# Rules of Practice and Procedure for Hearings Before the Office of Administrative Law Judges

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2012-28516

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** December 4, 2012
- **Citation:** 77 FR 72142

## Text

DEPARTMENT OF LABOR
Office of the Secretary
29 CFR Part 18
RIN 1290-AA26
Rules of Practice and Procedure for Hearings Before the Office of Administrative Law Judges

AGENCY:

Office of the Secretary, Labor.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Department of Labor proposes to revise and reorganize the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges, from our regulations, which provide procedural guidance to administrative law judges, claimants, employers, and Department of Labor representatives seeking to resolve disputes under a variety of employment and labor laws. The Office of Administrative Law Judges promulgated these regulations in 1983. The regulations were modeled on the Federal Rules of Civil Procedure (FRCP) and have proved extraordinarily helpful in providing litigants with familiar rules governing hearing procedure.

Since 1983, the FRCP have been amended many times. Moreover, in 2007 the FRCP were given a complete revision to improve style and clarity. The nature of litigation has also changed in the past 28 years, particularly in the areas of discovery and electronic records. Thus, OALJ has revised its regulations to make the rules more accessible and useful to parties, and to harmonize administrative hearing procedures with the current FRCP. The goal in amending the regulations is to provide clarity through the use of consistent terminology, structure and formatting so that parties have clear direction when pursuing or defending against a claim.

In addition to revising the regulations to conform to modern legal procedure, the rules need to be modified to reflect the types of claims now heard by OALJ. When the rules were promulgated in 1983, OALJ primarily adjudicated occupational disease and injury cases. Presently, and looking ahead to the future, OALJ is and will be increasingly tasked with hearing whistleblower and other workplace retaliation claims, in addition to the occupational disease and injury cases. These types of cases require more structured management and oversight by the presiding administrative law judge and more sophisticated motions and discovery procedures than the current regulations provide. In order to best manage the complexities of whistleblower and discrimination claims, OALJ needs to update its rules to address the procedural questions that arise in these cases.

DATES:

Submit comments on or before February 4, 2013.

ADDRESSES:

You may submit comments by any of the following methods:

Electronically:
You may submit your comments and attachments electronically at
www.regulations.gov.

Mail, hand delivery, express mail, messenger or courier service:
You may submit your comments and attachments to the U.S. Department of Labor, Office of Administrative Law Judges, 800 K Street NW., Suite 400-North, Washington, DC 20001-8002; telephone (202) 693-7300. Deliveries (hand, express mail, messenger, and courier service) are accepted during the Office of Administrative Law Judges' normal business hours, 8:00 a.m.-4:30 p.m., e.t.

Instruction for submitting comments:
Please submit only one copy of your comments via any of the methods noted in this section. All submissions received must include the agency name, as well as RIN 1290-AA26. Also, please note that due to security concerns, postal mail delivery in Washington, DC may be delayed. Therefore, in order to ensure that comments are received on time, the Department encourages the public to submit comments electronically as indicated above. For further information on submitting comments, plus additional information on the rulemaking process, see the “Public Participation” heading in the
SUPPLEMENTARY INFORMATION
section of this notice.

FOR FURTHER INFORMATION CONTACT:

Todd Smyth at the U.S. Department of Labor, Office of Administrative Law Judges, 800 K Street NW Suite 400-North, Washington, DC 20001-8002; telephone (202) 693-7300.

SUPPLEMENTARY INFORMATION:

I. Background

Administrative law judges at the Office of Administrative Law Judges (OALJ), United States Department of Labor (Department), conduct formal hearings under the Administrative Procedure Act, 5 U.S.C. 554 through 557. An administrative law judge manages hearings that mirror federal civil litigation, is bound by applicable rules of evidence and procedure, and is insulated from political influence.
See Tennessee
v.
U.S. Dep't of Transp.,
326 F.3d 729, 735-36 (6th Cir. 2003). An administrative law judge acts as the functional equivalent of a trial judge.
See Fed. Mar. Comm'n
v.
S.C. State Ports Auth.,
535 U.S. 743, 756-57 (2002). The types of cases heard by administrative law judges involve a full range of complexity, from simple administrative review of an existing administrative record to de novo, trial-type litigation. Consequently, rules of practice and procedure are essential to a just, speedy, and inexpensive determination of every proceeding.

The current Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges, 29 CFR part 18, subpart A (Part 18, Subpart A), were published on July 15, 1983.
See
48 FR 32538, 32538, July 15, 1983. Rarely have they been altered. Some rules relating to discovery were amended in 1994.
See
59 FR 41874, 41876, Aug. 15, 1994. The most recent amendment, made in August 1999, permitted the appointment of settlement judges in cases arising under the Longshore and Harbor Workers' Compensation Act (Longshore Act), 33 U.S.C. 901
et seq.,
and associated statutes.
See
64 FR 47088, 47089, Aug. 27, 1999. Since its original publication, Part 18, Subpart A has never been comprehensively revised to keep abreast of ongoing changes to the procedures that govern civil litigation in federal trial courts.

The OALJ rules of practice and procedure are analogous to the Federal Rules of Civil Procedure used in the United States District Courts. Congress authorized the Supreme Court to prescribe rules for the United States District Courts in 1934, under the Rules Enabling Act, 28 U.S.C. 2072. The original version of those rules became effective on September 16, 1938.
1

Since 1938, thirty-three sessions of Congress have approved changes to the FRCP, from 1941 through the most recent amendments that took effect on December 1, 2010. Significant amendments became effective in 1948, 1963, 1966, 1970, 1980, 1983, 1987, 1993, 2000, 2006, 2007, 2009, and 2010.
Id.
The procedural rules for OALJ have not kept pace with the eight groups of changes to the FRCP since the early 1980s.

1
Staff of H. Comm. on the Judiciary, 111th Cong., Federal Rules of Civil Procedure with Forms at vii (Comm. Print 2010),
www.uscourts.gov/uscourts/RulesAndPolicies/rules/2010%20Rules/Civil%20Procedure.pdf.

The disputes that comprise the docket at OALJ have also changed with time. When the rules of practice and procedure were first published, OALJ's judges mainly (but not exclusively) were devoting their efforts to deciding benefit claims under two broad statutory categories:

• The Black Lung Benefits Act, subchapter 4 of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. 901
et seq.
(1969); and

• The Longshore Act and its extensions, which included the Nonappropriated Fund Instrumentalities Act, 5 U.S.C. 8171 (1927); the Outer Continental Shelf Lands Act, 43 U.S.C. 1333 (1953); and the Defense Base Act, as amended, 42 U.S.C. 1651 (1941).
2

2
Judges at OALJ continue to hear a very few claims under another Longshore Act extension, the District of Columbia Workmen's Compensation Act of 1928, 36 DC Code § 501
et seq.,
despite the District's adoption of its own workers' compensation law. For claims that involve an injury suffered before the District's own law took effect in mid-1982, judges at OALJ continue to hear them.
Keener
v.
Wash. Metro. Transit Auth.,
800 F.2d 1173, 1175 (D.C. Cir. 1986).

Over the last nearly two decades, Congress charged the Department of Labor (and consequently the OALJ) with the responsibility to hear and decide matters under many new statutes. Most relate to complaints by employees who assert their employers retaliated against them after they engaged in whistleblower activity. Some of these statutes for example are:

• Section 110 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9610, Public Law 96-510, 94 Stat. 2787, enacted on December 11, 1980;

• Section 405 of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. 31105, Public Law 97-424, 96 Stat. 2097, 2157-58, first enacted on January 6, 1983 (and originally codified as 49 U.S.C. 2301
et seq.
), and last amended by sec. 1536 of the Implementing Recommendations of the 9/11 Commission Act of 2007, Public Law 110-53, 121 Stat. 464, enacted on August 3, 2007;

• Section 212(n)(2)(C)(iv) of the Immigration and Nationality Act, 8 U.S.C. 1182(n)(2)(C)(iv), as amended by the American Competitiveness and Workforce Improvement Act of 1998, which was part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1998, Public Law 105-277, div. C, tit. IV, sec. 411(a), 112 Stat. 2681-641 to 2681-657, enacted on October 21,1998;

• Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C. 42121, Public Law 106-181, 114 Stat. 145, enacted on April 5, 2000;

• Section 6(a) of the Pipeline Safety Improvement Act of 2002, 49 U.S.C. 60129, Public Law 107-355, 116 Stat. 2989, enacted on December 17, 2002;

• Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002 (the Sarbanes-Oxley Act), 18 U.S.C. 1514A, Public Law 107-204, 116 Stat. 802, first enacted on July 30, 2002, and last amended by sec. 929A of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203, 124 Stat. 1848, 1852, enacted on July 21, 2010;

• Section 1413 of the Implementing Recommendations of the 9/11 Commission Act of 2007, 6 U.S.C. 1142, Public Law 100-53, 121 Stat. 414, that amended the National Transit Systems Security Act on August 3, 2007; and

• Section 1521 of the Implementing Recommendations of the 9/11 Commission Act of 2007, 49 U.S.C. 20109, Public Law 100-53, 121 Stat. 444, that amended the Federal Railroad Safety Act on August 3, 2007.

Congress remains active in the area of whistleblower protection. On July 21, 2010, Congress created and expanded whistleblower protection for employees in the financial services industry under the Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203. On October 15, 2010, it amended another employment protection program that includes the opportunity for a hearing before an administrative law judge at the OALJ.
See
the amendment to the Seaman's Protection Act in sec. 611 of the Coast Guard Authorization Act of 2010, 46 U.S.C. 2114, Public Law 111-281, 124 Stat. 2969. This year Congress established an additional right to an administrative hearing for whistleblowing employees in sec. 402 of the FDA Food Safety Modernization Act, 21 U.S.C. 399d, Public Law 111-353, 124 Stat. 3968, enacted January 4, 2011.

The substantive program regulations the Department has published to implement many of the statutes that grant workers and employers formal hearings on claims of workplace retaliation offer limited guidance about the procedures those adjudications should follow. Regulations often incorporate instead the procedural rules of Part 18, Subpart A.
See, e.g.,
29 CFR 1978.107(a), 1979.107(a), 1980.107(a) (2011) (STAA, AIR21, and Sarbanes-Oxley regulations, respectively). In adopting program regulations, the Department has acknowledged it was leaving matters like the “place of hearing, right to counsel, procedures, evidence and record of hearing, oral arguments and briefs, and dismissal for cause” to the Part 18, Subpart A rules precisely “because the Office of Administrative Law Judges has adopted its own rules of practice that cover these matters.” 76 FR 2808, 2814, Jan. 18, 2011 (amending the 29 CFR part 24 regulations that cover whistleblowers in the nuclear power and environmental industries).

The growth in whistleblower jurisdiction has led OALJ to search for ways to manage those proceedings efficiently. Implementing procedures the federal district courts have developed or refined since 1983 will improve the current Part 18, Subpart A rules.

For example, several regulations that govern whistleblower claims explicitly grant the presiding judge “broad discretion to limit discovery” as a way to “expedite the hearing.” 29 CFR 1979.107(b), 1980.107(b), 1981.107(b). The Department's discussion when it published the final rules on Sarbanes-Oxley matters offered as an illustration that the judge may “limit the number of interrogatories, requests for production of documents or depositions allowed.” 69 FR 52104, 52110, Aug. 24, 2004. Other program regulations, such as those that govern disputes under the Energy Reorganization Act and six environmental statutes that cover whistleblowers in the nuclear and environmental industries published at 29 CFR part 24, incorporate the Part 18, Subpart A regulations without an explicit reference to a judge's authority to control discovery.
See
29 CFR 24.107(a). The Preface to those Part 24 regulations nonetheless recognizes that the current Part 18, Subpart A regulations invest a judge with broad authority “to limit discovery in appropriate circumstances.” 76 FR at 2815. Whether a program regulation specifically recognizes a judge's authority to limit or manage discovery, or implicitly does so by adopting the Part 18, Subpart A regulations, the judge will consider the parties' views on the discovery appropriate to develop the facts for hearing before limiting it. As detailed below, the early initial disclosures the federal courts now require parties to exchange under Fed. R. Civ. P. 26(a)(1) obviates the need for some formal discovery. The discovery plan that parties craft under Fed. R. Civ. P. 26(f) after they confer at the outset of the litigation offers a ready way to tailor discovery to the proceeding.

