(a) When an administrative law judge deems himself or herself
disqualified to preside in a particular proceeding, such judge shall withdraw
therefrom by notice on the record directed to the Chief Administrative Law
Judge.
(b) Whenever any party shall deem the administrative law judge for any
reason to be disqualified to preside, or to continue to preside, in a particular
proceeding, that party shall file with the administrative law judge a motion to
recuse. The motion shall be supported by an affidavit setting forth the alleged
grounds for dis20qualification. The administrative law judge shall rule upon the
motion.
(c) In the event of disqualification or recusal of an administrative
law judge as provided in paragraph (a) or (b) of this section, the Chief
Administrative Law Judge shall refer the matter to another administrative law
judge for further proceedings.
No officer, employee, or agent of the Federal Government engaged in the
performance of investigative or prosecutorial functions in connection with any
proceeding shall, in that proceeding or a factually related proceeding,
participate or advise in the decision of the administrative law judge, except as
a witness or counsel in the proceedings.
(a) Appearances. Any party shall have the right to appear at a
hearing in person, by counsel, or by other representative, to examine and
cross-examine witnesses, and to introduce into the record documentary or other
relevant evidence, except that the participation of any intervenor shall be
limited to the extent prescribed by the administrative law judge.
(b) Each attorney or other representative shall file a notice of
appearance. Such notice shall indicate the name of the case or controversy, the
docket number if assigned, and the party on whose behalf the appearance is made.
(c) Rights of parties. Every party shall have the right of
timely notice and all other rights essential to a fair hearing, including, but
not limited to, the rights to present evidence, to conduct such
cross-examination as may be necessary for a full and complete disclosure of the
facts, and to be heard by objection, motion, and argument.
(d) Rights of participants. Every participant shall have the
right to make a written or oral statement of position. At the discretion of the
administrative law judge, participants may file proposed findings of fact,
conclusions of law and a post hearing brief.
(e) Rights of witnesses. Any person compelled to
testify in a proceeding in response to a subpoena may be accompanied,
represented, and advised by counsel or other representative, and may purchase a
transcript of his or her testimony.
(f) Office of the Solicitor. The Department of Labor shall be
represented by the Solicitor of Labor or his or her designee and shall
participate to the degree deemed appropriate by the Solicitor.
(g) Qualifications--(1) Attorneys. An attorney at law
who is admitted to practice before the Federal courts or before the highest
court of any State, the District of Columbia, or any territory or commonwealth
of the United States, may practice before the Office of Administrative Law
Judges. An attorney's own representation that he or she is in good standing
before any of such courts shall be sufficient proof thereof, unless otherwise
ordered by the administrative law judge. Any attorney of record must file prior
notice in writing of intent to withdraw as counsel.
(2) Persons not attorneys. Any citizen of the United States who
is not an attorney at law shall be admitted to appear in a representative
capacity in an adjudicative proceeding. An application by a person not an
attorney at law for admission to appear in a proceeding shall be submitted in
writing to the Chief Administrative Law Judge prior to the hearing in the
proceedings or to the administrative law judge assigned at the commencement of
the hearing. The application shall state generally the applicant's
qualifications to appear in the proceedings. The administrative law judge may,
at any time, inquire as to the qualification or ability of such person to render
legal assistance.
(3) Denial of authority to appear. The administrative law judge
may deny the privilege of appearing to any person, within applicable statutory
constraints, e.g. 5 U.S.C. 555, who he or she finds after notice of and
opportunity for hearing in the matter does not possess the requisite
qualifications to represent others; or is lacking in character or integrity; has
engaged in unethical or improper professional conduct; or has engaged in an act
involving moral turpitude. No provision hereof shall apply to any person who
appears on his or her own behalf or on behalf of any corporation, partnership,
or association of which the person is a partner, officer, or regular employee.
(h) Authority for representation. Any individual acting in a
representative capacity in any adjudicative proceeding may be required by the
administrative law judge to show his or her authority to act in such capacity. A
regular employee of a party who appears on behalf of the party may be required
by the administrative law judge to show his or her authority to so appear.
(a) All persons appearing in proceedings before an administrative law
judge are expected to act with integrity, and in an ethical manner.
(b) The administrative law judge may exclude parties, participants, and
their representatives for refusal to comply with directions, continued use of
dilatory tactics, refusal to adhere to reasonable standards of orderly and
ethical conduct, failure to act in good faith, or violation of the prohibition
against ex parte communications. The administrative law judge shall state in the
record the cause for suspending or barring an attorney or other representative
from participation in a particular proceeding. Any attorney or other
representative so suspended or barred may appeal to the Chief Judge but no
proceeding shall be delayed or suspended pending disposition of the appeal;
provided, however, that the administrative law judge shall suspend the
proceeding for a reasonable time for the purpose of enabling the party to obtain
another attorney or representative.
