United States Department of Labor
Office of Administrative Law Judges Law Library

NOTICE: THIS INDEX WAS PREPARED BY THE CIVIL RIGHTS DIVISION, OFFICE OF THE SOLICITOR, U.S. DEPARTMENT OF LABOR, FOR INTERNAL USE. IT IS NOT AN OFFICIAL INTERPRETATION OF THE CASES, AND WAS LAST REVISED IN NOVEMBER, 1996.

Return to Table of Topics, 503 Index

The Federal Rules of Civil Procedure favor broad discovery by all parties of relevant evidence; relevant material is material admissible as evidence or material reasonably calculated to lead to the discovery of admissible evidence. OFCCP v. USAA Federal Savings Bank, 87-OFC-27, ALJ Rulings and Order on Plaintiff's and Defendant's Motions to Compel Discovery, December 20, 1989, slip op. at 2, ; ALJ Recommended Decision and Order on Motions for Summary Judgment, October 4, 1990, Secretary of Labor Final Decision and Order, March 16, 1995.

In determining that report of deceased physician should not be admitted in evidence, ALJ interprets the standards of admissability set forth in 41 CFR 60-30.18 (1990) as substantially the same as the standards imposed under FRE, even though the regulation provides that formal rules of evidence do not apply in Section 503 administrative proceedings. Texas Eastern Transmission Corp., 88-OFC-30, ALJ Order, June 11, 1990, slip op. at 2; ALJ Rec. Dec. and Order of Dismissal, April 30, 1991, stipulated dismissal, June 19, 1991.

Assistant Secretary denies OFCCP's motion to strike defendant's letter which was filed in response to OFCCP's Response to Defendant's Motion for Reconsideration. Assistant Secretary declines to follow OFCCP v. St. Regis Corp., 78-OFCCP-1, Secretary of Labor Order, July 11, 1988, on the grounds that there were exceptional circumstances for the refusal to permit further briefing in St. Regis, none of which were present here. OFCCP v. Texas Industries, Inc., 80-OFCCP-28, Assistant Secretary for Employment Standards Order of Remand and Stay of Enforcement, September 27, 1990, slip op. at 2-3, n.1., ALJ Dec. and Order on Remand, March 11, 1991; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

Contractor's motion for reconsideration is denied because motion fails to raise any issues not previously considered. Id. at 2-3; ALJ Dec. and Order on Remand, March 11, 1991; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

Contractor's claim that Assistant Secretary's seven-year delay in issuing a final decision and order violates 5 U.S.C. §555(b), which requires agencies to conclude matters before it "within a reasonable time," is not an appropriate ground for reconsidering the merits of the case. Id. at 3, n.2; ALJ Dec. and Order on Remand, March 11, 1991; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

Contractor demonstrated good cause for failure to request a hearing and failure to file a prehearing exchange as ALJ ordered where counsel candidly admitted that lack of hearing request resulted from oversight or absence of memory; where counsel did not receive ALJ's order regarding prehearing exchange; where case was allowed to languish in the Office of Administrative Law Judges for two years before it was assigned; and where parties had pursued discovery and no prejudice had tarnished proceedings. OFCCP v. United Parcel Service, Inc., 88-OFC-7, ALJ Order Finding Good Cause, September 25, 1990, slip op. at 1, ALJ Rec. Dec. and Order, August 1, 1991, stipulated dismissal, Special Assistant to the Assistant Secretary for Employment Standards Notice of Case Closing, January 14, 1992.

The procedural rules at 41 CFR Part 60-30 are controlling in cases filed under Section 503. However, if no rule is on point, the DOL procedural rules at 29 CFR Part 18, Subpart A are controlling, and situations not provided for in these rules are governed by the Federal Rules of Civil Procedure. OFCCP v. Jefferson County Board of Education, 90-OFC-4, ALJ Order Denying Summary Judgment and Compelling Discovery, November 16, 1990, slip op. at 7-8; Consent Decree, May 7, 1991.

ALJ grants OFCCP's motion to amend complaint to broaden the time period in which allegations occurred; amendment is appropriate because contractor admitted to having Federal contracts during the broader time period. OFCCP v. Jefferson County Board of Education, 90-OFC-4, ALJ Order Granting Motion to Amend Complaint, November 21, 1990, slip op. at 2-3; Consent Decree, May 7, 1991.

