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

Federal RegisterMay 19, 2015

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DEPARTMENT OF LABOR

Office of the Secretary

29 CFR Part 18

RIN 1290-AA26

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

AGENCY:

Office of the Secretary, Labor.

ACTION:

Final rule.

SUMMARY:

This is the final text of regulations governing practice and procedure for proceedings before the United States Department of Labor, Office of Administrative Law Judges (OALJ). The regulations were first published as a final rule in 1983 and were modeled on the Federal Rules of Civil Procedure (FRCP). A Notice of Proposed Rulemaking was published in the

Federal Register

on December 4, 2012 requesting public comment on proposed revisions to and reorganization of these regulations. The revisions make the regulations more accessible and useful to parties. The revisions also harmonize administrative hearing procedures with the current FRCP and with the types of claims now heard by OALJ, which increasingly involve whistleblower and other workplace retaliation claims, in addition to a longstanding caseload of occupational disease and injury claims. The Department received sixteen comments to the proposed rule. This rule responds to those comments and establishes the final text of the revised regulations.

DATES:

Effective Date:

This rule is effective June 18, 2015.

Compliance Date:

This rule is effective June 18, 2015.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

I. Background

On December 4, 2012, the Department published a Notice of Proposed Rulemaking (NPRM) with a request for comments amending 29 CFR part 18, subpart A. Rules of Practice and Procedure for Hearings Before the Office of Administrative Law Judge, 77 FR 72142 (Dec. 4, 2012). The Department proposed to amend comprehensively its procedural rules to reflect the changes to civil litigation since the OALJ promulgated its rules in 1983. Moreover, the need to update the OALJ's procedural rules was evident as the OALJ's authority to hear whistleblower cases increased. The new procedural rules are analogous to the FRCP used in the United States district courts and are intended to provide more guidance and clarity to parties practicing before the OALJ.

The Department provided an opportunity for the public to comment even though the changes are to rules of agency organization, procedure and practice, which are exempt from the notice and public comment requirements of the Administrative Procedure Act (APA).

See

5 U.S.C. 553(b)(3)(A). The comment period ended on February 4, 2013. The Department reviewed and responded to each pertinent comment submitted.

See infra Part 3

. Accordingly, the NPRM amending 29 CFR part 18, subpart A, that was published on December 4, 2012, is being adopted as a final rule with the changes made below.

The Department has found that a handful of departmental specific program regulations reference these rules, and that these references may now be inaccurate due to shifts in numbering. The Department plans to correct these references in the near future through technical corrections, which will be published in the

Federal Register

II. Summary of General Comments on the Notice of Proposed Rulemaking

The Department received several general comments regarding the proposed changes to the OALJ rules of practice and procedure. Each comment is addressed as follows:

Compliance with the APA.

The Department stated in the NPRM that while the proposed changes consist of amendments to rules of agency organization, procedure and practice that are exempt from the notice and public comment requirements of the APA, the Department wished to provide the public with an opportunity to comment on any aspect of the proposed rule. Accordingly, the proposed changes were published in the

Federal Register

, and public comment was invited. Two commenters challenged the Department's reference to the APA's procedural rules exception and claimed that the Department thus misinformed the public and chilled the pool of public comment on the proposed rule changes. These commenters asserted that the public harm resulting from this alleged error could only be remedied by withdrawing the proposed rules and reissuing them in conformity with the full notice and comment protections of the APA. One commenter argued that because the rules contain provisions for sanctions, they “substantially alter the rights and interests of parties” which triggers the APA's requirements for public notice and comment. This comment principally relied on the vacated decision of the Court of Appeals for the District of Columbia in

Air Transp. Ass'n of Am.

Dep't of Transp.,

900 F.2d 369 (1990),

cert. granted,

498 U.S. 1023 (1991),

vacated,

933 F.2d 1043 (1991). The other commenter stated that the OALJ rules of practice and procedure constitute agency rules with the “force and effect of law” that must be published for public comment in accordance with the Supreme Court's decisions in

United States

Mead Corp.,

533 U.S. 218 (2001), and

Christensen

Harris Cnty.,

529 U.S. 576 (2000).

The Department disagrees with these claims. In decisions issued subsequent to its vacated ruling in

Air Transp. Ass'n of Am.,

the D.C. Circuit has stressed that the “ `critical feature' ” of a rule that satisfies the so-called “procedural exception `is that it covers agency actions that do not themselves alter the rights or interests of parties, although it may alter the manner in which the parties present themselves or their viewpoints to the agency.' ”

James V. Hurson Assoc., Inc.

Glickman,

229 F.3d 277, 280 (2000) (quoting

JEM Broad Co.

FCC,

22 F.3d 320, 326 (D.C. Cir. 1994)). The Court further held in

Hurson

that “an otherwise procedural rule does not become a substantive one, for notice and comment purposes, simply because it imposes a burden on regulated parties.”

Id.

at 281. As nothing in the new rules alters the “substantive criteria” by which claims and complaints are adjudicated in the hearing before the OALJ, they are within the procedural rules exemption.

See

id. at 280-81;

JEM Broad Co.,

22 F.3d at 237;

Nat'l Whistleblower Ctr.

Nuclear Regulatory Comm'n,

208 F.3d 256, 262 (D.C. Cir. 2000),

cert. denied,

531 U.S. 1070 (2001). The Supreme Court's decisions in

Mead Corp.

and

Christensen

cited by the other commenter respectively address whether a U.S. Customs Service classification ruling and Department of Labor opinion letter, neither of which were issued after APA notice and comment rulemaking, are entitled to deference under

Chevron, U.S.A., Inc.

Natural Res. Def. Council, Inc.,

467 U.S. 837 (1984). These decisions do not address the scope of the APA's procedural rules exception.

The Department moreover voluntarily published the rule changes in

accordance with the notice and comment requirements of the APA consistent with the procedure recommended by the Administrative Conference of the United States to avoid controversy over the scope of the APA's notice and comment exceptions.

See

The Procedural and Practice Rule Exemption from the APA Notice-and-Comment Rulemaking Requirements, 1 CFR 305.92-1 (1995) (ACUS Recommendation 92-1, available at

www.acus.gov/sites/default/files/documents/92-1/pdf

). The commenters provided no evidence to support their claim that the Department's voluntary compliance with the APA's notice and comment requirements in accordance with the ACUS recommendation in any manner chilled or otherwise influenced public comment. They also cited no legal authority for their position that the Department's mere reference to the procedural rules exception vitiated the NPRM. The Department's receipt of multiple comments indicates that the public was neither “chilled” nor deterred from submitting items for consideration. Thus, there is no basis for withdrawing and reissuing the rules changes.

Conflicts with the LHWCA and BLBA.

Two commenters argued that several provisions in the new rules providing for imposition of sanctions conflict with provisions of the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. 901-950, which are also applicable to claims adjudicated under the Black Lung Benefits Act (BLBA), 30 U.S.C. 901-945, and therefore those provisions should either be deleted or rewritten to specifically state that they are not applicable to proceedings under the LHWCA and BLBA. The commenters identified sections 926, 927(b) and 931 of the LHWCA, 33 U.S.C. 926, 927(b), 931, as conflicting with the new rules containing sanction provisions. One commenter also suggested that some of the new rules may contravene section 923(a) of the LHWCA, 33 U.S.C. 923(a). The Department believes however that any conflicts between the rules and the LHWCA and, for that matter, any other statute governing administrative hearing proceedings before the OALJ, are already addressed appropriately in the rules and do not warrant either wholesale rescission or rewriting. The Department also believes that the commenters overstated the alleged conflicts between the new rules and the LHWCA.

Section 923(a) of the LHWCA provides that officials conducting hearings “shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure, except as provided by this chapter; but may make such investigation or inquiry or conduct such hearing in such manner as to best ascertain the rights of the parties.” 33 U.S.C. 923(a).

see also

Davy

SEC,

792 F.2d 1418, 1421 (9th Cir. 1986). The provisions for the limited sanctions in the new rules are not directed to any party's primary conduct—which would be the subject matter of the proceeding—but to violations of procedural rules that compromise the integrity of the administrative hearing process. These litigation sanctions are consistent with the Department's regulatory authority under section 556(c)(5) of the APA, do not require additional express statutory authorization under section 558(b) of the APA, and do not amount to an exercise of Article III courts' contempt or sanction powers.

Remedial Purpose of Whistleblower Adjudications.

The Department received a comment regarding whistleblower adjudications generally, which suggested that the procedural rules should reflect the remedial purpose of the whistleblower statutes under the OALJ's jurisdiction. The Department notes that the new rules are procedural rules intended to apply to all proceedings before OALJ and not any specific class of proceeding. To the extent a particular agency seeks the application of specific procedural rules, it is incumbent on that agency to incorporate such rules into its own regulations. For instance, proceedings under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. 1132, define specific procedures at 29 CFR 2570, subpart C.

The Department received a similar comment suggesting that the OALJ “should strive for better whistleblower protection than U.S. District Courts” because the OALJ has garnered specialized knowledge and the process is less formal in an agency adjudication. The comment however did not offer any concrete proposal for changes to the text of the new rules. Any program-specific change moreover should be addressed to the particular agency charged with administering the particular program.

Effect on Pro Se Litigants.

One commenter asserted that the new rules will make litigation of whistleblower claims harder on pro se parties. The commenter noted that, although the OALJ rules of practice and procedure are analogous to the FRCP, there are some differences: For example, whistleblowers do not ordinarily have to plead a claim through a complaint. The commenter remarked that the Administrative Review Board (ARB) and other appellate authorities have construed pro se complainants' positions liberally and with a degree of judicial latitude. The commenter also suggested that the Department's comments should make clear that decisions on the merits are the goal, and compliance with procedural rules should “bend where necessary to meet that goal.”

The Department agrees that concerns relating to the ability of pro se litigants to submit and litigate complaints deserve consideration. As the ARB has enunciated, a pro se litigant's presumed lack of familiarity with litigation procedures may require accommodation. For example, a pro se litigant must be informed of the consequences of failing to respond to dispositive motions,

Motarjemi

Metro. Council, Metro. Transit Di

v., ARB No. 08-135, ALJ No. 2008-NTS-2 (ARB Sept. 17, 2010), and an untimely filing may be considered,

Wallum

Bell Helicopter Textron, Inc.,

ARB No. 12-110, ALJ No. 2009-AIR-20 (Sept. 19, 2012). The new rules provide uniform procedures for case management, but simultaneously permit judges the flexibility to tailor procedures to specific cases through appropriate orders. So, for example, where a pro se complainant requires additional guidance, under the new rule the judge may issue more focused or detailed orders, as necessary. The new rules provide more detailed procedural information (particularly regarding discovery and other pre-hearing requirements) than had been the case previously. The Department therefore declines to adopt the commenter's suggestion.

