(a) General application. These rules of practice are generally
applicable to adjudicatory proceedings before the Office of Administrative Law
Judges, United States Department of Labor. Such proceedings shall be conducted
expeditiously and the parties shall make every effort at each stage of a
proceeding to avoid delay. To the extent that these rules may be inconsistent
with a rule of special application as provided by statute, executive order, or
regulation, the latter is controlling. The Rules of Civil Procedure for the
District Courts of the United States shall be applied in any situation not
provided for or controlled by these rules, or by any statute, executive order or
regulation.
(b) Waiver, modification, or suspension. Upon notice to all
parties, the administrative law judge may, with respect to matters pending
before him or her, modify or waive any rule herein upon a determination that no
party will be prejudiced and that the ends of justice will be served thereby.
These rules may, from time to time, be suspended, modified or revoked in whole
or part.
(a) Adjudicatory proceeding means a judicial-type proceeding
leading to the formulation of a final order;
(b) Administrative law judge means an administrative law judge
appointed pursuant to the provisions of 5 U.S.C. 3105 (provisions of the rules
in this part which refer to administrative law judges may be applicable to other
Presiding Officers as well);
(c) Administrative Procedure Act means those provisions of the
Administrative Procedure Act, as codified, which are contained in 5 U.S.C. 551
through 559;
(d) Complaint means any document initiating an adjudicatory
proceeding, whether designated a complaint, appeal or an order for proceeding or
otherwise;
(e) Hearing means that part of a proceeding which involves the
submission of evidence, either by oral presentation or written submission;
(f) Order means the whole or any part of a final procedural or
substantive disposition of a matter by the administrative law judge in a matter
other than rulemaking;
(g) Party includes a person or agency named or admitted as a
party to a proceeding;
(h) Person includes an individual, partnership, corporation,
association, exchange or other entity or organization;
(i) Pleading means the complaint, the answer to the complaint,
any supplement or amendment thereto, and any reply that may be permitted to any
answer, supplement or amendment;
(j) Respondent means a party to an adjudicatory proceeding
against whom findings may be made or who may be required to provide relief
or take remedial action;
(k) Secretary means the Secretary of Labor and
includes any administrator, commissioner, appellate body, board, or other
official thereunder for purposes of appeal of recommended or final decisions of
administrative law judges;
(l) Complainant means a person who is seeking relief from any
act or omission in violation of a statute, executive order or regulation;
(m) The term petition means a written request, made by a person
or party, for some affirmative action;
(n) The term Consent Agreement means any written document
containing a specified proposed remedy or other relief acceptable to all
parties;
(o) Commencement of Proceeding is the filing of a request for
hearing, order of reference, or referral of a claim for hearing.
(a) Generally. Except as otherwise provided in this part, copies of
all documents shall be served on all parties of record. All documents should
clearly designate the docket number, if any, and short title of the matter. If
the matter involves a program administered by the Office of Workers'
Compensation Programs (OWCP), the document should contain the OWCP number in
addition to the docket number. All documents to be filed shall be delivered or
mailed to the Chief Docket Clerk, Office of Administrative Law Judges (OALJ),
800 K Street, NW., Suite 400, Washington, DC 20001-8002, or to the OALJ Regional
Office to which the proceeding may have been transferred for hearing. Each
document filed shall be clear and legible.
(b) How made; by parties. All documents shall be filed with the
Office of Administrative Law Judges, except that notices of deposition,
depositions, interrogatories, requests for admissions, and answers and responses
thereto, shall not be so filed unless the presiding judge so orders, the
document is being offered into evidence, the document is submitted in support of
a motion or a response to a motion, filing is required by a specialized rule, or
there is some other compelling reason for its submission. Whenever under this
part [*26971] service by a party is required to be made upon a party
represented by an attorney or other representative the service shall be made
upon the attorney or other representative unless service upon the party is
ordered by the presiding administrative law judge. Service of any document upon
any party may be made by personal delivery or by mailing a copy to the last
known address. The person serving the document shall certify to the manner and
date of service.
(c) By the Office of Administrative Law Judges. Service of
notices, orders, decisions and all other documents, except complaints, shall be
made by regular mail to the last known address.
(d) Service of complaints. Service of complaints or charges in
enforcement proceedings shall be made either: (1) By delivering a copy to the
individual, partner, officer of a corporation, or attorney of record; (2) by
leaving a copy at the principal office, place of business, or residence; (3) by
mailing to the last known address of such individual, partner, officer or
attorney. If done by certified mail, service is complete upon mailing. If done
by regular mail, service is complete upon receipt by addressee.
(e) Form of pleadings. (1) Every pleading shall contain a
caption setting forth the name of the agency under which the proceeding is
instituted, the title of the proceeding, the docket number assigned by the
Office of Administrative Law Judges, and a designation of the type of pleading
or paper (e.g., complaint, motion to dismiss, etc.). The pleading or papers
shall be signed and shall contain the address and telephone number of the party
or person representing the party. Although there are no formal specifications
for documents, they should be typewritten when possible on standards size (8 1/2
x 11) paper legal size (8 1/2 x 14) paper will not be accepted after July 31,
1983.
(2) Illegible documents, whether handwritten, typewritten, photocopied,
or otherwise will not be accepted. Papers may be reproduced by any duplicating
process, provided all copies are clear and legible.
(f) Filing and service by facsimile.
(1) Filing by a party; when permitted. Filings by a party may
be made by facsimile (fax) when explicitly permitted by statute or regulation,
or when directed or permitted by the administrative law judge assigned to the
case. If prior permission to file by facsimile cannot be obtained because the
presiding administrative law judge is not available, a party may file by
facsimile and attach a statement of the circumstances requiring that the
document be filed by facsimile rather than by regular mail. That statement does
not ensure that the filing will be accepted, but will be considered by the
presiding judge in determining whether the facsimile will be accepted nunc
pro tunc as a filing.
