[Federal Register Volume 77, Number 233 (Tuesday, December 4, 2012)]
[Proposed Rules]
[Pages 72141-72193]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-28516]
[[Page 72141]]
Vol. 77
Tuesday,
No. 233
December 4, 2012
Part IV
Department of Labor
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Office of the Secretary
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29 CFR Part 18
Rules of Practice and Procedure for Hearings Before the Office of
Administrative Law Judges; Proposed Rule
Federal Register / Vol. 77 , No. 233 / Tuesday, December 4, 2012 /
Proposed Rules
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DEPARTMENT OF LABOR
Office of the Secretary
29 CFR Part 18
RIN 1290-AA26
Rules of Practice and Procedure for Hearings Before the Office of
Administrative Law Judges
AGENCY: Office of the Secretary, Labor.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Labor proposes to revise and reorganize the
Rules of Practice and Procedure for Administrative Hearings Before the
Office of Administrative Law Judges, from our regulations, which
provide procedural guidance to administrative law judges, claimants,
employers, and Department of Labor representatives seeking to resolve
disputes under a variety of employment and labor laws. The Office of
Administrative Law Judges promulgated these regulations in 1983. The
regulations were modeled on the Federal Rules of Civil Procedure (FRCP)
and have proved extraordinarily helpful in providing litigants with
familiar rules governing hearing procedure.
Since 1983, the FRCP have been amended many times. Moreover, in
2007 the FRCP were given a complete revision to improve style and
clarity. The nature of litigation has also changed in the past 28
years, particularly in the areas of discovery and electronic records.
Thus, OALJ has revised its regulations to make the rules more
accessible and useful to parties, and to harmonize administrative
hearing procedures with the current FRCP. The goal in amending the
regulations is to provide clarity through the use of consistent
terminology, structure and formatting so that parties have clear
direction when pursuing or defending against a claim.
In addition to revising the regulations to conform to modern legal
procedure, the rules need to be modified to reflect the types of claims
now heard by OALJ. When the rules were promulgated in 1983, OALJ
primarily adjudicated occupational disease and injury cases. Presently,
and looking ahead to the future, OALJ is and will be increasingly
tasked with hearing whistleblower and other workplace retaliation
claims, in addition to the occupational disease and injury cases. These
types of cases require more structured management and oversight by the
presiding administrative law judge and more sophisticated motions and
discovery procedures than the current regulations provide. In order to
best manage the complexities of whistleblower and discrimination
claims, OALJ needs to update its rules to address the procedural
questions that arise in these cases.
DATES: Submit comments on or before February 4, 2013.
ADDRESSES: You may submit comments by any of the following methods:
Electronically: You may submit your comments and attachments
electronically at www.regulations.gov.
Mail, hand delivery, express mail, messenger or courier service:
You may submit your comments and attachments to the U.S. Department of
Labor, Office of Administrative Law Judges, 800 K Street NW., Suite
400-North, Washington, DC 20001-8002; telephone (202) 693-7300.
Deliveries (hand, express mail, messenger, and courier service) are
accepted during the Office of Administrative Law Judges' normal
business hours, 8:00 a.m.-4:30 p.m., e.t.
Instruction for submitting comments: Please submit only one copy of
your comments via any of the methods noted in this section. All
submissions received must include the agency name, as well as RIN 1290-
AA26. Also, please note that due to security concerns, postal mail
delivery in Washington, DC may be delayed. Therefore, in order to
ensure that comments are received on time, the Department encourages
the public to submit comments electronically as indicated above. For
further information on submitting comments, plus additional information
on the rulemaking process, see the ``Public Participation'' heading in
the SUPPLEMENTARY INFORMATION section of this notice.
FOR FURTHER INFORMATION CONTACT: Todd Smyth at the U.S. Department of
Labor, Office of Administrative Law Judges, 800 K Street NW Suite 400-
North, Washington, DC 20001-8002; telephone (202) 693-7300.
SUPPLEMENTARY INFORMATION:
I. Background
Administrative law judges at the Office of Administrative Law
Judges (OALJ), United States Department of Labor (Department), conduct
formal hearings under the Administrative Procedure Act, 5 U.S.C. 554
through 557. An administrative law judge manages hearings that mirror
federal civil litigation, is bound by applicable rules of evidence and
procedure, and is insulated from political influence. See Tennessee v.
U.S. Dep't of Transp., 326 F.3d 729, 735-36 (6th Cir. 2003). An
administrative law judge acts as the functional equivalent of a trial
judge. See Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743,
756-57 (2002). The types of cases heard by administrative law judges
involve a full range of complexity, from simple administrative review
of an existing administrative record to de novo, trial-type litigation.
Consequently, rules of practice and procedure are essential to a just,
speedy, and inexpensive determination of every proceeding.
The current Rules of Practice and Procedure for Administrative
Hearings before the Office of Administrative Law Judges, 29 CFR part
18, subpart A (Part 18, Subpart A), were published on July 15, 1983.
See 48 FR 32538, 32538, July 15, 1983. Rarely have they been altered.
Some rules relating to discovery were amended in 1994. See 59 FR 41874,
41876, Aug. 15, 1994. The most recent amendment, made in August 1999,
permitted the appointment of settlement judges in cases arising under
the Longshore and Harbor Workers' Compensation Act (Longshore Act), 33
U.S.C. 901 et seq., and associated statutes. See 64 FR 47088, 47089,
Aug. 27, 1999. Since its original publication, Part 18, Subpart A has
never been comprehensively revised to keep abreast of ongoing changes
to the procedures that govern civil litigation in federal trial courts.
The OALJ rules of practice and procedure are analogous to the
Federal Rules of Civil Procedure used in the United States District
Courts. Congress authorized the Supreme Court to prescribe rules for
the United States District Courts in 1934, under the Rules Enabling
Act, 28 U.S.C. 2072. The original version of those rules became
effective on September 16, 1938.\1\ Since 1938, thirty-three sessions
of Congress have approved changes to the FRCP, from 1941 through the
most recent amendments that took effect on December 1, 2010.
Significant amendments became effective in 1948, 1963, 1966, 1970,
1980, 1983, 1987, 1993, 2000, 2006, 2007, 2009, and 2010. Id. The
procedural rules for OALJ have not kept pace with the eight groups of
changes to the FRCP since the early 1980s.
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\1\ Staff of H. Comm. on the Judiciary, 111th Cong., Federal
Rules of Civil Procedure with Forms at vii (Comm. Print 2010),
www.uscourts.gov/uscourts/RulesAndPolicies/rules/2010%20Rules/Civil%20Procedure.pdf.
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The disputes that comprise the docket at OALJ have also changed
with time. When the rules of practice and procedure were first
published, OALJ's judges mainly (but not exclusively) were devoting
their efforts to deciding benefit claims under two broad statutory
categories:
[[Page 72143]]
The Black Lung Benefits Act, subchapter 4 of the Federal
Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. 901 et
seq. (1969); and
The Longshore Act and its extensions, which included the
Nonappropriated Fund Instrumentalities Act, 5 U.S.C. 8171 (1927); the
Outer Continental Shelf Lands Act, 43 U.S.C. 1333 (1953); and the
Defense Base Act, as amended, 42 U.S.C. 1651 (1941).\2\
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\2\ Judges at OALJ continue to hear a very few claims under
another Longshore Act extension, the District of Columbia Workmen's
Compensation Act of 1928, 36 DC Code Sec. 501 et seq., despite the
District's adoption of its own workers' compensation law. For claims
that involve an injury suffered before the District's own law took
effect in mid-1982, judges at OALJ continue to hear them. Keener v.
Wash. Metro. Transit Auth., 800 F.2d 1173, 1175 (D.C. Cir. 1986).
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Over the last nearly two decades, Congress charged the Department
of Labor (and consequently the OALJ) with the responsibility to hear
and decide matters under many new statutes. Most relate to complaints
by employees who assert their employers retaliated against them after
they engaged in whistleblower activity. Some of these statutes for
example are:
Section 110 of the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. 9610, Public Law 96-510, 94
Stat. 2787, enacted on December 11, 1980;
Section 405 of the Surface Transportation Assistance Act
of 1982 (STAA), 49 U.S.C. 31105, Public Law 97-424, 96 Stat. 2097,
2157-58, first enacted on January 6, 1983 (and originally codified as
49 U.S.C. 2301 et seq.), and last amended by sec. 1536 of the
Implementing Recommendations of the 9/11 Commission Act of 2007, Public
Law 110-53, 121 Stat. 464, enacted on August 3, 2007;
Section 212(n)(2)(C)(iv) of the Immigration and
Nationality Act, 8 U.S.C. 1182(n)(2)(C)(iv), as amended by the American
Competitiveness and Workforce Improvement Act of 1998, which was part
of the Omnibus Consolidated and Emergency Supplemental Appropriations
Act of 1998, Public Law 105-277, div. C, tit. IV, sec. 411(a), 112
Stat. 2681-641 to 2681-657, enacted on October 21,1998;
Section 519 of the Wendell H. Ford Aviation Investment and
Reform Act for the 21st Century (AIR21), 49 U.S.C. 42121, Public Law
106-181, 114 Stat. 145, enacted on April 5, 2000;
Section 6(a) of the Pipeline Safety Improvement Act of
2002, 49 U.S.C. 60129, Public Law 107-355, 116 Stat. 2989, enacted on
December 17, 2002;
Section 806 of the Corporate and Criminal Fraud
Accountability Act of 2002 (the Sarbanes-Oxley Act), 18 U.S.C. 1514A,
Public Law 107-204, 116 Stat. 802, first enacted on July 30, 2002, and
last amended by sec. 929A of the Dodd-Frank Wall Street Reform and
Consumer Protection Act, Public Law 111-203, 124 Stat. 1848, 1852,
enacted on July 21, 2010;
Section 1413 of the Implementing Recommendations of the 9/
11 Commission Act of 2007, 6 U.S.C. 1142, Public Law 100-53, 121 Stat.
414, that amended the National Transit Systems Security Act on August
3, 2007; and
Section 1521 of the Implementing Recommendations of the 9/
11 Commission Act of 2007, 49 U.S.C. 20109, Public Law 100-53, 121
Stat. 444, that amended the Federal Railroad Safety Act on August 3,
2007.
Congress remains active in the area of whistleblower protection. On
July 21, 2010, Congress created and expanded whistleblower protection
for employees in the financial services industry under the Dodd-Frank
Wall Street Reform and Consumer Protection Act, Public Law 111-203. On
October 15, 2010, it amended another employment protection program that
includes the opportunity for a hearing before an administrative law
judge at the OALJ. See the amendment to the Seaman's Protection Act in
sec. 611 of the Coast Guard Authorization Act of 2010, 46 U.S.C. 2114,
Public Law 111-281, 124 Stat. 2969. This year Congress established an
additional right to an administrative hearing for whistleblowing
employees in sec. 402 of the FDA Food Safety Modernization Act, 21
U.S.C. 399d, Public Law 111-353, 124 Stat. 3968, enacted January 4,
2011.
The substantive program regulations the Department has published to
implement many of the statutes that grant workers and employers formal
hearings on claims of workplace retaliation offer limited guidance
about the procedures those adjudications should follow. Regulations
often incorporate instead the procedural rules of Part 18, Subpart A.
See, e.g., 29 CFR 1978.107(a), 1979.107(a), 1980.107(a) (2011) (STAA,
AIR21, and Sarbanes-Oxley regulations, respectively). In adopting
program regulations, the Department has acknowledged it was leaving
matters like the ``place of hearing, right to counsel, procedures,
evidence and record of hearing, oral arguments and briefs, and
dismissal for cause'' to the Part 18, Subpart A rules precisely
``because the Office of Administrative Law Judges has adopted its own
rules of practice that cover these matters.'' 76 FR 2808, 2814, Jan.
18, 2011 (amending the 29 CFR part 24 regulations that cover
whistleblowers in the nuclear power and environmental industries).
The growth in whistleblower jurisdiction has led OALJ to search for
ways to manage those proceedings efficiently. Implementing procedures
the federal district courts have developed or refined since 1983 will
improve the current Part 18, Subpart A rules.
For example, several regulations that govern whistleblower claims
explicitly grant the presiding judge ``broad discretion to limit
discovery'' as a way to ``expedite the hearing.'' 29 CFR 1979.107(b),
1980.107(b), 1981.107(b). The Department's discussion when it published
the final rules on Sarbanes-Oxley matters offered as an illustration
that the judge may ``limit the number of interrogatories, requests for
production of documents or depositions allowed.'' 69 FR 52104, 52110,
Aug. 24, 2004. Other program regulations, such as those that govern
disputes under the Energy Reorganization Act and six environmental
statutes that cover whistleblowers in the nuclear and environmental
industries published at 29 CFR part 24, incorporate the Part 18,
Subpart A regulations without an explicit reference to a judge's
authority to control discovery. See 29 CFR 24.107(a). The Preface to
those Part 24 regulations nonetheless recognizes that the current Part
18, Subpart A regulations invest a judge with broad authority ``to
limit discovery in appropriate circumstances.'' 76 FR at 2815. Whether
a program regulation specifically recognizes a judge's authority to
limit or manage discovery, or implicitly does so by adopting the Part
18, Subpart A regulations, the judge will consider the parties' views
on the discovery appropriate to develop the facts for hearing before
limiting it. As detailed below, the early initial disclosures the
federal courts now require parties to exchange under Fed. R. Civ. P.
26(a)(1) obviates the need for some formal discovery. The discovery
plan that parties craft under Fed. R. Civ. P. 26(f) after they confer
at the outset of the litigation offers a ready way to tailor discovery
to the proceeding.
A 2010 study surveyed lawyers who were the attorneys of record in
federal civil cases that terminated in the last quarter of 2008 about
their satisfaction with the current FRCP. Lawyers from the Litigation
Section of the American Bar Association and from the National
Employment Lawyers Association were sampled too. The survey instrument
had been developed jointly by the American
[[Page 72144]]
College of Trial Lawyers and the Institute for the Advancement of the
American Legal System. A majority of lawyers across all the groups
responded that active case management by judges offered a useful way to
limit or avoid abusive, frivolous, or unnecessary discovery. Emery G.
Lee & Thomas E. Willging, Attorney Satisfaction with the Federal Rules
of Civil Procedure: Report to the Judicial Conference Advisory
Committee on Civil Rules 3, 9 (2010). These survey results mesh
comfortably with comments the Department received as the 29 CFR part 24
regulations were amended. Some lawyers who commented there urged the
Department, among other things, to require parties to those
whistleblower claims to exchange the initial disclosures now mandated
by Fed. R. Civ. P. 26(a)(1). 76 FR at 2815.
Updating the Part 18, Subpart A regulations has value beyond
whistleblower litigation. Regulations for the Longshore and Harbor
Workers' Compensation Act published at 20 CFR 702.331 through 702.351
predate Part 18, Subpart A. They sketch out only broad outlines of how
hearings should proceed, so the parties and judges fall back on the
Part 18, Subpart A rules in cases brought under the Longshore Act and
its extensions. Workers, their employers, and insurance carriers also
will profit from updated procedures that avoid the need to serve
discovery to learn basic information, and allow more focused case
management.
The Department believes that in many instances the current Part 18,
Subpart A rules provide limited guidance. Judges have addressed the
current rules' limitations by managing procedural matters through
orders, often directing parties to follow aspects of the various
updates to the FRCP. The consequent variety in approaches to case
management has troubled some lawyers, especially those with nationwide
client bases who routinely practice before different judges throughout
the nation.
Lastly, the Department recognizes that the current Part 18, Subpart
A rules can be stated more clearly, something the 2007 style amendments
to the FRCP highlight. The style amendments were the first
comprehensive overhaul since the FRCP were adopted in 1938. Taking more
than four years to complete, they aspired to simplify and clarify
federal procedure. The more austere sentence structure used throughout
the restyled FRCP made them shorter, easier to read and more clearly
articulated. The amendments proposed to Part 18, Subpart A emulate
those improvements.
The Department's principal goals in revising Part 18, Subpart A
were to:
Bring the rules into closer alignment with the current
FRCP;
Revise the rules to aid the development of facts germane
to additional sorts of adjudications the Department's judges handle;
Enhance procedural uniformity, while allowing judges to
manage cases flexibly, because (a) An administrative proceeding is
meant to be less formal than a jury trial; (b) local trial practice in
different regions of the country should be accommodated when doing so
does not affect substantive rights; and (c) governing statutes and
substantive regulations may impose their own specific procedural
requirements; and
Make the rules clearer and easier to understand through
the use of consistent terminology, structure, and formatting.
II. Alignment With the Federal Rules of Civil Procedure
The decisions and orders that judges enter to resolve cases under
sec. 556 and 557 of the Administrative Procedure Act resemble findings
of fact and conclusions of law federal district and magistrate judges
enter in non-jury cases under Fed. R. Civ. P. 52. Matters proceed
before OALJ much the way non-jury cases move through the federal
courts.
Using language similar or identical to the applicable FRCP gains
the advantage of the broad experience of the federal courts and the
well-developed precedent they have created to guide litigants, judges,
and reviewing authorities within the Department on procedure. Parties
and judges obtain the additional advantage of focusing primarily on the
substance of the administrative disputes, spending less time on the
distraction of litigating about procedure.
Part 18, Subpart A currently provides that the ``Rules of Civil
Procedure for the District Courts of the United States shall be applied
in any situation not provided for or controlled by these rules, or by
any statute, executive order or regulation.'' 29 CFR 18.1(a).
Experienced practitioners know to consult the FRCP for guidance in
circumstances the current Part 18, Subpart A rules do not explicitly
cover. Given the developments in the FRCP since 1983, parties and
judges switch back and forth between two different sources of procedure
(the Part 18, Subpart A rules and the FRCP). This is a less than ideal
situation. The proposed revision continues the current practice of
looking to the federal civil rules to resolve procedural questions that
the revised Part 18, Subpart A rules do not explicitly cover, a
principle that Sec. 18.1(a) has embodied for over twenty-five years.
Pretrial procedures under the FRCP have significantly changed since
Part 18, Subpart A was published in 1983. Some of the most significant
changes have encompassed:
The scope of pretrial discovery;
How time is computed under the FRCP;
The innovation of early mandatory disclosures about
documentary proof and lay and expert witness testimony that were
unknown to litigation practice in 1983, the related discovery plans the
parties now negotiate, and the ongoing duty parties now bear to
supplement their mandatory disclosures and discovery responses;
Alterations to the rule on pretrial conferences to
encourage judges to manage cases, and give them the tools to do so;
Imposing presumptive limitations on aspects of discovery;
Adding rules on the discovery of electronically stored
information, a rare source of information in the early 1980's that has
become ubiquitous today; and
The procedure, but not the standard, for granting summary
judgment under Fed. R. Civ. P. 56 that was substantially revised in
2010.
The 2007 style amendments to the FRCP in some instances altered the
original numbering of provisions that first came into being after 1983.
The current rule numbers from the 2010 edition of the FRCP are used in
the following discussion of significant changes in litigation practice
since 1983.
A. Scope of Discovery
The scope of discovery has changed. The formulation used in current
Part 18, Subpart A at Sec. 18.14 extends discovery to ``any matter,
not privileged, which is relevant to the subject matter involved in the
proceeding.'' The FRCP now permits parties the somewhat narrower
opportunity to learn about unprivileged matters ``relevant to a party's
claim or defense.'' Advisory Committee Notes to the 2000 Amendments to
Fed. R. Civ. P. 26(b)(1); Jeffery W. Stemple & David F. Herr, Applying
Amended Rule 26(b)(1) in Litigation: The New Scope of Discovery, 199
F.R.D. 396, 398 (2001).
B. Time Computation
Litigation requires timely filings and actions. The way time is
calculated under Fed. R. Civ. P. 6 changed in 2009. In the Department's
view, the Part 18, Subpart A rules should be harmonized with the FRCP
so parties and their lawyers use the simpler, clearer, and more
consistent way federal courts now
[[Page 72145]]
calculate time. Part 18, Subpart A presently excludes weekends and
legal holidays when computing some deadlines but not others. See
current 29 CFR 18.4(a). Fed. R. Civ. P. 6 now counts intervening
weekends and holidays for all time periods. Most short periods found
throughout the FRCP were extended to offset the shift in the time-
computation rules and to ensure that each period is reasonable. Five-
day periods became 7-day periods and 10-day periods became 14-day
periods, in effect maintaining the status quo.
Time periods in the FRCP shorter than 30 days also were revised to
multiples of 7 days, to reduce the likelihood of ending on weekends.
Other changes to the FRCP time-computation rules affect how to tell
when the last day of a period ends, and how to compute backward-counted
periods that end on a weekend or holiday.
C. Mandatory Disclosures, Their Supplements, and Discovery Plans
The Department believes that the success the federal courts have
had with requiring parties to exchange elementary information early in
the dispute, without the need for a formal discovery demand, should be
incorporated into OALJ's procedures for most cases. The same is true
for the way the federal courts require parties to disclose the opinions
of experts, and to supplement disclosures and discovery responses.
Disclosures of information relevant to the claims or defenses a
party may raise in the litigation were required in the 1993 amendments
to the FRCP. See David D. Siegel, The Recent (Dec. 1, 1993) Changes in
the Federal Rules of Civil Procedure: Background, the Question of
Retroactivity, and a Word about Mandatory Disclosure, 151 F.R.D. 147
(1993). Although originally subject to variation by local rule of a
district court, by 2000 the disclosures became mandatory and nationally
uniform (although the federal courts exempted a narrow group of cases
that were unlikely to benefit from required disclosures).
The disclosure obligation was narrowed in 2000 to embrace only
information the party would use to support its claims or defenses at a
pretrial conference, to support a motion, to question a witness during
a discovery deposition, or at trial. Advisory Committee Notes to the
2000 Amendments to Fed. R. Civ. P. 26(a). These mandatory disclosures
cover basic information needed to prepare most cases for trial or to
make an informed decision about settlement. Advisory Committee Notes to
the 1993 Amendments to Fed. R. Civ. P. 26(a). They must be exchanged at
the outset of the proceeding, even before the opponent issues any
discovery request, and for the most part there is a moratorium on
discovery until the automatic disclosures are made. Fed. R. Civ. P.
26(d)(1). Few excuses for failing to make timely disclosures are
countenanced. Fed. R. Civ. P. 26(a)(1)(E). These prompt initial
disclosures lead to an early conference where the parties discuss
whether the case can be settled and negotiate a proposed discovery
schedule they report to the judge. Fed. R. Civ. P. 26(f)(2).
Other amendments enhanced the pretrial disclosure of the opinions
of an expert witness. A party now is required to:
Provide a detailed written report, signed by an expert who
is retained or specially employed to give expert testimony, under Fed.
R. Civ. P. 26(a)(2)(B);
Deliver the report before the expert is deposed, under
Fed. R. Civ. P. 26(b)(4); and
Prepare and serve a disclosure of the expert's testimony
if the expert was not retained or specially employed to testify (and so
not required to write and sign a report), under Fed. R. Civ. P.
26(a)(2)(C).
By signing and serving a required disclosure (or any discovery
response), the lawyer attests that it is complete and correct;
consistent with the rules; not interposed for an improper purpose; and
not unreasonable nor unduly burdensome or expensive, given the needs
and prior discovery in the case, the amount in controversy, and the
importance of the issues at stake. Fed. R. Civ. P. 26(g).
A required disclosure that turns out to have been incomplete or
incorrect in some material respect must be supplemented ``in a timely
manner.'' Fed. R. Civ. P. 26(e). The duty to supplement extends to a
required report or disclosure about expert witness testimony and to a
discovery response. Id.
D. Case Management Through Pretrial Conferences and Orders
The amendments to Fed. R. Civ. P. 16 made in 1993 enhanced a
judge's authority to manage litigation with the goal of achieving the
just, speedy, and inexpensive determination of a matter through the use
of scheduling orders under Fed. R. Civ. P. 16(b) and pretrial
conferences under Fed. R. Civ. P. 16(c). Those revisions to Fed. R.
Civ. P. 16 expanded the judge's authority to ``take appropriate
action'' in a civil case. Charles R. Ritchey, Rule 16 Revised, and
Related Rules: Analysis of Recent Developments for the Benefit of the
Bench and Bar, 157 F.R.D. 69, 75 (1994).
A pretrial conference offers the opportunity to appropriately
control the extent and timing of discovery. At a conference the parties
and judge may consider ways to avoid unnecessary proof and cumulative
evidence at trial (including expert testimony) under what is now Fed.
R. Civ. P. 16(c)(2)(D). Determining whether a motion for summary
adjudication is even appropriate, and setting the time to file it, may
be discussed under Fed. R. Civ. P. 16(b)(3)(A), (c)(2)(E). See
generally D. Brock Hornby, Summary Judgment Without Illusions, 13 Green
Bag 2d 273, 284-85 (2010) (explaining the complexity of the summary
judgment process). Controlling discovery and setting deadlines for
initial, expert, and pretrial disclosures under Fed. R. Civ. P. 26; for
stipulations under Fed. R. Civ. P. 29; and dealing with failures to
make disclosures or to cooperate in discovery under Fed. R. Civ. P. 37,
all may be considered at a pretrial conference under Fed. R. Civ. P.
16(c)(2)(F). A pretrial order that limits the length of trial under
Fed. R. Civ. P. 16(c)(2)(O) offers the parties a better opportunity to
determine their priorities and be selective in presenting their
evidence than if limits are imposed only at the time of trial. Limits
on trial time must be reasonable in the circumstances and ordinarily
imposed only after the parties are given the opportunity to outline the
nature of the testimony they expect to offer through various witnesses
and the time they expect to need for direct and cross-examination. See
Advisory Committee Note to the 1993 Amendments to Fed. R. Civ. P.
16(c)(15). Exploring settlement and the use of alternative dispute
resolution procedures can be considered under Fed. R. Civ. P.
16(c)(2)(I). Separate trials may be set for potentially dispositive
issues under Fed. R. Civ. P. 16(c)(2)(M).
E. Presumptive Limitations on Discovery
Discovery practice in federal court litigation has been altered
since 1983 in a number of ways. The amendments were not meant to block
needed discovery, but to provide judicial supervision to curtail
excessive discovery. Advisory Committee Note to the 1993 Amendments to
Fed. R. Civ. P. 33(a). The FRCP now presumptively limit the number of
interrogatories a party may serve, including ``all discrete subparts;''
the number of depositions taken by oral examination or on written
questions; taking the deposition of a
[[Page 72146]]
witness more than once; and restricting the deposition of a witness to
one day of no more than seven hours. Fed. R. Civ. P. 33(a); Fed. R.
Civ. P. 30(a)(2)(A)(i), (ii), (d)(1); and Fed. R. Civ. P.
31(a)(2)(A)(i).
These presumptive limitations are adjusted as a case requires,
often through the scheduling order the judge enters on the discovery
plan the parties propose after their initial conference. Fed. R. Civ.
P. 26(b)(2)(A), (f)(3)(E); see also, Advisory Committee Notes to the
2000 Amendments to Fed. R. Civ. P. 26(b)(2).
Parties also must seek to resolve discovery disputes informally
before filing a motion. Fed. R. Civ. P. 26(c)(1); see also, Advisory
Committee Notes to the 1993 Amendments to Fed. R. Civ. P. 26(a)
(concerning what was then the new subparagraph (B)).
F. Discovery of Electronically Stored Information
E-discovery provisions that recognize how pervasive digital
information has become were incorporated into the FRCP in 2006. Richard
L. Marcus, E-Discovery & Beyond: Toward Brave New World or 1984?, 236
F.R.D. 598, 604-605 (2006). The amendments recognize the integral role
digital data such as email, instant messaging, and web-based
information play in contemporary life and in discovery; they introduced
into the FRCP the concept of ``electronically stored information.'' As
with changes to the presumptive limits on various discovery methods,
the discovery plan the parties develop is expected to address any
issues about disclosure or discovery of electronically stored
information, including the form in which it should be produced. Fed. R.
Civ. P. 26(f)(3)(C); Fed. R. Civ. P. 34(b)(2)(D), (E); see also
Advisory Committee Notes to the 2006 Amendments to Fed. R. Civ. P.
26(f); Advisory Committee Notes to the 2006 Amendments to Fed. R. Civ.
P. 34(b); Hopson v. Mayor & City Council of Balt., 232 F.R.D. 228, 245
(D. Md. 2006).
Digital information is so omnipresent that federal courts now
deride as ``frankly ludicrous'' arguments that a trial lawyer who
claims to be ``computer illiterate'' should be excused from fulfilling
the rules' e-discovery obligations. Martin v. Nw. Mut. Life Ins. Co.,
No. 804CV2328T23MAP, 2006 WL 148991, at *2 (M.D. Fla. Jan. 19, 2006)
(unpublished). Today a lawyer bears an affirmative duty not just to ask
a client to locate and gather paper and electronic documents, but to
search out sources of electronic information. Phoenix Four, Inc. v.
Strategic Res. Corp., No. 05 Civ. 4837(HB), 2006 WL 2135798, at *5
(S.D.N.Y. Aug. 1, 2006) (unpublished); In re A & M Fla. Prop. II, LLC,
No. 09-15173, 2010 WL 1418861, at *6 (Bankr. S.D.N.Y. Apr. 7, 2010)
(unpublished). Those efforts must, however, be proportional to what is
at stake in the litigation. Fed. R. Civ. P. 26(b)(2)(C)(iii); see also,
The Sedona Principles: Second Edition, Best Practices Recommendations &
Principles for Addressing Electronic Document Production, Principle 2,
cmt. 2.b., at 17 (2007) (``Electronic discovery burdens should be
proportional to the amount in controversy and the nature of the case.
Otherwise, transaction costs due to electronic discovery will overwhelm
the ability to resolve disputes fairly in litigation.''); cf., Pension
Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC,
685 F.Supp.2d 456, 464-65 (S.D.N.Y. 2010) (describing significant
discovery burdens that were reasonable in a $550 million claim arising
from the liquidation of hedge funds; but those burdens may be
inappropriate in litigation where much less is at stake).
In addition, the parties should discuss and agree at the initial
conference on how to handle inadvertent disclosure of digital
information that otherwise would enjoy attorney-client privilege or
work product protection. Fed. R. Civ. P. 26(f)(3)(D). Their agreement
plays a pivotal role under recently enacted Fed. R. Evid. 502(b), (d),
and (e). They avoid a waiver of privilege or work product protection
when their agreement is incorporated into a scheduling order or another
order. See Advisory Committee Notes to the 2006 amendments to Fed. R.
Civ. P. 26(f).
The current FRCP not only guide the resolution of discovery
disputes, but also set standards for allocating the potentially high
cost of discovery among the parties when the sources of digital data
are not readily accessible. Advisory Committee Notes to 2006 Amendments
to Fed. R. Civ. P. 26(b)(2) (``The conditions [the judge imposes] may
also include payment by the requesting party of part or all of the
reasonable costs of obtaining information from sources that are not
reasonably accessible.'')
G. Summary Decision
A motion for summary adjudication carries the potential to dispose
of an entire claim or portions of it with finality but without a trial,
so it plays a key role in litigation. The procedure ought to be the
same at the OALJ as in U.S. district courts; any divergence creates an
incentive for a party to prefer the forum with the summary decision
r[eacute]gime most favorable to its position. This matters because
under many statutes whistleblower litigation begins at OALJ, but the
complainant may proceed in U.S. district court if a final order has not
been entered within a relatively short time after the claim is first
brought to the attention of the Department. See, e.g., 18 U.S.C.
1514A(b)(1)(B) (2010) (Sarbanes-Oxley Act); 42 U.S.C. 5841(b)(4) (2010)
(Energy Reorganization Act); 46 U.S.C. 2114(b) (2010) (Seaman's
Protection Act); 49 U.S.C. 31105(c) (2010) (Surface Transportation
Assistance Act).
Federal Rule of Civil Procedure 56 was recently revised effective
December 1, 2010. It now instructs the judge to state a reason for
granting or denying the motion, usually by identifying the central
issues, which can help the parties focus any further proceedings.
Advisory Committee Notes to 2010 Amendments to Fed. R. Civ. P. 56(a).
The judge is not obliged to search the record independently to
determine whether there is a factual dispute for trial, but nonetheless
may consider record materials the parties never called to the judge's
attention. Advisory Committee Notes to 2010 Amendments to Fed. R. Civ.
P. 56(c)(3). A formal affidavit is not required to support the motion;
an unsworn declaration signed under penalty of perjury suffices,
recognizing the status 28 U.S.C. 1746 gives to those statements. Fed.
R. Civ. P. 56(c)(4). Even if the motion is not granted, or granted only
in part, the judge may find that certain facts are undisputed and treat
them as established. Fed. R. Civ. P. 56(g). Invoking this authority
demands care, however. To limit litigation expenses, a nonmovant who
feels confident a genuine dispute as to one or a few facts will defeat
the motion may choose not to file a detailed response to all facts the
movant stated. That choice should not expose the party to the risk that
the additional facts will be treated as established under subdivision
(g). Advisory Committee Notes to 2010 Amendments to Fed. R. Civ. P.
56(h).
The judge may sanction a party who submits an affidavit or
declaration with its motion papers in bad faith or solely for delay.
Fed. R. Civ. P. 56(h).
H. Additional Matters
Other portions of the FRCP have also undergone significant changes,
including rules on the subjects of:
Sanctions under Fed. R. Civ. P. 11 in 1993, see Edward D.
Cavanagh, Rule 11 of The Federal Rules of Civil Procedure: The Case
Against Turning Back the Clock, 162 F.R.D. 383, 396 (1995); and
Subpoenas under Fed. R. Civ. P. 45 in 1991, see David D.
Siegel, Federal
[[Page 72147]]
Subpoena Practice Under the New Rule 45 of The Federal Rules of Civil
Procedure, 139 F.R.D. 197, 197 (1992).
The proposed revisions to Part 18, Subpart A reflect the general
tenor of these amendments.
III. Evolution in Types of Cases
Congress has vested the Department (and therefore OALJ) with the
responsibility to conduct formal hearings pursuant to more than 60
laws, including at least 19 that protect employees from retaliation for
whistleblowing.