Discovery Rules Regarding Electronically Stored Information.

One commenter voiced some general concerns that the rules should clarify issues related to discovery of electronically stored information (ESI), specifically providing that both sides have access to discovery of ESI and that ESI is treated the same as paper documents. The Department believes those concerns are adequately addressed in § 18.61, which states that there is no differentiation in the access to ESI or paper discovery. Thus, the rule provides the ALJ with the ability to manage discovery and minimize gamesmanship in discovery of both paper documents and ESI.

Electronic Filing.

One commenter urged that the OALJ adopt and implement electronic case filing (ECF) or, in the alternative, allow facsimile filing and remove the maximum page limitation on faxes. Those concerns were also specifically raised in the comments to proposed § 18.30 and are fully addressed in that response. However, the general answer is that the implementation of ECF is a resource constrained policy decision. Until the Department implements ECF, promulgating rules about ECF would lead to confusion.

Offer of Judgment.

One commenter suggested that the OALJ's rules should include one analogous to FRCP 68, Offer of Judgment, and should expressly cut off attorney's fees and other litigation costs when a claimant refuses an offer and fails to obtain a more favorable result.

The Department declines to adopt the commenter's suggestion. An offer of judgment is significant matter that could affect an otherwise successful complainant's right to recover attorneys' fees as costs.

Marek

Chesny,

473 U.S. 1 (1985). No analog to FRCP 68 appears in the OALJ's previous rules. The Department stated its intention to align

its procedural rules more closely with the FRCP, but did not give any notice that an offer of judgment rule was contemplated. The Department believes the final rule should not include an offer of judgment provision for three interrelated reasons.

First, doing so would not have given interested parties sufficient notice that such a rule was contemplated, and it is unclear that doing so now could be regarded a logical outgrowth of the rules proposed.

See

5 U.S.C. 553(b)(3);

Ass'n of Private Sector Colls. & Univs.

Duncan,

681 F.3d 427, 461 (D.C. Cir. 2012). Second, the OALJ issues no judgments; it is not a court, although it shares many attributes with Article III federal courts. FRCP 68 would have to be substantially altered to adapt to the context of administrative adjudication, as there is no clerk who could enter a judgment in the way FRCP 68(a) contemplates (“The clerk must then enter judgment.”). Finally, FRCP 68 is subject to varying interpretations in the courts of appeals on how the defense should address attorney's fees in the text of an offer, when the substantive statute at issue directs the adjudicator to assess those fees as an item of costs.

See

Charles Alan Wright et al., Federal practice and Procedure § 3005.1 (3d ed. 2014). Any rule the Department adopts should make a choice between the competing theories, to make the rule nationally uniform, and as useful to litigants as possible. Those choices will not be made without the benefit of public comment.

III. Summary of Specific Comments on the Notice of Proposed Rulemaking

The Department received several comments regarding specific sections in the NPRM. Each comment is addressed as follows:

§ 18.10 Scope and purpose.

One commenter expressed concern that the principles expressed in section 923 of the LHWCA, providing that the LHWCA hearing process is not bound by formal rules of evidence but conducted in a manner to best ascertain the rights of the parties, may be circumvented by procedural rules not addressed in the LHWCA and BLBA and respective implementing regulations. The commenter suggested part 18 explains what sections do not apply to LHWCA or BLBA proceedings “to avoid confusion.” Another commenter suggested adding a paragraph “(d)” to § 18.10, which would specifically state that in proceedings under the LHWCA and BLBA the following list of proposed rules would not apply: §§ 18.12, 18.23, 18.35, 18.50, 18.56, 18.57, 18.64, 18.70, 18.72, 18.80, and 18.87.

Future statutory and regulatory changes in the numerous administered programs, including the LHWCA, BLBA, employment discrimination, “whistleblower” and immigration cannot be foreseen. For instance, recent litigation has highlighted a BLBA-specific issue—one involving the disclosure of non-testifying expert opinions—that may deserve further consideration.

See generally Fox

Elk Run Coal Co.,

739 F.3d 131 (4th Cir. 2014). Nothing in these rules would prevent the Department from adopting a procedural rule that applies only in BLBA claim adjudications or other program-specific contexts. Moreover, listing variations in procedural requirements for the numerous programs in each new rule defeats the purpose of the new rules and would require constant rulemaking activity to reflect legislative changes. The Department thus disagrees with the submitted proposals to individually identify superseding statutory, regulatory or executive order provisions collectively in the new § 18.10 or separately in those new rules where a conflict may exist.

One commenter suggested that the lack of an appeal process in regard to a judge's decision to modify, waive or suspend a procedural rule in new § 18.10(c) “appears arbitrary and capricious.” The Department disagrees. First, while the case is at the OALJ, no rule may be waived, modified or suspended without notice to the parties. Second, doing so requires the judge to make two determinations: That the specific alteration of the rule “will not prejudice a party,” and “will serve the ends of justice.” Finally, a party may raise before the appropriate appellate authority on direct review of the final order any error in modifying a rule.

§ 18.12 Proceedings before administrative law judge.

The Department combined the designation provisions of prior § 18.25 and the authority provisions of prior § 18.29(a). The Department specifically clarified in the NPRM that the enumerated powers mirrored those set forth in section 556 of the APA and that the enforcement provision of prior § 18.29(b) was deleted due to its contents of referring contumacious conduct to an appropriate federal court is set forth in applicable statutes, such as Section 927(b) of the LHWCA.

One commenter proposed that prior § 18.29(b) should not be deleted “even though the content is contained in applicable statutes [because] this provision clearly delineates an administrative law judge's restricted powers, especially under statutes like the LHWCA.” The Department disagrees with the comment that the provision on referring contumacious conduct to federal court should be retained in the new rules since controlling program statutes provide for such referral action when appropriate.

See, e.g.,

20 CFR 725.351(c).

The commenter also proposed deleting § 18.12(b)(10) listing the authority of an ALJ to “take actions authorized by the FRCP” because the language would include all sanctions authorized by the FRCP and penalty sanctioning authority is reserved to the federal courts by the LHWCA and BLBA. Section 18.12(b)(10) was a succinct restatement of prior § 18.29(a)(8). The Department agrees that the brevity in which prior § 18.29(a)(8) was restated could be construed as excessively broad. To ensure consistency, the new § 18.12(b)(10) is rewritten to closely align with prior § 18.29(a)(8) by returning the words “where applicable” to the rule.

§ 18.22 Representatives.

The Department narrowed the rule on representatives appearing before OALJ to reflect the two classes of representatives who routinely appear—attorneys and non-attorney representatives. The rule sets forth the qualifications required to appear as a representative of a party, the minimum duties required of a representative, and prohibited actions of any representative. One comment suggested that the proposed rule setting forth the qualifications for an attorney representative is overreaching and conflicts with 5 U.S.C. 500(b). That provision states in relevant part: “An individual who is a member in good standing of the bar of the highest court of a State may represent a person before an agency on filing with the agency a written declaration that he is currently qualified as provided by this subsection and is authorized to represent the particular person in whose behalf he acts.”

Id.

The commenter suggested nothing more should be required of an attorney representative seeking to represent a party before OALJ. The commenter believed that the proposed § 18.22 (a)-(d) imposed additional requirements inconsistent with 5 U.S.C. 500(b).

The Department has made revisions to the new rule in response to this comment. The Department deleted the following sentence from § 18.22(a): “The notice of appearance shall also include the statements and documentation required for admission to appear for the applicable category of representation found in subdivision (b) of this section.”

The Department has added the following in its place: “Any attorney representative must include in the notice of appearance the license registration number(s) assigned to the attorney.” Essentially the only requirement that an attorney representative must follow in order to represent a party before the Department is to file a notice of appearance and include the appropriate attorney license registration number. Filing the notice of appearance by the attorney representative will constitute an attestation that: (a) The attorney is a member of a bar in good standing of the highest court of a State, Commonwealth, or Territory of the United States, or the District of Columbia; and (b) no disciplinary proceeding is pending against the attorney in any jurisdiction where the attorney is licensed to practice law. The Department has amended § 18.22(b)(1)(i) to reflect this change.

The Department disagrees with the comment that sections (c) and (d) conflict with 5 U.S.C. 500. Section (c) sets forth the minimum requirements expected of any representative during the course of a proceeding before the Department, and section (d) delineates prohibited actions of any representative appearing in a proceeding before the Department. Neither section prescribes any additional requirements for an attorney representative to appear on behalf of a party before the Department.

The Department set forth the minimum duties required of all representatives appearing before the OALJ in § 18.22(c). These duties originate from the rules of conduct and standards of responsibility imposed by the Social Security Administration (SSA) on representatives appearing before the SSA.

See

20 CFR 404.1740(b). While the Department realizes that the non-adversarial nature of SSA hearings may require more detailed procedures, the basic duties included in the new rule are elementary to any hearing process and serve as a baseline foundation for conducting hearings promptly, efficiently, and fairly. The new rule also states that an attorney representative must adhere to the rules of conduct applicable where the attorney is licensed to practice law. In setting forth this standard, the Department understands that hearings often occur outside of a jurisdiction where an attorney may be licensed to practice law, and imposing an unfamiliar standard of conduct on an attorney would not be ideal.

One comment suggested that paragraph (c) should be stricken because requiring attorneys to adhere to the rules of conduct in their licensing jurisdictions “could result in the different standards for the submission of evidence, discovery, and other substantive and procedural matters.” The Department disagrees. Rules of professional conduct are generally considered rules of reason and should be interpreted with reference to the law itself. Different rules of conduct should not apply based on specific substantive or procedural law. At a minimum, attorneys should always be held to the standards of conduct where they are licensed to practice law. The Department declines to strike the paragraph.