A 2010 study surveyed lawyers who were the attorneys of record in federal civil cases that terminated in the last quarter of 2008 about their satisfaction with the current FRCP. Lawyers from the Litigation Section of the American Bar Association and from the National Employment Lawyers Association were sampled too. The survey instrument had been developed jointly by the American

College of Trial Lawyers and the Institute for the Advancement of the American Legal System. A majority of lawyers across all the groups responded that active case management by judges offered a useful way to limit or avoid abusive, frivolous, or unnecessary discovery. Emery G. Lee & Thomas E. Willging, Attorney Satisfaction with the Federal Rules of Civil Procedure: Report to the Judicial Conference Advisory Committee on Civil Rules 3, 9 (2010). These survey results mesh comfortably with comments the Department received as the 29 CFR part 24 regulations were amended. Some lawyers who commented there urged the Department, among other things, to require parties to those whistleblower claims to exchange the initial disclosures now mandated by Fed. R. Civ. P. 26(a)(1). 76 FR at 2815.

Updating the Part 18, Subpart A regulations has value beyond whistleblower litigation. Regulations for the Longshore and Harbor Workers' Compensation Act published at 20 CFR 702.331 through 702.351 predate Part 18, Subpart A. They sketch out only broad outlines of how hearings should proceed, so the parties and judges fall back on the Part 18, Subpart A rules in cases brought under the Longshore Act and its extensions. Workers, their employers, and insurance carriers also will profit from updated procedures that avoid the need to serve discovery to learn basic information, and allow more focused case management.

The Department believes that in many instances the current Part 18, Subpart A rules provide limited guidance. Judges have addressed the current rules' limitations by managing procedural matters through orders, often directing parties to follow aspects of the various updates to the FRCP. The consequent variety in approaches to case management has troubled some lawyers, especially those with nationwide client bases who routinely practice before different judges throughout the nation.

Lastly, the Department recognizes that the current Part 18, Subpart A rules can be stated more clearly, something the 2007 style amendments to the FRCP highlight. The style amendments were the first comprehensive overhaul since the FRCP were adopted in 1938. Taking more than four years to complete, they aspired to simplify and clarify federal procedure. The more austere sentence structure used throughout the restyled FRCP made them shorter, easier to read and more clearly articulated. The amendments proposed to Part 18, Subpart A emulate those improvements.

The Department's principal goals in revising Part 18, Subpart A were to:

• Bring the rules into closer alignment with the current FRCP;

• Revise the rules to aid the development of facts germane to additional sorts of adjudications the Department's judges handle;

• Enhance procedural uniformity, while allowing judges to manage cases flexibly, because (a) An administrative proceeding is meant to be less formal than a jury trial; (b) local trial practice in different regions of the country should be accommodated when doing so does not affect substantive rights; and (c) governing statutes and substantive regulations may impose their own specific procedural requirements; and

• Make the rules clearer and easier to understand through the use of consistent terminology, structure, and formatting.

II. Alignment With the Federal Rules of Civil Procedure

The decisions and orders that judges enter to resolve cases under sec. 556 and 557 of the Administrative Procedure Act resemble findings of fact and conclusions of law federal district and magistrate judges enter in non-jury cases under Fed. R. Civ. P. 52. Matters proceed before OALJ much the way non-jury cases move through the federal courts.

Using language similar or identical to the applicable FRCP gains the advantage of the broad experience of the federal courts and the well-developed precedent they have created to guide litigants, judges, and reviewing authorities within the Department on procedure. Parties and judges obtain the additional advantage of focusing primarily on the substance of the administrative disputes, spending less time on the distraction of litigating about procedure.

Part 18, Subpart A currently provides that the “Rules of Civil Procedure for the District Courts of the United States shall be applied in any situation not provided for or controlled by these rules, or by any statute, executive order or regulation.” 29 CFR 18.1(a). Experienced practitioners know to consult the FRCP for guidance in circumstances the current Part 18, Subpart A rules do not explicitly cover. Given the developments in the FRCP since 1983, parties and judges switch back and forth between two different sources of procedure (the Part 18, Subpart A rules and the FRCP). This is a less than ideal situation. The proposed revision continues the current practice of looking to the federal civil rules to resolve procedural questions that the revised Part 18, Subpart A rules do not explicitly cover, a principle that § 18.1(a) has embodied for over twenty-five years.

Pretrial procedures under the FRCP have significantly changed since Part 18, Subpart A was published in 1983. Some of the most significant changes have encompassed:

• The scope of pretrial discovery;

• How time is computed under the FRCP;

• The innovation of early mandatory disclosures about documentary proof and lay and expert witness testimony that were unknown to litigation practice in 1983, the related discovery plans the parties now negotiate, and the ongoing duty parties now bear to supplement their mandatory disclosures and discovery responses;

• Alterations to the rule on pretrial conferences to encourage judges to manage cases, and give them the tools to do so;

• Imposing presumptive limitations on aspects of discovery;

• Adding rules on the discovery of electronically stored information, a rare source of information in the early 1980's that has become ubiquitous today; and

• The procedure, but not the standard, for granting summary judgment under Fed. R. Civ. P. 56 that was substantially revised in 2010.

The 2007 style amendments to the FRCP in some instances altered the original numbering of provisions that first came into being after 1983. The current rule numbers from the 2010 edition of the FRCP are used in the following discussion of significant changes in litigation practice since 1983.

A. Scope of Discovery

The scope of discovery has changed. The formulation used in current Part 18, Subpart A at § 18.14 extends discovery to “any matter, not privileged, which is relevant to the subject matter involved in the proceeding.” The FRCP now permits parties the somewhat narrower opportunity to learn about unprivileged matters “relevant to a party's claim or defense.” Advisory Committee Notes to the 2000 Amendments to Fed. R. Civ. P. 26(b)(1); Jeffery W. Stemple & David F. Herr,
Applying Amended Rule 26(b)(1) in Litigation: The New Scope of Discovery,
199 F.R.D. 396, 398 (2001).

B. Time Computation

Litigation requires timely filings and actions. The way time is calculated under Fed. R. Civ. P. 6 changed in 2009. In the Department's view, the Part 18, Subpart A rules should be harmonized with the FRCP so parties and their lawyers use the simpler, clearer, and more consistent way federal courts now

calculate time. Part 18, Subpart A presently excludes weekends and legal holidays when computing some deadlines but not others.
See
current 29 CFR 18.4(a). Fed. R. Civ. P. 6 now counts intervening weekends and holidays for all time periods. Most short periods found throughout the FRCP were extended to offset the shift in the time-computation rules and to ensure that each period is reasonable. Five-day periods became 7-day periods and 10-day periods became 14-day periods, in effect maintaining the status quo.

Time periods in the FRCP shorter than 30 days also were revised to multiples of 7 days, to reduce the likelihood of ending on weekends. Other changes to the FRCP time-computation rules affect how to tell when the last day of a period ends, and how to compute backward-counted periods that end on a weekend or holiday.

C. Mandatory Disclosures, Their Supplements, and Discovery Plans

The Department believes that the success the federal courts have had with requiring parties to exchange elementary information early in the dispute, without the need for a formal discovery demand, should be incorporated into OALJ's procedures for most cases. The same is true for the way the federal courts require parties to disclose the opinions of experts, and to supplement disclosures and discovery responses.

Disclosures of information relevant to the claims or defenses a party may raise in the litigation were required in the 1993 amendments to the FRCP.
See
David D. Siegel,
The Recent (Dec. 1, 1993) Changes in the Federal Rules of Civil Procedure: Background, the Question of Retroactivity, and a Word about Mandatory Disclosure,
151 F.R.D. 147 (1993). Although originally subject to variation by local rule of a district court, by 2000 the disclosures became mandatory and nationally uniform (although the federal courts exempted a narrow group of cases that were unlikely to benefit from required disclosures).

The disclosure obligation was narrowed in 2000 to embrace only information the party would use to support its claims or defenses at a pretrial conference, to support a motion, to question a witness during a discovery deposition, or at trial. Advisory Committee Notes to the 2000 Amendments to Fed. R. Civ. P. 26(a). These mandatory disclosures cover basic information needed to prepare most cases for trial or to make an informed decision about settlement. Advisory Committee Notes to the 1993 Amendments to Fed. R. Civ. P. 26(a). They must be exchanged at the outset of the proceeding, even before the opponent issues any discovery request, and for the most part there is a moratorium on discovery until the automatic disclosures are made. Fed. R. Civ. P. 26(d)(1). Few excuses for failing to make timely disclosures are countenanced. Fed. R. Civ. P. 26(a)(1)(E). These prompt initial disclosures lead to an early conference where the parties discuss whether the case can be settled and negotiate a proposed discovery schedule they report to the judge. Fed. R. Civ. P. 26(f)(2).

Other amendments enhanced the pretrial disclosure of the opinions of an expert witness. A party now is required to:

• Provide a detailed written report, signed by an expert who is retained or specially employed to give expert testimony, under Fed. R. Civ. P. 26(a)(2)(B);

• Deliver the report before the expert is deposed, under Fed. R. Civ. P. 26(b)(4); and

• Prepare and serve a disclosure of the expert's testimony if the expert was not retained or specially employed to testify (and so not required to write and sign a report), under Fed. R. Civ. P. 26(a)(2)(C).

By signing and serving a required disclosure (or any discovery response), the lawyer attests that it is complete and correct; consistent with the rules; not interposed for an improper purpose; and not unreasonable nor unduly burdensome or expensive, given the needs and prior discovery in the case, the amount in controversy, and the importance of the issues at stake. Fed. R. Civ. P. 26(g).

A required disclosure that turns out to have been incomplete or incorrect in some material respect must be supplemented “in a timely manner.” Fed. R. Civ. P. 26(e). The duty to supplement extends to a required report or disclosure about expert witness testimony and to a discovery response.
Id.

D. Case Management Through Pretrial Conferences and Orders

The amendments to Fed. R. Civ. P. 16 made in 1993 enhanced a judge's authority to manage litigation with the goal of achieving the just, speedy, and inexpensive determination of a matter through the use of scheduling orders under Fed. R. Civ. P. 16(b) and pretrial conferences under Fed. R. Civ. P. 16(c). Those revisions to Fed. R. Civ. P. 16 expanded the judge's authority to “take appropriate action” in a civil case. Charles R. Ritchey,
Rule 16 Revised, and Related Rules: Analysis of Recent Developments for the Benefit of the Bench and Bar,
157 F.R.D. 69, 75 (1994).

A pretrial conference offers the opportunity to appropriately control the extent and timing of discovery. At a conference the parties and judge may consider ways to avoid unnecessary proof and cumulative evidence at trial (including expert testimony) under what is now Fed. R. Civ. P. 16(c)(2)(D). Determining whether a motion for summary adjudication is even appropriate, and setting the time to file it, may be discussed under Fed. R. Civ. P. 16(b)(3)(A), (c)(2)(E).
See generally
D. Brock Hornby,
Summary Judgment Without Illusions,
13 Green Bag 2d 273, 284-85 (2010) (explaining the complexity of the summary judgment process). Controlling discovery and setting deadlines for initial, expert, and pretrial disclosures under Fed. R. Civ. P. 26; for stipulations under Fed. R. Civ. P. 29; and dealing with failures to make disclosures or to cooperate in discovery under Fed. R. Civ. P. 37, all may be considered at a pretrial conference under Fed. R. Civ. P. 16(c)(2)(F). A pretrial order that limits the length of trial under Fed. R. Civ. P. 16(c)(2)(O) offers the parties a better opportunity to determine their priorities and be selective in presenting their evidence than if limits are imposed only at the time of trial. Limits on trial time must be reasonable in the circumstances and ordinarily imposed only after the parties are given the opportunity to outline the nature of the testimony they expect to offer through various witnesses and the time they expect to need for direct and cross-examination.
See
Advisory Committee Note to the 1993 Amendments to Fed. R. Civ. P. 16(c)(15). Exploring settlement and the use of alternative dispute resolution procedures can be considered under Fed. R. Civ. P. 16(c)(2)(I). Separate trials may be set for potentially dispositive issues under Fed. R. Civ. P. 16(c)(2)(M).

