a

representative of a party, the minimum

duties required of a representative, and

prohibited actions of any representative.

One comment suggested that the

proposed rule setting forth the

qualifications for an attorney

representative is overreaching and

conflicts with 5 U.S.C. 500(b). That

provision states in relevant part: ‘‘An

individual who is a member in good

standing of the bar of the highest court

of a State may represent a person before

an agency on filing with the agency a

written declaration that he is currently

qualified as provided by this subsection

and is authorized to represent the

particular person in whose behalf he

acts.’’ Id. The commenter suggested

nothing more should be required of an

attorney representative seeking to

represent a party before OALJ. The

commenter believed that the proposed

§ 18.22 (a)–(d) imposed additional

requirements inconsistent with 5 U.S.C.

500(b).

The Department has made revisions to

the new rule in response to this

comment. The Department deleted the

following sentence from § 18.22(a): ‘‘The

notice of appearance shall also include

the statements and documentation

required for admission to appear for the

applicable category of representation

found in subdivision (b) of this section.’’

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The Department has added the

following in its place: ‘‘Any attorney

representative must include in the

notice of appearance the license

registration number(s) assigned to the

attorney.’’ Essentially the only

requirement that an attorney

representative must follow in order to

represent a party before the Department

is to file a notice of appearance and

include the appropriate attorney license

registration number. Filing the notice of

appearance by the attorney

representative will constitute an

attestation that: (a) The attorney is a

member of a bar in good standing of the

highest court of a State, Commonwealth,

or Territory of the United States, or the

District of Columbia; and (b) no

disciplinary proceeding is pending

against the attorney in any jurisdiction

where the attorney is licensed to

practice law. The Department has

amended § 18.22(b)(1)(i) to reflect this

change.

The Department disagrees with the

comment that sections (c) and (d)

conflict with 5 U.S.C. 500. Section (c)

sets forth the minimum requirements

expected of any representative during

the course of a proceeding before the

Department, and section (d) delineates

prohibited actions of any representative

appearing in a proceeding before the

Department. Neither section prescribes

any additional requirements for an

attorney representative to appear on

behalf of a party before the Department.

The Department set forth the

minimum duties required of all

representatives appearing before the

OALJ in § 18.22(c). These duties

originate from the rules of conduct and

standards of responsibility imposed by

the Social Security Administration

(SSA) on representatives appearing

before the SSA. See 20 CFR 404.1740(b).

While the Department realizes that the

non-adversarial nature of SSA hearings

may require more detailed procedures,

the basic duties included in the new

rule are elementary to any hearing

process and serve as a baseline

foundation for conducting hearings

promptly, efficiently, and fairly. The

new rule also states that an attorney

representative must adhere to the rules

of conduct applicable where the

attorney is licensed to practice law. In

setting forth this standard, the

Department understands that hearings

often occur outside of a jurisdiction

where an attorney may be licensed to

practice law, and imposing an

unfamiliar standard of conduct on an

attorney would not be ideal.

One comment suggested that

paragraph (c) should be stricken because

requiring attorneys to adhere to the

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rules of conduct in their licensing

jurisdictions ‘‘could result in the

different standards for the submission of

evidence, discovery, and other

substantive and procedural matters.’’

The Department disagrees. Rules of

professional conduct are generally

considered rules of reason and should

be interpreted with reference to the law

itself. Different rules of conduct should

not apply based on specific substantive

or procedural law. At a minimum,

attorneys should always be held to the

standards of conduct where they are

licensed to practice law. The

Department declines to strike the

paragraph.

The new rule also defines prohibited

actions of all representatives appearing

before the Department in paragraph (d).

The prohibited actions include such

things as: threatening, coercing or

intimidating a party; knowingly making

false or misleading statements; or

causing unreasonable delay. These again

derive from the SSA regulations. 20 CFR

404.1740(c). One comment suggested

that the paragraph should be stricken

because it adds confusion and may

require attorneys to act contrary to the

interests of their clients or the rules of

conduct required by their licensing

jurisdictions. The Department declines

to strike the paragraph.

§ 18.23 Disqualification and

discipline of representatives. The

proposed rule contemplated two paths

for disqualification and disciplinary

proceedings of attorney representatives

appearing before the OALJ. One path

regulated lawyers who were authorized

to practice before the Department

through admission to the bar of the

highest court of a state or similar

governmental unit, but lost the right to

practice law in their licensing

jurisdiction because of a criminal

conviction or proven professional

misconduct. The second path involved

misconduct of a representative before

the OALJ. One comment questioned the

Department’s authority to initiate

disciplinary proceedings at all. The

NPRM spells out the Department’s

authority to discipline attorneys in great

detail and need not be restated herein.

The Supreme Court has recognized such

authority as early as 1923 in a case

involving the Board of Tax Appeals

where it upheld the Board’s power to

adopt rules of practice for professionals

to protect the integrity of its

administrative procedures and the

public generally. See Goldsmith v.

United States Bd. of Tax Appeals, 270

U.S. 117 (1926). Other comments

suggested that the wording of the rule

was not clear and suggested that as

drafted, it appeared that the OALJ

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would be making the initial

determination as to whether an attorney

had committed any enumerated

criminal act or professional misconduct.

The Department considered the

comments and has amended the rule by

consolidating the grounds upon which

an attorney or representative may be

disqualified or disciplined into one

section—new § 18.23(a)(1). New

§ 18.23(a)(1) now sets forth three

distinct grounds for disqualification: (1)

suspension of a license to practice law

by any court or agency of the United

States, or by the highest court of a State

or similar governmental unit; (2)

disbarment from the practice of law by

consent or resignation from the bar of a

court or agency while an investigation

into allegations of misconduct is

pending; or (3) committing an act,

omission, or contumacious conduct that

violates the procedural rules, an

applicable statute, an applicable

regulation, or a judge’s order(s).

Accordingly, the previous sections

providing for disqualification upon

conviction of a felony (proposed

§ 18.23(a)(1)(i)) or certain enumerated

misdemeanors (proposed

§ 18.23(a)(1)(ii)) are removed from the

new rule. Such conduct however may

still be grounds for disqualification in

the new rules to the extent that new

§ 18.23(a)(1)(i) through (iii) apply.

The Department also consolidated the

disqualification and discipline

procedure into one section—new

§ 18.23(a)(2). The new consolidated

‘‘Disqualification procedure’’ states that

in all instances the Chief Judge provides

notice and an opportunity to be heard

prior to taking any action. The provision

deletes language pertaining to requests

for hearing but also recognizes that, in

appropriate instances, additional

proceedings may be necessary, within

the Chief Judge’s discretion.

Other comments questioned the

timeline for disciplinary proceedings

and the status of cases while

disciplinary proceedings are pending

against an attorney. The Department

notes that the new rule contemplates a

fast track with an initial response time

of 21 days. The Department believes

that the Chief Judge should have the

discretion to decide whether an attorney

can continue to represent a party before

the Department during the pendency of

any disciplinary proceeding on a caseby-case basis.

Two commenters suggested that the

Department maintain a national

database of non-attorney representatives

disciplined by the Department. The

Department declines to amend the part

18 regulations to establish such a

database because OALJ already

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publishes formal disciplinary decisions

on its Web site in the same manner as

other judge decisions. See, e.g., In the

Matter of the Qualifications of Edwin H.

Rivera, 2009–MIS–2 (ALJ Feb. 6, 2009)

(denying non-attorney representative

the authority to appear in a

representative capacity before OALJ).

§ 18.24 Briefs from amicus curiae.

The proposed rule sets forth the general

procedure for accepting a brief from an

amicus curiae. The Department received

two comments suggesting that the

deadline for an amicus brief is too short.

The proposed rule required such briefs

by the close of the hearing unless

otherwise directed by the presiding

judge. The comments pointed out that

no transcript is immediately available

when the hearing closes and it may be

better for an amicus curiae to review the

brief of the party the amicus supports to

allow the amicus curiae to focus on new

arguments. The Department considered

the comments and agrees that setting the

deadline at the close of the hearing is

impractical. The Department has

amended the new rule by deleting any

specific deadline for an amicus brief,

and instead states that the deadline will

be set by the presiding judge.

The Department has also received

comments suggesting that it require

amicus curiae to make disclosures

similar to those found in U.S. Supreme

Court Rule 37.4. Such disclosures

include whether counsel for a party

authored any part of an amicus brief and

the identity of anyone who made

monetary contributions to the

preparation of the brief other than the

amicus curiae or its members. The

Department declines to adopt the

specialized disclosure requirements.

Any specialized requirement can be

considered by the presiding judge and

made part of a briefing order depending

on the facts of any particular case.

§ 18.30 Service and filing.

Commenters suggested that the list of

documents not to be filed until used in

the proceeding or ordered by a judge

(§ 18.30(b)(1)) should be amended to

add the notice and copy of ‘‘documents

only’’ subpoenas that are required to be

served on other parties by § 18.56(b)(1).

That suggested change is consistent

with the purpose of both the prior and

proposed rule and reflects current

common practice. The new rule is thus

changed to add paragraph (b)(1)(vi) with

the following language: ‘‘the notice (and

the related copy of the subpoena) that

must be served on parties under rule

18.56(b)(1) before a ‘documents only’

subpoena may be served on the person

commanded to produce the material.’’

Several commenters argued that the

OALJ’s rules do not adequately

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accommodate electronic filing and

service, which is now commonplace in

federal courts and adjudicatory

agencies. Commenters urged that the

OALJ adopt an electronic filing system,

or at least adopt a more liberal stance

toward accepting email and facsimile

transmissions.

The Department acknowledges that

implementation of a dedicated

electronic filing system and electronic

service system for OALJ adjudications

would be beneficial. However, because

the OALJ does not have a dedicated

electronic filing and service system, the

rules of practice and procedure

necessarily focus on traditional filing

and service.

Several commenters urged that, in the

absence of the availability of electronic

filing, OALJ accept documents filed by

email. The Department declines to

adopt a regulation that permits filing by

email for routine filings with the OALJ.

Email is not a substitute for a dedicated

electronic filing system in which

administrative issues such as document

management, storage, security, and

access can be systematically addressed.

The proposed regulation at § 18.30(b)(4)

accommodates special circumstances by

authorizing the judge to ‘‘allow papers

to be filed, signed, or verified by

electronic means.’’

Alternatively, several commenters

urged that the OALJ accept documents

filed by facsimile transmission without

a page limitation. The Department

declines to adopt a regulation that

permits filing by facsimile for routine

filings with the OALJ. Facsimile

technology is not a substitute for

traditional mail or hand delivery of

filings or for a dedicated electronic

filing system. When § 18.3 of the prior

rules was amended in 1994 to permit

filing by facsimile in certain

circumstances, the Department

discussed why, although the use of

facsimile machines is often convenient

to parties, it is not administratively

practical for routine matters. See

Amendment of Filing and Service

Requirements in Proceedings Before the

Office of Administrative Law Judges, 59

FR 41874 (Aug. 15, 1994). Although

information technology has advanced

considerably since 1994, it is still true

that most filings before the OALJ are not

time sensitive and that the Department

is not in a position to bear the cost of

receiving and printing large numbers of

facsimile transmissions. The new rule at

§ 18.30(b)(3)(i) accommodates special

circumstances by allowing a party to file

by facsimile if permitted by the judge.

One commenter stated a concern that

a judge could reject a facsimile filing

that exceeded 12 pages. The 12 page

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limitation stated in § 18.30(b)(3)(i)(A) is

confined to situations in which the

party is unable to obtain prior

permission to file by facsimile because

the judge is unavailable. The 12 page

limitation is a sensible limitation to

discourage reliance on last hour filings

by facsimile. Thus, the Department

declines to revise § 18.30(b)(3)(i)(A) to

remove the 12 page limitation on

facsimile filings made without the

judge’s permission.

