Federal Register, Volume 80 Issue 96 (Tuesday, May 19, 2015)

[Federal Register Volume 80, Number 96 (Tuesday, May 19, 2015)]
[Rules and Regulations]
[Pages 28767-28802]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-11586]



[[Page 28767]]

Vol. 80

Tuesday,

No. 96

May 19, 2015

Part II





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 Administrative Hearings Before the
Office of Administrative Law Judges; Final Rule

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

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DEPARTMENT OF LABOR

Office of the Secretary

29 CFR Part 18

RIN 1290-AA26


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

AGENCY: Office of the Secretary, Labor.

ACTION: Final rule.

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SUMMARY: This is the final text of regulations governing practice and
procedure for proceedings before the United States Department of Labor,
Office of Administrative Law Judges (OALJ). The regulations were first
published as a final rule in 1983 and were modeled on the Federal Rules
of Civil Procedure (FRCP). A Notice of Proposed Rulemaking was
published in the Federal Register on December 4, 2012 requesting public
comment on proposed revisions to and reorganization of these
regulations. The revisions make the regulations more accessible and
useful to parties. The revisions also harmonize administrative hearing
procedures with the current FRCP and with the types of claims now heard
by OALJ, which increasingly involve whistleblower and other workplace
retaliation claims, in addition to a longstanding caseload of
occupational disease and injury claims. The Department received sixteen
comments to the proposed rule. This rule responds to those comments and
establishes the final text of the revised regulations.

DATES:
Effective Date: This rule is effective June 18, 2015.
Compliance Date: This rule is effective June 18, 2015.

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

SUPPLEMENTARY INFORMATION:

I. Background

On December 4, 2012, the Department published a Notice of Proposed
Rulemaking (NPRM) with a request for comments amending 29 CFR part 18,
subpart A. Rules of Practice and Procedure for Hearings Before the
Office of Administrative Law Judge, 77 FR 72142 (Dec. 4, 2012). The
Department proposed to amend comprehensively its procedural rules to
reflect the changes to civil litigation since the OALJ promulgated its
rules in 1983. Moreover, the need to update the OALJ's procedural rules
was evident as the OALJ's authority to hear whistleblower cases
increased. The new procedural rules are analogous to the FRCP used in
the United States district courts and are intended to provide more
guidance and clarity to parties practicing before the OALJ.
The Department provided an opportunity for the public to comment
even though the changes are to rules of agency organization, procedure
and practice, which are exempt from the notice and public comment
requirements of the Administrative Procedure Act (APA). See 5 U.S.C.
553(b)(3)(A). The comment period ended on February 4, 2013. The
Department reviewed and responded to each pertinent comment submitted.
See infra Part 3. Accordingly, the NPRM amending 29 CFR part 18,
subpart A, that was published on December 4, 2012, is being adopted as
a final rule with the changes made below.
The Department has found that a handful of departmental specific
program regulations reference these rules, and that these references
may now be inaccurate due to shifts in numbering. The Department plans
to correct these references in the near future through technical
corrections, which will be published in the Federal Register.

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

The Department received several general comments regarding the
proposed changes to the OALJ rules of practice and procedure. Each
comment is addressed as follows:
Compliance with the APA. The Department stated in the NPRM that
while the proposed changes consist of amendments to rules of agency
organization, procedure and practice that are exempt from the notice
and public comment requirements of the APA, the Department wished to
provide the public with an opportunity to comment on any aspect of the
proposed rule. Accordingly, the proposed changes were published in the
Federal Register, and public comment was invited. Two commenters
challenged the Department's reference to the APA's procedural rules
exception and claimed that the Department thus misinformed the public
and chilled the pool of public comment on the proposed rule changes.
These commenters asserted that the public harm resulting from this
alleged error could only be remedied by withdrawing the proposed rules
and reissuing them in conformity with the full notice and comment
protections of the APA. One commenter argued that because the rules
contain provisions for sanctions, they ``substantially alter the rights
and interests of parties'' which triggers the APA's requirements for
public notice and comment. This comment principally relied on the
vacated decision of the Court of Appeals for the District of Columbia
in Air Transp. ***'n of Am. v. Dep't of Transp., 900 F.2d 369 (1990),
cert. granted, 498 U.S. 1023 (1991), vacated, 933 F.2d 1043 (1991). The
other commenter stated that the OALJ rules of practice and procedure
constitute agency rules with the ``force and effect of law'' that must
be published for public comment in accordance with the Supreme Court's
decisions in United States v. Mead Corp., 533 U.S. 218 (2001), and
Christensen v. Harris Cnty., 529 U.S. 576 (2000).
The Department disagrees with these claims. In decisions issued
subsequent to its vacated ruling in Air Transp. ***'n of Am., the D.C.
Circuit has stressed that the `` `critical feature' '' of a rule that
satisfies the so-called ``procedural exception `is that it covers
agency actions that do not themselves alter the rights or interests of
parties, although it may alter the manner in which the parties present
themselves or their viewpoints to the agency.' '' James V. Hurson
Assoc., Inc. v. Glickman, 229 F.3d 277, 280 (2000) (quoting JEM Broad
Co. v. FCC, 22 F.3d 320, 326 (D.C. Cir. 1994)). The Court further held
in Hurson that ``an otherwise procedural rule does not become a
substantive one, for notice and comment purposes, simply because it
imposes a burden on regulated parties.'' Id. at 281. As nothing in the
new rules alters the ``substantive criteria'' by which claims and
complaints are adjudicated in the hearing before the OALJ, they are
within the procedural rules exemption. See id. at 280-81; JEM Broad
Co., 22 F.3d at 237; Nat'l Whistleblower Ctr. v. Nuclear Regulatory
Comm'n, 208 F.3d 256, 262 (D.C. Cir. 2000), cert. denied, 531 U.S. 1070
(2001). The Supreme Court's decisions in Mead Corp. and Christensen
cited by the other commenter respectively address whether a U.S.
Customs Service classification ruling and Department of Labor opinion
letter, neither of which were issued after APA notice and comment
rulemaking, are entitled to deference under Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). These decisions
do not address the scope of the APA's procedural rules exception.
The Department moreover voluntarily published the rule changes in

[[Page 28769]]

accordance with the notice and comment requirements of the APA
consistent with the procedure recommended by the Administrative
Conference of the United States to avoid controversy over the scope of
the APA's notice and comment exceptions. See The Procedural and
Practice Rule Exemption from the APA Notice-and-Comment Rulemaking
Requirements, 1 CFR 305.92-1 (1995) (ACUS Recommendation 92-1,
available at www.acus.gov/sites/default/files/documents/92-1/pdf). The
commenters provided no evidence to support their claim that the
Department's voluntary compliance with the APA's notice and comment
requirements in accordance with the ACUS recommendation in any manner
chilled or otherwise influenced public comment. They also cited no
legal authority for their position that the Department's mere reference
to the procedural rules exception vitiated the NPRM. The Department's
receipt of multiple comments indicates that the public was neither
``chilled'' nor deterred from submitting items for consideration. Thus,
there is no basis for withdrawing and reissuing the rules changes.
Conflicts with the LHWCA and BLBA. Two commenters argued that
several provisions in the new rules providing for imposition of
sanctions conflict with provisions of the Longshore and Harbor Workers'
Compensation Act (LHWCA), 33 U.S.C. 901-950, which are also applicable
to claims adjudicated under the Black Lung Benefits Act (BLBA), 30
U.S.C. 901-945, and therefore those provisions should either be deleted
or rewritten to specifically state that they are not applicable to
proceedings under the LHWCA and BLBA. The commenters identified
sections 926, 927(b) and 931 of the LHWCA, 33 U.S.C. 926, 927(b), 931,
as conflicting with the new rules containing sanction provisions. One
commenter also suggested that some of the new rules may contravene
section 923(a) of the LHWCA, 33 U.S.C. 923(a). The Department believes
however that any conflicts between the rules and the LHWCA and, for
that matter, any other statute governing administrative hearing
proceedings before the OALJ, are already addressed appropriately in the
rules and do not warrant either wholesale rescission or rewriting. The
Department also believes that the commenters overstated the alleged
conflicts between the new rules and the LHWCA.
Section 923(a) of the LHWCA provides that officials conducting
hearings ``shall not be bound by common law or statutory rules of
evidence or by technical or formal rules of procedure, except as
provided by this chapter; but may make such investigation or inquiry or
conduct such hearing in such manner as to best ascertain the rights of
the parties.'' 33 U.S.C. 923(a). See also 20 CFR 702.339, 725.455(b).
The Benefits Review Board (BRB) and courts of appeals have nevertheless
applied provisions of the OALJ Rules of Practice and Procedure,
particularly in regard to discovery issues, in proceedings governed by
section 923(a) of the LHWCA in the absence of any conflict with a
particular LHWCA or BLBA rule. See, e.g., Johnson v. Royal Coal Co.,
326 F.3d 421, 426 (4th Cir. 2003); Keener v. Peerless Eagle Coal Co.,
23 Black Lung Rep. (Juris) 1-229, 1-243 (Ben. Rev. Bd. 2007) (en banc);
Cline v. Westmoreland Coal Co., 21 Black Lung Rep. (Juris) 1-69, 1-76
(Ben. Rev. Bd. 1997); see also Prince v. Island Creek Coal Co., BRB No.
01-0448 BLA, 2002 WL 34707263 (Ben. Rev. Bd. Jan. 24, 2002) (reading 29
CFR 18.14 and 20 CFR 725.455 as complementary rules providing the ALJ
with broad discretion to direct discovery), aff'd, 76 Fed.Appx. 67,
2003 WL 22176988 (6th Cir. Sept. 19, 2003). It would be inappropriate
and contrary to well-established precedent to add a textual exception
to all of the proposed disclosure and discovery rules for LHWCA and
BLBA cases. Moreover, Sec. 18.10(a) provides that ``[t]o the extent
that these rules may be inconsistent with a governing statute,
regulation, or executive order, the latter controls.'' 29 CFR 18.10(a).
Section 926 of the LHWCA provides that ``[i]f the court having
jurisdiction of proceedings in respect of any claim or compensation
order determines that the proceedings in respect of such claim or order
have been instituted or continued without reasonable ground, the costs
of such proceedings shall be assessed against the party who has so
instituted or continued such proceedings.'' 33 U.S.C. 926. Congress
intended claimants to be subject to costs ``if they brought their
unreasonable claims into court'' when it enacted section 926. Metro.
Stevedore Co. v. Brickner, 11 F.3d 887, 890 (9th Cir. 1993). The
Department recognizes that federal courts have the exclusive power to
impose section 926 sanctions when a party brings a frivolous claim
under the LHWCA. Id. at 890-91; see also Boland Marine & Mfg. Co. v.
Rihner, 41 F.3d 997, 1004 (5th Cir. 1995). However, to the extent that
any of the new rules conflict with section 926, the latter controls.
See 29 CFR 18.10(a). There is therefore no conflict between section 926
and any of the new rules.
Section 927(b) in relevant part provides that if any person in a
LHWCA proceeding ``disobeys or resists any lawful order or process, or
misbehaves during a hearing or so near the place thereof as to obstruct
the same, or neglects to produce, after having been ordered to do so,
any pertinent book, paper, or document, or refuses to appear after
having been subpoenaed, or upon appearing refuses to take the oath as a
witness, or after having taken the oath refuses to be examined
according to law,'' the adjudicatory official ``shall certify the facts
to the district court having jurisdiction in the place in which he is
sitting (or to the United States District Court for the District of
Columbia'' for summary contempt proceedings). 33 U.S.C. 927(b). The
Department agrees with the commenters that section 927(b) provides the
district courts with the exclusive power to punish contumacious conduct
consisting of a refusal to comply with a judge's order, lawful process
or subpoena, or hearing room misbehavior in proceedings under the
LHWCA. See Goicochea v. Wards Cove Packing Co., 37 Ben. Rev. Bd. Serv.
(MB) 4, 6 (2003) (vacating dismissal of claim as sanction for
claimant's refusal to comply with a judge's discovery order). To the
extent that any of the new rules conflict with section 927(b), the
latter controls. See 29 CFR 18.10(a). However, there are several
situations addressed by the new rules involving conduct that likely
would fall outside the categories of contumacy requiring certification
to a district court for a section 927(b) summary contempt proceeding.
See A-Z Intn'l v. Phillips, 323 F.3d 1141, 1146-47 (9th Cir. 2003)
(holding that the district court lacked section 927(b) jurisdiction
over conduct that did not involve a refusal ``to comply with a summons,
writ, warrant, or mandate issued by the ALJ''). See, e.g., 29 CFR
18.35(c) (sanctions for violations of Sec. 18.35(b) relating to the
representations made when presenting a motion or other paper to the
judge), 18.50(d)(3) (sanctions for violations of Sec. 18.50(d)(1)
pertaining to certifications made when signing disclosures and
discovery requests, responses and objections), 18.56(d)(1) (sanctions
for violations of the duty under Sec. 18.56(c)(1) to protect a person
subject to a subpoena from undue burden), 18.57(c) (sanctions for
failures to disclose information, supplement an earlier response or to
admit as required by Sec. Sec. 18.50(c), 18.53 and 18.63(a)), 18.57(d)
(sanctions for a party's failure to attend its own deposition, serve