E. Presumptive Limitations on Discovery

Discovery practice in federal court litigation has been altered since 1983 in a number of ways. The amendments were not meant to block needed discovery, but to provide judicial supervision to curtail excessive discovery. Advisory Committee Note to the 1993 Amendments to Fed. R. Civ. P. 33(a). The FRCP now presumptively limit the number of interrogatories a party may serve, including “all discrete subparts;” the number of depositions taken by oral examination or on written questions; taking the deposition of a

witness more than once; and restricting the deposition of a witness to one day of no more than seven hours. Fed. R. Civ. P. 33(a); Fed. R. Civ. P. 30(a)(2)(A)(i), (ii), (d)(1); and Fed. R. Civ. P. 31(a)(2)(A)(i).

These presumptive limitations are adjusted as a case requires, often through the scheduling order the judge enters on the discovery plan the parties propose after their initial conference. Fed. R. Civ. P. 26(b)(2)(A), (f)(3)(E);
see also,
Advisory Committee Notes to the 2000 Amendments to Fed. R. Civ. P. 26(b)(2).

Parties also must seek to resolve discovery disputes informally before filing a motion. Fed. R. Civ. P. 26(c)(1);
see also,
Advisory Committee Notes to the 1993 Amendments to Fed. R. Civ. P. 26(a) (concerning what was then the new subparagraph (B)).

F. Discovery of Electronically Stored Information

E-discovery provisions that recognize how pervasive digital information has become were incorporated into the FRCP in 2006. Richard L. Marcus,
E-Discovery & Beyond: Toward Brave New World or 1984?,
236 F.R.D. 598, 604-605 (2006). The amendments recognize the integral role digital data such as email, instant messaging, and web-based information play in contemporary life and in discovery; they introduced into the FRCP the concept of “electronically stored information.” As with changes to the presumptive limits on various discovery methods, the discovery plan the parties develop is expected to address any issues about disclosure or discovery of electronically stored information, including the form in which it should be produced. Fed. R. Civ. P. 26(f)(3)(C); Fed. R. Civ. P. 34(b)(2)(D), (E);
see also
Advisory Committee Notes to the 2006 Amendments to Fed. R. Civ. P. 26(f); Advisory Committee Notes to the 2006 Amendments to Fed. R. Civ. P. 34(b);
Hopson
v.
Mayor & City Council of Balt.,
232 F.R.D. 228, 245 (D. Md. 2006).

Digital information is so omnipresent that federal courts now deride as “frankly ludicrous” arguments that a trial lawyer who claims to be “computer illiterate” should be excused from fulfilling the rules' e-discovery obligations.
Martin
v.
Nw. Mut. Life Ins. Co.,
No. 804CV2328T23MAP, 2006 WL 148991, at *2 (M.D. Fla. Jan. 19, 2006) (unpublished). Today a lawyer bears an affirmative duty not just to ask a client to locate and gather paper and electronic documents, but to search out sources of electronic information.
Phoenix Four, Inc.
v.
Strategic Res. Corp.,
No. 05 Civ. 4837(HB), 2006 WL 2135798, at *5 (S.D.N.Y. Aug. 1, 2006) (unpublished);
In re A & M Fla. Prop. II, LLC,
No. 09-15173, 2010 WL 1418861, at *6 (Bankr. S.D.N.Y. Apr. 7, 2010) (unpublished). Those efforts must, however, be proportional to what is at stake in the litigation. Fed. R. Civ. P. 26(b)(2)(C)(iii);
see also, The Sedona Principles: Second Edition, Best Practices Recommendations & Principles for Addressing Electronic Document Production
, Principle 2, cmt. 2.b., at 17 (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.”);
cf., Pension Comm. of the Univ. of Montreal Pension Plan
v.
Banc of Am. Sec., LLC,
685 F.Supp.2d 456, 464-65 (S.D.N.Y. 2010) (describing significant discovery burdens that were reasonable in a $550 million claim arising from the liquidation of hedge funds; but those burdens may be inappropriate in litigation where much less is at stake).

In addition, the parties should discuss and agree at the initial conference on how to handle inadvertent disclosure of digital information that otherwise would enjoy attorney-client privilege or work product protection. Fed. R. Civ. P. 26(f)(3)(D). Their agreement plays a pivotal role under recently enacted Fed. R. Evid. 502(b), (d), and (e). They avoid a waiver of privilege or work product protection when their agreement is incorporated into a scheduling order or another order.
See
Advisory Committee Notes to the 2006 amendments to Fed. R. Civ. P. 26(f).

The current FRCP not only guide the resolution of discovery disputes, but also set standards for allocating the potentially high cost of discovery among the parties when the sources of digital data are not readily accessible. Advisory Committee Notes to 2006 Amendments to Fed. R. Civ. P. 26(b)(2) (“The conditions [the judge imposes] may also include payment by the requesting party of part or all of the reasonable costs of obtaining information from sources that are not reasonably accessible.”)

G. Summary Decision

A motion for summary adjudication carries the potential to dispose of an entire claim or portions of it with finality but without a trial, so it plays a key role in litigation. The procedure ought to be the same at the OALJ as in U.S. district courts; any divergence creates an incentive for a party to prefer the forum with the summary decision régime most favorable to its position. This matters because under many statutes whistleblower litigation begins at OALJ, but the complainant may proceed in U.S. district court if a final order has not been entered within a relatively short time after the claim is first brought to the attention of the Department.
See, e.g.,
18 U.S.C. 1514A(b)(1)(B) (2010) (Sarbanes-Oxley Act); 42 U.S.C. 5841(b)(4) (2010) (Energy Reorganization Act); 46 U.S.C. 2114(b) (2010) (Seaman's Protection Act); 49 U.S.C. 31105(c) (2010) (Surface Transportation Assistance Act).

Federal Rule of Civil Procedure 56 was recently revised effective December 1, 2010. It now instructs the judge to state a reason for granting or denying the motion, usually by identifying the central issues, which can help the parties focus any further proceedings. Advisory Committee Notes to 2010 Amendments to Fed. R. Civ. P. 56(a). The judge is not obliged to search the record independently to determine whether there is a factual dispute for trial, but nonetheless may consider record materials the parties never called to the judge's attention. Advisory Committee Notes to 2010 Amendments to Fed. R. Civ. P. 56(c)(3). A formal affidavit is not required to support the motion; an unsworn declaration signed under penalty of perjury suffices, recognizing the status 28 U.S.C. 1746 gives to those statements. Fed. R. Civ. P. 56(c)(4). Even if the motion is not granted, or granted only in part, the judge may find that certain facts are undisputed and treat them as established. Fed. R. Civ. P. 56(g). Invoking this authority demands care, however. To limit litigation expenses, a nonmovant who feels confident a genuine dispute as to one or a few facts will defeat the motion may choose not to file a detailed response to all facts the movant stated. That choice should not expose the party to the risk that the additional facts will be treated as established under subdivision (g). Advisory Committee Notes to 2010 Amendments to Fed. R. Civ. P. 56(h).

The judge may sanction a party who submits an affidavit or declaration with its motion papers in bad faith or solely for delay. Fed. R. Civ. P. 56(h).

H. Additional Matters

Other portions of the FRCP have also undergone significant changes, including rules on the subjects of:

• Sanctions under Fed. R. Civ. P. 11 in 1993,
see
Edward D. Cavanagh,
Rule 11 of The Federal Rules of Civil Procedure: The Case Against Turning Back the Clock,
162 F.R.D. 383, 396 (1995); and

• Subpoenas under Fed. R. Civ. P. 45 in 1991,
see
David D. Siegel,

Federal

Subpoena Practice Under the New Rule 45 of The Federal Rules of Civil Procedure,

139 F.R.D. 197, 197 (1992).

The proposed revisions to Part 18, Subpart A reflect the general tenor of these amendments.

III. Evolution in Types of Cases

Congress has vested the Department (and therefore OALJ) with the responsibility to conduct formal hearings pursuant to more than 60 laws, including at least 19 that protect employees from retaliation for whistleblowing.

The bulk of hearings conducted by OALJ involve longshore workers' compensation and black lung benefits claims. This was true when OALJ's rules of practice were published in 1983 and is still true today.
3

These cases have benefited from having established rules of practice and procedure modeled on the FRCP. The evolution in the types of cases heard by OALJ, however, has resulted in a significant increase in hearings that are the functional equivalent of a civil trial in federal or state court, absent only the jury. In particular, whistleblower cases now account for a significant portion of OALJ's workload, disproportionate to their percentage of the overall docket. As noted above, many of the statutes creating the responsibility for whistleblower adjudication by the Department of Labor were promulgated after the Part 18, Subpart A rules were published in 1983. Nine whistleblower laws with the potential for ALJ hearings within the Department of Labor were enacted after the year 2000. Hearings arising under these statutes often involve complex fact patterns and novel legal issues. Overall, whistleblower litigation typically requires more extensive discovery, case management, motion work, summary decision practice, and time in trial than many of the other types of cases heard by OALJ.

3
OALJ also conducts administrative review in a large number of immigration-related appeals involving both permanent and temporary labor certification applications. Many of these reviews do not require an evidentiary hearing because the review is on the existing record.

Moreover, intensive litigation is typical in cases arising under the Defense Base Act. Although the Defense Base Act has been in existence since World War II, increasing use of contract services by the military and other parts of the federal government has resulted in significantly more hearings conducted by OALJ under that law in recent years. These cases tend not to settle, and therefore require more case management by judges as compared with other workers' compensation cases adjudicated by OALJ. OALJ also now conducts hearings involving labor condition applications of employers who employ H-1B nonimmigrant workers. OALJ's experience is that many of these cases do not settle; they also involve extensive procedural motions and multi-day hearings.

Thus, the change in the case mix before OALJ has heightened the need for procedural rules that are clearly written, permit improved and more consistent case management by judges, and are familiar to the national legal community under current federal court practice.

IV. Flexibility/Uniformity

Notwithstanding the variety of statutes and regulations that generate disputes at OALJ, the provisions of the Administrative Procedure Act at 5 U.S.C. 556 offer broad guidance to administrative law judges about how to conduct proceedings. Flexibility in applying procedural rules is desirable, so that judges manage litigation according to the needs of an individual case. The Department's opportunity to review the decision of its administrative law judges under 5 U.S.C. 557(b) safeguards a party from an abuse of that discretion.

Some cases by their nature need special management. For example, applying a general rule that sets the time to respond to formal discovery demands may be inappropriate in a case that demands expedited handling. A striking illustration of an expedited proceeding is one to review a denial of an employer's application to the Office of Foreign Labor Certification under 20 CFR 655.103 to certify the use of non-immigrant workers in temporary agricultural employment under the H-2A visa program of the Immigration & Nationality Act, 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1188(e). In such cases, the employer only has five business days to seek review of an application's denial under 20 CFR 655.141(b)(4) and 655.142(c). Where the employer requests administrative review, the judge has only five business days after receipt of the administrative file from the Office of Foreign Labor Certification to render a decision. 20 CFR 655.171(a) (2011). Where the employer requests de novo review, the Part 18, Subpart A rules apply, but the hearing must be convened within five business days after the administrative law judge receives the administrative file, and the decision must follow within ten calendar days. 20 CFR 655.171(b). Additionally, for some types of cases—for example, those adjudicated under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901
et seq.,
and its extensions such as the Defense Base Act, 42 U.S.C. 1651,
et seq.,
and the Black Lung Benefits Act, 30 U.S.C. 901
et seq.
—the Department's substantive regulations also include procedural provisions.
See
20 CFR parts 702 (Longshore) and 725 (Black Lung).

The proposed rules have been drafted to authorize a judge to tailor procedures to the case, through a prehearing order. A judge may take a broad range of actions under proposed § 18.50(b)(2) and (3). Parties may be ordered to confer about settlement early in the case, required to make prehearing disclosures without any formal discovery demand from the other party, and directed to draft a discovery plan. Yet the judge also may relieve the parties from the obligation to make initial disclosures, and alter the general limitations on the number of interrogatories and the number and length of depositions. This flexibility permits a judge to address, in an individualized way, the needs of any specific case. The judge also may address any regional differences in litigation practices that may require direction or clarification.

