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DOL Office of Administrative Law Judges Revamps Procedural Rules
Thursday, May 21, 2015

The Department of Labor has issued its final rule revising the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges. The new rules become effective on June 18, 2015 and govern proceedings before the Department of Labor Office of Administrative Law Judges (OALJ), which presides over formal hearings concerning labor-related matters, including whistleblower retaliation claims.

The new rules are the first significant amendments to OALJ procedures since DOL promulgated OALJ procedural rules in 1983. The primary goal of the revised rules is to harmonize OALJ procedures with the Federal Rules of Civil Procedure (FRCP). Although the revised rules will likely increase litigation costs for whistleblowers adjudicating their claims at DOL, the OALJ is generally a more favorable forum than federal court because OALJ procedure is less formal than federal court procedure and allows for more flexible case management. But whistleblowers are increasingly obtaining substantial jury awards in federal court, including a recent six million dollar jury verdict in a Sarbanes-Oxley whistleblower retaliation case. The new rules may give whistleblowers another reason to remove to federal court when their claims are brought under a whistleblower protection statute that includes a kick-out provision.

The following are some key changes in the new OALJ rules:

  • Mandatory Initial Disclosures Similar to federal court procedure, § 18.50 now requires the parties to exchange initial disclosures within 21 days after entry of an initial docketing order. And the parties must

  • Using depositions at hearings 18.55 permits unconditional use of deposition testimony at hearings absent an objection, to the extent the testimony would be admissible as if the deponent were present and testifying. In other words, the party offering the deposition testimony need not show that the witness is unavailable to testify at the hearing.

  • Physical and Mental Examinations 18.62 now requires 30 day’s notice when a party seeks to take a physical or mental examination, unless the parties agree to a shorter notice period in their discovery plan, by stipulation, or through informal discussion.

While the revised OALJ rules address discovery of electronically stored information, the rules unfortunately contemplate “hardcopy delivery as the default authorized means of filing and allow[] electronic or facsimile filing only as authorized by order or regulation.”  The DOL rejected proposals to authorize parties to file documents by email, but ALJs have discretion to permit electronic filing.   And the revised rules maintain a 12- page limitation on facsimile filings absent leave from the ALJ. § 18.30(a)(2)(ii)(E) permits the parties to agree to serve each other by email. Hopefully Congress will appropriate funds for the OALJ to implement an electronic case filing system similar to the federal ECF or the Merit Systems Protection Board’s electronic filing system.

The final rule includes the following helpful table cross-referencing the new rules with the old rules and the Federal Rules of Civil Procedure:

New section

New section title

Old section

Old section title

Federal Rule of Civil Procedure

General Provisions

 

 

 

 

18.10

Scope and purpose

18.1/18.26

Scope of rules and conduct of hearings

Fed. R. Civ. P. 1.

18.11

Definitions

18.2

Definitions

 

18.12

Proceedings before administrative law judge

18.25/18.29(a)

Proceedings before administrative law judge/authority of the administrative law judge

 

18.13

Settlement judge procedure

18.9

Consent order or settlement; settlement judge procedure

 

18.14

Ex parte communication

18.38

Ex parte communications

 

18.15

Substitution of administrative law judge

18.30

Unavailability of administrative law judge

Fed. R. Civ. P. 63.

18.16

Disqualification

18.31

Disqualification

 

18.17

Legal assistance

18.35

Legal assistance

 

Parties and Representatives

 

 

 

 

18.20

Parties to a proceeding

18.10

Parties, how designated

 

18.21

Party appearance and participation

18.39/18.34(a)

18.39, Waiver of right to appear and failure to participate or to appear—text was incorporated into proposed “participation” rule

 

18.22

Representatives

18.34

Representatives

 

18.23

Disqualification of representatives

 

 

 

18.24

Briefs from amicus curiae

18.12

Amicus curiae

 

Service, Format and Timing of Filings and Other Papers

 

 

 

 

18.30

Service and filing

18.3

Service and filing

Fed. R. Civ. P. 5.

18.31

Privacy protection for filings and exhibits

 

 

Fed. R. Civ. P. 5.2.

18.32

Computing and extending time

18.4

Time computations

Fed. R. Civ. P. 6.

18.33

Motions and other papers

18.6

Motions and requests

Fed. R. Civ. P. 7(b) & 43(c).