The bulk of hearings conducted by OALJ involve longshore workers'
compensation and black lung benefits claims. This was true when OALJ's
rules of practice were published in 1983 and is still true today.\3\
These cases have benefited from having established rules of practice
and procedure modeled on the FRCP. The evolution in the types of cases
heard by OALJ, however, has resulted in a significant increase in
hearings that are the functional equivalent of a civil trial in federal
or state court, absent only the jury. In particular, whistleblower
cases now account for a significant portion of OALJ's workload,
disproportionate to their percentage of the overall docket. As noted
above, many of the statutes creating the responsibility for
whistleblower adjudication by the Department of Labor were promulgated
after the Part 18, Subpart A rules were published in 1983. Nine
whistleblower laws with the potential for ALJ hearings within the
Department of Labor were enacted after the year 2000. Hearings arising
under these statutes often involve complex fact patterns and novel
legal issues. Overall, whistleblower litigation typically requires more
extensive discovery, case management, motion work, summary decision
practice, and time in trial than many of the other types of cases heard
by OALJ.
---------------------------------------------------------------------------
\3\ OALJ also conducts administrative review in a large number
of immigration-related appeals involving both permanent and
temporary labor certification applications. Many of these reviews do
not require an evidentiary hearing because the review is on the
existing record.
---------------------------------------------------------------------------
Moreover, intensive litigation is typical in cases arising under
the Defense Base Act. Although the Defense Base Act has been in
existence since World War II, increasing use of contract services by
the military and other parts of the federal government has resulted in
significantly more hearings conducted by OALJ under that law in recent
years. These cases tend not to settle, and therefore require more case
management by judges as compared with other workers' compensation cases
adjudicated by OALJ. OALJ also now conducts hearings involving labor
condition applications of employers who employ H-1B nonimmigrant
workers. OALJ's experience is that many of these cases do not settle;
they also involve extensive procedural motions and multi-day hearings.
Thus, the change in the case mix before OALJ has heightened the
need for procedural rules that are clearly written, permit improved and
more consistent case management by judges, and are familiar to the
national legal community under current federal court practice.
IV. Flexibility/Uniformity
Notwithstanding the variety of statutes and regulations that
generate disputes at OALJ, the provisions of the Administrative
Procedure Act at 5 U.S.C. 556 offer broad guidance to administrative
law judges about how to conduct proceedings. Flexibility in applying
procedural rules is desirable, so that judges manage litigation
according to the needs of an individual case. The Department's
opportunity to review the decision of its administrative law judges
under 5 U.S.C. 557(b) safeguards a party from an abuse of that
discretion.
Some cases by their nature need special management. For example,
applying a general rule that sets the time to respond to formal
discovery demands may be inappropriate in a case that demands expedited
handling. A striking illustration of an expedited proceeding is one to
review a denial of an employer's application to the Office of Foreign
Labor Certification under 20 CFR 655.103 to certify the use of non-
immigrant workers in temporary agricultural employment under the H-2A
visa program of the Immigration & Nationality Act, 8 U.S.C.
1101(a)(15)(H)(ii)(a), 1188(e). In such cases, the employer only has
five business days to seek review of an application's denial under 20
CFR 655.141(b)(4) and 655.142(c). Where the employer requests
administrative review, the judge has only five business days after
receipt of the administrative file from the Office of Foreign Labor
Certification to render a decision. 20 CFR 655.171(a) (2011). Where the
employer requests de novo review, the Part 18, Subpart A rules apply,
but the hearing must be convened within five business days after the
administrative law judge receives the administrative file, and the
decision must follow within ten calendar days. 20 CFR 655.171(b).
Additionally, for some types of cases--for example, those adjudicated
under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901
et seq., and its extensions such as the Defense Base Act, 42 U.S.C.
1651, et seq., and the Black Lung Benefits Act, 30 U.S.C. 901 et seq.--
the Department's substantive regulations also include procedural
provisions. See 20 CFR parts 702 (Longshore) and 725 (Black Lung).
The proposed rules have been drafted to authorize a judge to tailor
procedures to the case, through a prehearing order. A judge may take a
broad range of actions under proposed Sec. 18.50(b)(2) and (3).
Parties may be ordered to confer about settlement early in the case,
required to make prehearing disclosures without any formal discovery
demand from the other party, and directed to draft a discovery plan.
Yet the judge also may relieve the parties from the obligation to make
initial disclosures, and alter the general limitations on the number of
interrogatories and the number and length of depositions. This
flexibility permits a judge to address, in an individualized way, the
needs of any specific case. The judge also may address any regional
differences in litigation practices that may require direction or
clarification.
V. Clarity/Re-Organization
The FRCP underwent a complete revision that culminated in 2007 to
improve their style and clarity. Restyled Federal Rules of Appellate
Procedure took effect in 1998, as the restyled Federal Rules of
Criminal Procedure did in 2002. Sources that guided drafting, usage,
and style for all three revisions included the Guidelines for Drafting
and Editing Court Rules, which the Standing Committee on Federal Rules
of Practice and Procedure of the Judicial Conference of the United
States published at 169 F.R.D. 171 (1997), and Bryan A. Garner's A
Dictionary of Modern Legal Usage (2d ed. 1995). The purpose of the
style revisions was twofold: to make the rules easier to understand,
and to make style and terminology consistent throughout the rules. See
Advisory Committee's Notes to the 2007 Amendments to Fed. R. Civ. P. 1.
The restyled federal civil rules reduced the use of inconsistent,
ambiguous, redundant, repetitive, or archaic words. For example, the
restyled rules replaced ``shall'' with ``must,'' ``may,'' or
``should,'' as appropriate, based on which one the context and the
established interpretation made correct. Id. The sole exception was the
highly controversial restoration of the ``shall'' in Fed. R. Civ. P.
56(a) on summary judgment when it was amended in 2010. Advisory
Committee's Notes to the 2010 Amendments to Fed. R. Civ. P. 56(a).
The drafting guidelines the authors of the 2007 style amendments
used to
[[Page 72148]]
enhance the clarity and readability of the FRCP also were used as the
Department revised Part 18, Subpart A. Proposed revisions typically are
based on the text of the restyled federal civil rule for the
corresponding subject, unless there was a reason to deviate from the
federal rule's language. As one example, the word ``court'' is replaced
throughout with the word ``judge,'' because administrative
adjudications do not take place in a court. Where substantive
deviations from the FRCP were made, the reason for the deviation is
noted in the portion of the Notice of Proposed Rulemaking pertaining to
the specific proposed rule. Where there is no corresponding federal
civil rule, the Department used the FRCP drafting guidelines to revise
the existing Part 18, Subpart A rules, to improve their clarity and
internal consistency. The ordering of some rules was altered to improve
the overall clarity of the Part 18, Subpart A regulations. A conversion
table that shows the current Part 18, Subpart A rules and their
corresponding proposed rule appears at the end of this Preface. In
drafting the text of the proposed rules, the Department also took into
account two Executive Orders:
Executive Order 12866 (1993), which requires that
regulations be ``simple and easy to understand, with the goal of
minimizing uncertainty and litigation * * * '' 58 FR 51735, sec.
1(b)(12), Sept. 30, 1993 (amended 2002 & 2007); and
Executive Order 12988 (1996), which requires that
regulations be written in ``clear language.'' 61 FR 4729, sec. 3(b)(2)
(Feb. 5, 1996).
The Plain Writing Act of 2010, 5 U.S.C. 301, Public Law 111-274,
124 Stat. 2861 (2010), while not directly applicable to regulations,
recognizes the value of plain writing in government documents by
requiring clear, concise, and well-organized publications. The Office
of Management and Budget has published a ``Best Practices Guide for
Regulations'' available on the internet.\4\ These proposed rules follow
the guidance these sources offer.
---------------------------------------------------------------------------
\4\ This guide is available at http://www.regulations.gov/exchange/sites/default/files/doc_files/20101130_eRule_Best_Practices_Document_rev.pdf.
---------------------------------------------------------------------------
Section 6(a) of Executive Order 13,563 (dated January 18, 2011),
states: ``To facilitate the periodic review of existing significant
regulations, agencies shall consider how best to promote retrospective
analysis of rules that may be outmoded, ineffective, insufficient, or
excessively burdensome, and to modify, streamline, expand, or repeal
them in accordance with what has been learned.'' 76 FR at 3821. The
Executive Order also requires each agency to prepare a plan for
reviewing its regulations. Although the revision of Part 18, Subpart A
began well before this recent Executive Order, the proposed revisions
meet the Order's requirements, by replacing outmoded rules with a more-
readily understandable version.
VI. Regulatory Review
A. Executive Order 12866 (Regulatory Planning and Review)
This proposed rule has been drafted and reviewed in accordance with
Executive Order 12866. The Department of Labor, in coordination with
the Office of Management and Budget (OMB), has determined that this
proposed rule is not a ``significant regulatory action'' under
Executive Order 12866, section 3(f) because rule because the rule will
not have an annual effect on the economy of $100 million or more; nor
create a serious inconsistency or otherwise interfere with an action
taken or planned by another agency; nor materially alter the budgetary
impact of entitlements, grants, user fees, or loan programs or the
rights and obligations of recipients thereof. Furthermore, the rule
does not raise a novel legal or policy issue arising out of legal
mandates, the President's priorities or the principles set forth in
this Executive Order. Accordingly, the proposed rule has not been
reviewed by OMB.
B. Regulatory Flexibility Act/Small Business Regulatory Enforcement
Fairness Act
The Department concludes that the Regulatory Flexibility Act, 5
U.S.C. 601 et. seq. does not apply since the changes proposed here
consist of amendments to rules of agency organization, procedure and
practice, and consequently are exempt from the notice and public
comment requirements of the Administrative Procedure Act, see 5 U.S.C.
553(b)(3)(A).
C. Executive Order 12291 (Federal Regulation)
The Department has reviewed this rule in accordance with Executive
Order 12291 and determined it is not a ``major rule'' under Executive
Order 12291 because it is not likely to result in (1) An annual effect
on the economy of $100 million or more; (2) a major increase in costs
or prices for consumers, individual industries, Federal, State, or
local government agencies, or geographic regions; or (3) significant
adverse effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic or export markets.
Accordingly, no regulatory impact analysis is required.
D. Unfunded Mandates Reform Act of 1995 and the Executive Order 13132
(Federalism)
The Department has reviewed this proposed rule in accordance with
the requirements of the Unfunded Mandates Reform Act of 1995, 2 U.S.C.
1531 et seq., and Executive Order 13132. The Department concludes that
the requirements of these provisions do not apply to the proposed rule,
because the proposed rule does not place any mandate on State, local,
or tribal governments.
E. Paperwork Reduction Act
The Department certifies that this proposed rule has been assessed
in accordance with the requirements of the Paperwork Reduction Act, 44
U.S.C. 3501 et seq. (1995)(PRA). The Department concludes that the
requirements of the PRA do not apply to this rulemaking because this
regulation does not contain any information collection requirements
that require the approval of the Office of Management and Budget.
F. The National Environmental Policy Act of 1969 (Environmental Impact
Assessment)
The Department has reviewed the proposed rule in accordance with
the requirements of the National Environmental Policy Act (NEPA) of
1969, as amended (42 U.S.C. 4321 et seq.) and the Department of Labor's
NEPA procedures (29 CFR part 11). The Department concludes that the
requirements of the NEPA do not apply to this rulemaking as there are
no requirements or provisions contained in this proposed rule that
involve assuring the maintenance of a healthful environment and there
are no provisions impacting the responsibilities to preserve and
enhance that environment contained herein and, thus, has not conducted
an environmental assessment or an environmental impact statement.
G. The Privacy Act of 1974, 5 U.S.C. 552a, as Amended
The Department has reviewed this proposed rule in accordance with
the Privacy Act of 1974, as amended (5 U.S.C. 552a). This rulemaking
would not require any new process, filing or collection of any new
information in the proceedings before the Office of
[[Page 72149]]
Administrative Law Judges and therefore, the Department has determined
this proposed rule would not result in a new or revised Privacy Act
System of Records.
H. Federal Regulations and Policies on Families
The Department has reviewed this proposed rule in accordance with
the requirements of the Federal Regulations and Policies on Families,
Section 654 of the Treasury and General Government Appropriations Act
of 1999. These proposed regulations were not found to have a potential
negative effect on family well-being as it is defined there under.
I. Executive Order 13045 (Protection of Children From Environmental
Health Risks and Safety Risks)
The Department certifies that this proposed rule has been assessed
regarding environmental health risks and safety risks that may
disproportionately affect children. These proposed regulations were not
found to have a potential negative effect on the health or safety of
children.
J. Executive Order 12630 (Governmental Actions and Interference With
Constitutionally Protected Property Rights)
The Department has reviewed this proposed rule in accordance with
E.O. 12630 and has determined that it does not contain any ``policies
that have takings implications'' in regard to the ``licensing,
permitting, or other condition requirements or limitations on private
property use, or that require dedications or exactions from owners of
private property.''
K. Executive Order 13175 (Consultation and Coordination with Indian
Tribal Governments)
The Department has reviewed this proposed rule in accordance with
E.O. 13175 and has determined that it does not have ``tribal
implications.'' The proposed rule does not ``have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal government and Indian tribes, or on the distribution of power
and responsibilities between the Federal government and Indian
tribes.''
L. Executive Order 12988 (Civil Justice Reform)
This regulation has been drafted and reviewed in accordance with
Executive Order 12988, Civil Justice Reform, and will not unduly burden
the Federal court system. The regulation has been written so as to
minimize litigation and provide a clear legal standard for affected
conduct, and has been reviewed carefully to eliminate drafting errors
and ambiguities.
M. Executive Order 13211 (Actions Concerning Regulations that
Significantly Affect Energy Supply, Distribution, or Use)
The Department has reviewed this proposed regulation in accordance
with Executive Order 13211 and determined that the proposed rule is not
subject to Executive Order 13211 because it is not a significant
regulatory action under Executive Order 12866, will not have a
significant adverse effect on the supply, distribution, or use of
energy, and has not been designated by the Administrator of the Office
of Information and Regulatory Affairs as a significant energy action.
VII. Public Participation
A. APA Requirements for Notice and Comment
The changes proposed here consist of amendments to rules of agency
organization, procedure and practice, and consequently are exempt from
the notice and public comment requirements of the Administrative
Procedure Act, see 5 U.S.C. 553(b)(3)(A). However, the Department
wishes to provide the public with an opportunity to submit comments on
any aspect of the entire proposed rule.
B. Publication of Comments
Please be advised that the Department will post all comments
without making any change to the comments, including any personal
information provided. The www.regulations.gov Web site is the Federal
e-rulemaking portal and all comments received electronically or by
mail, hand delivery, express mail, messenger or courier service are
available and accessible to the public on this Web site. Therefore, the
Department recommends that commenters safeguard their personal
information by not including social security numbers, personal
addresses, telephone numbers, and email addresses in comments. It is
the responsibility of the commenter to safeguard his or her
information.
C. Access to Docket
In addition to all comments received by the Department being
accessible on www.regulations.gov, the Department will make all the
comments available for public inspection during normal business hours
at the above address. If you need assistance to review the comments,
the Department will provide you with appropriate aids such as readers
or print magnifiers. The Department will make copies of the proposed
rule available, upon request, in large print or electronic file on
computer disc. The Department will consider providing the proposed rule
in other formats upon request. To schedule an appointment to review the
comments and/or obtain the proposed rule in an alternate format,
contact Todd Smyth at the U.S. Department of Labor, Office of
Administrative Law Judges, 800 K Street NW., Suite 400-North,
Washington, DC 20001-8002; telephone (202) 693-7300.
Part 18, Subpart A--Cross Referencing Chart
----------------------------------------------------------------------------------------------------------------
New section New section title Old section Old section title Federal rule of civil procedure
----------------------------------------------------------------------------------------------------------------
GENERAL PROVISIONS
----------------------------------------------------------------------------------------------------------------
18.10........... Scope and purpose. 18.1/18.26 Scope of rules and Fed. R. Civ. P. 1
conduct of
hearings.
18.11........... Definitions....... 18.2 Definitions....... ...................................
18.12........... Proceedings before 18.25/18.29(a) Proceedings before ...................................
administrative administrative
law judge. law judge/
authority of the
administrative
law judge.
18.13........... Settlement judge 18.9 Consent order or ...................................
procedure. settlement;
settlement judge
procedure.
18.14........... Ex parte 18.38 Ex parte ...................................
communication. communications.
18.15........... Substitution of 18.30 Unavailability of Fed. R. Civ. P. 63
administrative administrative
law judge. law judge.
18.16........... Disqualification.. 18.31 Disqualification.. ...................................
[[Page 72150]]
18.17........... Legal assistance.. 18.35 Legal assistance.. ...................................
----------------------------------------------------------------------------------------------------------------
PARTIES AND REPRESENTATIVES
----------------------------------------------------------------------------------------------------------------
18.20........... Parties to a 18.10 Parties, how ...................................
proceeding. designated.
18.21........... Party appearance 18.39/18.34(a) 18.39, Waiver of ...................................
and participation. right to appear
and failure to
participate or to
appear--text was
incorporated into
proposed
``participation''
rule.
18.22........... Representatives... 18.34 Representatives... ...................................
18.23........... Disqualification ................. .................. ...................................
and discipline of
representatives.
18.24........... Briefs from amicus 18.12 Amicus curiae..... ...................................
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 ................. .................. Fed. R. Civ. P. 5.2
for filings and
exhibits.
18.32........... Computing and 18.4 Time computations. Fed. R. Civ. P. 6
extending time.
18.33........... Motions and other 18.6 Motions and Fed. R. Civ. P. 7(b) & 43(c)
papers. requests.
18.34........... Format of papers ................. .................. ...................................
filed.
18.35........... Signing motions ................. .................. Fed. R. Civ. P. 11
and other papers;
representations
to the judge;
sanctions.
18.36........... Amendments after 18.5 Responsive ...................................
referral to the pleadings--answer
Office of and request for
Administrative hearings.
Law Judges.
----------------------------------------------------------------------------------------------------------------
PREHEARING PROCEDURE
----------------------------------------------------------------------------------------------------------------
18.40........... Notice of hearing. 18.27 Notice of hearing. ...................................
18.41........... Continuances and 18.28 Continuances...... ...................................
changes in place
of hearing.
18.42........... Expedited 18.42 Expedited ...................................
proceedings. proceedings.
18.43........... Consolidation; 18.11 Consolidation of Fed. R. Civ. P. 42
separate hearings. hearings.
18.44........... Prehearing 18.8 Prehearing Fed. R. Civ. P. 16
conference. conferences.
----------------------------------------------------------------------------------------------------------------
DISCLOSURE AND DISCOVERY
----------------------------------------------------------------------------------------------------------------
18.50........... General provisions ................. .................. Fed. R. Civ. P. 26(a), (d), (f),
governing (g)
disclosure and
discovery.
18.51........... Discovery scope 18.14 Scope of discovery Fed. R. Civ. P. 26(b)
and limits.
18.52........... Protective orders. 18.15 Protective orders. Fed. R. Civ. P. 26(c)
18.53........... Supplementing 18.16 Supplementation of Fed. R. Civ. P. 26(e)
disclosures and responses.
responses.
18.54........... Stipulations about 18.17 Stipulations Fed. R. Civ. P. 29
discovery and regarding
procedure. discovery.
18.55........... Using depositions 18.23 Use of depositions Fed. R. Civ. P. 32
at hearings. at hearings.
18.56........... Subpoena.......... 18.24 Subpoenas......... Fed. R. Civ. P. 45
18.57........... Failure to make 18.21 Motion to compel Fed. R. Civ. P. 37
disclosures or to discovery.
cooperate in
discovery;
sanctions.
----------------------------------------------------------------------------------------------------------------
TYPES OF DISCOVERY
----------------------------------------------------------------------------------------------------------------
18.60........... Interrogatories to 18.18 Written Fed. R. Civ. P. 33
parties. interrogatories
to parties/.
18.61........... Producing 18.19 Production of Fed. R. Civ. P. 34
documents, documents and
electronically other evidence;
stored entry upon land
information, and for inspection
tangible things, and other
or entering onto purposes; and
land, for physical and
inspection and mental
other purposes.. examination.
18.62........... Physical and 18.19 Production of Fed. R. Civ. P. 35
mental documents and
examinations. other evidence;
entry upon land
for inspection
and other
purposes; and
physical and
mental
examination.
18.63........... Requests for 18.20 Admissions........ Fed. R. Civ. P. 36
admission.
18.64........... Depositions by 18.22 Depositions by Fed. R. Civ. P. 30
oral examination. oral examinations.
18.65........... Depositions by ................. .................. Fed. R. Civ. P. 31
written questions.
----------------------------------------------------------------------------------------------------------------
DISPOSITION WITHOUT HEARING
----------------------------------------------------------------------------------------------------------------
18.70........... Motions for ................. .................. ...................................
dispositive
action.
18.71........... Approval of 18.9 .................. ...................................
settlement and
consent findings.
[[Page 72151]]
18.72........... Summary decision.. 18.40/18.41 18.40, Motion for Fed. R. Civ. P. 56
summary decision
merged with
18.41, Summary
decision.
----------------------------------------------------------------------------------------------------------------
HEARING
----------------------------------------------------------------------------------------------------------------
18.80........... Prehearing 18.7 Prehearing ...................................
statement. statements.
18.81........... Formal hearing.... 18.43 Formal hearings... Fed. R. Civ. P. 43(a)
18.82........... Exhibits.......... 18.47/18.48 18.49/ Exhibits/records ...................................
18.50 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, 18.46/18.56 In camera and ...................................
sensitive, or protective orders/
classified restricted access.
materials.
18.86........... Hearing room 18.37 Hearing room ...................................
conduct. conduct.
18.87........... Standards of 18.36 Standards of ...................................
conduct. conduct.
18.88........... Transcript of 18.52 Record of hearings ...................................
proceedings.
----------------------------------------------------------------------------------------------------------------
POST HEARING
----------------------------------------------------------------------------------------------------------------
18.90........... Closing the 18.54/18.55 Closing the record/ ...................................
record; receipt of
additional documents after
evidence. 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 ................. .................. Fed. R. Civ. P. 59(e)
reconsideration.
18.94........... Indicative ruling ................. .................. Fed. R. Civ. P. 62.1
on a motion for
relief that is
barred by a
pending petition
for review.
18.95........... Review of Decision 18.58 Appeals........... ...................................
----------------------------------------------------------------------------------------------------------------
DELETED SECTIONS
----------------------------------------------------------------------------------------------------------------
Deleted........... 18.13 Discovery methods. ...................................
Deleted........... 18.32 Separation of ...................................
functions.
Deleted........... 18.33 Expedition........ ...................................
Deleted........... 18.53 Closing of ...................................
hearings.
Deleted........... 18.59 Certification of ...................................
official record.
----------------------------------------------------------------------------------------------------------------
General Provisions
Sec. 18.10 Scope and purpose.
The Department proposes to remove the current Sec. 18.1 and add
Sec. 18.10. The proposed Sec. 18.10 is modeled after Fed. R. Civ. P.
1.
As in the current rule, the proposed rule states that in the event
the procedures in Part 18, Subpart A are inconsistent with a governing
statute, regulation, or executive order, the latter controls. The
Department recognizes that specific procedural regulations have already
been promulgated for some statutes under which administrative law
judges adjudicate cases, and that these regulations may prescribe
procedures inconsistent with these proposed rules. The Department has
found that the phrase ``rule of special application'' has not clearly
conveyed the intent of this sentence. Thus, proposed Sec. 18.10
rephrases this sentence as follows: ``To the extent that these rules
may be inconsistent with a governing statute, regulation, or executive
order, the latter controls. If a specific Department of Labor
regulation governs a proceeding, the provisions of that regulation
apply, and these rules apply to situations not addressed in the
governing regulation.''
Subdivision (a) recognizes that some of the Department's
regulations involving proceedings before OALJ include extremely
detailed procedures and requirements. These rules do not address
requirements that are specific to certain types of cases. For example,
the regulations for Black Lung compensation benefits proceedings, at 20
CFR parts 718 and 725, include specific evidentiary limitations (see 20
CFR 725.414). Similarly, the regulations in both Black Lung and
Longshore compensation cases require that hearings be held within 75
miles of the claimants residence if possible. See 20 CFR 725.454(a),
702.337(a).
Additionally, the Department recognizes that the provisions of a
specific regulation may be inconsistent with these rules. In such
event, the specific regulation--and not these rules--applies. For
example, in a case arising under the Black Lung Benefits Act, there is
inconsistency between the regulation at proposed Sec. 18.93, Motion
for reconsideration, which provides parties 10 days after service of
the judge's decision and order to file a motion for reconsideration,
and the black lung regulation at 20 CFR 725.479(b), which provides 30
days after the filing of the judge's decision and order to file a
motion for reconsideration. Because the regulations at 20 CFR part 725
govern proceedings arising under the Black Lung Benefits Act, the
regulation at sec. 725.479(b) would control.
The Department proposes to relocate the language from current Sec.
18.26 to proposed Sec. 18.10 because it is more properly located with
the other general guiding principles. The Department proposes to
clarify the meaning of
[[Page 72152]]
current Sec. 18.26 under subdivision (b). First, current Sec. 18.26
only references sec. 554 of the APA. However, Subchapter II of Chapter
5 of the APA determines how the entire proceeding, including the
hearing, will be conducted. Accordingly, the proposed rule revises and
expands the reference to include all of Subchapter II, instead of only
referencing sec. 554. Second, Subchapter II instructs how the entire
proceeding should be conducted; accordingly, the reference to hearings
in the current rule was changed to proceedings in order to encompass
the entire process of adjudicating a case before OALJ.
The current Sec. 18.1(b)--renumbered as Sec. 18.10(c)--is revised
to improve the clarity of the rule. The Department does not propose
changes to the judge's ability to waive, modify, or suspend the rules
by these revisions.
Sec. 18.11 Definitions.
The Department proposes to revise the current Sec. 18.2 and
renumber it as Sec. 18.11. The definitions in Sec. 18.2 supplement
the definitions stated in sec. 551 of the Administrative Procedure Act.
The Department proposes to amend the opening sentence of this section
by referencing the definitions provided in sec. 551 of the
Administrative Procedure Act. The definitions in sec. 551 apply to OALJ
proceedings.
The Department proposes to delete the following terms from the
current Sec. 18.2: (a), Adjudicatory proceeding; (c), Administrative
Procedure Act; (d), Complaint; (g), Party; (h), Person; (i), Pleading;
(j), Respondent; (k), Secretary; (l), Complainant; (m), Petition; (n),
Consent Agreement; (o), Commencement of Proceeding. Except for the
``Administrative Procedure Act,'' those terms are no longer used in the
proposed revisions to the rules or sec. 551 of the APA defines the
term. When a proposed section references the Administrative Procedure
Act, the name of the Act and the appropriate section number is stated.
The Department proposes to define the following terms that are not
defined by the APA: (a), Calendar call; (b), Chief Judge; (c), Docket
clerk; and (h), Representative. The terms ``calendar call,'' ``docket
clerk'' and ``representative'' are used with more frequency in the
proposed revision of the rules. The Department proposes to define
``Chief Judge'' to clarify that the term also includes a judge to whom
the Chief Judge delegates authority. The Department proposes to define
``representative'' to clarify that, unless otherwise specified, the
term applies to all representatives who represent a person or party
before OALJ. The Department proposes to define ``docket clerk'' to
clarify current practice before OALJ. When a case is first filed with
OALJ it is received by the Chief Docket Clerk in the national office
located in Washington, DC. But once a case is assigned to a judge in a
district office all filings should be made with the docket staff in
that office.
The Department proposes to amend the definitions of the following
terms to improve clarity and specificity: (d), Hearing; (e), Judge;
(f), Order; and (g), Proceeding. The Department proposes to expand the
definition of ``hearing'' to encompass more than sessions where
evidence is submitted. Hearings to determine issues of fact may rely on
official notice rather than oral testimony subject to cross
examination, and hearings to determine issues of law may not require
the submission of evidence. The Department proposes to revise the
definition of ``judge'' to eliminate the reference in the current rule
to presiding officers not appointed as administrative law judges
pursuant to 5 U.S.C. 3105.
The Department proposes to revise the definition of ``order'' and
delete the reference in the current rule to rulemaking. The Part 18,
Subpart A rules and these proposed revisions apply to the adjudication
of cases and not rulemaking. This reference is therefore superfluous.
The Department proposes to revise the definition of ``proceeding'' to
avoid defining a term using the term itself; the proposed definition
provides a more accurate definition, one that includes the creation of
a record leading to an adjudication or order.
Sec. 18.12 Proceedings before administrative law judge.
The Department proposes to revise the current Sec. Sec. 18.25 and
18.29(a) and combine the content into proposed Sec. 18.12.
The proposed Sec. 18.12 is divided into two subdivisions:
designation and authority. The Department proposes to relocate the
content of current Sec. 18.25 to proposed Sec. 18.12(a). This section
incorporates the revised definition of ``judge'' and ``Chief Judge''
from proposed Sec. 18.11.
The Department proposes to relocate the content of current Sec.
18.29(a) to proposed Sec. 18.12(b). The enumerated powers of the judge
in the proposed subdivision (b) are similar to those listed in sec. 556
of the APA (5. U.S.C. 556) and those listed in the current Sec.
18.29(a), except for stylistic changes. For example, proposed
subparagraphs (b)(4), (b)(5) and part of (b)(2) are taken directly from
sec. 556. Under subdivision (b), the Department clarifies that OALJ may
conduct hearings as determined by the Secretary of Labor when no
statute entitles a person to an ``on the record'' hearing. The proposed
subparagraph (b)(1) is meant to clarify the administrative law judge's
powers to regulate both formal and informal proceedings, including
setting prehearing conferences, and when appointed as a settlement
judge, to conduct settlement conferences. The current Sec. 18.29
(a)(1) only addresses formal hearings. The current Sec. 18.29(a)(6)
and (a)(9) has been deleted because these provisions are redundant of
the proposed introductory statement.
The difference between paragraph (b)(3) and (b)(4) is that the
former applies to parties to the cause of action whereas the later
applies to non-parties. Under (b)(3) judges have the authority to grant
motions to compel a party to respond to a request for the production of
documents, requests for written responses to interrogatories, requests
for admission, and attendance at a proceeding. Issuing subpoenas
authorized by law is the only way a judge can exercise control over
non-parties.
The Department proposes to delete current Sec. 18.29(b), because
its content is addressed in the applicable statutes (e.g., 33 U.S.C.
927(b)(Longshore and Harbor Workers' Compensation Act).
Sec. 18.13 Settlement judge procedure.
The Department proposes to revise the current Sec. 18.9 and
renumber it as proposed Sec. 18.13.
There are three topics addressed in the current Sec. 18.9: (1)
Motions for consent findings and order; (2) approval of settlement
agreements; and (3) the settlement judge procedure. Motions for
approval of a settlement agreement and for a consent finding and order
(current Sec. 18.9 (a)-(d)) are now addressed in the proposed Sec.
18.71, Approval of settlement or consent findings). Proposed Sec.
18.13 provides the procedures for parties wishing to use the settlement
judge process. The revisions to the previous subdivision (e) are
largely structural and stylistic.
Under proposed subdivision (c) the Department proposes to extend
the number of days for the settlement proceeding from 30 to 60 days.
Based on OALJ's experience related to Longshore and Harbor Worker's
Compensation Act cases, 30 calendar days is not enough time to complete
a settlement agreement. For example, parties may need more than 30 days
in cases dealing with location issues, or Medicare set asides, or in
international negotiations under the Defense Base Act.
[[Page 72153]]
The Department proposes to delete the cross-referencing clause in
current subdivision (d) because it is inherent within the rule that a
settlement judge's powers terminate immediately if settlement
negotiations are terminated.
Under proposed subdivision (f) the Department proposes to provide
the settlement judge the option of conducting the settlement conference
in the manner he or she considers most appropriate, giving the
settlement judge wider discretion over the mode of the settlement
conference. The current Sec. 18.9 requires the settlement judge to
conduct the settlement conference by telephone, except in specific
situations. The Department determined that telephone conferences have
not been the most expedient way to conduct settlement conferences;
therefore the proposed change expands the judge's authority to
determine what process the parties want to use and to best utilize
changing technology.
Under the proposed subdivision (g) the Department proposes to
delete the language in current Sec. 18.9(e)(8) regarding the
inadmissibility of settlement statements and conduct because the
confidentiality of dispute resolution communications is now extensively
addressed by the Administrative Dispute Resolution Act. See 5 U.S.C.
574.
The Department proposes to delete the current Sec. 18.9(e)(9)
because the requirements for a consent order or settlement agreement
are generally covered by the governing statute or implementing
regulation. This language is possibly misleading because it implies
that all settlements must have the elements of consent findings. There
are also additional requirements found in specific regulations. See,
e.g., Clean Air Act 29 CFR 1979.11(d)(2) and Longshore and Harbor
Worker's Compensation Act 20 CFR 702.242 and 702.243.
The language from the current Sec. 18.9(e)(10) is relocated to
proposed subdivision (h). The Department is extending the period of
time parties have to submit the required settlement documents to the
presiding judge from 7 days to 14 days. This will allow parties
additional time to draft the settlement documents and will decrease the
number of requests for an extension of time.
Sec. 18.14 Ex parte communication.
The Department proposes to revise the current Sec. 18.38 and
renumber it as proposed Sec. 18.14.
The Department proposes stylistic changes to the current Sec.
18.38, specifically subdivision (a). The language in the proposed rule
clarifies that the prohibition against ex parte communication applies
to the parties, their representatives, and other interested persons, as
well as the judge. The Department proposes to change ``any person'' to
``interested persons'' to be consisted with the Administrative
Procedure Act. See 5 U.S.C. 557(d)(1)(A).
The Department proposes to delete the description of ex parte
communication; however, this change is not intended to change the
definition of ex parte communication. The notification of procedural
request requirement is now covered by proposed Sec. Sec. 18.33,
Motions and other papers, and 18.41, Continuances and changes in place
of hearing.
