Requesting Hearings Before the
Office of Administrative Law Judges in ERISA
Cases
Sample Answer and Entry of Appearance
Overview
OALJ has received many inquiries as to the form required for a hearing request/answer in ERISA
proceedings. The regulations indicate, in essence, that a party must, when requesting a hearing
on a § 502(c)(2) or § 502(i) penalty, include arguments opposing the proposed
sanction supported by reference to specific circumstances or facts surrounding the basis for the
PWBA's determination letter in a § 502(c)(2) case, or notice of intent to impose a §
502(i) penalty. That hearing request/answer must be filed within 30 days of service of PWBA's
determination letter or notice intent respectively.
Below is a more detailed description of the regulatory requirements, and a sample request for
hearing/answer in a § 502(c)(2). The format would be similar for a § 502(i) answer.
Regulatory provisions
Proceedings in ERISA cases before the Office of Administrative Law Judges, U.S. Department
of Labor, are governed by the regulations at 29 C.F.R. Parts 2560 and 2570. OALJ's jurisdiction
in ERISA cases is limited to appeals from PWBA-imposed civil money penalties for:
Failure or refusal to file the annual report, ERISA § 502(c)(2), 29 U.S.C.
§ 1132(c)(2)
Procedural rules are at 29 C.F.R. §§ 2570.60 through
2570.71
Procedural rules are at 29 C.F.R. §§ 2570.1 through
2570.12
If a party wishes to request a hearing on a PWBA Notice of Determination letter imposing civil
money penalties for a § 502(c)(2) violation, or on a Notice of Intent to impose a penalty
for a § 502(i) violation, that party must file an "answer" to the letter or notice.
In the case of a § 502(c)(2) penalty, if an answer is not filed within 30 days of the date of
service of the Notice of Determination, the Notice of Determination becomes the final order of
the Department. 29 C.F.R. §§ 2560.502c-2(g) and (h); 2570.64. In the case of a
§ 502(i) violation, if an answer is not filed within 30 days of service of the
"complaint" (in this context, the "complaint" would be the Department's
notice of intent to impose a § 502(i) penalty), the right to appear and contest the
allegations of the notice is deemed to be waived, and the facts as alleged in the notice are
deemded admitted. The § 502(i) notice then automatically becomes the final order of the
Secretary, unless the ALJ finds that there was defective service.
Both § 502(c)(2) and § 502(i) violation regulations define an "answer"
by reference to OALJ's Rules of Practice provide at 29 C.F.R. § 18.5(d)(1). See
§§ 2570.2(c) and 2570.61(c). Rule § 18.5(d)(1) provides:
(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.
Thus, in filing an answer, it is important that the answer is supported by reference to specific
circumstances or facts surrounding the basis for PWBA's determination letter or notice.
[Note: The regulation at 29 C.F.R. § 2570.3(a) states an out-of-date address for the Chief
Docket Clerk, Office of Administrative Law Judges. The present address is: 800 K Street, NW,
Suite 400N, Washington, DC 20001].
SAMPLE REQUEST FOR
HEARING/ANSWER
This is a sample request for hearing/answer in a § 502(c)(2) case. The format would be
similar for a § 502(i) request for hearing/answer. The form is only intended to provide
litigants with an example of what an answer's form and format might look like. The content
must be adjusted to fit the factual circumstances and regulatory violation at issue.
UNITED STATES DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
DATE:
CASE NO.: [ when filing an answer, the case number will not yet be known, so this can be
left blank. OALJ will assign a case number upon docketing. A case number is equivalent to a
docket number (see 29 C.F.R. § 2570.3(e)). ]
In the Matter of
U.S. DEPARTMENT OF LABOR,
PENSION AND WELFARE BENEFITS ADMINISTRATION
Complainant
v.
[NAME OF RESPONDENT (precise party against whom the Department is seeking to assess a
civil sanction; may be the fiduciary rather than the company)]
Respondent
ANSWER OF RESPONDENT [NAME OF
RESPONDENT]
Respondent, [name of Respondent], by its undersigned attorneys, asserts
as follows:
1. Respondent is the plan sponsor and administrator of the [name of
plan] (the "Plan").
2. The Plan is an employee benefit plan within the meaning of the
Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §
1001 et. seq.
3. By letter dated [ insert date of letter ], the Pension and Welfare
Benefits Administration ("PWBA") of the United States Department of Labor
notified Respondent of its intent to assess a penalty of $ [ insert amount of penalty ] in
connection with [ insert description of nature of alleged violation ]. By letter dated [ insert date
of letter ], Respondent timely filed a statemet of reasonable cause explaining [ insert description
]. By letter dated [ insert date of letter ], PWBA determined not to waive the penalty and
assessed a penalty of $ [ insert amount of penalty ].
4. This answer is filed pursuant to 29 C.F.R. § 2570.62 seeking
the administrative hearing provided by 29 C.F.R. § 2560.502c-2(h) regarding PWBA's
assessement of this penalty against Respondent.
5. [ Insert explanations, legal defenses, etc. ]
6. [ insert additional explanations, defenses, etc. (continue as needed)
]
WHEREFORE, Respondent prays that the administrative law judge issue
an order or orders:
1. Adjudging and declaring that [ insert description of relief sought
(e.g., penalty should not have been assessed) ].
2. [ insert description of other or alternative forms of relief (e.g.,
reducation in penalty) ].
Respectfully submitted,
_______________________________
[ insert
name, address, phone numbers of attorney ]
[Insert date of answer ]
CERTIFICATE OF SERVICE
I hereby certify that a copy of this Answer of Respondent was served by
first-class United States mail, postage prepaid, this __ day of _____, 19__ on the following
persons:
[ insert service list ]
_______________________________
[ insert
name of certifier ]
SAMPLE NOTICE OF
APPEARANCE
UNITED STATES DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
DATE:
CASE NO.:
In the Matter of
U.S. DEPARTMENT OF LABOR,
PENSION AND WELFARE BENEFITS ADMINISTRATION
Complainant
v.
[NAME OF RESPONDENT (the fiduciary, not the company)]
Respondent
NOTICE OF APPEARANCE
PLEASE TAKE NOTICE that the undersigned hereby appears in this
proceeding on behalf of Respondent, [ insert name of Respondent ].
Respectfully submitted,
_______________________________
[ insert
name, address, phone numbers of attorney ]
[Insert date of answer ]
CERTIFICATE OF SERVICE
I hereby certify that a copy of this Notice of Appearance was served by
first-class United States mail, postage prepaid, this __ day of _____, 19__ on the following
persons:
[ insert service list ]
_______________________________
[ insert
name of certifier ]