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answers to interrogatories, or respond to a request for inspection),
18.64(d)(2) (sanctions for impeding, delaying or frustrating a
deposition), 18.64(g) (sanctions for failing to attend or proceed with
a deposition or serve a subpoena on a non-party deponent when another
party, expecting the deposition to be taken, attends), 18.72(h)
(sanctions for submitting in bad faith an affidavit or declaration in
support of or in opposition to a motion for summary decision). To the
extent these provisions address violations of the procedural rules
falling outside the scope of section 927(b), there is no conflict with
the statute.
The Department also rejects the commenters' argument that section
927(b) provides the exclusive remedy for any misconduct or rules
violation occurring in LHWCA and BLBA proceedings. Section 927(b), 44
Stat. 1438 (Mar. 4, 1927) (codified as amended at 33 U.S.C. 927), was
originally enacted in 1927, decades before the passage of the APA which
also governs adjudications under the LHWCA and the BLBA. 33 U.S.C.
919(d); 30 U.S.C. 932(a); Dir., OWCP, Dep't of Labor v. Greenwich
Collieries, 512 U.S. 267, 280-81 (1994); see also Lane v. Hollow Coal
Co. v. Dir., OWCP, Dep't of Labor, 137 F.3d 799, 802-03 (4th Cir. 1998)
(requiring ALJ's decision to contain findings and conclusions, in
accordance with 5 U.S.C. 557(c)(3)(A)); Cole v. East Kentucky
Collieries, 20 Black Lung Rep. (Juris) 1-50, 1-54 (Ben. Rev. Bd. 1996)
(discussing statutory mechanism whereby APA applies to BLBA claims);
Toyer v. Bethlehem Steel Corp., 28 Ben. Rev. Bd. Serv. (MB) 347, 351
(1994) (emphasizing APA applicability in all LHWCA adjudications).
Notably, the APA's grant of authority to ``regulate the course of the
hearing,'' 5 U.S.C. 556(c)(5), provides a judge with an independent
basis to take such actions as are necessary to ensure parties a fair
and impartial adjudication. Such authority includes the power to compel
discovery and impose sanctions for non-compliance pursuant to the OALJ
rules of practice and procedure. See Williams v. Consolidation Coal
Co., BRB No. 04-0756 BLA, 2005 WL 6748152, at *8 (Ben. Rev. Bd. Aug. 8,
2005), appeal denied, 453 F.3d 609 (4th Cir. 2006), cert. denied, 549
U.S. 1278 (2007). The bifurcation of general adjudicatory authority and
contempt powers between administrative law judges and the district
courts under the LHWCA is analogous to adjudication in the federal
courts after passage of the Federal Magistrates Act, 28 U.S.C. 604,
631-39, under which magistrate judges have general authority to order
non-dispositive discovery sanctions while contempt charges must be
referred to a district court judge. See Grimes v. City and County of
San Francisco, 951 F. 2d 236, 240-41 (9th Cir. 1991) (discussing the
scope and limits of magistrate judges' sanction authority); see also
Dodd v. Crown Cent. Petroleum Corp., 36 Ben. Rev. Bd. Serv. (MB) 85, 89
n.6 (2002) (affirming, as not inconsistent with section 927(b), judge's
imposition of sanctions pursuant to 29 CFR 18.6(d)(2) for claimant's
noncompliance with a discovery order). The Department therefore
believes that the commenters' proposal to exempt LHWCA and BLBA
proceedings from the judge's authority under the APA to regulate the
course of the hearing is neither warranted by the statute nor
consistent with the efficient and impartial conduct of administrative
hearings.
Section 931(a)(1) of the LHWCA provides that ``[a]ny claimant or
representative of a claimant who knowingly and willfully makes a false
statement or representation for the purpose of obtaining a benefit or
payment under this chapter shall be guilty of a felony, and on
conviction thereof shall be punished by a fine not to exceed $10,000,
by imprisonment not to exceed five years, or by both.'' 33 U.S.C.
931(a)(1). Section 931(c) similarly provides that ``[a] person
including, but not limited to, an employer, his duly authorized agent,
or an employee of an insurance carrier who knowingly and willfully
makes a false statement or representation for the purpose of reducing,
denying, or terminating benefits to an injured employee, or his
dependents pursuant to section 909 of this title if the injury results
in death, shall be punished by a fine not to exceed $10,000, by
imprisonment not to exceed five years, or by both.'' 33 U.S.C. 931(c).
As there is no provision in the new rules that authorizes a judge to
impose a fine or other penalty for a knowing and willfully false
statement or representation for the purpose of obtaining or opposing a
benefit under the LHWCA, there is no conflict between section 931 and
any of the new rules.
Authority to Regulate the Conduct of Administrative Proceedings;
Sanctions. The Department announced in the NPRM that it intended to
bring the OALJ rules of practice and procedure into closer alignment
with the FRCP. Doing so takes advantage of the mature precedent the
federal courts have developed and the broad experience they have in
applying the FRCP. Choosing which portions to adopt and which to omit
allows for flexible case management, given the less formal nature of
administrative proceedings, which never involve juries. These changes
offer greater clarity and uniformity so parties can focus on the merits
of their disputes with less distraction from litigating points of
procedure. To attain these objectives, the new rules contain a number
of provisions, similar to their FRCP counterparts, which authorize
judges to take actions necessary to regulate and ensure the integrity
of the hearing process. See 29 CFR 18.12(b)(10), 18.35(c), 18.50(d)(3),
18.56(c)(1), 18.57(a)(2)(A), 18.57(b), 18.57(c), 18.57(d)(1),
18.57(d)(3), 18.57(e), 18.57(f), 18.64(d)(2), 18.64(g), 18.72(h),
18.87. Two commenters asserted that these litigation sanction
provisions exceed a judge's authority under the APA, and attempt to
arrogate contempt power and claim ``inherent judicial authority'' that
is vested exclusively in the Article III courts. The Department
believes these assertions misunderstand the challenged rules and their
intent.
The prior rules authorized judges to sanction a broad range of
inappropriate conduct during the course of an administrative
proceeding. A judge could overrule an objection to a discovery request
(such as request for admission or an interrogatory) and compel a
response. 29 CFR 18.6(d)(1). If that objecting party thereafter failed
to answer or answered evasively, the judge could order that a matter be
treated as admitted. Id. If a party failed to comply with a subpoena,
discovery order or any other order, the judge could take other just
actions, including (i) drawing adverse inferences; (ii) ruling that the
matter concerning which the subpoena or order was issued be taken as
established adversely to a non-complying party; (iii) excluding
evidence a non-complying party offered; (iv) ruling that a non-
complying party could not object to the use of secondary evidence to
establish what evidence it withheld should have shown; or (v) ruling
that all or part of a pleading be stricken, or that a decision be
rendered against the non-complying party. 29 CFR 18.6(d)(2). The prior
rules also recognized that judges have ``all powers necessary to the
conduct of fair and impartial hearings including, but not limited to .
. . [w]here applicable, take any appropriate action authorized by the
Rules of Civil Procedure for the United States District Courts, issued
from time to time and amended pursuant to 28 U.S.C. 2072. . . .'' 29
CFR 18.29(a)(8). The new rules preserve

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this longstanding authority to impose appropriate litigation sanctions,
see 29 CFR 18.12(b)(10), 18.57(b), and additional provisions for
sanctions were made as discussed above in Sec. Sec. 18.35(c),
18.50(d)(3), 18.56(c)(1), 18.57(c), 18.57(d), 18.64(d)(2), 18.64(g),
18.72(h). The new rules provide greater clarity and direction on the
scope and limitations on a judge's authority to sanction a party's
unjustified failure to carry out duties that the procedural rules
establish.
The Department's appellate boards and judges have no Article III
status or powers. See, e.g., Temp. Emp't Serv. v. Trinity Marine Group,
Inc., 261 F.3d 456, 460-61 (5th Cir. 2001); Schmit v. ITT Fed. Elec.
Int'l, 986 F.2d 1103, 1109-10 (7th Cir. 1993); Gibas v. Saginaw Mining
Co., 748 F.2d 1112, 1117 (6th Cir. 1984). The APA vests no contempt
powers in ALJs. The Department acknowledges that FRCP 11 itself does
not vest ALJs with authority to impose the sanctions embodied in that
rule because it is a rule of the Article III trial courts. Nor was it
clear whether FRCP 11 had been generally incorporated into the prior
rules by 29 CFR 18.1(a). Metro. Stevedore Co. v. Brickner, 11 F.3d 887,
891 (9th Cir. 1993) (expressing in dicta doubts about incorporation).
FRCP 11 was unavailable for incorporation in Longshore claims, however.
Boland Marine & Mfg. Co. v. Rihner, 41 F.3d 997 (5th Cir. 1995)
(Section 26 of the Longshore Act confines an award of costs when
proceedings are ``instituted or continued without reasonable grounds''
to proceedings that have made their way into the Article III courts.
Therefore, neither FRCP 11 nor section 26(f) may be incorporated into
Longshore Act proceedings at the Department through the text of 29 CFR
18.1(a) on the theory that the ``situation [is] not provided for or
controlled by statute.''); Metro. Stevedore Co., 11 F.3d at 891
(finding that under section 26 of the Longshore Act only courts can
assess costs against a claimant who institutes or continues a
proceeding in the courts without reasonable grounds); R.S. [Simons] v.
Va. Int'l Terminals, 42 Ben. Rev. Bd. Serv. (MB) 11, 14 (2008)
(rejecting an argument that an ALJ could assess attorney's fees against
an employer that were unavailable under section 28 of the Longshore Act
by using FRCP 11 instead); Valdez v. Crosby & Overton, 34 Ben. Rev. Bd.
Serv. (MB) 69, 77 (2000) (applying the holdings in Boland Marine & Mfg.
Co. and Metro. Stevedore Co.); Crum v. Wolf Creek Collieries, 18 Black
Lung Rep. (Juris) 1-80, 1-83 (Ben. Rev. Bd. 1994). Though the new rules
use the term ``sanction'' to describe remedies that can be applied when
a party fails to fulfill its duties, these remedies do not extend to
the full panoply of powers available to Article III judges under their
inherent powers or under FRCP 11, which encompass the authority to
require an errant lawyer to participate in seminars or education
programs, or order a fine payable to the court. See Fed. R. Civ. P. 11
advisory committee's note (discussion of 1993 amendments).
Nonetheless, the APA empowers ALJs, ``[s]ubject to published rules
of the agency and within its powers . . . to regulate the course of a
hearing.'' 5 U.S.C. 556(a)(3), (c)(5). That authority is statutorily
explicit. The appellate courts moreover have upheld orders that impose
litigation sanctions on parties who violate an administrative agency's
procedural rules. See Roadway Exp., Inc. v. U.S. Dept. of Labor, 495
F.3d 477, 484 (7th Cir. 2007) (``[A]gency's rules unambiguously permit
the ALJ to impose, as a discovery sanction, an order excluding evidence
that a non-complying party wishes to introduce in support of its
claim.''); In re Bogese, 303 F.3d 1362, 1367-68 (Fed. Cir. 2002)
(Patent and Trademark Office, like other administrative agencies, may
impose reasonable deadlines and requirements on parties appearing
before it and has broad authority to sanction undue delay by holding a
patent unenforceable); Atlantic Richfield Co. v. U.S. Dep't of Energy,
769 F.2d 771, 793 (D.C. Cir. 1984) (rejecting argument that
administrative agency ``cannot impose evidentiary sanctions--of course,
short of a fine or imprisonment--when necessary to preserve the
integrity of an authorized adjudicative proceeding''). As the court of
appeals in Atlantic Richfield Co. stated,

It seems to us incongruous to grant an agency authority to
adjudicate--which involves vitally the power to find the material
facts--and yet deny authority to assure the soundness of the fact
finding process. Without an adequate evidentiary sanction, a party
served with a discovery order in the course of an administrative
adjudicatory proceeding has no incentive to comply, and often times
has every incentive to refuse to comply.

769 F.2d at 796. The adjudicatory duties of an ALJ are in many ways
``functionally comparable'' to those of a federal district court judge.
Butz v. Economou, 438 U.S. 478, 513-14 (1978). It would be incongruous
to deprive an ALJ of any procedural tools that assure the integrity and
soundness of the adjudicative process. The tools include the authority
to impose litigation sanctions that do not conflict with the
substantive statute applicable to the proceeding for procedural
violations that frustrate efficient administrative adjudication. The
Department's ALJs used a broad range of sanctions for the nearly 30
years under the prior rules, including the dismissal of a claim or
defense, as well as lesser evidentiary sanctions. Curley v. Grand
Rapids Iron & Metal Co., ARB No. 00-013, ALJ No. 1999-STA-39 (ARB Feb.
9, 1999) (affirming ALJ's authority to dismiss employment protection
claim for abandonment, based on complainant's failure to participate in
prehearing conference or reply to order to show cause why the matter
should not be dismissed for failure to comply with a lawful order); see
also Dodd v. Crown Cent. Petroleum Corp., BRB No. 02-0821, slip op. at
9-10 (Ben. Rev. Bd. Aug. 7, 2003) (affirming the dismissal for
abandonment of a pro se litigant's claim under the authority of 29 CFR
18.29(a), which affords ALJs ``all necessary powers to conduct fair and
impartial hearings and to take any appropriate action authorized by the
Federal Rules of Civil Procedure,'' where claimant failed to attend the
final hearing, stated he would not participate, sustained objections to
discovery the claimant sought, and denied the claimant's motion to
recuse the ALJ); Matthews v. LaBarge, Inc., ARB No. 08-038, ALJ No.
2007-SOX-56 (ARB Nov. 26, 2008) (adopting ALJ's decision to dismiss
under 29 CFR 18.6(d)(2) because ALJ found that pro se complainant
failed to comply with discovery orders repeatedly, willfully,
intentionally, and in bad faith); Administrator v. Global Horizons
Manpower, Inc., ARB No. 09-016, ALJ No. 2008-TAE-3 (ARB Dec. 21, 2010)
(affirming ALJ's order granting, as a discovery sanction under 29 CFR
18.6(d)(2)(v) and 18.29(a)(8), all the back pay and civil penalties the
Administrator of the Wage and Hour Division had sought against employer
for ``willful, contumacious disregard of the discovery process as well
as disregard of the ALJ's multiple warnings and orders'');
Administrator v. Global Horizons, Inc., ARB No. 11-058, ALJ No. 2005-
TAE-1 & 2005-TLC-6, 2013 WL 2450031, at *4-8 (DOL Admin. Rev. Bd. May
31, 2013) (affirming an ALJ's summary judgment awarding worker's back
pay, repayment of impermissible deductions from pay, and awarding the
Administrator civil penalties, which were based in large part on 145
factual allegations deemed admitted as the result of three orders that
imposed sanctions for misconduct in discovery). But see Goichochea v.
Wards Cove

[[Page 28772]]

Packing Co., 37 Ben. Rev. Bd. Serv. (MB) 4, 7 (2003) (holding that in a
claim for Longshore disability compensation benefits, the remedy for
disobeying an order compelling discovery is the procedure described in
section 27(b) of the Longshore Act).
The Department kept in mind the limits on the authority of an
administrative agency to impose sanctions when it fashioned the
litigation sanction provisions. Section 558(b) of the APA, cited by
some commenters, states that ``[a] sanction may not be imposed or a
substantive rule or order issued except within the jurisdiction
delegated to the agency and authorized by law.'' 5 U.S.C. 558(b); see
also Am. Bus. ***'n v. Slater, 231 F.3d 1, 7 (D.C. Cir. 2000) (holding
that the Department of Transportation lacked statutory authority to
require a bus company to pay monetary damages to disabled passengers
they failed to accommodate); Windhauser v. Trane, ARB No. 05-127, OALJ
No. 2005-SOX-17, 2007 WL 7139497, at *2-3 (DOL Admin. Rev. Bd. Oct 31,
2007) (reversing ALJs imposition of monetary sanctions against
whistleblower complainant because such sanctions ``are, by statute, in
the jurisdiction of the federal district courts''). The Slater court
distinguished between sanctions that require express statutory
authority under section 558(d) of the APA because they are directed at
modifying ``primary conduct,'' such as a bus company's failure to
accommodate disabled passengers, and litigation sanctions designed to
protect the integrity of the agency's administrative processes. Id. The
Slater court recognized an agency has ``a limited power to impose
sanctions that are not expressly authorized by statute, but only ones
designed to `protect the integrity of its own processes.' '' Id.
(quoting Touche Ross & Co. v. SEC, 609 F.2d 570, 582 (2d Cir. 1979));
see also Davy v. SEC, 792 F.2d 1418, 1421 (9th Cir. 1986). The
provisions for the limited sanctions in the new rules are not directed
to any party's primary conduct--which would be the subject matter of
the proceeding--but to violations of procedural rules that compromise
the integrity of the administrative hearing process. These litigation
sanctions are consistent with the Department's regulatory authority
under section 556(c)(5) of the APA, do not require additional express
statutory authorization under section 558(b) of the APA, and do not
amount to an exercise of Article III courts' contempt or sanction
powers.
Remedial Purpose of Whistleblower Adjudications. The Department
received a comment regarding whistleblower adjudications generally,
which suggested that the procedural rules should reflect the remedial
purpose of the whistleblower statutes under the OALJ's jurisdiction.
The Department notes that the new rules are procedural rules intended
to apply to all proceedings before OALJ and not any specific class of
proceeding. To the extent a particular agency seeks the application of
specific procedural rules, it is incumbent on that agency to
incorporate such rules into its own regulations. For instance,
proceedings under the Employee Retirement Income Security Act of 1974
(ERISA), 29 U.S.C. 1132, define specific procedures at 29 CFR 2570,
subpart C.
The Department received a similar comment suggesting that the OALJ
``should strive for better whistleblower protection than U.S. District
Courts'' because the OALJ has garnered specialized knowledge and the
process is less formal in an agency adjudication. The comment however
did not offer any concrete proposal for changes to the text of the new
rules. Any program-specific change moreover should be addressed to the
particular agency charged with administering the particular program.
Effect on Pro Se Litigants. One commenter asserted that the new
rules will make litigation of whistleblower claims harder on pro se
parties. The commenter noted that, although the OALJ rules of practice
and procedure are analogous to the FRCP, there are some differences:
For example, whistleblowers do not ordinarily have to plead a claim
through a complaint. The commenter remarked that the Administrative
Review Board (ARB) and other appellate authorities have construed pro
se complainants' positions liberally and with a degree of judicial
latitude. The commenter also suggested that the Department's comments
should make clear that decisions on the merits are the goal, and
compliance with procedural rules should ``bend where necessary to meet
that goal.''
The Department agrees that concerns relating to the ability of pro
se litigants to submit and litigate complaints deserve consideration.
As the ARB has enunciated, a pro se litigant's presumed lack of
familiarity with litigation procedures may require accommodation. For
example, a pro se litigant must be informed of the consequences of
failing to respond to dispositive motions, Motarjemi v. Metro. Council,
Metro. Transit Div., ARB No. 08-135, ALJ No. 2008-NTS-2 (ARB Sept. 17,
2010), and an untimely filing may be considered, Wallum v. Bell
Helicopter Textron, Inc., ARB No. 12-110, ALJ No. 2009-AIR-20 (Sept.
19, 2012). The new rules provide uniform procedures for case
management, but simultaneously permit judges the flexibility to tailor
procedures to specific cases through appropriate orders. So, for
example, where a pro se complainant requires additional guidance, under
the new rule the judge may issue more focused or detailed orders, as
necessary. The new rules provide more detailed procedural information
(particularly regarding discovery and other pre-hearing requirements)
than had been the case previously. The Department therefore declines to
adopt the commenter's suggestion.
Discovery Rules Regarding Electronically Stored Information. One
commenter voiced some general concerns that the rules should clarify
issues related to discovery of electronically stored information (ESI),
specifically providing that both sides have access to discovery of ESI
and that ESI is treated the same as paper documents. The Department
believes those concerns are adequately addressed in Sec. 18.61, which
states that there is no differentiation in the access to ESI or paper
discovery. Thus, the rule provides the ALJ with the ability to manage
discovery and minimize gamesmanship in discovery of both paper
documents and ESI.
Electronic Filing. One commenter urged that the OALJ adopt and
implement electronic case filing (ECF) or, in the alternative, allow
facsimile filing and remove the maximum page limitation on faxes. Those
concerns were also specifically raised in the comments to proposed
Sec. 18.30 and are fully addressed in that response. However, the
general answer is that the implementation of ECF is a resource
constrained policy decision. Until the Department implements ECF,
promulgating rules about ECF would lead to confusion.
Offer of Judgment. One commenter suggested that the OALJ's rules
should include one analogous to FRCP 68, Offer of Judgment, and should
expressly cut off attorney's fees and other litigation costs when a
claimant refuses an offer and fails to obtain a more favorable result.
The Department declines to adopt the commenter's suggestion. An
offer of judgment is significant matter that could affect an otherwise
successful complainant's right to recover attorneys' fees as costs.
Marek v. Chesny, 473 U.S. 1 (1985). No analog to FRCP 68 appears in the
OALJ's previous rules. The Department stated its intention to align