(2) Service by facsimile; when permitted. Service upon a party
by another party or by the administrative law judge may be made by facsimile
(fax) when explicitly permitted by statute or regulation, or when the receiving
party consents to service by facsimile.
(3) Service sheet and proof of service. Docments filed or
served by facsimile (fax) shall include a service sheet which states the means
by which filing and/or service was made. A facsimile transmission report
generated by the sender's facsimile equipment and which indicates that the
transmission was successful shall be presumed adequate proof of filing or
service.
(4) Cover sheet. Filings or service by facsimile (fax) shall
include a cover sheet that identifies the sender, the total number of pages
transmitted, and the caption and docket number of the case, if known.
(5) Originals. Documents filed or served by facsimile (fax)
shall be presumed to be accurate reproductions of the original document until
proven otherwise. The party proferring the document shall retain the original in
the event of a dispute over authenticity or the accuracy of the transmission.
The original document need not be submitted unless so ordered by the presiding
judge, or unless an original signature is required by statute or regulation. If
an original signature is required to be filed, the date of the facsimile
transmission shall govern the effective date of the filing provided that the
document containing the original signature is filed within ten calendar days of
the facsimile transmission.
(6) Length of document. Documents filed by facsimile (fax)
should not exceed 12 pages including the cover sheet, the service sheet and all
accompanying exhibits or appendices, except that this page limitation may be
exceeded if prior permission is granted by the presiding judge or if the
document's length cannot be conformed because of statutory or regulatory
requirements.
(7) Hours for filing by facsimile. Filings by facsimile (fax)
should normally be made between 8:00 am and 5:00 pm, local time at the receiving
location.
(g) Filing and service by courier service. Documents
transmitted by courier service shall be deemed transmitted by regular mail in
proceedings before the Office of Administrative Law Judges.
[48 FR 32538, July 15, 1983, as amended at 56 FR 54708, Oct. 22, 1991, 59 FR
41874, Aug. 15, 1994 and 60 FR 26970, May 19, 1995]
(a) Generally. In computing any period of time under these rules
or in an order issued hereunder the time begins with the day following the act,
event, or default, and includes the last day of the period, unless it is a
Saturday, Sunday or legal holiday observed by the Federal Government in which
case the time period includes the next business day. When the period of time
prescribed is seven (7) days or less, intermediate Saturdays, Sundays, and
holidays shall be excluded in the computation.
(b)Date of entry of orders. In computing any period of time involving
the date of the entry of an order, the date of entry shall be the date the order
is served by the Chief Docket Clerk.
(c) Computation of time for delivery by mail. (1) Documents are
not deemed filed until received by the Chief Clerk at the Office of
Administrative Law Judges. However, when documents are filed by mail, five (5)
days shall be added to the prescribed period.
(2) Service of all documents other than complaints is deemed effected
at the time of mailing.
(3) Whenever a party has the right or is required to take some action
within a prescribed period after the service of a pleading, notice, or other
document upon said party, and the pleading, notice or document is served upon
said party by mail, five (5) days shall be added to the prescribed period.
(d) Filing or service by facsimile. Filing or service by
facsimile (fax) is effective upon receipt of the entire document by the
receiving facsimile machine. For purposes of filings by facsimile the time
printed on the transmission by the facsimile equipment constitutes the date
stamp of the Chief Docket Clerk.
[48 FR 32538, July 15, 1983, as amended at 59 FR 41874, Aug. 15, 1994]
(a) Time for answer. Within thirty (30) days after the service
of a complaint, each respondent shall file an answer.
(b) Default. Failure of the respondent to file an answer within
the time provided shall be deemed to constitute a waiver of his right to appear
and contest the allegations of the complaint and to authorize the administrative
law judge to find the facts as alleged in the complaint and to enter an initial
or final decision containing such findings, appropriate conclusions, and order.
(c) Signature required. Every answer filed pursuant to these
rules shall be signed by the party filing it or by at least one attorney, in his
or her individual name, representing such party. The signature constitutes a
certificate by the signer that he or she has read the answer; that to the best
of his or her knowledge, information and belief there is good ground to support
it; and that it is not interposed for delay.
(d) Content of answer--(1) Orders to show cause. Any
person to whom an order to show cause has been directed and served shall respond
to the same by filing an answer in writing. Arguments opposing the proposed
sanction should be supported by reference to specific circumstances or facts
surrounding the basis for the order to show cause.
(2) Complaints. Any respondent contesting any material fact
alleged in a complaint, or contending that the amount of a proposed penalty or
award is excessive or inappropriate or contending that he or she is entitled to
judgment as a matter of law, shall file an answer in writing. An answer shall
include:
(i)A statement that the respondent admits, denies, or does not have and is
unable to obtain sufficient information to admit or deny each allegation; a
statement of lack of information shall have the effect of a denial; any
allegation not expressly denied shall be deemed to be admitted;
(ii) A statement of the facts supporting each affirmative defense.
(e) Amendments and supplemental pleadings. If and whenever
determination of a controversy on the merits will be facilitated thereby, the
administrative law judge may, upon such conditions as are necessary to avoid
prejudicing the public interest and the rights of the parties, allow appropriate
amendments to complaints, answers, or other pleadings; provided, however, that a
complaint may be amended once as a matter of right prior to the answer, and
thereafter if the administrative law judge determines that the amendment is
reasonably within the scope of the original complaint. When issues not raised by
the pleadings are reasonably within the scope of the original complaint and are
tried by express or implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings, and such amendments may be
made as necessary to make them conform to the evidence. The administrative law
judge may, upon reasonable notice and such terms as are just, permit
supplemental pleadings setting forth transactions, occurrences or events which
have happened since the date of the pleadings and which are relevant to any of
the issues involved.