18.34

Format of papers filed

 

 

 

18.35

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

 

 

Fed. R. Civ. P. 11.

18.36

Amendments after referral to the Office of Administrative Law Judges

18.5

Responsive pleadings—answer and request for hearings

 

Prehearing Procedure

 

 

 

 

18.40

Notice of hearing

18.27

Notice of hearing

 

18.41

Continuances and changes in place of hearing

18.28

Continuances

 

18.42

Expedited proceedings

18.42

Expedited proceedings

 

18.43

Consolidation; separate hearings

18.11

Consolidation of hearings

Fed. R. Civ. P. 42.

18.44

Prehearing conference

18.8

Prehearing conferences

Fed. R. Civ. P. 16.

Disclosure and Discovery

 

 

 

 

18.50

General provisions governing disclosure and discovery

 

 

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

18.51

Discovery scope and limits

18.14

Scope of discovery

Fed. R. Civ. P. 26 (b).

18.52

Protective orders

18.15

Protective orders

Fed. R. Civ. P. 26 (c).

18.53

Supplementing disclosures and responses

18.16

Supplementation of responses

Fed. R. Civ. P.26 (e).

18.54

Stipulations about discovery and procedure

18.17

Stipulations regarding discovery

Fed. R. Civ. P. 29.

18.55

Using depositions at hearings

18.23

Use of depositions at hearings

Fed. R. Civ. P. 32.

18.56

Subpoena

18.24

Subpoenas

Fed. R. Civ. P. 45.

18.57

Failure to make disclosures or to cooperate in discovery; sanctions

18.21

Motion to compel discovery

Fed. R. Civ. P. 37.

Types of Discovery

 

 

 

 

18.60

Interrogatories to parties

18.18

Written interrogatories to parties/

Fed. R. Civ. P. 33.

18.61

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

18.19

Production of documents and other evidence; entry upon land for inspection and other purposes; and physical and mental examination

Fed. R. Civ. P. 34.

18.62

Physical and mental examinations

18.19

Production of documents and other evidence; entry upon land for inspection and other purposes; and physical and mental examination

Fed. R. Civ. P. 35.

18.63

Requests for admission

18.20

Admissions

Fed. R. Civ. P. 36.

18.64

Depositions by oral examination

18.22

Depositions by oral examinations

Fed. R. Civ. P. 30.

18.65

Depositions by written questions

 

 

Fed. R. Civ. P. 31.

Disposition Without Hearing

 

 

 

 

18.70

Motions for dispositive action

 

 

 

18.71

Approval of settlement or consent findings

18.9

 

 

18.72

Summary decision

18.40/18.41

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

Fed. R. Civ. P. 56.

Hearing

 

 

 

 

18.80

Prehearing statement

18.7

Prehearing statements

 

18.81

Formal hearing

18.43

Formal hearings

Fed. R. Civ. P. 43(a).

18.82

Exhibits

18.47/18.48 18.49/18.50

Exhibits/records in other proceedings/designation of parts of documents/authenticity

 

18.83

Stipulations

18.51

Stipulations

 

18.84

Official notice

18.45

Official notice

 

18.85

Privileged, sensitive, or classified material

18.46/18.56

In camera and protective orders/restricted access

 

18.86

Hearing room conduct

18.37

Hearing room conduct

 

18.87

Standards of conduct

18.36

Standards of conduct

 

18.88

Transcript of proceedings

18.52

Record of hearings

 

Post Hearing

 

 

 

 

18.90

Closing the record; subsequent motions

18.54/18.55

Closing the record /receipt of documents after hearing

 

18.91

Post-hearing brief

18.57

Decision of the administrative law judge and post-hearing briefs

 

18.92

Decision and order

18.57

Decision of the administrative law judge and post-hearing briefs

 

18.93

Motion for reconsideration

 

 

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

18.94

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

 

 

Fed. R. Civ. P. 62.1.

18.95

Review of Decision

18.58

Appeals

 

Deleted Sections

 

 

 

 

 

Deleted

18.13

Discovery methods

 

 

Deleted

18.32

Separation of functions

 

 

Deleted

18.33

Expedition

 

 

Deleted

18.53

Closing of hearings

 

 

Deleted

18.59

Certification of official record

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