By: Bruce Buchanan, Sebelist Buchanan Law

The Office of the Chief Administrative Hearing Officer (OCAHO) issued a decision, in United States v. Sal’s Lounge, 15 OCAHO no. 1394 (July 16, 2021), finding the amended complaint filed by the U.S. Department of Homeland Security (DHS) must be stricken as it violated Federal Rule of Civil Procedure (FRCP) 15(a)(1).

On April 12, 2021, DHS served Sal’s Lounge with a complaint. On May 12, 2021, an answer to the complaint was filed on behalf of Sal’s Lounge. On June 23, 2021, DHS filed an Amended Complaint Regarding Unlawful Employment, where it revised the charging language in the original complaint.

The OCAHO Rules of Practice and Procedure for Administrative Hearings permit “appropriate amendments to complaints and other pleadings.” 28 C.F.R. § 68.9(e). Appropriate amendments are those that facilitate “a determination of a controversy on the merits” or “are necessary to avoid prejudicing the public interest and the rights of the parties.” Id. In determining whether to allow DHS to amend its complaint, OCAHO stated it seeks to identify and balance prejudice caused by the proposed amendment.

Section 68.9(e) is analogous to and is modeled upon Rule 15 of the FRCP. OCAHO’s rules specifically provide the FRCP “may be used as a general guideline in any situation not provided for or controlled by these rules.” 28 C.F.R. § 68.1. FRCP Rule 15(a)(1) states: “A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” FRCP Rule 15(a)(2) further provides, “in all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave.”

The 5th Circuit Court of Appeals (the applicable circuit in this case) has relied upon Rule 15 in determining whether to allow parties to amend their complaints, and has required DHS to seek leave of court, or the consent of Respondent, to amend complaints after responsive pleadings were filed. See Rachal v. Ingram Corp., 795 F.2d 1210, 1214 (5th Cir. 1986). OCAHO precedent likewise requires DHS to seek leave of court to amend its complaint after a Respondent has filed an answer to the complaint. United States v. FRC Balance, LLC, 14 OCAHO no. 1366, 2 (2020).

Although FRCP 15(a)(1) permits a party to amend its pleading “once as a matter of course,” it must do so within the time parameters provided. OCAHO found in Sal’s Lounge that DHS has failed to do so because it did not file its amended complaint within 21 days of the filing of its original complaint on April 12, 2021. Furthermore, DHS filed its amended complaint more than 21 days after Sal’s Lounge served its answer to the original complaint on May 12, 2021.

Although FRCP Rule 15(a)(2) permits the Court and OCAHO to “freely give leave when justice so requires,” and OCAHO’s rules likewise permit “appropriate amendments to complaints,” DHS neither sought leave of OCAHO to file its amended complaint nor provided Sal’s Lounge’s written consent. OCAHO therefore struck DHS’s amended complaint. If DHS wants to refile its amended complaint, it must seek leave of OCAHO or obtain Sal’s Lounge’s written consent to do so.

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