[[Page 28773]]

its procedural rules more closely with the FRCP, but did not give any
notice that an offer of judgment rule was contemplated. The Department
believes the final rule should not include an offer of judgment
provision for three interrelated reasons.
First, doing so would not have given interested parties sufficient
notice that such a rule was contemplated, and it is unclear that doing
so now could be regarded a logical outgrowth of the rules proposed. See
5 U.S.C. 553(b)(3); ***'n of Private Sector Colls. & Univs. v. Duncan,
681 F.3d 427, 461 (D.C. Cir. 2012). Second, the OALJ issues no
judgments; it is not a court, although it shares many attributes with
Article III federal courts. FRCP 68 would have to be substantially
altered to adapt to the context of administrative adjudication, as
there is no clerk who could enter a judgment in the way FRCP 68(a)
contemplates (``The clerk must then enter judgment.''). Finally, FRCP
68 is subject to varying interpretations in the courts of appeals on
how the defense should address attorney's fees in the text of an offer,
when the substantive statute at issue directs the adjudicator to assess
those fees as an item of costs. See Charles Alan Wright et al., Federal
practice and Procedure Sec. 3005.1 (3d ed. 2014). Any rule the
Department adopts should make a choice between the competing theories,
to make the rule nationally uniform, and as useful to litigants as
possible. Those choices will not be made without the benefit of public
comment.

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

The Department received several comments regarding specific
sections in the NPRM. Each comment is addressed as follows:
Sec. 18.10 Scope and purpose. One commenter expressed concern that
the principles expressed in section 923 of the LHWCA, providing that
the LHWCA hearing process is not bound by formal rules of evidence but
conducted in a manner to best ascertain the rights of the parties, may
be circumvented by procedural rules not addressed in the LHWCA and BLBA
and respective implementing regulations. The commenter suggested part
18 explains what sections do not apply to LHWCA or BLBA proceedings
``to avoid confusion.'' Another commenter suggested adding a paragraph
``(d)'' to Sec. 18.10, which would specifically state that in
proceedings under the LHWCA and BLBA the following list of proposed
rules would not apply: Sec. Sec. 18.12, 18.23, 18.35, 18.50, 18.56,
18.57, 18.64, 18.70, 18.72, 18.80, and 18.87.
Future statutory and regulatory changes in the numerous
administered programs, including the LHWCA, BLBA, employment
discrimination, ``whistleblower'' and immigration cannot be foreseen.
For instance, recent litigation has highlighted a BLBA-specific issue--
one involving the disclosure of non-testifying expert opinions--that
may deserve further consideration. See generally Fox v. Elk Run Coal
Co., 739 F.3d 131 (4th Cir. 2014). Nothing in these rules would prevent
the Department from adopting a procedural rule that applies only in
BLBA claim adjudications or other program-specific contexts. Moreover,
listing variations in procedural requirements for the numerous programs
in each new rule defeats the purpose of the new rules and would require
constant rulemaking activity to reflect legislative changes. The
Department thus disagrees with the submitted proposals to individually
identify superseding statutory, regulatory or executive order
provisions collectively in the new Sec. 18.10 or separately in those
new rules where a conflict may exist.
One commenter suggested that the lack of an appeal process in
regard to a judge's decision to modify, waive or suspend a procedural
rule in new Sec. 18.10(c) ``appears arbitrary and capricious.'' The
Department disagrees. First, while the case is at the OALJ, no rule may
be waived, modified or suspended without notice to the parties. Second,
doing so requires the judge to make two determinations: That the
specific alteration of the rule ``will not prejudice a party,'' and
``will serve the ends of justice.'' Finally, a party may raise before
the appropriate appellate authority on direct review of the final order
any error in modifying a rule.
Sec. 18.12 Proceedings before administrative law judge. The
Department combined the designation provisions of prior Sec. 18.25 and
the authority provisions of prior Sec. 18.29(a). The Department
specifically clarified in the NPRM that the enumerated powers mirrored
those set forth in section 556 of the APA and that the enforcement
provision of prior Sec. 18.29(b) was deleted due to its contents of
referring contumacious conduct to an appropriate federal court is set
forth in applicable statutes, such as Section 927(b) of the LHWCA.
One commenter proposed that prior Sec. 18.29(b) should not be
deleted ``even though the content is contained in applicable statutes
[because] this provision clearly delineates an administrative law
judge's restricted powers, especially under statutes like the LHWCA.''
The Department disagrees with the comment that the provision on
referring contumacious conduct to federal court should be retained in
the new rules since controlling program statutes provide for such
referral action when appropriate. See, e.g., 20 CFR 725.351(c).
The commenter also proposed deleting Sec. 18.12(b)(10) listing the
authority of an ALJ to ``take actions authorized by the FRCP'' because
the language would include all sanctions authorized by the FRCP and
penalty sanctioning authority is reserved to the federal courts by the
LHWCA and BLBA. Section 18.12(b)(10) was a succinct restatement of
prior Sec. 18.29(a)(8). The Department agrees that the brevity in
which prior Sec. 18.29(a)(8) was restated could be construed as
excessively broad. To ensure consistency, the new Sec. 18.12(b)(10) is
rewritten to closely align with prior Sec. 18.29(a)(8) by returning
the words ``where applicable'' to the rule.
Sec. 18.22 Representatives. The Department narrowed the rule on
representatives appearing before OALJ to reflect the two classes of
representatives who routinely appear--attorneys and non-attorney
representatives. The rule sets forth the qualifications required to
appear as a representative of a party, the minimum duties required of a
representative, and prohibited actions of any representative. One
comment suggested that the proposed rule setting forth the
qualifications for an attorney representative is overreaching and
conflicts with 5 U.S.C. 500(b). That provision states in relevant part:
``An individual who is a member in good standing of the bar of the
highest court of a State may represent a person before an agency on
filing with the agency a written declaration that he is currently
qualified as provided by this subsection and is authorized to represent
the particular person in whose behalf he acts.'' Id. The commenter
suggested nothing more should be required of an attorney representative
seeking to represent a party before OALJ. The commenter believed that
the proposed Sec. 18.22 (a)-(d) imposed additional requirements
inconsistent with 5 U.S.C. 500(b).
The Department has made revisions to the new rule in response to
this comment. The Department deleted the following sentence from Sec.
18.22(a): ``The notice of appearance shall also include the statements
and documentation required for admission to appear for the applicable
category of representation found in subdivision (b) of this section.''

[[Page 28774]]

The Department has added the following in its place: ``Any attorney
representative must include in the notice of appearance the license
registration number(s) assigned to the attorney.'' Essentially the only
requirement that an attorney representative must follow in order to
represent a party before the Department is to file a notice of
appearance and include the appropriate attorney license registration
number. Filing the notice of appearance by the attorney representative
will constitute an attestation that: (a) The attorney is a member of a
bar in good standing of the highest court of a State, Commonwealth, or
Territory of the United States, or the District of Columbia; and (b) no
disciplinary proceeding is pending against the attorney in any
jurisdiction where the attorney is licensed to practice law. The
Department has amended Sec. 18.22(b)(1)(i) to reflect this change.
The Department disagrees with the comment that sections (c) and (d)
conflict with 5 U.S.C. 500. Section (c) sets forth the minimum
requirements expected of any representative during the course of a
proceeding before the Department, and section (d) delineates prohibited
actions of any representative appearing in a proceeding before the
Department. Neither section prescribes any additional requirements for
an attorney representative to appear on behalf of a party before the
Department.
The Department set forth the minimum duties required of all
representatives appearing before the OALJ in Sec. 18.22(c). These
duties originate from the rules of conduct and standards of
responsibility imposed by the Social Security Administration (SSA) on
representatives appearing before the SSA. See 20 CFR 404.1740(b). While
the Department realizes that the non-adversarial nature of SSA hearings
may require more detailed procedures, the basic duties included in the
new rule are elementary to any hearing process and serve as a baseline
foundation for conducting hearings promptly, efficiently, and fairly.
The new rule also states that an attorney representative must adhere to
the rules of conduct applicable where the attorney is licensed to
practice law. In setting forth this standard, the Department
understands that hearings often occur outside of a jurisdiction where
an attorney may be licensed to practice law, and imposing an unfamiliar
standard of conduct on an attorney would not be ideal.
One comment suggested that paragraph (c) should be stricken because
requiring attorneys to adhere to the rules of conduct in their
licensing jurisdictions ``could result in the different standards for
the submission of evidence, discovery, and other substantive and
procedural matters.'' The Department disagrees. Rules of professional
conduct are generally considered rules of reason and should be
interpreted with reference to the law itself. Different rules of
conduct should not apply based on specific substantive or procedural
law. At a minimum, attorneys should always be held to the standards of
conduct where they are licensed to practice law. The Department
declines to strike the paragraph.
The new rule also defines prohibited actions of all representatives
appearing before the Department in paragraph (d). The prohibited
actions include such things as: threatening, coercing or intimidating a
party; knowingly making false or misleading statements; or causing
unreasonable delay. These again derive from the SSA regulations. 20 CFR
404.1740(c). One comment suggested that the paragraph should be
stricken because it adds confusion and may require attorneys to act
contrary to the interests of their clients or the rules of conduct
required by their licensing jurisdictions. The Department declines to
strike the paragraph.
Sec. 18.23 Disqualification and discipline of representatives. The
proposed rule contemplated two paths for disqualification and
disciplinary proceedings of attorney representatives appearing before
the OALJ. One path regulated lawyers who were authorized to practice
before the Department through admission to the bar of the highest court
of a state or similar governmental unit, but lost the right to practice
law in their licensing jurisdiction because of a criminal conviction or
proven professional misconduct. The second path involved misconduct of
a representative before the OALJ. One comment questioned the
Department's authority to initiate disciplinary proceedings at all. The
NPRM spells out the Department's authority to discipline attorneys in
great detail and need not be restated herein. The Supreme Court has
recognized such authority as early as 1923 in a case involving the
Board of Tax Appeals where it upheld the Board's power to adopt rules
of practice for professionals to protect the integrity of its
administrative procedures and the public generally. See Goldsmith v.
United States Bd. of Tax Appeals, 270 U.S. 117 (1926). Other comments
suggested that the wording of the rule was not clear and suggested that
as drafted, it appeared that the OALJ would be making the initial
determination as to whether an attorney had committed any enumerated
criminal act or professional misconduct.
The Department considered the comments and has amended the rule by
consolidating the grounds upon which an attorney or representative may
be disqualified or disciplined into one section--new Sec. 18.23(a)(1).
New Sec. 18.23(a)(1) now sets forth three distinct grounds for
disqualification: (1) suspension of a license to practice law by any
court or agency of the United States, or by the highest court of a
State or similar governmental unit; (2) disbarment from the practice of
law by consent or resignation from the bar of a court or agency while
an investigation into allegations of misconduct is pending; or (3)
committing an act, omission, or contumacious conduct that violates the
procedural rules, an applicable statute, an applicable regulation, or a
judge's order(s). Accordingly, the previous sections providing for
disqualification upon conviction of a felony (proposed Sec.
18.23(a)(1)(i)) or certain enumerated misdemeanors (proposed Sec.
18.23(a)(1)(ii)) are removed from the new rule. Such conduct however
may still be grounds for disqualification in the new rules to the
extent that new Sec. 18.23(a)(1)(i) through (iii) apply.
The Department also consolidated the disqualification and
discipline procedure into one section--new Sec. 18.23(a)(2). The new
consolidated ``Disqualification procedure'' states that in all
instances the Chief Judge provides notice and an opportunity to be
heard prior to taking any action. The provision deletes language
pertaining to requests for hearing but also recognizes that, in
appropriate instances, additional proceedings may be necessary, within
the Chief Judge's discretion.
Other comments questioned the timeline for disciplinary proceedings
and the status of cases while disciplinary proceedings are pending
against an attorney. The Department notes that the new rule
contemplates a fast track with an initial response time of 21 days. The
Department believes that the Chief Judge should have the discretion to
decide whether an attorney can continue to represent a party before the
Department during the pendency of any disciplinary proceeding on a
case-by-case basis.
Two commenters suggested that the Department maintain a national
database of non-attorney representatives disciplined by the Department.
The Department declines to amend the part 18 regulations to establish
such a database because OALJ already

[[Page 28775]]