(a) Generally. Any application for an order or any other request
shall be made by motion which, unless made during a hearing or trial, shall be
made in writing unless good cause is established to preclude such submission,
shall state with particularity the grounds therefor, and shall set forth the
relief or order sought. Motions or requests made during the course of any
hearing or appearance before an administrative law judge shall be stated orally
and made part of the transcript. Whether made orally or in writing, all parties
shall be given reasonable opportunity to state an objection to the motion or
request.
(b) Answers to motions. Within ten (10) days after a motion is
served, or within such other period as the administrative law judge may fix, any
party to the proceeding may file an answer in support or in opposition to the
motion, accompanied by such affidavits or other evidence as he or she desires to
rely upon. Unless the administrative law judge provides otherwise, no reply to
an answer, response to a reply, or any further responsive document shall be
filed.
(c) Oral arguments or briefs. No oral argument will be heard on
motions unless the administrative law judge otherwise directs. Written memoranda
or briefs may be filed with motions or answers to motions, stating the points
and authorities relied upon in support of the position taken.
(d) Motion for order compelling answer: sanctions. (1) A party
who has requested admissions or who has served interrogatories may move to
determine the sufficiency of the answers or objections thereto. Unless the
objecting party sustains his or her burden of showing that the objection is
justified, the administrative law judge shall order that an answer be served. If
the administrative law judge determines that an answer does not comply with the
requirements of these rules, he or she may order either that the matter is
admitted or that an amended answer be served.
(2) If a party or an officer or agent of a party fails to comply with a
subpoena or with an order, including, but not limited to, an order for the
taking of a deposition, the production of documents, or the answering of
interrogatories, or requests for admissions, or any other order of the
administrative law judge, the administrative law judge, for the purpose of
permitting resolution of the relevant issues and disposition of the proceeding
without unnecessary delay despite such failure, may take such action in regard
thereto as is just, including but not limited to the following:
(i) Infer that the admission, testimony, documents or other evidence
would have been adverse to the non-complying party;
(ii) Rule that for the purposes of the proceeding the matter or matters
concerning which the order or subpoena was issued be taken as established
adversely to the non-complying party;
(iii) Rule that the non-complying party may not introduce into
evidence or otherwise rely upon testimony by such party, officer or agent, or
the documents or other evidence, in support of or in opposition to any claim or
defense;
(iv) Rule that the non-complying party may not be heard to object to
introduction and use of secondary evidence to show what the withheld admission,
testimony, documents, or other evidence should have shown.
(v) Rule that a pleading, or part of a pleading, or a motion or other
submission by the non-complying party, concerning which the order or subpoena
was issued, be stricken, or that a decision of the proceeding be rendered
against the non-complying party, or both.
(a) At any time prior to the commencement of the hearing, the
administrative law judge may order any party to file a prehearing statement of
position.
(b) A prehearing statement shall state the name of the party or parties
on whose behalf it is presented and shall briefly set forth the following
matters, unless otherwise ordered by the administrative law judge:
(1) Issues involved in the proceeding;
(2) Facts stipulated pursuant to the procedures together with a
statement that the party or parties have communicated or conferred in a good
faith effort to reach stipulation to the fullest extent possible;
(3) Facts in dispute;
(4) Witnesses, except to the extent that disclosure would be
privileged, and exhibits by which disputed facts will be litigated;
(5) A brief statement of applicable law;
(6) The conclusion to be drawn;
(7)Suggested time and location of hearing and estimated time required for
presentation of the party's or parties' case;
(8) Any appropriate comments, suggestions or information which might
assist the parties in preparing for the hearing or otherwise aid in the
disposition of the proceeding.
(a) Purpose and scope. (1) Upon motion of a party or upon the
administrative law judge's own motion, the judge may direct the parties or their
counsel to participate in a conference at any reasonable time, prior to or
during the course of the hearing, when the administrative law judge finds that
the proceeding would be expedited by a prehearing conference. Such conferences
normally shall be conducted by conference telephonic communication unless, in
the opinion of the administrative law judge, such method would be impractical,
or when such conferences can be conducted in a more expeditious or effective
manner by correspondence or personal appearance. Reasonable notice of the time,
place and manner of the conference shall be given.
(2) At the conference, the following matters shall be considered:
(i) The simplification of issues;
(ii) The necessity of amendments to pleadings;
(iii) The possibility of obtaining stipulations of facts and of the
authenticity, accuracy, and admissibility of documents, which will avoid
unnecessary proof;
(iv) The limitation of the number of expert or other witnesses;
(v) Negotiation, compromise, or settlement of issues;
(vi) The exchange of copies of proposed exhibits;
(vii) The identification of documents or matters of which official notice
may be requested;
(viii) A schedule to be followed by the parties for completion of the
actions decided at the conference; and
(ix) Such other matters as may expedite and aid in the disposition of
the proceeding.
(b) Reporting. A prehearing conference will be stenographically
reported, unless otherwise directed by the administrative law judge.
(c) Order. Actions taken as a result of a conference shall be
reduced to a written order, unless the administrative law judge concludes that a
stenographic report shall suffice, or, if the conference takes place within 7
days of the beginning of the hearing, the administrative law judge elects to
make a statement on the record at the hearing summarizing the actions taken.