The new rule also defines prohibited actions of all representatives appearing before the Department in paragraph (d). The prohibited actions include such things as: threatening, coercing or intimidating a party; knowingly making false or misleading statements; or causing unreasonable delay. These again derive from the SSA regulations. 20 CFR 404.1740(c). One comment suggested that the paragraph should be stricken because it adds confusion and may require attorneys to act contrary to the interests of their clients or the rules of conduct required by their licensing jurisdictions. The Department declines to strike the paragraph.

§ 18.23 Disqualification and discipline of representatives.

The proposed rule contemplated two paths for disqualification and disciplinary proceedings of attorney representatives appearing before the OALJ. One path regulated lawyers who were authorized to practice before the Department through admission to the bar of the highest court of a state or similar governmental unit, but lost the right to practice law in their licensing jurisdiction because of a criminal conviction or proven professional misconduct. The second path involved misconduct of a representative before the OALJ. One comment questioned the Department's authority to initiate disciplinary proceedings at all. The NPRM spells out the Department's authority to discipline attorneys in great detail and need not be restated herein. The Supreme Court has recognized such authority as early as 1923 in a case involving the Board of Tax Appeals where it upheld the Board's power to adopt rules of practice for professionals to protect the integrity of its administrative procedures and the public generally.

See Goldsmith

United States Bd. of Tax Appeals,

270 U.S. 117 (1926). Other comments suggested that the wording of the rule was not clear and suggested that as drafted, it appeared that the OALJ would be making the initial determination as to whether an attorney had committed any enumerated criminal act or professional misconduct.

The Department considered the comments and has amended the rule by consolidating the grounds upon which an attorney or representative may be disqualified or disciplined into one section—new § 18.23(a)(1). New § 18.23(a)(1) now sets forth three distinct grounds for disqualification: (1) suspension of a license to practice law by any court or agency of the United States, or by the highest court of a State or similar governmental unit; (2) disbarment from the practice of law by consent or resignation from the bar of a court or agency while an investigation into allegations of misconduct is pending; or (3) committing an act, omission, or contumacious conduct that violates the procedural rules, an applicable statute, an applicable regulation, or a judge's order(s). Accordingly, the previous sections providing for disqualification upon conviction of a felony (proposed § 18.23(a)(1)(i)) or certain enumerated misdemeanors (proposed § 18.23(a)(1)(ii)) are removed from the new rule. Such conduct however may still be grounds for disqualification in the new rules to the extent that new § 18.23(a)(1)(i) through (iii) apply.

The Department also consolidated the disqualification and discipline procedure into one section—new § 18.23(a)(2). The new consolidated “Disqualification procedure” states that in all instances the Chief Judge provides notice and an opportunity to be heard prior to taking any action. The provision deletes language pertaining to requests for hearing but also recognizes that, in appropriate instances, additional proceedings may be necessary, within the Chief Judge's discretion.

Other comments questioned the timeline for disciplinary proceedings and the status of cases while disciplinary proceedings are pending against an attorney. The Department notes that the new rule contemplates a fast track with an initial response time of 21 days. The Department believes that the Chief Judge should have the discretion to decide whether an attorney can continue to represent a party before the Department during the pendency of any disciplinary proceeding on a case-by-case basis.

Two commenters suggested that the Department maintain a national database of non-attorney representatives disciplined by the Department. The Department declines to amend the part 18 regulations to establish such a database because OALJ already

publishes formal disciplinary decisions on its Web site in the same manner as other judge decisions.

See, e.g., In the Matter of the Qualifications of Edwin H. Rivera,

2009-MIS-2 (ALJ Feb. 6, 2009) (denying non-attorney representative the authority to appear in a representative capacity before OALJ).

§ 18.24 Briefs from amicus curiae.

The proposed rule sets forth the general procedure for accepting a brief from an amicus curiae. The Department received two comments suggesting that the deadline for an amicus brief is too short. The proposed rule required such briefs by the close of the hearing unless otherwise directed by the presiding judge. The comments pointed out that no transcript is immediately available when the hearing closes and it may be better for an amicus curiae to review the brief of the party the amicus supports to allow the amicus curiae to focus on new arguments. The Department considered the comments and agrees that setting the deadline at the close of the hearing is impractical. The Department has amended the new rule by deleting any specific deadline for an amicus brief, and instead states that the deadline will be set by the presiding judge.

The Department has also received comments suggesting that it require amicus curiae to make disclosures similar to those found in U.S. Supreme Court Rule 37.4. Such disclosures include whether counsel for a party authored any part of an amicus brief and the identity of anyone who made monetary contributions to the preparation of the brief other than the amicus curiae or its members. The Department declines to adopt the specialized disclosure requirements. Any specialized requirement can be considered by the presiding judge and made part of a briefing order depending on the facts of any particular case.

§ 18.30 Service and filing.

Commenters suggested that the list of documents not to be filed until used in the proceeding or ordered by a judge (§ 18.30(b)(1)) should be amended to add the notice and copy of “documents only” subpoenas that are required to be served on other parties by § 18.56(b)(1). That suggested change is consistent with the purpose of both the prior and proposed rule and reflects current common practice. The new rule is thus changed to add paragraph (b)(1)(vi) with the following language: “the notice (and the related copy of the subpoena) that must be served on parties under rule 18.56(b)(1) before a `documents only' subpoena may be served on the person commanded to produce the material.”

Several commenters argued that the OALJ's rules do not adequately accommodate electronic filing and service, which is now commonplace in federal courts and adjudicatory agencies. Commenters urged that the OALJ adopt an electronic filing system, or at least adopt a more liberal stance toward accepting email and facsimile transmissions.

The Department acknowledges that implementation of a dedicated electronic filing system and electronic service system for OALJ adjudications would be beneficial. However, because the OALJ does not have a dedicated electronic filing and service system, the rules of practice and procedure necessarily focus on traditional filing and service.

Several commenters urged that, in the absence of the availability of electronic filing, OALJ accept documents filed by email. The Department declines to adopt a regulation that permits filing by email for routine filings with the OALJ. Email is not a substitute for a dedicated electronic filing system in which administrative issues such as document management, storage, security, and access can be systematically addressed. The proposed regulation at § 18.30(b)(4) accommodates special circumstances by authorizing the judge to “allow papers to be filed, signed, or verified by electronic means.”

Alternatively, several commenters urged that the OALJ accept documents filed by facsimile transmission without a page limitation. The Department declines to adopt a regulation that permits filing by facsimile for routine filings with the OALJ. Facsimile technology is not a substitute for traditional mail or hand delivery of filings or for a dedicated electronic filing system. When § 18.3 of the prior rules was amended in 1994 to permit filing by facsimile in certain circumstances, the Department discussed why, although the use of facsimile machines is often convenient to parties, it is not administratively practical for routine matters.

See

Amendment of Filing and Service Requirements in Proceedings Before the Office of Administrative Law Judges, 59 FR 41874 (Aug. 15, 1994). Although information technology has advanced considerably since 1994, it is still true that most filings before the OALJ are not time sensitive and that the Department is not in a position to bear the cost of receiving and printing large numbers of facsimile transmissions. The new rule at § 18.30(b)(3)(i) accommodates special circumstances by allowing a party to file by facsimile if permitted by the judge.

One commenter stated a concern that a judge could reject a facsimile filing that exceeded 12 pages. The 12 page limitation stated in § 18.30(b)(3)(i)(A) is confined to situations in which the party is unable to obtain prior permission to file by facsimile because the judge is unavailable. The 12 page limitation is a sensible limitation to discourage reliance on last hour filings by facsimile. Thus, the Department declines to revise § 18.30(b)(3)(i)(A) to remove the 12 page limitation on facsimile filings made without the judge's permission.

One commenter suggested that the OALJ's rules of practice and procedure provide for electronic service between parties, stating that if a representative wishes to receive all service by email, that individual should be able to so state in the record and then receive all subsequent service by email. Section 18.30(a)(2)(ii)(E) already accommodates this suggestion. That regulation states that “[a] paper is served under this section by . . . sending it by electronic means if the person consented in writing—in which event service is complete upon transmission, but is not effective if the serving party learns that it did not reach the person to be served . . . .”

One commenter stated that the rule, as written, creates a paradox that a time sensitive filing could be filed with the OALJ by facsimile, but served by mail on the opposing party. This commenter suggested that adopting a service requirement that allows for email service would resolve this problem. As noted above, the regulation permits parties to agree to receipt of service of papers by electronic means. The Department declines to revise the rule to require electronic service on another party in situations where the filing party was granted permission to file a paper with the OALJ electronically.

§ 18.31 Privacy protection for filings and exhibits.

One commenter suggested that the privacy requirement should be inapplicable to any document created prior to the effective date of the final rule in BLBA cases. The commenter stated that medical records containing social security numbers and other protected information are created long before a claim is filed and it would be burdensome to redact this information.

The FRCP Advisory Committee noted in its comments to FRCP 5.2 that “[i]t is electronic availability, not the form of the initial filing, that raises the privacy and security concerns addressed in the E-Government Act.” Fed. R. Civ. P. 5.2 advisory committee's note (discussion of 2007 amendments). The FRCP focuses on electronic records, but applies the same restrictions to hard-copy documentation, reasoning that the

number of paper filings will diminish over time.

The Department declines to adopt the commenter's suggestion. The privacy interests of individuals whose personal records appear before the OALJ outweigh the burden placed on those who represent them. Many of these records can be scanned and searched for the sensitive information, reducing the time and effort required to complete this redaction. The commenter's suggestion that this rule apply only to records created after the effective date of the final rule would severely limit its utility. The parties may choose to waive the protection of the rule if it would be unduly burdensome to redact the records, or the parties may petition the judge for a waiver of the rule.

§ 18.32 Computing and extending time.

Commenters noted that setting 4:30 p.m. as the default deadline for filing on a specific date is inconsistent with other rules of practice and sets a trap for the unwary practitioner who may reasonably expect that the deadline would be 11:59 p.m. They suggested changing the time to 11:59 p.m.

The FRCP allows for electronic filing up to 11:59 p.m., but still sets the close of local business hours as the deadline for hardcopy delivery. The commenters' suggestions primarily relate to online and facsimile filing. The OALJ continues to rely on hardcopy delivery as the default authorized means of filing and allows electronic or facsimile filing only as authorized by order or regulation. Since both e-filing and facsimile filing include time stamps that show exactly when a document arrived at the facsimile machine or server of the recipient, the office need not be open to determine when a document arrives. Since e-filing or facsimile filing is only allowed with the permission of the judge, counsel can request extended filing hours when they request permission to file in that manner. The Department therefore declines to adopt the suggestion.