The Department deleted the current subdivision (b), Sanctions,
because sanctions are covered in applicable statutes. In particular,
the Administrative Procedure Act provides an option of imposing
sanctions following ex parte communications if sufficient grounds
exist. See 5 U.S.C. 556(d)(2000); 5 U.S.C. 557(d)(1). Section 5 U.S.C.
557(d)(1)(D) gives the administrative law judge broad authority to
sanction any knowing violation of the APA's prohibition on ex parte
contacts. Accordingly, it is unnecessary to repeat the statute in these
regulations.
Sec. 18.15 Substitution of administrative law judge.
The Department proposes to revise the current Sec. 18.30 and
renumber it as proposed Sec. 18.15.
The Department proposes to change the title of this section to
``Substitution of administrative law judge'' to more accurately reflect
the procedure provided by the rule--how a substitute judge is appointed
when the presiding judge becomes unavailable.
The Department proposes a revision to the current subdivision (a)
modeled after Fed. R. Civ. P. 63. The Department proposes to require
the successor judge to certify that he or she is familiar with the
record before continuing with the presentation of the evidence.
Included in this subpart is a reference to proposed Sec. 18.12, the
section that defines the procedure for appointing a judge to a case.
Under the proposed subdivision (b), the Department proposes to
codify the longstanding Department of Labor policy, based on Strantz v.
Director, OWCP, 3 B.L.R. 1-431 (1981), of notifying the parties that
the original judge is no longer available, allowing them to object to
the successor judge issuing a decision based on the existing record,
and ordering supplemental proceedings upon a showing of good cause.
Finally, administrative need within OALJ routinely requires that
cases be reassigned among judges prior to the submission of evidence,
such as where a case is continued prior to a scheduled docket. The
proposed Sec. 18.15 does not affect those reassignments.
Sec. 18.16 Disqualification.
The Department proposes to revise the current Sec. 18.31 and
renumber it as proposed Sec. 18.16. The proposed revisions are largely
stylistic.
Under subdivision (a), the Department proposes to delete the
current notice requirement; however, this is not a procedural change.
Parties will be notified when a presiding judge has disqualified
himself or herself in due course with the appointment of a new judge.
The current Sec. 18.31 requires a motion to disqualify to be
accompanied by a supporting affidavit. The Department proposes to
clarify in Sec. 18.16(b) that as an alternative or addition to a
supporting affidavit a motion to disqualify may be accompanied by
supporting declarations or other documents. A presiding judge who
receives a motion to disqualify must rule on the motion in a written
order that states the grounds for the ruling.
The Department proposes to delete the current subdivision (c),
which provides that the Chief Judge will appoint a new presiding judge
if a judge recuses himself or herself. This procedure is covered by the
substitution provisions of proposed Sec. 18.15 and, therefore, is
superfluous here.
Sec. 18.17 Legal assistance.
The Department proposes to revise the current Sec. 18.35 and
renumber it as proposed Sec. 18.17. The Department proposes largely
stylistic revisions to this section. The rule continues to be that OALJ
does not appoint representatives or refer parties to representatives.
In addition, the Department proposes to revise this section to
expressly state that OALJ does not provide legal assistance to parties.
The Department proposes to change the reference to ``counsel'' to
``representative'' because the former is too narrow and does not
include non-attorney representatives.
Parties and Representatives
Sec. 18.20 Parties to a proceeding.
The Department proposes to revise the current Sec. 18.10 and
renumber it as proposed Sec. 18.20.
[[Page 72154]]
The Department proposes to delete the definition of ``party'' in
the current subdivision (a) because this definition is provided in the
APA. See 5 U.S.C. 551(3).
The current Sec. 18.10 includes provisions regarding how a party
may intervene in a case. The Department proposes to delete subdivisions
(b)-(d) because impleading and intervention are rare circumstances
before OALJ. If circumstances require, then the parties or judge may
refer to the Fed. R. Civ. P. 19, Required joinder of parties, Fed. R.
Civ. P. 20, Permissive joinder of parties, and Fed. R. Civ. P. 24,
Intervention. As set forth in proposed Sec. 18.10(a) the rules of
civil procedure will apply to circumstances not covered by the
Department's rules.
Sec. 18.21 Party appearance and participation.
The Department proposes to revise and combine the current
Sec. Sec. 18.34(a) and 18.39 into proposed Sec. 18.21, Party
appearance and participation, because both address a party's right to
appear.
The Department proposes to relocate the content from the current
Sec. 18.34(a) to proposed Sec. 18.21(a). This subpart states that a
party has a right to appear and participate in a proceeding in person
or through a representative. The enumeration of the rights currently
included in Sec. 18.34(a) is summarized by the words ``appear and
participate in the proceeding.'' The current Sec. 18.34(a) addresses
the possible actions a party may take during the course of a proceeding
as provided by the rules. The Department proposes to delete this
language because these actions are covered by other sections within the
Rules, most specifically within Title III: Filings, Title V: Discovery,
and Title VIII: Hearings.
The proposed subdivisions (b) and (c) are based on the current
Sec. 18.39(a) and (b), respectively. The Department has removed the
10-day timeframe with the intention that the presiding judge will set
an appropriate time for response.
Sec. 18.22 Representatives.
The Department proposes to revise the current Sec. 18.34 and
renumber it as proposed Sec. 18.22.
The Department proposes to narrow the scope of proposed Sec. 18.22
so that it functions as a list of qualifications and duties for
attorneys and non-attorney representatives who represent parties before
OALJ. The content from the current subdivision (a) is not included in
proposed Sec. 18.22, as explained in the note to the proposed Sec.
18.21, Party appearance and participation.
The Department proposes not to include the content from current
subdivisions (c) through (f) in proposed Sec. 18.22 because the
substantive rights of parties and subpoenaed witnesses are delineated
by other regulations under Part 18, Subpart A.
The Department proposes to relocate the current subdivision (b) to
subdivision (a), Notice of appearance. Under the proposed subdivision
(a), the Department clarifies that each representative must file a
``notice of appearance'' when first making an appearance and that the
notice is to include the statements and documentation required for
admission to appear as either an attorney or non-attorney
representative. This provision codifies current practice and clarifies
the timing of when the ``notice of appearance'' must be filed.
The Department proposes to relocate the current subdivision (g) to
proposed subdivision (b), Categories of representation; admission
standard. Under proposed paragraph (b)(1), the Department defines the
terms ``attorney'' and ``attorney representative'' under the proposed
rules. The current Sec. 18.34(g) uses the phrase ``attorney at law''
to describe whose appearance is governed by current subsections (g)(1)
and (g)(2); however, the Department proposes to delete this phrase from
the proposed rules because it is ambiguous. As in the current Sec.
18.34, an attorney who is in good standing in his or her licensing
jurisdiction may represent a party or subpoenaed witness. An attorney's
own representation of good standing is sufficient proof thereof, unless
otherwise directed by the judge. Under new subparagraph (b)(1)(B), an
attorney who is not in good standing in his or her licensing
jurisdiction will not be permitted to appear before OALJ unless that
attorney establishes in writing why the failure to maintain good
standing is not disqualifying.
The Department proposes to add a new provision under subparagraph,
(b)(1)(C) Disclosure of discipline, that places the duty on an attorney
to promptly disclose to the judge any current action suspending,
enjoining, restraining, disbarring, or otherwise restricting him or her
in the practice of law.
Under the proposed paragraph (b)(2), the Department clarifies that
an individual who is not an attorney may represent a party or a
subpoenaed witness upon the judge's approval. The Department proposes
to clarify what information must be included in a written request to
serve as a non-attorney representative and provides the standard the
judge will use to determine whether the non-attorney representative has
the qualifications or ability to render assistance. The judge may deny
a person's request to serve as a non-attorney representative only after
providing the party or subpoenaed witness with notice and an
opportunity to be heard.
The Department proposes to add subdivisions (c), Duties, (d),
Prohibited actions, and (e), Withdrawal of appearance, to proposed
Sec. 18.22. In subdivision (c), the Department determined that the
best approach to determining the governing code of conduct is to
require attorneys to adhere to the rules of conduct of their licensing
jurisdiction. Under subdivision (d), the Department proposes to state
specific actions a representative is prohibited from taking while
representing a party before OALJ. The proposed subdivision (e) provides
the procedure for a representative of record to withdraw as a
representative before OALJ and codifies current practice.
Sec. 18.23 Disqualification and discipline of representatives.
The Department determined that a separate rule identifying the
grounds and creating procedures for disqualification of a
representative was appropriate. The proposed Sec. 18.22,
Representatives, addresses a representative's qualifications and
duties. The proposed Sec. 18.87, Standards of conduct, creates a
procedure for excluding a party or representative for poor behavior
during the course of a particular proceeding. The Department determined
that the grounds and procedures for disqualifying a representative are
distinct and separate from the concepts addressed in the current
Sec. Sec. 18.34 and 18.36, and, accordingly, proposes Sec. 18.23.
The proposed Sec. 18.23 deals with both the disqualification of
lawyers from practicing before the Department because professional
discipline has been imposed on them in other jurisdictions, and
discipline the Department itself may impose on lawyers or other
representatives who misbehave during administrative litigation.
Lawyers traditionally have been regulated under a state-centered
regime of professional self-regulation, in which federal administrative
agencies played no role. State supreme courts, the admitting and
disciplinary authority for their states' lawyers, often delegate to the
state bar association the regulatory task of writing advisory ethics
opinions; they also rely heavily on the American Bar Association to
develop model ethics
[[Page 72155]]
rules and to suggest how to structure their systems of lawyer
discipline.
Administrative agencies may discipline lawyers who represent
clients before them. Before the advent of the Administrative Procedure
Act, the U.S. Supreme Court recognized that quasi-judicial agencies
empowered to adopt rules of procedure could set admission requirements.
Goldsmith v. U.S. Bd. of Tax Appeals, 270 U.S. 117, 122 (1926). The
legislative history of sec. 6(a) of the federal Administrative
Procedure Act ``leaves no doubt that Congress intended to keep
unchanged the agencies' existing powers to regulate practice before
them.'' 5 U.S.C. 555(b); Attorney General's Manual on the
Administrative Procedure Act (U.S. Dep't of Justice 1947) (hereinafter
Attorney General's Manual), at 65.
Congress later abolished nearly all agency requirements for
admission to practice with the Agency Practice Act of 1965. 5 U.S.C.
500(b), first enacted in Public Law 89332, 79 Stat. 1281, later
incorporated into the U.S. Code by Public Law 9083, 81 Stat. 195 (Sept.
11, 1967) (with minor stylistic changes). See also the Report to
Accompany S. 1758, House Committee on the Judiciary, H.R. Rep. No.
1141, 89th Cong., 1st Sess.(1965), reprinted in 1965 U.S. Code Cong. &
Admin. News, 89th Cong., 1st Sess at 4170. Any lawyer who is a member
in good standing of a state bar could practice before federal agencies,
unless an agency is authorized to impose additional requirements,
something Congress did for the Patent and Trademark Office. 5 U.S.C.
500(d)(4). The Agency Practice Act is neutral on the authority of
agencies to discipline representatives, including lawyers. 5 U.S.C.
500(d)(2) (stating that the Agency Practice Act does not ``authorize or
limit the discipline, including disbarment, of individuals who appear
in a representative capacity before an agency.''). The courts of
appeals read the authority to adopt rules of practice and procedure as
power to discipline the wayward, to protect the integrity of the
agency's procedures and the public generally. Polydorff v. ICC, 773
F.2d 372 (DC Cir. 1985) (upholding the authority of the ICC to
discipline an attorney); Touche Ross & Co. v. SEC, 609 F.2d 570, 581-
582 (2d Cir. 1979) (upholding the authority of the SEC to discipline
accountants who practice before it); Koden v. U.S. Dep't of Justice,
564 F.2d 228 (7th Cir. 1977) (upholding the authority of the
Immigration and Naturalization Service to discipline attorneys who
appeared before it).
According to the Reporter for the American Bar Association Special
Committee on Evaluation of Ethical Standards, who drafted the Model
Code of Professional Responsibility a generation ago, the ABA has long
stated that its ethical standards apply to the conduct of lawyers
before all adjudicatory entities. Michael P. Cox, Regulation of
Attorneys Practicing Before Federal Agencies, 34 Case W. Res. L. Rev
173, 202 & n. 132 (1982). The ABA Model Rules of Professional Conduct
were adopted by the ABA House of Delegates in 1983, and have been
amended several times thereafter. They serve as models for the legal
ethics rules of most states. The current ABA Model Code of Professional
Conduct (2010) imposes many obligations on trial lawyers. Among them
are duties to exhibit candor; to follow procedural rules; to deal
fairly with opposing parties and their lawyers, including the
obligation to turn over evidence in discovery and refrain from altering
evidence; and to avoid disruptive behavior. See Model Rules 3.3; 8.4
(c) and (d); 3.4(a) and (c); and 3.5(d). All apply to lawyers who
practice before ``tribunals,'' a term that specifically embraces
administrative agencies as well as courts. See Model Rule 1.0(m).
The Department proposes to divide Sec. 18.23 into four
subdivisions: (a), Disqualification, (b), Discipline, (c),
Notification, and (d), Reinstatement. Under subdivision (a), the
Department proposes to regulate lawyers who gained the right to
practice before the Department through admission to the bar of the
highest court of a State or similar governmental unit, but lost it or
had the right to practice limited due to a criminal conviction or
proven professional misconduct. The Department proposes that
representatives qualified under proposed Sec. 18.22 may be
disqualified upon conviction of any of the serious crimes described in
subparts (a)(1)(A) and (B).
A lawyer may also become disqualified under subparts (a)(1)(C) and
(D), as reciprocal discipline when another jurisdiction finds the
lawyer guilty of professional misconduct, or the lawyer consents to
disbarment, suspension, or resigns while an investigation into
allegations of misconduct is pending. Federal courts routinely enforce
reciprocally any limitations on practice state courts have imposed,
after satisfying themselves that those disciplinary proceedings met the
substantive requirements the U.S. Supreme Court set nearly a century
ago in Selling v. Radford, 243 U.S. 46 (1917). The Department has
relied on this rule, and given reciprocal effect to discipline state
courts imposed on lawyers who have appeared before the Department's
administrative law judges. In The Matter of the Qualifications of
Edward A. Slavin, Jr., ARB Case No. 05-003, OALJ Case No. 2004-MIS-5
(Nov. 30, 2005), also available at 2005 WL 3263825 (DOL Adm.Rev.Bd).
Lawyers who litigate before the Department are expected to adhere
to the rules of conduct promulgated by the jurisdiction(s) where they
are admitted to practice, which typically are founded on the American
Bar Association's Model Rules of Professional Conduct. Contumacious
behavior, the violation of the rules of practice the Department has
adopted, or failure to follow the procedural dictates of a governing
statute, program regulation or of a judge's order also opens the lawyer
to discipline by the Department. See proposed Sec. 18.23 (b)(1). State
supreme courts have disciplined lawyers for misconduct in litigation
before the Department.
Under paragraph (a)(2), the Chief Judge must provide notice and an
opportunity to be heard as to why the representative should not be
disqualified from practice before the Office of Administrative Law
Judges. The Chief Judge's determination must be based on the
``reliable, probative and substantial evidence of record, including the
notice and response.''
Under subdivision (b), the Department proposes the procedure for
disciplinary proceedings initiated because of a representative's
conduct before OALJ. The disciplinary procedure is structured so that
the representative's conduct and defense will be reviewed by a
presiding judge, who applies the APA's review standard of reliable,
probative, and substantial evidence of record. The representative may
appeal the presiding judge's decision to the Chief Judge who reviews
the decision under the substantial evidence standard. The Chief Judge's
decision is not subject to review within the Department of Labor. The
proposed Sec. 18.95, Review of Decision, provides that the statute or
regulation that conferred hearing jurisdiction provides the procedure
for review of a judge's decision. If the statute or regulation does not
provide a procedure, the judge's decision becomes the Secretary's final
administrative decision.
Under subdivision (c), the Department proposes to provide notice
that when an attorney representative is suspended or disqualified by
OALJ, the Chief Judge will alert the attorney's licensing
jurisdiction(s) and the National Lawyer Regulatory Data Bank by
providing a copy of the decision and order. The National Lawyer
Regulatory Data Bank is the national clearing house of
[[Page 72156]]
disciplinary information, maintained by the American Bar Association
Standing Committee on Professional Discipline. All states and the
District of Columbia, as well as many federal courts and some agencies,
provide disciplinary information to the Data Bank. See http://www.americanbar.org/groups/professional_responsibility/services/databank.html.
Under subdivision (d), the Department proposes the procedure a
representative suspended or disqualified under this section must follow
to request reinstatement to practice before OALJ.
Sec. 18.24 Briefs from amicus curiae.
The Department proposes to delete the current Sec. 18.12 and
replace it with proposed Sec. 18.24.
The title of Sec. 18.24 was drafted to emphasize that an amicus
curiae may participate in a proceeding only by filing a brief. The
final statement that an amicus curiae brief must be filed by the close
of the hearing was added to provide a timeframe for filing. If an
amicus curiae wishes to participate in the formal hearing, then the
person or organization must petition the judge to participate as an
intervenor.
Service, Format and Timing of Filings and Other Papers
Sec. 18.30 Service and filing.
The Department proposes to revise the current Sec. 18.3 and
renumber it as proposed Sec. 18.30. The proposed Sec. 18.30 is
modeled after Fed. R. Civ. P. 5. In the current Part 18, Subpart A
rules service and filing requirements are listed under several
sections. The Department proposes to delete those references and have
this section address all the general service and filing procedures.
Similar to Fed. R. Civ. P. 5, the Department proposes to
restructure the current Sec. 18.3 into two subparts: (a), Service on
parties and (b), Filing with Office of Administrative Law Judges.
Portions of the current subdivision (a) and subdivision (e) that
address the actual form of filings are not included in proposed Sec.
18.30 and are instead addressed in proposed Sec. 18.34, Format of
papers filed. For example, current subdivision (a) states: ``All
documents should clearly designate the docket number, if any, and short
title of the matter.'' This language is included in proposed Sec.
18.34.
The Department proposes to incorporate the content from the current
subdivision (d) into proposed subdivision (a) because the service
process is the same for all papers, including complaints.
Under subdivision (a), the Department proposes to provide general
guidance on how parties are served. The Department proposes to add a
certificate of service requirement under subparagraph (a)(3). The
current Part 18, Subpart A does not define a certificate of service, so
including the definition in the service and filing section clarifies
the requirements of certifying that a paper was served on another
party. In the past, pro se parties before OALJ have failed to provide
certificates of service, requiring judges to follow up with the other
parties to the case to verify that a paper was served.
In order to distinguish between a clerk employed at a party's place
of business and the OALJ clerk who receives documents for the Office,
the Department proposes to amend item (a)(2)(B)(iv) and paragraph
(b)(2) by adding the term ``docket clerk.'' Docket clerk is defined in
proposed Sec. 18.2, Definitions, to clarify that the docket clerk is
the Chief Docket Clerk at the Office of Administrative Law Judges in
Washington, DC or, once a case is assigned to a judge in a district
office, the docket staff in that office.
Under proposed subdivision (b), the Department specifies the
procedure for filing papers with OALJ. Under subparagraph (b)(1),
parties are required to file within a reasonable time papers served on
other parties or participants. However, like the current rule, parties
are not required to file discovery documents, unless the judge orders
or the party uses them in the proceeding. The required filing provision
also extends to any required disclosures ordered by the judge under
Sec. 18.50, General provisions governing discovery and disclosure.
The Department proposes to provide the procedure for filing by
facsimile in proposed subparagraph (b)(3)(A)--currently subdivision
(f). In recognition of OALJ's nationwide jurisdiction and circumstances
requiring last-minute filings, the Department proposes to clarify that
parties may file by facsimile only as directed or permitted by the
judge.
The Department proposes to relocate the content from the current
subdivisions (f)(6) and (g) to proposed subdivision (b) because theses
subdivisions address those parts of the filing process.
The Department proposes to delete the current (f)(3) because
paragraph (a)(3) will apply in all cases. The proposed section adds a
specific mechanism by which the parties can establish that the fax was
sent and received and puts the burden on the party to maintain the
original document.
The Department proposes to delete the current (f)(7) to limit the
use of fax submissions to times when ordered by the Judge.
Sec. 18.31 Privacy protection for filings and exhibits.
Proceedings before OALJ are open to the public. The current Part
18, Subpart A does not include a privacy requirement that parties
redact personal data identifiers from filings. OALJ has a policy
statement encouraging such redaction, but the notice is advisory, not
mandatory. See www.oalj.dol.gov/ACCESS_TO_COURT_RECORDS.HTM/.
The 2007 revision of the FRCP included the addition of Fed. R. Civ.
P. 5.2 in response to the E-Government Act of 2002, 44 U.S.C. 3501. The
Advisory Committee Note addressing Fed. R. Civ. P. 5.2 states that the
privacy and security concern addressed by this rule is the electronic
availability of filed documents. The scope of Fed. R. Civ. P. 5.2 is
limited to filings with the court, and extends to trial exhibits when
they are filed with the court.
The Department proposes a privacy protection rule based on Fed. R.
Civ. P. 5.2 which will serve two agency-specific purposes. Like Fed. R.
Civ. P. 5.2, proposed Sec. 18.31 will reach any electronic filings
with OALJ. In addition, Sec. 18.31 will clarify the job of the Freedom
of Information Act officer who reviews files in the case of a FOIA
request. As a result of the broader purpose of OALJ's privacy
protection rule, the Sec. 18.31 extends to filings and exhibits. The
majority of personal information to be redacted by the FOIA officer is
contained in the exhibits, not the filings.
The proposed subdivision (a) lists the personal data identifiers
that parties must redact from filings submitted to OALJ, unless the
judge orders otherwise. The Department also lists filings that are
exempted from the redaction requirement under proposed subdivision (b).
Under subdivision (b), OALJ has exempted the record of administrative
proceedings and exhibits filed within the Department of Labor and
submitted to OALJ.
Under subdivision (c), the Department proposes to provide parties
with the option to file a reference list of redacted information. The
term ``redacted'' is intended to govern a filing that is prepared with
abbreviated or blocked-out identifiers in the first instance, as well
as a filing in which a personal identifier is edited after its
preparation.
Under subdivision (d), the Department proposes to allow a person to
waive the protections of the rule as to that person's own personal
[[Page 72157]]
information by filing it unsealed and in unredacted form. One may wish
to waive the protection if it is determined that the costs of redaction
outweigh the benefits to privacy. If a person files an unredacted
identifier by mistake, that person may seek relief from the judge.
The proposed subdivision (d) provides that a judge may, for good
cause, require more extensive protection of material than otherwise
required by this section. The Department does not intend for this
subdivision to affect the limitations on sealing that are otherwise
applicable to the judge. See Sec. 18.85, Privileged, sensitive and
classified material.
Sec. 18.32 Computing and extending time.
The Department proposes to delete the current Sec. 18.4 and
replace it with proposed Sec. 18.32. The proposed Sec. 18.32 is
modeled after Fed. R. Civ. P. 6. References to service and filing in
the current Sec. 18.4 are now addressed in proposed Sec. 18.30,
Service and filing.
The Department proposes to increase the scope of the computation
provisions in current Sec. 18.4(a) to apply to time periods set out in
``these rules, [the] judge's order, or in any statute, regulation, or
executive order that does not specify a method for computing time.''
The expanded scope creates consistency in cases that fall under
statutes and regulations that do not have time computation provisions.
The revisions do not supplant a computation scheme from another agency
or rule.
Under proposed subdivision (a), the Department proposes to add the
definitions of ``last day,'' ``next day,'' and ``legal holiday.'' The
current subdivision (a) includes a sentence explaining the computation
of time for periods less than 7 days. The Department proposes to delete
this sentence from the proposed rule to be consistent with the
Department's general revision to provide at least 14 days to respond or
file.
Subdivision (b) provides the criteria judges will use when
responding to a request for an extension of time. The Department
proposes this subdivision to provide litigants with fair notice as to
the applicable standard of review.
The Department proposes to delete the current Sec. 18.4(c)(1) and
(3), which permit the addition of 5 days for filing by mail and when a
party is served by mail. Some litigants have found this time-
calculation provision confusing. To replace these provisions, the
Department proposes to add subdivision (c) to function like Fed. R.
Civ. P. 6(d). Three days are added after particular types of service
listed in proposed Sec. 18.30(a)(2)(B)(iii) or (iv). The decrease in
the number of days for responding is offset by the extension of time to
respond from 10 days to 14 days. Days are no longer added to the date
of filing when filing by mail. The Department proposes this change to
make the practice before OALJ more uniform and consistent with the
procedure in the district courts.
Sec. 18.33 Motions and other papers.
The Department proposes to revise current Sec. 18.6 and renumber
it as proposed Sec. 18.33. Proposed Sec. 18.33 is modeled after Fed.
R. Civ. P. 7(b) and Fed. R. Civ. P. 43(c).
Under Sec. 18.33, the Department proposes to clarify the filing
requirements for motions and other papers and add the language from
Fed. R. Civ. P. 7(b) to proposed Sec. 18.33 (a) and (b). Under
proposed subdivision (a) ``[a] request for an order must be made by
motion.'' This applies to any requests made to a judge. A motion must:
(1) Be in writing, unless made during a hearing; (2) state with
particularity the grounds for seeking the order; (3) state the relief
sought; and (4) unless the relief sought has been agreed to by all
parties, be accompanied by affidavits, declarations, or other evidence,
and (5) if required by subsection (C)(4), include a memorandum of the
points and authorities supporting the movant's position.
The proposed subdivision (b) provides that ``the rules governing
captions and other matters of form apply to motions and other
requests.''
Under subdivision (c), the Department proposes to add that written
motions before a hearing must be served with supporting papers at least
21 days prior to hearing. A written motion served within 21 days before
the hearing must state why the motion was not made earlier. The current
version of this section does not set a timeframe for serving and filing
motions prior to the hearing. The Department proposes to add this
timeframe to provide judges sufficient time to rule on pre-hearing
motions. This may narrow the issues for the hearing and save witness
travel time and expenses. The exceptions to this regulation include:
(A) When the motion may be heard ex parte; (B) when these rules or an
appropriate statute, regulation, or executive order set a different
time; or (C) when an order sets a different time.
The proposed subdivision (d) requires that a response to a motion
be filed within 14 days after the motion is served. The Department
proposes to increase the amount of time a party has to respond from the
10 days in the current version of the rule to 14 days. The change to 14
days comports with the general revision to set time periods based on
multiples of 7.
Under paragraph (c)(3), the Department proposes to add the
requirement that counsel for the moving party confer or attempt to
confer with opposing counsel in a good faith effort to resolve the
subject matter of the motion, except when a party is unrepresented or
for particular types of motions listed under subparagraphs (c)(3)(A)
through (c)(3)(C). This provision is consistent with the FRCP and the
Department anticipates that this will reduce the number of motions by
encouraging the parties to resolve issues amongst themselves. Paragraph
(c)(4) clarifies that unless the motion is unopposed, the supporting
papers for the motion must include affidavits, declarations or other
proof to establish the factual basis for the relief. For a dispositive
motion and a motion relating to discovery, a memorandum of points and
authorities must also be submitted. A judge may direct the parties file
additional documents in support of any motion.
The Department proposes to delete the language in current Sec.
18.6(d) from this section and address motions to compel in Sec. Sec.
18.35, Signing motions and other papers; representations to the judge;
sanctions, 18.56, Subpoena, and 18.57, Failure to make disclosures or
to cooperate in discovery; Sanctions.
Cases may be reassigned to different judges based on the
administrative needs of the Office of Administrative Law Judges.
Therefore, the Department proposes to add subdivision (f) to address
renewed or repeated motions made to a different judge than the judge
who previously ruled on the motion.
Sec. 18.34 Format of papers filed.
The Department proposes to add a new Sec. 18.34, Format of papers
filed, to provide the format a party should use when filing papers with
OALJ. This proposed section expands the current document filing
requirements located under current Sec. 18.3(a) to provide litigants
with more specific formatting requirements. The current Sec. 18.3(a)
provides that ``all documents should clearly designate the docket
number, if any, and short title of the matter'' and ``each document
filed shall be clear and legible.'' The proposed Sec. 18.34 states
that every paper filed must be printed in black ink on 8.5 x 11-inch
opaque white paper. The Department proposes the black ink requirement
because litigants sometimes file handwritten papers with colored ink
that can be difficult to read.
[[Page 72158]]
The current caption requirements are located under current Sec.
18.3(e). Under proposed Sec. 18.34, the Department clarifies that
filed papers must begin with a caption that includes: (a) the parties'
names, (b) a title that describes the paper's purpose, and (c) the
docket number assigned by the Office of Administrative Law Judges. If
the case number is an individual's Social Security number then only the
last four digits may be used. See 18.31(a)(1). If OALJ has not assigned
a docket number, the paper must bear the case number assigned by the
Department of Labor agency where the matter originated. The Department
proposes to relocate the address and telephone number requirement in
the current Sec. 18.3(e) to proposed Sec. 18.35(a).
Sec. 18.35 Signing motions and other papers; representations to the
judge; sanctions.
The Department proposes to add a new Sec. 18.35 modeled after Fed.
R. Civ. P. 11. This section establishes the standards attorneys and
parties must meet when filing motions or other documents with OALJ. It
also regulates the circumstances in which sanctions may be imposed if
the standards of Sec. 18.35 are not met.
Under subdivision (a), every written motion and other paper filed
with OALJ must be dated and signed by a representative of record or by
a party personally if the party is unrepresented. The paper must state
the signer's address, telephone number, facsimile number and email
address, if any. If a document subject to Sec. 18.35 is not signed,
the judge has the power to strike the document unless the proponent
signs it promptly upon notification of the missing signature.
Under subdivision (b), the Department sets the standards that
motions and other papers regulated by Sec. 18.35 must meet. It also
specifically provides that the standards are applicable to later
advocacy of such documents, as well as to the initial submission of the
documents.
The Department proposes to regulate who may be sanctioned for
violations of Sec. 18.35(b), as well as how the sanctions process may
be initiated under subdivision (a). This subdivision also governs the
extent and limitations of the judge's sanctioning power.
Sections 18.50 through 18.65, governing the discovery process,
control the circumstances when sanctions may be imposed for
inappropriate behavior in discovery. For that reason, Sec. 18.35(d)
clarifies that Sec. 18.35(a), (b) and (c) have no applicability to
discovery issues.
Sec. 18.36 Amendments after referral to the Office of Administrative
Law Judges.
The Department proposes to revise the current Sec. 18.5 and
renumber it as proposed Sec. 18.36.
Proceedings before the Office of Administrative Law Judges are
rarely initiated by a complaint and answer. Accordingly, the Department
proposes to delete subdivisions (a)-(d) in current Sec. 18.5. However,
a judge may still require the parties to file a complaint and answer in
certain cases for the purpose of clarifying the issues in the
proceeding.
Amendments and supplemental pleadings are an infrequent occurrence
because proceedings are rarely initiated before OALJ with a complaint
and answer. If amended or supplemental complaints and answers are
required, then the judge may apply Fed. R. Civ. P. 15. Accordingly,
current Sec. 18.5(e) is deleted and the proposed Sec. 18.36 provides
the judge discretion to allow parties to amend and supplement their
filings.
Prehearing Procedure
Sec. 18.40 Notice of hearing.
The Department proposes to revise the current Sec. 18.27 and
renumber it as proposed Sec. 18.40.
The current subdivision (a) makes reference to notice of prehearing
conferences. Notice of prehearing conferences is controlled by proposed
Sec. 18.44, Prehearing conferences, so the Department deleted this
reference in proposed Sec. 18.40. In proposed Sec. 18.40 (a), the
number of days for timely notice is changed from 15 days to 14 days.
The change comports with the general revision to set time periods based
on multiples of 7.
The current subdivision (b) addresses the judge's ability to change
the date, time, or place for a hearing and the number of days notice
required for a change. The Department determined that this provision is
appropriately grouped with continuances, instead of with the notice of
hearing requirements. The Department proposes to relocate a revised
version of this subpart to proposed Sec. 18.41(a), Continuances and
changes in place of hearing.
The current subdivision (c)--now proposed subdivision (b)--is
edited to not only address how the judge will determine the location
for the hearing, but also the date and time of the hearing. This
proposed subdivision also includes a consideration of the ``necessity
of the parties and witnesses in selecting the date, time and place of
the hearing.'' This requirement is expressed in sec. 554 of the APA and
more accurately reflects the considerations a judge must make when
determining the date, time, and place for the hearing.
Sec. 18.41 Continuances and changes in place of hearing.
The Department proposes to revise the current Sec. 18.28 and
renumber it as proposed Sec. 18.41.
The Department proposes to clarify in this section when a judge may
continue a hearing. This procedure in part is located under current
Sec. 18.27(b); however, the Department determined that the procedure
of a judge continuing a case is more appropriately grouped in this
continuance rule. Under Sec. 18.41(a), the Department proposes to
require that the judge provide reasonable notice to the parties of a
change in date, time or place of the hearing. The proposed change
permits the judge to inform the parties of the changes within a
reasonable time based on the circumstances of the continuance. This
flexibility permits the judge to adjust the hearing schedule as needed
without having to comport with a 14-day notice requirement. However,
the reasonable notice still protects a party's due process rights to
have notice of the hearing.
The Department proposes to revise the current subdivision (b) to
address a party's request to continue or change the place of a hearing.
The current regulation requires a party to file a motion for a
continuance at least 14 days before the date set for hearing. The
Department proposes to eliminate the 14-day filing requirement.
Instead, the proposed regulation requires that a party ``promptly''
file a motion after becoming aware of the circumstances supporting a
continuance. If a party is immediately aware of the conflict upon
receipt of the notice of hearing, the party should file a motion to
continue at once.
Under subdivision (b), the Department proposes to permit a party to
orally move to continue a hearing, but only in exceptional
circumstances. The proposed Sec. 18.33, Motions and other papers,
requires that motions be made in writing; this section, however,
provides a limited exception. For the reasons discussed above, the time
limit for an oral motion if the request is made 10 days before the
hearing is not included. Under proposed paragraph (b)(1), if a party
makes an oral motion for a continuance it must immediately notice the
other parties of the request.