(a)Generally. At any time after the commencement of a proceeding, the
parties jointly may move to defer the hearing for a reasonable time to permit
negotiation of a settlement or an agreement containing findings and an order
disposing of the whole or any part of the proceeding. The allowance of such
deferment and the duration thereof shall be in the discretion of the
administrative law judge, after consideration of such factors as the nature of
the proceeding, the requirements of the public interest, the representations of
the parties and the probability of reaching an agreement which will result in a
just disposition of the issues involved.
(b) Content. Any agreement containing consent findings and an
order disposing of a proceeding or any part thereof shall also provide:
(1) That the order shall have the same force and effect as an order
made after full hearing;
(2) That the entire record on which any order may be based shall
consist solely of the complaint, order of reference or notice of administrative
determination (or amended notice, if one is filed), as appropriate, and the
agreement;
(3) A waiver of any further procedural steps before the administrative
law judge; and
(4) A waiver of any right to challenge or contest the validity of the
order entered into in accordance with the agreement.
(c) Submission. On or before the expiration of the time granted
for negotiations, the parties or their authorized representative or their
counsel may:
(1) Submit the proposed agreement containing consent findings and an
order for consideration by the administrative law judge, or
(2) Notify the administrative law judge that the parties have reached a
full settlement and have agreed to dismissal of the action, or
(3) Inform the administrative law judge that agreement cannot be
reached.
(d) Disposition. In the event an agreement containing consent
findings and an order is submitted within the time allowed therefor, the
administrative law judge, within thirty (30) days thereafter, shall, if
satisfied with its form and substance, accept such agreement by issuing a
decision based upon the agreed findings.
(e)(1) Settlement judge procedure; purpose. This paragraph
establishes a voluntary process whereby the parties may use a settlement judge
to mediate settlement negotiations. A settlement judge is an active or retired
administrative law judge who convenes and presides over settlement conferences
and negotiations, confers with the parties jointly and/or individually, and
seeks voluntary resolution of issues. Unlike a presiding judge, a settlement
judge does not render a formal judgment or decision in the case; his or her role
is solely to facilitate fair and equitable solutions and to provide an
assessment of the relative merits of the respective positions of the parties.
(2) How initiated. A settlement judge may be appointed by the
Chief Administrative Law Judge upon a request by a party or the presiding
administrative law judge. The Chief Administrative Law Judge has sole discretion
to decide whether to appoint a settlement judge, except that a settlement judge
shall not be appointed when-
(i) A party objects to referral of the matter to a settlement
judge;
(ii) Such appointment is inconsistent with a statute, executive order, or
regulation;
(iii) The proceeding arises pursuant to Title IV of the Federal Mine Safety
and Health Act, 30 U.S.C. 901 et seq., also known as the Black Lung Benefits
Act.
(3) Selection of settlement judge. (i) The selection of a
settlement judge is at the sole discretion of the Chief Administrative Law
Judge, provided that the individual selected-
(A) is an active or retired administrative law judge, and
(B) is not the administrative law judge assigned to hear and decide the
case.
(ii) The settlement judge shall not be appointed to hear and decide the
case.
(4) Duration of proceeding. Unless the Chief Administrative Law
Judge directs otherwise, settlement negotiations under this section shall not
exceed thirty days from the date of appointment of the settlement judge, except
that with the consent of the parties, the settlement judge may request an
extension from the Chief Administrative Law Judge. The negotiations will be
terminated immediately if a party unambiguously indicates that it no longer
wishes to participate, or if in the judgment of the settlement judge, further
negotiations would be fruitless or otherwise inappropriate.
(5) General powers of the settlement judge. The settlement judge
has the power to convene settlement conferences; to require that parties, or
representatives of the parties having the authority to settle, participate in
conferences; and to impose other reasonable requirements on the parties to
expedite an amicable resolution of the case, provided that all such powers shall
terminate immediately if negotiations are terminated pursuant to paragraph
(e)(4).
(6) Suspension of discovery. Requests for suspension of discovery
during the settlement negotiations shall be directed to the presiding
administrative law judge who shall have sole discretion in granting or denying
such requests.
(7) Settlement conference. In general the settlement judge should
communicate with the parties by telephone conference call. The settlement judge
may, however, schedule a personal conference with the parties when:
(i) The settlement judge is scheduled to preside in other proceedings in a
place convenient to all parties and representatives involved;
(ii) The offices of the attorneys or other representatives of the parties,
and the settlement judge, are in the same metropolitan area; or
(iii) The settlement judge, with the concurrence of the Chief Administrative
Law Judge, determines that a personal meeting is necessary for a resolution of
substantial issues, and represents a prudent use of resources.
(8) Confidentiality of settlement discussions. All discussions
between the parties and the settlement judge shall be off-the-record. No
evidence regarding statements or conduct in the proceedings under this section
is admissible in the instant proceeding or any subsequent administrative
proceeding before the Department, except by stipulation of the parties.
Documents disclosed in the settlement process may not be used in litigation
unless obtained through appropriate discovery or subpoena. The settlement judge
shall not discuss any aspect of the case with any administrative law judge or
other person, nor be subpoenaed or called as a witness in any hearing of the
case or any subsequent administrative proceedings before the Department with
respect to any statement or conduct during the settlement discussions.
(9) Contents of consent order or settlement agreement. Any
agreement disposing of all or part of the proceeding shall be written and signed
by a parties. Such agreement shall conform to the requirements of paragraph (b)
of this section.
(10) Report of the settlement. If a settlement is reached, the
parties shall report to the presiding judge in writing within seven working days
of the termination of negotiations. The report shall include a copy of the
settlement agreement and/or proposed consent order. If a settlement is not
reached, the parties shall report this to the presiding judge without further
elaboration.