One commenter suggested that the

OALJ’s rules of practice and procedure

provide for electronic service between

parties, stating that if a representative

wishes to receive all service by email,

that individual should be able to so state

in the record and then receive all

subsequent service by email. Section

18.30(a)(2)(ii)(E) already accommodates

this suggestion. That regulation states

that ‘‘[a] paper is served under this

section by . . . sending it by electronic

means if the person consented in

writing—in which event service is

complete upon transmission, but is not

effective if the serving party learns that

it did not reach the person to be served

. . . .’’

One commenter stated that the rule,

as written, creates a paradox that a time

sensitive filing could be filed with the

OALJ by facsimile, but served by mail

on the opposing party. This commenter

suggested that adopting a service

requirement that allows for email

service would resolve this problem. As

noted above, the regulation permits

parties to agree to receipt of service of

papers by electronic means. The

Department declines to revise the rule to

require electronic service on another

party in situations where the filing party

was granted permission to file a paper

with the OALJ electronically.

§ 18.31 Privacy protection for filings

and exhibits. One commenter suggested

that the privacy requirement should be

inapplicable to any document created

prior to the effective date of the final

rule in BLBA cases. The commenter

stated that medical records containing

social security numbers and other

protected information are created long

before a claim is filed and it would be

burdensome to redact this information.

The FRCP Advisory Committee noted

in its comments to FRCP 5.2 that ‘‘[i]t

is electronic availability, not the form of

the initial filing, that raises the privacy

and security concerns addressed in the

E-Government Act.’’ Fed. R. Civ. P. 5.2

advisory committee’s note (discussion

of 2007 amendments). The FRCP

focuses on electronic records, but

applies the same restrictions to hardcopy documentation, reasoning that the

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number of paper filings will diminish

over time.

The Department declines to adopt the

commenter’s suggestion. The privacy

interests of individuals whose personal

records appear before the OALJ

outweigh the burden placed on those

who represent them. Many of these

records can be scanned and searched for

the sensitive information, reducing the

time and effort required to complete this

redaction. The commenter’s suggestion

that this rule apply only to records

created after the effective date of the

final rule would severely limit its

utility. The parties may choose to waive

the protection of the rule if it would be

unduly burdensome to redact the

records, or the parties may petition the

judge for a waiver of the rule.

§ 18.32 Computing and extending

time. Commenters noted that setting

4:30 p.m. as the default deadline for

filing on a specific date is inconsistent

with other rules of practice and sets a

trap for the unwary practitioner who

may reasonably expect that the deadline

would be 11:59 p.m. They suggested

changing the time to 11:59 p.m.

The FRCP allows for electronic filing

up to 11:59 p.m., but still sets the close

of local business hours as the deadline

for hardcopy delivery. The commenters’

suggestions primarily relate to online

and facsimile filing. The OALJ

continues to rely on hardcopy delivery

as the default authorized means of filing

and allows electronic or facsimile filing

only as authorized by order or

regulation. Since both e-filing and

facsimile filing include time stamps that

show exactly when a document arrived

at the facsimile machine or server of the

recipient, the office need not be open to

determine when a document arrives.

Since e-filing or facsimile filing is only

allowed with the permission of the

judge, counsel can request extended

filing hours when they request

permission to file in that manner. The

Department therefore declines to adopt

the suggestion.

Commenters also observed that the

language at (a)(4) including as a legal

holiday any other day declared a

holiday by the President or Congress is

overly broad and should be amended to

include in the definition the provision

that federal offices are closed to normal

business. They suggested providing for

extensions where a party is prevented

from filing or requesting an extension by

local circumstances, such as natural

disasters or other events that require

closure of government facilities.

FRCP 6(a)(3) addresses the problem

by including a provision for the

inaccessibility of the clerk’s office. The

new rules allow for judges to grant ex

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post facto delays in such cases.

However, changing the term ‘‘legal

holiday’’ to include any day on which

the district office in which the

document is to be filed is closed or

otherwise inaccessible to the filing party

would provide a clearer standard and

avoid uncertainty over whether an ex

post facto delay may be granted. The

new rule is thus changed as follows:

(4) ‘‘Legal holiday’’ defined. ‘‘Legal

holiday’’ means the day set aside by statute

for observing New Year’s Day, Martin Luther

King Jr.’s Birthday, Washington’s Birthday,

Memorial Day, Independence Day, Labor

Day, Columbus Day, Veterans’ Day,

Thanksgiving Day, or Christmas Day, any day

declared a holiday by the President or

Congress, and any day on which the office in

which the document is to be filed is closed

or otherwise inaccessible.

§ 18.35 Signing motions and other

papers; representations to the judge;

sanctions. New § 18.35 is modeled after

FRCP 11. It states the standards

attorneys and parties must meet when

filing motions or other documents with

OALJ and provides sanctioning

authority for violations of this section.

Several commenters pointed out that

the LHWCA and BLBA contain specific

statutory provisions dealing with

resistance to an order, misconduct

during hearings, and discovery

violations. They suggest amending

§ 18.35(c) to state that the sanctions

provisions are not applicable to LHWCA

and BLBA cases. The Department

declines to adopt the commenters’

suggestion for the reasons detailed

above in section II, ‘‘Conflicts with the

LHWCA and BLBA.’’

Several commenters objected to

§ 18.35(c) in its entirety, suggesting that

the section is essentially an attempt by

the OALJ to exercise contempt power,

which is limited to courts and may not

be conferred upon administrative

agencies. Section 18.35(c) however is

not identical to FRCP 11(c)(4) and does

not seek to invest OALJ judges with

powers beyond the APA’s grant of

authority to impose appropriate

sanctions where necessary to regulate

and ensure the integrity of the hearing

process. Thus, for the reasons detailed

above in section II, ‘‘Authority to

Regulate the Conduct of Administrative

Proceedings; Sanctions,’’ the

Department declines to delete § 18.35(c).

One commenter argued that there is

no authority to hold a law firm jointly

responsible for a violation committed by

its partner, associate, or employee and

failing to further define the

circumstance that would justify an

exception. The provision for law firm

joint responsibility in § 18.35(c)(1) is

taken directly from the corresponding

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federal rule, which was revised in 1993

after the U.S. Supreme Court ruled that

the previous language could not be

interpreted to include a named

offender’s firm. Pavelic & LeFlore v.

Marvel Entm’t Grp., 493 U.S. 120 (1989).

Thus, the provision is in accord with

federal practice and the Department

declines to strike or modify the

provision in § 18.35(c)(1) concerning

law firm joint responsibility.

One commenter observed that

§ 18.35(c)(4) provides no guidance as to

what type of sanction ‘‘suffices to deter

repetition of the conduct or comparable

conduct.’’ The Department agrees that

§ 18.35(c)(4) should be amended to

provide more specific guidance.

Paragraph (c)(4) of the rule is revised,

containing the following language: ‘‘A

sanction imposed under this section

may include, but is not limited to,

striking part or all of the offending

document, forbidding the filing of any

further documents, excluding related

evidence, admonishment, referral of

counsel misconduct to the appropriate

licensing authority, and including the

sanctioned activity in assessing the

quality of representation when

determining an appropriate hourly rate

and billable hours when adjudicating

attorney fees.’’

§ 18.50 General provisions governing

disclosure and discovery. Under the

new rule, a party may seek discovery at

any time after a judge issues an initial

notice or order and, unless the judge on

motion orders otherwise, the methods of

discovery may be used in any sequence

regardless of the discovery conducted

by other parties. The parties’ required

initial disclosures would be made

within 21 days after entry of an initial

notice or order acknowledging that the

case has been docketed for adjudication,

and the rule includes a provision

exempting certain proceedings and

parties from the initial disclosure

requirements. The Department received

two comments focusing on the timing of

disclosures and discovery in LHWCA

and BLBA cases. One commenter urged

that discovery should be available

following transfer of the case to the

OALJ or at any time upon stipulation of

the parties, asserting that initial notices

and orders have historically taken three

months to issue and that discovery

during this period of time will be

unavailable under the new rule,

resulting in unnecessary delay. This

commenter also suggested that the

timing for initial disclosures be set at 35

days following transfer of the case to the

OALJ. Citing similar concerns about

delay, the other commenter suggested

that discovery should be available at

any time after a claim is filed.

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The Department disagrees with these

proposals. The use of a judge’s initial

notice or order as the case event

allowing parties to commence discovery

promotes uniformity and predictability

as it is the first reliable indication to the

parties that the case is actually before

the OALJ. The Department believes that

use of the date of transfer from the

District Director, Office of Workers’

Compensation Programs is potentially

confusing because this procedure is

only applicable in LHWCA and BLBA

cases. See 20 CFR 702.317, 725.421. The

transfer or referral is an internal

administrative function that lacks the

clarity of the initial notice of order from

the judge in terms of informing parties

that a case has been docketed for

adjudication. The Department further

believes that allowing discovery at any

time after a claim is filed is problematic

as this would inevitably lead to

development of discovery disputes

before the case is assigned to a judge.

While the Department is sensitive to the

expressed concern regarding delays in

the issuance of an initial notice or order,

this is a matter that is better addressed

through internal policy directives rather

than creation of a special rule of

procedure or exception. Finally, the

Department believes that the new

disclosure and discovery rules, taken as

a whole, provide parties with sufficient

flexibility to ensure that all authorized

and appropriate discovery will be

available prior to adjudication.

One comment raised a concern with

the sequence of discovery in LHWCA

cases by asserting that the logical first

step is for a claimant to produce a

medical report followed by the

deposition of the report’s author. The

commenter suggested that the new rule

could allow a claimant to manipulate

the discovery process by delaying

production of a medical report which

might result in a respondent having

insufficient time to identify a rebuttal

expert. To blunt this potential tactic, the

commenter proposed that the rule

require a claimant to produce a medical

report and disclose any experts early in

the process. The Department believes

that this concern is adequately

addressed in the provisions of the rule

governing disclosure of experts, see 29

CFR 18.50(c)(2)and through the judge’s

broad discretion to oversee disclosure

and discovery in an impartial manner

that affords all parties a full and fair

opportunity to be heard. Moreover,

adoption of this proposal would create

a special rule, applicable only in benefit

cases such as those arising under the

LHWCA and BLBA, which is

inconsistent with the Department’s

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objective of promulgating a uniform set

of procedural rules.

One comment proposes that pro se

parties be included in the list of parties

who are exempted from the required

initial disclosures under paragraph

(c)(1)(iii) unless an ALJ orders the party

to provide disclosures. The Department

rejects this proposal as inconsistent

with the efficient, impartial and fair

adjudication of cases. The FRCP

provides no such exemption for pro se

litigants aside from those persons in

government custody. See Fed. R. Civ. P.

26(a)(1)(B)(iii). Having a separate set of

rules for unrepresented parties or

requiring a judge to provide them with

legal guidance is inappropriate. See Pik

v. Credit Suisse AG, ARB No. 11–034,

ALJ No. 2011–SOX–6 (ARB May 31,

2012) (citing Rays Lawn & Cleaning

Sys., ARB No. 06–112, ALJ No. 2005–

SCA–7 (ARB Aug. 29, 2008)); Olsen v.

Triple A Mach. Shops, Inc., 25 Ben. Rev.

Bd. Serv. (MB) 40, 46 n.4 (1991), aff’d

mem. sub nom. Olsen v. Dir., OWCP,

996 F.2d 1226 (9th Cir. 1993).

Two comments expressed a concern

that it is burdensome and/or irrelevant

to require an expert witness’s written

report to list all other cases in which the

witness testified as an expert during the

previous four years and the amount he

or she was paid. See General Provisions

Governing Disclosure and Discovery, 77

FR 72159 (proposed Dec. 4, 2014)

(proposed § 18.50(c)(2)(ii)(E) and (F)).

These commentators stated that parties

are not likely to have this information.