Proceedings shall be conducted in an orderly manner. The consumption of
food or beverage, smoking, or rearranging of courtroom furniture, unless
specifically authorized by the administrative law judge, are prohibited.
(a) The administrative law judge shall not consult any person, or party,
on any fact in issue unless upon notice and opportunity for all parties to
participate. Communications by the Office of Administrative Law Judges, the
assigned judge, or any party for the sole purpose of scheduling hearings or
requesting extensions of time are not considered ex-parte communications, except
that all other parties shall be notified of such request by the requesting party
and be given an opportunity to respond thereto.
(b) Sanctions. A party or participant who makes a prohibited ex
parte communication, or who encourages or solicits another to make any such
communication, may be subject to any appropriate sanction or sanctions,
including, but not limited to, exclusion from the proceedings and adverse ruling
on the issue which is the subject of the prohibited communication.
(a) Waiver of right to appear. If all parties waive their right
to appear before the administrative law judge or to present evidence or argument
personally or by representative, it shall not be necessary for the
administrative law judge to give notice of and conduct an oral hearing. A waiver
of the right to appear and present evidence and allegations as to facts and law
shall be made in writing and filed with the Chief Administrative Law Judge or
the administrative law judge. Where such a waiver has been filed by all parties
and they do not appear before the administrative law judge personally or by
representative, the administrative law judge shall make a record of the relevant
written evidence submitted by the parties, together with any pleadings they may
submit with respect to the issues in the case. Such documents shall be
considered as all of the evidence in the case, and the decision shall be based
on them.
(b) Dismissal--Abandonment by Party. A request for hearing may
be dismissed upon its abandonment or settlement by the party or parties who
filed it. A party shall be deemed to have abandoned a request for hearing if
neither the party nor his or her representative appears at the time and place
fixed for the hearing and either (a) prior to the time for hearing such party
does not show good cause as to why neither he or she nor his or her
representative can appear or (b) within ten (10) days after the mailing of a
notice to him or her by the administrative law judge to show cause, such party
does not show good cause for such failure to appear and fails to notify the
administrative law judge prior to the time fixed for hearing that he or she
cannot appear. A default decision, under § 18.5(b), may be entered against
any party failing, without good cause, to appear at a hearing.
(a) Any party may, at least twenty (20) days before the date fixed for
any hearing, move with or without supporting affidavits for a summary decision
on all or any part of the proceeding. Any other party may, within ten (10) days
after service of the motion, serve opposing affidavits or countermove for
summary decision. The administrative law judge may set the matter for argument
and/or call for submission of briefs.
(b) Filing of any documents under paragraph (a) of this section shall
be with the administrative law judge, and copies of such documents shall be
served on all parties.
(c) Any affidavits submitted with the motion shall set forth such facts
as would be admissible in evidence in a proceeding subject to 5 U.S.C. 556 and
557 and shall show affirmatively that the affiant is competent to testify to the
matters stated therein. When a motion for summary decision is made and supported
as provided in this section, a party opposing the motion may not rest upon the
mere allegations or denials of such pleading. Such response must set forth
specific facts showing that there is a genuine issue of fact for the hearing.
(d) The administrative law judge may enter summary judgment for either
party if the pleadings, affidavits, material obtained by discovery or otherwise,
or matters officially noticed show that there is no genuine issue as to any
material fact and that a party is entitled to summary decision. The
administrative law judge may deny the motion whenever the moving party denies
access to information by means of discovery to a party opposing the motion.
(a) No genuine issue of material fact. (1) Where no genuine
issue of a material fact is found to have been raised, the administrative law
judge may issue a decision to become final as provided by the statute or
regulations under which the matter is to be heard. Any final decision issued as
a summary decision shall conform to the requirements for all final decisions.
(2) An initial decision and a final decision made under this paragraph
shall include a statement of:
(i) Findings of fact and conclusions of law, and the reasons therefor,
on all issues presented; and
(ii) Any terms and conditions of the rule or order.
(3) A copy of any initial decision and final decision under this
paragraph shall be served on each party.
(b) Hearings on issue of fact. Where a genuine question of
material fact is raised, the administrative law judge shall, and in any other
case may, set the case for an evidentiary hearing.
(a) When expedited proceedings are required by statute or regulation, or
at any time after commencement of a proceeding, any party may move to advance
the scheduling of a proceeding.
(b) Except when such proceedings are required or as otherwise directed
by the Chief Administrative Law Judge or the administrative law judge assigned,
any party filing a motion under this section shall:
(1) Make the motion in writing;
(2) Describe the circumstances justifying advancement;
(3) Describe the irreparable harm that would result if the motion is
not granted; and
(4) Incorporate in the motion affidavits to support any representations
of fact.