(11) Review of agreement by presiding judge. A settlement
agreement arrived at with the help of a settlement judge shall be treated by the
presiding judge as would be any other settlement agreement.
(12) Non-reviewable decisions. Decisions concerning whether a
settlement judge should be appointed, the selection of a particular settlement
judge, or the termination of proceedings under this section, are not subject to
review by Department officials.
[48 FR 32538, July 15, 1983, as amended at 58 FR 38498, July 16, 1993]
(a) The term party whenever used in these rules shall include
any natural person, corporation, association, firm, partnership, trustee,
receiver, agency, public or private organization, or governmental agency. A
party who seeks relief or other affirmative action shall be designated as plaintiff
,
complainant or claimant, as appropriate. A party against whom
relief or other affirmative action is sought in any proceeding shall be
designated as a defendant or
respondent, as appropriate. When a party to the proceeding, the
Department of Labor shall be either a party or party-in-interest.
(b) Other persons or organizations shall have the right to participate
as parties if the administrative law judge determines that the final decision
could directly and adversely affect them or the class they represent, and if
they may contribute materially to the disposition of the proceedings and their
interest is not adequately represented by existing parties.
(c) A person or organization wishing to participate as a party under
this section shall submit a petition to the administrative law judge within
fifteen (15) days after the person or organization has knowledge of or should
have known about the proceeding. The petition shall be filed with the
administrative law judge and served on each person or organization who has been
made a party at the time of filing. Such petition shall concisely state: (1)
Petitioner's interest in the proceeding, (2) how his or her participation as a
party will contribute materially to the disposition of the proceeding, (3) who
will appear for petitioner, (4) the issues on which petitioner wishes to
participate, and (5) whether petitioner intends to present witnesses.
(d) If objections to the petition are filed, the administrative law
judge shall then determine whether petitioners have the requisite interest to be
a party in the proceedings, as defined in paragraphs (a) and (b) of this
section, and shall permit or deny participation accordingly. Where petitions to
participate as parties are made by individuals or groups with common interests,
the administrative law judge may request all such petitioners to designate a
single representative, or he or she may recognize one or more of such
petitioners. The administrative law judge shall give each such petitioner
written notice of the decision on his or her petition. If the petition is
denied, he or she shall briefly state the grounds for denial and shall then
treat the petition as a request for participation as amicus curiae. The
administrative law judge shall give written notice to each party of each
petition granted.
When two or more hearings are to be held, and the same or substantially
similar evidence is relevant and material to the matters at issue at each such
hearing, the Chief Administrative Law Judge or the administrative law judge
assigned may, upon motion by any party or on his or her own motion, order that a
consolidated hearing be conducted. Where consolidated hearings are held, a
single record of the proceedings may be made and the evidence introduced in one
matter may be considered as introduced in the others, and a separate or joint
decision shall be made, at the discretion of the administrative law judge as
appropriate.
A brief of an amicus curiae may be filed only with the written consent of
all parties, or by leave of the administrative law judge granted upon motion, or
on the request of the administrative law judge, except that consent or leave
shall not be required when the brief is presented by an officer of an agency of
the United States, or by a state, territory or commonwealth. The amicus curiae
shall not participate in any way in the conduct of the hearing, including the
presentation of evidence and the examination of witnesses.
Parties may obtain discovery by one or more of the following methods:
Depositions upon oral examination or written questions; written interrogatories;
production of documents or other evidence for inspection and other purposes; and
requests for admission. Unless the administrative law judge orders otherwise,
the frequency or sequence of these methods is not limited.
(a) Unless otherwise limited by order of the administrative law judge in
accordance with these rules, the parties may obtain discovery regarding any
matter, not privileged, which is relevant to the subject matter involved in the
proceeding, including the existence, description, nature, custody, condition,
and location of any books, documents, or other tangible things and the identity
and location of persons having knowledge of any discoverable matter.
(b) It is not ground for objection that information sought will not be
admissible at the hearing if the information sought appears reasonably
calculated to lead to the discovery of admissible evidence.
(c) A party may obtain discovery of documents and tangible things
otherwise discoverable under paragraph (a) of this section and prepared in
anticipation of or for the hearing by or for another party's representative
(including his or her attorney, consultant, surety, indemnitor, insurer, or
agent) only upon a showing that the party seeking discovery has substantial need
of the materials in the preparation of his or her case and that he or she is
unable without undue hardship to obtain the substantial equivalent of the
materials by other means. In ordering discovery of such materials when the
required showing has been made, the administrative law judge shall protect
against disclosure of the mental impressions, conclusions, opinions, or legal
theories of an attorney or other representative of a party concerning the
proceeding.
(a) Upon motion by a party or the person from whom discovery is sought,
and for good cause shown, the administrative law judge may make any order which
justice requires to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense, including one or more of the following:
(1) The discovery not be had;
(2) The discovery may be had only on specified terms and conditions,
including a designation of the time or place;
(3) The discovery may be had only by a method of discovery other than
that selected by the party seeking discovery;
(4) Certain matters not relevant may not be inquired into, or that the
scope of discovery be limited to certain matters;
(5) Discovery be conducted with no one present except persons
designated by the administrative law judge; or
(6) A trade secret or other confidential research, development or
commercial information may not be disclosed or be disclosed only in a designated
way.
A party who has responded to a request for discovery with a response that
was complete when made is under no duty to supplement his response to include
information thereafter acquired, except as follows:
(a)A party is under a duty to supplement timely his response with respect
to any question directly addressed to:
(1) The identity and location of persons having knowledge of
discoverable matters; and
(2) The identity of each person expected to be called as an expert
witness at the hearing, the subject matter on which he or she is expected to
testify and the substance of his or her testimony.