The Department disagrees. While the

parties themselves may not have such

information, surely an expert witness

would. Moreover, the rule allows for an

exception to this requirement where

stipulated or ordered by the judge. This

exception could be invoked in those

unusual cases where the required

information might not be reasonably

obtainable. These requirements track

FRCP 26(a)(2)(B), and the Department is

not persuaded by these comments that

any deviation in the OALJ rules is

justified.

Two commenters urged adoption of a

rule that would require parties to

provide ESI in a searchable electronic

format rather than paper copies when

the requested information is available in

electronic form. The commentators cited

federal case law in support, stating that

parties have been required to provide

ESI in electronic format when requested

in that form. While acknowledging the

cited precedent, the Department rejects

the proposal for a rule mandating

production of ESI in electronic format

whenever requested in that form. First,

such a rule may violate the principle

recognized in the NPRM that discovery

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of ESI should be proportional to what is

at stake in the litigation. 77 FR 72146

(citing FRCP 26(b)(2)(C)(iii)) (citing The

Sedona Conference, The Sedona

Principles: Second Edition, Best

Practices Recommendations &

Principles for Addressing Electronic

Document Production 17 (Jonathan M.

Redgrave et al. ed., 2d ed. 2007)

(‘‘Electronic discovery burdens should

be proportional to the amount in

controversy and the nature of the case.

Otherwise, transaction costs due to

electronic discovery will overwhelm the

ability to resolve disputes fairly in

litigation.’’)). Second, the proposal

would override paragraph (b)(3)(iii),

which is based on FRCP 26(f)(3)(C)

making any issues about disclosure or

discovery of ESI, including the form or

forms in which it should be produced,

a required item in discovery plans. This

proposal also conflicts with § 18.51(b)(2)

which, like FRCP 26(b)(2)(B) upon

which it is based, provides that ESI

discovery issues are to be determined by

the judge on a motion to compel or for

protective order. In sum, the

Department’s new rules on disclosure

and discovery of ESI track the

provisions in the FRCP which were

developed after consideration of the

competing interests at stake with regard

to ESI, and the Department is not

persuaded that a different approach is

necessary or desirable in proceedings

before the OALJ.

The Department received one

comment concerning the timing of

initial disclosures for parties who are

served or joined later. The commenter

proposed adding the following sentence

to the end of paragraph (c)(1)(v):

‘‘Copies of all prior disclosures shall be

served on the newly joined party within

14 days of the joinder.’’ Such an

addition is helpful because it is

common in LHWCA and BLBA cases for

additional parties to be joined after the

commencement of the OALJ proceeding.

Therefore, the Department has added

the following sentence to the end of

paragraph (c)(1)(v) in the final rule:

Copies of all prior disclosures must be

served on a newly served or joined party

within 21 days of the service or joinder.

Two comments advocated adoption of

early discovery protocols similar to the

pilot project that has been implemented

by some federal district courts to

streamline discovery and reduce costs

in certain employment discrimination

cases. See Federal Judicial Center, Pilot

Project Regarding Initial Discovery

Protocols for Employment Cases

Alleging Adverse Action (2011),

available at www.fjc.gov/public/pdf.nsf/

lookup/discempl.pdf/$file/

discempl.pdf. Incorporating a pilot

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project designed for a limited class of

cases into a set of uniform rules of

practice and procedure is not desirable.

To the extent such initiatives may be

beneficial in certain cases, the

Department has concluded that the

determination to adopt such procedures

is best left to the discretion of

individual judges and/or discovery

plans developed by parties pursuant to

paragraph (b)(3).

One comment proposed that

paragraph (d)(3) should be revised to

explicitly state that it does not apply to

LHWCA and BLBA proceedings because

33 U.S.C. 927(b) expressly provides a

procedure (i.e., certification of facts to a

federal district court for summary

contempt proceedings) for addressing

discovery violations. A party’s failure to

comply with the certification

requirements likely would not involve

refusal to comply with an order and,

therefore would not be cognizable as

contempt subject to section 927(b). See

A–Z Intn’l v. Phillips, 323 F.3d 1141,

1146–47 (9th Cir. 2003) (holding that

the district court lacked section 927(b)

jurisdiction over conduct that did not

involve a refusal ‘‘to comply with a

summons, writ, warrant, or mandate

issued by the ALJ.’’). The Department

therefore rejects this proposal and has

not made any change to paragraph

(d)(3).

§ 18.51 Discovery scope and limits.

One comment suggested that the

language of paragraph (a) defining the

scope of discovery could be read as

precluding discovery of prior medical

records. The commenter focused this

concern on the second sentence of the

rule which states that ‘‘the judge may

order discovery of any matter relevant to

the subject matter involved in the

proceeding.’’ The commenter preferred

language limiting discovery to matters

‘‘relevant to the subject matter of the

proceeding’’ and, alternatively,

suggested that the record should clearly

state that prior medical records are

relevant to a party’s claim or defense

when medical questions are at issue.

The Department rejects this proposal as

essentially seeking a substantive

determination that prior medical

records are discoverable without

limitation in all proceedings as long as

there is some medical issue in play.

While such records may well be

relevant and discoverable in many cases

where medical issues are raised, it is not

difficult to foresee situations where

production of a person’s prior medical

records might not be required. In the

Department’s view, determinations as to

the scope of discovery with respect to

specific categories of information cannot

be properly addressed in a general

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procedural rule and, instead, must be

left to case-by-case adjudication.

Another comment stated that the

exceptions established by paragraph

(d)(3)(i) through (iii) to the general rule

embodied in paragraphs (c)(1) and (2)

which protect against disclosure of

communications between a party’s

representative and an expert witness are

not adequate to ensure access to

evidence of fraud, abuse or influence

such as a party’s attorney writing the

expert’s report. The commenter

suggested that the exceptions should be

broadened to ensure disclosure of such

evidence or that paragraphs (c)(1) and

(c)(2) should be eliminated. The

Department’s new rules addressing

disclosure of communications between

a party’s representative and an expert

track the provisions of FRCP 26(b)(3)

and (4), which were revised in 2010.

While the Civil Rules Advisory

Committee stated that the revisions to

FRCP 26 were intended to alter preamendment case law that required

disclosure of all attorney-expert

communications and draft reports in

favor of limiting disclosure to

communications of a factual nature in

order to protect the theories and mental

impressions of counsel, the Advisory

Committee emphasized that the ‘‘facts

or data’’ exception should be interpreted

broadly to require disclosure of ‘‘any

facts or data ‘considered’ by the expert

in forming the opinions to be expressed,

not only those relied upon by the

expert.’’ Fed. R. Civ. P. 26 advisory

committee’s note (discussion of 2010

amendments); see also Sara Lee Corp. v.

Kraft Foods, Inc., 273 FRD. 416, 419

(N.D. Ill. 2011); Fialkowski v. Perry, No.

11–5139, 2012 WL 2527020, at *5 (E.D.

Pa. Jun. 29, 2012) (holding that even if

the requested documents are considered

‘‘communications’’ between a party’s

attorney and an expert within the

meaning of FRCP 26(b)(4)(C), they are

discoverable to the extent that they fall

within the exceptions listed in FRCP

26(b) (4)(C)(ii) and (iii), for ‘‘facts and

data’’ that the expert considered and for

‘‘assumptions’’ that the expert relied

on). The Department believes that the

rule adequately addresses the concern

raised in the comment, and no change

has been made in the final rule.

The Department received a comment

stating that some of the commentary in

the NPRM relating to limitations on the

scope of discovery could lead judges to

believe that limiting discovery is more

important than providing whistleblower

complainants with access to the

evidence they need to prove their

claims. This commenter pointed out

that discovery is critical in

whistleblower litigation where

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‘‘smoking gun’’ evidence of unlawful

motivation is rare, and he suggests that

it would be helpful if the comments

accompanying the final rule are

balanced to recognize that while judges

have discretion to limit unnecessary

discovery, they also have a duty to

enforce discovery when it is necessary

to prove a relevant point. The

commenter did not suggest any change

in the proposed rule establishing the

scope of discovery and its limits. The

Department notes that the discussion of

the changes in the disclosure and

discovery rules in the NPRM contains

several references to limitations on the

scope of discovery which were

necessitated by recent changes in the

FRCP that were incorporated into the

new § 18.51. However, the Department

believes the new rule, like FRCP 26(b)

upon which it is based, appropriately

balances competing discovery interests.

Another commenter similarly

suggested with respect to whistleblower

cases that the rules should encourage

early exchange of discoverable

information, prompt resolution of

discovery disputes and broad discovery

of probative information. This

commenter also did not advocate any

particular change in the proposed rule.

The Department believes that the new

disclosure and discovery rules, taken as

a whole, are designed to accomplish the

commenter’s recommended objectives

in a fair and impartial manner. The

Department further believes that

adoption of special disclosure and

discovery rules for a particular category

of cases is neither necessary nor

desirable as judges have discretion to

resolve discovery disputes in a manner

that is consistent with the requirements

of the particular governing statute and

implementing regulations. The

Department therefore has not made any

change to the new rules based on this

comment.

§ 18.55 Using depositions at

hearings. Two commenters suggested

that the new rule should be revised to

permit wider use of depositions at

hearings. One commenter proposed

addition of a paragraph that would

permit unconditional use of depositions

at hearings in the absence of any

objection. The commenter submitted

that this revision would better align the

rule with current practice and

procedure. Another commenter urged

deletion of the requirement of showing

unavailability as a pre-condition to the

admission of deposition testimony from

a lay or non-expert witness. This

commenter asserted that the

unavailability requirement is overly

burdensome and particularly so for

benefits claimants who have fewer

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resources to pay witnesses to attend

hearings. The Department agrees.

Allowing unconditional use of

depositions in the absence of an

objection comports with current

practice and procedure and reduces the

potential financial burden of producing

live witnesses on all parties. While the

proponent of using the deposition of a

non-expert witness at hearing would

still be required to demonstrate

unavailability in the face of an

objection, the Department believes that

the unavailability provisions of the rule,

which track FRCP 32(a)(4), are

sufficiently broad to minimize the

burden of producing live witnesses.

Accordingly, the new rule has been

revised and renumbered to add a new

paragraph allowing unconditional use of

depositions at hearings in the absence of

an objection.

§ 18.56 Subpoenas. The Department

received two comments regarding the

provisions of paragraph (a) relating to

issuance of subpoenas. One of the

commenters proposed that the rule state

that any attorney authorized to practice

under the rules may issue subpoenas

and that the judge may issue subpoenas

on written application of a non-attorney.

The other comment urged that

paragraph (a)(3), which would permit a

judge by order in a specific proceeding

to authorize an attorney representative

to issue and sign subpoenas, be revised

to exempt LHWCA and BLBA

proceedings because 33 U.S.C. 927(a)

expressly delegates subpoena issuance

authority to judges who cannot subdelegate such authority to persons

outside the Department. The

Department is persuaded by this latter

argument that the authority to issue

subpoenas should remain with the

judge. The comment cited two cases—

FTC v. Gibson, 460 F.2d 605 (5th Cir.

1972), and United States v. Marshall

Durbin & Co. of Haleyville, 363 F.2d 1

(5th Cir. 1966),—where sub-delegation

of statutory subpoena authority to

subordinate employees of an agency was

upheld based on reorganization plans,

authorized by the Reorganization Act of

1949, 5 U.S.C. 901–912, that specifically

provided for the challenged subdelegation of subpoena power. See also

Lewis v. NLRB, 357 U.S. 10, 14–15

(1958) (upholding sub-delegation of

subpoena authority to the Board’s

regional directors). Unlike the cited

cases, there is no reorganization plan

under which the Department’s judges

have been authorized to sub-delegate

statutory subpoena authority.

Consequently, a question exists as to

whether the sub-delegation authorized

by paragraph (a)(3) would withstand

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legal scrutiny. The Department has

therefore deleted paragraph (a)(3) from

the new rule. This revision renders

moot the concerns raised by the other

commenter about the need for

additional protective procedures to

protect parties from abusive subpoena

practices by parties’ representatives in

the event they were authorized to issue

subpoenas.