Although the complainant filed his complaint with OFCCP in April 1988, allegations of discrimination occurring before that time are not time-barred by the 180-day time period for filing complaints. OFCCP's motion to amend complaint to embrace an earlier time period constitutes an extension by the OFCCP Director of the time for filing the complaint. Id. at 2.

ALJ permits OFCCP to amend complaint to broaden time period in which allegations occurred even though no conciliation occurred with respect to earlier time period on the ground that the regulations do not require that amendments to complaints be preceded by separate conciliation efforts and on the ground that the amendment relates to a time period rather than a different type of violation. Id. at 2-3.

Even though discovery deadline had passed, ALJ rejects contractor's argument that amendment of complaint is unfairly prejudicial. Rather, ALJ permits either party to apply for reopening of discovery and postponement of trial. Id. at 3.

For good cause shown, Acting Secretary grants motion by Indiana League of Savings institutions, Inc., for leave to file an amicus curiae brief on exceptions. OFCCP v. USAA Federal Savings Bank, 87-OFC-27, Acting Secretary of Labor Order, January 18, 1991, slip op. at 2; Secretary of Labor Final Decision and Order March 16, 1995.

Because an affidavit attached to the amicus brief was not part of the record before the ALJ, it may not be made part of the record for the final decision by the Secretary. Thus, OFCCP's motion to strike the affidavit is granted. Id. at 2-3.

ALJ sets forth the procedure to be followed in a bifurcated trial. OFCCP v. Holly Farms Foods, Inc., 91-OFC-15, ALJ Order Denying Plaintiff's Motion to Deem Admitted Requests for Admission and for Summary Judgment, October 24, 1991, slip op. at 10, quoting, United States v. United States Steel Corp., 520 F.2d 1043 (5th Cir. 1975); Consent Decree, June 2, 1993.

Bifurcation of Section 503 case is not appropriate because OFCCP's theory of the case (i.e., that contractor's medical classification system violates Section 503 with respect to 115 class members), is erroneous. Id. at 11; Consent Decree, June 2, 1993.

Bifurcation of Section 503 case may well lead to duplication of proceedings; because each class member must testify in order to make our a prima facie case of illegal discrimination against him, he might as well testify with regard to damages issues at that same time. Ibid.; Consent Decree, June 2, 1993.

Bifurcation of Section 503 case is not appropriate because ALJ makes only recommendations to the Assistant Secretary, and if Stage II of the case were postponed until the Assistant Secretary issued a final decision on Stage I of the case, there would be a considerable risk of loss of evidence due to the lapse of time. Ibid.; Consent Decree, June 2, 1993.

OFCCP's motion for a preliminary order requiring contractor to notify each new job applicant that the Section 503 lawsuit is pending and that its outcome may affect the applicant's rights is denied on the grounds that OFCCP failed to show a likelihood of success on the merits, failed to show irreparable injury and because the notification would be indiscriminate in scope, affecting all job applicants, and might well deter job applicants. OFCCP v. Holly Farms Foods, Inc., 91-OFC-15, Order Denying Plaintiff's Motion for Preliminary Notification Order, October 24, 1991, slip op. at 2-3; Consent Decree, June 2, 1993.

A motion for a preliminary order requiring contractor to notify each new job applicant that the Section 503 lawsuit is pending and that its outcome may affect the applicant's rights is in the nature of injunctive relief. Id. at 2; Consent Decree, June 2, 1993.

Four considerations guide decision concerning preliminary injunctions: 1) probability of success on the merits; 2) irreparable injury without injunctive relief; 3) favorable balance of equities; and 4) public interest. Ibid.; Consent Decree, June 2, 1993.

In order to show probability of success on the merits, plaintiff must present a prima facie case. Ibid.; Consent Decree, June 2, 1993.