(b) A party is under a duty to amend timely a prior response if he or
she later obtains information upon the basis of which:
(1) He or she knows the response was incorrect when made; or
(2) He or she knows that the response though correct when made is no
longer true and the circumstances are such that a failure to amend the response
is in substance a knowing concealment.
(c) A duty to supplement responses may be imposed by order of the
administrative law judge or agreement of the parties.
Unless otherwise ordered, a written stipulation entered into by all the
parties and filed with the Chief Administrative Law Judge or the administrative
law judge assigned may: (a) Provide that depositions be taken before any person,
at any time or place, upon sufficient notice, and in any manner and when so
taken may be used like other depositions, and (b) modify the procedures provided
by these rules for other methods of discovery.
(a) Any party may serve upon any other party written interrogatories to
be answered in writing by the party served, or if the party served is a public
or private corporation or a partnership or association or governmental agency,
by any authorized officer or agent, who shall furnish such information as is
available to the party. A copy of the interrogatories, answers, and all related
pleadings shall be served on all parties to the proceeding. Copies of
interrogatories and responses thereto shall not be filed with the Office of
Administrative Law Judges unless the presiding judge so orders, the document is
being offered into evidence, the document is submitted in support of a motion or
a response to a motion, filing is required by a specialized rule, or there is
some other compelling reason for its submission.
(b) Each interrogatory shall be answered separately and fully in writing
under oath or affirmation, unless it is objected to, in which event the reasons
for objection shall be stated in lieu of an answer. The answers and objections
shall be signed by the person making them. The party upon whom the
interrogatories were served shall serve a copy of the answer and objections upon
all parties to the proceeding within thirty (30) days after service of the
interrogatories, or within such shorter or longer period as the administrative
law judge may allow.
(c) An interrogatory otherwise proper is not necessarily objectionable
merely because an answer to the interrogatory involves an opinion or contention
that relates to fact or the application of law to fact, but the administrative
law judge may order that such an interrogatory need not be answered until after
designated discovery has been completed or until a prehearing conference or
other later time.
[48 FR 32538, July 15, 1983, as amended at 59 FR 41874, Aug. 15, 1994]
(a) Any party may serve on any other party a request to:
(1) Produce and permit the party making the request, or a person acting
on his or her behalf, to inspect and copy any designated documents, or to
inspect and copy, test, or sample any tangible things which are in the
possession, custody, or control of the party upon whom the request is served; or
(2) Permit entry upon designated land or other property in the
possession or control of the party upon whom the request is served for the
purpose of inspection and measuring, photographing, testing, or for other
purposes as stated in paragraph (a)(1) of this section.
(3) Submit to a physical or mental examination by a physician.
(b) The request may be served on any party without leave of the
administrative law judge.
(c) The request shall:
(1) Set forth the items to be inspected either by individual item or by
category;
(2) Describe each item or category with reasonable particularity;
(3) Specify a reasonable time, place, and manner of making the
inspection and performing the related acts;
(4) Specify the time, place, manner, conditions, and scope of the
physical or mental examination and the person or persons by whom it is to be
made. A report of examining physician shall be made in accordance with Rule
35(b) of the Federal Rules of Civil Procedure, title 28 U.S.C., as amended.
(d) The party upon whom the request is served shall serve on the party
submitting the request a written response within thirty (30) days after service
of the request.
(e) The response shall state, with respect to each item or category:
(1) That inspection and related activities will be permitted as
requested; or
(2) That objection is made in whole or in part, in which case the
reasons for objection shall be stated.
(f)A copy of each request for production and each written response shall
be served on all parties, but shall not be filed with the Office of
Administrative Law Judges unless the presiding judge so orders, the document is
being offered into evidence, the document is submitted in support of a motion or
a response to a motion, filing is required by a specialized rule, or there is
some other compelling reason for its submission.
[48 FR 32538, July 15, 1983, as amended at 59 FR 41874, Aug. 15, 1994]
(a) A party may serve upon any other party a written request for the
admission, for purposes of the pending action only, of the genuineness and
authenticity of any relevant document described in or attached to the request,
or for the admission of the truth of any specified relevant matter of fact.
(b) Each matter of which an admission is requested is admitted unless,
within thirty (30) days after service of the request or such shorter or longer
time as the administrative law judge may allow, the party to whom the request is
directed serves on the requesting party:
(1) A written statement denying specifically the relevant matters of
which an admission is requested;
(2) A written statement setting forth in detail the reasons why he or
she can neither truthfully admit nor deny them; or
(3) Written objections on the ground that some or all of the matters
involved are privileged or irrelevant or that the request is otherwise improper
in whole or in part.
(c) An answering party may not give lack of information or knowledge as
a reason for failure to admit or deny unless the party states that he or she has
made reasonable inquiry and that the information known or readily obtainable by
him or her is insufficient to enable the party to admit or deny.
(d) The party who has requested the admissions may move to determine
the sufficiency of the answers or objections. Unless the administrative law
judge determines that an objection is justified, he or she shall order that an
answer be served. If the administrative law judge determines that an answer does
not comply with the requirements of this section, he or she may order either
that the matter is admitted or that an amended answer be served. The
administrative law judge may, in lieu of these orders, determine that final
disposition of the request be made at a prehearing conference or at a designated
time prior to hearing.
(e) Any matter admitted under this section is conclusively established
unless the administrative law judge on motion permits withdrawal or amendment of
the admission.
(f) Any admission made by a party under this section is for the purpose
of the pending action only and is not an admission by him or her for any other
purpose nor may it be used against him or her in any other proceeding.