The Department received a comment

that paragraph (b)(1) dealing with

service of subpoenas be revised to track

a change in FRCP 45(a)(4), upon which

the rule is patterned, that was

recommended to the U.S. Supreme

Court by the Committee on Rules of

Practice and Procedure of the Judicial

Conference of the United States in its

report of September 2012. See Federal

Rules of Practice & Procedure, Report of

the Judicial Conference Committee on

Rules of Practice and Procedure to the

Chief Justice of the United States and

Members of the Judicial Conference of

the United States 23 (2012), available at

www.uscourts.gov/uscourts/

RulesAndPolicies/rules/Reports/ST09–

2012.pdf. To maintain harmony with

the FRCP, the commenter proposed that

paragraph (b)(1) be amended to read as

follows:

By whom; tendering fees; serving a copy of

certain subpoenas. Any person who is at

least 18 years old and not a party may serve

a subpoena. Serving a subpoena requires

delivering a copy to the named person and,

if the subpoena requires that person’s

attendance, tendering with it the fees for 1

day’s attendance and the mileage allowed by

law. Service may also be made by certified

mail with return receipt. Fees and mileage

need not be tendered when the subpoena

issues on behalf of the United States or any

of its officers or agencies. If the subpoena

commands the production of documents,

electronically stored information, or tangible

things or the inspection of premises before

the formal hearing, then before it is served on

the person to whom it is directed, a notice

and a copy of the subpoena must be served

on each party.

The Department adopts this proposal as

consistent with the objective of bringing

the OALJ rules of practice and

procedure into alignment with the FRCP

where appropriate. Paragraph (b)(1) in

the final rule has been amended

accordingly.

The Department received two

additional comments regarding

paragraph (b)(1). One commenter raised

a concern that the phrase ‘‘allowed by

law’’ is vague and should be replaced by

a reference to the particular controlling

law. The language in question is taken

verbatim from FRCP 45(a)(4) and is

intended to be interpreted in a manner

consistent with the federal rule under

which witness fees and expenses are

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currently controlled by 28 U.S.C. 1821.

See Dishman v. Cleary, 279 FRD. 460,

466 (N.D. Ill. 2012); Fisher v. Ford Motor

Co., 178 FRD. 195, 197 (N.D. Ohio

1998). The Department does not believe

that it is prudent to incorporate specific

statutory references into the rule as

statutory provisions are subject to

change which would lead to potential

confusion until the rule could be

amended. Further, the Department notes

that the discovery subcommittee to the

Civil Rules Advisory Committee

undertook an exhaustive survey of

published commentary regarding FRCP

45. See Federal Rules of Practice &

Procedure, Survey of Issues Regarding

Federal Rule of Civil Procedure 45

(2009), available at www.uscourts.gov/

uscourts/RulesAndPolicies/rules/

MemoreRule45issues.pdf. Review of the

survey discloses no published concern

or comment or other criticism related to

the use of ‘‘allowed by law.’’

The second commenter proposed a

requirement that notice of a subpoena(s)

relating to medical or financial

information include a statement

certifying that the information will not

be used or disclosed for any purpose

other than the litigation or proceeding

for which the information was requested

and will be destroyed or returned at the

end of the litigation or proceeding. The

commenter stated that this additional

provision is necessary to protect against

inadvertent disclosure of sensitive

information. The Department rejects this

proposal, noting that the handling of

sensitive information obtained during

discovery should be addressed in

parties’ discovery plans under

§ 18.50(b)(3) and that any unresolved

issues relating to sensitive information

may more appropriately be addressed by

the judge on a case-by-case basis under

the protective order procedures in

§ 18.52.

One commenter proposed that

paragraph (c)(1), requiring a judge to

impose an appropriate sanction on a

party or representative who violates the

duty to avoid imposing an undue

burden on a person subject to a

subpoena, be revised to explicitly state

that it does not apply to LHWCA and

BLBA proceedings which are subject to

the summary contempt procedure

established by 33 U.S.C. 927(b). The

Department declines to adopt the

commenter’s suggestion for the reasons

detailed above in section II, ‘‘Conflicts

with the LHWCA and BLBA.’’

§ 18.57 Failure to make disclosures

or to cooperate in discovery; sanctions.

Two comments proposed revising the

rule to specifically exempt LHWCA and

BLBA cases from the sanction

provisions which, the commenters

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argued, are preempted by section 927(b)

of the LHWCA. One of the commenters

additionally argued that these sanction

provisions violate the ‘‘separation of

powers’’ doctrine by usurping contempt

powers solely vested in the Article III

courts. The Department declines to

adopt the commenters’ suggestions for

the reasons detailed above in section II,

‘‘Conflicts with the LHWCA and BLBA.’’

§ 18.62 Physical and Mental

Examinations. One commenter

suggested that § 18.62(a)(1) should be

amended to restrict an examination to

the mental or physical ‘‘condition in

controversy.’’

The Department declines to adopt the

commenter’s suggestion. The suggested

text would offer no meaningful limit

because the medical examiner does not

know how the issues have been framed

in litigation. The party who retains an

examiner and notices the examination

however knows the scope of the report

it retains an examiner to prepare. The

Department believes it is preferable to

rely on the language taken from FRCP

35(a), which requires the party who

notices an examination to specify the

‘‘time, place, manner, conditions, and

scope of the examination,’’ and to

disclose the ‘‘person or persons who

will perform it.’’ The notice must also

describe the examination in a way that

informs the party to be examined of its

scope. That party may object if the

conditions or scope of the examination

stray into areas that are not in

controversy.

Two commenters argued that the final

rule should retain the 30-day notice

requirement found in previous

§ 18.19(4)(d). One commenter stated that

the new 14-day notice requirement

would unreasonably burden the

claimant. Specifically, the shorter notice

period would make it harder for the

claimant to arrange for time off from

work, travel plans, and other matters.

The commenters also asserted that

§ 18.62(a)(4) would not give sufficient

time to object to the examination notice

with particularity. The person to be

examined may have to consult with

others (such as experts or a treating

physician) to frame and serve a specific

objection.

The Department agrees with the

commenters’ suggestions. Therefore,

§ 18.62(a)(3) is amended to provide a

notice period of 30 days in advance of

an examination when the parties do not

agree to a shorter notice in their

proposed discovery plan, by stipulation,

or through informal discussion. Section

18.62(a)(4) is amended to extend the

time to serve an objection from 7 days

to 14 days.

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One commenter suggested that the

text of the rule on physical and mental

examinations should mandate a threestep procedure before an examination

can be noticed: (1) The parties must

attempt to resolve all issues informally

before an examination is noticed; (2) if

agreement cannot be reached, the party

that intends to notice an examination

must request a telephone or other

prehearing conference with the judge to

discuss whether an examination is

needed, and any specific procedure or

limitations on the examination that may

be appropriate; and (3) before the

prehearing conference, the party

proposing the examination must state

with particularity why the examination

is needed, why the deposition of the

party to be examined is insufficient to

address the issues the examination

would address, and describe what will

occur at the examination.

The Department declines to adopt the

commenter’s proposal. First, the parties

ordinarily should have discussed

whether an examination is appropriate,

and its scope, when they frame the

proposed discovery plan early in the

case, just as happens in the U.S. district

courts. Second, the claims at the OALJ

frequently involve a physical or mental

condition that serves as one of the bases

raised for relief—an issue that is

litigated less often in U.S. district

courts. It makes sense therefore for the

default assumption in the rules to be

that an examination is appropriate in

cases before the OALJ, even though

FRCP 35 allows such examinations only

upon motion for good cause before the

U.S. district courts.

One commenter suggested that

§ 18.62(c)(1) be amended to require that

the examination report (1) be delivered

to the examined party within 21 days,

(2) be delivered no fewer than 45 days

before the hearing, and (3) fulfill the

requirements of expert testimony found

in proposed § 18.50(c)(2)(ii) [required

for witnesses who must provide a

written report].

The Department declines to adopt

these additional requirements. Section

18.62 establishes a procedure to set an

examination. It should not be conflated

with the separate disclosures a party

must make before final hearing,

particularly about the testimony of

experts. The examiner may not be a trial

witness. The examination report may be

only a portion of the data an expert

witness who testifies at final hearing

rely on to reach an opinion. Section

18.50(c)(2)(ii) has an independent effect.

With respect to the timing of reports, the

parties should build into the discovery

plan an appropriate period for the

examiner to write and serve a report,

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which can be incorporated into a

prehearing order. To ensure the party

examined has the examination report

promptly, however the Department

agrees that the party who retained the

examiner and receives the examination

report must serve a copy of the

examination report on the party

examined no later than seven days after

it receives the report.

§ 18.64 Depositions by oral

examination. One commenter asserted

that an ALJ cannot impose the sanctions

enumerated in § 18.57 in LHWCA and

BLBA adjudications for the types of

misconduct described in § 18.64(d)(2)

and (g). Therefore, the commenter

suggested that the Department add an

exception to the rules for these cases.

The Department declines to amend

§ 18.64 to provide such an exception for

the reasons detailed above in section II,

‘‘Authority to Regulate the Conduct of

Administrative Proceedings; Sanctions’’

and ‘‘Conflicts with the LHWCA and

BLBA.’’

§ 18.64 Depositions by oral

examination and § 18.65 Depositions

by written questions. One commenter

stated that proposed §§ 18.64 and 18.65

refer to an ‘‘officer,’’ but do not clarify

the ‘‘officer’s’’ relations to the

deposition proceeding. FRCP 30(b)(5)

and 31(b) use the term ‘‘officer’’ to

describe the court reporter who

administers the oath, takes and certifies

the testimony, states that the deposition

is complete when it ends, and reads the

written deposition questions. The

Department agrees with the commenter

that the title to §§ 18.64(b)(5) and

18.65(b) should be altered to clarify that

the ‘‘officer’’ is the ‘‘deposition officer.’’

§ 18.70 Motions for dispositive

action. One commenter objected

generally to the use of motions to

dismiss in proceedings where there are

shifting burdens of proof or where the

claimant benefits from legal

presumptions. The commenter argued

specifically that § 18.70(c) should be

stricken or made not applicable to cases

under the LHWCA because such a rule

would require claimants to plead with

more specificity than required under the

Act, and noted that an injury and timely

filing are presumed. The Department

declines to strike or modify § 18.70(c).

That section states that a party is

permitted to move to dismiss part or all

of the matter ‘‘for reasons recognized

under controlling law.’’ The new section

is not intended to modify existing law

controlling the standard for dispositive

motions, including motions challenging

the sufficiency of a pleading. Moreover,

§ 18.10(a) states that ‘‘[t]o the extent that

these rules may be inconsistent with a

governing statute, regulation, or

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executive order, the latter controls.’’

Thus, a party’s motion to dismiss under

§ 18.70(c) does not upset any statutory

or regulatory presumptions or shifting

burdens of proof.

§ 18.72 Summary decision. One

commenter argued for the development

of a rule that would allow ALJs to enter

summary decision in a condensed order

that is compliant with the APA, but

which does not require a complete

recitation of all evidence. The

commenter argued that such a summary

ruling would minimize judges’

workload and allow for quicker

adjudications. The commenter

suggested that the rules permit such a

summary ruling upon agreement of the

parties because without such a

provision in the rules, parties will have

concerns about whether such an order

would be deemed deficient by the BRB.

Because the APA specifies what must be

included in an ALJ’s decision and order,

the Department declines to modify

§ 18.72 to provide for a condensed

decision on summary decision. Section

18.72(a) provides that the judge should

state on the record the reasons for

granting or denying a motion for

summary decision or partial summary

decision.