The final sentence of the current subdivision (b) addresses oral
motions for a continuance at a calendar call or hearing. The Department
proposes to
[[Page 72159]]
address oral motions at a hearing in proposed Sec. 18.33(e).
Therefore, the Department proposes to omit this reference from proposed
subdivision (b).
The Department proposes to add a regulation under Sec. 18.41
(b)(2). Under this paragraph, a party may move to change the location
of the hearing. This proposed provision permits the parties to inform
the judge when a more suitable hearing location is available.
Sec. 18.42 Expedited proceedings.
The Department proposes to delete the current Sec. 18.42 and
replace it with proposed Sec. 18.42.
The Department proposes to delete the references to expedited
proceedings that are required by statute or regulation in current
subdivisions (a)-(d) and (f). Expedited hearings are controlled by the
statute or regulation requiring the accelerated proceedings and do not
require either party to file a motion requesting an expediting
proceeding. The timing of the hearing and decision in cases expedited
by statute or regulation is determined by the governing statute or law.
For example, under 20 CFR 655.171(a), Temporary Employment of Foreign
Workers in the United States, when an employer requests administrative
review an ALJ must issue a decision within 5 business days of receipt
of the administrative file. See also 20 CFR 655.33(f). The Department
proposes not to include the current subdivision (f) in its entirety
because it is unnecessary and may be in conflict with the governing
law.
The proposed Sec. 18.33, Motions and other papers, provides the
requirements for filing a written motion, including a motion for an
expedited proceeding. The Department proposes to delete the provisions
in existing paragraphs (b)(1), (b)(2), and (b)(4) because a motion
filed in accordance with proposed Sec. 18.33 must be in writing and
describe with particularity the circumstances for seeking relief. The
time for responding to a motion under proposed Sec. 18.33(d) is 14
days, an addition of 4 days to the 10 days required in existing Sec.
18.42(d). This change to 14 days comports with the general revision to
set time periods based on multiples of 7.
The Department proposes not to include the current subdivision (c)
because service is addressed by proposed Sec. 18.30, Service and
filing.
The Department proposes to omit the provision in current
subdivision (e) that provides for advanced pleading schedules,
prehearing conferences, and hearings. The Department proposes to delete
this regulation because setting the date for conferences is within the
judge's general powers set forth in proposed Sec. Sec. 18.44,
Prehearing conferences, and 18.12, Proceedings before administrative
law judge. The 5-day limitation on advancing the hearing is extended to
7 days. The change to 7 days comports with the general revision to set
time periods based on multiples of 7.
Sec. 18.43 Consolidation; separate hearings.
The Department proposes to delete the current Sec. 18.11 and
replace it with the proposed Sec. 18.43. The proposed Sec. 18.43 is
modeled after Fed. R. Civ. P. 42, Consolidation; separate trials.
The Department proposes to revise this section to more accurately
reflect the practice before OALJ. The current Sec. 18.11 describes the
process of consolidating hearings, whereas the proposed Sec. 18.43
addresses the judge's power to order consolidated and separate
hearings. The proposed subdivision (a) clarifies that an administrative
law judge may join for hearing any or all matters at issue in the
proceedings or may issue any other order to avoid unnecessary cost or
delay. The proposed subdivision (b) clarifies that for convenience, to
avoid prejudice, or to expedite and economize, the judge may order a
separate hearing on one or more issues.
Sec. 18.44 Prehearing conference.
The Department proposes to delete the current Sec. 18.8 and
replace it with proposed Sec. 18.44. The proposed Sec. 18.44 is
modeled in part after Fed. R. Civ. P. 16.
The current Sec. 18.8 states that the purpose of a prehearing
conference is to ``expedite'' the proceedings. The Department proposes
to expand the purpose for a prehearing conference in proposed
subdivision (a) to include: establishing early and continuing control
so that the case will not be protracted because of lack of management;
discouraging wasteful prehearing activities; improving the quality of
the hearing through more thorough preparation; and facilitating
settlement. This revision more accurately reflects the purpose of
prehearing conferences before OALJ.
The Department proposes subdivision (b) to provide guidance on the
scheduling and notice of the prehearing conference. This procedure is
currently located in Sec. 18.8(a).
The Department proposes subdivision (c) to require parties to
participate in the conference as directed by the judge. This
requirement is currently located in Sec. 18.8(a). In this subpart, the
Department proposes to clarify that if a party is represented by an
attorney or non-attorney representative, the representative must have
authority to make stipulations and admissions and, to settle.
The Department proposes subdivision (d) to expand the current
subparagraph (a)(2) to include additional matters for consideration
that the judge can take action on during prehearing conferences. This
revision is modeled after Fed. R. Civ. P. 16(c)(2) and accurately
reflects the breadth of issues addressed in prehearing conferences
before OALJ.
The Department proposes to combine the current subdivisions (b) and
(c) into subdivision (e). Under this subdivision, the Department
proposes to change the default by stating that judges may direct that
the prehearing conference be recorded and transcribed. The current
Sec. 18.8 requires stenographic recording and transcription, unless
otherwise directed by the judge. This change reflects the routine
practice of unrecorded prehearing conferences. Typically there is no
testimony taken during prehearing conferences so unrecorded conferences
are more cost-efficient. In certain cases, such as those involving
unrepresented parties, judges may continue to order recorded prehearing
conferences.
Disclosure and Discovery
Sec. 18.50 General provisions governing disclosure and discovery.
The Department proposes to adopt a new section to govern discovery
and disclosure, incorporating portions of Fed. R. Civ. P. 26 not
already addressed by specific Part 18, Subpart A regulations. The
current Part18A provides limited guidance regarding discovery and
disclosure. The Department, therefore, is establishing better guidance
in proposed Sec. 18.50. The proposed subdivisions (a), (c), and (d)
apply to all cases, except as specified, while subdivision (b) is
invoked by a judge's order.
Under subdivision (a), a party may seek discovery at any time after
a judge issues an initial notice or order. The rule creates a
possibility that a party may seek discovery prior to the judge issuing
an order requiring the parties to confer under Sec. 18.50(b). Instead
of providing for that situation in this section, the Department
anticipates that the judge's initial notice or order would address
discovery sought before the conference, or that a party may file an
appropriate motion requesting relief or instruction.
Unless, on motion, the judge orders otherwise for the parties' and
witnesses' convenience and in the interests of
[[Page 72160]]
justice, the methods of discovery may be used in any sequence and
discovery by one party does not require any other party to delay its
discovery. There is also no requirement that a party conduct discovery
in a manner like that used by other parties; each party is free to
conduct any authorized discovery in any sequence regardless of the
discovery conducted by other parties.
Under subdivision (b), a judge may order parties to confer and
develop a proposed discovery plan, to be submitted in writing,
addressing the discovery schedule and any modifications to the limits
or scope of discovery. The discovery plan should indicate the parties'
positions or proposals concerning: Automatic discovery; discovery scope
and schedule; electronic information; privilege issues; discovery
limits; and other discovery orders. Section 18.50(b) places a joint
obligation on the representatives (and on unrepresented parties) to
schedule the discovery conference and to attempt in good faith to agree
on a proposed discovery plan and a report outlining the plan.
The results of the discovery conference may be reported to the
judge using Form 52 of the Appendix of Forms that is incorporated into
the FRCP through Fed. R. Civ. P. 84. The judge uses that information to
craft a scheduling order that controls the development of the case.
Under subdivision (c), parties are required to disclose certain
information automatically, without the need for discovery requests, at
two points during the litigation. First, at the commencement of a
proceeding before OALJ, each party must automatically provide to the
other parties the identity of individuals (including experts) likely to
have discoverable information, a description of documents by category
and location, and a computation of each category of damages. Under
proposed subparagraph (c)(1)(B), five categories of proceedings are
excluded from this initial disclosure, because in these proceedings
discovery is generally not applicable, or is limited due to the nature
of the proceeding. Second, later in the case litigants must serve
written reports of experts they retained to testify; an expert not
retained or specially employed to provide expert testimony--a treating
physician often falls into this category--need not write a report, but
the party must serve an equivalent disclosure about that expert's
opinions and their bases.
Under proposed subparagraph (c)(1)(C), representatives of the
Department's Office of Workers' Compensation Programs are exempted from
the requirement to provide initial disclosure, except under specified
circumstances. Under the governing regulation for Black Lung cases, the
District Director is required to provide a complete copy of the
administrative record to all parties. 20 CFR 725.421(b). In Longshore
cases, the District Director provides a copy of the pre-hearing
statements to the Office of Administrative Law Judges, but under the
regulation is prohibited from transmitting the administrative record.
20 CFR 702.319. The proposed subparagraph also recognizes that under
certain situations the Department's representative actively litigates
(e.g., when representing the Black Lung Disability Trust Fund in a case
in which no responsible operator has been identified, see 20 CFR
725.497(d); or when an employer in a Longshore case has made a claim
under 33 U.S.C. 908(f) for reimbursement by the ``special fund.'') Then
the Department's representative must make the initial disclosures.
Expert opinions ultimately are disclosed in one of two ways. Each
witness retained to provide expert testimony must produce a report.
Each expert report must be in writing, signed by the expert, and must
contain the specific information listed under subparagraph (c)(2)(B).
Under subparagraph (c)(2)(A), judges have the discretion to set the
time for this disclosure by prehearing order. For witnesses who are not
required to provide a written report, under subparagraph (c)(2)(C) a
party must state the subject matter on which the witness is expected to
present expert opinion evidence and provide a summary of the facts and
opinions to which the witness is expected to testify. For example,
under 20 CFR 725.414(c) in Black Lung cases an expert may testify in
lieu of a report and is not required to submit a written report. Such
expert witnesses in Black Lung cases are commonly treating physicians
who do not prepare written expert reports in the course of business.
This provision drawn from Fed. R. Civ. P. 26(a)(2)(C) provides the
mechanism to get the equivalent information. Under subparagraph
(c)(2)(D), parties must supplement expert disclosures when required
under proposed Sec. 18.53, Supplementing disclosures and responses.
Under paragraph (c)(3), in addition to required disclosures, a
party must provide to the other parties and promptly file the
prehearing disclosures described in proposed Sec. 18.80, Prehearing
statements.
Under paragraph (c)(4) unless the judge orders otherwise, all
disclosures under this section must be in writing, signed, and served.
Under subdivision (d), every disclosure under Sec. 18.50(c) and
every discovery request, response, or objection must be signed by at
least one of the party's representatives in the representative's own
name, or by the party personally if unrepresented. The document must
also contain the signer's address and telephone number. The signature
constitutes a certification that the document is complete and correct
to the best of the signer's knowledge, information, and belief, and it
is being served for proper purposes within the rules. Under paragraph
(d)(2), parties have no duty to act on an unsigned disclosure, request,
response, or objection until it is signed and the judge must strike it
unless a signature is promptly supplied after the omission is called to
the representative's or party's attention. If a certification violates
this regulation without substantial justification, judges have the
authority to impose an appropriate sanction, either on motion or on his
or her own, under paragraph (d)(3).
Sec. 18.51 Discovery scope and limits.
The Department proposes to delete the current Sec. 18.14 and
replace it with proposed Sec. 18.51. The proposed Sec. 18.51 is
modeled after Fed. R. Civ. P. 26(b), Discovery scope and limits.
The Department proposes to revise the scope of discovery in current
Sec. 18.14(a) based on a 2000 amendment to Fed. R. Civ. P. 26(b)(1)
which narrowed the scope of discovery. The current subdivision (a)
permits parties to seek ``discovery regarding any matter, not
privileged, which is relevant to the subject matter involved in the
proceeding * * *'' In the proposed Sec. 18.51, the parties are
instructed to confine requests to ``any nonprivileged matter that is
relevant to any party's claim or defense * * *'' The Department
proposes to incorporate this amendment to control discovery costs
without interfering with the fair resolution of the case. The parties
are permitted to seek discovery related to the claims or defenses and,
if needed, the judge may permit a party to seek discovery of any matter
related to the case's subject matter.
The Department proposes to relocate the limitations in current
Sec. 18.14(b) regarding objections to discovery to the third sentence
of proposed Sec. 18.51(a). The Department proposes to clarify that a
party may seek discovery of relevant information, even if the
information would not be admissible at the hearing, as long as the
discovery ``appears
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reasonably calculated to lead to the discovery of admissible
evidence.''
In Sec. 18.51(b), the Department proposes additional limitations
on the frequency and extent of discovery not contained in the current
Sec. 18.14. The limitations imposed by the current Sec. 18.14 are
limited to relevant information and information that is protected by a
privilege. The Department proposes limitations on discovery that are
designed to control the costs and burdens of discovery, as appropriate.
The Department proposes to provide limitations on the frequency of
using discovery tools in Sec. Sec. 18.64, Oral depositions, 18.65,
Written depositions, 18.60, Interrogatories, and 18.63, Requests for
admission. The Department proposes paragraph (b)(1) to provide a judge
the discretion to alter the limits imposed by these regulations.
The Department proposes paragraph (b)(2) to limit the discovery of
electronically stored information (ESI). The existing Part 18, Subpart
A rules, promulgated in 1983, do not mention ESI; the proposed changes
governing ESI reflect the contemporary nature of document management
and discovery methods. In order to control the costs and burdens of
producing documents, proposed paragraph (b)(2) establishes a
requirement that a party need not provide discovery of ESI if the
information is not reasonably accessible because of undue burden or
cost. If the party requesting the information files a motion to compel
or the party holding the information seeks a protective order, the
judge must consider the items in proposed paragraph (b)(4).
Under paragraph (b)(3), the Department states that by requesting
electronically stored information, a party consents to the application
of Federal Rule of Evidence 502 with regard to inadvertently disclosed
privileged or protected information. Because there is currently no
equivalent to Fed. R. Evid. 502 in OALJ's rules of evidence, 29 CFR
part 18, subpart B, the Department proposes this regulation to inform
parties that Fed. R. Evid. 502 is applicable to inadvertently disclosed
privileged or protected ESI.
The factors a judge must consider when determining whether to limit
the frequency or extent of discovery under proposed paragraph (b)(4)
involve balancing the need for the information and the costs and
burdens of producing the information. The limitations in paragraph
(b)(4) apply to all motions to limit the frequency and extent of
discovery under subdivision (b).
The Department proposes subdivisions (c) and (d) to elaborate the
limitations on discovery of hearing preparation materials and experts,
respectively. The proposed subdivision (c) contains the same
limitations as the current Sec. 18.14(c). A party may not discover
documents and tangible things prepared in anticipation of litigation or
the hearing unless the information is discoverable as relevant under
subdivision (a) and the party requesting the information can show that
there is a substantial need for the information and the party cannot
obtain substantially equivalent information without undue hardship.
Although enumerated differently in proposed subdivision (c), the
requirements remain the same. Like the current subdivision (c),
proposed paragraph (c)(2) instructs the judge to protect against
disclosure of an attorney's or other representative's mental
impressions, conclusion, opinions, or legal theories when ordering the
production of hearing preparation material.
Proposed paragraph (c)(3) permits a party or witness access to the
person's own previous statement by request. A party or witness may have
provided a statement prior to retaining legal counsel or understanding
the consequences of the statement regarding the subject matter of the
litigation. The party or witness may obtain a copy of the statement by
request without making an additional showing.
Proposed subdivision (d) is modeled after Fed. R. Civ. P. 26(b)(4)
and addresses requests for hearing preparation information prepared by
experts who may testify at the hearing. Effective cross-examination of
an expert requires advance preparation and effective rebuttal requires
knowledge of the line of testimony of the other side. This regulation
helps the parties narrow the issues and eliminates surprises through
prehearing disclosure of expert opinions.
As is the current practice before OALJ, proposed paragraph (d)(1)
provides that a party may depose an expert whose opinions may be
presented at the hearing. The proposed subpart is modeled after Fed. R.
Civ. P. 26(b)(4)(A), which requires the expert's report to be provided
prior to the deposition. However, the exchange of a physician's report
prior to the deposition has not been a common practice before OALJ,
mostly based on time constraints of the testifying experts. Paragraph
(d)(1), therefore, permits the parties to stipulate to taking a
deposition before reviewing the expert's report and then produce the
report when it is available.
Proposed paragraph (d)(2) applies if a judge orders the parties to
exchange required disclosures under proposed Sec. 18.50(c)(2)(B). If
the judge orders the disclosure of expert opinions under Sec.
18.50(c)(2)(B), then Sec. 18.51(d)(1) provides that the protections in
paragraphs (c)(1) and(c)(2) will apply.
Proposed subdivision (e) creates a procedure a party must follow to
claim a privilege or to protect hearing preparation materials.
Paragraph (e)(1) explains that a party must expressly claim a privilege
or state that the information is subject to hearing preparation
protection and describe the material well enough that the opponent can
adequately assess the protection claim.
Proposed paragraph (e)(2) provides the steps a party must take if
it wishes to claim a privilege or other protection for discovery
already produced. This regulation is modeled after Fed. R. Civ. P.
26(b)(5)(B). The proposed subpart provides for in camera review by the
judge so that such materials may be handled consistent with the
parties' expectations regarding privileged or other protected
documents, prior to creation of a final administrative record.
Sec. 18.52 Protective Orders.
The Department proposes to delete the current Sec. 18.15 and
replace it with proposed Sec. 18.52. The proposed Sec. 18.52 is
modeled after Fed. R. Civ. P. 26(c), Protective orders.
Similar to the current Sec. 18.15, the Department proposes Sec.
18.52(a) to provide that a party, or any person from whom discovery is
sought, may file a motion for a protective order to protect the party
from annoyance, embarrassment, oppression, or undue burden or expense.
The motion can only be brought by the individual whose interests are
affected. Normally, the motion must be filed before the discovery is to
occur, unless there is no opportunity to do so. The proposed regulation
requires that the motion include a certification that the movant
conferred or attempted to confer with the other affected parties to
resolve the dispute before filing the motion. This requirement
encourages the parties to work together to resolve discovery disputes,
without involving the judge.
The Department continues to require that the judge find good cause
for issuing a protective order regarding the discovery sought. The
judge has broad discretion in determining what constitutes good cause.
Proposed paragraphs (a)(1) through (8) provide examples of orders the
judge may enter. The proposed paragraphs (a)(1) through (5) provide the
same remedies as the current paragraphs (a)(1) through (5); however,
each paragraph is revised for
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clarity. Similarly, the current paragraph (a)(6) is relocated to
proposed paragraph (a)(7). The Department proposes to add paragraphs
(a)(6) and (8) to provide the same remedies a judge may impose under
Fed. R. Civ. P. 26(c)(1). Respectively, the judge may order that a
deposition be sealed and opened as the judge orders or the judge may
order the parties to simultaneously file documents or information in
sealed envelopes, to be opened as the judge orders.
The Department proposes to clarify under subdivision (b) that when
a judge denies a motion for a protective order in whole or in part, the
judge may order that the party or person provide or permit discovery.
This provision clarifies the control the judge exercises in resolving
discovery disputes, as there is currently no regulatory guidance on
this issue.
Sec. 18.53 Supplementing disclosures and responses.
The Department proposes to delete the current Sec. 18.16 and
replace it with proposed Sec. 18.53. The proposed Sec. 18.53 is
modeled after Fed. R. Civ. P. 26(e), Supplementing disclosures and
responses. This revision improves the clarity of the section while
retaining the same procedural requirements.
Sec. 18.54 Stipulations about discovery and procedure.
The Department proposes to delete the current Sec. 18.17 and
replace it with proposed Sec. 18.54. The proposed Sec. 18.54 is
modeled after Fed. R. Civ. P. 29, Stipulations about discovery and
procedure.
The revision improves the clarity of the section while retaining
the same procedural requirements. The Department proposes to clarify in
subdivision (b) that ``a stipulation extending the time for any form of
discovery must have the judge's approval if it would interfere with the
time set for completing discovery, for hearing a motion, or for a
hearing.''
Sec. 18.55 Using depositions at hearings.
The Department proposes to delete the current Sec. 18.23 and
replace it with the proposed Sec. 18.55. The proposed Sec. 18.55 is
modeled after Fed. R. Civ. P. 32.
The Department states a new procedure in proposed Sec. 18.55(a)
modeled after Fed. R. Civ. P. 32(a)(5), Limitations on use. The
Department proposes a specific provision, at proposed Sec.
18.55(a)(4), regarding depositions of experts, treating physicians, or
examining physicians. Deposition testimony from physicians is quite
commonly used in proceedings before the Department's administrative law
judges. The provision at current Sec. 18.23(a)(2) covers expert
witnesses, but does not address a treating physician (who is not
necessarily an expert retained to testify). The proposed rule codifies
current practice. Under proposed paragraph (a)(6)--the current Sec.
18.23(a)(6) is relocated to proposed Sec. 18.55(a)(8)--a deposition
may be used against any party who had reasonable notice of the
deposition. A deposition cannot be used against a party who received
less than 14 days' notice and who has filed a motion for a protective
order that was pending at the time of the deposition. Likewise, a
deposition cannot be used against a party who demonstrates an inability
to obtain counsel for representation at the deposition despite the
exercise of diligence. The provision in Fed. R. Civ. P. 32(a)(7), which
reflects the impact of FRCP on substitution of parties, has not been
included because the proposed rule does not address the issue of
substitution of a party. In general, except for situations where a
named party dies and a successor is substituted, there is no
substitution of parties in matters before OALJ. Successors to deceased
claimants in Black Lung and Longshore cases are not uncommon; these may
be covered under specific provisions. See, e.g., 20 CFR 725.360, 33
U.S.C. 919(f).
The Department proposes to add subdivision (c) to clarify that a
party must provide a transcript of any deposition testimony the party
offers. The judge may receive testimony in non-transcript form as well.
This addition codifies a current common procedure within OALJ.
The Department proposes to add subdivision (d), Waiver of
objections, with four new regulations. These regulations are modeled
after Fed. R. Civ. P. 32 and should be familiar federal practice to
attorneys. First, under paragraph (d)(1), To the notice, an objection
to an error or irregularity in a deposition notice is waived unless
promptly served in writing on the party giving notice. Second,
paragraph (d)(2), To the officer's qualification, provides that an
objection based on disqualification of the officer before whom a
deposition is to be taken is waived if not made before the deposition
begins or promptly after the basis for disqualification becomes known
or, with reasonable diligence, could have been known. The Department
proposes this regulation to be consistent with the federal rule;
however, officer disqualification rarely comes up in current practice.
Third, under subparagraph (d)(3)(C), Objection to a written
question, the Department proposes to clarify that an objection to the
form of a written question is waived if not served in writing on the
party which submitted the question within the time for serving a
responsive question or, if the question is a recross-question, within 7
days after being served with it. The current regulation, located in
current paragraph (b)(3), does not designate a set length of time a
party has to object to a written question.
Lastly, the Department proposes to add paragraph (d)(4), To
completing and returning the deposition, to clarify that an objection
to how the officer transcribed the testimony--or prepared, signed,
certified, sealed, endorsed, sent, or otherwise dealt with the
deposition--is waived unless a motion to suppress is made promptly
after the error or irregularity becomes known or, with reasonable
diligence, could have been known. This is not a procedural change from
the current Sec. 18.23(b)(2).
The Department proposes to delete the current subdivision (c)
because it does not align with the federal rule and is substantive
rather than procedural.
Sec. 18.56 Subpoena.
The Department proposes to delete the current Sec. 18.24 and
replace it with proposed Sec. 18.56. The proposed Sec. 18.56 is
modeled after Fed. R. Civ. P 45, Subpoena. Judges may issue subpoenas
only as authorized by a statute or law and the Department does not
propose any procedural changes to this rule. Instead, the Department
proposes this section to help litigants better understand the subpoena
process before OALJ.
The Department proposes to add form and content requirements for
subpoenas under paragraph (a)(2). Under this new provision, every
subpoena must state the title of the matter and, where applicable, show
the case number assigned by OALJ or the Office of Worker's Compensation
Programs (OWCP). In the event that the case number is an individual's
Social Security number only the last four numbers may be used. See
Sec. 18.31(a)(1). The subpoena must bear either the signature of the
issuing judge or the signature of an attorney authorized to issue the
subpoena under proposed paragraph (a)(3). The subpoena must command
each person to whom it is directed to do the following at a specified
time and place: attend and testify; produce designated documents,
electronically stored information, or tangible things in that person's
possession, custody, or control; or
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permit inspection of premises. The subpoena must set out the text of
proposed subdivisions (c) and (d) of this section.
The Department proposes to add the following provisions under
paragraph (a)(2). The proposed subparagraph (a)(2)(B) provides that a
subpoena commanding attendance at a deposition must state the method
for recording the testimony. The proposed subparagraph (a)(2)(C)
provides that a command to produce documents or to inspect premises may
be issued separately or joined with a command to appear to testify.
Under subparagraph (a)(2)(D), the Department proposes to clarify that a
subpoena can be used to obtain inspections, testing or samplings of the
property, documents, or electronic data of a non-party.
Under paragraph (a)(3), the Department proposes to permit subpoenas
to be issued by an attorney representative only when authorized by the
presiding judge. This provision applies only to representatives who are
attorneys. In the authorizing document, the presiding judge may limit
the parameters under which the authorized attorney may issue subpoenas.
Under subdivision (b), the Department proposes to clarify the
process of serving subpoenas. Under paragraph (b)(1), if the subpoena
commands the production of documents, electronically stored
information, or tangible things or the inspection of premises before
the formal hearing, then before it is served, a notice must be served
on each party. The purpose of such notice is to afford other parties an
opportunity to object to the production or inspection, or to serve a
demand for additional documents or things. In current practice, this
notice requirement from Fed. R. Civ. P. 45(b)(1) is stated on subpoenas
to produce documents, information or objects, or to permit inspection
of premises. Additionally, the proposed Sec. 18.56(b)(1) retains the
provision in the current Sec. 18.24(a) which allows parties to serve
subpoenas by certified mail.
Under paragraph (b)(1), if the subpoena requires a person's
attendance, the fees for 1 day's attendance and the mileage allowed by
law must be tendered with the subpoena. This is a procedural change as
the current Sec. 18.24(a) requires that fees to be paid ``in advance
of the date of the proceeding.''
Under paragraph (b)(2), the Department clarifies that subject to
proposed Sec. 18.56(c)(3)(A)(ii), a subpoena may be served at any
place within a State, Commonwealth, or Territory of the United States,
or the District of Columbia. Paragraph (b)(3) provides that 28 U.S.C.
1783 governs issuing and serving a subpoena directed to a United States
national or resident who is in a foreign country. Under paragraph
(b)(4), if necessary, service can be proved by the person making
service by filing with the judge a statement showing the date and
manner of service and the names of the persons served. This statement
must be certified by the server. This regulation does not establish any
cutoff or deadline for serving subpoenas. However, a subpoena for a
deposition or for the production of documents may be governed by the
discovery deadline.
The Department proposes to delete the current Sec. 18.24(b)
because under the proposed paragraph (c)(3) the presiding judge, rather
than the chief judge, has the power to quash or modify a subpoena if it
fails to allow a reasonable time to comply.
The Department proposes to expand the current subdivision (c) to
include other provisions that protect a person subject to a subpoena.
The core concept of the proposed subdivision is that an attorney or
representative responsible for requesting, issuing, or serving a
subpoena has a duty not to issue a subpoena for improper purposes or to
impose undue burden on the recipient of the subpoena. The proposed
subdivision (c) continues to provide the mechanisms for recipients of
subpoenas to challenge subpoenas. The cautionary language in Sec.
18.56(c) must be reprinted on every subpoena.
The Department proposes to clarify under paragraph (c)(1) that a
party or representative responsible for requesting, issuing, or serving
a subpoena must take reasonable steps to avoid imposing undue burden on
a person subject to the subpoena. The judge must enforce this duty and
may impose an appropriate sanction.
Under subparagraph (c)(2)(A), the Department proposes a new
regulation that a person subpoenaed to produce documents or things or
to permit an inspection need not actually appear at the designated
time, as long as the person complies with the subpoena, unless also
commanded to appear for the deposition or hearing. A person subpoenaed
to produce documents or things or to permit an inspection may serve an
objection to all or part of the subpoena within 14 days after service
of the subpoena (or before the time designated in the subpoena, if
sooner).
Once an objection has been served on the party issuing the
subpoena, the subpoena recipient is not obligated to comply with the
subpoena. Failure to serve timely objections may constitute a waiver of
objections to the subpoena other than objections relating to service.
Only non-parties may serve objections; parties must contest a subpoena
by a motion to quash or modify. If the subpoena recipient timely serves
an objection to the subpoena under Sec. 18.56(c)(2)(B), the serving
party may file a motion to compel production or inspection under Sec.
18.56(c)(2)(B)(i). This motion must be served on the subpoena recipient
as well. Under Sec. 18.56(c)(2)(B)(ii), the presiding judge may issue
an order compelling the subpoena recipient to comply with the subpoena
but the order must protect a person who is neither a party nor a
party's officer from significant expense resulting from compliance.
Under the proposed Sec. 18.56, a subpoena recipient may still move
to quash a subpoena under paragraph (c)(3). If the judge finds the
subpoena objectionable he or she may quash it altogether or modify it
to cure the objection. The Department proposes to delete the 10-day
time period for filing and answering a motion and instead use Fed. R.
Civ. P. 45(c)(3) as a model. Thus, under the proposed Sec. 18.56 a
motion to quash must be ``timely'' filed, and should certainly be filed
before the subpoena's return date. Failure to file a motion to quash
may constitute a waiver of objections to the subpoena. In subparagraph
(c)(3)(A) the Department proposes to list situations in which a
subpoena will be quashed or modified. These situations include: (i)
Failing to allow a reasonable time to reply; (ii) requiring a non-party
to travel too far; (iii) requiring disclosure of privileged or
protected information; and (iv) subjecting a person to undue burden.
Under subparagraph (c)(3)(B), the Department proposes to list
circumstances in which a subpoena will be quashed or modified unless
the serving party shows a ``substantial need'' for the testimony,
documents, or inspection. In such cases the judge will condition
compliance on the serving party compensating the recipient. This
subparagraph provides limited protection for trade secrets or other
confidential research, development, or commercial information. It
provides limited protection for unretained experts, so that parties
cannot obtain their testimony without paying their fees. It also
provides limited protection to nonparties who would incur substantial
expenses to travel more than 100 miles to attend a hearing.
The Department proposes to add a new regulation under subdivision
(d)--the current subdivision (d) is relocated to subdivision (e)--that
provides that documents may be produced as they are normally kept or
may be separated and
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organized. When privileges are asserted, the privilege must be
expressly described. The cautionary language of Sec. 18.56(d) must be
reprinted on every subpoena.
The Department proposes that the scope of production under a
subpoena be the same as the scope of discovery generally under proposed
Sec. 18.51, Discovery scope and limits. The requirements also track
closely those imposed in Fed. R. Civ. P. 45. Under proposed
subparagraph (d)(1)(A), the Department proposes that the responding
party has the option of allowing the serving party to inspect and copy
the documents where they are normally kept or the party may collect the
responsive documents and organize and label them to correspond to the
categories in the demand. See Fed. R. Civ. P. 45(d)(1). The responding
party may make copies for the requesting party, but is not obligated to
do so. See Fed. R. Civ. P. 45(a)(1)(D).
Under subparagraph (d)(1)(B), the Department proposes to allow, but
not require, the requesting party to specify the form in which it is
requesting electronic data (i.e., hard copy or electronic; if
electronic, the precise manner of production). If the requesting party
does not specify the form, then the responding person must produce it
in the form in which it is ordinarily maintained in or in a form that
is reasonably usable. In any event, under proposed subparagraph
(d)(1)(C) a party need not produce electronic data in more than one
form. See Fed. R. Civ. P. 45(d)(1)(B) & (C).
Under subparagraph (d)(1)(D), the Department proposes that if the
responding party believes that the production of electronic data from
certain sources will cause undue burden or cost, the person can, in
lieu of producing the documents, identify those sources. If a motion to
compel or quash is filed, the responding party will have the burden of
showing that production would cause undue burden or cost. The burden
then shifts to the requesting party to show good cause why the data
should be produced nonetheless. In such cases, the judge may specify
conditions for the production. See Fed. R. Civ. P. 45(d)(1)(D).
Under paragraph (d)(2), the Department proposes that when a
subpoena recipient seeks to withhold information that is privileged,
the recipient must expressly claim the privilege and describe the
nature of the documents, communications, or tangible things not
produced in sufficient detail that the court and parties can assess the
privilege. Under subparagraph (d)(2)(B), the Department proposes to
establish a procedure to recall privileged information that has already
been produced in response to a subpoena. See Fed. R. Civ. P.
45(d)(2)(A) & (B).
The Department proposes to relocate the content from the current
subdivision (d) to subdivision (e) with no procedural changes.
Sec. 18.57 Failure to make disclosures or to cooperate in discovery;
sanctions.
The Department proposes to delete the current Sec. 18.21 and
replace it with proposed Sec. 18.57. The proposed Sec. 18.57 is
modeled after Fed. R. Civ. P. 37 and incorporates the current Sec.
18.6(d) and the current Sec. 18.15(a).
The proposed Sec. 18.57 provides the mechanisms for enforcing the
provisions of the other discovery rules by imposing sanctions on
parties who violate the discovery regulations. In general, sanctions
are imposed in a two-step process in which a party must first obtain an
order compelling discovery under proposed Sec. 18.57(a), and then move
for sanctions under proposed Sec. 18.57(b). If, however, the
responding party totally fails to respond to an entire discovery
request, the sanctions may be available immediately. The Department
proposes to grant judges greater discretion when imposing sanctions.
Under subdivision (a), the Department proposes to combine and
expand the regulations under current Sec. Sec. 18.6(d) and 18.21(a),
and 18.15(a). This subdivision covers motions to compel discovery and
motions to compel disclosure. A party may file a motion to compel under
Sec. 18.57(a)(2) after the opponent fails to make the automatic
disclosures required by Sec. 18.50(c), fails to respond to discovery
served pursuant to the discovery rules, or makes an improper or
incomplete disclosure or discovery response. When taking a deposition,
the party asking a question may complete or adjourn the examination
before moving for an order. Under proposed subdivision (a)(1), the
motion to compel must be accompanied by a certification that the movant
has in good faith conferred or attempted to confer with the other party
or person in an effort to resolve the dispute without the action of the
judge. This is a procedural change proposed by the Department to
encourage litigants to resolve matters amongst themselves and to help
reduce litigation expenses. In current practice, many judges encourage
parties to confer before filing certain motions.