(g)A copy of each request for admission and each written response shall be
served on all parties, but shall not be filed with the Office of Administrative
Law Judges unless the presiding judge so orders, the document is being offered
into evidence, the document is submitted in support of a motion or a response to
a motion, filing is required by a specialized rule, or there is some other
compelling reason for its submission.
[48 FR 32538, July 15, 1983, as amended at 59 FR 41874, Aug. 15, 1994]
(a) If a deponent fails to answer a question propounded or a party upon
whom a request is made pursuant to §§ 18.18 through 18.20, or a party
upon whom interrogatories are served fails to respond adequately or objects to
the request, or any part thereof, or fails to permit inspection as requested,
the discovering party may move the administrative law judge for an order
compelling a response or inspection in accordance with the request.
(b) The motion shall set forth:
(1) The nature of the questions or request;
(2) The response or objections of the party upon whom the request was
served; and
(3) Arguments in support of the motion.
(c) For purposes of this section, an evasive answer or incomplete
answer or response shall be treated as a failure to answer or respond.
(d) In ruling on a motion made pursuant to this section, the
administrative law judge may make and enter a protective order such as he or she
is authorized to enter on a motion made pursuant to § 18.15(a).
(a) When, how, and by whom taken. The deposition of any witness
may be taken at any stage of the proceeding at reasonable times. Depositions may
be taken by oral examination or upon written interrogatories before any person
having power to administer oaths.
(b) Application. Any party desiring to take the deposition of a
witness shall indicate to the witness and all other parties the time when, the
place where, and the name and post office address of the person before whom the
deposition is to be taken; the name and address of each witness; and the subject
matter concerning which each such witness is expected to testify.
(c) Notice. Notice shall be given for the taking of a
deposition, which shall not be less than five (5) days written notice when the
deposition is to be taken within the continental United States and not less than
twenty (20) days written notice when the deposition is to be taken elsewhere. A
copy of the Notice shall not be filed with the Office of Administrative Law
Judges unless the presiding judge so orders, the document is being offered into
evidence, the document is submitted in support of a motion or a response to a
motion, filing is required by a specialized rule, or there is some other
compelling reason for its submission.
(d) Taking and receiving in evidence. Each witness testifying
upon deposition shall be sworn, and any other party shall have the right to
cross-examine. The questions propounded and the answers thereto, together with
all objections made, shall be reduced to writing; read by or to, and subscribed
by the witness; and certified by the person administering the oath. Subject to
such objections to the questions and answers as were noted at the time of taking
the deposition and which would have been valid if the witness were personally
present and testifying, such deposition may be read and offered in evidence by
the party taking it as against any party who was present or represented at the
taking of the deposition or who had due notice thereof.
(e) Motion to terminate or limit examination. During the taking
of a deposition, a party or deponent may request suspension of the deposition on
grounds of bad faith in the conduct of the examination, oppression of a deponent
or party or improper questions propounded. The deposition will then be
adjourned. However, the objecting party or deponent must immediately move the
administrative law judge for a ruling on his or her objections to the deposition
conduct or proceedings. The administrative law judge may then limit the scope or
manner of the taking of the deposition.
[48 FR 32538, July 15, 1983; 49 FR 2739, Jan. 20, 1984 and 59 FR 41874, Aug.
15, 1994]
(a) Generally. At the hearing, any part or all of a deposition,
so far as admissible under the rules of evidence, may be used against any party
who was present or represented at the taking of the deposition or who had due
notice thereof in accordance with any one of the following provisions:
(1) Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of the deponent as a witness.
(2) The deposition of expert witnesses, particularly the deposition of
physicians, may be used by any party for any purpose, unless the administrative
law judge rules that such use would be unfair or a violation of due process.
(3) The deposition of a party or of anyone who at the time of taking
the deposition was an officer, director, or duly authorized agent of a public or
private corporation, partnership, or association which is a party, may be used
by any other party for any purpose.
(4) The deposition of a witness, whether or not a party, may be used by
any party for any purpose if the presiding officer finds:
(i) That the witness is dead; or
(ii) That the witness is out of the United States or more than 100 miles
from the place of hearing unless it appears that the absence of the witness was
procured by the party offering the deposition; or
(iii) That the witness is unable to attend to testify because of age,
sickness, infirmity, or imprisonment; or
(iv)That the party offering the deposition has been unable to procure the
attendance of the witness by subpoena; or
(v) Upon application and notice, that such exceptional circumstances
exist at to make it desirable, in the interest of justice and with due regard to
the importance of presenting the testimony of witnesses orally in open hearing,
to allow the deposition to be used.
(5) If only part of a deposition is offered in evidence by a party, any
other party may require him or her to introduce all of it which is relevant to
the part introduced, and any party may introduce any other parts.
(6) Substitution of parties does not affect the right to use
depositions previously taken; and, when a proceeding in any hearing has been
dismissed and another proceeding involving the same subject matter is afterward
brought between the same parties or their representatives or successors in
interest, all depositions lawfully taken and duly filed in the former proceeding
may be used in the latter as if originally taken therefor.
(b) Objections to admissibility. Except as provided in this
paragraph, objection may be made at the hearing to receiving in evidence any
deposition or part thereof for any reason which would require the exclusion of
the evidence if the witness were then present and testifying.
(1) Objections to the competency of a witness or to the competency,
relevancy, or materiality of testimony are not waived by failure to make them
before or during the taking of the deposition, unless the ground of the
objection is one which might have been obviated or removed if presented at that
time.
(2) Errors and irregularities occurring at the oral
examination in the manner of taking the deposition, in the form of the questions
or answers, in the oath or affirmation, or in the conduct of parties and errors
of any kind which might be obviated, removed, or cured if promptly presented,
are waived unless reasonable objection thereto is made at the taking of the
deposition.