Commenters also observed that the language at (a)(4) including as a legal holiday any other day declared a holiday by the President or Congress is overly broad and should be amended to include in the definition the provision that federal offices are closed to normal business. They suggested providing for extensions where a party is prevented from filing or requesting an extension by local circumstances, such as natural disasters or other events that require closure of government facilities.

FRCP 6(a)(3) addresses the problem by including a provision for the inaccessibility of the clerk's office. The new rules allow for judges to grant ex post facto delays in such cases. However, changing the term “legal holiday” to include any day on which the district office in which the document is to be filed is closed or otherwise inaccessible to the filing party would provide a clearer standard and avoid uncertainty over whether an ex post facto delay may be granted. The new rule is thus changed as follows:

(4) “Legal holiday” defined. “Legal holiday” means the day set aside by statute for observing New Year's Day, Martin Luther King Jr.'s Birthday, Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, or Christmas Day, any day declared a holiday by the President or Congress

, and any day on which the office in which the document is to be filed is closed or otherwise inaccessible

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

New § 18.35 is modeled after FRCP 11. It states the standards attorneys and parties must meet when filing motions or other documents with OALJ and provides sanctioning authority for violations of this section.

Several commenters pointed out that the LHWCA and BLBA contain specific statutory provisions dealing with resistance to an order, misconduct during hearings, and discovery violations. They suggest amending § 18.35(c) to state that the sanctions provisions are not applicable to LHWCA and BLBA cases. The Department declines to adopt the commenters' suggestion for the reasons detailed above in section II, “

Conflicts with the LHWCA and BLBA

.”

Several commenters objected to § 18.35(c) in its entirety, suggesting that the section is essentially an attempt by the OALJ to exercise contempt power, which is limited to courts and may not be conferred upon administrative agencies. Section 18.35(c) however is not identical to FRCP 11(c)(4) and does not seek to invest OALJ judges with powers beyond the APA's grant of authority to impose appropriate sanctions where necessary to regulate and ensure the integrity of the hearing process. Thus, for the reasons detailed above in section II, “

Authority to Regulate the Conduct of Administrative Proceedings; Sanctions,

” the Department declines to delete § 18.35(c).

One commenter argued that there is no authority to hold a law firm jointly responsible for a violation committed by its partner, associate, or employee and failing to further define the circumstance that would justify an exception. The provision for law firm joint responsibility in § 18.35(c)(1) is taken directly from the corresponding federal rule, which was revised in 1993 after the U.S. Supreme Court ruled that the previous language could not be interpreted to include a named offender's firm.

Pavelic & LeFlore

Marvel Entm't Grp.,

493 U.S. 120 (1989). Thus, the provision is in accord with federal practice and the Department declines to strike or modify the provision in § 18.35(c)(1) concerning law firm joint responsibility.

One commenter observed that § 18.35(c)(4) provides no guidance as to what type of sanction “suffices to deter repetition of the conduct or comparable conduct.” The Department agrees that § 18.35(c)(4) should be amended to provide more specific guidance. Paragraph (c)(4) of the rule is revised, containing the following language: “A sanction imposed under this section may include, but is not limited to, striking part or all of the offending document, forbidding the filing of any further documents, excluding related evidence, admonishment, referral of counsel misconduct to the appropriate licensing authority, and including the sanctioned activity in assessing the quality of representation when determining an appropriate hourly rate and billable hours when adjudicating attorney fees.”

§ 18.50 General provisions governing disclosure and discovery.

Under the new rule, a party may seek discovery at any time after a judge issues an initial notice or order and, unless the judge on motion orders otherwise, the methods of discovery may be used in any sequence regardless of the discovery conducted by other parties. The parties' required initial disclosures would be made within 21 days after entry of an initial notice or order acknowledging that the case has been docketed for adjudication, and the rule includes a provision exempting certain proceedings and parties from the initial disclosure requirements. The Department received two comments focusing on the timing of disclosures and discovery in LHWCA and BLBA cases. One commenter urged that discovery should be available following transfer of the case to the OALJ or at any time upon stipulation of the parties, asserting that initial notices and orders have historically taken three months to issue and that discovery during this period of time will be unavailable under the new rule, resulting in unnecessary delay. This commenter also suggested that the timing for initial disclosures be set at 35 days following transfer of the case to the OALJ. Citing similar concerns about delay, the other commenter suggested that discovery should be available at any time after a claim is filed.

The Department disagrees with these proposals. The use of a judge's initial notice or order as the case event allowing parties to commence discovery promotes uniformity and predictability as it is the first reliable indication to the parties that the case is actually before the OALJ. The Department believes that use of the date of transfer from the District Director, Office of Workers' Compensation Programs is potentially confusing because this procedure is only applicable in LHWCA and BLBA cases.

See

20 CFR 702.317, 725.421. The transfer or referral is an internal administrative function that lacks the clarity of the initial notice of order from the judge in terms of informing parties that a case has been docketed for adjudication. The Department further believes that allowing discovery at any time after a claim is filed is problematic as this would inevitably lead to development of discovery disputes before the case is assigned to a judge. While the Department is sensitive to the expressed concern regarding delays in the issuance of an initial notice or order, this is a matter that is better addressed through internal policy directives rather than creation of a special rule of procedure or exception. Finally, the Department believes that the new disclosure and discovery rules, taken as a whole, provide parties with sufficient flexibility to ensure that all authorized and appropriate discovery will be available prior to adjudication.

One comment raised a concern with the sequence of discovery in LHWCA cases by asserting that the logical first step is for a claimant to produce a medical report followed by the deposition of the report's author. The commenter suggested that the new rule could allow a claimant to manipulate the discovery process by delaying production of a medical report which might result in a respondent having insufficient time to identify a rebuttal expert. To blunt this potential tactic, the commenter proposed that the rule require a claimant to produce a medical report and disclose any experts early in the process. The Department believes that this concern is adequately addressed in the provisions of the rule governing disclosure of experts,

see

29 CFR 18.50(c)(2)and through the judge's broad discretion to oversee disclosure and discovery in an impartial manner that affords all parties a full and fair opportunity to be heard. Moreover, adoption of this proposal would create a special rule, applicable only in benefit cases such as those arising under the LHWCA and BLBA, which is inconsistent with the Department's objective of promulgating a uniform set of procedural rules.

One comment proposes that pro se parties be included in the list of parties who are exempted from the required initial disclosures under paragraph (c)(1)(iii) unless an ALJ orders the party to provide disclosures. The Department rejects this proposal as inconsistent with the efficient, impartial and fair adjudication of cases. The FRCP provides no such exemption for pro se litigants aside from those persons in government custody.

See

Fed. R. Civ. P. 26(a)(1)(B)(iii). Having a separate set of rules for unrepresented parties or requiring a judge to provide them with legal guidance is inappropriate.

See Pik

Credit Suisse AG,

ARB No. 11-034, ALJ No. 2011-SOX-6 (ARB May 31, 2012) (citing

Rays Lawn & Cleaning Sys.,

ARB No. 06-112, ALJ No. 2005-SCA-7 (ARB Aug. 29, 2008));

Olsen

Triple A Mach. Shops, Inc.,

25 Ben. Rev. Bd. Serv. (MB) 40, 46 n.4 (1991),

aff'd mem. sub nom. Olsen

Dir., OWCP,

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

Two comments expressed a concern that it is burdensome and/or irrelevant to require an expert witness's written report to list all other cases in which the witness testified as an expert during the previous four years and the amount he or she was paid.

See

General Provisions Governing Disclosure and Discovery, 77 FR 72159 (proposed Dec. 4, 2014) (proposed § 18.50(c)(2)(ii)(E) and (F)). These commentators stated that parties are not likely to have this information. The Department disagrees. While the parties themselves may not have such information, surely an expert witness would. Moreover, the rule allows for an exception to this requirement where stipulated or ordered by the judge. This exception could be invoked in those unusual cases where the required information might not be reasonably obtainable. These requirements track FRCP 26(a)(2)(B), and the Department is not persuaded by these comments that any deviation in the OALJ rules is justified.

Two commenters urged adoption of a rule that would require parties to provide ESI in a searchable electronic format rather than paper copies when the requested information is available in electronic form. The commentators cited federal case law in support, stating that parties have been required to provide ESI in electronic format when requested in that form. While acknowledging the cited precedent, the Department rejects the proposal for a rule mandating production of ESI in electronic format whenever requested in that form. First, such a rule may violate the principle recognized in the NPRM that discovery of ESI should be proportional to what is at stake in the litigation. 77 FR 72146 (citing FRCP 26(b)(2)(C)(iii)) (citing The Sedona Conference, The Sedona Principles: Second Edition, Best Practices Recommendations & Principles for Addressing Electronic Document Production 17 (Jonathan M. Redgrave et al. ed., 2d ed. 2007) (“Electronic discovery burdens should be proportional to the amount in controversy and the nature of the case. Otherwise, transaction costs due to electronic discovery will overwhelm the ability to resolve disputes fairly in litigation.”)). Second, the proposal would override paragraph (b)(3)(iii), which is based on FRCP 26(f)(3)(C) making any issues about disclosure or discovery of ESI, including the form or forms in which it should be produced, a required item in discovery plans. This proposal also conflicts with § 18.51(b)(2) which, like FRCP 26(b)(2)(B) upon which it is based, provides that ESI discovery issues are to be determined by the judge on a motion to compel or for protective order. In sum, the Department's new rules on disclosure and discovery of ESI track the provisions in the FRCP which were developed after consideration of the competing interests at stake with regard to ESI, and the Department is not persuaded that a different approach is necessary or desirable in proceedings before the OALJ.

The Department received one comment concerning the timing of initial disclosures for parties who are served or joined later. The commenter proposed adding the following sentence to the end of paragraph (c)(1)(v): “Copies of all prior disclosures shall be served on the newly joined party within 14 days of the joinder.” Such an addition is helpful because it is common in LHWCA and BLBA cases for additional parties to be joined after the commencement of the OALJ proceeding. Therefore, the Department has added the following sentence to the end of paragraph (c)(1)(v) in the final rule:

Copies of all prior disclosures must be served on a newly served or joined party within 21 days of the service or joinder.

Two comments advocated adoption of early discovery protocols similar to the pilot project that has been implemented by some federal district courts to streamline discovery and reduce costs in certain employment discrimination cases.