publishes formal disciplinary decisions on its Web site in the same
manner as other judge decisions. See, e.g., In the Matter of the
Qualifications of Edwin H. Rivera, 2009-MIS-2 (ALJ Feb. 6, 2009)
(denying non-attorney representative the authority to appear in a
representative capacity before OALJ).
Sec. 18.24 Briefs from amicus curiae. The proposed rule sets forth
the general procedure for accepting a brief from an amicus curiae. The
Department received two comments suggesting that the deadline for an
amicus brief is too short. The proposed rule required such briefs by
the close of the hearing unless otherwise directed by the presiding
judge. The comments pointed out that no transcript is immediately
available when the hearing closes and it may be better for an amicus
curiae to review the brief of the party the amicus supports to allow
the amicus curiae to focus on new arguments. The Department considered
the comments and agrees that setting the deadline at the close of the
hearing is impractical. The Department has amended the new rule by
deleting any specific deadline for an amicus brief, and instead states
that the deadline will be set by the presiding judge.
The Department has also received comments suggesting that it
require amicus curiae to make disclosures similar to those found in
U.S. Supreme Court Rule 37.4. Such disclosures include whether counsel
for a party authored any part of an amicus brief and the identity of
anyone who made monetary contributions to the preparation of the brief
other than the amicus curiae or its members. The Department declines to
adopt the specialized disclosure requirements. Any specialized
requirement can be considered by the presiding judge and made part of a
briefing order depending on the facts of any particular case.
Sec. 18.30 Service and filing. Commenters suggested that the list
of documents not to be filed until used in the proceeding or ordered by
a judge (Sec. 18.30(b)(1)) should be amended to add the notice and
copy of ``documents only'' subpoenas that are required to be served on
other parties by Sec. 18.56(b)(1). That suggested change is consistent
with the purpose of both the prior and proposed rule and reflects
current common practice. The new rule is thus changed to add paragraph
(b)(1)(vi) with the following language: ``the notice (and the related
copy of the subpoena) that must be served on parties under rule
18.56(b)(1) before a `documents only' subpoena may be served on the
person commanded to produce the material.''
Several commenters argued that the OALJ's rules do not adequately
accommodate electronic filing and service, which is now commonplace in
federal courts and adjudicatory agencies. Commenters urged that the
OALJ adopt an electronic filing system, or at least adopt a more
liberal stance toward accepting email and facsimile transmissions.
The Department acknowledges that implementation of a dedicated
electronic filing system and electronic service system for OALJ
adjudications would be beneficial. However, because the OALJ does not
have a dedicated electronic filing and service system, the rules of
practice and procedure necessarily focus on traditional filing and
service.
Several commenters urged that, in the absence of the availability
of electronic filing, OALJ accept documents filed by email. The
Department declines to adopt a regulation that permits filing by email
for routine filings with the OALJ. Email is not a substitute for a
dedicated electronic filing system in which administrative issues such
as document management, storage, security, and access can be
systematically addressed. The proposed regulation at Sec. 18.30(b)(4)
accommodates special circumstances by authorizing the judge to ``allow
papers to be filed, signed, or verified by electronic means.''
Alternatively, several commenters urged that the OALJ accept
documents filed by facsimile transmission without a page limitation.
The Department declines to adopt a regulation that permits filing by
facsimile for routine filings with the OALJ. Facsimile technology is
not a substitute for traditional mail or hand delivery of filings or
for a dedicated electronic filing system. When Sec. 18.3 of the prior
rules was amended in 1994 to permit filing by facsimile in certain
circumstances, the Department discussed why, although the use of
facsimile machines is often convenient to parties, it is not
administratively practical for routine matters. See Amendment of Filing
and Service Requirements in Proceedings Before the Office of
Administrative Law Judges, 59 FR 41874 (Aug. 15, 1994). Although
information technology has advanced considerably since 1994, it is
still true that most filings before the OALJ are not time sensitive and
that the Department is not in a position to bear the cost of receiving
and printing large numbers of facsimile transmissions. The new rule at
Sec. 18.30(b)(3)(i) accommodates special circumstances by allowing a
party to file by facsimile if permitted by the judge.
One commenter stated a concern that a judge could reject a
facsimile filing that exceeded 12 pages. The 12 page limitation stated
in Sec. 18.30(b)(3)(i)(A) is confined to situations in which the party
is unable to obtain prior permission to file by facsimile because the
judge is unavailable. The 12 page limitation is a sensible limitation
to discourage reliance on last hour filings by facsimile. Thus, the
Department declines to revise Sec. 18.30(b)(3)(i)(A) to remove the 12
page limitation on facsimile filings made without the judge's
permission.
One commenter suggested that the OALJ's rules of practice and
procedure provide for electronic service between parties, stating that
if a representative wishes to receive all service by email, that
individual should be able to so state in the record and then receive
all subsequent service by email. Section 18.30(a)(2)(ii)(E) already
accommodates this suggestion. That regulation states that ``[a] paper
is served under this section by . . . sending it by electronic means if
the person consented in writing--in which event service is complete
upon transmission, but is not effective if the serving party learns
that it did not reach the person to be served . . . .''
One commenter stated that the rule, as written, creates a paradox
that a time sensitive filing could be filed with the OALJ by facsimile,
but served by mail on the opposing party. This commenter suggested that
adopting a service requirement that allows for email service would
resolve this problem. As noted above, the regulation permits parties to
agree to receipt of service of papers by electronic means. The
Department declines to revise the rule to require electronic service on
another party in situations where the filing party was granted
permission to file a paper with the OALJ electronically.
Sec. 18.31 Privacy protection for filings and exhibits. One
commenter suggested that the privacy requirement should be inapplicable
to any document created prior to the effective date of the final rule
in BLBA cases. The commenter stated that medical records containing
social security numbers and other protected information are created
long before a claim is filed and it would be burdensome to redact this
information.
The FRCP Advisory Committee noted in its comments to FRCP 5.2 that
``[i]t is electronic availability, not the form of the initial filing,
that raises the privacy and security concerns addressed in the E-
Government Act.'' Fed. R. Civ. P. 5.2 advisory committee's note
(discussion of 2007 amendments). The FRCP focuses on electronic
records, but applies the same restrictions to hard-copy documentation,
reasoning that the

[[Page 28776]]

number of paper filings will diminish over time.
The Department declines to adopt the commenter's suggestion. The
privacy interests of individuals whose personal records appear before
the OALJ outweigh the burden placed on those who represent them. Many
of these records can be scanned and searched for the sensitive
information, reducing the time and effort required to complete this
redaction. The commenter's suggestion that this rule apply only to
records created after the effective date of the final rule would
severely limit its utility. The parties may choose to waive the
protection of the rule if it would be unduly burdensome to redact the
records, or the parties may petition the judge for a waiver of the
rule.
Sec. 18.32 Computing and extending time. Commenters noted that
setting 4:30 p.m. as the default deadline for filing on a specific date
is inconsistent with other rules of practice and sets a trap for the
unwary practitioner who may reasonably expect that the deadline would
be 11:59 p.m. They suggested changing the time to 11:59 p.m.
The FRCP allows for electronic filing up to 11:59 p.m., but still
sets the close of local business hours as the deadline for hardcopy
delivery. The commenters' suggestions primarily relate to online and
facsimile filing. The OALJ continues to rely on hardcopy delivery as
the default authorized means of filing and allows electronic or
facsimile filing only as authorized by order or regulation. Since both
e-filing and facsimile filing include time stamps that show exactly
when a document arrived at the facsimile machine or server of the
recipient, the office need not be open to determine when a document
arrives. Since e-filing or facsimile filing is only allowed with the
permission of the judge, counsel can request extended filing hours when
they request permission to file in that manner. The Department
therefore declines to adopt the suggestion.
Commenters also observed that the language at (a)(4) including as a
legal holiday any other day declared a holiday by the President or
Congress is overly broad and should be amended to include in the
definition the provision that federal offices are closed to normal
business. They suggested providing for extensions where a party is
prevented from filing or requesting an extension by local
circumstances, such as natural disasters or other events that require
closure of government facilities.
FRCP 6(a)(3) addresses the problem by including a provision for the
inaccessibility of the clerk's office. The new rules allow for judges
to grant ex post facto delays in such cases. However, changing the term
``legal holiday'' to include any day on which the district office in
which the document is to be filed is closed or otherwise inaccessible
to the filing party would provide a clearer standard and avoid
uncertainty over whether an ex post facto delay may be granted. The new
rule is thus changed as follows:

(4) ``Legal holiday'' defined. ``Legal holiday'' means the day
set aside by statute for observing New Year's Day, Martin Luther
King Jr.'s Birthday, Washington's Birthday, Memorial Day,
Independence Day, Labor Day, Columbus Day, Veterans' Day,
Thanksgiving Day, or Christmas Day, any day declared a holiday by
the President or Congress, and any day on which the office in which
the document is to be filed is closed or otherwise inaccessible.

Sec. 18.35 Signing motions and other papers; representations to
the judge; sanctions. New Sec. 18.35 is modeled after FRCP 11. It
states the standards attorneys and parties must meet when filing
motions or other documents with OALJ and provides sanctioning authority
for violations of this section.
Several commenters pointed out that the LHWCA and BLBA contain
specific statutory provisions dealing with resistance to an order,
misconduct during hearings, and discovery violations. They suggest
amending Sec. 18.35(c) to state that the sanctions provisions are not
applicable to LHWCA and BLBA cases. The Department declines to adopt
the commenters' suggestion for the reasons detailed above in section
II, ``Conflicts with the LHWCA and BLBA.''
Several commenters objected to Sec. 18.35(c) in its entirety,
suggesting that the section is essentially an attempt by the OALJ to
exercise contempt power, which is limited to courts and may not be
conferred upon administrative agencies. Section 18.35(c) however is not
identical to FRCP 11(c)(4) and does not seek to invest OALJ judges with
powers beyond the APA's grant of authority to impose appropriate
sanctions where necessary to regulate and ensure the integrity of the
hearing process. Thus, for the reasons detailed above in section II,
``Authority to Regulate the Conduct of Administrative Proceedings;
Sanctions,'' the Department declines to delete Sec. 18.35(c).
One commenter argued that there is no authority to hold a law firm
jointly responsible for a violation committed by its partner,
associate, or employee and failing to further define the circumstance
that would justify an exception. The provision for law firm joint
responsibility in Sec. 18.35(c)(1) is taken directly from the
corresponding federal rule, which was revised in 1993 after the U.S.
Supreme Court ruled that the previous language could not be interpreted
to include a named offender's firm. Pavelic & LeFlore v. Marvel Entm't
Grp., 493 U.S. 120 (1989). Thus, the provision is in accord with
federal practice and the Department declines to strike or modify the
provision in Sec. 18.35(c)(1) concerning law firm joint
responsibility.
One commenter observed that Sec. 18.35(c)(4) provides no guidance
as to what type of sanction ``suffices to deter repetition of the
conduct or comparable conduct.'' The Department agrees that Sec.
18.35(c)(4) should be amended to provide more specific guidance.
Paragraph (c)(4) of the rule is revised, containing the following
language: ``A sanction imposed under this section may include, but is
not limited to, striking part or all of the offending document,
forbidding the filing of any further documents, excluding related
evidence, admonishment, referral of counsel misconduct to the
appropriate licensing authority, and including the sanctioned activity
in assessing the quality of representation when determining an
appropriate hourly rate and billable hours when adjudicating attorney
fees.''
Sec. 18.50 General provisions governing disclosure and discovery.
Under the new rule, a party may seek discovery at any time after a
judge issues an initial notice or order and, unless the judge on motion
orders otherwise, the methods of discovery may be used in any sequence
regardless of the discovery conducted by other parties. The parties'
required initial disclosures would be made within 21 days after entry
of an initial notice or order acknowledging that the case has been
docketed for adjudication, and the rule includes a provision exempting
certain proceedings and parties from the initial disclosure
requirements. The Department received two comments focusing on the
timing of disclosures and discovery in LHWCA and BLBA cases. One
commenter urged that discovery should be available following transfer
of the case to the OALJ or at any time upon stipulation of the parties,
asserting that initial notices and orders have historically taken three
months to issue and that discovery during this period of time will be
unavailable under the new rule, resulting in unnecessary delay. This
commenter also suggested that the timing for initial disclosures be set
at 35 days following transfer of the case to the OALJ. Citing similar
concerns about delay, the other commenter suggested that discovery
should be available at any time after a claim is filed.

[[Page 28777]]

The Department disagrees with these proposals. The use of a judge's
initial notice or order as the case event allowing parties to commence
discovery promotes uniformity and predictability as it is the first
reliable indication to the parties that the case is actually before the
OALJ. The Department believes that use of the date of transfer from the
District Director, Office of Workers' Compensation Programs is
potentially confusing because this procedure is only applicable in
LHWCA and BLBA cases. See 20 CFR 702.317, 725.421. The transfer or
referral is an internal administrative function that lacks the clarity
of the initial notice of order from the judge in terms of informing
parties that a case has been docketed for adjudication. The Department
further believes that allowing discovery at any time after a claim is
filed is problematic as this would inevitably lead to development of
discovery disputes before the case is assigned to a judge. While the
Department is sensitive to the expressed concern regarding delays in
the issuance of an initial notice or order, this is a matter that is
better addressed through internal policy directives rather than
creation of a special rule of procedure or exception. Finally, the
Department believes that the new disclosure and discovery rules, taken
as a whole, provide parties with sufficient flexibility to ensure that
all authorized and appropriate discovery will be available prior to
adjudication.
One comment raised a concern with the sequence of discovery in
LHWCA cases by asserting that the logical first step is for a claimant
to produce a medical report followed by the deposition of the report's
author. The commenter suggested that the new rule could allow a
claimant to manipulate the discovery process by delaying production of
a medical report which might result in a respondent having insufficient
time to identify a rebuttal expert. To blunt this potential tactic, the
commenter proposed that the rule require a claimant to produce a
medical report and disclose any experts early in the process. The
Department believes that this concern is adequately addressed in the
provisions of the rule governing disclosure of experts, see 29 CFR
18.50(c)(2)and through the judge's broad discretion to oversee
disclosure and discovery in an impartial manner that affords all
parties a full and fair opportunity to be heard. Moreover, adoption of
this proposal would create a special rule, applicable only in benefit
cases such as those arising under the LHWCA and BLBA, which is
inconsistent with the Department's objective of promulgating a uniform
set of procedural rules.
One comment proposes that pro se parties be included in the list of
parties who are exempted from the required initial disclosures under
paragraph (c)(1)(iii) unless an ALJ orders the party to provide
disclosures. The Department rejects this proposal as inconsistent with
the efficient, impartial and fair adjudication of cases. The FRCP
provides no such exemption for pro se litigants aside from those
persons in government custody. See Fed. R. Civ. P. 26(a)(1)(B)(iii).
Having a separate set of rules for unrepresented parties or requiring a
judge to provide them with legal guidance is inappropriate. See Pik v.
Credit Suisse AG, ARB No. 11-034, ALJ No. 2011-SOX-6 (ARB May 31, 2012)
(citing Rays Lawn & Cleaning Sys., ARB No. 06-112, ALJ No. 2005-SCA-7
(ARB Aug. 29, 2008)); Olsen v. Triple A Mach. Shops, Inc., 25 Ben. Rev.
Bd. Serv. (MB) 40, 46 n.4 (1991), aff'd mem. sub nom. Olsen v. Dir.,
OWCP, 996 F.2d 1226 (9th Cir. 1993).
Two comments expressed a concern that it is burdensome and/or
irrelevant to require an expert witness's written report to list all
other cases in which the witness testified as an expert during the
previous four years and the amount he or she was paid. See General
Provisions Governing Disclosure and Discovery, 77 FR 72159 (proposed
Dec. 4, 2014) (proposed Sec. 18.50(c)(2)(ii)(E) and (F)). These
commentators stated that parties are not likely to have this
information. The Department disagrees. While the parties themselves may
not have such information, surely an expert witness would. Moreover,
the rule allows for an exception to this requirement where stipulated
or ordered by the judge. This exception could be invoked in those
unusual cases where the required information might not be reasonably
obtainable. These requirements track FRCP 26(a)(2)(B), and the
Department is not persuaded by these comments that any deviation in the
OALJ rules is justified.
Two commenters urged adoption of a rule that would require parties
to provide ESI in a searchable electronic format rather than paper
copies when the requested information is available in electronic form.
The commentators cited federal case law in support, stating that
parties have been required to provide ESI in electronic format when
requested in that form. While acknowledging the cited precedent, the
Department rejects the proposal for a rule mandating production of ESI
in electronic format whenever requested in that form. First, such a
rule may violate the principle recognized in the NPRM that discovery of
ESI should be proportional to what is at stake in the litigation. 77 FR
72146 (citing FRCP 26(b)(2)(C)(iii)) (citing The Sedona Conference, The
Sedona Principles: Second Edition, Best Practices Recommendations &
Principles for Addressing Electronic Document Production 17 (Jonathan
M. Redgrave et al. ed., 2d ed. 2007) (``Electronic discovery burdens
should be proportional to the amount in controversy and the nature of
the case. Otherwise, transaction costs due to electronic discovery will
overwhelm the ability to resolve disputes fairly in litigation.'')).
Second, the proposal would override paragraph (b)(3)(iii), which is
based on FRCP 26(f)(3)(C) making any issues about disclosure or
discovery of ESI, including the form or forms in which it should be
produced, a required item in discovery plans. This proposal also
conflicts with Sec. 18.51(b)(2) which, like FRCP 26(b)(2)(B) upon
which it is based, provides that ESI discovery issues are to be
determined by the judge on a motion to compel or for protective order.
In sum, the Department's new rules on disclosure and discovery of ESI
track the provisions in the FRCP which were developed after
consideration of the competing interests at stake with regard to ESI,
and the Department is not persuaded that a different approach is
necessary or desirable in proceedings before the OALJ.
The Department received one comment concerning the timing of
initial disclosures for parties who are served or joined later. The
commenter proposed adding the following sentence to the end of
paragraph (c)(1)(v): ``Copies of all prior disclosures shall be served
on the newly joined party within 14 days of the joinder.'' Such an
addition is helpful because it is common in LHWCA and BLBA cases for
additional parties to be joined after the commencement of the OALJ
proceeding. Therefore, the Department has added the following sentence
to the end of paragraph (c)(1)(v) in the final rule: Copies of all
prior disclosures must be served on a newly served or joined party
within 21 days of the service or joinder.
Two comments advocated adoption of early discovery protocols
similar to the pilot project that has been implemented by some federal
district courts to streamline discovery and reduce costs in certain
employment discrimination cases. See Federal Judicial Center, Pilot
Project Regarding Initial Discovery Protocols for Employment Cases
Alleging Adverse Action (2011), available at www.fjc.gov/public/
pdf.nsf/lookup/discempl.pdf/$file/discempl.pdf. Incorporating a pilot