The rules of practice for administrative proceedings to enforce the Executive Order and Section 503 (41 CFR Part 60-30) do not contain a specific provision for remand by the Assistant Secretary for rehearing or reconsideration by the ALJ. OFCCP v. Rowan Companies, Inc., 89-OFC-41, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, slip op. at 3-4, ALJ Rec. Dec. and Order on Remand, January 4, 1993, slip op. at 4-5; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Rule 59 of the Federal Rules of Civil Procedure, which governs new trials and the amendment of judgments, is not applicable to ALJ decision because ALJ decision is a recommended decision not a final judgment. Id. at 4; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Requests to agencies for rehearing or reconsideration are addressed to their own discretion. Guidance in the exercise of such discretion can be found in the manner in which courts deal with motions for reconsideration. Ibid.; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Under the law of the case doctrine, one of the major grounds justifying reconsideration is an intervening change of controlling law. Id. at 4-5; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

In other areas of administrative adjudication, the Secretary of Labor has remanded cases for reconsideration by ALJ's where there has been a change in the law or where the ALJ did not consider or apply the correct rule of law. Id. at 5; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Remand to ALJ is appropriate because considerations of economy suggest that the record on coverage be fully developed under currently applicable legal principles so that Assistant Secretary can determine whether it is necessary to review the lengthy record and consider the complex merits issues raised by this case. Id. at 6; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

If OFCCP can establish coverage under new legal theory set forth in WMATA v. DeArment, 55 EPD ¶ 40,507 (D.D.C. 1991), Assistant Secretary has an obligation under Section 503 to determine whether complainants have been subjected to discrimination and are entitled to relief. Thus, case should be remanded to ALJ for determination whether coverage exists for each individual complainant. Id. at 7; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Although Complainants did not file their petition to participate as parties within 25 days of the commencement of the case as required by 41 CFR 60-30.24(a)(3), ALJ grants them leave to file petition because proceedings were not disrupted by the petition even though one deposition had to be postponed pending a ruling on the petition. OFCCP v. Martin Marietta Corporation, 91-OFC-24, ALJ Order Denying In Part and Granting In Part Petition To Participate, June 10, 1992, slip op. at 2.

Complainants who filed a petition to participate as parties satisfied the requisite element of establishing that the administrative order could potentially affect them adversely since OFCCP sought relief on their behalf. Id. at 3.

ALJ denies petition of two Section 503 complainants to participate as parties because they failed to show that they would materially contribute to a proper disposition of the case; they failed to identify any specific contribution they would make beyond the role of potential witnesses. Id. at 3.

ALJ permits complainants to participate amicus curiae, noting that the "material contribution" anticipated from an amicus is different than the contribution anticipated from a party. It may be sufficient that an amicus will offer a pertinent perspective or relevant policy point of view which might not be aired adequately by a party. Id. at 4.

A liberal application of the amicus participation rule is appropriate. Ibid.

Remand to ALJ is appropriate because considerations of economy suggest that the record on coverage be fully developed under currently applicable legal principles so that Assistant Secretary can determine whether it is necessary to review the lengthy record and consider the complex merits issues raised by this case. OFCCP v. Yellow Freight Systems, Inc., 79-OFCCP-7, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, August 24, 1992, slip op. at 8; Consent Decree, February 2, 1993.

Where OFCCP failed to demonstrate in the proceeding before the ALJ that complainants would have carried out defendant's Federal contracts, case should be remanded to the ALJ in light of the change in law arising from the decision in WMATA v. DeArment, 55 EPD ¶ 40,507 (D.D.C. 1991), so that OFCCP may have the opportunity to pursue discovery and introduce evidence on this issue. Ibid.

ALJ declines to rule on motion to dismiss OFCCP's complaint

insofar as it includes claims for relief on behalf of class members, none of whom filed a Section 503 complaint. OFCCP v. Holly Farms Foods, Inc., 91-OFC-15, ALJ Decision and Order Denying Defendant's Motion for Summary Judgment, December 23, 1992, slip op. at 5; Consent Decree, June 2, 1993.