See

Federal Judicial Center, Pilot Project Regarding Initial Discovery Protocols for Employment Cases Alleging Adverse Action (2011), available at

www.fjc.gov/public/pdf.nsf/lookup/discempl.pdf/$file/discempl.pdf

. Incorporating a pilot

project designed for a limited class of cases into a set of uniform rules of practice and procedure is not desirable. To the extent such initiatives may be beneficial in certain cases, the Department has concluded that the determination to adopt such procedures is best left to the discretion of individual judges and/or discovery plans developed by parties pursuant to paragraph (b)(3).

One comment proposed that paragraph (d)(3) should be revised to explicitly state that it does not apply to LHWCA and BLBA proceedings because 33 U.S.C. 927(b) expressly provides a procedure (

i.e.,

certification of facts to a federal district court for summary contempt proceedings) for addressing discovery violations. A party's failure to comply with the certification requirements likely would not involve refusal to comply with an order and, therefore would not be cognizable as contempt subject to section 927(b).

See A-Z Intn'l

Phillips,

§ 18.51 Discovery scope and limits.

One comment suggested that the language of paragraph (a) defining the scope of discovery could be read as precluding discovery of prior medical records. The commenter focused this concern on the second sentence of the rule which states that “the judge may order discovery of any matter relevant to the subject matter involved in the proceeding.” The commenter preferred language limiting discovery to matters “relevant to the subject matter of the proceeding” and, alternatively, suggested that the record should clearly state that prior medical records are relevant to a party's claim or defense when medical questions are at issue. The Department rejects this proposal as essentially seeking a substantive determination that prior medical records are discoverable without limitation in all proceedings as long as there is some medical issue in play. While such records may well be relevant and discoverable in many cases where medical issues are raised, it is not difficult to foresee situations where production of a person's prior medical records might not be required. In the Department's view, determinations as to the scope of discovery with respect to specific categories of information cannot be properly addressed in a general procedural rule and, instead, must be left to case-by-case adjudication.

Another comment stated that the exceptions established by paragraph (d)(3)(i) through (iii) to the general rule embodied in paragraphs (c)(1) and (2) which protect against disclosure of communications between a party's representative and an expert witness are not adequate to ensure access to evidence of fraud, abuse or influence such as a party's attorney writing the expert's report. The commenter suggested that the exceptions should be broadened to ensure disclosure of such evidence or that paragraphs (c)(1) and (c)(2) should be eliminated. The Department's new rules addressing disclosure of communications between a party's representative and an expert track the provisions of FRCP 26(b)(3) and (4), which were revised in 2010. While the Civil Rules Advisory Committee stated that the revisions to FRCP 26 were intended to alter pre-amendment case law that required disclosure of all attorney-expert communications and draft reports in favor of limiting disclosure to communications of a factual nature in order to protect the theories and mental impressions of counsel, the Advisory Committee emphasized that the “facts or data” exception should be interpreted broadly to require disclosure of “any facts or data `considered' by the expert in forming the opinions to be expressed, not only those relied upon by the expert.” Fed. R. Civ. P. 26 advisory committee's note (discussion of 2010 amendments);

see also Guillory

Domtar Indus.,

95 F.3d 1320, 1326 (5th Cir. 1996) (“Though summary judgment is rarely proper when an issue of intent is involved, the presence of an intent issue does not automatically preclude summary judgment; the case must be evaluated like any other to determine whether a genuine issue of material fact exists.”).

Another commenter objected that motions for summary judgment allow cases to be framed by the party that does not have the burden of proof at trial, and that under § 18.72, the moving party gets the last word. The commenter described complainants being “sandbagged” by primary briefs that provide abbreviated or unclear statements of facts or arguments, which are tactically written to prevent cogent or complete responses. Then, complainants are faced with reply briefs that clarify or even add arguments and provide additional authorities in support of those arguments. The commenter stated that many circuit courts deal with this problem by allowing surreply briefs, or by expressly limiting reply briefs to the four corners of the arguments made by the non-moving party in opposition to summary judgment. Thus, the commenter suggested a rule that specifically allows for a surreply, makes clear that the reply and surreply may only respond to material in the opposing submission, and states that all “new” material be disregarded by the court.

The Department declines to revise § 18.72 to expressly allow surreply briefs, or to expressly limit reply briefs to the four corners of the arguments made by the non-moving party in opposition to summary judgment. OALJ judges have the power necessary to conduct fair and impartial proceedings, and are capable of dealing with a parties' raising of new arguments in reply briefs without a specific rule. For example, in

Du Jardin

Morrison Knudsen Corp.,

1993-TSC-3 (ALJ Nov. 29, 1993), the ALJ refused to consider new arguments raised by the respondent in a reply brief to the complainant's response to the respondent's motion for summary decision. In

Inman

Fannie Mae,

2007-SOX-47 (ALJ Mar. 5, 2008),

rev'd and remanded on other grounds, Inman

Fannie Mae,

ARB No. 08-060, ALJ No. 2007-SOX-47 (ARB June 28, 2011), the ALJ permitted the complainant to file a surreply on a motion for summary decision. The Department notes that under FRCP 56, on which § 18.72 is modeled, there is no right to file a surreply. Although the commenter stated that many circuit courts allow surreply briefs, it did not identify those circuits. Our review of federal appellate court rules and circuit court local rules found that the rules generally do not mention surreply briefs, or only allow them upon leave of the court.

See, e.g.,

Dist. N.M. Local R. Civ. P. 7.4(b) (2013); Dist. N.H. Local R. 7.1e(3) (2013).

Two commenters suggested that the timing aspects of § 18.72 will be troublesome for whistleblower complainants, for whom the efficiency and cost of opposing motions for summary judgment is of paramount importance. Motions for summary decision are usually filed by respondents, and consequently, when such motions are filed near to the hearing date, complainants are disadvantaged because they are severely burdened by the need to respond to the motion and prepare for the evidentiary hearing within a short time period. The commenters recommended that: (1) Substantive summary motions aimed at eliminating claims or types of damages should be filed no later than 90 days prior to a hearing date; (2) counsel responding to such motions should have 21 to 30 days to file their responsive pleadings; and (3) all such motions should be resolved at least 30 days prior to a hearing date.

The Department declines to revise § 18.72 to require summary decision motions be filed no later than 90 days prior to a hearing date. Prior § 18.40(a) provided that a party may file a motion for summary decision at least 20 days before the date fixed for any hearing. With the new § 18.72, the Department increased the timeframe for filing motions for summary decision to 30 days before the date fixed for the formal

hearing. In the OALJ's experience, this timeframe would generally afford sufficient time for all parties and the judge to address the motion. As noted in the new § 18.10(a), the OALJ rules of practice and procedure are to be administered to secure the just, speedy, and inexpensive determination of every proceeding. In whistleblower cases, in particular, the regulations direct that hearings are to commence expeditiously.

See, e.g.,

20 CFR 1979.107(b). Moreover, if necessary, § 18.72 gives the ALJ the discretion to adjust deadlines, as appropriate.

One comment argued that § 18.72(h) should be revised to explicitly state that it does not apply in proceedings under the LHWCA and the BLBA because 33 U.S.C. 927(b) expressly provides a procedure (

i.e.,

certification of facts to a federal district court for summary contempt proceedings) for resistance of a lawful order, misconduct during hearings, and discovery violations. The commenter thus argued that the sanctions listed in the § 18.72(h) are unavailable to ALJs presiding in hearings under the LHWCA or BLBA. The Department declines to adopt the commenters' suggestion for the reasons detailed above in section II, “

Conflicts with the LHWCA and BLBA

.”

§ 18.80 Prehearing statement.

The Department added a requirement that a participating party file a prehearing statement at least 21 days prior to the date set for hearing. Prior § 18.7 did not have a requirement for filing prehearing statements.

A commenter proposed that the time for filing the prehearing statement be extended to 45 days prior to hearing to allow the parties time to ascertain if additional discovery is needed, and to prevent the need for continuances to conduct discovery on witnesses and evidence not timely disclosed. The commenter argued that the additional time will preclude post trial depositions to rectify untimely disclosed information. The Department declines to extend the date for submission of the prehearing statement and notes that the rule allows for the judge to order a different time frame, if appropriate.

A commenter objected to the statement in the NPRM that the Department proposed to add a new regulation at § 18.80(e) requiring a party to file objections to an opposing party's proposed exhibits or use of deposition testimony within 14 days of being served, and that failure to object waives an objection unless the judge finds good cause for failure to object. The NPRM is in error. The new rule does not include such a provision.

§ 18.84 Official notice.

The Department clarifies procedures in § 18.84 that a judge may follow when taking judicial notice. The rule provides that official notice may be taken of any adjudicative fact or other matter subject to judicial notice, and the parties must be given an adequate opportunity to show the contrary of the matter noticed.

A commenter objected to a practice by ALJs in BLBA claims of taking official notice of the Dictionary of Occupational Titles (4th ed. Rev. 1991). He contended that such practice invades upon the province of a medical expert who must consider job duties and tasks in assessing whether a pulmonary impairment would or would not prevent the performance of such tasks. Although the Department agrees with the commenter that a matter subject to judicial notice is a matter whose accuracy cannot be reasonably questioned, it declines to identify specific matters for which official notice is not appropriate. The rule states that parties must be given an adequate opportunity to show the contrary of the matter noted. The Department accordingly declines to amend this provision.

§ 18.87 Standards of conduct.

The Department relocated the prior § 18.36 to § 18.87 and divided the prior paragraph (b) into two paragraphs: (b)

Exclusion for misconduct,

and (c)

Review of representative's exclusion.

A commenter contended that the rule should be revised to explicitly state that § 18.87 does not apply in proceedings under the LHWCA and BLBA. The commenter reasoned that rules of procedure apply only to the extent that they are consistent with the BLBA or its implementing regulations, and since the LHWCA and BLBA contain a specific statutory provision dealing with the resistance of an order, misconduct during hearings, and discovery violations, 33 U.S.C. 927(b), the sanction provisions under either the Rules of Practice and Procedure before the OALJ or the FRCP do not apply. The commenter also objected to the rule because Congress did not vest the OALJ with contempt powers. The Department declines to adopt the commenters' suggestion for the reasons detailed above in section II, “

Conflicts with the LHWCA and BLBA

.”

§ 18.88 Transcript of proceedings.