The Department proposes to expand current Sec. 18.21(c) to apply
to evasive or incomplete disclosures in proposed Sec. 18.57(a)(3). As
under the current Sec. 18.21(d), if the motion to compel is denied the
judge may issue any protective order authorized under proposed Sec.
18.52.
The Department proposes to add Sec. 18.57(b), which sets forth the
sanctions that become available if a party or deponent fails to obey a
judge's order regarding discovery. Under this provision, a judge has
the discretion to impose one or more of the listed sanctions or any
other procedural sanction deemed appropriate, including: deeming facts
established; prohibiting evidence; striking pleadings; and issuing a
stay, dispositive ruling, or default judgment. The judge is not limited
to the sanctions listed under Sec. 18.57(b)(1) and may make any order
that is ``just.''
Under proposed Sec. 18.57(b)(2), if a party fails to comply with
an order under Sec. 18.62 to produce another for a mental or physical
examination, the party is subject to the same sanctions under Sec.
18.57(b)(1) that would apply if the party failed to appear, unless the
party can show that the party was unable to produce the individual.
The Department proposes to add Sec. 18.57(c), Failure to disclose,
to supplement an earlier response, or to admit, which is a procedural
change modeled after Fed. R. Civ. P. 37. Under this section, if a
party: (1) Fails to make the automatic disclosures under Sec. 18.50(c)
in a timely manner; (2) makes false or misleading disclosures; (3)
fails to supplement a prior discovery response as required by Sec.
18.53; or (4) fails to supplement a prior discovery request, the party
will not be permitted to use at trial or in a motion the documents,
information, or witnesses not properly disclosed, unless the party had
``substantial justification'' or the failure was harmless. Under Sec.
18.57(c), in addition to or in lieu of precluding the evidence, upon
motion and after an opportunity to be heard, the judge may impose other
appropriate sanctions, including any of the orders listed in Sec.
18.57(b)(1).
The sanctions under this provision apply to an improper statement
of inability to admit or deny, as well as to improper denial. The
sanctions in this subdivision do not apply to failure to respond to a
request for admissions because such a failure is deemed an admission.
The Department proposes to add Sec. 18.57(d), Party's failure to
attend its own deposition, serve answers to interrogatories, or respond
to a request for inspection. This subdivision provides that upon motion
sanctions are immediately available against a party who completely
fails to participate in the discovery process. For example,
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sanctions are available when the party fails to appear for the party's
deposition after being served with proper notice, fails to answer or
object to properly served interrogatories, or fails to serve a written
response to a properly-served request to inspect documents or things.
Thus, a judge's order is not a prerequisite to sanctions under this
subdivision. While this subdivision does not specify when the motion
for sanctions must be filed, it should be filed without ``unreasonable
delay'' or before the entry of the decision and order.
The proposed subparagraph (d)(1)(B) states that a motion for
sanctions under Sec. 18.57(d), for failure to respond to
interrogatories or requests for inspection, must include a
certification that the movant has in good faith conferred or attempted
to confer with the other party or person in an effort to obtain a
response without court action. Note that this requirement does not
apply to the failure to appear for a deposition.
The proposed paragraph (d)(2) states that a failure described in
Sec. 18.57(d)(1)(A) is not excused on the ground that the discovery
sought was objectionable, unless the party failing to act has a pending
motion for a protective order under Sec. 18.52(a). Under proposed
paragraph (d)(3), sanctions may include any of the orders listed in
Sec. 18.57(b)(1).
The Department proposes to add subdivision (e) to prohibit the
imposition of sanctions for failure to produce certain types of
electronically stored information, in the absence of exceptional
circumstances. The Department recognizes that certain types of
electronically stored information are lost during the regular operation
of a computer system and therefore parties should not be sanctioned for
failing to produce such data. An example of the type of data that is
contemplated by this provision is the metadata (or data about data)
that computers automatically store, such as the last time a document
was opened. Each time the document is opened the information that was
stored in that field is deleted and replaced by new data. A party would
not likely be sanctioned for the loss of the data when a document was
last opened.
The protections in proposed Sec. 18.57(e) are expressly limited to
the good-faith operation of the computer system. Thus, a party cannot
exploit the protections of this subdivision to deliberately delete
relevant information. Under certain circumstances, a party wishing to
require another party to preserve electronic data can write a letter to
the party placing it on notice that the electronic data may be relevant
and should be preserved, or can seek a preservation order from the
judge. If either action is taken, a party must suspend those features
of its computer system that result in the routine loss of information.
The Department proposes subdivision (f) to provide the procedure a
judge must follow in impose sanctions under this section. A judge may
impose sanctions under this section upon (1) a separately filed motion;
or (2) notice from the judge followed by a reasonable opportunity to be
heard.
The Department proposes to include the content from the current
Sec. 18.21(d) in the proposed Sec. 18.33(a).
Types of Discovery
Sec. 18.60 Interrogatories to parties.
The Department proposes to revise the current Sec. 18.18 and
renumber it as proposed Sec. 18.60. The proposed Sec. 18.60 is
modeled after Fed. R. Civ. P. 33 and should be read in conjunction with
proposed Sec. 18.51, which establishes the scope of all discovery
rules.
The Department proposes to change the current subdivision (a) to
state that unless otherwise stipulated or ordered by the judge, a party
may serve on any other party no more than 25 written interrogatories,
including all discrete subparts. Leave to serve additional
interrogatories may be granted to the extent consistent with proposed
Sec. 18.51. The Department proposes this change to model Fed. R. Civ.
P. 33 as the current Sec. 18.18 does not set a limit on the number of
written interrogatories a party may serve on another party.
The procedure for answering interrogatories is relocated from the
current subdivision (a) to proposed subdivision (b). The Department
proposes to delete the service and filing language from this section
because the Department is proposing Sec. 18.30, Service and Filing, to
cover the service and filing regulations before OALJ.
The Department proposes to relocate the current subdivision (c) to
proposed Sec. 18.60(a)(2), Scope. Under this proposed subpart, the
scope of interrogatories is the broad discovery available under Sec.
18.51; thus, an interrogatory may relate to any matter that may be
inquired into under proposed Sec. 18.51. Interrogatories may be served
after the parties have conducted the discovery conference under Sec.
18.51, or earlier if the judge so orders. In the proceedings listed in
Sec. 18.50(c)(1)(B) as exempted from initial disclosures, there is no
preliminary waiting period to serve interrogatories. The Part 18,
Subpart A rules do not set an outer limit on how late in the case
interrogatories may be served, but the judge may set such a limit.
The Department proposes subdivision (b), Answers and objections, to
provide the procedural requirements parties must adhere to in answering
and objecting to interrogatories. As under the current regulation, the
responding party must answer interrogatories separately and in writing
within 30 days after service.
Failure to serve a response in a timely manner may constitute a
waiver of all objections. Under subdivision (b) the Department
clarifies that the time period to answer may be shortened or extended
by written agreement under proposed Sec. 18.54, Stipulations about
discovery procedure. This subpart also clarifies that the grounds for
objecting to an interrogatory must be stated with specificity. Any
ground not stated in a timely objection is waived unless the judge, for
good cause, excuses the failure. This is a procedural change modeled
after Fed. R. Civ. P. 33.
The Department proposes to add a new subdivision (c) which provides
that an answer to an interrogatory may be used to the extent allowed by
the applicable rules of evidence. This reflects the varying evidentiary
requirements applicable to claims brought before OALJ. Interrogatory
answers are not admissions, but generally may be used as though made in
court by the party. Interrogatories may not be used to obtain
documents. Rather, a document request must be made under proposed Sec.
18.61, Producing documents, electronically stored information, and
tangible things, or entering onto land, for inspection and other
purposes. However, interrogatories may inquire about the existence of
documents and the facts contained therein. Documents may, under certain
circumstances, be produced in lieu of answering an interrogatory, as
discussed in proposed subdivision (d).
The Department proposes to add a new subdivision (d), Option to
produce business records. A party may produce business records in lieu
of answering an interrogatory when the burden of extracting the
requested information would be substantially equal for either party.
Only business records may be used in lieu of interrogatory answers;
thus, a party cannot produce pleadings or deposition transcripts
instead of answering an interrogatory. The responding party must
specify the records that must be reviewed in sufficient detail to
enable the interrogating party to locate and identify
[[Page 72166]]
them as readily as the responding party could. It is not sufficient to
state that the business records may contain the information. The
responding party must also give the interrogating party a reasonable
opportunity to examine and audit the records and to make copies,
compilations, abstracts, or summaries.
Sec. 18.61 Producing documents, electronically stored information, and
tangible things, or entering onto land, for inspection and other
purposes.
The Department proposes to revise the current Sec. 18.19 and
renumber it as proposed Sec. 18.61. The proposed Sec. 18.61 is
modeled after Fed. R. Civ. P. 34, Producing documents, electronically
stored information, and tangible things, or entering onto land, for
inspection and other purposes.
The Department is proposing a separate section, Sec. 18.62, for
physical and mental examinations; therefore, the language regarding
physical and mental examinations is not included in this proposed
section. The purpose of proposed Sec. 18.61 is to set forth the
procedures for obtaining access to documents and things within the
control of other parties, and for gaining entry upon other parties'
land for inspection. This proposed section should be read in
conjunction with proposed Sec. 18.51, which establishes the scope of
all discovery rules.
The proposed subdivision (a), like the current subdivision (a),
generally addresses the scope of document requests. This subpart states
that a party may serve on any party a request within the scope of Sec.
18.51. Generally, any relevant, non-privileged document is discoverable
unless it was prepared in anticipation of litigation, pertains to
expert witnesses, or would be unreasonably burdensome to produce.
``Documents'' is broadly defined to include all forms of recorded
information. For clarity, the proposed subdivision (a) lists writings,
drawings, graphs, charts, photographs, sound recordings, images, and
other data or data compilations as discoverable documents. Under the
proposed regulation, a party is generally not required to create
documents to meet a document request, but only to produce documents
already in existence.
The Department proposes to incorporate current subdivisions (c) and
(d) into proposed Sec. 18.61(b). These subparts are revised to improve
clarity but retain the same procedural requirements.
Under subdivision (b), the Department proposes to regulate the form
in which electronic data must be produced (i.e. hard copy or
electronic, and if electronic, the precise manner of production). This
regulation is not included in the current rule. It allows, but does not
require, the requesting party to specify the form in which it is
requesting electronic data. The responding party can then produce it in
that form or object and specify the form in which it will produce the
electronic data. If the requesting party does not specify the form,
then the responding party must produce it in the form in which it is
ordinarily maintained or in a form that is reasonably usable. Unless
the responding party is producing the data in the form specified by the
requesting party, the responding party must specify the form it intends
to use for production in its written response to the document request.
If the responding party objects to the form stated by the requesting
party, or if the requesting party is not satisfied with the form
specified by the responding party, then the parties must meet and
confer under Sec. 18.57(a)(1). Under any of these scenarios, a party
need not produce electronic data in more than one form.
The Department proposes to add a new regulation under subdivision
(c), Nonparties, as the current Part18A is silent on this issue.
Although document requests or requests for inspection cannot be served
on a non-party, documents or inspections can be obtained from a non-
party by a subpoena under proposed Sec. 18.56, Subpoenas.
The Department proposes to delete the service and filing language
in the current subdivision (f) because the Department is proposing
Sec. 18.30, Service and filing, to cover the service and filing
regulations before OALJ.
Sec. 18.62 Physical and mental examinations.
The Department proposes a new Sec. 18.62 modeled after Fed. R.
Civ. P. 35 to regulate physical and mental examinations. Physical and
mental examinations are currently covered by Sec. 18.19; however, due
to the high frequency of requests for physical and mental examinations
the Department determined that there is a need for a separate section
that sets forth the procedure for such requests.
The Department proposes to divide Sec. 18.62 into three subparts:
Examinations by motion, examinations by notice, and examiner's reports.
This proposal reflects the distinction between examination by notice
and examination by motion found in the federal rule.
The proposed subdivision (a) clarifies that a party may serve upon
another party whose mental or physical condition is in controversy a
notice to attend and submit to an examination by a suitable licensed or
certified examiner. This provision notifies parties they may serve a
request to attend and submit to an examination on another party only if
their mental or physical condition is in controversy. The examiner must
be licensed or certified to perform the examination.
The Department proposes to amend the content requirements of a
notice to attend a physical or mental examination, currently located
under Sec. 18.19(c)(4). The proposed paragraph (a)(2) provides that a
notice must specify: (A) The legal basis for the examination; (B) the
time, place, manner, conditions, and scope of the examination, as well
as the person or persons who will perform it; and (C) how the
reasonable transportation expenses were calculated.
The Department proposes to add the requirement that ``unless
otherwise agreed by the parties, the notice must be served no fewer
than 14 days before the examination date.'' The Department determined
that a 14-day notice period provides the person to be examined enough
time to make arrangements to attend the physical or mental examination
or file an objection. Under paragraph (a)(4), the person to be examined
must serve any objection to the notice no later than 7 days after the
notice is served. The objection must be stated with particularity.
Under the current Sec. 18.19, the party to be examined has 30 days to
object after service of the request. The Department proposes to shorten
the timeframe a party has to object in order to quickly resolve the
objection and expedite the proceedings.
Under subdivision (b), the Department proposes to provide the
procedure for objecting to an examination. Upon objection, the
requesting party may file a motion to compel a physical or mental
examination. The motion must include the elements required by Sec.
18.62(a)(2).
The Department proposes to provide the procedure for examiner's
reports under subdivision (c) in order to delete the reference to Fed.
R. Civ. P. 35(b) in the current Sec. 18.19(c)(4). The party who
initiated the examination must deliver a complete copy of the
examination report to the party examined, together with like reports of
all earlier examinations of the same condition. The examiner's report
must be in writing and must set out in detail the examiner's findings,
including diagnoses, conclusions, and the results of any tests.
[[Page 72167]]
Sec. 18.63 Requests for admission.
The Department proposes to revise the current Sec. 18.20 and
renumber it as proposed Sec. 18.63. The proposed Sec. 18.63 is
modeled after Fed. R. Civ. P. 36.
The Department proposes to combine the current subdivisions (b),
(c), and (d) into proposed subdivision (a). Under subdivision (a), the
Department proposes to establish the procedure whereby one party serves
requests for admission on another party, who must investigate and
either admit, deny with specificity, or object to each requested
admission.
The scope of requests for admission is the broad discovery
available under proposed Sec. 18.51. The proposed subdivision (a)
clarifies that a party may serve on any party a written request to
admit facts relating to facts, the application of law to facts, or
opinions about either.
Under paragraph (a)(2), Form; copy of a document, the Department
clarifies that each fact or matter for which admission is requested
should be set forth in a separate paragraph. All facts that are part of
the request should be set forth in the request--it is improper to
incorporate facts by reference to other text.
Proposed paragraph (a)(3), Time to respond; effect of not
responding, retains the same procedural requirements of current
subdivision (b) and clarifies that a shorter or longer time for
responding may be stipulated to under proposed Sec. 18.54 or be
ordered by the judge.
Proposed paragraph (a)(4), Answer, retains the same procedural
requirements of current subdivision (c) and clarifies that if a matter
is not admitted the answer must specifically deny it or state in detail
why the answering party cannot truthfully admit or deny it. A denial
must fairly respond to the substance of the matter; and when good faith
requires that a party qualify an answer or deny only a part of a
matter, the answer must specify the part admitted and qualify or deny
the rest.
Under proposed paragraph (a)(5), Objections, the grounds for
objecting to a request must be stated. A party must not object solely
on the ground that the request presents a genuine issue for hearing.
The proposed paragraph (a)(6) retains the same procedural requirements
of current subdivision (d).
The Department proposes to combine and relocate the current
subdivisions (e) and (f) to proposed subdivision (b), Effect of an
admission; withdrawing or amending it. There are no procedural changes
to these subparts; however, the proposed subdivision (b) clarifies that
a judge may permit withdrawal or amendment if it would promote the
presentation of the merits of the action and if the judge is not
persuaded that it would prejudice the requesting party in maintaining
or defending the action on the merits.
Sec. 18.64 Depositions by oral examination.
The Department proposes to revise the current Sec. 18.22 and
renumber it as proposed Sec. 18.64. The proposed Sec. 18.64 is
modeled after Fed. R. Civ. P. 30, Depositions by oral examination.
Under Sec. 18.64 the Department expands the procedures for taking
depositions by oral examination and this section must be considered in
conjunction with the other discovery rules, in particular proposed
Sec. 18.51 governing the scope of discovery. The Department's
regulations for depositions by written questions are located under
proposed Sec. 18.65.
The Department proposes to revise subdivision (a) to address when a
deposition may be taken. The language regarding how and by whom a
deposition may be taken in current subdivision (a) is relocated to
proposed subdivision (b). The Department proposes to limit the number
of depositions that parties may take to 10 depositions per side, absent
leave of the judge or stipulation with the other parties. Depositions
may be taken at any time after an initial notice or order is entered
acknowledging that the proceeding has been docketed at OALJ. If the
judge orders the parties to confer under proposed Sec. 18.50(b),
depositions must be taken within the time and sequence agreed upon by
the parties. The Department proposes to limit the number of depositions
to 10 to emphasize that representatives have an obligation to develop a
mutually cost-effective plan for discovery in the case. Leave to take
additional depositions should be granted when consistent with the
principles of proposed Sec. 18.51(b)(2), and in some cases the ten-
per-side limit should be reduced in accordance with those same
principles.
Under paragraph (a)(1), the Department clarifies that a deponent's
attendance may be compelled by subpoena under Sec. 18.56, Subpoena.
Leave of the judge is required to depose someone if the parties
have not stipulated to the deposition and (i) The deposition would
result in more than 10 depositions being taken under this section or
Sec. 18.65 by one of the parties; (ii) the deponent has already been
deposed in the case; or (iii) the party seeks to take the deposition
before the time specified in Sec. 18.50(a), unless the party certifies
in the notice, with supporting facts, that the deponent is expected to
leave the United States and be unavailable for examination in this
country after that time. Leave of the judge must be obtained in order
to take the deposition of a person confined to prison.
The Department proposes to combine current subdivisions (b) and (c)
into proposed subdivision (b), Notice of the deposition; other formal
requirements. The Department proposes to change the timeframes under
Sec. 18.64 to be consistent throughout Part18A. Under proposed
paragraph (b)(1), except as stipulated or otherwise ordered by the
judge, a party who wants to depose a person by oral questions must give
reasonable written notice to every other party of no fewer than 14
days. The current Sec. 18.22(c) provides that written notice must not
be less than 5 days when the deposition is to be taken in the
continental United States and not less than 20 days when the deposition
is to be taken elsewhere. Under paragraph (b)(1), the Department
proposes to clarify that if the name of the deponent is unknown, the
notice must provide a general description sufficient to identify the
person or the particular class or group to which the person belongs.
The Department proposes to delete the language in current
subdivision (b) requiring that the party giving notice state the name
of the person before whom the deposition is to be taken. The name of
the person before whom the deposition is to be taken is not relevant as
long as the person meets the requirements stated in the regulation.
The Department proposes to delete the filing language in the
current subdivision (c) because the Department is proposing Sec.
18.30, Service and filing, to cover the service and filing regulations
before OALJ.
The Department proposes to add several regulations to proposed
subdivision (b) that are not found in the current Sec. 18.22. These
provisions are modeled after Fed. R. Civ. P. 30(b)(2)-(b)(5) and come
into current practice through the federal rule. Under proposed
paragraph (b)(2), if a subpoena duces tecum is to be served on the
deponent, the materials designated for production, as set out in the
subpoena, must be listed in the notice or in an attachment. If the
notice to a party-deponent is accompanied by a request for production
under Sec. 18.61, the notice must comply with the requirements of
Sec. 18.61(b).
The Department proposes to regulate the method of recording
depositions under paragraph (b)(3). The notice of
[[Page 72168]]
deposition must specify the method of recording the deposition
testimony. Unless the judge orders otherwise, testimony may be recorded
by audio, audiovisual, or stenographic means. The noticing party bears
the recording costs. Any party may arrange to transcribe a deposition.
Under proposed subparagraph (b)(3)(B) with prior notice to the deponent
and other parties, any party may designate another method for recording
the testimony in addition to that specified in the original notice. The
party bears the expense of the additional recording or transcript
unless the judge orders otherwise.
Under proposed paragraph (b)(4), the Department clarifies that
parties may stipulate--or the judge may on motion order--that a
deposition be taken by telephone or other remote means. For the purpose
of this section, the deposition takes place where the deponent answers
the questions.
The Department proposes to regulate the officer's duties when
taking a deposition. Under proposed subparagraph (b)(5)(A), unless the
parties stipulate otherwise, a deposition must be conducted before a
person having power to administer oaths. The officer must begin the
deposition with an on-the-record statement that includes: (i) The
officer's name and business address: (ii) the date, time, and place of
the deposition; (iii) the deponent's name; (iv) the officer's
administration of the oath or affirmation to the deponent; (v) the
identity of all persons present; and (vi) the date and method of
service of the notice of deposition. Specifically, (b)(5)(A)(vi) is in
response to OALJ noticing that statements regarding notice are lacking
in depositions.
The proposed subparagraph (b)(5)(B), provides that if the
deposition is not recorded stenographically, the officer must repeat
the items in proposed Sec. 18.64(b)(5)(A)(i)-(iii) at the beginning of
each unit of the recording medium. The deponent's and attorneys'
appearance or demeanor must not be distorted through recording
techniques.
The proposed subparagraph (b)(5)(C), provides that at the end of a
deposition, the officer must state on the record that the deposition is
complete and must set out any stipulations made by the attorneys about
custody of the transcript or recording and of the exhibits, or about
any other pertinent matters.
The proposed paragraph (b)(6) provides that in its notice or
subpoena, a party may name as the deponent a public or private
corporation, a partnership, an association, a governmental agency, or
other entity and must describe with reasonable particularity the
matters for examination. The named organization must then designate one
or more officers, directors, or managing agents, or designate other
persons who consent to testify on its behalf; and it may set out the
matters on which each person designated will testify. A subpoena must
advise a nonparty organization of its duty to make this designation.
The persons designated must testify about information known or
reasonably available to the organization. This paragraph (6) does not
preclude a deposition by any other procedure allowed by these rules.
The Department proposes to incorporate a revised version of current
subdivision (d) into proposed subdivision (c), Examination and cross-
examination; record of the examination; objections; written questions.
Proposed subdivision (c) clarifies that after putting the deponent
under oath or affirmation, the officer must record the testimony by the
method designated under Sec. 18.64(b)(3)(A). The testimony must be
recorded by the officer personally or by a person acting in the
presence and under the direction of the officer.
Under paragraph (c)(2), Objections, the Department proposes to add
that an objection at the time of the examination-- whether to evidence,
to a party's conduct, to the officer's qualifications, to the manner of
taking the deposition, or to any other aspect of the deposition--must
be noted on the record, but the examination still proceeds; the
testimony is taken subject to any objection. An objection must be
stated concisely in a nonargumentative and nonsuggestive manner. A
person may instruct a deponent not to answer only when necessary to
preserve a privilege, to enforce a limitation ordered by the judge, or
to present a motion under Sec. 18.64(d)(3).
Under paragraph (c)(3), Participating through written questions,
the Department clarifies that instead of participating in the oral
examination, a party may serve written questions in a sealed envelope
on the party noticing the deposition, who must deliver them to the
officer. The officer must ask the deponent those questions and record
the answers verbatim.
The Department proposes to delete the language in current Sec.
18.22(d) regarding use of depositions at hearing because the Department
is proposing section Sec. 18.55, Using depositions at hearing.
The Department proposes to add subdivision (d), Duration; sanction;
motion to terminate or limit, which incorporates current subdivision
(e). The duration of depositions is not currently addressed by Part 18,
Subpart A. Proposed subdivision (d), modeled after Fed. R. Civ. P.
30(d), provides for a 7-hour time limit on depositions, which may be
extended by the judge's order. This subdivision also provides
protections from unreasonable or vexatious examination during a
deposition.
Under paragraph (d)(2) the judge may impose an appropriate
sanction, in accordance with proposed Sec. 18.57, on a person who
impedes, delays, or frustrates the fair examination of the deponent.
Under proposed subparagraph (d)(3)(A), the Department clarifies that at
any time during a deposition, the deponent or a party may move to
terminate or limit it on the ground that it is being conducted in bad
faith or in a manner that unreasonably annoys, embarrasses, or
oppresses the deponent or party. If the objecting deponent or party so
demands, the deposition must be suspended for the time necessary to
obtain an order.
The Department proposes to relocate the language in the current
Sec. 18.22(e) regarding objections to the deposition conduct or
proceeding to proposed Sec. 18.55(b) and (d).
The Department proposes to add a new regulation under subdivision
(e), Review by the witness; changes, modeled after Fed. R. Civ. P.
30(e). Under paragraph (e)(1), on request by the deponent or a party
before the deposition is completed, the deponent must be allowed 30
days after being notified by the officer that the transcript or
recording is available in which: (A) To review the transcript or
recording; and (B) if there are changes in form or substance, to sign a
statement listing the changes and the reasons for making them. Under
paragraph (e)(2) the officer must note in the certificate prescribed by
proposed Sec. 18.64(f)(1) whether a review was requested and, if so,
must attach any changes the deponent makes during the 30-day period.
The Department proposes to add a new regulation under subdivision
(f), Certification and delivery; exhibits; copies of the transcript or
recording; filing. This subdivision provides that the officer must
certify in writing that the witness was duly sworn and that the
deposition transcript was a true record of the testimony given by the
deponent. The certificate must accompany the record of the deposition.
Unless the judge orders otherwise, the officer must seal the deposition
in an envelope or package bearing the title of the action and marked
``Deposition of [witness's name{time} '' and must promptly send it to
the party or the party's representative
[[Page 72169]]
who arranged for the transcript or recording. The party or the party's
representative must store it under conditions that will protect it
against loss, destruction, tampering, or deterioration.
Proposed subparagraph (f)(2)(A) provides that documents and
tangible things produced for inspection during a deposition must, on a
party's request, be marked for identification and attached to the
deposition. Any party may inspect and copy them. However, if the person
who produced them wants to keep the originals, the person may: (i)
Offer copies to be marked, attached to the deposition, and then used as
originals--after giving all parties a fair opportunity to verify the
copies by comparing them with the originals; or (ii) give all parties a
fair opportunity to inspect and copy the originals after they are
marked--in which event the originals may be used as if attached to the
deposition. Any party may move for an order that the originals be
attached to the deposition pending final deposition or the proceeding
under proposed subparagraph (f)(2)(B).
Proposed paragraph (f)(3) provides that unless otherwise stipulated
or ordered by the judge, the officer must retain the stenographic notes
of a deposition taken stenographically or a copy of the recording of a
deposition taken by another method. When paid reasonable charges, the
officer must furnish a copy of the transcript or recording to any party
or the deponent. Proposed paragraph (f)(4) provides that a party who
files the deposition must promptly notify all other parties of the
filing. But depositions are not ordinarily filed. See proposed Sec.
18.30(b)(1)(B).
The Department proposes to add a new regulation under subdivision
(g), Failure to attend a deposition or serve a subpoena. This provision
provides for a judge to order sanctions, in accordance with Sec.
18.57, if a party who, expecting a deposition to be taken, attends in
person or by an attorney, and the noticing party failed to: (1) Attend
and proceed with the deposition; or (2) serve a subpoena on a nonparty
deponent, who consequently did not attend. This sanction is permissive.
Sec. 18.65 Depositions by Written Questions.
The Department proposes to add a new Sec. 18.65 modeled after Fed.
R. Civ. P. 31. The Department proposes a new section to provide the
procedure for taking depositions by written questions because the
current Part 18, Subpart A rules do not specifically mention
depositions by written questions. The current Sec. 18.19 addresses
written interrogatories to a party and the current Sec. 18.22(a)
states that ``[d]epositions may be taken by oral examination or upon
written interrogatories before any person having power to administer
oaths.'' The current Sec. 18.22(a) also provides that ``[d]epositions
may be taken of any witness * * * .'' Since there is a specific rule
addressing written interrogatories to a party, the Department
determined that the current Sec. 18.22 contemplates taking written
depositions of any witness.
The proposed subdivision (a) addresses when a deposition may be
taken. Any party may take depositions by serving written questions,
which are asked by the deposition officer (stenographer) and answered
orally by the witness. A party seeking to take a deposition by written
questions must serve a notice on all other parties stating the name and
address of the deponent, if known, or other general description
sufficient to identify the deponent and providing the name or title and
address of the stenographer or officer before whom the deposition will
be taken.
The notice of written deposition may be served at any time after
the parties have conducted the discovery conference under Sec.
18.50(b), or earlier with leave of the judge. In proceedings listed in
proposed Sec. 18.51(c)(1)(B) as exempted from initial disclosures,
there is no preliminary waiting period for written depositions. The
latest time to conduct a deposition upon written questions will be
governed by the judge's scheduling order. Subpoenas must be used to
compel non-party witnesses.
The written deposition questions for direct examination are served
upon all parties with the notice. Within 14 days of service of the
notice and direct examination questions, any other party may serve
cross-examination questions. The noticing party may then serve redirect
examination questions within 7 days, and the other party may serve re-
cross examination questions within 7 more days. The judge may shorten
or lengthen these time periods upon motion and for cause shown. All
questions must be served on all parties.
All parties, including third-party respondents, are limited to 10
depositions total, by written and/or oral examination. This number may
be increased by stipulations or leave of the judge. Leave of the judge
is required to depose someone a second time. If a deponent is in
prison, leave of the judge is required to take a written deposition.
The scope of the written questions is the same as oral questions, and
is controlled by proposed Sec. 18.50. Objections to the form of a
written question must be served in writing upon the party propounding
the question within the time for serving succeeding questions and
within 5 days of the last questions authorized.
Under proposed subdivision (b), unless a different procedure is
ordered by the judge, the party who noticed the deposition must deliver
to the officer a copy of all the questions served and a copy of the
notice. The officer then promptly proceeds in the manner provided in
proposed Sec. 18.64 (c), (e), and (f) to take the deponent's testimony
in response to the questions; prepare and certify the deposition; and
send it to the party, attaching a copy of the questions and of the
notice. A transcript is then prepared and submitted to the witness as
provided in Sec. 18.64 governing oral depositions.
Under proposed subdivision (c), the party who noticed the
deposition must notify all other parties when it is completed. A party
who files the depositions must promptly notify all other parties of the
filing. But depositions are not ordinarily filed. See proposed Sec.
18.30(b)(1)(B).
Disposition Without Hearing
Sec. 18.70 Motions for dispositive action.
The Department determined that Part 18, Subpart A does not
currently address all of the potential dispositive motions available to
the parties. The Department proposes to add Sec. 18.70, Motions for
dispositive action, to provide the regulations for filing dispositive
motions in a single section. This proposed section codifies current
practice and does not model a particular federal rule. The Department
determined that motions for summary decision should remain a separate
section because of the multiple requirements for filing and deciding a
motion for summary decision and the need for that section to stand out
among the rest.
Under proposed subdivision (a), when consistent with statute,
regulation or executive order, any party may move under proposed Sec.
18.33 for disposition of the pending proceeding. If the judge
determines at any time that subject-matter jurisdiction is lacking, the
judge must dismiss the matter.
Under proposed subdivision (b), a party may move to remand the
matter to the referring agency when not precluded by statute or
regulation. A remand order must include any terms or conditions and
should state the reason for the remand.
Under proposed subdivision (c), a party may move to dismiss part or
all of the matter for reasons recognized under
[[Page 72170]]
controlling law, such as lack of subject-matter jurisdiction, failure
to state a claim upon which relief can be granted, or untimeliness. If
the opposing party fails to respond, the judge may consider the motion
unopposed.
Under the proposed subdivision (d), when the parties agree that an
evidentiary hearing is not needed, they may move for a decision based
on stipulations of fact or a stipulated record.
Sec. 18.71 Approval of settlement and consent findings.
The Department proposes to revise the current Sec. 18.9 and
renumber it as proposed Sec. 18.71.
The current Sec. 18.9, Settlement judge procedure, addresses three
topics: (1) Motions for consent findings and order; (2) approval of
settlement agreements; (3) and the settlement judge procedure. The
Department proposes that new Sec. 18.71 provide the regulations for
approval of settlement agreements and motions for consent findings and
order. The Department proposes to address the settlement judge
procedure in proposed Sec. 18.13, Settlement judge procedure.
In subdivision (a) the Department proposes to clarify when a party
must submit a settlement agreement for the judge's review and approval.
The Department does not propose any procedural changes from the current
Sec. 18.9.
In subdivision (b) the Department proposes to clarify when a party
may file a motion for consent findings and what the order must contain.
The Department does not propose any procedural changes from the current
Sec. 18.9.
Sec. 18.72 Summary decision.
The current Part 18, Subpart A contains two sections, Sec. Sec.
18.40 and 18.41, that address summary decision. The Department
determined these sections are repetitive and inadequately organized
and, therefore, proposes Sec. 18.72, Summary decision, to address
summary decision in a single section. The proposed Sec. 18.72 is
modeled after Fed. R. Civ. P. 56 (December 2010 amendment).
In addition to the significant stylistic changes, the Department
proposes several procedural changes in Sec. 18.72. Under subdivision
(b), the Department proposes to change the time requirements for filing
and responding to motions for summary judgment. The current Sec.
18.40(a) provides that a party may, at least 20 days before the date
fixed for any hearing, file a motion for summary judgment. It states
that any other party may within 10 days after service of the motion,
serve opposing affidavits or countermove for summary judgment. The
Department proposes to increase the timeframe for filing motions for
summary decision to 30 days before the date fixed for the formal
hearing.