Because regulations governing administrative proceedings under Section 503 are silent as to whether sanctions are appropriate for failure to comply with discovery orders, the Federal rules of Civil Procedure apply. OFCCP v. Rowan Companies, Inc., 89-OFC-41, ALJ Rec. Dec. and Order on Remand, January 4, 1993, slip op. at 5, n.7; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Although ALJ denied contractor's motion to amend a response

to request for admission to state that it had no knowledge of complainant's handicap at the time of his rejection, ALJ denies OFCCP's motion for an order precluding contractor from raising at trial the issue of whether it ceased to consider complainant because he was not qualified for the job. OFCCP v. USAir, Inc., 91-OFC-2, ALJ Order Denying Motion To Reconsider and Motion to Limit, February 24, 1993, slip op. at 4-5, pending, ALJ.

Assistant Secretary denies OFCCP's motion to strike defendant's exceptions as untimely filed because the interests of justice are served; OFCCP failed to demonstrate that it will be prejudiced thereby, defendant acted in good faith, and acceptance of the exceptions allows fuller consideration of relevant issue in the case. OFCCP v. Yellow Freight System, Inc., 84-OFC-17, Assistant Secretary Final Decision and Order of Remand, July 27, 1993,

at 6, n.2; Order Approving Settlement and Dismissal, April 20, 1994.

All Section 503 hearings shall be governed by the rules of procedure at 41 CFR Part 60-30. However, in the absence of a specific provision on point, the Federal Rules of Civil Procedure shall apply. OFCCP v. Mississippi Power Co., 92-OFC-8, ALJ Order Partially Granting Motion for Sanctions, July 16, 1993, slip op. at 2; reversed on other grounds, Assistant Secretary Order, July 19, 1995.

Section 503 rules of procedure at 41 CFR Part 60-30 contain no provision pertaining to sanctions for counsel's failure to appear at a scheduled deposition. Therefore, the Federal Rules of Civil Procedure apply. Id. at 2; reversed, Assistant Secretary for Employment Standards Order, July 19, 1995.

Rule 37(d) of the Federal Rules of Civil Procedure grants court authority to impose sanctions for defense counsel's failure to appear at a scheduled deposition. Id. at 2; reversed, Assistant Secretary for Employment Standards Order, July 19, 1995.

The applicable hearing regulations do not provide for voluntary dismissals. Therefore, pursuant to 41 CFR 60-30.1, Rule 41 of the Federal Rules of Civil Procedure applies. OFCCP v. Jacobi-Lewis Company, Inc., 88-OFC-18, Assistant Secretary for Employment Standards, Final Decision and Order, May 2, 1995, at 4, n.2.

Following the issuance of the ALJ's Recommended Decision and Order, City Public Service's Motion for an Order Granting Stay of Proceedings, Leave to File a Motion to Strike, and the Setting of a Brief Schedule was made moot by its filing of exceptions to the same decision and order. OFCCP v. City Public Service of San Antonio, 89-OFC-5, Asst. Sec. for Employment Standards Decision and Remand Order, January 18, 1995, at 6, n.4.

Defendant's motion to strike OFCCP's Exceptions based upon its assertion of oral stipulation to be bound by ALJ decision is denied in absence of any memorialization of such a stipulation and OFCCP's denial that it entered a stipulation. OFCCP v. Mt. Bell Telephone Co., 87-OFC-25, Assistant Secretary for Employment Standards, Order Denying Motion to Strike; Decision and Order of Remand, August 25, 1994, at 3; Consent Decree, February 9, 1995.

A judge has broad discretion in deciding whether to bifurcate the issues in a trial but piecemeal litigation of separate issues in a single lawsuit is not the usual course. Such procedure should be utilized only in the exercise of informed discretion when it is believed that separation will achieve the purpose of the rule (FRCP 42(b)). OFCCP v. United Airlines, 94-OFC-1, March 8, 1994, Order at 2.

The standard in deciding whether to bifurcate is whether the issue to be tried separately is so distinct and separate that a trial on that issue alone may be had without injustice. Id. at 2.

The issue of disability has been held to be threshold issue under Section 503 of the Rehabilitation Act. [It] is not sufficiently distinct from the remainder of the case to justify separating the issues because it appears that there would be a substantial overlap of evidence. While it is quite possible that separate litigation of the disability issue would dispose of the entire case, it is also quite possible that the plaintiff would prevail on that issue thereby resulting in a duplication of effort. . . . Id. at 2.