[[Page 28778]]

project designed for a limited class of cases into a set of uniform
rules of practice and procedure is not desirable. To the extent such
initiatives may be beneficial in certain cases, the Department has
concluded that the determination to adopt such procedures is best left
to the discretion of individual judges and/or discovery plans developed
by parties pursuant to paragraph (b)(3).
One comment proposed that paragraph (d)(3) should be revised to
explicitly state that it does not apply to LHWCA and BLBA proceedings
because 33 U.S.C. 927(b) expressly provides a procedure (i.e.,
certification of facts to a federal district court for summary contempt
proceedings) for addressing discovery violations. A party's failure to
comply with the certification requirements likely would not involve
refusal to comply with an order and, therefore would not be cognizable
as contempt subject to section 927(b). See A-Z Intn'l v. Phillips, 323
F.3d 1141, 1146-47 (9th Cir. 2003) (holding that the district court
lacked section 927(b) jurisdiction over conduct that did not involve a
refusal ``to comply with a summons, writ, warrant, or mandate issued by
the ALJ.''). The Department therefore rejects this proposal and has not
made any change to paragraph (d)(3).
Sec. 18.51 Discovery scope and limits. One comment suggested that
the language of paragraph (a) defining the scope of discovery could be
read as precluding discovery of prior medical records. The commenter
focused this concern on the second sentence of the rule which states
that ``the judge may order discovery of any matter relevant to the
subject matter involved in the proceeding.'' The commenter preferred
language limiting discovery to matters ``relevant to the subject matter
of the proceeding'' and, alternatively, suggested that the record
should clearly state that prior medical records are relevant to a
party's claim or defense when medical questions are at issue. The
Department rejects this proposal as essentially seeking a substantive
determination that prior medical records are discoverable without
limitation in all proceedings as long as there is some medical issue in
play. While such records may well be relevant and discoverable in many
cases where medical issues are raised, it is not difficult to foresee
situations where production of a person's prior medical records might
not be required. In the Department's view, determinations as to the
scope of discovery with respect to specific categories of information
cannot be properly addressed in a general procedural rule and, instead,
must be left to case-by-case adjudication.
Another comment stated that the exceptions established by paragraph
(d)(3)(i) through (iii) to the general rule embodied in paragraphs
(c)(1) and (2) which protect against disclosure of communications
between a party's representative and an expert witness are not adequate
to ensure access to evidence of fraud, abuse or influence such as a
party's attorney writing the expert's report. The commenter suggested
that the exceptions should be broadened to ensure disclosure of such
evidence or that paragraphs (c)(1) and (c)(2) should be eliminated. The
Department's new rules addressing disclosure of communications between
a party's representative and an expert track the provisions of FRCP
26(b)(3) and (4), which were revised in 2010. While the Civil Rules
Advisory Committee stated that the revisions to FRCP 26 were intended
to alter pre-amendment case law that required disclosure of all
attorney-expert communications and draft reports in favor of limiting
disclosure to communications of a factual nature in order to protect
the theories and mental impressions of counsel, the Advisory Committee
emphasized that the ``facts or data'' exception should be interpreted
broadly to require disclosure of ``any facts or data `considered' by
the expert in forming the opinions to be expressed, not only those
relied upon by the expert.'' Fed. R. Civ. P. 26 advisory committee's
note (discussion of 2010 amendments); see also Sara Lee Corp. v. Kraft
Foods, Inc., 273 FRD. 416, 419 (N.D. Ill. 2011); Fialkowski v. Perry,
No. 11-5139, 2012 WL 2527020, at *5 (E.D. Pa. Jun. 29, 2012) (holding
that even if the requested documents are considered ``communications''
between a party's attorney and an expert within the meaning of FRCP
26(b)(4)(C), they are discoverable to the extent that they fall within
the exceptions listed in FRCP 26(b) (4)(C)(ii) and (iii), for ``facts
and data'' that the expert considered and for ``assumptions'' that the
expert relied on). The Department believes that the rule adequately
addresses the concern raised in the comment, and no change has been
made in the final rule.
The Department received a comment stating that some of the
commentary in the NPRM relating to limitations on the scope of
discovery could lead judges to believe that limiting discovery is more
important than providing whistleblower complainants with access to the
evidence they need to prove their claims. This commenter pointed out
that discovery is critical in whistleblower litigation where ``smoking
gun'' evidence of unlawful motivation is rare, and he suggests that it
would be helpful if the comments accompanying the final rule are
balanced to recognize that while judges have discretion to limit
unnecessary discovery, they also have a duty to enforce discovery when
it is necessary to prove a relevant point. The commenter did not
suggest any change in the proposed rule establishing the scope of
discovery and its limits. The Department notes that the discussion of
the changes in the disclosure and discovery rules in the NPRM contains
several references to limitations on the scope of discovery which were
necessitated by recent changes in the FRCP that were incorporated into
the new Sec. 18.51. However, the Department believes the new rule,
like FRCP 26(b) upon which it is based, appropriately balances
competing discovery interests.
Another commenter similarly suggested with respect to whistleblower
cases that the rules should encourage early exchange of discoverable
information, prompt resolution of discovery disputes and broad
discovery of probative information. This commenter also did not
advocate any particular change in the proposed rule. The Department
believes that the new disclosure and discovery rules, taken as a whole,
are designed to accomplish the commenter's recommended objectives in a
fair and impartial manner. The Department further believes that
adoption of special disclosure and discovery rules for a particular
category of cases is neither necessary nor desirable as judges have
discretion to resolve discovery disputes in a manner that is consistent
with the requirements of the particular governing statute and
implementing regulations. The Department therefore has not made any
change to the new rules based on this comment.
Sec. 18.55 Using depositions at hearings. Two commenters suggested
that the new rule should be revised to permit wider use of depositions
at hearings. One commenter proposed addition of a paragraph that would
permit unconditional use of depositions at hearings in the absence of
any objection. The commenter submitted that this revision would better
align the rule with current practice and procedure. Another commenter
urged deletion of the requirement of showing unavailability as a pre-
condition to the admission of deposition testimony from a lay or non-
expert witness. This commenter asserted that the unavailability
requirement is overly burdensome and particularly so for benefits
claimants who have fewer

[[Page 28779]]

resources to pay witnesses to attend hearings. The Department agrees.
Allowing unconditional use of depositions in the absence of an
objection comports with current practice and procedure and reduces the
potential financial burden of producing live witnesses on all parties.
While the proponent of using the deposition of a non-expert witness at
hearing would still be required to demonstrate unavailability in the
face of an objection, the Department believes that the unavailability
provisions of the rule, which track FRCP 32(a)(4), are sufficiently
broad to minimize the burden of producing live witnesses. Accordingly,
the new rule has been revised and renumbered to add a new paragraph
allowing unconditional use of depositions at hearings in the absence of
an objection.
Sec. 18.56 Subpoenas. The Department received two comments
regarding the provisions of paragraph (a) relating to issuance of
subpoenas. One of the commenters proposed that the rule state that any
attorney authorized to practice under the rules may issue subpoenas and
that the judge may issue subpoenas on written application of a non-
attorney. The other comment urged that paragraph (a)(3), which would
permit a judge by order in a specific proceeding to authorize an
attorney representative to issue and sign subpoenas, be revised to
exempt LHWCA and BLBA proceedings because 33 U.S.C. 927(a) expressly
delegates subpoena issuance authority to judges who cannot sub-delegate
such authority to persons outside the Department. The Department is
persuaded by this latter argument that the authority to issue subpoenas
should remain with the judge. The comment cited two cases--FTC v.
Gibson, 460 F.2d 605 (5th Cir. 1972), and United States v. Marshall
Durbin & Co. of Haleyville, 363 F.2d 1 (5th Cir. 1966),--where sub-
delegation of statutory subpoena authority to subordinate employees of
an agency was upheld based on reorganization plans, authorized by the
Reorganization Act of 1949, 5 U.S.C. 901-912, that specifically
provided for the challenged sub-delegation of subpoena power. See also
Lewis v. NLRB, 357 U.S. 10, 14-15 (1958) (upholding sub-delegation of
subpoena authority to the Board's regional directors). Unlike the cited
cases, there is no reorganization plan under which the Department's
judges have been authorized to sub-delegate statutory subpoena
authority. Consequently, a question exists as to whether the sub-
delegation authorized by paragraph (a)(3) would withstand legal
scrutiny. The Department has therefore deleted paragraph (a)(3) from
the new rule. This revision renders moot the concerns raised by the
other commenter about the need for additional protective procedures to
protect parties from abusive subpoena practices by parties'
representatives in the event they were authorized to issue subpoenas.
The Department received a comment that paragraph (b)(1) dealing
with service of subpoenas be revised to track a change in FRCP
45(a)(4), upon which the rule is patterned, that was recommended to the
U.S. Supreme Court by the Committee on Rules of Practice and Procedure
of the Judicial Conference of the United States in its report of
September 2012. See Federal Rules of Practice & Procedure, Report of
the Judicial Conference Committee on Rules of Practice and Procedure to
the Chief Justice of the United States and Members of the Judicial
Conference of the United States 23 (2012), available at
www.uscourts.gov/uscourts/RulesAndPolicies/rules/Reports/ST09-2012.pdf.
To maintain harmony with the FRCP, the commenter proposed that
paragraph (b)(1) be amended to read as follows:

By whom; tendering fees; serving a copy of certain subpoenas.
Any person who is at least 18 years old and not a party may serve a
subpoena. Serving a subpoena requires delivering a copy to the named
person and, if the subpoena requires that person's attendance,
tendering with it the fees for 1 day's attendance and the mileage
allowed by law. Service may also be made by certified mail with
return receipt. Fees and mileage need not be tendered when the
subpoena issues on behalf of the United States or any of its
officers or agencies. If the subpoena commands the production of
documents, electronically stored information, or tangible things or
the inspection of premises before the formal hearing, then before it
is served on the person to whom it is directed, a notice and a copy
of the subpoena must be served on each party.

The Department adopts this proposal as consistent with the objective of
bringing the OALJ rules of practice and procedure into alignment with
the FRCP where appropriate. Paragraph (b)(1) in the final rule has been
amended accordingly.
The Department received two additional comments regarding paragraph
(b)(1). One commenter raised a concern that the phrase ``allowed by
law'' is vague and should be replaced by a reference to the particular
controlling law. The language in question is taken verbatim from FRCP
45(a)(4) and is intended to be interpreted in a manner consistent with
the federal rule under which witness fees and expenses are currently
controlled by 28 U.S.C. 1821. See Dishman v. Cleary, 279 FRD. 460, 466
(N.D. Ill. 2012); Fisher v. Ford Motor Co., 178 FRD. 195, 197 (N.D.
Ohio 1998). The Department does not believe that it is prudent to
incorporate specific statutory references into the rule as statutory
provisions are subject to change which would lead to potential
confusion until the rule could be amended. Further, the Department
notes that the discovery subcommittee to the Civil Rules Advisory
Committee undertook an exhaustive survey of published commentary
regarding FRCP 45. See Federal Rules of Practice & Procedure, Survey of
Issues Regarding Federal Rule of Civil Procedure 45 (2009), available
at www.uscourts.gov/uscourts/RulesAndPolicies/rules/MemoreRule45issues.pdf. Review of the survey discloses no published
concern or comment or other criticism related to the use of ``allowed
by law.''
The second commenter proposed a requirement that notice of a
subpoena(s) relating to medical or financial information include a
statement certifying that the information will not be used or disclosed
for any purpose other than the litigation or proceeding for which the
information was requested and will be destroyed or returned at the end
of the litigation or proceeding. The commenter stated that this
additional provision is necessary to protect against inadvertent
disclosure of sensitive information. The Department rejects this
proposal, noting that the handling of sensitive information obtained
during discovery should be addressed in parties' discovery plans under
Sec. 18.50(b)(3) and that any unresolved issues relating to sensitive
information may more appropriately be addressed by the judge on a case-
by-case basis under the protective order procedures in Sec. 18.52.
One commenter proposed that paragraph (c)(1), requiring a judge to
impose an appropriate sanction on a party or representative who
violates the duty to avoid imposing an undue burden on a person subject
to a subpoena, be revised to explicitly state that it does not apply to
LHWCA and BLBA proceedings which are subject to the summary contempt
procedure established by 33 U.S.C. 927(b). The Department declines to
adopt the commenter's suggestion for the reasons detailed above in
section II, ``Conflicts with the LHWCA and BLBA.''
Sec. 18.57 Failure to make disclosures or to cooperate in
discovery; sanctions. Two comments proposed revising the rule to
specifically exempt LHWCA and BLBA cases from the sanction provisions
which, the commenters

[[Page 28780]]

argued, are preempted by section 927(b) of the LHWCA. One of the
commenters additionally argued that these sanction provisions violate
the ``separation of powers'' doctrine by usurping contempt powers
solely vested in the Article III courts. The Department declines to
adopt the commenters' suggestions for the reasons detailed above in
section II, ``Conflicts with the LHWCA and BLBA.''
Sec. 18.62 Physical and Mental Examinations. One commenter
suggested that Sec. 18.62(a)(1) should be amended to restrict an
examination to the mental or physical ``condition in controversy.''
The Department declines to adopt the commenter's suggestion. The
suggested text would offer no meaningful limit because the medical
examiner does not know how the issues have been framed in litigation.
The party who retains an examiner and notices the examination however
knows the scope of the report it retains an examiner to prepare. The
Department believes it is preferable to rely on the language taken from
FRCP 35(a), which requires the party who notices an examination to
specify the ``time, place, manner, conditions, and scope of the
examination,'' and to disclose the ``person or persons who will perform
it.'' The notice must also describe the examination in a way that
informs the party to be examined of its scope. That party may object if
the conditions or scope of the examination stray into areas that are
not in controversy.
Two commenters argued that the final rule should retain the 30-day
notice requirement found in previous Sec. 18.19(4)(d). One commenter
stated that the new 14-day notice requirement would unreasonably burden
the claimant. Specifically, the shorter notice period would make it
harder for the claimant to arrange for time off from work, travel
plans, and other matters. The commenters also asserted that Sec.
18.62(a)(4) would not give sufficient time to object to the examination
notice with particularity. The person to be examined may have to
consult with others (such as experts or a treating physician) to frame
and serve a specific objection.
The Department agrees with the commenters' suggestions. Therefore,
Sec. 18.62(a)(3) is amended to provide a notice period of 30 days in
advance of an examination when the parties do not agree to a shorter
notice in their proposed discovery plan, by stipulation, or through
informal discussion. Section 18.62(a)(4) is amended to extend the time
to serve an objection from 7 days to 14 days.
One commenter suggested that the text of the rule on physical and
mental examinations should mandate a three-step procedure before an
examination can be noticed: (1) The parties must attempt to resolve all
issues informally before an examination is noticed; (2) if agreement
cannot be reached, the party that intends to notice an examination must
request a telephone or other prehearing conference with the judge to
discuss whether an examination is needed, and any specific procedure or
limitations on the examination that may be appropriate; and (3) before
the prehearing conference, the party proposing the examination must
state with particularity why the examination is needed, why the
deposition of the party to be examined is insufficient to address the
issues the examination would address, and describe what will occur at
the examination.
The Department declines to adopt the commenter's proposal. First,
the parties ordinarily should have discussed whether an examination is
appropriate, and its scope, when they frame the proposed discovery plan
early in the case, just as happens in the U.S. district courts. Second,
the claims at the OALJ frequently involve a physical or mental
condition that serves as one of the bases raised for relief--an issue
that is litigated less often in U.S. district courts. It makes sense
therefore for the default assumption in the rules to be that an
examination is appropriate in cases before the OALJ, even though FRCP
35 allows such examinations only upon motion for good cause before the
U.S. district courts.
One commenter suggested that Sec. 18.62(c)(1) be amended to
require that the examination report (1) be delivered to the examined
party within 21 days, (2) be delivered no fewer than 45 days before the
hearing, and (3) fulfill the requirements of expert testimony found in
proposed Sec. 18.50(c)(2)(ii) [required for witnesses who must provide
a written report].
The Department declines to adopt these additional requirements.
Section 18.62 establishes a procedure to set an examination. It should
not be conflated with the separate disclosures a party must make before
final hearing, particularly about the testimony of experts. The
examiner may not be a trial witness. The examination report may be only
a portion of the data an expert witness who testifies at final hearing
rely on to reach an opinion. Section 18.50(c)(2)(ii) has an independent
effect. With respect to the timing of reports, the parties should build
into the discovery plan an appropriate period for the examiner to write
and serve a report, which can be incorporated into a prehearing order.
To ensure the party examined has the examination report promptly,
however the Department agrees that the party who retained the examiner
and receives the examination report must serve a copy of the
examination report on the party examined no later than seven days after
it receives the report.
Sec. 18.64 Depositions by oral examination. One commenter asserted
that an ALJ cannot impose the sanctions enumerated in Sec. 18.57 in
LHWCA and BLBA adjudications for the types of misconduct described in
Sec. 18.64(d)(2) and (g). Therefore, the commenter suggested that the
Department add an exception to the rules for these cases. The
Department declines to amend Sec. 18.64 to provide such an exception
for the reasons detailed above in section II, ``Authority to Regulate
the Conduct of Administrative Proceedings; Sanctions'' and ``Conflicts
with the LHWCA and BLBA.''
Sec. 18.64 Depositions by oral examination and Sec. 18.65
Depositions by written questions. One commenter stated that proposed
Sec. Sec. 18.64 and 18.65 refer to an ``officer,'' but do not clarify
the ``officer's'' relations to the deposition proceeding. FRCP 30(b)(5)
and 31(b) use the term ``officer'' to describe the court reporter who
administers the oath, takes and certifies the testimony, states that
the deposition is complete when it ends, and reads the written
deposition questions. The Department agrees with the commenter that the
title to Sec. Sec. 18.64(b)(5) and 18.65(b) should be altered to
clarify that the ``officer'' is the ``deposition officer.''
Sec. 18.70 Motions for dispositive action. One commenter objected
generally to the use of motions to dismiss in proceedings where there
are shifting burdens of proof or where the claimant benefits from legal
presumptions. The commenter argued specifically that Sec. 18.70(c)
should be stricken or made not applicable to cases under the LHWCA
because such a rule would require claimants to plead with more
specificity than required under the Act, and noted that an injury and
timely filing are presumed. The Department declines to strike or modify
Sec. 18.70(c). That section states that a party is permitted to move
to dismiss part or all of the matter ``for reasons recognized under
controlling law.'' The new section is not intended to modify existing
law controlling the standard for dispositive motions, including motions
challenging the sufficiency of a pleading. Moreover, Sec. 18.10(a)
states that ``[t]o the extent that these rules may be inconsistent with
a governing statute, regulation, or