Parties should refer to proposed Sec. 18.33 for the procedure on
responding to motions. Under proposed Sec. 18.33(d), the Department
proposes to increase the number of days a party has to respond to a
motion from 10 days to within 14 days from the date of service. Given
the increased timeframe a party has to file an opposition or other
response to a motion, the time for filing a summary decision motion
must be extended to allow the judge an acceptable period of time to
rule on the motion. If a motion is filed 30 days prior to the hearing
date and the opposing party files an opposition or other response 14
days after receiving the motion, the judge will generally have adequate
time to rule on the motion before the hearing date.
The current Sec. 18.40(a) permits a party to ``move with or
without supporting affidavits for a summary decision * * *.'' Under
paragraph (c)(1), the Department proposes to require a party to cite
specific parts of the record to support or oppose the motion. This
proposed change comports with the standard the judge uses to review the
motion, ``that there is no genuine dispute as to any material fact and
the movant is entitled to decision as a matter of law.''
The last sentence of the current Sec. 18.40(a) states that the
administrative law judge may set the matter for argument and/or call
for submission of briefs. The Department proposes to relocate this
language to proposed Sec. 18.33(d).
The current Sec. 18.40(b) states the procedure for filing and
serving a motion for summary judgment. This provision is not included
in the proposed Sec. 18.72 because the service and filing of papers is
covered by proposed Sec. 18.30, Service and filing.
Under subdivision (c), the Department proposes a revised version of
the current Sec. 18.40(c). This subdivision applies to both the moving
and nonmoving party. Under paragraph (c)(4) the Department proposes to
clarify that ``an affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.''
Under subdivision (d), the Department proposes a revised version of
current Sec. 18.40(d). The Department proposes to provide the judge
with more options when a moving party denies access to information
during discovery. In addition to denying the motion for summary
decision, the judge may permit more time for discovery, or issue any
other appropriate order.
The Department proposes to address three new topics under
subdivisions (f), (g), and (h). Under subdivision (f), the Department
proposes to clarify that after giving notice and a reasonable time to
respond, the judge may: (1) Grant summary decision for a nonmovant; (2)
grant the motion on grounds not raised by a party; or (3) consider
summary decision on the judge's own after identifying for the parties
material facts that may not be genuinely disputed. Under the current
regulations, a judge who considers summary decision on his or her own
must reference Fed. R. Civ. P. 56 in order to order summary judgment
without a motion from the parties. The addition of this power within
this proposed section allows the judge to rely on the Department's
regulations.
The Department does not propose to change the power a judge has to
issue an order granting partial summary judgment. Under this proposed
subdivision, the Department proposes a procedure that the judge and
parties must follow in the hearing after the judge grants partial
summary judgment. The judge may enter an order stating any material
fact--including an item of damages or other relief--that is not
genuinely in dispute and treat the fact as established in the case.
Under proposed subdivision (h), the Department proposes to address
the actions a judge may take if an affidavit or declaration is
submitted in bad faith. These remedies are part of the judge's power to
regulate the hearing under the Administrative Procedure Act.
The Department proposes to delete the language in the current Sec.
18.41(a)(2) stating what a summary judgment decision must contain. The
Department proposes Sec. 18.92, Decision and order, to regulate the
contents of summary judgment decisions.
The Department proposes to relocate the language from the current
Sec. 18.41(b) to the proposed 18.33(g) Motion hearing.
Hearing
Sec. 18.80 Prehearing statement.
The Department proposes to revise the current Sec. 18.7 and
renumber it as proposed Sec. 18.80.
Under subdivision (a), the Department proposes to add the
requirement that a participating party file a prehearing statement at
least 21 days prior to the
[[Page 72171]]
date set for hearing, unless the judge orders otherwise. The current
Sec. 18.7 does not have a timeframe for filing prehearing statements.
However, judges typically include a timeframe in prehearing orders. It
is not the Department's intention to require the applicable
Department's agency to file a pre-hearing statement when it is not
actively participating in the proceeding. For example, in a Black Lung
claim in which an employer has been identified as the responsible
operator, the Office of Workers' Compensation Programs, though a party-
in-interest, does not normally take an active role. In such
circumstance it is not necessary for the Department's representative to
file a pre-hearing statement.
The Department proposes to add a new provision under subdivision
(b) that requires the parties confer in good faith to stipulate to
facts to the fullest extent possible and to prepare exhibit lists prior
to filing prehearing statements. The Department proposes this change to
help narrow the issues to be addressed at hearing and eliminate
unnecessary travel for potential witnesses.
Under subdivision (c), the Department proposes to provide a revised
version of the content requirements for a prehearing statement from the
current Sec. 18.7(b). The Department proposes to add that the
prehearing statement must include a statement of the relief sought, a
list of the party's exhibits and the joint exhibits. Otherwise, the
content requirements remain procedurally the same as those in the
current Sec. 18.7.
The Department proposes to add a new regulation under subdivision
(d) that permits the judge to require a joint prehearing statement
instead of individual prehearing statements by the parties.
The Department proposes to add a new regulation under subdivision
(e) that requires a party to file objections to an opposing party's
proposed exhibits or use of deposition testimony within 14 days of
being served. A party's failure to object waives the objection unless
the judge finds good cause for the failure to object.
Sec. 18.81 Formal hearing.
The Department proposes to revise the current Sec. 18.43 and
renumber it as proposed Sec. 18.81. The proposed Sec. 18.81 is
modeled after Fed. R. Civ. P. 43.
The Department proposes to revise the current subdivision (a) to
more accurately address the situations when a hearing would be closed
to the public. The current subdivision (a) states that hearings may be
closed to the public when it is in the ``best interests of the parties,
a witness, the public or other affected persons.'' The Department
proposes to delete this language and instead state that hearings may be
closed to the public ``when authorized by law and only to the minimum
extent necessary.'' The proposed change states the standard a judge
will apply when determining whether to close all or part of a hearing.
The applicable law does not suggest that hearings are closed based on
the ``best interests'' of the parties. Further, the presumption of open
hearings is supported by the requirement that a judge close a hearing
only to the minimum extent possible. The proposed subdivision (a)
clarifies that the judge's order closing the hearing must explain why
the reasons for closure outweigh the presumption of public access to
the hearing. The Department proposes to clarify that the judge may also
close the hearing to anticipated witnesses. Parties would not be
excluded, however. See Fed. R. Evid. 615 cmt.
The Department proposes to delete current subdivisions (b) and (c).
The judge's jurisdiction to decide all issues of fact and related
issues of law is addressed by proposed Sec. 18.12, Proceedings before
administrative law judge. Amendments to conform to the evidence is
addressed by proposed Sec. 18.36, Amendments after referral to the
Office of Administrative Law Judges, and the note referring the parties
to Fed. R. Civ. P. 15.
The Department proposes to model a new subdivision (b) after Fed.
R. Civ. P. 43(a). The proposed subdivision (b) requires that a witness
testify in an open hearing. However, a judge may permit testimony in an
open hearing by contemporaneous transmission from a different location
``for good cause and with appropriate safeguards.'' The Department
determined that if a witness needs to testify remotely, the witness or
party must show good cause, instead of having to show compelling
circumstances, which is the higher legal standard set forth in Fed. R.
Civ. P. 43(a). The Department's decision to set a lesser standard is
not intended to diminish the importance of presenting live testimony in
hearings. The very ceremony of a hearing and the presence of the
factfinder may exert a powerful force for telling the truth. However,
in contrast to the federal courts, OALJ has more relaxed evidentiary
standards. Hearings take place worldwide and are not constrained by the
concept of ``venue.'' Appropriate safeguards will be addressed by the
judge in the prehearing order or conference and may include the
exchange of exhibits and assurances that the witness will not be
coached during the testimony.
Similarly, the Department proposes a new subdivision (c) to permit
a party to participate in an open hearing by contemporaneous
transmission from a different location for good cause and with
appropriate safeguards. This provision accounts for the fact that some
cases involve parties located outside the United States or in other
remote locations that are unable to attend hearings in person.
Subdivisions (b) and (c) are not intended to suggest that
contemporaneous transmission is routine practice. The presiding judge
may require advance notice to determine whether good cause exists.
Sec. 18.82 Exhibits.
The Department proposes to revise the current Sec. Sec. 18.47
through 18.50 as part of the general restyling of the Part 18, Subpart
A rules of procedure. The current Sec. Sec. 18.47 through 18.50 are
combined into a single section covering exhibits, proposed Sec. 18.82.
The Department proposes to relocate the language from the current
Sec. 18.47 to subdivisions (a), Identification, (b), Electronic data,
(c), Exchange of exhibits, and (e), Substitution of copies for original
exhibits, in Sec. 18.82. In subdivision (a), the Department proposes
to add a provision stating that the exhibits should be numbered and
paginated as the judge directs. The Department determined that this
requirement is sufficiently broad to cover the variety of judges'
preferences for organizing exhibits, so that references in the
testimonial record to exhibit pages will be clear.
The Department proposes to relocate the language from the current
Sec. 18.48 to proposed subdivision (g), Records in other proceedings.
The Department proposes to revise the structure of this subdivision for
clarity, but does not propose any procedural changes.
The Department proposes to relocate the language from the current
Sec. 18.49 to proposed subdivision (f), Designation of parts of
documents. The Department proposes to revise the structure of this
subdivision and delete the redundant language. The Department proposes
to revise the first sentence to emphasize the procedure for excluding
irrelevant material. The second sentence is deleted as a matter left to
each judge's discretion and because other rules will apply to
submitting evidence and marking exhibits.
The Department proposes to relocate the language from current Sec.
18.50 to proposed subdivision (d), Authenticity. The Department
proposes to revise the structure of this subdivision to improve
[[Page 72172]]
clarity, but does not propose any procedural changes.
Under subdivision (b), Electronic data, the Department proposes
that ``by order the judge may prescribe the format for the submission
of data that is in electronic form.''
Sec. 18.83 Stipulations.
The Department proposes to revise the current Sec. 18.51, renumber
it as proposed Sec. 18.83, and include it under subdivision (a). The
Department does not propose any procedural changes to this subpart.
The Department proposes to add new regulations under subdivisions
(b) and (c). These provisions are based on current practice as
stipulations typically result from a judge's order. The proposed
subdivision (b) applies to extensions of time not covered by proposed
Sec. Sec. 18.33, Motions and other papers, and 18.41, Continuances and
changes in place of hearing. The new provision states that ``[e]very
stipulation that requests or requires a judge's action must be written
and signed by all affected parties or their representatives. Any
stipulation to extend time must state the reason for the date change.''
Under proposed subdivision (c), the Department proposes that ``[a]
proposed form of order may be submitted with the stipulation; it may
consist of an endorsement on the stipulation of the words, `Pursuant to
stipulation, it is so ordered' with spaces designated for the date and
the signature of the judge.''
Sec. 18.84 Official notice.
The Department proposes to revise the current Sec. 18.45 and
renumber it as proposed Sec. 18.84.
Under this section, the Department proposes to clarify the
procedures a judge must follow when taking official notice. The
Department proposes that official notice may be taken on motion of a
party or on the judge's own. The current Sec. 18.45 states that
official notice may be taken on ``any material fact, not appearing in
evidence in the record, which is among the traditional matters of
judicial notice.'' This proposed change clarifies that official notice
may be taken of any ``adjudicative fact or matter subject to judicial
notice.''
The proposed Sec. 18.63, Request for admission and the current
Sec. 18.201, Official notice of adjudicative facts, do not require
advance notice before the judge takes official notice, but rather an
opportunity to be heard. The Department, therefore, decided not to
propose an advance notice requirement in this section. In some
situations the judge may take official notice of a noncontroversial
fact that was omitted in the evidence without noticing the parties
before issuing a decision and order. The parties have an opportunity to
be heard after the order is issued.
Sec. 18.85 Privileged, sensitive, or classified materials.
The Department proposes to revise the current Sec. Sec. 18.46 and
18.56 and combine them into a single section, proposed Sec. 18.85,
covering privileged, sensitive, or classified material.
The Department proposes to relocate the content from the current
Sec. 18.46 to subdivision (a). The current Sec. 18.46 addresses
several topics: (1) Limiting discovery and the introduction of evidence
based on claims of privilege; (2) limiting the introduction of evidence
based on claims of classified or sensitive information; (3) providing a
summary or extracted version of a document to limit disclosures of
classified or sensitive material; (4) permitting access to classified
or sensitive matters despite their nature; and (5) requiring a
representative to seek a security clearance in order to view the
information.
The proposed subdivision (a) is more limited in scope than the
current Sec. 18.46. The procedures to limit the scope of discovery
based on claims of privilege or sensitive information are addressed by
proposed Sec. Sec. 18.51, Discovery scope and limits, and 18.52,
Protective orders. Accordingly, the references to limiting discovery in
current subdivision (a) and paragraph (b)(1) are deleted.
The references to obtaining a security clearance in current
paragraph (b)(2) are also deleted. The need for a participant in a
hearing to obtain a security clearance is a rare event before OALJ. The
Part 18, Subpart A rules are designed to apply to the typical types of
cases heard by OALJ; the rules do not address all of the exceptions or
possibilities that may occur in specific cases. Further, the process
for seeking a security clearance would be determined by the federal
agency holding the classified or sensitive information. OALJ does not
independently facilitate a security clearance process. For these
reasons, the references to obtaining a security clearance are deleted
from proposed Sec. 18.85.
The Department proposes to relocate the content from the current
Sec. 18.56 to subdivision (b). The proposed rule retains the option
provided in current subdivision (a) that a party or the judge may move
to seal a portion of the record. This section continues to require that
the sealed portion of the record be clearly marked and maintained
separately from other parts of the record in the case.
The proposed subdivision (b) imposes new requirements on parties.
When filing a motion to seal the record, a party must propose a
redaction no broader than necessary for inclusion in the public record.
If the movant finds that a redaction would be so extensive as to make
the material meaningless, the movant must file a summary of the
material to be included in the public record. The requirement of filing
a redacted copy or summary along with the motion to seal the record
ensures that the public continues to have access to as much information
as possible regarding the proceedings.
Under paragraph (b)(2), if the judge issues an order sealing all or
part of the record, the judge must explain why the need to seal part of
the record outweighs the presumption of public access. A redacted
version or summary of the material must be included in the record
unless the redactions make the public version of the material
meaningless, or if the redacted version or summary defeats the reason
the original is sealed. Notwithstanding the judge's order, all parts of
the record remain subject to statutes and regulations pertaining to
public access to agency records.
Sec. 18.86 Hearing room conduct.
The Department proposes to revise the current Sec. 18.37 and
renumber it as proposed Sec. 18.86.
The first sentence of the current Sec. 18.37 states that
proceedings are to be conducted in an orderly manner. The Department
proposes to amend this sentence to directly address how participants
must conduct themselves during a hearing, instead of generally stating
how the hearing should be managed. The proposed change provides direct
instructions to the participants.
The Department proposes to retain the prohibition on food and
beverage consumption and the rearranging of furniture in the hearing
location. The Department proposes to delete the reference to smoking.
Prohibitions on smoking in public places, specifically hearing
locations, are more ubiquitous than in 1983 when the current Part 18,
Subpart A was adopted. A specific prohibition in Part 18, Subpart A,
therefore, is not required.
The Department proposes to add a prohibition on disrupting
proceedings with electronic devices. This addition is a result of
changing technology since the current Part 18, Subpart A was adopted.
Electronic devices and their use can be distracting and disruptive
during a hearing. Accordingly, limiting
[[Page 72173]]
the use and noise produced by electronic devices facilitates the
orderly conduct of a hearing. Parties, witnesses and spectators are
also prohibited from using video or audio recording devices to record
hearings.
Sec. 18.87 Standards of conduct.
The Department proposes to revise the current Sec. 18.36 and
renumber it as proposed Sec. 18.87.
The Department proposes to divide the current subdivision (b) into
two subdivisions: (b), Exclusion for misconduct, and (c), Review of
representative's exclusion. Under 18.87 (b), the Department proposes to
define the types of conduct that may result in a party or the party's
representative being excluded from a proceeding.
Under subdivision (c), the Department proposes to provide the
procedure a party's representative must initiate in order to be
reinstated as a representative in a particular matter. The current
Sec. 18.36 does not indicate a time period in which the representative
must seek reinstatement. The Department proposes a 7-day time period
for a representative to request reinstatement. Seven days is proposed
so as not to create too long a delay in proceeding with the claim.
Sec. 18.88 Transcript of proceedings.
The Department proposes to revise the current Sec. 18.52 and
renumber it as proposed Sec. 18.88.
The Department proposes to limit the application of this section to
hearing transcripts and corrections to the transcript. The Department,
therefore, proposes to delete the second and third sentences of the
current subdivision (a). The second sentence refers to the basis of the
judge's decision, which is controlled by sec. 557(b) of the APA.
Because this current provision is covered by a statute, it is
unnecessary to include the provision in the proposed Sec. 18.88. The
Department propose to delete the references to exhibits in the third
sentence because the identification, marking, and inclusion of exhibits
in the record are addressed by proposed Sec. 18.82, Exhibits.
The Department proposes to amend the first sentence of the current
subdivision (a) to require that all hearings be recorded and
transcribed. The Department proposes to delete the methods of recording
and transcription in recognition of the variety of technologies used to
record and transcribe proceedings. The deletion, however, does not
alter the meaning or application of the rule. The rule continues to
require a transcript of a hearing.
Under subdivision (b), the Department proposes to extend the time
permitted to file a motion to correct a transcript to 14 days. The
current subdivision (b) requires that a party file the motion within 10
days of receipt of the transcript. This change to 14 days comports with
the general revision to set time periods based on multiples of 7.
The Department proposes to add a new provision under subdivision
(b) to permit a judge to correct a transcript on his or her own,
without a prior motion from a party, prior to issuing a decision. If a
judge corrects the transcript, the judge must provide notice to the
parties.
Post Hearing
Sec. 18.90 Closing the record; additional evidence.
The Department proposes to revise the current Sec. Sec. 18.54 and
18.55 and combine them into proposed Sec. 18.90.
The Department proposes to combine the current Sec. 18.54(a) and
(b) into proposed subdivision (a). The Department proposes only
stylistic changes to the language of these current subdivisions.
The Department proposes to incorporate the provisions contained in
existing Sec. Sec. 18.54(c) and 18.55 into proposed subdivision (b).
The paragraph (b)(1) provides the standard the judge will apply when
ruling on a motion to admit additional evidence. The proposed section
retains the requirement that the additional evidence be ``new and
material evidence.'' The proposed section requires that the party
demonstrate that it could not have discovered the new evidence with
reasonable diligence before the record closed.
Under paragraph (b)(1), the Department proposes to require the
party offering the additional evidence to file a motion promptly after
discovering the evidence. This sentence makes several changes to the
existing requirement in Sec. 18.55. First, the proposed section
emphasizes that a party must file a motion asking to reopen the record
for filing additional evidence. Requiring the party to file a motion
incorporates the requirements of proposed Sec. 18.33, Motions and
other papers, including the time to respond to motions.
The Department proposes to delete the timeframe for filing and
responding to additional evidence in the current Sec. 18.55.
Constraining the party to filing new evidence 20 days after the close
of the hearing was an unnecessarily restrictive time limit. If a party
promptly files a motion seeking to reopen the record based on new and
material evidence that was not available before the hearing, the judge
will consider the motion based on the requirements of the proposed
(b)(1).
The Department proposes to clarify in paragraph (b)(2) that if the
record is reopened, the other parties must have an opportunity to offer
responsive evidence, and a new evidentiary hearing may be set.
The Department proposes to revise the final sentence of the current
Sec. 18.54(c) and relocate it to proposed subdivision (c). The
Department proposes to revise this subdivision to instruct the parties
that the record will remain open for additional appropriate motions;
the content of the record is defined in proposed Sec. 18.88.
Sec. 18.91 Post-hearing brief.
The Department proposes to revise the current Sec. 18.57 and
separate the content into two separate sections: Sec. Sec. 18.91,
Post-hearing briefs, and 18.92, Decisions of the administrative law
judge. The Department proposes to relocate the content from the current
Sec. 18.57(a) to proposed Sec. 18.91.
The Department proposes to eliminate the 20-day filing period set
in the current Sec. 18.57(a). The 20-day timeframe for filing proposed
findings of fact, conclusions of law, and a proposed order is rarely
used by parties before OALJ. Instead, the parties follow the schedule
ordered by the judge at the close of the formal hearing or the judge's
order granting a hearing on the record. Accordingly, the proposed
section permits the parties to file closing briefs within the time
period established by the judge.
The Department determined that parties before OALJ rarely file
proposed findings of facts and proposed order, as litigants file in
state or federal district court. Rather, parties or their
representatives typically file post-hearing briefs. Under the proposed
Sec. 19.91, the Department proposes that judges allow a party or
representative to file a post-hearing brief that emphasizes the three
major items parties should emphasize in closing briefs: findings of
fact, conclusions of law and the specific relief sought. Like the
current regulation, the proposed section requires that the post-hearing
briefs refer to all portions of the record and cite authorities
supporting the party's assertions.
The Department proposes to delete the provision in the current
Sec. 18.57(a) that requires parties to serve post-hearing filings on
all parties. Under proposed Sec. 18.30, Service and filing, all papers
must be served on every party.
[[Page 72174]]
Therefore, it is unnecessary to repeat the requirement in this section.
Sec. 18.92 Decision and order.
The Department proposes to revise the current Sec. 18.57 and
separate the content into separate sections: Sec. Sec. 18.91, Post
hearing briefs and 18.92, Decisions and order. The Department proposes
to delete the language from the current Sec. 18.57(b) and replace it
with proposed Sec. 18.92.
The Department proposes to delete the reference to issuing a
decision and order within 30 days of receipt of proposed consent
findings and order. Instead, the proposed section states that ``at the
conclusion of the proceeding, the judge must issue a written decision
and order.'' OALJ has jurisdiction to decide claims under a variety of
statutes which impose different, but specific timeframes for issuing a
decision and order. When a statute or regulation does not specifically
mention a timeframe for issuing a decision and order, the judge, as is
current practice, will issue a decision and order within a reasonable
time.
The Department proposes to delete the last three sentences of the
current Sec. 18.57. The statements repeat the requirements imposed by
sec. 557(c) of the APA, therefore, the Department determined that it is
unnecessary to repeat the substantive requirements of the judge's
decision in OALJ's rules of procedure. These APA requirements will
continue to apply to decisions and orders issued by OALJ judges.
Sec. 18.93 Motion for reconsideration.
The Department proposes to add a new Sec. 18.93 modeled after Fed.
R. Civ. P. 59(e), Motions to alter or amend a judgment.
Under proposed Sec. 18.93, the Department proposes that ``a motion
for reconsideration of a decision and order must be filed no later than
10 days after service of the decision on the moving party.'' The
purpose of this section is to make clear that judges possess the power
to alter or amend a judgment after its entry.
The Department proposes to set a 10-day limitation on filing a
motion for reconsideration; however, it recognizes that governing
statutes, regulations, and executive orders, such as the Black Lung
regulations, may provide a different time for filing motions for
reconsideration. In those circumstances, the rule of special
application will apply.
Sec. 18.94 Indicative ruling on a motion for relief that is barred by
a pending petition for review.
The Department proposes to add a new Sec. 18.94 modeled after Fed.
R. Civ. P. 62.1 (December 1, 2009). The current Part 18, Subpart A does
not specifically mention indicative rulings on a motion for relief that
is barred by a pending appeal or petition for review. The proposed
Sec. 18.94 applies to motions made before a judge after an appeal has
been docketed with an appellate board, and the judge no longer has
jurisdiction over the merits of the case. At OALJ parties occasionally
file post-appeal motions, so the Department determined that it is
helpful to have a section that informs the judge and the appellate
board how the motion should be addressed. Inclusion of this section is
consistent with the Department's approach to include provisions from
the FRCP unless the rule is inapplicable to OALJ proceedings.
The proposed Sec. 18.94 does not attempt to define the
circumstances in which an appeal limits or defeats the judge's
authority to act in the face of a pending appeal. This section applies
only when the rules that govern the relationship between the judge and
appellate review boards deprive the judge of the authority to grant
relief without appellate permission. If a judge concludes that he or
she has authority to grant relief without appellate permission, he or
she may act without falling back on the indicative ruling procedure.
Often it will be appropriate for the judge to determine whether the
judge in fact would grant the motion if the appellate review board
remands for that purpose. But a motion may present complex issues that
require extensive litigation and that may either be mooted or be
presented in a different context by decision of the issues raised on
appeal. In such circumstances the judge may prefer to state that the
motion raises a substantial issue, and to state the reasons why the
judge prefers to decide it only if the appellate review board agrees
that it would be useful to decide the motion before decision of the
pending appeal. The judge is not bound to grant the motion after
stating that the motion raises a substantial issue; further proceedings
on remand may show that the motion ought not to be granted.
Sec. 18.95 Review of Decision
The Department proposes to revise the current Sec. 18.58 and
renumber it as proposed Sec. 18.95. As in the current rule, the
proposed rule states that the statute or regulation that conferred
hearing jurisdiction provides the procedure for review of a judge's
decision. If the statute or regulation does not provide a procedure,
the judge's decision becomes the Secretary's final administrative
decision. The Department does not propose any procedural changes to
this rule.
Section Deletions
The Department proposes to delete the current Sec. 18.13. The
first sentence of the rule lists the methods of discovery available to
a party. Prior to the 2007 amendments, the FRCP included a similar
provision under Fed. R. Civ. P. 26; however, the 2007 amendments to the
FRCP deleted this provision. The 2007 Advisory Committee Notes to Fed.
R. Civ. P. 26 state that ``former Rule 26(a)(5) served as an index of
the discovery methods provided by later rules. It was deleted as
redundant.'' Similarly, the Department proposes to delete the first
sentence of the current Sec. 18.13 just as Fed. R. Civ. P. 26(a)(5)
was deleted. The second sentence to the current Sec. 18.13 explains
that, unless the judge orders otherwise, there are no limits on the
frequency or sequence for use of the discovery methods. The frequency,
timing, and sequence of discovery are addressed by proposed Sec.
18.50, General provisions governing disclosure and discovery.
Accordingly, the Department proposes to delete the second sentence of
the current Sec. 18.13.
The Department proposes to delete the current Sec. 18.32. The text
of current Sec. 18.32 is based on Sec. 554(d) of the APA. This
regulation repeats the statute without adding additional procedures or
guidance, therefore, the Department proposes to delete it.
The Department proposes to delete the current Sec. 18.33. The
parties' right to a hearing within a reasonable time is encompassed in
proposed Sec. 18.10, Scope and purpose. The proposed Sec. 18.10(a)
states that the rules of procedure ``should be construed and
administered to secure the just, speedy, and inexpensive determination
of every proceeding.'' The Department determined that repeating the
statement of a speedy determination in current Sec. 18.33 is
redundant.
The Department proposes to delete the current Sec. 18.53. The
proposed Sec. 18.12, Proceedings before administrative law judge,
which combines the current Sec. Sec. 18.25 and 18.29, addresses the
ability of the judge to conduct the hearing. The contents of the
current Sec. 18.53 are repetitious given the revisions to the proposed
Sec. 18.12.
The Department proposes to delete the current Sec. 18.59. If OALJ
receives a request for a certified copy of the record,
[[Page 72175]]
the request would originate with a reviewing body or court. The terms
of sending the record would be controlled by the request or court
order. Thus, it is not practicable to have a uniform rule governing the
procedure for sending a certified copy of the record. Further,
determining the appropriate record custodian and the procedures for
certifying the record are internal matters within OALJ and the
Department. Based on these facts, the Department has determined that
the current Sec. 18.59 should be deleted.
List of Subjects in 29 CFR Part 18
Administrative practice and procedure, Labor.
Signed at Washington, DC.
Hilda L. Solis,
U.S. Secretary of Labor.
For the reasons set out in the Preamble, the Office of the
Secretary, Labor proposes to amend 29 CFR part 18 as set forth below.
PART 18--RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE
HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES
1. The authority citations for Part 18 continue 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 and discipline 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
Sec. 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.
Sec. 18.11 Definitions.
For purposes of these rules, these definitions supplement the
definitions in the Administrative Procedure Act, 5 U.S.C. 551.
(a) Calendar call means a meeting in which the judge calls cases
awaiting hearings, determines case status, and assigns a hearing date
and time.
(b) 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.
(c) 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.
(d) 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.
(e) Judge means an administrative law judge appointed under the
provisions of 5 U.S.C. 3105.
(f) Order means the judge's disposition of one or more procedural
or substantive issues, or of the entire matter.
(g) Proceeding means an action before the Office of Administrative
Law Judges that creates a record leading to an adjudication or order.
(h) Representative means any person permitted to represent another
in a proceeding before the Office of Administrative Law Judges.
Sec. 18.12 Proceedings before administrative law judge.
(a) Designation. The Chief Judge designates the presiding judge for
all proceedings.
[[Page 72176]]
(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) take actions authorized by the FRCP.
Sec. 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, or the
termination of proceedings under this section, are matters not subject
to review by Department officials.
Sec. 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.
Sec. 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 Sec. 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 Sec. 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.
Sec. 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.
Sec. 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
Sec. 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.
Sec. 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.
[[Page 72177]]
(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.
Sec. 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. 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.
(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.
(A) 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
attorney's representation of good standing is sufficient proof of good
standing, unless otherwise directed by the judge.
(B) 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.
(C) Disclosure of discipline. An attorney representative must
promptly disclose to the judge any action suspending, enjoining,
restraining, disbarring, or otherwise currently restricting him or her
in the practice of law.
(2) Non-attorney representative. An individual who is not an
attorney as defined by paragraph (b)(1) 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.
Sec. 18.23 Disqualification and discipline of representatives.
(a) Disqualification.
(1) Grounds for disqualification. Representatives qualified under
Sec. 18.22 may be disqualified upon:
(A) conviction of a felony;
(B) conviction of a misdemeanor, a necessary element of which
includes:
(i) interference with the administration of justice;
(ii) false swearing;
(iii) misrepresentation;
(iv) fraud;
(v) willful failure to file an income tax return;
(vi) deceit;
(vii) bribery;
(viii) extortion;
(ix) misappropriation;
(x) theft; or
(xi) attempt, conspiracy, or solicitation to commit a serious
crime.
(C) suspension or disbarment by any court or agency of the United
States, the District of Columbia, any state, territory, commonwealth or
possession of the United States;
(D) disbarment on consent or resignation from the bar of a court or
agency while an investigation into an allegation of misconduct is
pending;
(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) Discipline.
(1) Grounds for discipline. The Office of Administrative Law Judges
may suspend, disqualify, or otherwise discipline a representative.
Conduct that may result in discipline includes:
(A) an act, omission, or contumacious conduct relating to any
proceeding before OALJ that violates these rules, an applicable
statute, an applicable regulation, or the judge's order or instruction;
or
(B) failure to adhere to the applicable rules of conduct for the
jurisdiction(s) in which the attorney is admitted to practice in any
proceeding before OALJ.
(2) Disciplinary procedure.
(A) Notice. The Chief Judge must notify the representative of the
grounds for proposed discipline, and of the opportunity for a hearing.
A request for hearing must be filed within 21 days of service of the
notice.
(B) Default. If the representative does not respond to the notice,
the Chief Judge may issue a final disciplinary order.
(C) Disciplinary proceedings. If the representative responds to the
notice, the Chief Judge will designate a judge to conduct a hearing, if
requested, and to
[[Page 72178]]
issue a decision and order. The representative has the opportunity to
present evidence, and argument. The decision must be based on the
reliable, probative and substantial evidence of record, including any
submissions from the representative.
(D) Petition for review. A petition to review the decision and
order must be filed with the Chief Judge within 30 days of the date of
the decision and order, and state the grounds for review. The Chief
Judge reviews the decision and order under the substantial evidence
standard. The Chief Judge's decision is not subject to review within
the Department of Labor.
(c) Notification of disciplinary action. When an attorney
representative is suspended or disqualified, the Chief Judge will
notify the jurisdiction(s) in which the attorney is admitted 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.
(d) Application for reinstatement. A representative suspended or
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 pursuant to
paragraph (b)(2) of this section.
Sec. 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. Unless otherwise directed by the judge, an amicus
brief must be filed by the close of the hearing.
Service, Format and Timing of Filings and Other Papers
Sec. 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.
(A) 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.
(B) Service in general. A paper is served under this section by:
(i) handing it to the person;
(ii) leaving it:
(a) 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
(b) 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;
(iii) mailing it to the person's last known address--in which event
service is complete upon mailing;
(iv) leaving it with the docket clerk if the person has no known
address;
(v) 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
(vi) 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:
(A) the title of the document;
(B) the name and address of each person or representative being
served;
(C) the name of the party filing the paper and the party's
representative, if any;
(D) the date of service; and
(E) 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 Sec. 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:
(A) notices of deposition,
(B) depositions,
(C) interrogatories,
(D) requests for documents or tangible things or to permit entry
onto land; and
(E) requests for admission.
(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.
(A) Filing by facsimile.
(i) 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.
(ii) 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.
(iii) Retention of the original document. The original signed
document will not be substituted into the record unless required by law
or the judge.
(B) 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.
(C) 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.
Sec. 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
[[Page 72179]]
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 Sec. Sec. 18.85, Privileged,
sensitive, or classified material and 18.52, Protective orders.
Sec. 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:
(A) exclude the day of the event that triggers the period;
(B) count every day, including intermediate Saturdays, Sundays, and
legal holidays; and
(C) 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 declared a holiday by the President or Congress.
(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 Sec. 18.30(a)(2)(B)(iii) or (iv), 3 days are added after
the period would otherwise expire under paragraph (a) of this section.
Sec. 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 subsection (c)(4), 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:
(A) when the motion may be heard ex parte;
(B) when these rules or an appropriate statute, regulation, or
executive order set a different time; or,
(C) when an order sets a different time.
(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:
(A) to dismiss;
(B) for summary decision; and
(C) 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.
Sec. 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).
Sec. 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
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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 Sec. 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
must be limited to what suffices to deter repetition of the conduct or
comparable conduct by others similarly situated.