Two commenters stated that the use

of summary adjudications is

inconsistent with the goal of fair

administrative proceedings for

whistleblowers and should be rarely, if

ever, used. The commenters argued that

summary decisions based on written

submissions favor employers over

employees and increase costs. The

commenters argued that summary

decisions deprive the ALJ of the

opportunity to determine the credibility

of the witnesses, which is important in

cases where motive and intent are

critical issues. The commenters

recommended that § 18.72 state that

summary judgment is generally

considered inappropriate in

administrative proceedings.

The Department declines to revise

§ 18.72 to state that summary decision is

inappropriate in administrative

proceedings, in general, or in

whistleblower proceedings, in

particular. The utility of a summary

decision procedure for agencies having

a substantial caseload of formal

adjudications has long been recognized.

See Summary Decision in Agency

Adjudication,1 CFR 305.70–3 (1995)

(ACUS Recommendation 70–3, available

at www.acus.gov/sites/default/files/

documents/70–3.pdf). Section 18.72 is a

procedural rule applicable to the many

types of adjudications conducted by the

OALJ, and is neutral on the question of

whether summary decision as a

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procedural mechanism is

disproportionately adverse to the

interests of whistleblower complainants.

Any rulemaking proposing a regulation

discouraging summary decision in

whistleblower cases is within the

responsibility and purview of the

agency which has programmatic and

policy responsibility over whistleblower

cases, and not the OALJ, whose role is

adjudicatory. Moreover, the ARB has

issued several decisions that provide

ample guidance to the public and to

judges on the standards specific to

summary decision motions in

whistleblower cases. See Evans v.

E.P.A., ARB No. 08–059, ALJ No. 2008–

CAA–3 (ARB Apr. 30, 2010); Hasan v.

Enercon Serv., Inc., ARB No. 10–061,

ALJ Nos. 2004–ERA–22 and 27 (ARB

July 28, 2011); Lee v. Parker-Hannifin

Corp., Advanced Prod. Bus. Unit, ARB

No. 10–021, ALJ No. 2009–SWD–3 (ARB

Feb. 29, 2012); Franchini v. Argonne

Nat’l Lab., ARB No. 11–006, ALJ No.

2009–ERA–14 (ARB Sept. 26, 2012); see

also Guillory v. Domtar Indus., 95 F.3d

1320, 1326 (5th Cir. 1996) (‘‘Though

summary judgment is rarely proper

when an issue of intent is involved, the

presence of an intent issue does not

automatically preclude summary

judgment; the case must be evaluated

like any other to determine whether a

genuine issue of material fact exists.’’).

Another commenter objected that

motions for summary judgment allow

cases to be framed by the party that does

not have the burden of proof at trial, and

that under § 18.72, the moving party

gets the last word. The commenter

described complainants being

‘‘sandbagged’’ by primary briefs that

provide abbreviated or unclear

statements of facts or arguments, which

are tactically written to prevent cogent

or complete responses. Then,

complainants are faced with reply briefs

that clarify or even add arguments and

provide additional authorities in

support of those arguments. The

commenter stated that many circuit

courts deal with this problem by

allowing surreply briefs, or by expressly

limiting reply briefs to the four corners

of the arguments made by the nonmoving party in opposition to summary

judgment. Thus, the commenter

suggested a rule that specifically allows

for a surreply, makes clear that the reply

and surreply may only respond to

material in the opposing submission,

and states that all ‘‘new’’ material be

disregarded by the court.

The Department declines to revise

§ 18.72 to expressly allow surreply

briefs, or to expressly limit reply briefs

to the four corners of the arguments

made by the non-moving party in

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opposition to summary judgment. OALJ

judges have the power necessary to

conduct fair and impartial proceedings,

and are capable of dealing with a

parties’ raising of new arguments in

reply briefs without a specific rule. For

example, in Du Jardin v. Morrison

Knudsen Corp., 1993–TSC–3 (ALJ Nov.

29, 1993), the ALJ refused to consider

new arguments raised by the respondent

in a reply brief to the complainant’s

response to the respondent’s motion for

summary decision. In Inman v. Fannie

Mae, 2007–SOX–47 (ALJ Mar. 5, 2008),

rev’d and remanded on other grounds,

Inman v. Fannie Mae, ARB No. 08–060,

ALJ No. 2007–SOX–47 (ARB June 28,

2011), the ALJ permitted the

complainant to file a surreply on a

motion for summary decision. The

Department notes that under FRCP 56,

on which § 18.72 is modeled, there is no

right to file a surreply. Although the

commenter stated that many circuit

courts allow surreply briefs, it did not

identify those circuits. Our review of

federal appellate court rules and circuit

court local rules found that the rules

generally do not mention surreply

briefs, or only allow them upon leave of

the court. See, e.g., Dist. N.M. Local R.

Civ. P. 7.4(b) (2013); Dist. N.H. Local R.

7.1e(3) (2013).

Two commenters suggested that the

timing aspects of § 18.72 will be

troublesome for whistleblower

complainants, for whom the efficiency

and cost of opposing motions for

summary judgment is of paramount

importance. Motions for summary

decision are usually filed by

respondents, and consequently, when

such motions are filed near to the

hearing date, complainants are

disadvantaged because they are severely

burdened by the need to respond to the

motion and prepare for the evidentiary

hearing within a short time period. The

commenters recommended that: (1)

Substantive summary motions aimed at

eliminating claims or types of damages

should be filed no later than 90 days

prior to a hearing date; (2) counsel

responding to such motions should have

21 to 30 days to file their responsive

pleadings; and (3) all such motions

should be resolved at least 30 days prior

to a hearing date.

The Department declines to revise

§ 18.72 to require summary decision

motions be filed no later than 90 days

prior to a hearing date. Prior § 18.40(a)

provided that a party may file a motion

for summary decision at least 20 days

before the date fixed for any hearing.

With the new § 18.72, the Department

increased the timeframe for filing

motions for summary decision to 30

days before the date fixed for the formal

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hearing. In the OALJ’s experience, this

timeframe would generally afford

sufficient time for all parties and the

judge to address the motion. As noted

in the new § 18.10(a), the OALJ rules of

practice and procedure are to be

administered to secure the just, speedy,

and inexpensive determination of every

proceeding. In whistleblower cases, in

particular, the regulations direct that

hearings are to commence

expeditiously. See, e.g., 20 CFR

1979.107(b). Moreover, if necessary,

§ 18.72 gives the ALJ the discretion to

adjust deadlines, as appropriate.

One comment argued that § 18.72(h)

should be revised to explicitly state that

it does not apply in proceedings under

the LHWCA and the BLBA because 33

U.S.C. 927(b) expressly provides a

procedure (i.e., certification of facts to a

federal district court for summary

contempt proceedings) for resistance of

a lawful order, misconduct during

hearings, and discovery violations. The

commenter thus argued that the

sanctions listed in the § 18.72(h) are

unavailable to ALJs presiding in

hearings under the LHWCA or BLBA.

The Department declines to adopt the

commenters’ suggestion for the reasons

detailed above in section II, ‘‘Conflicts

with the LHWCA and BLBA.’’

§ 18.80 Prehearing statement. The

Department added a requirement that a

participating party file a prehearing

statement at least 21 days prior to the

date set for hearing. Prior § 18.7 did not

have a requirement for filing prehearing

statements.

A commenter proposed that the time

for filing the prehearing statement be

extended to 45 days prior to hearing to

allow the parties time to ascertain if

additional discovery is needed, and to

prevent the need for continuances to

conduct discovery on witnesses and

evidence not timely disclosed. The

commenter argued that the additional

time will preclude post trial depositions

to rectify untimely disclosed

information. The Department declines

to extend the date for submission of the

prehearing statement and notes that the

rule allows for the judge to order a

different time frame, if appropriate.

A commenter objected to the

statement in the NPRM that the

Department proposed to add a new

regulation at § 18.80(e) requiring a party

to file objections to an opposing party’s

proposed exhibits or use of deposition

testimony within 14 days of being

served, and that failure to object waives

an objection unless the judge finds good

cause for failure to object. The NPRM is

in error. The new rule does not include

such a provision.

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§ 18.84 Official notice. The

Department clarifies procedures in

§ 18.84 that a judge may follow when

taking judicial notice. The rule provides

that official notice may be taken of any

adjudicative fact or other matter subject

to judicial notice, and the parties must

be given an adequate opportunity to

show the contrary of the matter noticed.

A commenter objected to a practice by

ALJs in BLBA claims of taking official

notice of the Dictionary of Occupational

Titles (4th ed. Rev. 1991). He contended

that such practice invades upon the

province of a medical expert who must

consider job duties and tasks in

assessing whether a pulmonary

impairment would or would not prevent

the performance of such tasks. Although

the Department agrees with the

commenter that a matter subject to

judicial notice is a matter whose

accuracy cannot be reasonably

questioned, it declines to identify

specific matters for which official notice

is not appropriate. The rule states that

parties must be given an adequate

opportunity to show the contrary of the

matter noted. The Department

accordingly declines to amend this

provision.

§ 18.87 Standards of conduct. The

Department relocated the prior § 18.36

to § 18.87 and divided the prior

paragraph (b) into two paragraphs: (b)

Exclusion for misconduct, and (c)

Review of representative’s exclusion. A

commenter contended that the rule

should be revised to explicitly state that

§ 18.87 does not apply in proceedings

under the LHWCA and BLBA. The

commenter reasoned that rules of

procedure apply only to the extent that

they are consistent with the BLBA or its

implementing regulations, and since the

LHWCA and BLBA contain a specific

statutory provision dealing with the

resistance of an order, misconduct

during hearings, and discovery

violations, 33 U.S.C. 927(b), the

sanction provisions under either the

Rules of Practice and Procedure before

the OALJ or the FRCP do not apply. The

commenter also objected to the rule

because Congress did not vest the OALJ

with contempt powers. The Department

declines to adopt the commenters’

suggestion for the reasons detailed

above in section II, ‘‘Conflicts with the

LHWCA and BLBA.’’

§ 18.88 Transcript of proceedings.

Section 18.88(b) of the new rule states

that motions to correct the official

transcript must be filed within 14 days

of the receipt of the transcript unless the

judge permits additional time. A

commenter suggested that motions to

correct be filed seven days after filing of

the post-hearing brief. The commenter

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reasoned that attorneys typically review

the transcript as they write the brief,

and that counsel can be more helpful in

this regard after they have reviewed the

transcript in preparation for their brief.

The Department declines to extend the

date for motions to correct. The

Department contemplates that parties

would have a corrected transcript at the

time they prepare their brief. Also, the

rule allows for correction of errors

discovered during preparation of a brief,

as the rule provides that a judge may

correct errors in the transcript at any

time before issuing a decision and upon

notice to the parties.

§ 18.92 Decision and order. The

Department revised the prior § 18.57

into two sections, § 18.91, Post-hearing

Briefs; and § 18.92, Decision and Order.

The language that the Department

deleted stated that the ALJ was to issue

a decision within a ‘‘reasonable time’’

after receiving the parties’ filings or

within 30 days after receiving the

parties’ consent findings. Two

commenters submitted concerns about

the new § 18.92. They observed that,

under the current practice, parties ‘‘have

no mechanism or ability to know when

decisions will be issued,’’ and expressed

concern that delays adversely impact

both employers and employees. The

Department has determined that

questions about how long it takes the

OALJ’s judges to issue their decisions

are best handled as matters of policy

and resource allocation. The

Department therefore declines to adopt

the commenters’ suggestions that

§ 18.92 be amended to include a

timeframe for issuance of a judge’s

decision.

§ 18.93 Motion for reconsideration.

The prior rule contained no general

provision on motions for

reconsideration of decisions and orders.

The Department added a new provision

stating that motions for reconsideration

of a decision and order must be filed

within 10 days after service of the

decision on the moving party.