[[Page 28781]]

executive order, the latter controls.'' Thus, a party's motion to
dismiss under Sec. 18.70(c) does not upset any statutory or regulatory
presumptions or shifting burdens of proof.
Sec. 18.72 Summary decision. One commenter argued for the
development of a rule that would allow ALJs to enter summary decision
in a condensed order that is compliant with the APA, but which does not
require a complete recitation of all evidence. The commenter argued
that such a summary ruling would minimize judges' workload and allow
for quicker adjudications. The commenter suggested that the rules
permit such a summary ruling upon agreement of the parties because
without such a provision in the rules, parties will have concerns about
whether such an order would be deemed deficient by the BRB. Because the
APA specifies what must be included in an ALJ's decision and order, the
Department declines to modify Sec. 18.72 to provide for a condensed
decision on summary decision. Section 18.72(a) provides that the judge
should state on the record the reasons for granting or denying a motion
for summary decision or partial summary decision.
Two commenters stated that the use of summary adjudications is
inconsistent with the goal of fair administrative proceedings for
whistleblowers and should be rarely, if ever, used. The commenters
argued that summary decisions based on written submissions favor
employers over employees and increase costs. The commenters argued that
summary decisions deprive the ALJ of the opportunity to determine the
credibility of the witnesses, which is important in cases where motive
and intent are critical issues. The commenters recommended that Sec.
18.72 state that summary judgment is generally considered inappropriate
in administrative proceedings.
The Department declines to revise Sec. 18.72 to state that summary
decision is inappropriate in administrative proceedings, in general, or
in whistleblower proceedings, in particular. The utility of a summary
decision procedure for agencies having a substantial caseload of formal
adjudications has long been recognized. See Summary Decision in Agency
Adjudication,1 CFR 305.70-3 (1995) (ACUS Recommendation 70-3, available
at www.acus.gov/sites/default/files/documents/70-3.pdf). Section 18.72
is a procedural rule applicable to the many types of adjudications
conducted by the OALJ, and is neutral on the question of whether
summary decision as a procedural mechanism is disproportionately
adverse to the interests of whistleblower complainants. Any rulemaking
proposing a regulation discouraging summary decision in whistleblower
cases is within the responsibility and purview of the agency which has
programmatic and policy responsibility over whistleblower cases, and
not the OALJ, whose role is adjudicatory. Moreover, the ARB has issued
several decisions that provide ample guidance to the public and to
judges on the standards specific to summary decision motions in
whistleblower cases. See Evans v. E.P.A., ARB No. 08-059, ALJ No. 2008-
CAA-3 (ARB Apr. 30, 2010); Hasan v. Enercon Serv., Inc., ARB No. 10-
061, ALJ Nos. 2004-ERA-22 and 27 (ARB July 28, 2011); Lee v. Parker-
Hannifin Corp., Advanced Prod. Bus. Unit, ARB No. 10-021, ALJ No. 2009-
SWD-3 (ARB Feb. 29, 2012); Franchini v. Argonne Nat'l Lab., ARB No. 11-
006, ALJ No. 2009-ERA-14 (ARB Sept. 26, 2012); see also Guillory v.
Domtar Indus., 95 F.3d 1320, 1326 (5th Cir. 1996) (``Though summary
judgment is rarely proper when an issue of intent is involved, the
presence of an intent issue does not automatically preclude summary
judgment; the case must be evaluated like any other to determine
whether a genuine issue of material fact exists.'').
Another commenter objected that motions for summary judgment allow
cases to be framed by the party that does not have the burden of proof
at trial, and that under Sec. 18.72, the moving party gets the last
word. The commenter described complainants being ``sandbagged'' by
primary briefs that provide abbreviated or unclear statements of facts
or arguments, which are tactically written to prevent cogent or
complete responses. Then, complainants are faced with reply briefs that
clarify or even add arguments and provide additional authorities in
support of those arguments. The commenter stated that many circuit
courts deal with this problem by allowing surreply briefs, or by
expressly limiting reply briefs to the four corners of the arguments
made by the non-moving party in opposition to summary judgment. Thus,
the commenter suggested a rule that specifically allows for a surreply,
makes clear that the reply and surreply may only respond to material in
the opposing submission, and states that all ``new'' material be
disregarded by the court.
The Department declines to revise Sec. 18.72 to expressly allow
surreply briefs, or to expressly limit reply briefs to the four corners
of the arguments made by the non-moving party in opposition to summary
judgment. OALJ judges have the power necessary to conduct fair and
impartial proceedings, and are capable of dealing with a parties'
raising of new arguments in reply briefs without a specific rule. For
example, in Du Jardin v. Morrison Knudsen Corp., 1993-TSC-3 (ALJ Nov.
29, 1993), the ALJ refused to consider new arguments raised by the
respondent in a reply brief to the complainant's response to the
respondent's motion for summary decision. In Inman v. Fannie Mae, 2007-
SOX-47 (ALJ Mar. 5, 2008), rev'd and remanded on other grounds, Inman
v. Fannie Mae, ARB No. 08-060, ALJ No. 2007-SOX-47 (ARB June 28, 2011),
the ALJ permitted the complainant to file a surreply on a motion for
summary decision. The Department notes that under FRCP 56, on which
Sec. 18.72 is modeled, there is no right to file a surreply. Although
the commenter stated that many circuit courts allow surreply briefs, it
did not identify those circuits. Our review of federal appellate court
rules and circuit court local rules found that the rules generally do
not mention surreply briefs, or only allow them upon leave of the
court. See, e.g., Dist. N.M. Local R. Civ. P. 7.4(b) (2013); Dist. N.H.
Local R. 7.1e(3) (2013).
Two commenters suggested that the timing aspects of Sec. 18.72
will be troublesome for whistleblower complainants, for whom the
efficiency and cost of opposing motions for summary judgment is of
paramount importance. Motions for summary decision are usually filed by
respondents, and consequently, when such motions are filed near to the
hearing date, complainants are disadvantaged because they are severely
burdened by the need to respond to the motion and prepare for the
evidentiary hearing within a short time period. The commenters
recommended that: (1) Substantive summary motions aimed at eliminating
claims or types of damages should be filed no later than 90 days prior
to a hearing date; (2) counsel responding to such motions should have
21 to 30 days to file their responsive pleadings; and (3) all such
motions should be resolved at least 30 days prior to a hearing date.
The Department declines to revise Sec. 18.72 to require summary
decision motions be filed no later than 90 days prior to a hearing
date. Prior Sec. 18.40(a) provided that a party may file a motion for
summary decision at least 20 days before the date fixed for any
hearing. With the new Sec. 18.72, the Department increased the
timeframe for filing motions for summary decision to 30 days before the
date fixed for the formal

[[Page 28782]]

hearing. In the OALJ's experience, this timeframe would generally
afford sufficient time for all parties and the judge to address the
motion. As noted in the new Sec. 18.10(a), the OALJ rules of practice
and procedure are to be administered to secure the just, speedy, and
inexpensive determination of every proceeding. In whistleblower cases,
in particular, the regulations direct that hearings are to commence
expeditiously. See, e.g., 20 CFR 1979.107(b). Moreover, if necessary,
Sec. 18.72 gives the ALJ the discretion to adjust deadlines, as
appropriate.
One comment argued that Sec. 18.72(h) should be revised to
explicitly state that it does not apply in proceedings under the LHWCA
and the BLBA because 33 U.S.C. 927(b) expressly provides a procedure
(i.e., certification of facts to a federal district court for summary
contempt proceedings) for resistance of a lawful order, misconduct
during hearings, and discovery violations. The commenter thus argued
that the sanctions listed in the Sec. 18.72(h) are unavailable to ALJs
presiding in hearings under the LHWCA or BLBA. The Department declines
to adopt the commenters' suggestion for the reasons detailed above in
section II, ``Conflicts with the LHWCA and BLBA.''
Sec. 18.80 Prehearing statement. The Department added a
requirement that a participating party file a prehearing statement at
least 21 days prior to the date set for hearing. Prior Sec. 18.7 did
not have a requirement for filing prehearing statements.
A commenter proposed that the time for filing the prehearing
statement be extended to 45 days prior to hearing to allow the parties
time to ascertain if additional discovery is needed, and to prevent the
need for continuances to conduct discovery on witnesses and evidence
not timely disclosed. The commenter argued that the additional time
will preclude post trial depositions to rectify untimely disclosed
information. The Department declines to extend the date for submission
of the prehearing statement and notes that the rule allows for the
judge to order a different time frame, if appropriate.
A commenter objected to the statement in the NPRM that the
Department proposed to add a new regulation at Sec. 18.80(e) requiring
a party to file objections to an opposing party's proposed exhibits or
use of deposition testimony within 14 days of being served, and that
failure to object waives an objection unless the judge finds good cause
for failure to object. The NPRM is in error. The new rule does not
include such a provision.
Sec. 18.84 Official notice. The Department clarifies procedures in
Sec. 18.84 that a judge may follow when taking judicial notice. The
rule provides that official notice may be taken of any adjudicative
fact or other matter subject to judicial notice, and the parties must
be given an adequate opportunity to show the contrary of the matter
noticed.
A commenter objected to a practice by ALJs in BLBA claims of taking
official notice of the Dictionary of Occupational Titles (4th ed. Rev.
1991). He contended that such practice invades upon the province of a
medical expert who must consider job duties and tasks in assessing
whether a pulmonary impairment would or would not prevent the
performance of such tasks. Although the Department agrees with the
commenter that a matter subject to judicial notice is a matter whose
accuracy cannot be reasonably questioned, it declines to identify
specific matters for which official notice is not appropriate. The rule
states that parties must be given an adequate opportunity to show the
contrary of the matter noted. The Department accordingly declines to
amend this provision.
Sec. 18.87 Standards of conduct. The Department relocated the
prior Sec. 18.36 to Sec. 18.87 and divided the prior paragraph (b)
into two paragraphs: (b) Exclusion for misconduct, and (c) Review of
representative's exclusion. A commenter contended that the rule should
be revised to explicitly state that Sec. 18.87 does not apply in
proceedings under the LHWCA and BLBA. The commenter reasoned that rules
of procedure apply only to the extent that they are consistent with the
BLBA or its implementing regulations, and since the LHWCA and BLBA
contain a specific statutory provision dealing with the resistance of
an order, misconduct during hearings, and discovery violations, 33
U.S.C. 927(b), the sanction provisions under either the Rules of
Practice and Procedure before the OALJ or the FRCP do not apply. The
commenter also objected to the rule because Congress did not vest the
OALJ with contempt powers. The Department declines to adopt the
commenters' suggestion for the reasons detailed above in section II,
``Conflicts with the LHWCA and BLBA.''
Sec. 18.88 Transcript of proceedings. Section 18.88(b) of the new
rule states that motions to correct the official transcript must be
filed within 14 days of the receipt of the transcript unless the judge
permits additional time. A commenter suggested that motions to correct
be filed seven days after filing of the post-hearing brief. The
commenter reasoned that attorneys typically review the transcript as
they write the brief, and that counsel can be more helpful in this
regard after they have reviewed the transcript in preparation for their
brief. The Department declines to extend the date for motions to
correct. The Department contemplates that parties would have a
corrected transcript at the time they prepare their brief. Also, the
rule allows for correction of errors discovered during preparation of a
brief, as the rule provides that a judge may correct errors in the
transcript at any time before issuing a decision and upon notice to the
parties.
Sec. 18.92 Decision and order. The Department revised the prior
Sec. 18.57 into two sections, Sec. 18.91, Post-hearing Briefs; and
Sec. 18.92, Decision and Order. The language that the Department
deleted stated that the ALJ was to issue a decision within a
``reasonable time'' after receiving the parties' filings or within 30
days after receiving the parties' consent findings. Two commenters
submitted concerns about the new Sec. 18.92. They observed that, under
the current practice, parties ``have no mechanism or ability to know
when decisions will be issued,'' and expressed concern that delays
adversely impact both employers and employees. The Department has
determined that questions about how long it takes the OALJ's judges to
issue their decisions are best handled as matters of policy and
resource allocation. The Department therefore declines to adopt the
commenters' suggestions that Sec. 18.92 be amended to include a
timeframe for issuance of a judge's decision.
Sec. 18.93 Motion for reconsideration. The prior rule contained no
general provision on motions for reconsideration of decisions and
orders. The Department added a new provision stating that motions for
reconsideration of a decision and order must be filed within 10 days
after service of the decision on the moving party.
One commenter suggested that the provision be amended to permit
motions for reconsideration to be filed within 30 days, instead of the
10 days in the new rule. The commenter stated that the BLBA regulation
permits such motions to be filed within 30 days. 20 CFR 725.479(b). In
the commenter's view, its proposal will provide for uniformity among
all types of cases. The commenter also indicated that a longer time
period for such motions will obviate the need to submit motions for
extensions of time to file motions for reconsideration, and will
provide practitioners and their clients with sufficient time to make
informed

[[Page 28783]]

decisions about whether to even file motions for reconsideration. Broad
motions aimed at all issues will thus be avoided and the resulting
burden on ALJs will be reduced.
As the commenter correctly indicated, and as mentioned in the NPRM,
the new rule is modeled after FRCP 59(e), which gives parties 28 days
from the date of entry of a judgment to file a motion to alter or amend
the judgment. A motion for reconsideration may be filed in BLBA cases
within 30 days. 20 CFR 725.479(b). Compensation orders in LHWCA cases
similarly are final 30 days after filing unless other proceedings are
instituted.
The Department considered other timeframes for motions for
reconsideration that were more in line with FRCP 59(e) or 20 CFR
725.479(b). However, some of the Department's regulations pertaining to
specific statutes within the OALJ's purview state that the ALJ's
decision and order is final, unless a petition for review is filed with
the ARB within a specific time, less than 30 days from service of the
ALJ's decision and order. See, e.g., 29 CFR 1978.109(e)(specifying 14
days for cases under the Surface Transportation Assistance Act); 29 CFR
1980.110(e) (specifying 10 days for cases under the Sarbanes-Oxley
Act); 29 CFR 1992.110(a)(specifying 10 days for cases under the
National Transit Systems Security Act/Federal Railroad Safety Act).
Permitting a party to move for reconsideration after the date that a
petition for review must be filed with the ARB would be inconsistent
with the Department's position regarding finality of ALJ decisions in
such cases. Additionally, if the deadline for submitting a motion for
reconsideration is after the deadline for submitting a petition for
review, if a motion for reconsideration is not submitted, a party may
thereby inadvertently foreclose its options regarding appeal. The
Department therefore declines to adopt the commenter's suggestion
regarding the number of days within which motions for reconsideration
can be filed.