(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 Sec. Sec. 18.50 through 18.65.
Sec. 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
Sec. 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 witnesses in selecting the date,
time, and place of the hearing.
Sec. 18.41 Continuances and changes in place of hearing.
(a) By the judge. Upon reasonable notice to the parties, the judge
may change the time, date, and place of the hearing.
(b) By a party's motion. A request by a party to continue a hearing
or to change the place of the hearing must be made by motion.
(1) Continuances. A motion for continuance must be filed promptly
after the party becomes aware of the circumstances supporting the
continuance. In exceptional circumstances, a party may orally request a
continuance and must immediately notify the other parties of the
continuance request.
(2) Change in place of hearing. A motion to change the place of a
hearing must be filed promptly.
Sec. 18.42 Expedited proceedings.
A party may move to expedite the proceeding. The motion must
demonstrate the specific harm that would result if the proceeding is
not expedited. If the motion is granted, the formal hearing ordinarily
will not be scheduled with less than 7 days notice to the parties,
unless all parties consent to an earlier hearing.
Sec. 18.43 Consolidation; separate hearings.
(a) Consolidation. If separate proceedings before the Office of the
Administrative Law Judges involve a common question of law or fact, a
judge may:
(1) join for hearing any or all matters at issue in the
proceedings;
(2) consolidate the proceedings; or
(3) issue any other orders to avoid unnecessary cost or delay.
(b) Separate hearings. For convenience, to avoid prejudice, or to
expedite and economize, the judge may order a separate hearing of one
or more issues.
Sec. 18.44 Prehearing conference.
(a) In general. The judge, with or without a motion, may order one
or more prehearing conferences for such purposes as:
(1) expediting disposition of the proceeding;
(2) establishing early and continuing control so that the case will
not be protracted because of lack of management;
(3) discouraging wasteful prehearing activities;
(4) improving the quality of the hearing through more thorough
preparation; and
(5) facilitating settlement.
(b) Scheduling. Prehearing conferences may be conducted in person,
by telephone, or other means after reasonable notice of time, place and
manner of conference has been given.
(c) Participation. All parties must participate in prehearing
conferences as directed by the judge. A represented party must
authorize at least one of its attorneys or representatives to make
stipulations and admissions about all matters that can reasonably be
anticipated for discussion at the prehearing conference, including
possible settlement.
(d) Matters for consideration. At the conference, the judge may
consider and take appropriate actions on the following matters:
(1) formulating and simplifying the issues, and eliminating
frivolous claims or defenses;
(2) amending the papers that had framed the issues before the
matter was referred for hearing;
(3) obtaining admissions and stipulations about facts and documents
to avoid unnecessary proof, and ruling in advance on the admissibility
of evidence;
[[Page 72181]]
(4) avoiding unnecessary proof and cumulative evidence, and
limiting the number of expert or other witnesses;
(5) determining the appropriateness and timing of dispositive
motions under Sec. Sec. 18.70 and 18.72;
(6) controlling and scheduling discovery, including orders
affecting disclosures and discovery under Sec. Sec. 18.50 through
18.65;
(7) identifying witnesses and documents, scheduling the filing and
exchange of any exhibits and prehearing submissions, and setting dates
for further conferences and for the hearing;
(8) referring matters to a special master;
(9) settling the case and using special procedures to assist in
resolving the dispute such as the settlement judge procedure under
Sec. 18.13, private mediation, and other means authorized by statute
or regulation;
(10) determining the form and content of prehearing orders;
(11) disposing of pending motions;
(12) adopting special procedures for managing potentially difficult
or protracted proceedings that may involve complex issues, multiple
parties, difficult legal questions, or unusual proof problems;
(13) consolidating or ordering separate hearings under Sec. 18.43;
(14) ordering the presentation of evidence early in the proceeding
on a manageable issue that might, on the evidence, be the basis for
disposing of the proceeding;
(15) establishing a reasonable limit on the time allowed to present
evidence; and
(16) facilitating in other ways the just, speedy, and inexpensive
disposition of the proceeding.
(e) Reporting. The judge may direct that the prehearing conference
be recorded and transcribed. If the conference is not recorded, the
judge should summarize the conference proceedings on the record at the
hearing or by separate prehearing notice or order.
Disclosure and Discovery
Sec. 18.50 General provisions governing disclosure and discovery.
(a) Timing and sequence of discovery.
(1) Timing. A party may seek discovery at any time after a judge
issues an initial notice or order. But if the judge orders the parties
to confer under paragraph (b) of this section:
(A) the time to respond to any pending discovery requests is
extended until the time agreed in the discovery plan, or that the judge
sets in resolving disputes about the discovery plan, and
(B) no party may seek additional discovery from any source before
the parties have conferred as required by paragraph (b) of this
section, except by stipulation.
(2) Sequence. Unless, on motion, the judge orders otherwise for the
parties' and witnesses' convenience and in the interests of justice:
(A) methods of discovery may be used in any sequence; and
(B) discovery by one party does not require any other party to
delay its discovery.
(b) Conference of the parties; planning for discovery.
(1) In general. The judge may order the parties to confer on the
matters described in paragraphs (b)(2) and (3) of this section.
(2) Conference content; parties' responsibilities. In conferring,
the parties must consider the nature and basis of their claims and
defenses and the possibilities for promptly settling or resolving the
case; make or arrange for the disclosures required by paragraph (c) of
this section; discuss any issues about preserving discoverable
information; and develop a proposed discovery plan. The representatives
of record and all unrepresented parties that have appeared in the case
are jointly responsible for arranging the conference, for attempting in
good faith to agree on the proposed discovery plan, and for submitting
to the judge within 14 days after the conference a written report
outlining the plan. The judge may order the parties or representatives
to attend the conference in person.
(3) Discovery plan. A discovery plan must state the parties' views
and proposals on:
(A) what changes should be made in the timing, form, or requirement
for disclosures under paragraph (c) of this section, including a
statement of when initial disclosures were made or will be made;
(B) the subjects on which discovery may be needed, when discovery
should be completed, and whether discovery should be conducted in
phases or be limited to or focused on particular issues;
(C) any issues about disclosure or discovery of electronically
stored information, including the form or forms in which it should be
produced;
(D) any issues about claims of privilege or of protection as
hearing-preparation materials, including--if the parties agree on a
procedure to assert these claims after production--whether to ask the
judge to include their agreement in an order;
(E) what changes should be made in the limitations on discovery
imposed under these rules and what other limitations should be imposed;
and
(F) any other orders that the judge should issue under Sec. 18.52
or under Sec. 18.44.
(c) Required disclosures.
(1) Initial disclosure.
(A) In general. Except as exempted by paragraph (c)(1)(B) of this
section or otherwise ordered by the judge, a party must, without
awaiting a discovery request, provide to the other parties:
(i) the name and, if known, the address and telephone number of
each individual likely to have discoverable information--along with the
subjects of that information--that the disclosing party may use to
support its claims or defenses, unless the use would be solely for
impeachment;
(ii) a copy--or a description by category and location--of all
documents, electronically stored information, and tangible things that
the disclosing party has in its possession, custody, or control and may
use to support its claims or defenses, unless the use would be solely
for impeachment; and
(iii) a computation of each category of damages claimed by the
disclosing party--who must also make available for inspection and
copying as under Sec. 18.61 the documents or other evidentiary
material, unless privileged or protected from disclosure, on which each
computation is based, including materials bearing on the nature and
extent of injuries suffered.
(B) Proceedings exempt from initial disclosure. The following
proceedings are exempt from initial disclosure:
(i) a proceeding under 29 CFR part 20 for review of an agency
determination regarding the existence or amount of a debt, or the
repayment schedule proposed by the agency;
(ii) a proceeding before the Board of Alien Labor Certification
Appeals under the Immigration and Nationality Act; and
(iii) a proceeding under the regulations governing certification of
H-2 non-immigrant temporary agricultural employment at 20 CFR part 655,
subpart B;
(iv) a rulemaking proceeding under the Occupational Safety and
Health Act of 1970; and
(v) a proceeding for civil penalty assessments under Employee
Retirement Income Security Act of 1974, 29 U.S.C. 1132.
(C) Parties Exempt from Initial Disclosure. The following parties
are exempt from initial disclosure:
(i) in a Black Lung benefits proceeding under 30 U.S.C. 901 et
seq., the representative of the Office of
[[Page 72182]]
Workers' Compensation Programs of the Department of Labor, if an
employer has been identified as the Responsible Operator and is a party
to the proceeding (see 20 CFR 725.418(d)); and
(ii) in a proceeding under the Longshore and Harbor Workers'
Compensation Act, 33 U.S.C. 901 et seq., or an associated statute such
as the Defense Base Act, 42 U.S.C. 1651 et seq., the representative of
the Office of Workers' Compensation Programs of the Department of
Labor, unless the Solicitor of Labor or the Solicitor's designee has
elected to participate in the proceeding under 20 CFR 702.333(b), or
unless an employer or carrier has applied for relief under the special
fund, as defined in 33 U.S.C. 908(f).
(D) Time for initial disclosures--in general. A party must make the
initial disclosures required by paragraph (c)(1)(A) of this section
within 21 days after an initial notice or order is entered
acknowledging that the proceeding has been docketed at the OALJ unless
(i) a different time is set by stipulation or a judge's order, or (ii)
a party objects during the conference that initial disclosures are not
appropriate in the proceeding and states the objection in the proposed
discovery plan. In ruling on the objection, the judge must determine
what disclosures, if any, are to be made and must set the time for
disclosure.
(E) Time for initial disclosures--for parties served or joined
later. A party that is first served or otherwise joined later in the
proceeding must make the initial disclosures within 21 days after being
served or joined, unless a different time is set by stipulation or the
judge's order.
(F) Basis for initial disclosure; unacceptable excuses. A party
must make its initial disclosures based on the information then
reasonably available to it. A party is not excused from making its
disclosures because it has not fully investigated the case or because
it challenges the sufficiency of another party's disclosures or because
another party has not made its disclosures.
(2) Disclosure of expert testimony.
(A) In general. A party must disclose to the other parties the
identity of any witness who may testify at hearing, either live or by
deposition. The judge should set the time for the disclosure by
prehearing order.
(B) Witnesses who must provide a written report. Unless otherwise
stipulated or ordered by the judge, this disclosure must be accompanied
by a written report--prepared and signed by the witness--if the witness
is one retained or specially employed to provide expert testimony in
the case or one whose duties as the party's employee regularly involve
giving expert testimony. The report must contain:
(i) a complete statement of all opinions the witness will express
and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all
publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4
years, the witness testified as an expert at trial, a hearing, or by
deposition; and
(vi) a statement of the compensation to be paid for the study and
testimony in the case.
(C) Witnesses who do not provide a written report. Unless otherwise
stipulated or ordered by the judge that the witness is not required to
provide a written report, this disclosure must state:
(i) the subject matter on which the witness is expected to present
expert opinion evidence; and
(ii) a summary of the facts and opinions to which the witness is
expected to testify.
(D) Supplementing the disclosure. The parties must supplement these
disclosures when required under Sec. 18.53.
(3) Prehearing disclosures. In addition to the disclosures required
by paragraphs (c)(1) and (2) of this section, a party must provide to
the other parties and promptly file the prehearing disclosures
described in Sec. 18.80.
(4) Form of disclosures. Unless the judge orders otherwise, all
disclosures under paragraph (c) under this section must be in writing,
signed, and served.
(d) Signing disclosures and discovery requests, responses, and
objections.
(1) Signature required; effect of signature. Every disclosure under
paragraph (c) of this section and every discovery request, response, or
objection must be signed by at least one of the party's representatives
in the representative's own name, or by the party personally if
unrepresented, and must state the signer's address, telephone number,
facsimile number, and email address, if any. By signing, a
representative or party certifies that to the best of the person's
knowledge, information, and belief formed after a reasonable inquiry:
(A) with respect to a disclosure, it is complete and correct as of
the time it is made; and
(B) with respect to a discovery request, response, or objection, it
is:
(i) consistent with these rules and warranted by existing law or by
a nonfrivolous argument for extending, modifying, or reversing existing
law, or for establishing new law;
(ii) not interposed for any improper purpose, such as to harass,
cause unnecessary delay, or needlessly increase the cost of litigation;
and
(iii) neither unreasonable nor unduly burdensome or expensive,
considering the needs of the case, prior discovery in the case, the
amount in controversy, and the importance of the issues at stake in the
action.
(2) Failure to sign. Other parties have no duty to act on an
unsigned disclosure, request, response, or objection until it is
signed, and the judge must strike it unless a signature is promptly
supplied after the omission is called to the representative's or
party's attention.
(3) Sanction for improper certification. If a certification
violates this section without substantial justification, the judge, on
motion or on his or her own, must impose an appropriate sanction, as
provided in Sec. 18.57, on the signer, the party on whose behalf the
signer was acting, or both.
Sec. 18.51 Discovery scope and limits.
(a) Scope in general. Unless otherwise limited by a judge's order,
the scope of discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any party's
claim or defense--including the existence, description, nature,
custody, condition, and location of any documents or other tangible
things and the identity and location of persons who know of any
discoverable matter. For good cause, the judge may order discovery of
any matter relevant to the subject matter involved in the proceeding.
Relevant information need not be admissible at the hearing if the
discovery appears reasonably calculated to lead to the discovery of
admissible evidence. All discovery is subject to the limitations
imposed by paragraph (b)(4) of this section.
(b) Limitations on frequency and extent.
(1) When permitted. By order, the judge may alter the limits in
these rules on the number of depositions and interrogatories or on the
length of depositions under Sec. 18.64. The judge's order may also
limit the number of requests under Sec. 18.63.
(2) Specific limitations on electronically stored information. A
party need not provide discovery of electronically stored information
from sources that the party identifies as not
[[Page 72183]]
reasonably accessible because of undue burden or cost. On motion to
compel discovery or for a protective order, the party from whom
discovery is sought must show that the information is not reasonably
accessible because of undue burden or cost. If that showing is made,
the judge may nonetheless order discovery from such sources if the
requesting party shows good cause, considering the limitations of
paragraph (b)(4) of this section. The judge may specify conditions for
the discovery.
(3) By requesting electronically stored information, a party
consents to the application of Federal Rule of Evidence 502 with regard
to inadvertently disclosed privileged or protected information.
(4) When required. On motion or on his or her own, the judge must
limit the frequency or extent of discovery otherwise allowed by these
rules when:
(A) the discovery sought is unreasonably cumulative or duplicative,
or can be obtained from some other source that is more convenient, less
burdensome, or less expensive;
(B) the party seeking discovery has had ample opportunity to obtain
the information by discovery in the action; or
(C) the burden or expense of the proposed discovery outweighs its
likely benefit, considering the needs of the case, the amount in
controversy, the parties' resources, the importance of the issues at
stake in the action, and the importance of the discovery in resolving
the issues.
(c) Hearing preparation: materials.
(1) Documents and tangible things. Ordinarily, a party may not
discover documents and tangible things that are prepared in
anticipation of litigation or for hearing by or for another party or
its representative (including the other party's attorney, consultant,
surety, indemnitor, insurer, or agent). But, subject to paragraph (d)
of this section, those materials may be discovered if:
(A) they are otherwise discoverable under paragraph (a) of this
section; and
(B) the party shows that it has substantial need for the materials
to prepare its case and cannot, without undue hardship, obtain their
substantial equivalent by other means.
(2) Protection against disclosure. A judge who orders discovery of
those materials must protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of a party's
representative concerning the litigation.
(3) Previous statement. Any party or other person may, on request
and without the required showing, obtain the person's own previous
statement about the action or its subject matter. If the request is
refused, the person may move for a judge's order. A previous statement
is either:
(A) a written statement that the person has signed or otherwise
adopted or approved; or
(B) a contemporaneous stenographic, mechanical, electrical, or
other recording--or a transcription of it--that recites substantially
verbatim the person's oral statement.
(d) Hearing preparation: experts.
(1) Deposition of an expert who may testify. A party may depose any
person who has been identified as an expert whose opinions may be
presented at trial. If Sec. 18.50(c)(2)(B) requires a report from the
expert the deposition may be conducted only after the report is
provided, unless the parties stipulate otherwise.
(2) Hearing-preparation protection for draft reports or
disclosures. Paragraphs (c)(1) and (2) of this section protect drafts
of any report or disclosure required under Sec. 18.50(c)(2),
regardless of the form in which the draft is recorded.
(3) Hearing-preparation protection for communications between a
party's representative and expert witnesses. Paragraphs (c)(1) and (2)
under this section protect communications between the party's
representative and any witness required to provide a report under Sec.
18.50(c)(2)(B), regardless of the form of the communications, except to
the extent that the communications:
(A) relate to compensation for the expert's study or testimony;
(B) identify facts or data that the party's representative provided
and that the expert considered in forming the opinions to be expressed;
or
(C) identify assumptions that the party's representative provided
and that the expert relied on in forming the opinions to be expressed.
(4) Expert employed only for hearing preparation. Ordinarily, a
party may not, by interrogatories or deposition, discover facts known
or opinions held by an expert who has been retained or specially
employed by another party in anticipation of litigation or to prepare
for hearing and whose testimony is not anticipated to be used at the
hearing. But a party may do so only:
(A) as provided in Sec. 18.62(b); or
(B) on showing exceptional circumstances under which it is
impracticable for the party to obtain facts or opinions on the same
subject by other means.
(e) Claiming privilege or protecting hearing-preparation materials.
(1) Information withheld. When a party withholds information
otherwise discoverable by claiming that the information is privileged
or subject to protection as hearing-preparation material, the party
must:
(A) expressly make the claim; and
(B) describe the nature of the documents, communications, or
tangible things not produced or disclosed--and do so in a manner that,
without revealing information itself privileged or protected, will
enable other parties to assess the claim.
(2) Information produced. If information produced in discovery is
subject to a claim of privilege or of protection as hearing-preparation
material, the party making the claim must notify any party that
received the information of the claim and the basis for it. After being
notified, a party must promptly return, sequester, or destroy the
specified information and any copies it has; must not use or disclose
the information until the claim is resolved; must take reasonable steps
to retrieve the information if the party disclosed it before being
notified; and may promptly present the information to the judge for an
in camera determination of the claim. The producing party must preserve
the information until the claim is resolved.
Sec. 18.52 Protective orders.
(a) In general. A party or any person from whom discovery is sought
may file a written motion for a protective order. The motion must
include a certification that the movant has in good faith conferred or
attempted to confer with other affected parties in an effort to resolve
the dispute without the judge's action. The judge may, for good cause,
issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including one or
more of the following:
(1) forbidding the disclosure or discovery;
(2) specifying terms, including time and place, for the disclosure
or discovery;
(3) prescribing a discovery method other than the one selected by
the party seeking discovery;
(4) forbidding inquiry into certain matters, or limiting the scope
of disclosure or discovery to certain matters;
(5) designating the persons who may be present while the discovery
is conducted;
(6) requiring that a deposition be sealed and opened only on the
judge's order;
(7) requiring that a trade secret or other confidential research,
development, or commercial
[[Page 72184]]
information not be revealed or be revealed only in a specified way; and
(8) requiring that the parties simultaneously file specified
documents or information in sealed envelopes, to be opened as the judge
directs.
(b) Ordering discovery. If a motion for a protective order is
wholly or partly denied, the judge may, on just terms, order that any
party or person provide or permit discovery.
Sec. 18.53 Supplementing disclosures and responses.
(a) In general. A party who has made a disclosure under Sec.
18.50(c)--or who has responded to an interrogatory, request for
production, or request for admission--must supplement or correct its
disclosure or response:
(1) in a timely manner if the party learns that in some material
respect the disclosure or response is incomplete or incorrect, and if
the additional or corrective information has not otherwise been made
known to the other parties during the discovery process or in writing;
or
(2) as ordered by the judge.
(b) Expert witness. For an expert whose report must be disclosed
under Sec. 18.50(c)(2)(B), the party's duty to supplement extends both
to information included in the report and to information given during
the expert's deposition. Any additions or changes to this information
must be disclosed by the time the party's prehearing disclosures under
Sec. 18.50(c)(3) are due.
Sec. 18.54 Stipulations about discovery procedure.
Unless the judge orders otherwise, the parties may stipulate that:
(a) a deposition may be taken before any person, at any time or
place, on any notice, and in the manner specified--in which event it
may be used in the same way as any other deposition; and
(b) other procedures governing or limiting discovery be modified--
but a stipulation extending the time for any form of discovery must
have the judge's approval if it would interfere with the time set for
completing discovery, for hearing a motion, or for hearing.
Sec. 18.55 Using depositions at hearings.
(a) Using depositions.
(1) In general. At a hearing, all or part of a deposition may be
used against a party on these conditions:
(A) the party was present or represented at the taking of the
deposition or had reasonable notice of it;
(B) it is used to the extent it would be admissible under the
applicable rules of evidence if the deponent were present and
testifying; and
(C) the use is allowed by paragraphs (a)(2) through (8) of this
section.
(2) Impeachment and other uses. Any party may use a deposition to
contradict or impeach the testimony given by the deponent as a witness,
or for any other purpose allowed by the applicable rules of evidence.
(3) Deposition of party, agent, or designee. An adverse party may
use for any purpose the deposition of a party or anyone who, when
deposed, was the party's officer, director, managing agent, or designee
under Sec. 18.64(b)(6) or Sec. 18.65(a)(4).
(4) Deposition of expert, treating physician, or examining
physician. A party may use for any purpose the deposition of an expert
witness, treating physician or examining physician.
(5) Unavailable witness. A party may use for any purpose the
deposition of a witness, whether or not a party, if the judge finds:
(A) that the witness is dead;
(B) that the witness is more than 100 miles from the place of
hearing or is outside the United States, unless it appears that the
witness's absence was procured by the party offering the deposition;
(C) that the witness cannot attend or testify because of age,
illness, infirmity, or imprisonment;
(D) that the party offering the deposition could not procure the
witness's attendance by subpoena; or
(E) on motion and notice, that exceptional circumstances make it
desirable--in the interests of justice and with due regard to the
importance of live testimony in an open hearing--to permit the
deposition to be used.
(6) Limitations on use.
(A) Deposition taken on short notice. A deposition must not be used
against a party who, having received less than 14 days' notice of the
deposition, promptly moved for a protective order under Sec.
18.52(a)(2) requesting that it not be taken or be taken at a different
time or place--and this motion was still pending when the deposition
was taken.
(B) Unavailable deponent; party could not obtain a representative.
A deposition taken without leave of the judge under the unavailability
provision of Sec. 18.64(a)(2)(A)(iii) must not be used against a party
who shows that, when served with the notice, it could not, despite
diligent efforts, obtain a representative to represent it at the
deposition.
(7) Using part of a deposition. If a party offers in evidence only
part of a deposition, an adverse party may require the offeror to
introduce other parts that in fairness should be considered with the
part introduced, and any party may itself introduce any other parts.
(8) Deposition taken in an earlier action. A deposition lawfully
taken may be used in a later action involving the same subject matter
between the same parties, or their representatives or successors in
interest, to the same extent as if taken in the later action. A
deposition previously taken may also be used as allowed by the
applicable rules of evidence.
(b) Objections to admissibility. Subject to paragraph (d)(3) of
this section, an objection may be made at a hearing to the admission of
any deposition testimony that would be inadmissible if the witness were
present and testifying.
(c) Form of presentation. Unless the judge orders otherwise, a
party must provide a transcript of any deposition testimony the party
offers, but the judge may receive the testimony in nontranscript form
as well.
(d) Waiver of objections.
(1) To the notice. An objection to an error or irregularity in a
deposition notice is waived unless promptly served in writing on the
party giving the notice.
(2) To the officer's qualification. An objection based on
disqualification of the officer before whom a deposition is to be taken
is waived if not made:
(A) before the deposition begins; or
(B) promptly after the basis for disqualification becomes known or,
with reasonable diligence, could have been known.
(3) To the taking of the deposition.
(A) Objection to competence, relevance, or materiality. An
objection to a deponent's competence--or to the competence, relevance,
or materiality of testimony--is not waived by a failure to make the
objection before or during the deposition, unless the ground for it
might have been corrected at that time.
(B) Objection to an error or irregularity. An objection to an error
or irregularity at an oral examination is waived if:
(i) it relates to the manner of taking the deposition, the form of
a question or answer, the oath or affirmation, a party's conduct, or
other matters that might have been corrected at that time; and
(ii) it is not timely made during the deposition.
(C) Objection to a written question. An objection to the form of a
written question under Sec. 18.65 is waived if not served in writing
on the party submitting the question within the time for serving
responsive questions or, if the question is a recross-question, within
7 days after being served with it.
(4) To completing and returning the deposition. An objection to how
the officer transcribed the testimony--or
[[Page 72185]]
prepared, signed, certified, sealed, endorsed, sent, or otherwise dealt
with the deposition--is waived unless a motion to suppress is made
promptly after the error or irregularity becomes known or, with
reasonable diligence, could have been known.
Sec. 18.56 Subpoena.
(a) In general.
(1) Upon written application of a party the judge may issue a
subpoena authorized by statute or law that requires a witness to attend
and to produce relevant papers, books, documents, or tangible things in
the witness' possession or under the witness' control.
(2) Form and contents.
(A) Requirements--in general. Every subpoena must:
(i) state the title of the matter and show the case number assigned
by the Office of Administrative Law Judges or the Office of Worker's
Compensation Programs. In the event that the case number is an
individual's Social Security number only the last four numbers may be
used. See Sec. 18.31(a)(1);
(ii) bear either the signature of the issuing judge or the
signature of an attorney authorized to issue the subpoena under
paragraph (a)(3) of this section;
(iii) command each person to whom it is directed to do the
following at a specified time and place: attend and testify; produce
designated documents, electronically stored information, or tangible
things in that person's possession, custody, or control; or permit the
inspection of premises; and
(iv) set out the text of paragraphs (c) and (d) of this section.
(B) Command to attend a deposition--notice of the recording method.
A subpoena commanding attendance at a deposition must state the method
for recording the testimony.
(C) Combining or separating a command to produce or to permit
inspection; specifying the form for electronically stored information.
A command to produce documents, electronically stored information, or
tangible things or to permit the inspection of premises may be included
in a subpoena commanding attendance at a deposition or hearing, or may
be set out in a separate subpoena. A subpoena may specify the form or
forms in which electronically stored information is to be produced.
(D) Command to produce; included obligations. A command in a
subpoena to produce documents, electronically stored information, or
tangible things requires the responding party to permit inspection,
copying, testing, or sampling of the materials.
(3) The judge may, by order in a specific proceeding, authorize an
attorney representative to issue and sign a subpoena.
(b) Service.
(1) By whom; tendering fees; serving a copy of certain subpoenas.
Any person who is at least 18 years old and not a party may serve a
subpoena. Serving a subpoena requires delivering a copy to the named
person and, if the subpoena requires that person's attendance,
tendering with it the fees for 1 day's attendance and the mileage
allowed by law. Service may also be made by certified mail with return
receipt. Fees and mileage need not be tendered when the subpoena issues
on behalf of the United States or any of its officers or agencies. If
the subpoena commands the production of documents, electronically
stored information, or tangible things or the inspection of premises
before the formal hearing, then before it is served, a notice must be
served on each party.
(2) Service in the United States. Subject to paragraph
(c)(3)(A)(ii) of this section, a subpoena may be served at any place
within a State, Commonwealth, or Territory of the United States, or the
District of Columbia.
(3) Service in a foreign country. 28 U.S.C. 1783 governs issuing
and serving a subpoena directed to a United States national or resident
who is in a foreign country.
(4) Proof of service. Proving service, when necessary, requires
filing with the judge a statement showing the date and manner of
service and the names of the persons served. The statement must be
certified by the server.
(c) Protecting a person subject to a subpoena.
(1) Avoiding undue burden; sanctions. A party or representative
responsible for requesting, issuing, or serving a subpoena must take
reasonable steps to avoid imposing undue burden on a person subject to
the subpoena. The judge must enforce this duty and impose an
appropriate sanction.
(2) Command to produce materials or permit inspection.
(A) Appearance not required. A person commanded to produce
documents, electronically stored information, or tangible things, or to
permit the inspection of premises, need not appear in person at the
place of production or inspection unless also commanded to appear for a
deposition or hearing.
(B) Objections. A person commanded to produce documents or tangible
things or to permit inspection may serve on the party or representative
designated in the subpoena a written objection to inspecting, copying,
testing or sampling any or all of the materials or to inspecting the
premises--or to producing electronically stored information in the form
or forms requested. The objection must be served before the earlier of
the time specified for compliance or 14 days after the subpoena is
served. If an objection is made, the following rules apply:
(i) At any time, on notice to the commanded person, the serving
party may move the judge for an order compelling production or
inspection.
(ii) These acts may be required only as directed in the order, and
the order must protect a person who is neither a party nor a party's
officer from significant expense resulting from compliance.
(3) Quashing or modifying a subpoena.
(A) When required. On timely motion, the judge must quash or modify
a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person who is neither a party nor a party's officer
to travel more than 100 miles from where that person resides, is
employed, or regularly transacts business in person--except that,
subject to paragraph (c)(3)(B)(iii) of this section, the person may be
commanded to attend the formal hearing;
(iii) requires disclosure of privileged or other protected matter,
if no exception or waiver applies; or
(iv) subjects a person to undue burden.
(B) When permitted. To protect a person subject to or otherwise
affected by a subpoena, the judge may, on motion, quash or modify the
subpoena if it requires:
(i) disclosing a trade secret or other confidential research,
development, or commercial information;
(ii) disclosing an unretained expert's opinion or information that
does not describe specific occurrences in dispute and results from the
expert's study that was not requested by a party; or
(iii) a person who is neither a party nor a party's officer to
incur substantial expense to travel more than 100 miles to attend the
formal hearing.
(C) Specifying conditions as an alternative. In the circumstances
described in paragraph (c)(3)(B) of this section, the judge may,
instead of quashing or modifying a subpoena, order appearance or
production under specified conditions if the serving party:
(i) shows a substantial need for the testimony or material that
cannot be
[[Page 72186]]
otherwise met without undue hardship; and
(ii) ensures that the subpoenaed person will be reasonably
compensated.
(d) Duties in responding to a subpoena.
(1) Producing documents or electronically stored information. These
procedures apply to producing documents or electronically stored
information:
(A) Documents. A person responding to a subpoena to produce
documents must produce them as they are kept in the ordinary course of
business or must organize and label them to correspond to the
categories in the demand.
(B) Form for producing electronically stored information not
specified. If a subpoena does not specify a form for producing
electronically stored information, the person responding must produce
it in a form or forms in which it is ordinarily maintained or in a
reasonably usable form or forms.
(C) Electronically stored information produced in only one form.
The person responding need not produce the same electronically stored
information in more than one form.
(D) Inaccessible electronically stored information. The person
responding need not provide discovery of electronically stored
information from sources that the person identifies as not reasonably
accessible because of undue burden or cost. On motion to compel
discovery or for a protective order, the person responding must show
that the information is not reasonably accessible because of undue
burden or cost. If that showing is made, the judge may nonetheless
order discovery from such sources if the requesting party shows good
cause, considering the limitations of Sec. 18.51(b)(4)(C). The judge
may specify conditions for the discovery.
(2) Claiming privilege or protection.
(A) Information withheld. A person withholding subpoenaed
information under a claim that it is privileged or subject to
protection as hearing-preparation material must:
(i) expressly make the claim; and
(ii) describe the nature of the withheld documents, communications,
or tangible things in a manner that, without revealing information
itself privileged or protected, will enable the parties to assess the
claim.
(B) Information produced. If information produced in response to a
subpoena is subject to a claim of privilege or of protection as
hearing-preparation material, the person making the claim may notify
any party that received the information of the claim and the basis for
it. After being notified, a party must promptly return, sequester, or
destroy the specified information and any copies it has; must not use
or disclose the information until the claim is resolved; must take
reasonable steps to retrieve the information if the party disclosed it
before being notified; and may promptly present the information to the
judge in camera for a determination of the claim. The person who
produced the information must preserve the information until the claim
is resolved.
(e) Failure to obey. When a person fails to obey a subpoena, the
party adversely affected by the failure may, when authorized by statute
or by law, apply to the appropriate district court to enforce the
subpoena.
Sec. 18.57 Failure to make disclosures or to cooperate in discovery;
sanctions.
(a) Motion for an order compelling disclosure or discovery.
(1) In general. On notice to other parties and all affected
persons, a party may move for an order compelling disclosure or
discovery. The motion must include a certification that the movant has
in good faith conferred or attempted to confer with the person or party
failing to make disclosure or discovery in an effort to obtain it
without the judge's action.
(2) Specific motions.
(A) To compel disclosure. If a party fails to make a disclosure
required by Sec. 18.50(c), any other party may move to compel
disclosure and for appropriate sanctions.
(B) To compel a discovery response. A party seeking discovery may
move for an order compelling an answer, designation, production, or
inspection. This motion may be made if:
(i) a deponent fails to answer a question asked under Sec. Sec.
18.64 and 18.65;
(ii) a corporation or other entity fails to make a designation
under Sec. Sec. 18.64(d) and 18.65(a)(4);
(iii) a party fails to answer an interrogatory submitted under
Sec. 18.60; or
(iv) a party fails to respond that inspection will be permitted--or
fails to permit inspection--as requested under Sec. 18.61.
(C) Related to a deposition. When taking an oral deposition, the
party asking a question may complete or adjourn the examination before
moving for an order.
(3) Evasive or incomplete disclosure, answer, or response. For
purposes of paragraph (a) of this section, an evasive or incomplete
disclosure, answer, or response must be treated as a failure to
disclose, answer, or respond.
(b) Failure to comply with a judge's order.
(1) For not obeying a discovery order. If a party or a party's
officer, director, or managing agent--or a witness designated under
Sec. Sec. 18.64(b)(6) and 18.65(a)(4)--fails to obey an order to
provide or permit discovery, including an order under Sec. 18.50(b) or
paragraph (a) of this section, the judge may issue further just orders.