(c) Service of a motion under this section shall be accomplished by
personal delivery or by telephonic or telegraphic communication followed by
mail. Service is complete upon personal delivery or mailing.
(d) Except when such proceedings are required, or unless otherwise
directed by the Chief Administrative Law Judge or the administrative law judge
assigned, all parties to the proceeding in which the motion is filed shall have
ten (10) days from the date of service of the motion to file an opposition in
response to the motion.
(e) Following the timely receipt by the administrative law judge of
statements in response to the motion, the administrative law judge may advance
pleading schedules, prehearing conferences, and the hearing, as deemed
appropriate: provided, however, that a hearing on the merits shall not be
scheduled with less than five (5) working days notice to the parties, unless all
parties consent to an earlier hearing.
(f) When expedited hearings are required by statute or regulation, such
hearing shall be scheduled within sixty (60) days from the receipt of request
for hearing or order of reference. The decision of the administrative law judge
shall be issued within twenty (20) days after receipt of the transcript of any
oral hearing or within twenty (20) days after the filing of all documentary
evidence if no oral hearing is conducted.
(a) Public. Hearings shall be open to the public. However, in
unusual circumstances, the administrative law judge may order a hearing or any
part thereof closed, where to do so would be in the best interests of the
parties, a witness, the public or other affected persons. Any order closing the
hearing shall set forth the reasons for the decision. Any objections thereto
shall be made a part of the record.
(b) Jurisdiction. The administrative law judge shall have
jurisdiction to decide all issues of fact and related issues of law.
(c) Amendments to conform to the evidence. When issues not
raised by the request for hearing, prehearing stipulation, or prehearing order
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. Such amendment of the
pleadings as may be necessary to cause them to conform to the evidence may be
made on motion of any party at any time; but failure to so amend does not affect
the result of the hearing of these issues. The administrative law judge may
grant a continuance to enable the objecting party to meet such evidence.
Official notice may be taken of any material fact, not appearing in
evidence in the record, which is among the traditional matters of judicial
notice: Provided, however, that the parties shall be given adequate notice, at
the hearing or by reference in the administrative law judge's decision, of the
matters so noticed, and shall be given adequate opportunity to show the
contrary.
(a) Privileges. Upon application of any person the
administrative law judge may limit discovery or introduction of evidence or
issue such protective or other orders as in his or her judgment may be
consistent with the objective of protecting privileged communications.
(b) Classified or sensitive matter. (1) Without limiting the
discretion of the administrative law judge to give effect to any other
applicable privilege, it shall be proper for the administrative law judge to
limit discovery or introduction of evidence or to issue such protective or other
orders as in his or her judgment may be consistent with the objective of
preventing undue disclosure of classified or sensitive matter. Where the
administrative law judge determines that information in documents containing
sensitive matter should be made available to a respondent, he or she may direct
the party to prepare an unclassified or nonsensitive summary or extract of the
original. The summary or extract may be admitted as evidence in the record.
(2) If the administrative law judge determines that this procedure is
inadequate and that classified or otherwise sensitive matter must form part of
the record in order to avoid prejudice to a party, he or she may advise the
parties and provide opportunity for arrangements to permit a party or a
representative to have access to such matter. Such arrangements may include
obtaining security clearances or giving counsel for a party access to sensitive
information and documents subject to assurances against further disclosure.
(a) Identification. All exhibits offered in evidence shall be
numbered and marked with a designation identifying the party or intervenor by
whom the exhibit is offered.
(b) Exchange of exhibits. When written exhibits are offered in
evidence, one copy must be furnished to each of the parties at the hearing, and
one copy to the administrative law judge, unless the parties previously have
been furnished with copies or the administrative law judge directs otherwise. If
the administrative law judge has not fixed a time for the exchange of exhibits
the parties shall exchange copies of exhibits at the earliest practicable time,
preferably before the hearing, or at the latest at the commencement of the
hearing.
(c) Substitution of copies for original exhibits. The
administrative law judge may permit a party to withdraw original documents
offered in evidence and substitute true copies in lieu thereof.
In case any portion of the record in any other proceeding or civil or
criminal action is offered in evidence, a true copy of such portion shall be
presented for the record in the form of an exhibit unless the administrative law
judge directs otherwise.
Where relevant and material matter offered in evidence is embraced in a
document containing other matter not material or relevant and not intended to be
put in evidence, the participant offering the same shall plainly designate the
matter so offered, segregating and excluding insofar as practicable the
immaterial or irrelevant parts. If other matter in such document is in such bulk
or extent as would necessarily encumber the record, such document will not be
received in evidence, but may be marked for identification, and if properly
authenticated, the relevant and material parts thereof may be read into the
record, or if the administrative law judge so directs, a true copy of such
matter in proper form shall be received in evidence as an exhibit, and copies
shall be delivered by the participant offering the same to the other parties or
their attorneys appearing at the hearing, who shall be afforded an opportunity
to examine the entire document and to offer in evidence in like manner other
material and relevant portions thereof.