One commenter suggested that the

provision be amended to permit

motions for reconsideration to be filed

within 30 days, instead of the 10 days

in the new rule. The commenter stated

that the BLBA regulation permits such

motions to be filed within 30 days. 20

CFR 725.479(b). In the commenter’s

view, its proposal will provide for

uniformity among all types of cases. The

commenter also indicated that a longer

time period for such motions will

obviate the need to submit motions for

extensions of time to file motions for

reconsideration, and will provide

practitioners and their clients with

sufficient time to make informed

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decisions about whether to even file

motions for reconsideration. Broad

motions aimed at all issues will thus be

avoided and the resulting burden on

ALJs will be reduced.

As the commenter correctly indicated,

and as mentioned in the NPRM, the new

rule is modeled after FRCP 59(e), which

gives parties 28 days from the date of

entry of a judgment to file a motion to

alter or amend the judgment. A motion

for reconsideration may be filed in

BLBA cases within 30 days. 20 CFR

725.479(b). Compensation orders in

LHWCA cases similarly are final 30

days after filing unless other

proceedings are instituted.

The Department considered other

timeframes for motions for

reconsideration that were more in line

with FRCP 59(e) or 20 CFR 725.479(b).

However, some of the Department’s

regulations pertaining to specific

New section

statutes within the OALJ’s purview state

that the ALJ’s decision and order is

final, unless a petition for review is filed

with the ARB within a specific time,

less than 30 days from service of the

ALJ’s decision and order. See, e.g., 29

CFR 1978.109(e)(specifying 14 days for

cases under the Surface Transportation

Assistance Act); 29 CFR 1980.110(e)

(specifying 10 days for cases under the

Sarbanes-Oxley Act); 29 CFR

1992.110(a)(specifying 10 days for cases

under the National Transit Systems

Security Act/Federal Railroad Safety

Act). Permitting a party to move for

reconsideration after the date that a

petition for review must be filed with

the ARB would be inconsistent with the

Department’s position regarding finality

of ALJ decisions in such cases.

Additionally, if the deadline for

submitting a motion for reconsideration

is after the deadline for submitting a

New section title

Old section

28783

petition for review, if a motion for

reconsideration is not submitted, a party

may thereby inadvertently foreclose its

options regarding appeal. The

Department therefore declines to adopt

the commenter’s suggestion regarding

the number of days within which

motions for reconsideration can be filed.

IV. Cross Referencing Chart

To assist in the transition to the

revised Subpart A, the chart below

provides cross references between the

new section and section title, and the

old section and section title of each rule.

The chart also provides cross references

to the corresponding FRCP rule, where

applicable. Finally, the chart lists the

sections from the old Subpart A that

have been deleted.

Part 18, Subpart A—Cross Referencing

Chart

Federal Rule of

Civil Procedure

Old section title

General Provisions

18.10 ...........

18.11 ...........

18.12 ...........

Scope and purpose ...............................

Definitions ..............................................

Proceedings before administrative law

judge.

18.1/18.26 ......

18.2 ................

18.25/18.29(a)

18.13 ...........

Settlement judge procedure ..................

18.9 ................

18.14 ...........

18.15 ...........

Ex parte communication .......................

Substitution of administrative law judge

18.38 ..............

18.30 ..............

18.16 ...........

18.17 ...........

Disqualification ......................................

Legal assistance ...................................

18.31 ..............

18.35 ..............

Scope of rules and conduct of hearings

Definitions.

Proceedings before administrative law

judge/authority of the administrative

law judge.

Consent order or settlement; settlement

judge procedure.

Ex parte communications.

Unavailability of administrative law

judge.

Disqualification.

Legal assistance.

Fed. R. Civ. P. 1.

Fed. R. Civ. P. 63.

Parties and Representatives

18.20 ...........

18.21 ...........

Parties to a proceeding .........................

Party appearance and participation ......

18.10 ..............

18.39/18.34(a)

18.22 ...........

18.23 ...........

18.24 ...........

Representatives ....................................

Disqualification of representatives.

Briefs from amicus curiae .....................

18.34 ..............

Parties, how designated.

18.39, Waiver of right to appear and

failure to participate or to appear—

text was incorporated into proposed

‘‘participation’’ rule.

Representatives.

18.12 ..............

Amicus curiae.

Service, Format and Timing of Filings and Other Papers

18.30 ...........

18.31 ...........

18.32 ...........

18.33 ...........

18.34 ...........

18.35 ...........

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18.36 ...........

Service and filing ...................................

Privacy protection for filings and exhibits.

Computing and extending time .............

Motions and other papers .....................

Format of papers filed.

Signing motions and other papers; representations to the judge; sanctions.

Amendments after referral to the Office

of Administrative Law Judges.

18.3 ................

........................

Service and filing ...................................

................................................................

Fed. R. Civ. P. 5.

Fed. R. Civ. P. 5.2.

18.4 ................

18.6 ................

Time computations ................................

Motions and requests ............................

Fed. R. Civ. P. 6.

Fed. R. Civ. P. 7(b) &

43(c).

........................

................................................................

Fed. R. Civ. P. 11.

18.5 ................

Responsive pleadings—answer and request for hearings.

Prehearing Procedure

18.40 ...........

18.41 ...........

18.42 ...........

18.43 ...........

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Notice of hearing ...................................

Continuances and changes in place of

hearing.

Expedited proceedings ..........................

Consolidation; separate hearings .........

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18.27 ..............

18.28 ..............

Notice of hearing.

Continuances.

18.42 ..............

18.11 ..............

Expedited proceedings.

Consolidation of hearings .....................

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New section

New section title

Old section

Old section title

18.44 ...........

Prehearing conference ..........................

18.8 ................

Prehearing conferences ........................

Fed. R. Civ. P. 16.

Disclosure and Discovery

18.50 ...........

18.51 ...........

18.52 ...........

18.53 ...........

18.54 ...........

18.55 ...........

18.56 ...........

18.57 ...........

General provisions governing disclosure and discovery.

Discovery scope and limits ...................

Protective orders ...................................

Supplementing disclosures and responses.

Stipulations about discovery and procedure.

Using depositions at hearings ...............

Subpoena ..............................................

Failure to make disclosures or to cooperate in discovery; sanctions.

........................

................................................................

18.14 ..............

18.15 ..............

18.16 ..............

Scope of discovery ................................

Protective orders ...................................

Supplementation of responses .............

Fed. R. Civ. P. 26 (a), (d),

(f), (g).

Fed. R. Civ. P. 26 (b).

Fed. R. Civ. P. 26 (c).

Fed. R. Civ. P.26 (e).

18.17 ..............

Stipulations regarding discovery ...........

Fed. R. Civ. P. 29.

18.23 ..............

18.24 ..............

18.21 ..............

Use of depositions at hearings .............

Subpoenas ............................................

Motion to compel discovery ..................

Fed. R. Civ. P. 32.

Fed. R. Civ. P. 45.

Fed. R. Civ. P. 37.

Types of Discovery

18.60 ...........

18.61 ...........

18.18 ..............

18.19 ..............

18.62 ...........

Interrogatories to parties .......................

Producing documents, electronically

stored information, and tangible

things, or entering onto land, for inspection and other purposes.

Physical and mental examinations .......

18.63 ...........

18.64 ...........

18.65 ...........

Requests for admission ........................

Depositions by oral examination ...........

Depositions by written questions ..........

18.20 ..............

18.22 ..............

........................

18.19 ..............

Written interrogatories to parties/ ..........

Production of documents and other evidence; entry upon land for inspection

and other purposes; and physical

and mental examination.

Production of documents and other evidence; entry upon land for inspection

and other purposes; and physical

and mental examination.

Admissions ............................................

Depositions by oral examinations .........

................................................................

Fed. R. Civ. P. 33.

Fed. R. Civ. P. 34.

Fed. R. Civ. P. 35.

Fed. R. Civ. P. 36.

Fed. R. Civ. P. 30.

Fed. R. Civ. P. 31.

Disposition Without Hearing

18.70 ...........

18.71 ...........

18.72 ...........

Motions for dispositive action.

Approval of settlement or consent findings.

Summary decision .................................

18.9.

18.40/18.41 ....

18.40, Motion for summary decision

merged with 18.41, Summary decision.

Fed. R. Civ. P. 56.

Hearing

18.80 ...........

18.81 ...........

18.82 ...........

Prehearing statement ............................

Formal hearing ......................................

Exhibits ..................................................

18.7 ................

18.43 ..............

18.47/18.48

18.49/18.50.

18.83 ...........

18.84 ...........

18.85 ...........

Stipulations ............................................

Official notice .........................................

Privileged, sensitive, or classified material.

Hearing room conduct ...........................

Standards of conduct ............................

Transcript of proceedings .....................

18.51 ..............

18.45 ..............

18.46/18.56 ....

18.86 ...........

18.87 ...........

18.88 ...........

18.37 ..............

18.36 ..............

18.52 ..............

Prehearing statements.

Formal hearings ....................................

Exhibits/records in other proceedings/

designation of parts of documents/

authenticity.

Stipulations.

Official notice.

In camera and protective orders/restricted access.

Hearing room conduct.

Standards of conduct.

Record of hearings.

Fed. R. Civ. P. 43(a).

Post Hearing

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18.90 ...........

18.91 ...........

Closing the record; subsequent motions.

Post-hearing brief ..................................

18.57 ..............

18.92 ...........

Decision and order ................................

18.57 ..............

18.93 ...........

18.94 ...........

Motion for reconsideration ....................

Indicative ruling on a motion for relief

that is barred by a pending petition

for review.

Review of Decision ...............................

........................

........................

Closing the record /receipt of documents after hearing.

Decision of the administrative law

judge and post-hearing briefs.

Decision of the administrative law

judge and post-hearing briefs.

................................................................

................................................................

18.58 ..............

Appeals.

18.95 ...........

18.54/18.55 ....

Deleted Sections

Deleted ..................................................

Deleted ..................................................

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18.13 ..............

18.32 ..............

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Separation of functions.

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New section

New section title

Old section

Deleted ..................................................

Deleted ..................................................

Deleted ..................................................

18.33 ..............

18.53 ..............

18.59 ..............

18.43

18.44

List of Subjects in 29 CFR Part 18

Administrative practice and

procedure, Labor.

Signed: At Washington, DC, this 7th of

May, 2015.

Thomas E. Perez,

Secretary of Labor.

For the reasons set forth in the

preamble, amend part 18 of title 29 of

the Code of Federal Regulations as

follows:

PART 18—RULES OF PRACTICE AND

PROCEDURE FOR ADMINISTRATIVE

HEARINGS BEFORE THE OFFICE OF

ADMINISTRATIVE LAW JUDGES

■ 1. The authority citation for part 18

continues to read as follows:

Authority: 5 U.S.C. 301; 5 U.S.C. 551–553;

5 U.S.C. 571 note; E.O. 12778; 57 FR 7292.

■ 2. Revise subpart A to read as follows:

Subpart A—General

General Provisions

18.10 Scope and purpose.

18.11 Definitions.

18.12 Proceedings before administrative

law judge.

18.13 Settlement judge procedure.

18.14 Ex parte communication.

18.15 Substitution of administrative law

judge.

18.16 Disqualification.

18.17 Legal assistance.

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Parties and Representatives

18.20 Parties to a proceeding.

18.21 Party appearance and participation.

18.22 Representatives.

18.23 Disqualification of representatives.

18.24 Briefs from amicus curiae.

Service, Format, and Timing of Filings and

Other Papers

18.30 Service and filing.

18.31 Privacy protection for filings and

exhibits.

18.32 Computing and extending time.

18.33 Motions and other papers.

18.34 Format of papers filed.

18.35 Signing motions and other papers;

representations to the judge; sanctions.

18.36 Amendments after referral to the

Office of Administrative Law Judges.

Prehearing Procedure

18.40 Notice of hearing.

18.41 Continuances and changes in place of

hearing.

18.42 Expedited proceedings.

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Expedition.

Closing of hearings.

Certification of official record.

Consolidation; separate hearings.

Prehearing conference.

Disclosure and Discovery

18.50 General provisions governing

disclosure and discovery.