V. Clarity/Re-Organization

The FRCP underwent a complete revision that culminated in 2007 to improve their style and clarity. Restyled Federal Rules of Appellate Procedure took effect in 1998, as the restyled Federal Rules of Criminal Procedure did in 2002. Sources that guided drafting, usage, and style for all three revisions included the
Guidelines for Drafting and Editing Court Rules,
which the Standing Committee on Federal Rules of Practice and Procedure of the Judicial Conference of the United States published at 169 F.R.D. 171 (1997), and Bryan A. Garner's
A Dictionary of Modern Legal Usage
(2d ed. 1995). The purpose of the style revisions was twofold: to make the rules easier to understand, and to make style and terminology consistent throughout the rules.
See
Advisory Committee's Notes to the 2007 Amendments to Fed. R. Civ. P. 1. The restyled federal civil rules reduced the use of inconsistent, ambiguous, redundant, repetitive, or archaic words. For example, the restyled rules replaced “shall” with “must,” “may,” or “should,” as appropriate, based on which one the context and the established interpretation made correct.
Id.
The sole exception was the highly controversial restoration of the “shall” in Fed. R. Civ. P. 56(a) on summary judgment when it was amended in 2010. Advisory Committee's Notes to the 2010 Amendments to Fed. R. Civ. P. 56(a).

The drafting guidelines the authors of the 2007 style amendments used to

enhance the clarity and readability of the FRCP also were used as the Department revised Part 18, Subpart A. Proposed revisions typically are based on the text of the restyled federal civil rule for the corresponding subject, unless there was a reason to deviate from the federal rule's language. As one example, the word “court” is replaced throughout with the word “judge,” because administrative adjudications do not take place in a court. Where substantive deviations from the FRCP were made, the reason for the deviation is noted in the portion of the Notice of Proposed Rulemaking pertaining to the specific proposed rule. Where there is no corresponding federal civil rule, the Department used the FRCP drafting guidelines to revise the existing Part 18, Subpart A rules, to improve their clarity and internal consistency. The ordering of some rules was altered to improve the overall clarity of the Part 18, Subpart A regulations. A conversion table that shows the current Part 18, Subpart A rules and their corresponding proposed rule appears at the end of this Preface. In drafting the text of the proposed rules, the Department also took into account two Executive Orders:

• Executive Order 12866 (1993), which requires that regulations be “simple and easy to understand, with the goal of minimizing uncertainty and litigation * * * ” 58 FR 51735, sec. 1(b)(12), Sept. 30, 1993 (amended 2002 & 2007); and

• Executive Order 12988 (1996), which requires that regulations be written in “clear language.” 61 FR 4729, sec. 3(b)(2) (Feb. 5, 1996).

The Plain Writing Act of 2010, 5 U.S.C. 301, Public Law 111-274, 124 Stat. 2861 (2010), while not directly applicable to regulations, recognizes the value of plain writing in government documents by requiring clear, concise, and well-organized publications. The Office of Management and Budget has published a “Best Practices Guide for Regulations” available on the internet.
4

These proposed rules follow the guidance these sources offer.

4
This guide is available at
http://www.regulations.gov/exchange/sites/default/files/doc_files/20101130_eRule_Best_Practices_Document_rev.pdf.

Section 6(a) of Executive Order 13,563 (dated January 18, 2011), states: “To facilitate the periodic review of existing significant regulations, agencies shall consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” 76 FR at 3821. The Executive Order also requires each agency to prepare a plan for reviewing its regulations. Although the revision of Part 18, Subpart A began well before this recent Executive Order, the proposed revisions meet the Order's requirements, by replacing outmoded rules with a more-readily understandable version.

VI. Regulatory Review

A. Executive Order 12866 (Regulatory Planning and Review)

This proposed rule has been drafted and reviewed in accordance with Executive Order 12866. The Department of Labor, in coordination with the Office of Management and Budget (OMB), has determined that this proposed rule is not a “significant regulatory action” under Executive Order 12866, section 3(f) because rule because the rule will not have an annual effect on the economy of $100 million or more; nor create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; nor materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof. Furthermore, the rule does not raise a novel legal or policy issue arising out of legal mandates, the President's priorities or the principles set forth in this Executive Order. Accordingly, the proposed rule has not been reviewed by OMB.

B. Regulatory Flexibility Act/Small Business Regulatory Enforcement Fairness Act

The Department concludes that the Regulatory Flexibility Act, 5 U.S.C. 601
et. seq.
does not apply since the changes proposed here consist of amendments to rules of agency organization, procedure and practice, and consequently are exempt from the notice and public comment requirements of the Administrative Procedure Act,
see
5 U.S.C. 553(b)(3)(A).

C. Executive Order 12291 (Federal Regulation)

The Department has reviewed this rule in accordance with Executive Order 12291 and determined it is not a “major rule” under Executive Order 12291 because it is not likely to result in (1) An annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic or export markets. Accordingly, no regulatory impact analysis is required.

D. Unfunded Mandates Reform Act of 1995 and the Executive Order 13132 (Federalism)

The Department has reviewed this proposed rule in accordance with the requirements of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531
et seq.,
and Executive Order 13132. The Department concludes that the requirements of these provisions do not apply to the proposed rule, because the proposed rule does not place any mandate on State, local, or tribal governments.

E. Paperwork Reduction Act

The Department certifies that this proposed rule has been assessed in accordance with the requirements of the Paperwork Reduction Act, 44 U.S.C. 3501
et seq.
(1995)(PRA). The Department concludes that the requirements of the PRA do not apply to this rulemaking because this regulation does not contain any information collection requirements that require the approval of the Office of Management and Budget.

F. The National Environmental Policy Act of 1969 (Environmental Impact Assessment)

The Department has reviewed the proposed rule in accordance with the requirements of the National Environmental Policy Act (NEPA) of 1969, as amended (42 U.S.C. 4321
et seq.
) and the Department of Labor's NEPA procedures (29 CFR part 11). The Department concludes that the requirements of the NEPA do not apply to this rulemaking as there are no requirements or provisions contained in this proposed rule that involve assuring the maintenance of a healthful environment and there are no provisions impacting the responsibilities to preserve and enhance that environment contained herein and, thus, has not conducted an environmental assessment or an environmental impact statement.

G. The Privacy Act of 1974, 5 U.S.C. 552a, as Amended

The Department has reviewed this proposed rule in accordance with the Privacy Act of 1974, as amended (5 U.S.C. 552a). This rulemaking would not require any new process, filing or collection of any new information in the proceedings before the Office of

Administrative Law Judges and therefore, the Department has determined this proposed rule would not result in a new or revised Privacy Act System of Records.

H. Federal Regulations and Policies on Families

The Department has reviewed this proposed rule in accordance with the requirements of the Federal Regulations and Policies on Families, Section 654 of the Treasury and General Government Appropriations Act of 1999. These proposed regulations were not found to have a potential negative effect on family well-being as it is defined there under.

I. Executive Order 13045 (Protection of Children From Environmental Health Risks and Safety Risks)

The Department certifies that this proposed rule has been assessed regarding environmental health risks and safety risks that may disproportionately affect children. These proposed regulations were not found to have a potential negative effect on the health or safety of children.

J. Executive Order 12630 (Governmental Actions and Interference With Constitutionally Protected Property Rights)

The Department has reviewed this proposed rule in accordance with E.O. 12630 and has determined that it does not contain any “policies that have takings implications” in regard to the “licensing, permitting, or other condition requirements or limitations on private property use, or that require dedications or exactions from owners of private property.”

K. Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments)

The Department has reviewed this proposed rule in accordance with E.O. 13175 and has determined that it does not have “tribal implications.” The proposed rule does not “have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

L. Executive Order 12988 (Civil Justice Reform)

This regulation has been drafted and reviewed in accordance with Executive Order 12988, Civil Justice Reform, and will not unduly burden the Federal court system. The regulation has been written so as to minimize litigation and provide a clear legal standard for affected conduct, and has been reviewed carefully to eliminate drafting errors and ambiguities.

M. Executive Order 13211 (Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use)

The Department has reviewed this proposed regulation in accordance with Executive Order 13211 and determined that the proposed rule is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866, will not have a significant adverse effect on the supply, distribution, or use of energy, and has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action.

VII. Public Participation

A. APA Requirements for Notice and Comment

The changes proposed here consist of amendments to rules of agency organization, procedure and practice, and consequently are exempt from the notice and public comment requirements of the Administrative Procedure Act,
see
5 U.S.C. 553(b)(3)(A). However, the Department wishes to provide the public with an opportunity to submit comments on any aspect of the entire proposed rule.

B. Publication of Comments

Please be advised that the Department will post all comments without making any change to the comments, including any personal information provided. The
www.regulations.gov
Web site is the Federal e-rulemaking portal and all comments received electronically or by mail, hand delivery, express mail, messenger or courier service are available and accessible to the public on this Web site. Therefore, the Department recommends that commenters safeguard their personal information by not including social security numbers, personal addresses, telephone numbers, and email addresses in comments. It is the responsibility of the commenter to safeguard his or her information.

C. Access to Docket

In addition to all comments received by the Department being accessible on
www.regulations.gov,
the Department will make all the comments available for public inspection during normal business hours at the above address. If you need assistance to review the comments, the Department will provide you with appropriate aids such as readers or print magnifiers. The Department will make copies of the proposed rule available, upon request, in large print or electronic file on computer disc. The Department will consider providing the proposed rule in other formats upon request. To schedule an appointment to review the comments and/or obtain the proposed rule in an alternate format, contact Todd Smyth at the U.S. Department of Labor, Office of Administrative Law Judges, 800 K Street NW., Suite 400-North, Washington, DC 20001-8002; telephone (202) 693-7300.

Part 18, Subpart A—Cross Referencing Chart

New
section

New section title
Old section
Old section title

Federal rule of civil
procedure

GENERAL PROVISIONS

18.10
Scope and purpose
18.1/18.26
Scope of rules and conduct of hearings
Fed. R. Civ. P. 1

18.11
Definitions
18.2
Definitions

18.12
Proceedings before administrative law judge
18.25/18.29(a)
Proceedings before administrative law judge/authority of the administrative law judge

18.13
Settlement judge procedure
18.9
Consent order or settlement; settlement judge procedure

18.14
Ex parte communication
18.38
Ex parte communications

18.15
Substitution of administrative law judge
18.30
Unavailability of administrative law judge
Fed. R. Civ. P. 63

18.16
Disqualification
18.31
Disqualification

18.17
Legal assistance
18.35
Legal assistance

PARTIES AND REPRESENTATIVES

18.20
Parties to a proceeding
18.10
Parties, how designated

18.21
Party appearance and participation
18.39/18.34(a)
18.39, Waiver of right to appear and failure to participate or to appear—text was incorporated into proposed “participation” rule

18.22
Representatives
18.34
Representatives

18.23
Disqualification and discipline of representatives

18.24
Briefs from amicus curiae
18.12
Amicus curiae

SERVICE, FORMAT AND TIMING OF FILINGS AND OTHER PAPERS

18.30
Service and filing
18.3
Service and filing
Fed. R. Civ. P. 5

18.31
Privacy protection for filings and exhibits

Fed. R. Civ. P. 5.2

18.32
Computing and extending time
18.4
Time computations
Fed. R. Civ. P. 6

18.33
Motions and other papers
18.6
Motions and requests
Fed. R. Civ. P. 7(b) & 43(c)

18.34
Format of papers filed

18.35
Signing motions and other papers; representations to the judge; sanctions

Fed. R. Civ. P. 11

18.36
Amendments after referral to the Office of Administrative Law Judges
18.5
Responsive pleadings—answer and request for hearings

PREHEARING PROCEDURE

18.40
Notice of hearing
18.27
Notice of hearing

18.41
Continuances and changes in place of hearing
18.28
Continuances

18.42
Expedited proceedings
18.42
Expedited proceedings

18.43
Consolidation; separate hearings
18.11
Consolidation of hearings
Fed. R. Civ. P. 42

18.44
Prehearing conference
18.8
Prehearing conferences
Fed. R. Civ. P. 16

DISCLOSURE AND DISCOVERY

18.50
General provisions governing disclosure and discovery

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

18.51
Discovery scope and limits
18.14
Scope of discovery
Fed. R. Civ. P. 26(b)

18.52
Protective orders
18.15
Protective orders
Fed. R. Civ. P. 26(c)

18.53
Supplementing disclosures and responses
18.16
Supplementation of responses
Fed. R. Civ. P. 26(e)

18.54
Stipulations about discovery and procedure
18.17
Stipulations regarding discovery
Fed. R. Civ. P. 29

18.55
Using depositions at hearings
18.23
Use of depositions at hearings
Fed. R. Civ. P. 32

18.56
Subpoena
18.24
Subpoenas
Fed. R. Civ. P. 45

18.57
Failure to make disclosures or to cooperate in discovery; sanctions
18.21
Motion to compel discovery
Fed. R. Civ. P. 37