IV. Cross Referencing Chart

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

Part 18, Subpart A--Cross Referencing Chart

----------------------------------------------------------------------------------------------------------------
Old section
New section New section title Old section title Federal Rule of Civil Procedure
----------------------------------------------------------------------------------------------------------------
General Provisions
----------------------------------------------------------------------------------------------------------------
18.10............. Scope and purpose 18.1/18.26......... Scope of rules Fed. R. Civ. P. 1.
and conduct of
hearings.
18.11............. Definitions...... 18.2............... Definitions.....
18.12............. Proceedings 18.25/18.29(a)..... Proceedings
before 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 Fed. R. Civ. P. 63.
administrative of
law judge. administrative
law judge.
18.16............. Disqualification. 18.31.............. Disqualification
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 right to appear
participation. and failure to
participate or
to appear--text
was
incorporated
into proposed
``participation
'' rule.
18.22............. Representatives.. 18.34.............. Representatives.
18.23............. Disqualification
of
representatives.
18.24............. Briefs from 18.12.............. Amicus curiae...
amicus curiae.
----------------------------------------------------------------------------------------------------------------
Service, Format and Timing of Filings and Other Papers
----------------------------------------------------------------------------------------------------------------
18.30............. Service and 18.3............... Service and Fed. R. Civ. P. 5.
filing. filing.
18.31............. Privacy ................... ................ Fed. R. Civ. P. 5.2.
protection for
filings and
exhibits.
18.32............. Computing and 18.4............... Time Fed. R. Civ. P. 6.
extending time. computations.
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--answ
Office of er and request
Administrative for 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.

[[Page 28784]]


18.44............. Prehearing 18.8............... Prehearing Fed. R. Civ. P. 16.
conference. conferences.
----------------------------------------------------------------------------------------------------------------
Disclosure and Discovery
----------------------------------------------------------------------------------------------------------------
18.50............. General ................... ................ Fed. R. Civ. P. 26 (a), (d), (f),
provisions (g).
governing
disclosure and
discovery.
18.51............. Discovery scope 18.14.............. Scope of Fed. R. Civ. P. 26 (b).
and limits. discovery.
18.52............. Protective orders 18.15.............. Protective Fed. R. Civ. P. 26 (c).
orders.
18.53............. Supplementing 18.16.............. Supplementation Fed. R. Civ. P.26 (e).
disclosures and of responses.
responses.
18.54............. Stipulations 18.17.............. Stipulations Fed. R. Civ. P. 29.
about discovery regarding
and procedure. discovery.
18.55............. Using depositions 18.23.............. Use of Fed. R. Civ. P. 32.
at hearings. depositions 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 discovery.
to cooperate in
discovery;
sanctions.
----------------------------------------------------------------------------------------------------------------
Types of Discovery
----------------------------------------------------------------------------------------------------------------
18.60............. Interrogatories 18.18.............. Written Fed. R. Civ. P. 33.
to 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 or
consent findings.
18.72............. Summary decision. 18.40/18.41........ 18.40, Motion Fed. R. Civ. P. 56.
for 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
classified orders/
material. restricted
access.
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
proceedings. hearings.
----------------------------------------------------------------------------------------------------------------
Post Hearing
----------------------------------------------------------------------------------------------------------------
18.90............. Closing the 18.54/18.55........ Closing the
record; record /receipt
subsequent of documents
motions. after hearing.
18.91............. Post-hearing 18.57.............. Decision of the
brief. administrative
law judge and
post-hearing
briefs.
18.92............. Decision and 18.57.............. Decision of the
order. 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 18.58.............. Appeals.........
Decision.
----------------------------------------------------------------------------------------------------------------
Deleted Sections
----------------------------------------------------------------------------------------------------------------
Deleted.......... 18.13.............. Discovery
methods.
Deleted.......... 18.32.............. Separation of
functions.

[[Page 28785]]


Deleted.......... 18.33.............. Expedition......
Deleted.......... 18.53.............. Closing of
hearings.
Deleted.......... 18.59.............. Certification of
official record.
----------------------------------------------------------------------------------------------------------------

List of Subjects in 29 CFR Part 18

Administrative practice and procedure, Labor.

Signed: At Washington, DC, this 7th of May, 2015.
Thomas E. Perez,
Secretary of Labor.

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

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

0
1. The authority citation for part 18 continues to read as follows:


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

0
2. Revise subpart A to read as follows:

Subpart A--General

Sec.

General Provisions

18.10 Scope and purpose.
18.11 Definitions.
18.12 Proceedings before administrative law judge.
18.13 Settlement judge procedure.
18.14 Ex parte communication.
18.15 Substitution of administrative law judge.
18.16 Disqualification.
18.17 Legal assistance.

Parties and Representatives

18.20 Parties to a proceeding.
18.21 Party appearance and participation.
18.22 Representatives.
18.23 Disqualification of representatives.
18.24 Briefs from amicus curiae.

Service, Format, and Timing of Filings and Other Papers

18.30 Service and filing.
18.31 Privacy protection for filings and exhibits.
18.32 Computing and extending time.
18.33 Motions and other papers.
18.34 Format of papers filed.
18.35 Signing motions and other papers; representations to the
judge; sanctions.
18.36 Amendments after referral to the Office of Administrative Law
Judges.

Prehearing Procedure

18.40 Notice of hearing.
18.41 Continuances and changes in place of hearing.
18.42 Expedited proceedings.
18.43 Consolidation; separate hearings.
18.44 Prehearing conference.

Disclosure and Discovery

18.50 General provisions governing disclosure and discovery.
18.51 Discovery scope and limits.
18.52 Protective orders.
18.53 Supplementing disclosures and responses.
18.54 Stipulations about discovery procedure.
18.55 Using depositions at hearings.
18.56 Subpoena.
18.57 Failure to make disclosures or to cooperate in discovery;
sanctions.

Types of Discovery

18.60 Interrogatories to parties.
18.61 Producing documents, electronically stored information, and
tangible things, or entering onto land, for inspection and other
purposes.
18.62 Physical and mental examinations.
18.63 Requests for admission.
18.64 Depositions by oral examination.
18.65 Depositions by written questions.

Disposition Without Hearing

18.70 Motions for dispositive action.
18.71 Approval of settlement or consent findings.
18.72 Summary decision.

Hearing

18.80 Prehearing statement.
18.81 Formal hearing.
18.82 Exhibits.
18.83 Stipulations.
18.84 Official notice.
18.85 Privileged, sensitive, or classified material.
18.86 Hearing room conduct.
18.87 Standards of conduct.
18.88 Transcript of proceedings.

Post Hearing

18.90 Closing the record; subsequent motions.
18.91 Post-hearing brief.
18.92 Decision and order.
18.93 Motion for reconsideration.
18.94 Indicative ruling on a motion for relief that is barred by a
pending petition for review.
18.95 Review of decision

General Provisions


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.
Calendar call means a meeting in which the judge calls cases
awaiting hearings, determines case status, and assigns a hearing date
and time.
Chief Judge means the Chief Administrative Law Judge of the United
States Department of Labor Office of Administrative Law Judges and
judges to whom the Chief Judge delegates authority.
Docket clerk means the Chief Docket Clerk at the Office of
Administrative Law Judges in Washington, DC. But once a case is
assigned to a judge in a district office, docket clerk means the docket
staff in that office.
Hearing means that part of a proceeding consisting of a session to
decide issues of fact or law that is recorded and transcribed and
provides the opportunity to present evidence or argument.
Judge means an administrative law judge appointed under the
provisions of 5 U.S.C. 3105.
Order means the judge's disposition of one or more procedural or
substantive issues, or of the entire matter.
Proceeding means an action before the Office of Administrative Law
Judges

[[Page 28786]]

that creates a record leading to an adjudication or order.
Representative means any person permitted to represent another in a
proceeding before the Office of Administrative Law Judges.


Sec. 18.12 Proceedings before administrative law judge.

(a) Designation. The Chief Judge designates the presiding judge for
all proceedings.
(b) Authority. In all proceedings under this part, the judge has
all powers necessary to conduct fair and impartial proceedings,
including those described in the Administrative Procedure Act, 5 U.S.C.
556. Among them is the power to:
(1) Regulate the course of proceedings in accordance with
applicable statute, regulation or executive order;
(2) Administer oaths and affirmations and examine witnesses;
(3) Compel the production of documents and appearance of witnesses
within a party's control;
(4) Issue subpoenas authorized by law;
(5) Rule on offers of proof and receive relevant evidence;
(6) Dispose of procedural requests and similar matters;
(7) Terminate proceedings through dismissal or remand when not
inconsistent with statute, regulation, or executive order;
(8) Issue decisions and orders;
(9) Exercise powers vested in the Secretary of Labor that relate to
proceedings before the Office of Administrative Law Judges; and
(10) Where applicable take any appropriate action authorized by the
FRCP.


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, and 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.

[[Page 28787]]

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.
(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. Any attorney representative must include in the notice of
appearance the license registration number(s) assigned to the attorney.
(b) Categories of representation; admission standards--(1) Attorney
representative. Under these rules, ``attorney'' or ``attorney
representative'' means an individual who has been admitted to the bar
of the highest court of a State, Commonwealth, or Territory of the
United States, or the District of Columbia.
(i) Attorney in good standing. An attorney who is in good standing
in his or her licensing jurisdiction may represent a party or
subpoenaed witness before the Office of Administrative Law Judges. The
filing of the Notice of Appearance required in paragraph (a) of this
section constitutes an attestation that:
(A) The attorney is a member of a bar in good standing of the
highest court of a State, Commonwealth, or Territory of the United
States, or the District of Columbia where the attorney has been
licensed to practice law; and
(B) No disciplinary proceeding is pending against the attorney in
any jurisdiction where the attorney is licensed to practice law.
(ii) Attorney not in good standing. An attorney who is not in good
standing in his or her licensing jurisdiction may not represent a party
or subpoenaed witness before the Office of Administrative Law Judges,
unless he or she obtains the judge's approval. Such an attorney must
file a written statement that establishes why the failure to maintain
good standing is not disqualifying. The judge may deny approval for the
appearance of such an attorney after providing notice and an
opportunity to be heard.
(iii) Disclosure of discipline. An attorney representative must
promptly disclose to the judge any action suspending, enjoining,
restraining, disbarring, or otherwise currently restricting the
attorney in the practice of law in any jurisdiction where the attorney
is licensed to practice law.
(2) Non-attorney representative. An individual who is not an
attorney as defined by paragraph (b)(1) of this section may represent a
party or subpoenaed witness upon the judge's approval. The individual
must file a written request to serve as a non-attorney representative
that sets forth the name of the party or subpoenaed witness represented
and certifies that the party or subpoenaed witness desires the
representation. The judge may require that the representative establish
that he or she is subject to the laws of the United States and
possesses communication skills, knowledge, character, thoroughness and
preparation reasonably necessary to render appropriate assistance. The
judge may inquire as to the qualification or ability of a non-attorney
representative to render assistance at any time. The judge may deny the
request to serve as non-attorney representative after providing the
party or subpoenaed witness with notice and an opportunity to be heard.
(c) Duties. A representative must be diligent, prompt, and
forthright when dealing with parties, representatives and the judge,
and act in a manner that furthers the efficient, fair and orderly
conduct of the proceeding. An attorney representative must adhere to
the applicable rules of conduct for the jurisdiction(s) in which the
attorney is admitted to practice.
(d) Prohibited actions. A representative must not:
(1) Threaten, coerce, intimidate, deceive or knowingly mislead a
party, representative, witness, potential witness, judge, or anyone
participating in the proceeding regarding any matter related to the
proceeding;
(2) Knowingly make or present false or misleading statements,
assertions or representations about a material fact or law related to
the proceeding;
(3) Unreasonably delay, or cause to be delayed without good cause,
any proceeding; or
(4) Engage in any other action or behavior prejudicial to the fair
and orderly conduct of the proceeding.
(e) Withdrawal of appearance. A representative who desires to
withdraw after filing a notice of appearance or a party desiring to
withdraw the appearance of a representative must file a motion with the
judge. The motion must state that notice of the withdrawal has been
given to the party, client or representative. The judge may deny a
representative's motion to withdraw when necessary to avoid undue delay
or prejudice to the rights of a party.


Sec. 18.23 Disqualification of representatives.

(a) Disqualification--(1) Grounds for disqualification.
Representatives qualified under Sec. 18.22 may be disqualified for:
(i) Suspension of a license to practice law or disbarment from the
practice of law by any court or agency of the United States, highest
court of a State, Commonwealth, or Territory of the United States, or
the District of Columbia;
(ii) Disbarment from the practice of law on consent or resignation
from the bar of a court or agency while an investigation into an
allegation of misconduct is pending; or
(iii) Committing an act, omission, or contumacious conduct that
violates these rules, an applicable statute, an applicable regulation,
or the judge's order(s).
(2) Disqualification procedure. The Chief Judge must provide notice
and an opportunity to be heard as to why the representative should not
be disqualified from practice before the Office of Administrative Law
Judges. The notice will include a copy of the document that provides
the grounds for the disqualification. Unless otherwise directed, any
response must be filed within 21 days of service of the notice. The
Chief Judge's determination must be based on the reliable, probative
and substantial evidence of record, including the notice and response.
(b) Notification of disqualification action. When an attorney
representative is disqualified, the Chief Judge will notify the
jurisdiction(s) in which the attorney is licensed to practice and the
National Lawyer Regulatory Data Bank maintained by the American Bar
Association Standing Committee on Professional Discipline, by providing
a copy of the decision and order.
(c) Application for reinstatement. A representative disqualified
under this section may be reinstated by the Chief Judge upon
application. At the discretion of the Chief Judge, consideration of an
application for reinstatement may be limited to written submissions or
may be referred for

[[Page 28788]]

further proceedings before the Chief Judge.


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. The deadline for submission of an amicus brief will
be set by the presiding judge.

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--(i) Serving a party's representative. If a
party is represented, service under this section must be made on the
representative. The judge also may order service on the party.
(ii) Service in general. A paper is served under this section by:
(A) Handing it to the person;
(B) Leaving it;
(1) At the person's office with a clerk or other person in charge
or, if no one is in charge, in a conspicuous place in the office; or
(2) If the person has no office or the office is closed, at the
person's dwelling or usual place of abode with someone of suitable age
and discretion who resides there.
(C) Mailing it to the person's last known address--in which event
service is complete upon mailing;
(D) Leaving it with the docket clerk if the person has no known
address;
(E) Sending it by electronic means if the person consented in
writing--in which event service is complete upon transmission, but is
not effective if the serving party learns that it did not reach the
person to be served; or
(F) Delivering it by any other means that the person consented to
in writing--in which event service is complete when the person making
service delivers it to the agency designated to make delivery.
(3) Certificate of service. A certificate of service is a signed
written statement that the paper was served on all parties. The
statement must include:
(i) The title of the document;
(ii) The name and address of each person or representative being
served;
(iii) The name of the party filing the paper and the party's
representative, if any;
(iv) The date of service; and
(v) How the paper was served.
(b) Filing with Office of Administrative Law Judges--(1) Required
filings. Any paper that is required to be served must be filed within a
reasonable time after service with a certificate of service. But
disclosures under 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:
(i) Notices of deposition,
(ii) Depositions,
(iii) Interrogatories,
(iv) Requests for documents or tangible things or to permit entry
onto land;
(v) Requests for admission, and
(vi) The notice (and the related copy of the subpoena) that must be
served on the parties under rule 18.56(b)(1) before a ``documents
only'' subpoena may be served on the person commended to produce the
material.
(2) Filing: when made--in general. A paper is filed when received
by the docket clerk or the judge during a hearing.
(3) Filing how made. A paper may be filed by mail, courier service,
hand delivery, facsimile or electronic delivery.
(i) Filing by facsimile--(A) When permitted. A party may file by
facsimile only as directed or permitted by the judge. If a party cannot
obtain prior permission because the judge is unavailable, a party may
file by facsimile up to 12 pages, including a statement of the
circumstances precluding filing by delivery or mail. Based on the
statement, the judge may later accept the document as properly filed at
the time transmitted.
(B) Cover sheet. Filings by facsimile must include a cover sheet
that identifies the sender, the total number of pages transmitted, and
the matter's docket number and the document's title.
(C) Retention of the original document. The original signed
document will not be substituted into the record unless required by law
or the judge.
(ii) Any party filing a facsimile of a document must maintain the
original document and transmission record until the case is final. A
transmission record is a paper printed by the transmitting facsimile
machine that states the telephone number of the receiving machine, the
number of pages sent, the transmission time and an indication that no
error in transmission occurred.
(iii) Upon a party's request or judge's order, the filing party
must provide for review the original transmitted document from which
the facsimile was produced.
(4) Electronic filing, signing, or verification. A judge may allow
papers to be filed, signed, or verified by electronic means.