18.51 Discovery scope and limits.

18.52 Protective orders.

18.53 Supplementing disclosures and

responses.

18.54 Stipulations about discovery

procedure.

18.55 Using depositions at hearings.

18.56 Subpoena.

18.57 Failure to make disclosures or to

cooperate in discovery; sanctions.

Types of Discovery

18.60 Interrogatories to parties.

18.61 Producing documents, electronically

stored information, and tangible things,

or entering onto land, for inspection and

other purposes.

18.62 Physical and mental examinations.

18.63 Requests for admission.

18.64 Depositions by oral examination.

18.65 Depositions by written questions.

Hearing

18.80 Prehearing statement.

18.81 Formal hearing.

18.82 Exhibits.

18.83 Stipulations.

18.84 Official notice.

18.85 Privileged, sensitive, or classified

material.

18.86 Hearing room conduct.

18.87 Standards of conduct.

18.88 Transcript of proceedings.

Post Hearing

18.90 Closing the record; subsequent

motions.

18.91 Post-hearing brief.

18.92 Decision and order.

18.93 Motion for reconsideration.

18.94 Indicative ruling on a motion for

relief that is barred by a pending petition

for review.

18.95 Review of decision

General Provisions

§ 18.10

Scope and purpose.

(a) In general. These rules govern the

procedure in proceedings before the

United States Department of Labor,

Office of Administrative Law Judges.

They should be construed and

administered to secure the just, speedy,

and inexpensive determination of every

proceeding. To the extent that these

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Disposition Without Hearing

18.70 Motions for dispositive action.

18.71 Approval of settlement or consent

findings.

18.72 Summary decision.

Sec.

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rules may be inconsistent with a

governing statute, regulation, or

executive order, the latter controls. If a

specific Department of Labor regulation

governs a proceeding, the provisions of

that regulation apply, and these rules

apply to situations not addressed in the

governing regulation. The Federal Rules

of Civil Procedure (FRCP) apply in any

situation not provided for or controlled

by these rules, or a governing statute,

regulation, or executive order.

(b) Type of proceeding. Unless the

governing statute, regulation, or

executive order prescribes a different

procedure, proceedings follow the

Administrative Procedure Act, 5 U.S.C.

551 through 559.

(c) Waiver, modification, and

suspension. Upon notice to all parties,

the presiding judge may waive, modify,

or suspend any rule under this subpart

when doing so will not prejudice a party

and will serve the ends of justice.

§ 18.11

Definitions.

For purposes of these rules, these

definitions supplement the definitions

in the Administrative Procedure Act, 5

U.S.C. 551.

Calendar call means a meeting in

which the judge calls cases awaiting

hearings, determines case status, and

assigns a hearing date and time.

Chief Judge means the Chief

Administrative Law Judge of the United

States Department of Labor Office of

Administrative Law Judges and judges

to whom the Chief Judge delegates

authority.

Docket clerk means the Chief Docket

Clerk at the Office of Administrative

Law Judges in Washington, DC. But

once a case is assigned to a judge in a

district office, docket clerk means the

docket staff in that office.

Hearing means that part of a

proceeding consisting of a session to

decide issues of fact or law that is

recorded and transcribed and provides

the opportunity to present evidence or

argument.

Judge means an administrative law

judge appointed under the provisions of

5 U.S.C. 3105.

Order means the judge’s disposition

of one or more procedural or substantive

issues, or of the entire matter.

Proceeding means an action before the

Office of Administrative Law Judges

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that creates a record leading to an

adjudication or order.

Representative means any person

permitted to represent another in a

proceeding before the Office of

Administrative Law Judges.

§ 18.12 Proceedings before administrative

law judge.

(a) Designation. The Chief Judge

designates the presiding judge for all

proceedings.

(b) Authority. In all proceedings

under this part, the judge has all powers

necessary to conduct fair and impartial

proceedings, including those described

in the Administrative Procedure Act, 5

U.S.C. 556. Among them is the power

to:

(1) Regulate the course of proceedings

in accordance with applicable statute,

regulation or executive order;

(2) Administer oaths and affirmations

and examine witnesses;

(3) Compel the production of

documents and appearance of witnesses

within a party’s control;

(4) Issue subpoenas authorized by

law;

(5) Rule on offers of proof and receive

relevant evidence;

(6) Dispose of procedural requests and

similar matters;

(7) Terminate proceedings through

dismissal or remand when not

inconsistent with statute, regulation, or

executive order;

(8) Issue decisions and orders;

(9) Exercise powers vested in the

Secretary of Labor that relate to

proceedings before the Office of

Administrative Law Judges; and

(10) Where applicable take any

appropriate action authorized by the

FRCP.

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§ 18.13

Settlement judge procedure.

(a) How initiated. The Office of

Administrative Law Judges provides

settlement judges to aid the parties in

resolving the matter that is the subject

of the controversy. Upon a joint request

by the parties or upon referral by the

judge when no party objects, the Chief

Judge may appoint a settlement judge. A

settlement judge will not be appointed

when settlement proceedings would be

inconsistent with a statute, regulation,

or executive order.

(b) Appointment. The Chief Judge has

discretion to appoint a settlement judge,

who must be an active or retired judge.

The settlement judge will not be

appointed to hear and decide the case

or approve the settlement without the

parties’ consent and the approval of the

Chief Judge.

(c) Duration of settlement proceeding.

Unless the Chief Judge directs

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otherwise, settlement negotiations

under this section must be completed

within 60 days from the date of the

settlement judge’s appointment. The

settlement judge may request that the

Chief Judge extend the appointment.

The negotiations will be terminated if a

party withdraws from participation, or if

the settlement judge determines that

further negotiations would be

unproductive or inappropriate.

(d) Powers of the settlement judge.

The settlement judge may convene

settlement conferences; require the

parties or their representatives to attend

with full authority to settle any

disputes; and impose other reasonable

requirements to expedite an amicable

resolution of the case.

(e) Stay of proceedings before

presiding judge. The appointment of a

settlement judge does not stay any

aspect of the proceeding before the

presiding judge. Any motion to stay

must be directed to the presiding judge.

(f) Settlement conferences. Settlement

conferences may be conducted by

telephone, videoconference or in person

at the discretion of the settlement judge

after considering the nature of the case,

location of the participants, availability

of technology, and efficiency of

administration.

(g) Confidentiality. All discussions

with the settlement judge are

confidential; none may be recorded or

transcribed. The settlement judge must

not disclose any confidential

communications made during

settlement proceedings, except as

required by statute, executive order, or

court order. The settlement judge may

not be subpoenaed or called as a witness

in any hearing of the case or any

subsequent administrative proceedings

before the Department to testify to

statements made or conduct during the

settlement discussions.

(h) Report. The parties must promptly

inform the presiding judge of the

outcome of the settlement negotiations.

If a settlement is reached, the parties

must submit the required documents to

the presiding judge within 14 days of

the conclusion of settlement discussions

unless the presiding judge orders

otherwise.

(i) Non-reviewable decisions. Whether

a settlement judge should be appointed,

the selection of a particular settlement

judge, and the termination of

proceedings under this section are

matters not subject to review by

Department officials.

§ 18.14

Ex parte communication.

The parties, their representatives, or

other interested persons must not

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engage in ex parte communications on

the merits of a case with the judge.

§ 18.15

judge.

Substitution of administrative law

(a) Substitution during hearing. If the

judge is unable to complete a hearing,

a successor judge designated pursuant

to § 18.12 may proceed upon certifying

familiarity with the record and

determining that the case may be

completed without prejudice to the

parties. The successor judge must, at a

party’s request, recall any witness

whose testimony is material and

disputed and who is available to testify

again without undue burden. The

successor judge may also recall any

other witness.

(b) Substitution following hearing. If

the judge is unable to proceed after the

hearing is concluded, the successor

judge appointed pursuant to § 18.12

may issue a decision and order based

upon the existing record after notifying

the parties and giving them an

opportunity to respond. Within 14 days

of receipt of the judge’s notice, a party

may file an objection to the judge

issuing a decision based on the existing

record. If no objection is filed, the

objection is considered waived. Upon

good cause shown, the judge may order

supplemental proceedings.

§ 18.16

Disqualification.

(a) Disqualification on judge’s

initiative. A judge must withdraw from

a proceeding whenever he or she

considers himself or herself

disqualified.

(b) Request for disqualification. A

party may file a motion to disqualify the

judge. The motion must allege grounds

for disqualification, and include any

appropriate supporting affidavits,

declarations or other documents. The

presiding judge must rule on the motion

in a written order that states the grounds

for the ruling.

§ 18.17

Legal assistance.

The Office of Administrative Law

Judges does not appoint representatives,

refer parties to representatives, or

provide legal assistance.

Parties and Representatives

§ 18.20

Parties to a proceeding.

A party seeking original relief or

action is designated a complainant,

claimant or plaintiff, as appropriate. A

party against whom relief or other

action is sought is designated a

respondent or defendant, as appropriate.

When participating in a proceeding, the

applicable Department of Labor’s agency

is a party or party-in-interest.

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§ 18.21 Party appearance and

participation.

(a) In general. A party may appear and

participate in the proceeding in person

or through a representative.

(b) Waiver of participation. By filing

notice with the judge, a party may waive

the right to participate in the hearing or

the entire proceeding. When all parties

waive the right to participate in the

hearing, the judge may issue a decision

and order based on the pleadings,

evidence, and briefs.

(c) Failure to appear. When a party

has not waived the right to participate

in a hearing, conference or proceeding

but fails to appear at a scheduled

hearing or conference, the judge may,

after notice and an opportunity to be

heard, dismiss the proceeding or enter

a decision and order without further

proceedings if the party fails to establish

good cause for its failure to appear.

tkelley on DSK3SPTVN1PROD with RULES2

§ 18.22

Representatives.

(a) Notice of appearance. When first

making an appearance, each

representative must file a notice of

appearance that indicates on whose

behalf the appearance is made and the

proceeding name and docket number.

Any attorney representative must

include in the notice of appearance the

license registration number(s) assigned

to the attorney.

(b) Categories of representation;

admission standards—(1) Attorney

representative. Under these rules,

‘‘attorney’’ or ‘‘attorney representative’’

means an individual who has been

admitted to the bar of the highest court

of a State, Commonwealth, or Territory

of the United States, or the District of

Columbia.

(i) Attorney in good standing. An

attorney who is in good standing in his

or her licensing jurisdiction may

represent a party or subpoenaed witness

before the Office of Administrative Law

Judges. The filing of the Notice of

Appearance required in paragraph (a) of

this section constitutes an attestation

that:

(A) The attorney is a member of a bar

in good standing of the highest court of

a State, Commonwealth, or Territory of

the United States, or the District of

Columbia where the attorney has been

licensed to practice law; and

(B) No disciplinary proceeding is

pending against the attorney in any

jurisdiction where the attorney is

licensed to practice law.

(ii) Attorney not in good standing. An

attorney who is not in good standing in

his or her licensing jurisdiction may not

represent a party or subpoenaed witness

before the Office of Administrative Law

Judges, unless he or she obtains the

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judge’s approval. Such an attorney must

file a written statement that establishes

why the failure to maintain good

standing is not disqualifying. The judge

may deny approval for the appearance

of such an attorney after providing

notice and an opportunity to be heard.

(iii) Disclosure of discipline. An

attorney representative must promptly

disclose to the judge any action

suspending, enjoining, restraining,

disbarring, or otherwise currently

restricting the attorney in the practice of

law in any jurisdiction where the

attorney is licensed to practice law.