Title 41 of the Code of Federal Regulations Part 60-30 does not provide for designating a hearing location. However, the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges provides at29 CFR § 18.27(c) that "due regard shall be given to the convenience of the parties and the witnesses in selecting a place of hearing." OFCCP v. United Airlines, 94-OFC-1, September 15, 1994, Order at 1-2.

OFCCP proceedings are governed by 41 CFR Part 60-30, and 60-30.1 provides that "[i]n the absence of a specific provision, procedures shall be in accordance with the Federal Rules of Civil Procedure." Moreover, Section 60-30.23 specifically pertains to summary judgment. The ALJ noted for the record, that the rules of evidence at 29 CFR Part 18, subpart (b) are applicable to the adjudication of the case. 41 CFR § 60-30.18. OFCCP v. United Airlines, 94-OFC-1,December 12, 1994, Order at 2.

The ALJ denied plaintiff's motion for reconsideration objecting to the ALJ granting defendant more than ten days to respond to plaintiffs motion to compel, pursuant to 41 CFR § 60-30.8(a). The ALJ has discretion in setting time limits in regard to some procedural matters and exercised that discretion in allowing the defendant additional time to respond to the motion to compel. OFCCP v. United Airlines, 94-OFC-1, June 9, 1995, Order at 3.

Under 41 CFR § 60-30.23(b), a motion for summary judgment can be timely filed by a defendant at any time after commencement of an action and at least 15 days before the time fixed for the hearing on the motion. Ibid.

The ALJ denied OFCCP's motion to quash the deposition of a non-party witness on the grounds that OFCCP was not the proper party to file such a motion. Id. at 4.

In denying the defendant's motion for summary judgment, ALJ held that if he concluded per defendant's motion that the complainant was not an "individual with a disability" within the meaning of Section 503, then the issues relating to discrimination and remedies are moot. Moreover, since in reviewing a motion for summary judgement, the evidence must be considered in the light most favorable to the nonmoving party, the ALJ considered it necessary to view any inference that could be drawn from the material submitted in favor of the plaintiff. OFCCP v. United Airlines, 94-OFC-1, July 20, 1995, Order at 3.

A motion to quash a subpoena is to be made by the person on whom the subpoena is served. Thus, the plaintiff does not have standing to file a motion to quash the subpoenas served on physicians of various branches of the U.S. military, who are called to testify as to the origin and application of the policy of their respective military branches of service regarding persons with a history of radial keratotomy surgery. OFCCP v. United Airlines, 94-OFC-1, August 17, 1995, Order at 3.

The ALJ granted the U.S. Coast Guard counsel's motion to quash a subpoena filed by defendant, which sought the appearance of U.S. Coast Guard medical personnel, pursuant to Fed. R. Civ. P. 45(c) and 41 CFR § 60-30.1. The ALJ found that the subpoenaed witness resides more than 100 miles from the hearing location and that the subpoena subjects him to undue burden. Likewise, defendant had not demonstrated a substantial need for [the witness'] testimony or "material that cannot be otherwise met without undue hardship." Moreover, counsel for the U.S. Coast Guard provided documentation which if properly proffered may be sufficient for defendant's purposes. OFCCP v. United Airlines, 94-OFC-1, August 30, 1995, Order at 3-4.

While it is true that the response of the U.S. Coast Guard to defendant's subpoena does not meet the time requirements of 41 CFR § 60-30.17(c), it would be unreasonable to deny the request of the U.S. Coast Guard to quash the subpoena which clearly could not be enforced in a U.S. District Court under the applicable rules. Id. at 4.

A motion to quash a subpoena is to be made by the person on whom the subpoena is served. A party normally does not have standing to file a motion to quash a subpoena of a witness. OFCCP v. United Airlines, 94-OFC-1, August 30, 1995, Order at 4.

The ALJ refused to consider certifying the failure of a witness to honor a subpoena to the U.S. District Court, when that witness resides more than 100 miles from the hearing. Ibid.

Fed. R. Civ. P. 45 takes precedence over 41 CFR § 60-30.17(b) with respect to calling witnesses because an administrative subpoena can only be enforced in the U.S. District Court. Id. at 4-5.