(3) Objections to the form or written interrogatories are waived unless
served in writing upon the party propounding them.
(c) Effect of taking or using depositions. A party shall not be
deemed to make a person his or her own witness for any purpose by taking his or
her deposition. The introduction in evidence of the deposition or any part
thereof for any purpose other than that of contradicting or impeaching the
deponent makes the deponent the witness of the party introducing the deposition,
but this shall not apply to the use by any other party of a deposition as
described in paragraph (a)(2) of this section. At the hearing, any party may
rebut any relevant evidence contained in a deposition whether introduced by him
or her or by any other party.
(a) Except as provided in paragraph (b) of this section, the Chief
Administrative Law Judge or the presiding administrative law judge, as
appropriate, may issue subpoenas as authorized by statute or law upon written
application of a party requiring attendance of witnesses and production of
relevant papers, books, documents, or tangible things in their possession and
under their control. A subpoena may be served by certified mail or by any person
who is not less than 18 years of age. A witness, other than a witness for the
Federal Government, may not be required to attend a deposition or hearing unless
the mileage and witness fee applicable to witnesses in courts of the United
States for each date of attendance is paid in advance of the date of the
proceeding.
(b) If a party's written application for subpoena is submitted three
(3) working days or less before the hearing to which it relates, a subpoena
shall issue at the discretion of the Chief Administrative Law Judge or presiding
administrative law judge, as appropriate.
(c) Motion to quash or limit subpoena. Within ten (10) days of
receipt of a subpoena but no later than the date of the hearing, the person
against whom it is directed may file a motion to quash or limit the subpoena,
setting forth the reasons why the subpoena should be withdrawn or why it should
by limited in scope. Any such motion shall be answered within ten (10) days of
service, and shall be ruled on immediately thereafter. The order shall specify
the date, if any, for compliance with the specifications of the subpoena.
(d) Failure to comply. Upon the failure of any person to comply
with an order to testify or a subpoena, the party adversely affected by such
failure to comply may, where authorized by statute or by law, apply to the
appropriate district court for enforcement of the order or subpoena.
Hearings shall be held before an administrative law judge appointed under 5
U.S.C. 3105 and assigned to the Department of Labor. The presiding judge shall
be designated by the Chief Administrative Law Judge.
(a) Generally. Except when hearings are scheduled by calendar
call, the administrative law judge to whom the matter is referred shall notify
the parties by mail of a day, time, and place set for hearing thereon or for a
prehearing conference, or both. No date earlier than fifteen (15) days after the
date of such notice shall be set for such hearing or conference, except by
agreement of the parties. Service of such notice shall be made by regular,
first-class mail, unless under the circumstances it appears to the
administrative law judge that certified mail, mailgram, telephone, or any
combination of these methods should be used instead.
(b) Change of date, time and place. The Chief Administrative
Law Judge or the administrative law judge assigned to the case may change the
time, date and place of the hearing, or temporarily adjourn a hearing, on his or
her own motion or for good cause shown by a party. The parties shall be given
not less than ten (10) days notice of the new hearing date, unless they agree to
such change without such notice.
(c) Place of hearing. Unless otherwise required by statute or
regulation, due regard shall be given to the convenience of the parties and the
witnesses in selecting a place for the hearing.
(a) When granted. Continuances will only by granted in cases of
prior judicial commitments or undue hardship, or a showing of other good cause.
(b) Time limit for requesting. Except for good cause arising
thereafter, requests for continuances must be filed within fourteen (14) days
prior to the date set for hearing.
(c) How filed. Motions for continuances shall be in writing. At
least 3''x3 1/2 '' of blank space shall be provided on the last page of the
motion to permit space for the entry of an order by the administrative law
judge. Copies shall be served on all parties. Any motions for continuances made
within ten (10) days of the date of the scheduled proceeding shall, in addition
to the written request, be telephonically conveyed to the administrative law
judge or a member of his or her staff and to all other parties. Motions for
continuances, based on reasons not reasonably ascertainable prior thereto, may
also be made on the record at calendar calls, prehearing conferences or
hearings.
(d) Ruling. Time permitting, the administrative law judge shall
issue a written order in advance of the scheduled proceeding date which either
allows or denies the request. Otherwise the ruling may be made orally by
telephonic communication to the party requesting same who shall be responsible
for telephonically notifying all other parties. Oral orders shall be confirmed
in writing.
(a) General powers. In any proceeding under this part, the
administrative law judge shall have all powers necessary to the conduct of fair
and impartial hearings, including, but not limited to, the following:
(1) Conduct formal hearings in accordance with the provisions of this
part;
(2) Administer oaths and examine witnesses;
(3) Compel the production of documents and appearance of witnesses in
control of the parties;
(4) Compel the appearance of witnesses by the issuance of subpoenas as
authorized by statute or law;
(5) Issue decisions and orders;
(6) Take any action authorized by the Administrative Procedure Act;
(7) Exercise, for the purpose of the hearing and in regulating the
conduct of the proceeding, such powers vested in the Secretary of Labor as are
necessary and appropriate therefor;
(8) Where 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; and
(9)Do all other things necessary to enable him or her to discharge the
duties of the office.
(b) Enforcement. If any person in proceedings before an
adjudication officer 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 administrative law judge
responsible for the adjudication, where authorized by statute or law, may
certify the facts to the Federal District Court having jurisdiction in the place
in which he or she is sitting to request appropriate remedies.
In the event the administrative law judge designated to conduct the hearing
becomes unavailable, the Chief Administrative Law Judge may designate another
administrative law judge for the purpose of further hearing or other appropriate
action.
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