(2) Non-attorney representative. An

individual who is not an attorney as

defined by paragraph (b)(1) of this

section may represent a party or

subpoenaed witness upon the judge’s

approval. The individual must file a

written request to serve as a nonattorney representative that sets forth

the name of the party or subpoenaed

witness represented and certifies that

the party or subpoenaed witness desires

the representation. The judge may

require that the representative establish

that he or she is subject to the laws of

the United States and possesses

communication skills, knowledge,

character, thoroughness and preparation

reasonably necessary to render

appropriate assistance. The judge may

inquire as to the qualification or ability

of a non-attorney representative to

render assistance at any time. The judge

may deny the request to serve as nonattorney representative after providing

the party or subpoenaed witness with

notice and an opportunity to be heard.

(c) Duties. A representative must be

diligent, prompt, and forthright when

dealing with parties, representatives and

the judge, and act in a manner that

furthers the efficient, fair and orderly

conduct of the proceeding. An attorney

representative must adhere to the

applicable rules of conduct for the

jurisdiction(s) in which the attorney is

admitted to practice.

(d) Prohibited actions. A

representative must not:

(1) Threaten, coerce, intimidate,

deceive or knowingly mislead a party,

representative, witness, potential

witness, judge, or anyone participating

in the proceeding regarding any matter

related to the proceeding;

(2) Knowingly make or present false

or misleading statements, assertions or

representations about a material fact or

law related to the proceeding;

(3) Unreasonably delay, or cause to be

delayed without good cause, any

proceeding; or

(4) Engage in any other action or

behavior prejudicial to the fair and

orderly conduct of the proceeding.

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(e) Withdrawal of appearance. A

representative who desires to withdraw

after filing a notice of appearance or a

party desiring to withdraw the

appearance of a representative must file

a motion with the judge. The motion

must state that notice of the withdrawal

has been given to the party, client or

representative. The judge may deny a

representative’s motion to withdraw

when necessary to avoid undue delay or

prejudice to the rights of a party.

§ 18.23

Disqualification of representatives.

(a) Disqualification—(1) Grounds for

disqualification. Representatives

qualified under § 18.22 may be

disqualified for:

(i) Suspension of a license to practice

law or disbarment from the practice of

law by any court or agency of the United

States, highest court of a State,

Commonwealth, or Territory of the

United States, or the District of

Columbia;

(ii) Disbarment from the practice of

law on consent or resignation from the

bar of a court or agency while an

investigation into an allegation of

misconduct is pending; or

(iii) Committing an act, omission, or

contumacious conduct that violates

these rules, an applicable statute, an

applicable regulation, or the judge’s

order(s).

(2) Disqualification procedure. The

Chief Judge must provide notice and an

opportunity to be heard as to why the

representative should not be

disqualified from practice before the

Office of Administrative Law Judges.

The notice will include a copy of the

document that provides the grounds for

the disqualification. Unless otherwise

directed, any response must be filed

within 21 days of service of the notice.

The Chief Judge’s determination must

be based on the reliable, probative and

substantial evidence of record,

including the notice and response.

(b) Notification of disqualification

action. When an attorney representative

is disqualified, the Chief Judge will

notify the jurisdiction(s) in which the

attorney is licensed to practice and the

National Lawyer Regulatory Data Bank

maintained by the American Bar

Association Standing Committee on

Professional Discipline, by providing a

copy of the decision and order.

(c) Application for reinstatement. A

representative disqualified under this

section may be reinstated by the Chief

Judge upon application. At the

discretion of the Chief Judge,

consideration of an application for

reinstatement may be limited to written

submissions or may be referred for

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further proceedings before the Chief

Judge.

§ 18.24

Briefs from amicus curiae.

The United States or an officer or

agency thereof, or a State, Territory,

Commonwealth, or the District of

Columbia may file an amicus brief

without the consent of the parties or

leave of the judge. Any other amicus

curiae may file a brief only by leave of

the judge, upon the judge’s request, or

if the brief states that all parties have

consented to its filing. A request for

leave to file an amicus brief must be

made by written motion that states the

interest of the movant in the proceeding.

The deadline for submission of an

amicus brief will be set by the presiding

judge.

Service, Format, and Timing of Filings

and Other Papers

tkelley on DSK3SPTVN1PROD with RULES2

§ 18.30

Service and filing.

(a) Service on parties—(1) In general.

Unless these rules provide otherwise, all

papers filed with OALJ or with the

judge must be served on every party.

(2) Service: how made—(i) Serving a

party’s representative. If a party is

represented, service under this section

must be made on the representative. The

judge also may order service on the

party.

(ii) Service in general. A paper is

served under this section by:

(A) Handing it to the person;

(B) Leaving it;

(1) At the person’s office with a clerk

or other person in charge or, if no one

is in charge, in a conspicuous place in

the office; or

(2) If the person has no office or the

office is closed, at the person’s dwelling

or usual place of abode with someone of

suitable age and discretion who resides

there.

(C) Mailing it to the person’s last

known address—in which event service

is complete upon mailing;

(D) Leaving it with the docket clerk if

the person has no known address;

(E) Sending it by electronic means if

the person consented in writing—in

which event service is complete upon

transmission, but is not effective if the

serving party learns that it did not reach

the person to be served; or

(F) Delivering it by any other means

that the person consented to in

writing—in which event service is

complete when the person making

service delivers it to the agency

designated to make delivery.

(3) Certificate of service. A certificate

of service is a signed written statement

that the paper was served on all parties.

The statement must include:

(i) The title of the document;

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(ii) The name and address of each

person or representative being served;

(iii) The name of the party filing the

paper and the party’s representative, if

any;

(iv) The date of service; and

(v) How the paper was served.

(b) Filing with Office of

Administrative Law Judges—(1)

Required filings. Any paper that is

required to be served must be filed

within a reasonable time after service

with a certificate of service. But

disclosures under § 18.50(c) and the

following discovery requests and

responses must not be filed until they

are used in the proceeding or the judge

orders filing:

(i) Notices of deposition,

(ii) Depositions,

(iii) Interrogatories,

(iv) Requests for documents or

tangible things or to permit entry onto

land;

(v) Requests for admission, and

(vi) The notice (and the related copy

of the subpoena) that must be served on

the parties under rule 18.56(b)(1) before

a ‘‘documents only’’ subpoena may be

served on the person commended to

produce the material.

(2) Filing: when made—in general. A

paper is filed when received by the

docket clerk or the judge during a

hearing.

(3) Filing how made. A paper may be

filed by mail, courier service, hand

delivery, facsimile or electronic

delivery.

(i) Filing by facsimile—(A) When

permitted. A party may file by facsimile

only as directed or permitted by the

judge. If a party cannot obtain prior

permission because the judge is

unavailable, a party may file by

facsimile up to 12 pages, including a

statement of the circumstances

precluding filing by delivery or mail.

Based on the statement, the judge may

later accept the document as properly

filed at the time transmitted.

(B) Cover sheet. Filings by facsimile

must include a cover sheet that

identifies the sender, the total number

of pages transmitted, and the matter’s

docket number and the document’s title.

(C) Retention of the original

document. The original signed

document will not be substituted into

the record unless required by law or the

judge.

(ii) Any party filing a facsimile of a

document must maintain the original

document and transmission record until

the case is final. A transmission record

is a paper printed by the transmitting

facsimile machine that states the

telephone number of the receiving

machine, the number of pages sent, the

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transmission time and an indication that

no error in transmission occurred.

(iii) Upon a party’s request or judge’s

order, the filing party must provide for

review the original transmitted

document from which the facsimile was

produced.

(4) Electronic filing, signing, or

verification. A judge may allow papers

to be filed, signed, or verified by

electronic means.

§ 18.31 Privacy protection for filings and

exhibits.

(a) Redacted filings and exhibits.

Unless the judge orders otherwise, in an

electronic or paper filing or exhibit that

contains an individual’s social-security

number, taxpayer-identification

number, or birth date, the name of an

individual known to be a minor, or a

financial-account number, the party or

nonparty making the filing must redact

all such information, except:

(1) The last four digits of the socialsecurity number and taxpayeridentification number;

(2) The year of the individual’s birth;

(3) The minor’s initials; and

(4) The last four digits of the

financial-account number.

(b) Exemptions from the redaction

requirement. The redaction requirement

does not apply to the following:

(1) The record of an administrative or

agency proceeding;

(2) The official record of a state-court

proceeding;

(3) The record of a court or tribunal,

if that record was not subject to the

redaction requirement when originally

filed; and

(4) A filing or exhibit covered by

paragraph (c) of this section.

(c) Option for filing a reference list. A

filing that contains redacted information

may be filed together with a reference

list that identifies each item of redacted

information and specifies an

appropriate identifier that uniquely

corresponds to each item listed. The

reference list must be filed under seal

and may be amended as of right. Any

reference in the case to a listed

identifier will be construed to refer to

the corresponding item of information.

(d) Waiver of protection of identifiers.

A person waives the protection of

paragraph (a) of this section as to the

person’s own information by filing or

offering it without redaction and not

under seal.

(e) Protection of material. For good

cause, the judge may order protection of

material pursuant to §§ 18.85 and 18.52.

§ 18.32

Computing and extending time.

(a) Computing time. The following

rules apply in computing any time

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period specified in these rules, a judge’s

order, or in any statute, regulation, or

executive order that does not specify a

method of computing time.

(1) When the period is stated in days

or a longer unit of time:

(i) Exclude the day of the event that

triggers the period;

(ii) Count every day, including

intermediate Saturdays, Sundays, and

legal holidays; and

(iii) Include the last day of the period,

but if the last day is a Saturday, Sunday,

or legal holiday, the period continues to

run until the end of the next day that

is not a Saturday, Sunday, or legal

holiday.

(2) ‘‘Last day’’ defined. Unless a

different time is set by a statute,

regulation, executive order, or judge’s

order, the ‘‘last day’’ ends at 4:30 p.m.

local time where the event is to occur.

(3) ‘‘Next day’’ defined. The ‘‘next

day’’ is determined by continuing to

count forward when the period is

measured after an event and backward

when measured before an event.

(4) ‘‘Legal holiday’’ defined. ‘‘Legal

holiday’’ means the day set aside by

statute for observing New Year’s Day,

Martin Luther King Jr.’s Birthday,

Washington’s Birthday, Memorial Day,

Independence Day, Labor Day,

Columbus Day, Veterans’ Day,

Thanksgiving Day, or Christmas Day;

and any day on which the district office

in which the document is to be filed is

closed or otherwise inaccessible.

(b) Extending time. When an act may

or must be done within a specified time,

the judge may, for good cause, extend

the time:

(1) With or without motion or notice

if the judge acts, or if a request is made,

before the original time or its extension

expires; or

(2) On motion made after the time has

expired if the party failed to act because

of excusable neglect.

(c) Additional time after certain kinds

of service. When a party may or must act

within a specified time after service and

service is made under

§ 18.30(a)(2)(B)(iii) or (iv), 3 days are

added after the period would otherwise

expire under paragraph (a) of this

section.

tkelley on DSK3SPTVN1PROD with RULES2

§ 18.33

Motions and other papers.

(a) In general. A request for an order

must be made by motion. The motion

must:

(1) Be in writing, unless made during

a hearing;

(2) State with particularity the

grounds for seeking the order;

(3) State the relief sought;

(4) Unless the relief sought has been

agreed to by all parties, be accompanied

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by affidavits, declarations, or other

evidence; and

(5) If required by paragraph (c)(4) of

this section, include a memorandum of

points and authority supporting the

movant’s position.

(b) Form. The rules governing

captions and other matters of form

apply to motions and other requests.

(c) Written motion before hearing. (1)

A written motion before a hearing must

be served with supporting papers, at

least 21 days before the time specified

for the hearing, with the following

exceptions:

(i) When the motion may be heard ex

parte;

(ii) When these rules or an

appropriate statute, regulation, or

executive order set a different time; or

(iii) When an order sets a different

time.

(2) A written motion served within 21

days before the hearing must state why

the motion was not made earlier.

(3) A written motion before hearing

must state that counsel conferred, or

attempted to confer, with opposing

counsel in a good faith effort to resolve

the motion’s subject matter, and

whether the m

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