Section 18.88(b) of the new rule states that motions to correct the official transcript must be filed within 14 days of the receipt of the transcript unless the judge permits additional time. A commenter suggested that motions to correct be filed seven days after filing of the post-hearing brief. The commenter reasoned that attorneys typically review the transcript as they write the brief, and that counsel can be more helpful in this regard after they have reviewed the transcript in preparation for their brief. The Department declines to extend the date for motions to correct. The Department contemplates that parties would have a corrected transcript at the time they prepare their brief. Also, the rule allows for correction of errors discovered during preparation of a brief, as the rule provides that a judge may correct errors in the transcript at any time before issuing a decision and upon notice to the parties.

§ 18.92 Decision and order.

The Department revised the prior § 18.57 into two sections, § 18.91, Post-hearing Briefs; and § 18.92, Decision and Order. The language that the Department deleted stated that the ALJ was to issue a decision within a “reasonable time” after receiving the parties' filings or within 30 days after receiving the parties' consent findings. Two commenters submitted concerns about the new § 18.92. They observed that, under the current practice, parties “have no mechanism or ability to know when decisions will be issued,” and expressed concern that delays adversely impact both employers and employees. The Department has determined that questions about how long it takes the OALJ's judges to issue their decisions are best handled as matters of policy and resource allocation. The Department therefore declines to adopt the commenters' suggestions that § 18.92 be amended to include a timeframe for issuance of a judge's decision.

§ 18.93 Motion for reconsideration.

The prior rule contained no general provision on motions for reconsideration of decisions and orders. The Department added a new provision stating that motions for reconsideration of a decision and order must be filed within 10 days after service of the decision on the moving party.

One commenter suggested that the provision be amended to permit motions for reconsideration to be filed within 30 days, instead of the 10 days in the new rule. The commenter stated that the BLBA regulation permits such motions to be filed within 30 days. 20 CFR 725.479(b). In the commenter's view, its proposal will provide for uniformity among all types of cases. The commenter also indicated that a longer time period for such motions will obviate the need to submit motions for extensions of time to file motions for reconsideration, and will provide practitioners and their clients with sufficient time to make informed

decisions about whether to even file motions for reconsideration. Broad motions aimed at all issues will thus be avoided and the resulting burden on ALJs will be reduced.

As the commenter correctly indicated, and as mentioned in the NPRM, the new rule is modeled after FRCP 59(e), which gives parties 28 days from the date of entry of a judgment to file a motion to alter or amend the judgment. A motion for reconsideration may be filed in BLBA cases within 30 days. 20 CFR 725.479(b). Compensation orders in LHWCA cases similarly are final 30 days after filing unless other proceedings are instituted.

The Department considered other timeframes for motions for reconsideration that were more in line with FRCP 59(e) or 20 CFR 725.479(b). However, some of the Department's regulations pertaining to specific statutes within the OALJ's purview state that the ALJ's decision and order is final, unless a petition for review is filed with the ARB within a specific time, less than 30 days from service of the ALJ's decision and order.

See, e.g.,

29 CFR 1978.109(e)(specifying 14 days for cases under the Surface Transportation Assistance Act); 29 CFR 1980.110(e) (specifying 10 days for cases under the Sarbanes-Oxley Act); 29 CFR 1992.110(a)(specifying 10 days for cases under the National Transit Systems Security Act/Federal Railroad Safety Act). Permitting a party to move for reconsideration after the date that a petition for review must be filed with the ARB would be inconsistent with the Department's position regarding finality of ALJ decisions in such cases. Additionally, if the deadline for submitting a motion for reconsideration is after the deadline for submitting a petition for review, if a motion for reconsideration is not submitted, a party may thereby inadvertently foreclose its options regarding appeal. The Department therefore declines to adopt the commenter's suggestion regarding the number of days within which motions for reconsideration can be filed.

IV. Cross Referencing Chart

To assist in the transition to the revised Subpart A, the chart below provides cross references between the new section and section title, and the old section and section title of each rule. The chart also provides cross references to the corresponding FRCP rule, where applicable. Finally, the chart lists the sections from the old Subpart A that have been deleted.

Part 18, Subpart A—Cross Referencing Chart

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 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 or 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 material

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; subsequent motions

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

List of Subjects in 29 CFR Part 18

Administrative practice and procedure, Labor.

Signed: At Washington, DC, this 7th of May, 2015.

Thomas E. Perez,

Secretary of Labor.

For the reasons set forth in the preamble, amend part 18 of title 29 of the Code of Federal Regulations as follows:

PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES

1. The authority citation for part 18 continues to read as follows:

Authority:

5 U.S.C. 301; 5 U.S.C. 551-553; 5 U.S.C. 571 note; E.O. 12778; 57 FR 7292.

2. Revise subpart A to read as follows:

Subpart A—General

Sec.

General Provisions

18.10

Scope and purpose.

18.11

Definitions.

18.12

Proceedings before administrative law judge.

18.13

Settlement judge procedure.

18.14

Ex parte communication.

18.15

Substitution of administrative law judge.

18.16

Disqualification.

18.17

Legal assistance.

Parties and Representatives

18.20

Parties to a proceeding.

18.21

Party appearance and participation.

18.22

Representatives.

18.23

Disqualification of representatives.

18.24

Briefs from amicus curiae.

Service, Format, and Timing of Filings and Other Papers

18.30

Service and filing.

18.31

Privacy protection for filings and exhibits.

18.32

Computing and extending time.

18.33

Motions and other papers.

18.34

Format of papers filed.

18.35

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

18.36

Amendments after referral to the Office of Administrative Law Judges.

Prehearing Procedure

18.40

Notice of hearing.

18.41

Continuances and changes in place of hearing.

18.42

Expedited proceedings.

18.43

Consolidation; separate hearings.

18.44

Prehearing conference.

Disclosure and Discovery

18.50

General provisions governing disclosure and discovery.

18.51

Discovery scope and limits.

18.52

Protective orders.

18.53

Supplementing disclosures and responses.

18.54

Stipulations about discovery procedure.

18.55

Using depositions at hearings.

18.56

Subpoena.

18.57

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

Types of Discovery

18.60

Interrogatories to parties.

18.61

Producing documents, electronically stored information, and tangible things, or entering onto land, for inspection and other purposes.

18.62

Physical and mental examinations.

18.63

Requests for admission.

18.64

Depositions by oral examination.

18.65

Depositions by written questions.

Disposition Without Hearing

18.70

Motions for dispositive action.

18.71

Approval of settlement or consent findings.

18.72

Summary decision.

Hearing

18.80

Prehearing statement.

18.81

Formal hearing.

18.82

Exhibits.

18.83

Stipulations.

18.84

Official notice.

18.85

Privileged, sensitive, or classified material.

18.86

Hearing room conduct.

18.87

Standards of conduct.

18.88

Transcript of proceedings.

Post Hearing

18.90

Closing the record; subsequent motions.

18.91

Post-hearing brief.

18.92

Decision and order.

18.93

Motion for reconsideration.

18.94

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

18.95

Review of decision

General Provisions

§ 18.10

Scope and purpose.

(a)

In general.

These rules govern the procedure in proceedings before the United States Department of Labor, Office of Administrative Law Judges. They should be construed and administered to secure the just, speedy, and inexpensive determination of every proceeding. To the extent that these rules may be inconsistent with a governing statute, regulation, or executive order, the latter controls. If a specific Department of Labor regulation governs a proceeding, the provisions of that regulation apply, and these rules apply to situations not addressed in the governing regulation. The Federal Rules of Civil Procedure (FRCP) apply in any situation not provided for or controlled by these rules, or a governing statute, regulation, or executive order.

(b)

Type of proceeding.

Unless the governing statute, regulation, or executive order prescribes a different procedure, proceedings follow the Administrative Procedure Act, 5 U.S.C. 551 through 559.

(c)

Waiver, modification, and suspension.

Upon notice to all parties, the presiding judge may waive, modify, or suspend any rule under this subpart when doing so will not prejudice a party and will serve the ends of justice.

§ 18.11

Definitions.

For purposes of these rules, these definitions supplement the definitions in the Administrative Procedure Act, 5 U.S.C. 551.

Calendar call

means a meeting in which the judge calls cases awaiting hearings, determines case status, and assigns a hearing date and time.

Chief Judge

means the Chief Administrative Law Judge of the United States Department of Labor Office of Administrative Law Judges and judges to whom the Chief Judge delegates authority.

Docket clerk

means the Chief Docket Clerk at the Office of Administrative Law Judges in Washington, DC. But once a case is assigned to a judge in a district office,

docket clerk

means the docket staff in that office.

Hearing

means that part of a proceeding consisting of a session to decide issues of fact or law that is recorded and transcribed and provides the opportunity to present evidence or argument.

Judge

means an administrative law judge appointed under the provisions of 5 U.S.C. 3105.

Order

means the judge's disposition of one or more procedural or substantive issues, or of the entire matter.

Proceeding

means an action before the Office of Administrative Law Judges

that creates a record leading to an adjudication or order.

Representative

means any person permitted to represent another in a proceeding before the Office of Administrative Law Judges.

§ 18.12

Proceedings before administrative law judge.

(a)

Designation.

The Chief Judge designates the presiding judge for all proceedings.

(b)

Authority.

In all proceedings under this part, the judge has all powers necessary to conduct fair and impartial proceedings, including those described in the Administrative Procedure Act, 5 U.S.C. 556. Among them is the power to:

(1) Regulate the course of proceedings in accordance with applicable statute, regulation or executive order;

(2) Administer oaths and affirmations and examine witnesses;

(3) Compel the production of documents and appearance of witnesses within a party's control;

(4) Issue subpoenas authorized by law;

(5) Rule on offers of proof and receive relevant evidence;

(6) Dispose of procedural requests and similar matters;

(7) Terminate proceedings through dismissal or remand when not inconsistent with statute, regulation, or executive order;

(8) Issue decisions and orders;

(9) Exercise powers vested in the Secretary of Labor that relate to proceedings before the Office of Administrative Law Judges; and

(10) Where applicable take any appropriate action authorized by the FRCP.

§ 18.13

Settlement judge procedure.

(a)

How initiated.

The Office of Administrative Law Judges provides settlement judges to aid the parties in resolving the matter that is the subject of the controversy. Upon a joint request by the parties or upon referral by the judge when no party objects, the Chief Judge may appoint a settlement judge. A settlement judge will not be appointed when settlement proceedings would be inconsistent with a statute, regulation, or executive order.