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 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 and 18.52.


Sec. 18.32 Computing and extending time.

(a) Computing time. The following rules apply in computing any time

[[Page 28789]]

period specified in these rules, a judge's order, or in any statute,
regulation, or executive order that does not specify a method of
computing time.
(1) When the period is stated in days or a longer unit of time:
(i) Exclude the day of the event that triggers the period;
(ii) Count every day, including intermediate Saturdays, Sundays,
and legal holidays; and
(iii) Include the last day of the period, but if the last day is a
Saturday, Sunday, or legal holiday, the period continues to run until
the end of the next day that is not a Saturday, Sunday, or legal
holiday.
(2) ``Last day'' defined. Unless a different time is set by a
statute, regulation, executive order, or judge's order, the ``last
day'' ends at 4:30 p.m. local time where the event is to occur.
(3) ``Next day'' defined. The ``next day'' is determined by
continuing to count forward when the period is measured after an event
and backward when measured before an event.
(4) ``Legal holiday'' defined. ``Legal holiday'' means the day set
aside by statute for observing New Year's Day, Martin Luther King Jr.'s
Birthday, Washington's Birthday, Memorial Day, Independence Day, Labor
Day, Columbus Day, Veterans' Day, Thanksgiving Day, or Christmas Day;
and any day on which the district office in which the document is to be
filed is closed or otherwise inaccessible.
(b) Extending time. When an act may or must be done within a
specified time, the judge may, for good cause, extend the time:
(1) With or without motion or notice if the judge acts, or if a
request is made, before the original time or its extension expires; or
(2) On motion made after the time has expired if the party failed
to act because of excusable neglect.
(c) Additional time after certain kinds of service. When a party
may or must act within a specified time after service and service is
made under 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 paragraph (c)(4) of this section, include a
memorandum of points and authority supporting the movant's position.
(b) Form. The rules governing captions and other matters of form
apply to motions and other requests.
(c) Written motion before hearing. (1) A written motion before a
hearing must be served with supporting papers, at least 21 days before
the time specified for the hearing, with the following exceptions:
(i) When the motion may be heard ex parte;
(ii) When these rules or an appropriate statute, regulation, or
executive order set a different time; or
(iii) When an order sets a different time.
(2) A written motion served within 21 days before the hearing must
state why the motion was not made earlier.
(3) A written motion before hearing must state that counsel
conferred, or attempted to confer, with opposing counsel in a good
faith effort to resolve the motion's subject matter, and whether the
motion is opposed or unopposed. A statement of consultation is not
required with pro se litigants or with the following motions:
(i) To dismiss;
(ii) For summary decision; and
(iii) Any motion filed as ``joint,'' ``agreed,'' or ``unopposed.''
(4) Unless the motion is unopposed, the supporting papers must
include affidavits, declarations or other proof to establish the
factual basis for the relief. For a dispositive motion and a motion
relating to discovery, a memorandum of points and authority must also
be submitted. A judge may direct the parties file additional documents
in support of any motion.
(d) Opposition or other response to a motion filed prior to
hearing. A party to the proceeding may file an opposition or other
response to the motion within 14 days after the motion is served. The
opposition or response may be accompanied by affidavits, declarations,
or other evidence, and a memorandum of the points and authorities
supporting the party's position. Failure to file an opposition or
response within 14 days after the motion is served may result in the
requested relief being granted. Unless the judge directs otherwise, no
further reply is permitted and no oral argument will be heard prior to
hearing.
(e) A motions made at hearing. A motion made at a hearing may be
stated orally unless the judge determines that a written motion or
response would best serve the ends of justice.
(f) Renewed or repeated motions. A motion seeking the same or
substantially similar relief previously denied, in whole or in part,
must include the following information:
(1) The earlier motion(s),
(2) When the respective motion was made,
(3) The judge to whom the motion was made,
(4) The earlier ruling(s), and
(5) The basis for the current motion.
(g) Motion hearing. The judge may order a hearing to take evidence
or oral argument on a motion.


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 Sec.
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 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;

[[Page 28790]]

(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 may
include, but is not limited to, striking part or all of the offending
document, forbidding the filing of any further documents, excluding
related evidence, admonishment, referral of counsel misconduct to the
appropriate licensing authority, and including the sanctioned activity
in assessing the quality of representation when determining an
appropriate hourly rate and billable hours when adjudicating attorney
fees.
(5) Requirements for an order. An order imposing a sanction must
describe the sanctioned conduct and explain the basis for the sanction.
(d) Inapplicability to discovery. This section does not apply to
disclosures and discovery requests, responses, objections, and motions
under 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;
(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

[[Page 28791]]

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:
(i) 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
(ii) 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:
(i) Methods of discovery may be used in any sequence; and
(ii) 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:
(i) 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;
(ii) 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;
(iii) Any issues about disclosure or discovery of electronically
stored information, including the form or forms in which it should be
produced;
(iv) 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;
(v) What changes should be made in the limitations on discovery
imposed under these rules and what other limitations should be imposed;
and
(vi) Any other orders that the judge should issue under Sec. 18.52
or Sec. 18.44.
(c) Required disclosures--(1) Initial disclosure--(i) In general.
Except as exempted by paragraph (c)(1)(ii) of this section or otherwise
ordered by the judge, a party must, without awaiting a discovery
request, provide to the other parties:
(A) 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;
(B) 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
(C) 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.
(ii) Proceedings exempt from initial disclosure. The following
proceedings are exempt from initial disclosure:
(A) 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;
(B) A proceeding before the Board of Alien Labor Certification
Appeals under the Immigration and Nationality Act; and
(C) A proceeding under the regulations governing certification of
H-2 non-immigrant temporary agricultural employment at 20 CFR part 655,
subpart B;
(D) A rulemaking proceeding under the Occupational Safety and
Health Act of 1970; and
(E) A proceeding for civil penalty assessments under Employee
Retirement Income Security Act of 1974, 29 U.S.C. 1132.
(iii) Parties exempt from initial disclosure. The following parties
are exempt from initial disclosure:
(A) In a Black Lung benefits proceeding under 30 U.S.C. 901 et
seq., the representative of the Office of 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
(B) In a proceeding under the Longshore and Harbor Workers'
Compensation Act, 33 U.S.C. 901-950, or an associated statute such as
the Defense Base Act, 42 U.S.C. 1651-1654, 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).
(iv) Time for initial disclosures--in general. A party must make
the initial disclosures required by paragraph

[[Page 28792]]

(c)(1)(i) 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 a different time is set by stipulation or a judge's
order, or 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.
(v) 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. Copies of all prior disclosures must be served on a
newly served or joined party within 21 days of the service or joinder.
(vi) 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--(i) 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.
(ii) 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:
(A) A complete statement of all opinions the witness will express
and the basis and reasons for them;
(B) The facts or data considered by the witness in forming them;
(C) Any exhibits that will be used to summarize or support them;
(D) The witness's qualifications, including a list of all
publications authored in the previous 10 years;
(E) 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
(F) A statement of the compensation to be paid for the study and
testimony in the case.
(iii) 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:
(A) The subject matter on which the witness is expected to present
expert opinion evidence; and
(B) A summary of the facts and opinions to which the witness is
expected to testify.
(iv) 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 this paragraph (c) 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:
(i) With respect to a disclosure, it is complete and correct as of
the time it is made; and
(ii) With respect to a discovery request, response, or objection,
it is:
(A) 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;
(B) Not interposed for any improper purpose, such as to harass,
cause unnecessary delay, or needlessly increase the cost of litigation;
and
(C) 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 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) Inadvertently disclosed privileged or protected information. 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.

[[Page 28793]]

(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:
(i) 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;
(ii) The party seeking discovery has had ample opportunity to
obtain the information by discovery in the action; or
(iii) 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:
(i) They are otherwise discoverable under paragraph (a) of this
section; and
(ii) 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:
(i) A written statement that the person has signed or otherwise
adopted or approved; or
(ii) 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:
(i) Relate to compensation for the expert's study or testimony;
(ii) Identify facts or data that the party's representative
provided and that the expert considered in forming the opinions to be
expressed; or
(iii) 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:
(i) As provided in Sec. 18.62(c); or
(ii) 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:
(i) Expressly make the claim; and
(ii) 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 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

[[Page 28794]]

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. If there is no objection,
all or part of a deposition may be used at a hearing to the extent it
would be admissible under the applicable rules of evidence as if the
deponent were present and testifying.
(2) Over objection. Notwithstanding any objection, all or part of a
deposition may be used at a hearing against a party on these
conditions:
(i) The party was present or represented at the taking of the
deposition or had reasonable notice of it;
(ii) It is used to the extent it would be admissible under the
applicable rules of evidence if the deponent were present and
testifying; and
(iii) The use is allowed by paragraphs (a)(3) through (9) of this
section.
(3) 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.
(4) 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).
(5) 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.
(6) Unavailable witness. A party may use for any purpose the
deposition of a witness, whether or not a party, if the judge finds:
(i) That the witness is dead;
(ii) 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;
(iii) That the witness cannot attend or testify because of age,
illness, infirmity, or imprisonment;
(iv) That the party offering the deposition could not procure the
witness's attendance by subpoena; or
(v) 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.
(7) Limitations on use--(i) 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.
(ii) 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)(i)(C) 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.
(8) 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.
(9) 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:
(i) Before the deposition begins; or
(ii) Promptly after the basis for disqualification becomes known
or, with reasonable diligence, could have been known.
(3) To the taking of the deposition--(i) 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.
(ii) Objection to an error or irregularity. An objection to an
error or irregularity at an oral examination is waived if:
(A) 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
(B) It is not timely made during the deposition.
(iii) 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 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

[[Page 28795]]

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--(i) Requirements--in general. Every subpoena
must:
(A) 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);
(B) Bear the signature of the issuing judge;
(C) 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
(D) Set out the text of paragraphs (c) and (d) of this section.
(ii) 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.
(iii) 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.
(iv) 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.
(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 on the person to
whom it is directed, a notice and copy of the subpoena must be served
on each party.
(2) Service in the United States. Subject to paragraph (c)(3)(i)(B)
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--(i)
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.
(ii) 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:
(A) At any time, on notice to the commanded person, the serving
party may move the judge for an order compelling production or
inspection.
(B) 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--(i) When required. On timely
motion, the judge must quash or modify a subpoena that:
(A) Fails to allow a reasonable time to comply;
(B) 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)(ii)(C) of this section, the person may be
commanded to attend the formal hearing;
(C) Requires disclosure of privileged or other protected matter, if
no exception or waiver applies; or
(D) Subjects a person to undue burden.
(ii) 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:
(A) Disclosing a trade secret or other confidential research,
development, or commercial information;
(B) 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
(C) 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.
(iii) Specifying conditions as an alternative. In the circumstances
described in paragraph (c)(3)(ii) of this section, the judge may,
instead of quashing or modifying a subpoena, order appearance or
production under specified conditions if the serving party:
(A) Shows a substantial need for the testimony or material that
cannot be otherwise met without undue hardship; and
(B) 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:
(i) 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.
(ii) Form for producing electronically stored information not
specified. If a subpoena does not specify a form for producing
electronically stored information, the person responding

[[Page 28796]]

must produce it in a form or forms in which it is ordinarily maintained
or in a reasonably usable form or forms.
(iii) Electronically stored information produced in only one form.
The person responding need not produce the same electronically stored
information in more than one form.
(iv) 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)(iii). The judge
may specify conditions for the discovery.
(2) Claiming privilege or protection--(i) Information withheld. A
person withholding subpoenaed information under a claim that it is
privileged or subject to protection as hearing-preparation material
must:
(A) Expressly make the claim; and
(B) 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.
(ii) 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--(i) 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.
(ii) 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:
(A) A deponent fails to answer a question asked under Sec. Sec.
18.64 and 18.65;
(B) A corporation or other entity fails to make a designation under
Sec. Sec. 18.64(b)(6) and 18.65(a)(4);
(C) A party fails to answer an interrogatory submitted under Sec.
18.60; or
(D) A party fails to respond that inspection will be permitted--or
fails to permit inspection--as requested under Sec. 18.61.
(iii) 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:
(i) 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;
(ii) Prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated matters
in evidence;
(iii) Striking claims or defenses in whole or in part;
(iv) Staying further proceedings until the order is obeyed;
(v) Dismissing the proceeding in whole or in part; or
(vi) 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--(i) Motion; grounds for sanctions. The judge may, on motion,
order sanctions if:
(A) 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
(B) 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.
(ii) 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)(i) 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).

[[Page 28797]]

(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:
(i) By the party to whom they are directed; or
(ii) 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:
(i) 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
(ii) 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:
(i) Must describe with reasonable particularity each item or
category of items to be inspected;
(ii) Must specify a reasonable time, place, and manner for the
inspection and for performing the related acts; and
(iii) May specify the form or forms in which electronically stored
information is to be produced.
(2) Responses and objections--(i) 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.
(ii) 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.
(iii) Objections. An objection to part of a request must specify
the part and permit inspection of the rest.
(iv) 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.
(v) 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:
(A) 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;
(B) 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
(C) 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.


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:
(i) The legal basis for the examination;
(ii) The time, place, manner, conditions, and scope of the
examination, as well as the person or persons who will perform it; and
(iii) How the reasonable transportation expenses were calculated.
(3) Service of notice. Unless otherwise agreed by the parties, the
notice must be

[[Page 28798]]

served no fewer than 30 days before the examination date.
(4) Objection. The person to be examined must serve any objection
to the notice no later than 14 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 no later than seven days after
it receives the report, 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:
(i) Facts, the application of law to fact, or opinions about
either; and
(ii) 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):
(i) If the parties have not stipulated to the deposition and:
(A) The deposition would result in more than 10 depositions being
taken under this section or Sec. 18.65 by one of the parties;
(B) The deponent has already been deposed in the case; or
(C) 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
(ii) 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--(i) 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.
(ii) 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.
(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) Deposition officer's duties--(i) 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:
(A) The officer's name and business address;
(B) The date, time, and place of the deposition;
(C) The deponent's name;
(D) The officer's administration of the oath or affirmation to the
deponent;

[[Page 28799]]

(E) The identity of all persons present; and
(F) The date and method of service of the notice of deposition.
(ii) Conducting the deposition; avoiding distortion. If the
deposition is recorded nonstenographically, the officer must repeat the
items in paragraphs (b)(5)(i)(A) and (B) 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.
(iii) 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 (b)(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)(i) 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--(i) 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.
(ii) 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:
(i) To review the transcript or recording; and
(ii) 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--(i) 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:
(A) 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
(B) 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.
(ii) 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

[[Page 28800]]

(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):
(i) If the parties have not stipulated to the deposition and:
(A) The deposition would result in more than 10 depositions being
taken under this section or Sec. 18.64 by a party;
(B) The deponent has already been deposed in the case; or
(C) The party seeks to take a deposition before the time specified
in Sec. 18.50(a); or
(ii) 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 deposition 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:
(i) 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
(ii) 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 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

[[Page 28801]]

(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.
(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.

[[Page 28802]]

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.


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. 2015-11586 Filed 5-18-15; 8:45 am]
BILLING CODE 4510-20-P