The authenticity of all documents submitted as proposed exhibits in advance
of the hearing shall be deemed admitted unless written objection thereto is
filed prior to the hearing, except that a party will be permitted to challenge
such autheniticity at a later time upon a clear showing of good cause for
failure to have filed such written objection.
The parties may by stipulation in writing at any stage of the proceeding,
or orally made at hearing, agree upon any pertinent facts in the proceeding. It
is desirable that the facts be thus agreed upon so far as and whenever
practicable. Stipulations may be received in evidence at a hearing or prior
thereto, and when received in evidence, shall be binding on the parties thereto.
(a) All hearings shall be mechanically or stenographically reported. All
evidence upon which the administrative law judge relies for decision shall be
contained in the transcript of testimony, either directly or by appropriate
reference. All exhibits introduced as evidence shall be marked for
identification and incorporated into the record. Transcripts may be obtained by
the parties and the public from the official reporter at rates not to exceed the
applicable rates fixed by the contract with the reporter.
(b) Corrections. Corrections to the official transcript will be
permitted upon motion. Motions for correction must be submitted within ten (10)
days of the receipt of the transcript unless additional time is permitted by the
administrative law judge. Corrections of the official transcript will be
permitted only when errors of substance are involved and only upon approval of
the administrative law judge.
The administrative law judge may hear arguments of counsel and may limit
the time of such arguments at his or her discretion, and may allow briefs to be
filed on behalf of either party but shall closely limit the time within which
the briefs for both parties shall be filed, so as to avoid unreasonable delay.
(a) When there is a hearing, the record shall be closed at the
conclusion of the hearing unless the administrative law judge directs otherwise.
(b) If any party waives a hearing, the record shall be closed on the
date set by the administrative law judge as the final date for the receipt of
submissions of the parties to the matter.
(c) Once the record is closed, no additional evidence shall be accepted
into the record except upon a showing that new and material evidence has become
available which was not readily available prior to the closing of the record.
However, the administrative law judge shall make part of the record, any motions
for attorney fees authorized by statutes, and any supporting documentation, any
determinations thereon, and any approved correction to the transcript.
Documents submitted for the record after the close of the hearing will not
be received in evidence except upon ruling of the administrative law judge. Such
documents when submitted shall be accompanied by proof that copies have been
served upon all parties, who shall have an opportunity to comment thereon.
Copies shall be received not later than twenty (20) days after the close of the
hearing except for good cause shown, and not less than ten (10) days prior to
the date set for filing briefs. Exhibit numbers should be assigned by counsel or
the party.
On his or her own motion, or on the motion of any party, the administrative
law judge may direct that there be a restricted access portion of the record to
contain any material in the record to which public access is restricted by law
or by the terms of a protective order entered in the proceedings. This portion
of the record shall be place in a separate file and clearly marked to avoid
improper disclosure and to identify it as a portion of the official record in
the proceedings.
(a) Proposed findings of fact, conclusions, and order. Within
twenty (20) days of filing of the transcript of the testimony or such additional
time as the administrative law judge may allow, each party may file with the
administrative law judge, subject to the judge's discretion under § 18.55,
proposed findings of fact, conclusions of law, and order together with a
supporting brief expressing the reasons for such proposals. Such proposals and
brief shall be served on all parties, and shall refer to all portions of the
record and to all authorities relied upon in support of each proposal.
(b) Decision of the administrative law judge. Within a
reasonable time after the time allowed for the filing of the proposed findings
of fact, conclusions of law, and order, or within thirty (30) days after receipt
of an agreement containing consent findings and order disposing of the disputed
matter in whole, the administrative law judge shall make his or her decision.
The decision of the administrative law judge shall include findings of fact and
conclusions of law, with reasons therefor, upon each material issue of fact or
law presented on the record. The decision of the administrative law judge shall
be based upon the whole record. It shall be supported by reliable and probative
evidence. Such decision shall be in accordance with the regulations and rulings
of the statute or regulation conferring jurisdiction.
The procedures for appeals shall be as provided by the statute or
regulation under which hearing jurisdiction is conferred. If no provision is
made therefor, the decision of the administrative law judge shall become the
final administrative decision of the Secretary.
Upon timely receipt of either a notice or a petition, the Chief
Administrative Law Judge shall promptly certify and file with the reviewing
authority, appellate body, or appropriate United States District Court, a full,
true, and correct copy of the entire record, including the transcript of
proceedings.
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