TYPES OF DISCOVERY

18.60
Interrogatories to parties
18.18
Written interrogatories to parties/
Fed. R. Civ. P. 33

18.61
Producing documents, electronically stored information, and tangible things, or entering onto land, for inspection and other purposes.
18.19
Production of documents and other evidence; entry upon land for inspection and other purposes; and physical and mental examination
Fed. R. Civ. P. 34

18.62
Physical and mental examinations
18.19
Production of documents and other evidence; entry upon land for inspection and other purposes; and physical and mental examination
Fed. R. Civ. P. 35

18.63
Requests for admission
18.20
Admissions
Fed. R. Civ. P. 36

18.64
Depositions by oral examination
18.22
Depositions by oral examinations
Fed. R. Civ. P. 30

18.65
Depositions by written questions

Fed. R. Civ. P. 31

DISPOSITION WITHOUT HEARING

18.70
Motions for dispositive action

18.71
Approval of settlement and consent findings
18.9

18.72
Summary decision
18.40/18.41

18.40, Motion for summary decision
merged with
18.41, Summary decision

Fed. R. Civ. P. 56

HEARING

18.80
Prehearing statement
18.7
Prehearing statements

18.81
Formal hearing
18.43
Formal hearings
Fed. R. Civ. P. 43(a)

18.82
Exhibits
18.47/18.48 18.49/18.50
Exhibits/records in other proceedings/designation of parts of documents/authenticity

18.83
Stipulations
18.51
Stipulations

18.84
Official notice
18.45
Official notice

18.85
Privileged, sensitive, or classified materials
18.46/18.56
In camera and protective orders/restricted access

18.86
Hearing room conduct
18.37
Hearing room conduct

18.87
Standards of conduct
18.36
Standards of conduct

18.88
Transcript of proceedings
18.52
Record of hearings

POST HEARING

18.90
Closing the record; additional evidence
18.54/18.55
Closing the record/receipt of documents after hearing

18.91
Post-hearing brief
18.57
Decision of the administrative law judge and post-hearing briefs

18.92
Decision and order
18.57
Decision of the administrative law judge and post-hearing briefs

18.93
Motion for reconsideration

Fed. R. Civ. P. 59(e)

18.94
Indicative ruling on a motion for relief that is barred by a pending petition for review

Fed. R. Civ. P. 62.1

18.95
Review of Decision
18.58
Appeals

DELETED SECTIONS

Deleted
18.13
Discovery methods

Deleted
18.32
Separation of functions

Deleted
18.33
Expedition

Deleted
18.53
Closing of hearings

Deleted
18.59
Certification of official record

General Provisions

§ 18.10 Scope and purpose.

The Department proposes to remove the current § 18.1 and add § 18.10. The proposed § 18.10 is modeled after Fed. R. Civ. P. 1.

As in the current rule, the proposed rule states that in the event the procedures in Part 18, Subpart A are inconsistent with a governing statute, regulation, or executive order, the latter controls. The Department recognizes that specific procedural regulations have already been promulgated for some statutes under which administrative law judges adjudicate cases, and that these regulations may prescribe procedures inconsistent with these proposed rules. The Department has found that the phrase “rule of special application” has not clearly conveyed the intent of this sentence. Thus, proposed § 18.10 rephrases this sentence as follows: “To the extent that these rules may be inconsistent with a governing statute, regulation, or executive order, the latter controls. If a specific Department of Labor regulation governs a proceeding, the provisions of that regulation apply, and these rules apply to situations not addressed in the governing regulation.”

Subdivision (a) recognizes that some of the Department's regulations involving proceedings before OALJ include extremely detailed procedures and requirements. These rules do not address requirements that are specific to certain types of cases. For example, the regulations for Black Lung compensation benefits proceedings, at 20 CFR parts 718 and 725, include specific evidentiary limitations (
see
20 CFR 725.414). Similarly, the regulations in both Black Lung and Longshore compensation cases require that hearings be held within 75 miles of the claimants residence if possible.
See
20 CFR 725.454(a), 702.337(a).

Additionally, the Department recognizes that the provisions of a specific regulation may be inconsistent with these rules. In such event, the specific regulation—and not these rules—applies. For example, in a case arising under the Black Lung Benefits Act, there is inconsistency between the regulation at proposed § 18.93,
Motion for reconsideration,
which provides parties 10 days after service of the judge's decision and order to file a motion for reconsideration, and the black lung regulation at 20 CFR 725.479(b), which provides 30 days after the filing of the judge's decision and order to file a motion for reconsideration. Because the regulations at 20 CFR part 725 govern proceedings arising under the Black Lung Benefits Act, the regulation at sec. 725.479(b) would control.

The Department proposes to relocate the language from current § 18.26 to proposed § 18.10 because it is more properly located with the other general guiding principles. The Department proposes to clarify the meaning of

current § 18.26 under subdivision (b). First, current § 18.26 only references sec. 554 of the APA. However, Subchapter II of Chapter 5 of the APA determines how the entire proceeding, including the hearing, will be conducted. Accordingly, the proposed rule revises and expands the reference to include all of Subchapter II, instead of only referencing sec. 554. Second, Subchapter II instructs how the entire proceeding should be conducted; accordingly, the reference to hearings in the current rule was changed to proceedings in order to encompass the entire process of adjudicating a case before OALJ.

The current § 18.1(b)—renumbered as § 18.10(c)—is revised to improve the clarity of the rule. The Department does not propose changes to the judge's ability to waive, modify, or suspend the rules by these revisions.

§ 18.11 Definitions.

The Department proposes to revise the current § 18.2 and renumber it as § 18.11. The definitions in § 18.2 supplement the definitions stated in sec. 551 of the Administrative Procedure Act. The Department proposes to amend the opening sentence of this section by referencing the definitions provided in sec. 551 of the Administrative Procedure Act. The definitions in sec. 551 apply to OALJ proceedings.

The Department proposes to delete the following terms from the current § 18.2: (a),
Adjudicatory proceeding;
(c),
Administrative Procedure Act;
(d),
Complaint;
(g),
Party;
(h),
Person;
(i),
Pleading;
(j),
Respondent;
(k),
Secretary;
(l),
Complainant;
(m),
Petition;
(n),
Consent Agreement;
(o),
Commencement of Proceeding.
Except for the “Administrative Procedure Act,” those terms are no longer used in the proposed revisions to the rules or sec. 551 of the APA defines the term. When a proposed section references the Administrative Procedure Act, the name of the Act and the appropriate section number is stated.

The Department proposes to define the following terms that are not defined by the APA: (a),
Calendar call;
(b),
Chief Judge;
(c),
Docket clerk;
and (h),
Representative.
The terms “calendar call,” “docket clerk” and “representative” are used with more frequency in the proposed revision of the rules. The Department proposes to define “Chief Judge” to clarify that the term also includes a judge to whom the Chief Judge delegates authority. The Department proposes to define “representative” to clarify that, unless otherwise specified, the term applies to all representatives who represent a person or party before OALJ. The Department proposes to define “docket clerk” to clarify current practice before OALJ. When a case is first filed with OALJ it is received by the Chief Docket Clerk in the national office located in Washington, DC. But once a case is assigned to a judge in a district office all filings should be made with the docket staff in that office.

The Department proposes to amend the definitions of the following terms to improve clarity and specificity: (d),
Hearing;
(e),
Judge;
(f),
Order;
and (g),
Proceeding.
The Department proposes to expand the definition of “hearing” to encompass more than sessions where evidence is submitted. Hearings to determine issues of fact may rely on official notice rather than oral testimony subject to cross examination, and hearings to determine issues of law may not require the submission of evidence. The Department proposes to revise the definition of “judge” to eliminate the reference in the current rule to presiding officers not appointed as administrative law judges pursuant to 5 U.S.C. 3105.

The Department proposes to revise the definition of “order” and delete the reference in the current rule to rulemaking. The Part 18, Subpart A rules and these proposed revisions apply to the adjudication of cases and not rulemaking. This reference is therefore superfluous. The Department proposes to revise the definition of “proceeding” to avoid defining a term using the term itself; the proposed definition provides a more accurate definition, one that includes the creation of a record leading to an adjudication or order.

§ 18.12 Proceedings before administrative law judge.

The Department proposes to revise the current §§ 18.25 and 18.29(a) and combine the content into proposed § 18.12.

The proposed § 18.12 is divided into two subdivisions: designation and authority. The Department proposes to relocate the content of current § 18.25 to proposed § 18.12(a). This section incorporates the revised definition of “judge” and “Chief Judge” from proposed § 18.11.

The Department proposes to relocate the content of current § 18.29(a) to proposed § 18.12(b). The enumerated powers of the judge in the proposed subdivision (b) are similar to those listed in sec. 556 of the APA (5. U.S.C. 556) and those listed in the current § 18.29(a), except for stylistic changes. For example, proposed subparagraphs (b)(4), (b)(5) and part of (b)(2) are taken directly from sec. 556. Under subdivision (b), the Department clarifies that OALJ may conduct hearings as determined by the Secretary of Labor when no statute entitles a person to an “on the record” hearing. The proposed subparagraph (b)(1) is meant to clarify the administrative law judge's powers to regulate both formal and informal proceedings, including setting prehearing conferences, and when appointed as a settlement judge, to conduct settlement conferences. The current § 18.29 (a)(1) only addresses formal hearings. The current § 18.29(a)(6) and (a)(9) has been deleted because these provisions are redundant of the proposed introductory statement.

The difference between paragraph (b)(3) and (b)(4) is that the former applies to parties to the cause of action whereas the later applies to non-parties. Under (b)(3) judges have the authority to grant motions to compel a party to respond to a request for the production of documents, requests for written responses to interrogatories, requests for admission, and attendance at a proceeding. Issuing subpoenas authorized by law is the only way a judge can exercise control over non-parties.

The Department proposes to delete current § 18.29(b), because its content is addressed in the applicable statutes (e.g., 33 U.S.C. 927(b)(Longshore and Harbor Workers' Compensation Act).

§ 18.13 Settlement judge procedure.

The Department proposes to revise the current § 18.9 and renumber it as proposed § 18.13.

There are three topics addressed in the current § 18.9: (1) Motions for consent findings and order; (2) approval of settlement agreements; and (3) the settlement judge procedure. Motions for approval of a settlement agreement and for a consent finding and order (current § 18.9 (a)-(d)) are now addressed in the proposed § 18.71,
Approval of settlement or consent findings
). Proposed § 18.13 provides the procedures for parties wishing to use the settlement judge process. The revisions to the previous subdivision (e) are largely structural and stylistic.

Under proposed subdivision (c) the Department proposes to extend the number of days for the settlement proceeding from 30 to 60 days. Based on OALJ's experience related to Longshore and Harbor Worker's Compensation Act cases, 30 calendar days is not enough time to complete a settlement agreement. For example, parties may need more than 30 days in cases dealing with location issues, or Medicare set asides, or in international negotiations under the Defense Base Act.

The Department proposes to delete the cross-referencing clause in current subdivision (d) because it is inherent within the rule that a settlement judge's powers terminate immediately if settlement negotiations are terminated.

Under proposed subdivision (f) the Department proposes to provide the settlement judge the option of conducting the settlement conference in the manner he or she considers most appropriate, giving the settlement judge wider discretion over the mode of the settlement conference. The current § 18.9 requires the settlement judge to conduct the settlement conference by telephone, except in specific situations. The Department determined that telephone conferences have not been the most expedient way to conduct settlement conferences; therefore the proposed change expands the judge's authority to determine what process the parties want to use and to best utilize changing technology.

Under the proposed subdivision (g) the Department proposes to delete the language in current § 18.9(e)(8) regarding the inadmissibility of settlement statements and conduct because the confidentiality of dispute resolution communications is now extensively addressed by the Administrative Dispute Resolution Act.
See
5 U.S.C. 574.

The Department proposes to delete the current § 18.9(e)(9) because the requirements for a consent order or settlement agreement are generally covered by the governing statute or implementing regulation. This language is possibly misleading because it implies that all settlements must have the elements of consent findings. There are also additional requirements found in specific regulations.
See, e.g.,
Clean Air Act 29 CFR 1979.11(d)(2) and Longshore and Harbor Worker's Compensation Act 20 CFR 702.242 and 702.243.

The language from the current § 18.9(e)(10) is relocated to proposed subdivision (h). The Department is extending the period of time parties have to submit the required settlement documents to the presiding judge from 7 days to 14 days. This will allow parties additional time to draft the settlement documents and will decrease the number of requests for an extension of time.