They may include the following:
(A) directing that the matters embraced in the order or other
designated facts be taken as established for purposes of the
proceeding, as the prevailing party claims;
(B) prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated matters
in evidence;
(C) striking claims or defenses in whole or in part;
(D) staying further proceedings until the order is obeyed;
(E) dismissing the proceeding in whole or in part; or
(F) rendering a default decision and order against the disobedient
party;
(2) For not producing a person for examination. If a party fails to
comply with an order under Sec. 18.62 requiring it to produce another
person for examination, the judge may issue any of the orders listed in
paragraph (b)(1) of this section, unless the disobedient party shows
that it cannot produce the other person.
(c) Failure to disclose, to supplement an earlier response, or to
admit. If a party fails to provide information or identify a witness as
required by Sec. Sec. 18.50(c) and 18.53, or if a party fails to admit
what is requested under Sec. 18.63(a) and the requesting party later
proves a document to be genuine or the matter true, the party is not
allowed to use that information or witness to supply evidence on a
motion or at a hearing, unless the failure was substantially justified
or is harmless. In addition to or instead of this sanction, the judge,
on motion and after giving an opportunity to be heard may impose other
appropriate sanctions, including any of the orders listed in paragraph
(b)(1) of this section.
(d) Party's failure to attend its own deposition, serve answers to
interrogatories, or respond to a request for inspection.
(1) In general.
(A) Motion; grounds for sanctions. The judge may, on motion, order
sanctions if:
(i) a party or a party's officer, director, or managing agent--or a
person designated under Sec. Sec. 18.64(b)(6) and 18.65(a)(4)--fails,
after being served with proper notice, to appear for that person's
deposition; or
[[Page 72187]]
(ii) a party, after being properly served with interrogatories
under Sec. 18.60 or a request for inspection under Sec. 18.61, fails
to serve its answers, objections, or written response.
(B) Certification. A motion for sanctions for failing to answer or
respond must include a certification that the movant has in good faith
conferred or attempted to confer with the party failing to act in an
effort to obtain the answer or response without the judge's action.
(2) Unacceptable excuse for failing to act. A failure described in
paragraph (d)(1)(A) of this section is not excused on the ground that
the discovery sought was objectionable, unless the party failing to act
has a pending motion for a protective order under Sec. 18.52(a).
(3) Types of sanctions. Sanctions may include any of the orders
listed in paragraph (b)(1) of this section.
(e) Failure to provide electronically stored information. Absent
exceptional circumstances, a judge may not impose sanctions under these
rules on a party for failing to provide electronically stored
information lost as a result of the routine, good-faith operation of an
electronic information system.
(f) Procedure. A judge may impose sanctions under this section
upon:
(1) a separately filed motion; or
(2) notice from the judge followed by a reasonable opportunity to
be heard.
Types of Discovery
Sec. 18.60 Interrogatories to parties.
(a) In general.
(1) Number. Unless otherwise stipulated or ordered by the judge, a
party may serve on any other party no more than 25 written
interrogatories, including all discrete subparts. Leave to serve
additional interrogatories may be granted to the extent consistent with
Sec. 18.51.
(2) Scope. An interrogatory may relate to any matter that may be
inquired into under Sec. 18.51. An interrogatory is not objectionable
merely because it asks for an opinion or contention that relates to
fact or the application of law to fact, but the judge may order that
the interrogatory need not be answered until designated discovery is
complete, or until a prehearing conference or some other time.
(b) Answers and objections.
(1) Responding party. The interrogatories must be answered:
(A) by the party to whom they are directed; or
(B) if that party is a public or private corporation, a
partnership, an association, or a governmental agency, by any officer
or agent, who must furnish the information available to the party.
(2) Time to respond. The responding party must serve its answers
and any objections within 30 days after being served with the
interrogatories. A shorter or longer time may be stipulated to under
Sec. 18.54 or be ordered by the judge.
(3) Answering each interrogatory. Each interrogatory must, to the
extent it is not objected to, be answered separately and fully in
writing under oath.
(4) Objections. The grounds for objecting to an interrogatory must
be stated with specificity. Any ground not stated in a timely objection
is waived unless the judge, for good cause, excuses the failure.
(5) Signature. The person who makes the answers must sign them, and
the attorney or non-attorney representative who objects must sign any
objections.
(c) Use. An answer to an interrogatory may be used to the extent
allowed by the applicable rules of evidence.
(d) Option to produce business records. If the answer to an
interrogatory may be determined by examining, auditing, compiling,
abstracting, or summarizing a party's business records (including
electronically stored information), and if the burden of deriving or
ascertaining the answer will be substantially the same for either
party, the responding party may answer by:
(1) specifying the records that must be reviewed, in sufficient
detail to enable the interrogating party to locate and identify them as
readily as the responding party could; and
(2) giving the interrogating party a reasonable opportunity to
examine and audit the records and to make copies, compilations,
abstracts, or summaries.
Sec. 18.61 Producing documents, electronically stored information,
and tangible things, or entering onto land, for inspection and other
purposes.
(a) In general. A party may serve on any other party a request
within the scope of Sec. 18.51:
(1) to produce and permit the requesting party or its
representative to inspect, copy, test, or sample the following items in
the responding party's possession, custody, or control:
(A) any designated documents or electronically stored information--
including writings, drawings, graphs, charts, photographs, sound
recordings, images, and other data or data compilations--stored in any
medium from which information can be obtained either directly or, if
necessary, after translation by the responding party into a reasonably
usable form; or
(B) any designated tangible things; or
(2) to permit entry onto designated land or other property
possessed or controlled by the responding party, so that the requesting
party may inspect, measure, survey, photograph, test, or sample the
property or any designated object or operation on it.
(b) Procedure.
(1) Contents of the request. The request:
(A) must describe with reasonable particularity each item or
category of items to be inspected;
(B) must specify a reasonable time, place, and manner for the
inspection and for performing the related acts; and
(C) may specify the form or forms in which electronically stored
information is to be produced.
(2) Responses and objections.
(A) Time to respond. The party to whom the request is directed must
respond in writing within 30 days after being served. A shorter or
longer time may be stipulated to under Sec. 18.54 or be ordered by the
judge.
(B) Responding to each item. For each item or category, the
response must either state that inspection and related activities will
be permitted as requested or state an objection to the request,
including the reasons.
(C) Objections. An objection to part of a request must specify the
part and permit inspection of the rest.
(D) Responding to a request for production of electronically stored
information. The response may state an objection to a requested form
for producing electronically stored information. If the responding
party objects to a requested form--or if no form was specified in the
request--the party must state the form or forms it intends to use.
(E) Producing the documents or electronically stored information.
Unless otherwise stipulated or ordered by the judge, these procedures
apply to producing documents or electronically stored information:
(i) A party must produce documents as they are kept in the usual
course of business or must organize and label them to correspond to the
categories in the request;
(ii) If a request does not specify a form for producing
electronically stored information, a party must produce it in a form or
forms in which it is ordinarily maintained or in a reasonably usable
form or forms; and
(iii) A party need not produce the same electronically stored
information in more than one form.
(c) Nonparties. As provided in Sec. 18.56, a nonparty may be
compelled to produce documents and tangible things or to permit an
inspection.
[[Page 72188]]
Sec. 18.62 Physical and mental examinations.
(a) Examination by notice.
(1) In general. A party may serve upon another party whose mental
or physical condition is in controversy a notice to attend and submit
to an examination by a suitably licensed or certified examiner.
(2) Contents of the notice. The notice must specify:
(A) the legal basis for the examination;
(B) the time, place, manner, conditions, and scope of the
examination, as well as the person or persons who will perform it; and
(C) how the reasonable transportation expenses were calculated.
(3) Service of notice. Unless otherwise agreed by the parties, the
notice must be served no fewer than 14 days before the examination
date.
(4) Objection. The person to be examined must serve any objection
to the notice no later than 7 days after the notice is served. The
objection must be stated with particularity.
(b) Examination by motion.
Upon objection by the person to be examined the requesting party
may file a motion to compel a physical or mental examination. The
motion must include the elements required by paragraph (a)(2) of this
section.
(c) Examiner's report.
(1) Delivery of the report. The party who initiated the examination
must, deliver a complete copy of the examination report to the party
examined, together with like reports of all earlier examinations of the
same condition.
(2) Contents. The examiner's report must be in writing and must set
out in detail the examiner's findings, including diagnoses,
conclusions, and the results of any tests.
Sec. 18.63 Requests for admission.
(a) Scope and procedure.
(1) Scope. A party may serve on any other party a written request
to admit, for purposes of the pending action only, the truth of any
matters within the scope of Sec. 18.51 relating to:
(A) facts, the application of law to fact, or opinions about
either; and
(B) the genuineness of any described documents.
(2) Form; copy of a document. Each matter must be separately
stated. A request to admit the genuineness of a document must be
accompanied by a copy of the document unless it is, or has been,
otherwise furnished or made available for inspection and copying.
(3) Time to respond; effect of not responding. A matter is admitted
unless, within 30 days after being served, the party to whom the
request is directed serves on the requesting party a written answer or
objection addressed to the matter and signed by the party or its
attorney. A shorter or longer time for responding may be stipulated to
under Sec. 18.54 or be ordered by the judge.
(4) Answer. If a matter is not admitted, the answer must
specifically deny it or state in detail why the answering party cannot
truthfully admit or deny it. A denial must fairly respond to the
substance of the matter; and when good faith requires that a party
qualify an answer or deny only a part of a matter, the answer must
specify the part admitted and qualify or deny the rest. The answering
party may assert lack of knowledge or information as a reason for
failing to admit or deny only if the party states that it has made
reasonable inquiry and that the information it knows or can readily
obtain is insufficient to enable it to admit or deny.
(5) Objections. The grounds for objecting to a request must be
stated. A party must not object solely on the ground that the request
presents a genuine issue for hearing.
(6) Motion regarding the sufficiency of an answer or objection. The
requesting party may move to determine the sufficiency of an answer or
objection. Unless the judge finds an objection justified, the judge
must order that an answer be served. On finding that an answer does not
comply with this section, the judge may order either that the matter is
admitted or that an amended answer be served. The judge may defer final
decision until a prehearing conference or a specified time before the
hearing.
(b) Effect of an admission; withdrawing or amending it. A matter
admitted under this section is conclusively established unless the
judge, on motion, permits the admission to be withdrawn or amended. The
judge may permit withdrawal or amendment if it would promote the
presentation of the merits of the action and if the judge is not
persuaded that it would prejudice the requesting party in maintaining
or defending the action on the merits. An admission under this section
is not an admission for any other purpose and cannot be used against
the party in any other proceeding.
Sec. 18.64 Depositions by oral examination.
(a) When a deposition may be taken.
(1) Without leave. A party may, by oral questions, depose any
person, including a party, without leave of the judge except as
provided in paragraph (a)(2) of this section. The deponent's attendance
may be compelled by subpoena under Sec. 18.56.
(2) With leave. A party must obtain leave of the judge, and the
judge must grant leave to the extent consistent with Sec. 18.51(b):
(A) if the parties have not stipulated to the deposition and:
(i) the deposition would result in more than 10 depositions being
taken under this section or Sec. 18.65 by one of the parties;
(ii) the deponent has already been deposed in the case; or
(iii) the party seeks to take the deposition before the time
specified in Sec. 18.50(a), unless the party certifies in the notice,
with supporting facts, that the deponent is expected to leave the
United States and be unavailable for examination in this country after
that time; or
(B) if the deponent is confined in prison.
(b) Notice of the deposition; other formal requirements.
(1) Notice in general. Except as stipulated or otherwise ordered by
the judge, a party who wants to depose a person by oral questions must
give reasonable written notice to every other party of no fewer than 14
days. The notice must state the time and place of the deposition and,
if known, the deponent's name and address. If the name is unknown, the
notice must provide a general description sufficient to identify the
person or the particular class or group to which the person belongs.
(2) Producing documents. If a subpoena duces tecum is to be served
on the deponent, the materials designated for production, as set out in
the subpoena, must be listed in the notice or in an attachment. If the
notice to a party deponent is accompanied by a request for production
under Sec. 18.61, the notice must comply with the requirements of
Sec. 18.61(b).
(3) Method of recording.
(A) Method stated in the notice. The party who notices the
deposition must state in the notice the method for recording the
testimony. Unless the judge orders otherwise, testimony may be recorded
by audio, audiovisual, or stenographic means. The noticing party bears
the recording costs. Any party may arrange to transcribe a deposition.
(B) Additional method. With prior notice to the deponent and other
parties, any party may designate another method for recording the
testimony in addition to that specified in the original notice. That
party bears the expense of the additional record or transcript unless
the judge orders otherwise.
[[Page 72189]]
(4) By remote means. The parties may stipulate--or the judge may on
motion order--that a deposition be taken by telephone or other remote
means. For the purpose of this section, the deposition takes place
where the deponent answers the questions.
(5) Officer's duties.
(A) Before the deposition. Unless the parties stipulate otherwise,
a deposition must be conducted before a person having power to
administer oaths. The officer must begin the deposition with an on-the-
record statement that includes:
(i) The officer's name and business address;
(ii) the date, time, and place of the deposition;
(iii) the deponent's name;
(iv) the officer's administration of the oath or affirmation to the
deponent;
(v) the identity of all persons present; and
(vi) the date and method of service of the notice of deposition.
(B) Conducting the deposition; avoiding distortion. If the
deposition is recorded nonstenographically, the officer must repeat the
items in paragraphs (b)(5)(A)(i)-(iii) of this section at the beginning
of each unit of the recording medium. The deponent's and attorneys'
appearance or demeanor must not be distorted through recording
techniques.
(C) After the deposition. At the end of a deposition, the officer
must state on the record that the deposition is complete and must set
out any stipulations made by the attorneys about custody of the
transcript or recording and of the exhibits, or about any other
pertinent matters.
(6) Notice or subpoena directed to an organization. In its notice
or subpoena, a party may name as the deponent a public or private
corporation, a partnership, an association, a governmental agency, or
other entity and must describe with reasonable particularity the
matters for examination. The named organization must then designate one
or more officers, directors, or managing agents, or designate other
persons who consent to testify on its behalf; and it may set out the
matters on which each person designated will testify. A subpoena must
advise a nonparty organization of its duty to make this designation.
The persons designated must testify about information known or
reasonably available to the organization. This paragraph (6) does not
preclude a deposition by any other procedure allowed by these rules.
(c) Examination and cross-examination; record of the examination;
objections; written questions.
(1) Examination and cross-examination. The examination and cross-
examination of a deponent proceed as they would at the hearing under
the applicable rules of evidence. After putting the deponent under oath
or affirmation, the officer must record the testimony by the method
designated under paragraph (b)(3)(A) of this section. The testimony
must be recorded by the officer personally or by a person acting in the
presence and under the direction of the officer.
(2) Objections. An objection at the time of the examination--
whether to evidence, to a party's conduct, to the officer's
qualifications, to the manner of taking the deposition, or to any other
aspect of the deposition--must be noted on the record, but the
examination still proceeds; the testimony is taken subject to any
objection. An objection must be stated concisely in a nonargumentative
and nonsuggestive manner. A person may instruct a deponent not to
answer only when necessary to preserve a privilege, to enforce a
limitation ordered by the judge, or to present a motion under paragraph
(d)(3) of this section.
(3) Participating through written questions. Instead of
participating in the oral examination, a party may serve written
questions in a sealed envelope on the party noticing the deposition,
who must deliver them to the officer. The officer must ask the deponent
those questions and record the answers verbatim.
(d) Duration; sanction; motion to terminate or limit.
(1) Duration. Unless otherwise stipulated or ordered by the judge,
a deposition is limited to 1 day of 7 hours. The judge must allow
additional time consistent with Sec. 18.51(b) if needed to fairly
examine the deponent or if the deponent, another person, or any other
circumstance impedes or delays the examination.
(2) Sanction. The judge may impose an appropriate sanction, in
accordance with Sec. 18.57, on a person who impedes, delays, or
frustrates the fair examination of the deponent.
(3) Motion to terminate or limit.
(A) Grounds. At any time during a deposition, the deponent or a
party may move to terminate or limit it on the ground that it is being
conducted in bad faith or in a manner that unreasonably annoys,
embarrasses, or oppresses the deponent or party. If the objecting
deponent or party so demands, the deposition must be suspended for the
time necessary to obtain an order.
(B) Order. The judge may order that the deposition be terminated or
may limit its scope and manner as provided in Sec. 18.52. If
terminated, the deposition may be resumed only by the judge's order.
(e) Review by the witness; changes.
(1) Review; statement of changes. On request by the deponent or a
party before the deposition is completed, the deponent must be allowed
30 days after being notified by the officer that the transcript or
recording is available in which:
(A) To review the transcript or recording; and
(B) if there are changes in form or substance, to sign a statement
listing the changes and the reasons for making them.
(2) Changes indicated in the officer's certificate. The officer
must note in the certificate prescribed by paragraph (f)(1) of this
section whether a review was requested and, if so, must attach any
changes the deponent makes during the 30-day period.
(f) Certification and delivery; exhibits; copies of the transcript
or recording; filing.
(1) Certification and delivery. The officer must certify in writing
that the witness was duly sworn and that the deposition accurately
records the witness's testimony. The certificate must accompany the
record of the deposition. Unless the judge orders otherwise, the
officer must seal the deposition in an envelope or package bearing the
title of the action and marked ``Deposition of [witness's name]'' and
must promptly send it to the party or the party's representative who
arranged for the transcript or recording. The party or the party's
representative must store it under conditions that will protect it
against loss, destruction, tampering, or deterioration.
(2) Documents and tangible things.
(A) Originals and copies. Documents and tangible things produced
for inspection during a deposition must, on a party's request, be
marked for identification and attached to the deposition. Any party may
inspect and copy them. But if the person who produced them wants to
keep the originals, the person may:
(i) Offer copies to be marked, attached to the deposition, and then
used as originals--after giving all parties a fair opportunity to
verify the copies by comparing them with the originals; or
(ii) give all parties a fair opportunity to inspect and copy the
originals after they are marked--in which event the originals may be
used as if attached to the deposition.
[[Page 72190]]
(B) Order regarding the originals. Any party may move for an order
that the originals be attached to the deposition pending final
disposition of the proceeding.
(3) Copies of the transcript or recording. Unless otherwise
stipulated or ordered by the judge, the officer must retain the
stenographic notes of a deposition taken stenographically or a copy of
the recording of a deposition taken by another method. When paid
reasonable charges, the officer must furnish a copy of the transcript
or recording to any party or the deponent.
(4) Notice of filing. A party who files the deposition must
promptly notify all other parties of the filing.
(g) Failure to attend a deposition or serve a subpoena. A judge may
order sanctions, in accordance with Sec. 18.57, if a party who,
expecting a deposition to be taken, attends in person or by an
attorney, and the noticing party failed to:
(1) Attend and proceed with the deposition; or
(2) serve a subpoena on a nonparty deponent, who consequently did
not attend.
Sec. 18.65 Depositions by written questions.
(a) When a deposition may be taken.
(1) Without leave. A party may, by written questions, depose any
person, including a party, without leave of the judge except as
provided in paragraph (a)(2) of this section. The deponent's attendance
may be compelled by subpoena under Sec. 18.56.
(2) With leave. A party must obtain leave of the judge, and the
judge must grant leave to the extent consistent with Sec. 18.51(b):
(A) If the parties have not stipulated to the deposition and:
(i) The deposition would result in more than 10 depositions being
taken under this section or Sec. 18.64 by a party;
(ii) the deponent has already been deposed in the case; or
(iii) the party seeks to take a deposition before the time
specified in Sec. 18.50(a); or
(B) if the deponent is confined in prison.
(3) Service; required notice. A party who wants to depose a person
by written questions must serve them on every other party, with a
notice stating, if known, the deponent's name and address. If the name
is unknown, the notice must provide a general description sufficient to
identify the person or the particular class or group to which the
person belongs. The notice must also state the name or descriptive
title and the address of the officer before whom the deposition will be
taken.
(4) Questions directed to an organization. A public or private
corporation, a partnership, an association, or a governmental agency
may be deposed by written questions in accordance with Sec.
18.64(b)(6).
(5) Questions from other parties. Any questions to the deponent
from other parties must be served on all parties as follows: Cross-
questions, within 14 days after being served with the notice and direct
questions; redirect questions, within 7 days after being served with
cross-questions; and recross-questions, within 7 days after being
served with redirect questions. The judge may, for good cause, extend
or shorten these times.
(b) Delivery to the officer; officer's duties. Unless a different
procedure is ordered by the judge, the party who noticed the deposition
must deliver to the officer a copy of all the questions served and of
the notice. The officer must promptly proceed in the manner provided in
Sec. 18.64(c), (e), and (f) to:
(1) Take the deponent's testimony in response to the questions;
(2) prepare and certify the deposition; and
(3) send it to the party, attaching a copy of the questions and of
the notice.
(c) Notice of completion or filing.
(1) Completion. The party who noticed the deposition must notify
all other parties when it is completed.
(2) Filing. A party who files the deposition must promptly notify
all other parties of the filing.
Disposition Without Hearing
Sec. 18.70 Motions for dispositive action.
(a) In general. When consistent with statute, regulation or
executive order, any party may move under Sec. 18.33 for disposition
of the pending proceeding. If the judge determines at any time that
subject matter jurisdiction is lacking, the judge must dismiss the
matter.
(b) Motion to remand. A party may move to remand the matter to the
referring agency. A remand order must include any terms or conditions
and should state the reason for the remand.
(c) Motion to dismiss. A party may move to dismiss part or all of
the matter for reasons recognized under controlling law, such as lack
of subject matter jurisdiction, failure to state a claim upon which
relief can be granted, or untimeliness. If the opposing party fails to
respond, the judge may consider the motion unopposed.
(d) Motion for decision on the record. When the parties agree that
an evidentiary hearing is not needed, they may move for a decision
based on stipulations of fact or a stipulated record.
Sec. 18.71 Approval of settlement or consent findings.
(a) Motion for approval of settlement agreement. When the
applicable statute or regulation requires it, the parties must submit a
settlement agreement for the judge's review and approval.
(b) Motion for consent findings and order. Parties may file a
motion to accept and adopt consent findings. Any agreement that
contains consent findings and an order that disposes of all or part of
a matter must include:
(1) a statement that the order has the same effect as one made
after a full hearing;
(2) a statement that the order is based on a record that consists
of the paper that began the proceeding (such as a complaint, order of
reference, or notice of administrative determination), as it may have
been amended, and the agreement;
(3) a waiver of any further procedural steps before the judge; and
(4) a waiver of any right to challenge or contest the validity of
the order entered into in accordance with the agreement.
Sec. 18.72 Summary decision.
(a) Motion for summary decision or partial summary decision. A
party may move for summary decision, identifying each claim or
defense--or the part of each claim or defense--on which summary
decision is sought. The judge shall grant summary decision if the
movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to decision as a matter of law. The judge
should state on the record the reasons for granting or denying the
motion.
(b) Time to file a motion. Unless the judge orders otherwise, a
party may file a motion for summary decision at any time until 30 days
before the date fixed for the formal hearing.
(c) Procedures.
(1) Supporting factual positions. A party asserting that a fact
cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers, or
other materials; or
(B) showing that the materials cited do not establish the absence
or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.
(2) Objection that a fact is not supported by admissible evidence.
A
[[Page 72191]]
party may object that the material cited to support or dispute a fact
cannot be presented in a form that would be admissible in evidence.
(3) Materials not cited. The judge need consider only the cited
materials, but the judge may consider other materials in the record.
(4) Affidavits or declarations. An affidavit or declaration used to
support or oppose a motion must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the affiant
or declarant is competent to testify on the matters stated.
(d) When facts are unavailable to the nonmovant. If a nonmovant
shows by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition, the judge
may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take
discovery; or
(3) issue any other appropriate order.
(e) Failing to properly support or address a fact. If a party fails
to properly support an assertion of fact or fails to properly address
another party's assertion of fact as required by paragraph (c) of this
section, the judge may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary decision if the motion and supporting materials--
including the facts considered undisputed--show that the movant is
entitled to it; or
(4) issue any other appropriate order.
(f) Decision independent of the motion. After giving notice and a
reasonable time to respond, the judge may:
(1) grant summary decision for a nonmovant;
(2) grant the motion on grounds not raised by a party; or
(3) consider summary decision on the judge's own after identifying
for the parties material facts that may not be genuinely in dispute.
(g) Failing to grant all the requested relief. If the judge does
not grant all the relief requested by the motion, the judge may enter
an order stating any material fact--including an item of damages or
other relief--that is not genuinely in dispute and treating the fact as
established in the case.
(h) Affidavit or declaration submitted in bad faith. If satisfied
that an affidavit or declaration under this section is submitted in bad
faith or solely for delay, the judge--after notice and a reasonable
time to respond--may order sanctions or other relief as authorized by
law.
Hearing
Sec. 18.80 Prehearing statement.
(a) Time for filing. Unless the judge orders otherwise, at least 21
days before the hearing, each participating party must file a
prehearing statement.
(b) Required conference. Before filing a prehearing statement, the
party must confer with all other parties in good faith to:
(1) stipulate to the facts to the fullest extent possible; and
(2) revise exhibit lists, eliminate duplicative exhibits, prepare
joint exhibits, and attempt to resolve any objections to exhibits.
(c) Contents. Unless ordered otherwise, the prehearing statement
must state:
(1) the party's name;
(2) the issues of law to be determined with reference to the
appropriate statute, regulation, or case law;
(3) a precise statement of the relief sought;
(4) the stipulated facts that require no proof;
(5) the facts disputed by the parties;
(6) a list of witnesses the party expects to call;
(7) a list of the joint exhibits;
(8) a list of the party's exhibits;
(9) an estimate of the time required for the party to present its
case-in-chief; and
(10) any additional information that may aid the parties'
preparation for the hearing or the disposition of the proceeding, such
as the need for specialized equipment at the hearing.
(d) Joint prehearing statement. The judge may require the parties
to file a joint prehearing statement rather than individual prehearing
statements.
(e) Signature. The prehearing statement must be in writing and
signed. By signing, an attorney, representative, or party makes the
certifications described in Sec. 18.50(d).
Sec. 18.81 Formal hearing.
(a) Public. Hearings are open to the public. But, when authorized
by law and only to the minimum extent necessary, the judge may order a
hearing or any part of a hearing closed to the public, including
anticipated witnesses. The order closing all or part of the hearing
must state findings and explain why the reasons for closure outweigh
the presumption of public access. The order and any objection must be
part of the record.
(b) Taking testimony. Unless a closure order is issued under
paragraph (a) of this section, the witnesses' testimony must be taken
in an open hearing. For good cause and with appropriate safeguards, the
judge may permit testimony in an open hearing by contemporaneous
transmission from a different location.
(c) Party participation. For good cause and with appropriate
safeguards, the judge may permit a party to participate in an open
hearing by contemporaneous transmission from a different location.
Sec. 18.82 Exhibits.
(a) Identification. All exhibits offered in evidence must be marked
with a designation identifying the party offering the exhibit and must
be numbered and paginated as the judge orders.
(b) Electronic data. By order the judge may prescribe the format
for the submission of data that is in electronic form.
(c) Exchange of exhibits. When written exhibits are offered in
evidence, one copy must be furnished to the judge and to each of the
parties at the hearing, unless copies were previously furnished with
the list of proposed exhibits or the judge directs otherwise. If the
judge does not fix a date for the exchange of exhibits, the parties
must exchange copies of exhibits at the earliest practicable time
before the hearing begins.
(d) Authenticity. The authenticity of a document identified in a
pre-hearing exhibit list is admitted unless a party files a written
objection to authenticity at least 7 days before the hearing. The judge
may permit a party to challenge a document's authenticity if the party
establishes good cause for its failure to file a timely written
objection.
(e) Substitution of copies for original exhibits. The judge may
permit a party to withdraw original documents offered in evidence and
substitute accurate copies of the originals.
(f) Designation of parts of documents. When only a portion of a
document contains relevant matter, the offering party must exclude the
irrelevant parts to the greatest extent practicable.
(g) Records in other proceedings. Portions of the record of other
administrative proceedings, civil actions or criminal prosecutions may
be received in evidence, when the offering party shows the copies are
accurate.
Sec. 18.83 Stipulations.
(a) The parties may stipulate to any facts in writing at any stage
of the proceeding or orally on the record at a deposition or at a
hearing. These stipulations bind the parties unless the judge
disapproves them.
[[Page 72192]]
(b) Every stipulation that requests or requires a judge's action
must be written and signed by all affected parties or their
representatives. Any stipulation to extend time must state the reason
for the date change.
(c) A proposed form of order may be submitted with the stipulation;
it may consist of an endorsement on the stipulation of the words,
``Pursuant to stipulation, it is so ordered,'' with spaces designated
for the date and the signature of the judge.
Sec. 18.84 Official notice.
On motion of a party or on the judge's own, official notice may be
taken of any adjudicative fact or other matter subject to judicial
notice. The parties must be given an adequate opportunity to show the
contrary of the matter noticed.
Sec. 18.85 Privileged, sensitive, or classified material.
(a) Exclusion. On motion of any interested person or the judge's
own, the judge may limit the introduction of material into the record
or issue orders to protect against undue disclosure of privileged
communications, or sensitive or classified matters. The judge may admit
into the record a summary or extract that omits the privileged,
sensitive or classified material.
(b) Sealing the record.
(1) On motion of any interested person or the judge's own, the
judge may order any material that is in the record to be sealed from
public access. The motion must propose the fewest redactions possible
that will protect the interest offered as the basis for the motion. A
redacted copy or summary of any material sealed must be made part of
the public record unless the necessary redactions would be so extensive
that the public version would be meaningless, or making even a redacted
version or summary available would defeat the reason the original is
sealed.
(2) An order that seals material must state findings and explain
why the reasons to seal adjudicatory records outweigh the presumption
of public access. Sealed materials must be placed in a clearly marked,
separate part of the record. Notwithstanding the judge's order, all
parts of the record remain subject to statutes and regulations
pertaining to public access to agency records.
Sec. 18.86 Hearing room conduct.
Participants must conduct themselves in an orderly manner. The
consumption of food or beverage, and rearranging courtroom furniture
are prohibited, unless specifically authorized by the judge. Electronic
devices must be silenced and must not disrupt the proceedings. Parties,
witnesses and spectators are prohibited from using video or audio
recording devices to record hearings.
Sec. 18.87 Standards of conduct.
(a) In general. All persons appearing in proceedings must act with
integrity and in an ethical manner.
(b) Exclusion for misconduct. During the course of a proceeding,
the judge may exclude any person--including a party or a party's
attorney or non-attorney representative--for contumacious conduct such
as refusal to comply with directions, continued use of dilatory
tactics, refusal to adhere to reasonable standards of orderly or
ethical conduct, failure to act in good faith, or violation of the
prohibition against ex parte communications. The judge must state the
basis for the exclusion.
(c) Review of representative's exclusion. Any representative
excluded from a proceeding may appeal to the Chief Judge for
reinstatement within 7 days of the exclusion. The exclusion order is
reviewed for abuse of discretion. The proceeding from which the
representative was excluded will not be delayed or suspended pending
review by the Chief Judge, except for a reasonable delay to enable the
party to obtain another representative.
Sec. 18.88 Transcript of proceedings.
(a) Hearing transcript. All hearings must be recorded and
transcribed. The parties and the public may obtain copies of the
transcript from the official reporter at rates not to exceed the
applicable rates fixed by the contract with the reporter.
(b) Corrections to the transcript. A party may file a motion to
correct the official transcript. Motions for correction must be filed
within 14 days of the receipt of the transcript unless the judge
permits additional time. The judge may grant the motion in whole or
part if the corrections involve substantive errors. At any time before
issuing a decision and upon notice to the parties, the judge may
correct errors in the transcript.
Post Hearing
Sec. 18.90 Closing the record; subsequent motions.
(a) In general. The record of a hearing closes when the hearing
concludes, unless the judge directs otherwise. If any party waives a
hearing, the record closes on the date the judge sets for the filing of
the parties' submissions.
(b) Motion to reopen the record.
(1) A motion to reopen the record must be made promptly after the
additional evidence is discovered. No additional evidence may be
admitted unless the offering party shows that new and material evidence
has become available that could not have been discovered with
reasonable diligence before the record closed. Each new item must be
designated as an exhibit under Sec. 18.82(a) and accompanied by proof
that copies have been served on all parties.
(2) If the record is reopened, the other parties must have an
opportunity to offer responsive evidence, and a new evidentiary hearing
may be set.
(c) Motions after the decision. After the decision and order is
issued, the judge retains jurisdiction to dispose of appropriate
motions, such as a motion to award attorney's fees and expenses, a
motion to correct the transcript, or a motion for reconsideration.
Sec. 18.91 Post-hearing brief.
The judge may grant a party time to file a post-hearing brief with
proposed findings of fact, conclusions of law, and the specific relief
sought. The brief must refer to all portions of the record and
authorities relied upon in support of each assertion.
Sec. 18.92 Decision and order.
At the conclusion of the proceeding, the judge must issue a written
decision and order.
Sec. 18.93 Motion for reconsideration.
A motion for reconsideration of a decision and order must be filed
no later than 10 days after service of the decision on the moving
party.
Sec. 18.94 Indicative ruling on a motion for relief that is barred by
a pending petition for review.
(a) Relief pending review. If a timely motion is made for relief
that the judge lacks authority to grant because a petition for review
has been docketed and is pending, the judge may:
(1) defer considering the motion;
(2) deny the motion; or
(3) state either that the judge would grant the motion if the
reviewing body remands for that purpose or that the motion raises a
substantial issue.
(b) Notice to reviewing body. The movant must promptly notify the
clerk of the reviewing body if the judge states that he or she would
grant the motion or that the motion raises a substantial issue.
(c) Remand. The judge may decide the motion if the reviewing body
remands for that purpose.
[[Page 72193]]
Sec. 18.95 Review of decision.
The statute or regulation that conferred hearing jurisdiction
provides the procedure for review of a judge's decision. If the statute
or regulation does not provide a procedure, the judge's decision
becomes the Secretary's final administrative decision.
[FR Doc. 2012-28516 Filed 12-3-12; 8:45 am]
BILLING CODE 4510-20-P