(b)

Appointment.

The Chief Judge has discretion to appoint a settlement judge, who must be an active or retired judge. The settlement judge will not be appointed to hear and decide the case or approve the settlement without the parties' consent and the approval of the Chief Judge.

(c)

Duration of settlement proceeding.

Unless the Chief Judge directs otherwise, settlement negotiations under this section must be completed within 60 days from the date of the settlement judge's appointment. The settlement judge may request that the Chief Judge extend the appointment. The negotiations will be terminated if a party withdraws from participation, or if the settlement judge determines that further negotiations would be unproductive or inappropriate.

(d)

Powers of the settlement judge.

The settlement judge may convene settlement conferences; require the parties or their representatives to attend with full authority to settle any disputes; and impose other reasonable requirements to expedite an amicable resolution of the case.

(e)

Stay of proceedings before presiding judge.

The appointment of a settlement judge does not stay any aspect of the proceeding before the presiding judge. Any motion to stay must be directed to the presiding judge.

(f)

Settlement conferences.

Settlement conferences may be conducted by telephone, videoconference or in person at the discretion of the settlement judge after considering the nature of the case, location of the participants, availability of technology, and efficiency of administration.

(g)

Confidentiality.

All discussions with the settlement judge are confidential; none may be recorded or transcribed. The settlement judge must not disclose any confidential communications made during settlement proceedings, except as required by statute, executive order, or court order. The settlement judge may not be subpoenaed or called as a witness in any hearing of the case or any subsequent administrative proceedings before the Department to testify to statements made or conduct during the settlement discussions.

(h)

Report.

The parties must promptly inform the presiding judge of the outcome of the settlement negotiations. If a settlement is reached, the parties must submit the required documents to the presiding judge within 14 days of the conclusion of settlement discussions unless the presiding judge orders otherwise.

(i)

Non-reviewable decisions.

Whether a settlement judge should be appointed, the selection of a particular settlement judge, and the termination of proceedings under this section are matters not subject to review by Department officials.

§ 18.14

Ex parte communication.

The parties, their representatives, or other interested persons must not engage in ex parte communications on the merits of a case with the judge.

§ 18.15

Substitution of administrative law judge.

(a)

Substitution during hearing.

If the judge is unable to complete a hearing, a successor judge designated pursuant to § 18.12 may proceed upon certifying familiarity with the record and determining that the case may be completed without prejudice to the parties. The successor judge must, at a party's request, recall any witness whose testimony is material and disputed and who is available to testify again without undue burden. The successor judge may also recall any other witness.

(b)

Substitution following hearing.

If the judge is unable to proceed after the hearing is concluded, the successor judge appointed pursuant to § 18.12 may issue a decision and order based upon the existing record after notifying the parties and giving them an opportunity to respond. Within 14 days of receipt of the judge's notice, a party may file an objection to the judge issuing a decision based on the existing record. If no objection is filed, the objection is considered waived. Upon good cause shown, the judge may order supplemental proceedings.

§ 18.16

Disqualification.

(a)

Disqualification on judge's initiative.

A judge must withdraw from a proceeding whenever he or she considers himself or herself disqualified.

(b)

Request for disqualification.

A party may file a motion to disqualify the judge. The motion must allege grounds for disqualification, and include any appropriate supporting affidavits, declarations or other documents. The presiding judge must rule on the motion in a written order that states the grounds for the ruling.

§ 18.17

Legal assistance.

The Office of Administrative Law Judges does not appoint representatives, refer parties to representatives, or provide legal assistance.

Parties and Representatives

§ 18.20

Parties to a proceeding.

A party seeking original relief or action is designated a complainant, claimant or plaintiff, as appropriate. A party against whom relief or other action is sought is designated a respondent or defendant, as appropriate. When participating in a proceeding, the applicable Department of Labor's agency is a party or party-in-interest.

§ 18.21

Party appearance and participation.

(a)

In general.

A party may appear and participate in the proceeding in person or through a representative.

(b)

Waiver of participation.

By filing notice with the judge, a party may waive the right to participate in the hearing or the entire proceeding. When all parties waive the right to participate in the hearing, the judge may issue a decision and order based on the pleadings, evidence, and briefs.

(c)

Failure to appear.

When a party has not waived the right to participate in a hearing, conference or proceeding but fails to appear at a scheduled hearing or conference, the judge may, after notice and an opportunity to be heard, dismiss the proceeding or enter a decision and order without further proceedings if the party fails to establish good cause for its failure to appear.

§ 18.22

Representatives.

(a)

Notice of appearance.

When first making an appearance, each representative must file a notice of appearance that indicates on whose behalf the appearance is made and the proceeding name and docket number. Any attorney representative must include in the notice of appearance the license registration number(s) assigned to the attorney.

(b)

Categories of representation; admission standards

—(1)

Attorney representative.

Under these rules, “attorney” or “attorney representative” means an individual who has been admitted to the bar of the highest court of a State, Commonwealth, or Territory of the United States, or the District of Columbia.

(i)

Attorney in good standing.

An attorney who is in good standing in his or her licensing jurisdiction may represent a party or subpoenaed witness before the Office of Administrative Law Judges. The filing of the Notice of Appearance required in paragraph (a) of this section constitutes an attestation that:

(A) The attorney is a member of a bar in good standing of the highest court of a State, Commonwealth, or Territory of the United States, or the District of Columbia where the attorney has been licensed to practice law; and

(B) No disciplinary proceeding is pending against the attorney in any jurisdiction where the attorney is licensed to practice law.

(ii)

Attorney not in good standing.

An attorney who is not in good standing in his or her licensing jurisdiction may not represent a party or subpoenaed witness before the Office of Administrative Law Judges, unless he or she obtains the judge's approval. Such an attorney must file a written statement that establishes why the failure to maintain good standing is not disqualifying. The judge may deny approval for the appearance of such an attorney after providing notice and an opportunity to be heard.

(iii)

Disclosure of discipline.

An attorney representative must promptly disclose to the judge any action suspending, enjoining, restraining, disbarring, or otherwise currently restricting the attorney in the practice of law in any jurisdiction where the attorney is licensed to practice law.

(2)

Non-attorney representative.

An individual who is not an attorney as defined by paragraph (b)(1) of this section may represent a party or subpoenaed witness upon the judge's approval. The individual must file a written request to serve as a non-attorney representative that sets forth the name of the party or subpoenaed witness represented and certifies that the party or subpoenaed witness desires the representation. The judge may require that the representative establish that he or she is subject to the laws of the United States and possesses communication skills, knowledge, character, thoroughness and preparation reasonably necessary to render appropriate assistance. The judge may inquire as to the qualification or ability of a non-attorney representative to render assistance at any time. The judge may deny the request to serve as non-attorney representative after providing the party or subpoenaed witness with notice and an opportunity to be heard.

(c)

Duties.

A representative must be diligent, prompt, and forthright when dealing with parties, representatives and the judge, and act in a manner that furthers the efficient, fair and orderly conduct of the proceeding. An attorney representative must adhere to the applicable rules of conduct for the jurisdiction(s) in which the attorney is admitted to practice.

(d)

Prohibited actions.

A representative must not:

(1) Threaten, coerce, intimidate, deceive or knowingly mislead a party, representative, witness, potential witness, judge, or anyone participating in the proceeding regarding any matter related to the proceeding;

(2) Knowingly make or present false or misleading statements, assertions or representations about a material fact or law related to the proceeding;

(3) Unreasonably delay, or cause to be delayed without good cause, any proceeding; or

(4) Engage in any other action or behavior prejudicial to the fair and orderly conduct of the proceeding.

(e)

Withdrawal of appearance.

A representative who desires to withdraw after filing a notice of appearance or a party desiring to withdraw the appearance of a representative must file a motion with the judge. The motion must state that notice of the withdrawal has been given to the party, client or representative. The judge may deny a representative's motion to withdraw when necessary to avoid undue delay or prejudice to the rights of a party.

§ 18.23

Disqualification of representatives.

(a)

Disqualification

—(1)

Grounds for disqualification.

Representatives qualified under § 18.22 may be disqualified for:

(i) Suspension of a license to practice law or disbarment from the practice of law by any court or agency of the United States, highest court of a State, Commonwealth, or Territory of the United States, or the District of Columbia;

(ii) Disbarment from the practice of law on consent or resignation from the bar of a court or agency while an investigation into an allegation of misconduct is pending; or

(iii) Committing an act, omission, or contumacious conduct that violates these rules, an applicable statute, an applicable regulation, or the judge's order(s).

(2)

Disqualification procedure.

The Chief Judge must provide notice and an opportunity to be heard as to why the representative should not be disqualified from practice before the Office of Administrative Law Judges. The notice will include a copy of the document that provides the grounds for the disqualification. Unless otherwise directed, any response must be filed within 21 days of service of the notice. The Chief Judge's determination must be based on the reliable, probative and substantial evidence of record, including the notice and response.

(b)

Notification of disqualification action.

When an attorney representative is disqualified, the Chief Judge will notify the jurisdiction(s) in which the attorney is licensed to practice and the National Lawyer Regulatory Data Bank maintained by the American Bar Association Standing Committee on Professional Discipline, by providing a copy of the decision and order.

(c)

Application for reinstatement.

A representative disqualified under this section may be reinstated by the Chief Judge upon application. At the discretion of the Chief Judge, consideration of an application for reinstatement may be limited to written submissions or may be referred for

further proceedings before the Chief Judge.

§ 18.24

Briefs from amicus curiae.

The United States or an officer or agency thereof, or a State, Territory, Commonwealth, or the District of Columbia may file an amicus brief without the consent of the parties or leave of the judge. Any other amicus curiae may file a brief only by leave of the judge, upon the judge's request, or if the brief states that all parties have consented to its filing. A request for leave to file an amicus brief must be made by written motion that states the interest of the movant in the proceeding. The deadline for submission of an amicus brief will be set by the presiding judge.

Service, Format, and Timing of Filings and Other Papers

§ 18.30

Service and filing.

(a)

Service on parties

—(1)

In general.

Unless these rules provide otherwise, all papers filed with OALJ or with the judge must be served on every party.

(2)

Service: how made

—(i)

Serving a party's representative.

If a party is represented, service under this section must be made on the representative. The judge also may order service on the party.

