# Vol. 80

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/agency%3Adol%3Af04785a091a9875f

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Adol%3Af04785a091a9875f. Public record. Not legal advice.