§ 18.14 Ex parte communication.

The Department proposes to revise the current § 18.38 and renumber it as proposed § 18.14.

The Department proposes stylistic changes to the current § 18.38, specifically subdivision (a). The language in the proposed rule clarifies that the prohibition against ex parte communication applies to the parties, their representatives, and other interested persons, as well as the judge. The Department proposes to change “any person” to “interested persons” to be consisted with the Administrative Procedure Act.
See
5 U.S.C. 557(d)(1)(A).

The Department proposes to delete the description of ex parte communication; however, this change is not intended to change the definition of ex parte communication. The notification of procedural request requirement is now covered by proposed §§ 18.33,
Motions and other papers,
and 18.41,
Continuances and changes in place of hearing.

The Department deleted the current subdivision (b),
Sanctions,
because sanctions are covered in applicable statutes. In particular, the Administrative Procedure Act provides an option of imposing sanctions following ex parte communications if sufficient grounds exist.
See
5 U.S.C. 556(d)(2000); 5 U.S.C. 557(d)(1). Section 5 U.S.C. 557(d)(1)(D) gives the administrative law judge broad authority to sanction any knowing violation of the APA's prohibition on ex parte contacts. Accordingly, it is unnecessary to repeat the statute in these regulations.

§ 18.15 Substitution of administrative law judge.

The Department proposes to revise the current § 18.30 and renumber it as proposed § 18.15.

The Department proposes to change the title of this section to “Substitution of administrative law judge” to more accurately reflect the procedure provided by the rule—how a substitute judge is appointed when the presiding judge becomes unavailable.

The Department proposes a revision to the current subdivision (a) modeled after Fed. R. Civ. P. 63. The Department proposes to require the successor judge to certify that he or she is familiar with the record before continuing with the presentation of the evidence. Included in this subpart is a reference to proposed § 18.12, the section that defines the procedure for appointing a judge to a case.

Under the proposed subdivision (b), the Department proposes to codify the longstanding Department of Labor policy, based on
Strantz
v.
Director,
OWCP, 3 B.L.R. 1-431 (1981), of notifying the parties that the original judge is no longer available, allowing them to object to the successor judge issuing a decision based on the existing record, and ordering supplemental proceedings upon a showing of good cause.

Finally, administrative need within OALJ routinely requires that cases be reassigned among judges prior to the submission of evidence, such as where a case is continued prior to a scheduled docket. The proposed § 18.15 does not affect those reassignments.

§ 18.16 Disqualification.

The Department proposes to revise the current § 18.31 and renumber it as proposed § 18.16. The proposed revisions are largely stylistic.

Under subdivision (a), the Department proposes to delete the current notice requirement; however, this is not a procedural change. Parties will be notified when a presiding judge has disqualified himself or herself in due course with the appointment of a new judge.

The current § 18.31 requires a motion to disqualify to be accompanied by a supporting affidavit. The Department proposes to clarify in § 18.16(b) that as an alternative or addition to a supporting affidavit a motion to disqualify may be accompanied by supporting declarations or other documents. A presiding judge who receives a motion to disqualify must rule on the motion in a written order that states the grounds for the ruling.

The Department proposes to delete the current subdivision (c), which provides that the Chief Judge will appoint a new presiding judge if a judge recuses himself or herself. This procedure is covered by the substitution provisions of proposed § 18.15 and, therefore, is superfluous here.

§ 18.17 Legal assistance.

The Department proposes to revise the current § 18.35 and renumber it as proposed § 18.17. The Department proposes largely stylistic revisions to this section. The rule continues to be that OALJ does not appoint representatives or refer parties to representatives. In addition, the Department proposes to revise this section to expressly state that OALJ does not provide legal assistance to parties. The Department proposes to change the reference to “counsel” to “representative” because the former is too narrow and does not include non-attorney representatives.

Parties and Representatives

§ 18.20 Parties to a proceeding.

The Department proposes to revise the current § 18.10 and renumber it as proposed § 18.20.

The Department proposes to delete the definition of “party” in the current subdivision (a) because this definition is provided in the APA.
See
5 U.S.C. 551(3).

The current § 18.10 includes provisions regarding how a party may intervene in a case. The Department proposes to delete subdivisions (b)-(d) because impleading and intervention are rare circumstances before OALJ. If circumstances require, then the parties or judge may refer to the Fed. R. Civ. P. 19,
Required joinder of parties,
Fed. R. Civ. P. 20,
Permissive joinder of parties,
and Fed. R. Civ. P. 24,
Intervention.
As set forth in proposed § 18.10(a) the rules of civil procedure will apply to circumstances not covered by the Department's rules.

§ 18.21 Party appearance and participation.

The Department proposes to revise and combine the current §§ 18.34(a) and 18.39 into proposed § 18.21,
Party appearance and participation,
because both address a party's right to appear.

The Department proposes to relocate the content from the current § 18.34(a) to proposed § 18.21(a). This subpart states that a party has a right to appear and participate in a proceeding in person or through a representative. The enumeration of the rights currently included in § 18.34(a) is summarized by the words “appear and participate in the proceeding.” The current § 18.34(a) addresses the possible actions a party may take during the course of a proceeding as provided by the rules. The Department proposes to delete this language because these actions are covered by other sections within the Rules, most specifically within Title III: Filings, Title V: Discovery, and Title VIII: Hearings.

The proposed subdivisions (b) and (c) are based on the current § 18.39(a) and (b), respectively. The Department has removed the 10-day timeframe with the intention that the presiding judge will set an appropriate time for response.

§ 18.22 Representatives.

The Department proposes to revise the current § 18.34 and renumber it as proposed § 18.22.

The Department proposes to narrow the scope of proposed § 18.22 so that it functions as a list of qualifications and duties for attorneys and non-attorney representatives who represent parties before OALJ. The content from the current subdivision (a) is not included in proposed § 18.22, as explained in the note to the proposed § 18.21,
Party appearance and participation.

The Department proposes not to include the content from current subdivisions (c) through (f) in proposed § 18.22 because the substantive rights of parties and subpoenaed witnesses are delineated by other regulations under Part 18, Subpart A.

The Department proposes to relocate the current subdivision (b) to subdivision (a),
Notice of appearance.
Under the proposed subdivision (a), the Department clarifies that each representative must file a “notice of appearance” when first making an appearance and that the notice is to include the statements and documentation required for admission to appear as either an attorney or non-attorney representative. This provision codifies current practice and clarifies the timing of when the “notice of appearance” must be filed.

The Department proposes to relocate the current subdivision (g) to proposed subdivision (b), Categories of representation; admission standard. Under proposed paragraph (b)(1), the Department defines the terms “attorney” and “attorney representative” under the proposed rules. The current § 18.34(g) uses the phrase “attorney at law” to describe whose appearance is governed by current subsections (g)(1) and (g)(2); however, the Department proposes to delete this phrase from the proposed rules because it is ambiguous. As in the current § 18.34, an attorney who is in good standing in his or her licensing jurisdiction may represent a party or subpoenaed witness. An attorney's own representation of good standing is sufficient proof thereof, unless otherwise directed by the judge. Under new subparagraph (b)(1)(B), an attorney who is not in good standing in his or her licensing jurisdiction will not be permitted to appear before OALJ unless that attorney establishes in writing why the failure to maintain good standing is not disqualifying.

The Department proposes to add a new provision under subparagraph, (b)(1)(C)
Disclosure of discipline,
that places the duty on an attorney to promptly disclose to the judge any current action suspending, enjoining, restraining, disbarring, or otherwise restricting him or her in the practice of law.

Under the proposed paragraph (b)(2), the Department clarifies that an individual who is not an attorney may represent a party or a subpoenaed witness upon the judge's approval. The Department proposes to clarify what information must be included in a written request to serve as a non-attorney representative and provides the standard the judge will use to determine whether the non-attorney representative has the qualifications or ability to render assistance. The judge may deny a person's request to serve as a non-attorney representative only after providing the party or subpoenaed witness with notice and an opportunity to be heard.

The Department proposes to add subdivisions (c),
Duties,
(d),
Prohibited actions,
and (e),
Withdrawal of appearance,
to proposed § 18.22. In subdivision (c), the Department determined that the best approach to determining the governing code of conduct is to require attorneys to adhere to the rules of conduct of their licensing jurisdiction. Under subdivision (d), the Department proposes to state specific actions a representative is prohibited from taking while representing a party before OALJ. The proposed subdivision (e) provides the procedure for a representative of record to withdraw as a representative before OALJ and codifies current practice.

§ 18.23 Disqualification and discipline of representatives.

The Department determined that a separate rule identifying the grounds and creating procedures for disqualification of a representative was appropriate. The proposed § 18.22,
Representatives,
addresses a representative's qualifications and duties. The proposed § 18.87,
Standards of conduct,
creates a procedure for excluding a party or representative for poor behavior during the course of a particular proceeding. The Department determined that the grounds and procedures for disqualifying a representative are distinct and separate from the concepts addressed in the current §§ 18.34 and 18.36, and, accordingly, proposes § 18.23.

The proposed § 18.23 deals with both the disqualification of lawyers from practicing before the Department because professional discipline has been imposed on them in other jurisdictions, and discipline the Department itself may impose on lawyers or other representatives who misbehave during administrative litigation.

Lawyers traditionally have been regulated under a state-centered regime of professional self-regulation, in which federal administrative agencies played no role. State supreme courts, the admitting and disciplinary authority for their states' lawyers, often delegate to the state bar association the regulatory task of writing advisory ethics opinions; they also rely heavily on the American Bar Association to develop model ethics

rules and to suggest how to structure their systems of lawyer discipline.

Administrative agencies may discipline lawyers who represent clients before them. Before the advent of the Administrative Procedure Act, the U.S. Supreme Court recognized that quasi-judicial agencies empowered to adopt rules of procedure could set admission requirements.
Goldsmith
v.
U.S. Bd. of Tax Appeals,
270 U.S. 117, 122 (1926). The legislative history of sec. 6(a) of the federal Administrative Procedure Act “leaves no doubt that Congress intended to keep unchanged the agencies' existing powers to regulate practice before them.” 5 U.S.C. 555(b); Attorney General's Manual on the Administrative Procedure Act (U.S. Dep't of Justice 1947) (hereinafter Attorney General's Manual), at 65.

Congress later abolished nearly all agency requirements for admission to practice with the Agency Practice Act of 1965. 5 U.S.C. 500(b), first enacted in Public Law 89332, 79 Stat. 1281, later incorporated into the U.S. Code by Public Law 9083, 81 Stat. 195 (Sept. 11, 1967) (with minor stylistic changes).
See also
the Report to Accompany S. 1758, House Committee on the Judiciary, H.R. Rep. No. 1141, 89th Cong., 1st Sess.(1965),
reprinted in
1965 U.S. Code Cong. & Admin. News, 89th Cong., 1st Sess at 4170. Any lawyer who is a member in good standing of a state bar could practice before federal agencies, unless an agency is authorized to impose additional requirements, something Congress did for the Patent and Trademark Office. 5 U.S.C. 500(d)(4). The Agency Practice Act is neutral on the authority of agencies to discipline representatives, including lawyers. 5 U.S.C. 500(d)(2) (stating that the Agency Practice Act does not “authorize or limit the discipline, including disbarment, of individuals who appear in a representative capacity before an agency.”). The courts of appeals read the authority to adopt rules of practice and procedure as power to discipline the wayward, to protect the integrity of the agency's procedures and the public generally.
Polydorff
v.
ICC,
773 F.2d 372 (DC Cir. 1985) (upholding the authority of the ICC to discipline an attorney);
Touche Ross & Co.
v.
SEC,
609 F.2d 570, 581-582 (2d Cir. 1979) (upholding the authority of the SEC to discipline accountants who practice before it);
Koden
v.
U.S. Dep't of Justice,
564 F.2d 228 (7th Cir. 1977) (upholding the authority of the Immigration and Naturalization Service to discipline attorneys who appeared before it).