Despite 41 CFR § 60-30.17 which requires that a party produce for examination its officers, agents, employees and members, it is unreasonable to expect a party to make employees available to testify, if they reside more than 100 miles from the hearing location. Id. at 5.

The ALJ granted the U.S. Army counsel's motion to quash subpoenas filed by defendant, which sought the appearance of U.S. Army medical personnel, pursuant to Fed. R. Civ. P. 45(c) and 41 CFR § 60-30.1. The ALJ found that the subpoenaed witness resides more than 100 miles from the hearing location and that the subpoena subjects him to undue burden. Likewise, defendant had not demonstrated a substantial need for [the witness'] testimony or "material that cannot be otherwise met without undue hardship." Moreover, counsel for the U.S. Army provided documentation which if properly proffered may be sufficient for defendant's purposes. OFCCP v. United Airlines, 94-OFC-1, September 6, 1995, Order at 3-4.

While it is true that the response of the U.S. Army to defendant's subpoena does not meet the time requirements of 41 CFR § 60-30.17(c), it would be unreasonable to deny the request of the U.S. Army to quash the subpoena which clearly could not be enforced in a U.S. District Court under the applicable rules. Id. at 4.

The ALJ denied defendant's request to keep the record open for the depositions of witnesses from the four military branches because it is untimely and because United has not demonstrated "such exceptional circumstances" exist to allow such testimony or that there is a "substantial need" for the testimony, pursuant to Fed. R. Civ. P. 32(a)(3) and 45(a)(3)(B)(iii). Id. at 3-4.

The ALJ granted plaintiff's motion to allow its expert to review UAL medical records for the sole purpose of assisting plaintiff's counsel in trial preparation, and reiterated that said expert's testimony will be limited to that set forth in plaintiff's response to the defendant's interrogatory or that he "performed the radial keratotomy on [the complainant] and will testify about same." OFCCP v. United Airlines, 94-OFC-1, September 7, 1995, Order at 2.

The ALJ denied plaintiff's motion for an order requiring defendant to produce at trial witnesses under its control, because he believed that the interpretation by plaintiff's counsel of 41 CFR § 60-30.17(b) is unreasonable under the circumstances of this case. The ALJ further expressed his belief that Fed. R. Civ. P. 45 takes precedence over 41 CFR § 60-30.17(b). Id. at 2.

The ALJ overruled plaintiff's objection to the admissibility of documentary evidence provided by the U.S. Air Force. While questioning the relevancy of the documentation and the radial keratotomy policy of the United States Air Force, the ALJ was not inclined to exclude this evidence because he had required the parties to stipulate to the admissibility of most of the documentary evidence reserving arguments as to relevancy and materiality to the briefs if appropriate. OFCCP v. United Airlines, 94-OFC-1, December 14, 1995, Order at 4.

The ALJ denied plaintiff's motion to strike certain portions of deposition testimony on relevancy grounds, because plaintiff's counsel failed to raise these objections when the depositions were taken. Id. at 4.

The Federal Rules of Civil Procedure only apply in the absence of an applicable regulatory provision. The implementing regulations for actions brought under Section 503 of the Rehabilitation Act of 1973, 29 U.S.C. § 793, are found at 41 CFR Chapter 60. 41 CFR § 60-30.9 does not limit the number of interrogatories that a party may serve upon another party. Thus, the 25 interrogatory limit contained in FRCP 33 does not apply. However, the ALJ will impose a test of reasonableness. OFCCP v. American Airlines, Inc., 94-OFC-9, ALJ Order on Plaintiff's Motion to Compel Responses and for Admissions, January 19, 1995, at 3.

The ALJ's statement that each of the discriminatees was employed to carry out government contracts (ALJ RD&O at 35) is mere dicta, at best. The statement is not supported by clear and particularized findings, as required by applicable procedural regulations. In the absence of such findings, the proper adjudicatory procedure is to remand the case to the ALJ for specific and individualized findings, rather than for the Assistant Secretary to make them. OFCCP v. Southern Pacific Transportation Company, 79-OFC-10A, et.al., Acting Assistant Secretary for Employment Standards, Decision and Order of Remand, February 24, 1994, at 6-7; Consent Order, October 13, 1995.