(ii)

Service in general.

A paper is served under this section by:

(A) Handing it to the person;

(B) Leaving it;

(

) At the person's office with a clerk or other person in charge or, if no one is in charge, in a conspicuous place in the office; or

(

) If the person has no office or the office is closed, at the person's dwelling or usual place of abode with someone of suitable age and discretion who resides there.

(D) Leaving it with the docket clerk if the person has no known address;

(E) Sending it by electronic means if the person consented in writing—in which event service is complete upon transmission, but is not effective if the serving party learns that it did not reach the person to be served; or

(F) Delivering it by any other means that the person consented to in writing—in which event service is complete when the person making service delivers it to the agency designated to make delivery.

(3)

Certificate of service.

A certificate of service is a signed written statement that the paper was served on all parties. The statement must include:

(i) The title of the document;

(ii) The name and address of each person or representative being served;

(iii) The name of the party filing the paper and the party's representative, if any;

(iv) The date of service; and

(v) How the paper was served.

(b)

Filing with Office of Administrative Law Judges

—(1)

Required filings.

Any paper that is required to be served must be filed within a reasonable time after service with a certificate of service. But disclosures under § 18.50(c) and the following discovery requests and responses must not be filed until they are used in the proceeding or the judge orders filing:

(i) Notices of deposition,

(ii) Depositions,

(iii) Interrogatories,

(iv) Requests for documents or tangible things or to permit entry onto land;

(v) Requests for admission, and

(vi) The notice (and the related copy of the subpoena) that must be served on the parties under rule 18.56(b)(1) before a “documents only” subpoena may be served on the person commended to produce the material.

(2)

Filing: when made—in general.

A paper is filed when received by the docket clerk or the judge during a hearing.

(3)

Filing how made.

A paper may be filed by mail, courier service, hand delivery, facsimile or electronic delivery.

(i)

Filing by facsimile

—(A)

When permitted.

A party may file by facsimile only as directed or permitted by the judge. If a party cannot obtain prior permission because the judge is unavailable, a party may file by facsimile up to 12 pages, including a statement of the circumstances precluding filing by delivery or mail. Based on the statement, the judge may later accept the document as properly filed at the time transmitted.

(B)

Cover sheet.

Filings by facsimile must include a cover sheet that identifies the sender, the total number of pages transmitted, and the matter's docket number and the document's title.

(C)

Retention of the original document.

The original signed document will not be substituted into the record unless required by law or the judge.

(ii) Any party filing a facsimile of a document must maintain the original document and transmission record until the case is final. A transmission record is a paper printed by the transmitting facsimile machine that states the telephone number of the receiving machine, the number of pages sent, the transmission time and an indication that no error in transmission occurred.

(iii) Upon a party's request or judge's order, the filing party must provide for review the original transmitted document from which the facsimile was produced.

(4)

Electronic filing, signing, or verification.

A judge may allow papers to be filed, signed, or verified by electronic means.

§ 18.31

Privacy protection for filings and exhibits.

(a)

Redacted filings and exhibits.

Unless the judge orders otherwise, in an electronic or paper filing or exhibit that contains an individual's social-security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, or a financial-account number, the party or nonparty making the filing must redact all such information, except:

(1) The last four digits of the social-security number and taxpayer-identification number;

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

(3) The minor's initials; and

(4) The last four digits of the financial-account number.

(b)

Exemptions from the redaction requirement.

The redaction requirement does not apply to the following:

(1) The record of an administrative or agency proceeding;

(2) The official record of a state-court proceeding;

(3) The record of a court or tribunal, if that record was not subject to the redaction requirement when originally filed; and

(4) A filing or exhibit covered by paragraph (c) of this section.

(c)

Option for filing a reference list.

A filing that contains redacted information may be filed together with a reference list that identifies each item of redacted information and specifies an appropriate identifier that uniquely corresponds to each item listed. The reference list must be filed under seal and may be amended as of right. Any reference in the case to a listed identifier will be construed to refer to the corresponding item of information.

(d)

Waiver of protection of identifiers.

A person waives the protection of paragraph (a) of this section as to the person's own information by filing or offering it without redaction and not under seal.

(e)

Protection of material.

For good cause, the judge may order protection of material pursuant to §§ 18.85 and 18.52.

§ 18.32

Computing and extending time.

(a)

Computing time.

The following rules apply in computing any time

period specified in these rules, a judge's order, or in any statute, regulation, or executive order that does not specify a method of computing time.

(1) When the period is stated in days or a longer unit of time:

(i) Exclude the day of the event that triggers the period;

(ii) Count every day, including intermediate Saturdays, Sundays, and legal holidays; and

(iii) Include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.

(2)

“Last day” defined.

Unless a different time is set by a statute, regulation, executive order, or judge's order, the “last day” ends at 4:30 p.m. local time where the event is to occur.

(3)

“Next day” defined.

The “next day” is determined by continuing to count forward when the period is measured after an event and backward when measured before an event.

(4)

“Legal holiday” defined.

“Legal holiday” means the day set aside by statute for observing New Year's Day, Martin Luther King Jr.'s Birthday, Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, or Christmas Day; and any day on which the district office in which the document is to be filed is closed or otherwise inaccessible.

(b)

Extending time.

When an act may or must be done within a specified time, the judge may, for good cause, extend the time:

(1) With or without motion or notice if the judge acts, or if a request is made, before the original time or its extension expires; or

(2) On motion made after the time has expired if the party failed to act because of excusable neglect.

(c)

Additional time after certain kinds of service.

When a party may or must act within a specified time after service and service is made under § 18.30(a)(2)(B)(iii) or (iv), 3 days are added after the period would otherwise expire under paragraph (a) of this section.

§ 18.33

Motions and other papers.

(a)

In general.

A request for an order must be made by motion. The motion must:

(1) Be in writing, unless made during a hearing;

(2) State with particularity the grounds for seeking the order;

(3) State the relief sought;

(4) Unless the relief sought has been agreed to by all parties, be accompanied by affidavits, declarations, or other evidence; and

(5) If required by paragraph (c)(4) of this section, include a memorandum of points and authority supporting the movant's position.

(b)

Form.

The rules governing captions and other matters of form apply to motions and other requests.

(c)

Written motion before hearing.

(1) A written motion before a hearing must be served with supporting papers, at least 21 days before the time specified for the hearing, with the following exceptions:

(i) When the motion may be heard ex parte;

(ii) When these rules or an appropriate statute, regulation, or executive order set a different time; or

(iii) When an order sets a different time.

(2) A written motion served within 21 days before the hearing must state why the motion was not made earlier.

(3) A written motion before hearing must state that counsel conferred, or attempted to confer, with opposing counsel in a good faith effort to resolve the motion's subject matter, and whether the motion is opposed or unopposed. A statement of consultation is not required with pro se litigants or with the following motions:

(i) To dismiss;

(ii) For summary decision; and

(iii) Any motion filed as “joint,” “agreed,” or “unopposed.”

(4) Unless the motion is unopposed, the supporting papers 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 authority must also be submitted. A judge may direct the parties file additional documents in support of any motion.

(d)

Opposition or other response to a motion filed prior to hearing.

A party to the proceeding may file an opposition or other response to the motion within 14 days after the motion is served. The opposition or response may be accompanied by affidavits, declarations, or other evidence, and a memorandum of the points and authorities supporting the party's position. Failure to file an opposition or response within 14 days after the motion is served may result in the requested relief being granted. Unless the judge directs otherwise, no further reply is permitted and no oral argument will be heard prior to hearing.

(e) A

motions made at hearing.

A motion made at a hearing may be stated orally unless the judge determines that a written motion or response would best serve the ends of justice.

(f)

Renewed or repeated motions.

A motion seeking the same or substantially similar relief previously denied, in whole or in part, must include the following information:

(1) The earlier motion(s),

(2) When the respective motion was made,

(3) The judge to whom the motion was made,

(4) The earlier ruling(s), and

(5) The basis for the current motion.

(g)

Motion hearing.

The judge may order a hearing to take evidence or oral argument on a motion.

§ 18.34

Format of papers filed.

Every paper filed must be printed in black ink on 8.5 x 11-inch opaque white paper and 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 Office has not assigned a docket number, the paper must bear the case number assigned by the Department of Labor agency where the matter originated. 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).

§ 18.35

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

(a)

Date and signature.

Every written motion and other paper filed with OALJ must be dated and signed by at least one representative of record in the representative's name—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. The judge must strike an unsigned paper unless the omission is promptly corrected after being called to the representative's or party's attention.

(b)

Representations to the judge.

By presenting to the judge a written motion or other paper—whether by signing, filing, submitting, or later advocating it—the representative or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) It is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of the proceedings;

(2) The claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) The factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

(c)

Sanctions

—(1)

In general.

If, after notice and a reasonable opportunity to respond, the judge determines that paragraph (b) of this section has been violated, the judge may impose an appropriate sanction on any representative, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.

(2)

Motion for sanctions.

A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates paragraph (b) of this section. The motion must be served under § 18.30(a), but it must not be filed or be presented to the judge if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the judge sets.

(3)

On the judge's initiative.

On his or her own, the judge may order a representative, law firm, or party to show cause why conduct specifically described in the order has not violated paragraph (b) of this section.

(4)

Nature of a sanction.

A sanction imposed under this section may include, but is not limited to, striking part or all of the offending document, forbidding the filing of any further documents, excluding related evidence, admonishment, referral of counsel misconduct to the appropriate licensing authority, and including the sanctioned activity in assessing the quality of representation when determining an appropriate hourly rate and billable hours when adjudicating attorney fees.

(5)

Requirements for an order.

An order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanction.

(d)

Inapplicability to discovery.

This section does not apply to disclosures and discovery requests, responses, objections, and motions under §§ 18.50 through 18.65.

§ 18.36

Amendments after referral to the Office of Administrative Law Judges.

The judge may allow parties to amend and supplement their filings.

Prehearing Procedure

§ 18.40

Notice of hearing.

(a)

In general.

Except when the hearing is scheduled by calendar call, the judge must notify the parties of the hearing's date, time, and place at least 14 days before the hearing. The notice is sent by regular, first-class mail, unless the judge determines that circumstances require service by certified mail or other means. The parties may agree to waive the 14-day notice for the hearing.

(b)

Date, time, and place.

The judge must consider the convenience and necessity of the parties and the witness

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