According to the Reporter for the American Bar Association Special Committee on Evaluation of Ethical Standards, who drafted the Model Code of Professional Responsibility a generation ago, the ABA has long stated that its ethical standards apply to the conduct of lawyers before all adjudicatory entities. Michael P. Cox, Regulation of Attorneys Practicing Before Federal Agencies, 34 Case W. Res. L. Rev 173, 202 & n. 132 (1982). The ABA Model Rules of Professional Conduct were adopted by the ABA House of Delegates in 1983, and have been amended several times thereafter. They serve as models for the legal ethics rules of most states. The current ABA Model Code of Professional Conduct (2010) imposes many obligations on trial lawyers. Among them are duties to exhibit candor; to follow procedural rules; to deal fairly with opposing parties and their lawyers, including the obligation to turn over evidence in discovery and refrain from altering evidence; and to avoid disruptive behavior.
See
Model Rules 3.3; 8.4 (c) and (d); 3.4(a) and (c); and 3.5(d). All apply to lawyers who practice before “tribunals,” a term that specifically embraces administrative agencies as well as courts.
See
Model Rule 1.0(m).

The Department proposes to divide § 18.23 into four subdivisions: (a),
Disqualification,
(b),
Discipline,
(c),
Notification,
and (d),
Reinstatement.
Under subdivision (a), the Department proposes to regulate lawyers who gained the right to practice before the Department through admission to the bar of the highest court of a State or similar governmental unit, but lost it or had the right to practice limited due to a criminal conviction or proven professional misconduct. The Department proposes that representatives qualified under proposed § 18.22 may be disqualified upon conviction of any of the serious crimes described in subparts (a)(1)(A) and (B).

A lawyer may also become disqualified under subparts (a)(1)(C) and (D), as reciprocal discipline when another jurisdiction finds the lawyer guilty of professional misconduct, or the lawyer consents to disbarment, suspension, or resigns while an investigation into allegations of misconduct is pending. Federal courts routinely enforce reciprocally any limitations on practice state courts have imposed, after satisfying themselves that those disciplinary proceedings met the substantive requirements the U.S. Supreme Court set nearly a century ago in
Selling
v.
Radford,
243 U.S. 46 (1917). The Department has relied on this rule, and given reciprocal effect to discipline state courts imposed on lawyers who have appeared before the Department's administrative law judges.
In The Matter of the Qualifications of Edward A. Slavin, Jr.,
ARB Case No. 05-003, OALJ Case No. 2004-MIS-5 (Nov. 30, 2005),
also available
at 2005 WL 3263825 (DOL Adm.Rev.Bd).

Lawyers who litigate before the Department are expected to adhere to the rules of conduct promulgated by the jurisdiction(s) where they are admitted to practice, which typically are founded on the American Bar Association's Model Rules of Professional Conduct. Contumacious behavior, the violation of the rules of practice the Department has adopted, or failure to follow the procedural dictates of a governing statute, program regulation or of a judge's order also opens the lawyer to discipline by the Department.
See
proposed § 18.23 (b)(1). State supreme courts have disciplined lawyers for misconduct in litigation before the Department.

Under paragraph (a)(2), the Chief Judge must provide notice and an opportunity to be heard as to why the representative should not be disqualified from practice before the Office of Administrative Law Judges. The Chief Judge's determination must be based on the “reliable, probative and substantial evidence of record, including the notice and response.”

Under subdivision (b), the Department proposes the procedure for disciplinary proceedings initiated because of a representative's conduct before OALJ. The disciplinary procedure is structured so that the representative's conduct and defense will be reviewed by a presiding judge, who applies the APA's review standard of reliable, probative, and substantial evidence of record. The representative may appeal the presiding judge's decision to the Chief Judge who reviews the decision under the substantial evidence standard. The Chief Judge's decision is not subject to review within the Department of Labor. The proposed § 18.95,
Review of Decision,
provides that the statute or regulation that conferred hearing jurisdiction provides the procedure for review of a judge's decision. If the statute or regulation does not provide a procedure, the judge's decision becomes the Secretary's final administrative decision.

Under subdivision (c), the Department proposes to provide notice that when an attorney representative is suspended or disqualified by OALJ, the Chief Judge will alert the attorney's licensing jurisdiction(s) and the National Lawyer Regulatory Data Bank by providing a copy of the decision and order. The National Lawyer Regulatory Data Bank is the national clearing house of

disciplinary information, maintained by the American Bar Association Standing Committee on Professional Discipline. All states and the District of Columbia, as well as many federal courts and some agencies, provide disciplinary information to the Data Bank.
See

http://www.americanbar.org/groups/professional_responsibility/services/databank.html
.

Under subdivision (d), the Department proposes the procedure a representative suspended or disqualified under this section must follow to request reinstatement to practice before OALJ.

§ 18.24 Briefs from amicus curiae.

The Department proposes to delete the current § 18.12 and replace it with proposed § 18.24.

The title of § 18.24 was drafted to emphasize that an amicus curiae may participate in a proceeding only by filing a brief. The final statement that an amicus curiae brief must be filed by the close of the hearing was added to provide a timeframe for filing. If an amicus curiae wishes to participate in the formal hearing, then the person or organization must petition the judge to participate as an intervenor.

Service, Format and Timing of Filings and Other Papers

§ 18.30 Service and filing.

The Department proposes to revise the current § 18.3 and renumber it as proposed § 18.30. The proposed § 18.30 is modeled after Fed. R. Civ. P. 5. In the current Part 18, Subpart A rules service and filing requirements are listed under several sections. The Department proposes to delete those references and have this section address all the general service and filing procedures.

Similar to Fed. R. Civ. P. 5, the Department proposes to restructure the current § 18.3 into two subparts: (a),
Service on parties
and (b),
Filing with Office of Administrative Law Judges.
Portions of the current subdivision (a) and subdivision (e) that address the actual form of filings are not included in proposed § 18.30 and are instead addressed in proposed § 18.34,
Format of papers filed.
For example, current subdivision (a) states: “All documents should clearly designate the docket number, if any, and short title of the matter.” This language is included in proposed § 18.34.

The Department proposes to incorporate the content from the current subdivision (d) into proposed subdivision (a) because the service process is the same for all papers, including complaints.

Under subdivision (a), the Department proposes to provide general guidance on how parties are served. The Department proposes to add a certificate of service requirement under subparagraph (a)(3). The current Part 18, Subpart A does not define a certificate of service, so including the definition in the service and filing section clarifies the requirements of certifying that a paper was served on another party. In the past, pro se parties before OALJ have failed to provide certificates of service, requiring judges to follow up with the other parties to the case to verify that a paper was served.

In order to distinguish between a clerk employed at a party's place of business and the OALJ clerk who receives documents for the Office, the Department proposes to amend item (a)(2)(B)(iv) and paragraph (b)(2) by adding the term “docket clerk.” Docket clerk is defined in proposed § 18.2,
Definitions,
to clarify that the docket clerk is the Chief Docket Clerk at the Office of Administrative Law Judges in Washington, DC or, once a case is assigned to a judge in a district office, the docket staff in that office.

Under proposed subdivision (b), the Department specifies the procedure for filing papers with OALJ. Under subparagraph (b)(1), parties are required to file within a reasonable time papers served on other parties or participants. However, like the current rule, parties are not required to file discovery documents, unless the judge orders or the party uses them in the proceeding. The required filing provision also extends to any required disclosures ordered by the judge under § 18.50,
General provisions governing discovery and disclosure.

The Department proposes to provide the procedure for filing by facsimile in proposed subparagraph (b)(3)(A)—currently subdivision (f). In recognition of OALJ's nationwide jurisdiction and circumstances requiring last-minute filings, the Department proposes to clarify that parties may file by facsimile only as directed or permitted by the judge.

The Department proposes to relocate the content from the current subdivisions (f)(6) and (g) to proposed subdivision (b) because theses subdivisions address those parts of the filing process.

The Department proposes to delete the current (f)(3) because paragraph (a)(3) will apply in all cases. The proposed section adds a specific mechanism by which the parties can establish that the fax was sent and received and puts the burden on the party to maintain the original document.

The Department proposes to delete the current (f)(7) to limit the use of fax submissions to times when ordered by the Judge.

§ 18.31 Privacy protection for filings and exhibits.

Proceedings before OALJ are open to the public. The current Part 18, Subpart A does not include a privacy requirement that parties redact personal data identifiers from filings. OALJ has a policy statement encouraging such redaction, but the notice is advisory, not mandatory.
See www.oalj.dol.gov/ACCESS_TO_COURT_RECORDS.HTM/.

The 2007 revision of the FRCP included the addition of Fed. R. Civ. P. 5.2 in response to the E-Government Act of 2002, 44 U.S.C. 3501. The Advisory Committee Note addressing Fed. R. Civ. P. 5.2 states that the privacy and security concern addressed by this rule is the electronic availability of filed documents. The scope of Fed. R. Civ. P. 5.2 is limited to filings with the court, and extends to trial exhibits when they are filed with the court.

The Department proposes a privacy protection rule based on Fed. R. Civ. P. 5.2 which will serve two agency-specific purposes. Like Fed. R. Civ. P. 5.2, proposed § 18.31 will reach any electronic filings with OALJ. In addition, § 18.31 will clarify the job of the Freedom of Information Act officer who reviews files in the case of a FOIA request. As a result of the broader purpose of OALJ's privacy protection rule, the § 18.31 extends to filings and exhibits. The majority of personal information to be redacted by the FOIA officer is contained in the exhibits, not the filings.

The proposed subdivision (a) lists the personal data identifiers that parties must redact from filings submitted to OALJ, unless the judge orders otherwise. The Department also lists filings that are exempted from the redaction requirement under proposed subdivision (b). Under subdivision (b), OALJ has exempted the record of administrative proceedings and exhibits filed within the Department of Labor and submitted to OALJ.

Under subdivision (c), the Department proposes to provide parties with the option to file a reference list of redacted information. The term “redacted” is intended to govern a filing that is prepared with abbreviated or blocked-out identifiers in the first instance, as well as a filing in which a personal identifier is edited after its preparation.

Under subdivision (d), the Department proposes to allow a person to waive the protections of the rule as to that person's own personal

information by filing it unsealed and in unredacted form. One may wish to waive the protection if it is determined that the costs of redaction outweigh the benefits to privacy. If a person files an unredacted identifier by mistake, that person may seek relief from the judge.

The proposed subdivision (d) provides that a judge may, for good cause, require more extensive protection of material than otherwise required by this section. The Department does not intend for this subdivision to affect the limitations on sealing that are otherwise applicable to the judge.
See
§ 18.85,
Privileged, sensitive and classified material.

§ 18.32 Computing and extending time.

The Department proposes to delete the current § 18.4 and replace it with proposed § 18.32. The proposed § 18.32 is modeled after Fed. R. Civ. P. 6. References to service and filing in the current § 18.4 are now addressed in proposed § 18.30,
Service and filing.

The Department proposes to increase the scope of the computation provisions in current § 18.4(a) to apply to time periods set out in “these rules, [the] judge's order, or in any statute, regulation, or executive order that does not specify a method for computing time.” The expanded scope creates consistency in cases that fall under statutes and regulations that do not have time computation provisions. The revisions do not supplant a computation scheme from another agency or rule.

Under proposed subdivision (a), the Department proposes to add the definitions of “last day,” “next day,” and “legal holiday.” The current subdivision (a) includes a sentence explaining the computation of time for periods less than 7 days. The Department proposes to delete this sentence from the proposed rule to be consistent with the Department's general revision to provide at least 14 days to respond or file.

Subdivision (b) provides the criteria judges will use when responding to a request for an extension of time. The Department proposes this subdivision to provide litigants with fair notice as to the applicable standard of review.

The Department proposes to delete the current § 18.4(c)(1) and (3), which permit the addition of 5 days for filing by mail and when a party is served by mail. Some litigants have found this time-calculation provision confusing. To replace these provisions, the Department proposes to add subdivision (c) to function like Fed. R. Civ. P. 6(d). Three days are added after particular types of service listed in proposed § 18.30(a)(2)(B)(iii) or (iv). The decrease in the number of days for responding is offset by the extension of time to respond from 10 days to 14 days. Days are no longer added to the date of filing when filing by mail. The Department proposes this change to make the practice before OALJ more uniform and consistent with the procedure in the district courts.

§ 18.33 Motions and other papers.

The Department proposes to revise current § 18.6 and renumber it as proposed § 18.33. Proposed § 18.33 is modeled after Fed. R. Civ. P. 7(b) and Fed. R. Civ. P. 43(c).

Under § 18.33, the Department proposes to clarify the filing requirements for motions and other papers and add the language from Fed. R. Civ. P. 7(b) to proposed § 18.33 (a) and (b). Under proposed subdivision (a) “[a] request for an order must be made by motion.” This applies to any requests made to a judge. A motion must: (1) Be in writing, unless made during a hearing; (2) state with particularity the grounds for seeking the order; (3) state the relief sought; and (4) unless the relief sought has been agreed to by all parties, be accompanied by affidavits, declarations, or other evidence, and (5) if required by subsection (C)(4), include a memorandum of the points and authorities supporting the movant's position.

The proposed subdivision (b) provides that “the rules governing captions and other matters of form apply to motions and other requests.”

Under subdivision (c), the Department proposes to add that written motions before a hearing must be served with supporting papers at least 21 days prior to hearing. A written motion served within 21 days before the hearing must state why the motion was not made earlier. The current version of this section does not set a timeframe for serving and filing motions prior to the hearing. The Department proposes to add this timeframe to provide judges sufficient time to rule on pre-hearing motions. This may narrow the issues for the hearing and save witness travel time and expenses. The exceptions to this regulation include: (A) When the motion may be heard ex parte; (B) when these rules or an appropriate statute, regulation, or executive order set a different time; or (C) when an order sets a different time.

The proposed subdivision (d) requires that a response to a motion be filed within 14 days after the motion is served. The Department proposes to increase the amount of time a party has to respond from the 10 days in the current version of the rule to 14 days. The change to 14 days comports with the general revision to set time periods based on multiples of 7.

Under paragraph (c)(3), the Department proposes to add the requirement that counsel for the moving party confer or attempt to confer with opposing counsel in a good faith effort to resolve the subject matter of the motion, except when a party is unrepresented or for particular types of motions listed under subparagraphs (c)(3)(A) through (c)(3)(C). This provision is consistent with the FRCP and the Department anticipates that this will reduce the number of motions by encouraging the parties to resolve issues amongst themselves. Paragraph (c)(4) clarifies that unless the motion is unopposed, the supporting papers for the motion must include affidavits, declarations or other proof to establish the factual basis for the relief. For a dispositive motion and a motion relating to discovery, a memorandum of points and authorities must also be submitted. A judge may direct the parties file additional documents in support of any motion.

The Department proposes to delete the language in current § 18.6(d) from this section and address motions to compel in §§ 18.35,
Signing motions and other papers; representations to the judge;

sanctions,
18.56,
Subpoena,
and 18.57,
Failure to make disclosures or to cooperate in discovery; Sanctions.

Cases may be reassigned to different judges based on the administrative needs of the Office of Administrative Law Judges. Therefore, the Department proposes to add subdivision (f) to address renewed or repeated motions made to a different judge than the judge who previously ruled on the motion.

§ 18.34 Format of papers filed.

The Department proposes to add a new § 18.34,
Format of papers filed,
to provide the format a party should use when filing papers with OALJ. This proposed section expands the current document filing requirements located under current § 18.3(a) to provide litigants with more specific formatting requirements. The current § 18.3(a) provides that “all documents should clearly designate the docket number, if any, and short title of the matter” and “each document filed shall be clear and legible.” The proposed § 18.34 states that every paper filed must be printed in black ink on 8.5 x 11-inch opaque white paper. The Department proposes the black ink requirement because litigants sometimes file handwritten papers with colored ink that can be difficult to read.

The current caption requirements are located under current § 18.3(e). Under proposed § 18.34, the Department clarifies that filed papers must begin with a caption that includes: (a) the parties' names, (b) a title that describes the paper's purpose, and (c) the docket number assigned by the Office of Administrative Law Judges. If the case number is an individual's Social Security number then only the last four digits may be used.
See
18.31(a)(1). If OALJ has not assigned a docket number, the paper must bear the case number assigned by the Department of Labor agency where the matter originated. The Department proposes to relocate the address and telephone number requirement in the current § 18.3(e) to proposed § 18.35(a).

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

The Department proposes to add a new § 18.35 modeled after Fed. R. Civ. P. 11. This section establishes the standards attorneys and parties must meet when filing motions or other documents with OALJ. It also regulates the circumstances in which sanctions may be imposed if the standards of § 18.35 are not met.

Under subdivision (a), every written motion and other paper filed with OALJ must be dated and signed by a representative of record or by a party personally if the party is unrepresented. The paper must state the signer's address, telephone number, facsimile number and email address, if any. If a document subject to § 18.35 is not signed, the judge has the power to strike the document unless the proponent signs it promptly upon notification of the missing signature.

Under subdivision (b), the Department sets the standards that motions and other papers regulated by § 18.35 must meet. It also specifically provides that the standards are applicable to later advocacy of such documents, as well as to the initial submission of the documents.

The Department proposes to regulate who may be sanctioned for violations of § 18.35(b), as well as how the sanctions process may be initiated under subdivision (a). This subdivision also governs the extent and limitations of the judge's sanctioning power.

Sections 18.50 through 18.65, governing the discovery process, control the circumstances when sanctions may be imposed for inappropriate behavior in discovery. For that reason, § 18.35(d) clarifies that § 18.35(a), (b) and (c) have no applicability to discovery issues.

§ 18.36 Amendments after referral to the Office of Administrative Law Judges.

The Department proposes to revise the current § 18.5 and renumber it as proposed § 18.36.

Proceedings before the Office of Administrative Law Judges are rarely initiated by a complaint and answer. Accordingly, the Department proposes to delete subdivisions (a)-(d) in current § 18.5. However, a judge may still require the parties to file a complaint and answer in certain cases for the purpose of clarifying the issues in the proceeding.

Amendments and supplemental pleadings are an infrequent occurrence because proceedings are rarely initiated before OALJ with a complaint and answer. If amended or supplemental complaints and answers are required, then the judge may apply Fed. R. Civ. P. 15. Accordingly, current § 18.5(e) is deleted and the proposed § 18.36 provides the judge discretion to allow parties to amend and supplement their filings.

Prehearing Procedure

§ 18.40 Notice of hearing.

The Department proposes to revise the current § 18.27 and renumber it as proposed § 18.40.

The current subdivision (a) makes reference to notice of prehearing conferences. Notice of prehearing conferences is controlled by proposed § 18.44,
Prehearing conferences,
so the Department deleted this reference in proposed § 18.40. In proposed § 18.40 (a), the number of days for timely notice is changed from 15 days to 14 days. The change comports with the general revision to set time periods based on multiples of 7.

The current subdivision (b) addresses the judge's ability to change the date, time, or place for a hearing and the number of days notice required for a change. The Department determined that this provision is appropriately grouped with continuances, instead of with the notice of hearing requirements. The Department proposes to relocate a revised version of this subpart to proposed § 18.41(a),
Continuances and changes in place of hearing.

The current subdivision (c)—now proposed subdivision (b)—is edited to not only address how the judge will determine the location for the hearing, but also the date and time of the hearing. This proposed subdivision also includes a consideration of the “necessity of the parties and witnesses in selecting the date, time and place of the hearing.” This requirement is expressed in sec. 554 of the APA and more accurately reflects the considerations a judge must make when determining the date, time, and place for the hearing.

§ 18.41 Continuances and changes in place of hearing.

The Department proposes to revise the current § 18.28 and renumber it as proposed § 18.41.

The Department proposes to clarify in this section when a judge may continue a hearing. This procedure in part is located under current § 18.27(b); however, the Department determined that the procedure of a judge continuing a case is more appropriately grouped in this continuance rule. Under § 18.41(a), the Department proposes to require that the judge provide reasonable notice to the parties of a change in date, time or place of the hearing. The proposed change permits the judge to inform the parties of the changes within a reasonable time based on the circumstances of the continuance. This flexibility permits the judge to adjust the hearing schedule as needed without having to comport with a 14-day notice requirement. However, the reasonable notice still protects a party's due process rights to have notice of the hearing.

The Department proposes to revise the current subdivision (b) to address a party's request to continue or change the place of a hearing. The current regulation requires a party to file a motion for a continuance at least 14 days before the date set for hearing. The Department proposes to eliminate the 14-day filing requirement. Instead, the proposed regulation requires that a party “promptly” file a motion after becoming aware of the circumstances supporting a continuance. If a party is immediately aware of the conflict upon receipt of the notice of hearing, the party should file a motion to continue at once.

Under subdivision (b), the Department proposes to permit a party to orally move to continue a hearing, but only in exceptional circumstances. The proposed § 18.33,
Motions and other papers,
requires that motions be made in writing; this section, however, provides a limited exception. For the reasons discussed above, the time limit for an oral motion if the request is made 10 days before the hearing is not included. Under proposed paragraph (b)(1), if a party makes an oral motion for a continuance it must immediately notice the other parties of the request.

The final sentence of the current subdivision (b) addresses oral motions for a continuance at a calendar call or hearing. The Department proposes to

address oral motions at a hearing in proposed § 18.33(e). Therefore, the Department proposes to omit this reference from proposed subdivision (b).

The Department proposes to add a regulation under § 18.41 (b)(2). Under this paragraph, a party may move to change the location of the hearing. This proposed provision permits the parties to inform the judge when a more suitable hearing location is available.

§ 18.42 Expedited proceedings.

The Department proposes to delete the current § 18.42 and replace it with proposed § 18.42.

The Department proposes to delete the references to expedited proceedings that are required by statute or regulation in current subdivisions (a)-(d) and (f). Expedited hearings are controlled by the statute or regulation requiring the accelerated proceedings and do not require either party to file a motion requesting an expediting proceeding. The timing of the hearing and decision in cases expedited by statute or regulation is determined by the governing statute or law. For example, under 20 CFR 655.171(a),
Temporary Employment of Foreign Workers in the United States,
when an employer requests administrative review an ALJ must issue a decision within 5 business days of receipt of the administrative file.
See also
20 CFR 655.33(f). The Department proposes not to include the current subdivision (f) in its entirety because it is unnecessary and may be in conflict with the governing law.

The proposed § 18.33,
Motions and other papers,
provides the requirements for filing a written motion, including a motion for an expedited proceeding. The Department proposes to delete the provisions in existing paragraphs (b)(1), (b)(2), and (b)(4) because a motion filed in accordance with proposed § 18.33 must be in writing and describe with particularity the circumstances for seeking relief. The time for responding to a motion under proposed § 18.33(d) is 14 days, an addition of 4 days to the 10 days required in existing § 18.42(d). This change to 14 days comports with the general revision to set time periods based on multiples of 7.

The Department proposes not to include the current subdivision (c) because service is addressed by proposed § 18.30,
Service and filing.

The Department proposes to omit the provision in current subdivision (e) that provides for advanced pleading schedules, prehearing conferences, and hearings. The Department proposes to delete this regulation because setting the date for conferences is within the judge's general powers set forth in proposed §§ 18.44,
Prehearing conferences,
and 18.12,
Proceedings before administrative law judge.
The 5-day limitation on advancing the hearing is extended to 7 days. The change to 7 days comports with the general revision to set time periods based on multiples of 7.

§ 18.43 Consolidation; separate hearings.

The Department proposes to delete the current § 18.11 and replace it with the proposed § 18.43. The proposed § 18.43 is modeled after Fed. R. Civ. P. 42,
Consolidation; separate trials.

The Department proposes to revise this section to more accurately reflect the practice before OALJ. The current § 18.11 describes the process of consolidating hearings, whereas the proposed § 18.43 addresses the judge's power to order consolidated and separate hearings. The proposed subdivision (a) clarifies that an administrative law judge may join for hearing any or all matters at issue in the proceedings or may issue any other order to avoid unnecessary cost or delay. The proposed subdivision (b) clarifies that for convenience, to avoid prejudice, or to expedite and economize, the judge may order a separate hearing on one or more issues.

§ 18.44 Prehearing conference.

The Department proposes to delete the current § 18.8 and replace it with proposed § 18.44. The proposed § 18.44 is modeled in part after Fed. R. Civ. P. 16.

The current § 18.8 states that the purpose of a prehearing conference is to “expedite” the proceedings. The Department proposes to expand the purpose for a prehearing conference in proposed subdivision (a) to include: establishing early and continuing control so that the case will not be protracted because of lack of management; discouraging wasteful prehearing activities; improving the quality of the hearing through more thorough preparation; and facilitating settlement. This revision more accurately reflects the purpose of prehearing conferences before OALJ.

The Department proposes subdivision (b) to provide guidance on the scheduling and notice of the prehearing conference. This procedure is currently located in § 18.8(a).

The Department proposes subdivision (c) to require parties to partic

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2012-28516. Public record. Not legal advice.