Vol. 80 Tuesday, 

No. 96 May 19, 2015 

Part II 

Department of Labor 

Office of the Secretary 

29 CFR Part 18 

Rules of Practice and Procedure for Administrative Hearings Before the 

Office of Administrative Law Judges; Final Rule 


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28768 Federal Register / Vol. 80, No. 96 / Tuesday, May 19, 2015 / Rules and Regulations 

DEPARTMENT OF LABOR 

Office of the Secretary 

29 CFR Part 18 

RIN 1290–AA26 

Rules of Practice and Procedure for 

Administrative Hearings Before the 

Office of Administrative Law Judges 

AGENCY: Office of the Secretary, Labor. 

ACTION: Final rule. 

SUMMARY: This is the final text of 

regulations governing practice and 

procedure for proceedings before the 

United States Department of Labor, 

Office of Administrative Law Judges 

(OALJ). The regulations were first 

published as a final rule in 1983 and 

were modeled on the Federal Rules of 

Civil Procedure (FRCP). A Notice of 

Proposed Rulemaking was published in 

the Federal Register on December 4, 

2012 requesting public comment on 

proposed revisions to and 

reorganization of these regulations. The 

revisions make the regulations more 

accessible and useful to parties. The 

revisions also harmonize administrative 

hearing procedures with the current 

FRCP and with the types of claims now 

heard by OALJ, which increasingly 

involve whistleblower and other 

workplace retaliation claims, in 

addition to a longstanding caseload of 

occupational disease and injury claims. 

The Department received sixteen 

comments to the proposed rule. This 

rule responds to those comments and 

establishes the final text of the revised 

regulations. 

DATES:

Effective Date: This rule is effective 

June 18, 2015. 

Compliance Date: This rule is 

effective June 18, 2015. 

FOR FURTHER INFORMATION CONTACT: 

Todd Smyth at the U.S. Department of 

Labor, Office of Administrative Law 

Judges, 800 K Street NW., Suite 400- 

North, Washington, DC 20001–8002; 

telephone (202) 693–7300. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On December 4, 2012, the Department 

published a Notice of Proposed 

Rulemaking (NPRM) with a request for 

comments amending 29 CFR part 18, 

subpart A. Rules of Practice and 

Procedure for Hearings Before the Office 

of Administrative Law Judge, 77 FR 

72142 (Dec. 4, 2012). The Department 

proposed to amend comprehensively its 

procedural rules to reflect the changes 

to civil litigation since the OALJ 

promulgated its rules in 1983. 

Moreover, the need to update the 

OALJ’s procedural rules was evident as 

the OALJ’s authority to hear 

whistleblower cases increased. The new 

procedural rules are analogous to the 

FRCP used in the United States district 

courts and are intended to provide more 

guidance and clarity to parties 

practicing before the OALJ. 

The Department provided an 

opportunity for the public to comment 

even though the changes are to rules of 

agency organization, procedure and 

practice, which are exempt from the 

notice and public comment 

requirements of the Administrative 

Procedure Act (APA). See 5 U.S.C. 

553(b)(3)(A). The comment period 

ended on February 4, 2013. The 

Department reviewed and responded to 

each pertinent comment submitted. See 

infra Part 3. Accordingly, the NPRM 

amending 29 CFR part 18, subpart A, 

that was published on December 4, 

2012, is being adopted as a final rule 

with the changes made below. 

The Department has found that a 

handful of departmental specific 

program regulations reference these 

rules, and that these references may 

now be inaccurate due to shifts in 

numbering. The Department plans to 

correct these references in the near 

future through technical corrections, 

which will be published in the Federal 

Register. 

II. Summary of General Comments on 

the Notice of Proposed Rulemaking 

The Department received several 

general comments regarding the 

proposed changes to the OALJ rules of 

practice and procedure. Each comment 

is addressed as follows: 

Compliance with the APA. The 

Department stated in the NPRM that 

while the proposed changes consist of 

amendments to rules of agency 

organization, procedure and practice 

that are exempt from the notice and 

public comment requirements of the 

APA, the Department wished to provide 

the public with an opportunity to 

comment on any aspect of the proposed 

rule. Accordingly, the proposed changes 

were published in the Federal Register, 

and public comment was invited. Two 

commenters challenged the 

Department’s reference to the APA’s 

procedural rules exception and claimed 

that the Department thus misinformed 

the public and chilled the pool of public 

comment on the proposed rule changes. 

These commenters asserted that the 

public harm resulting from this alleged 

error could only be remedied by 

withdrawing the proposed rules and 

reissuing them in conformity with the 

full notice and comment protections of 

the APA. One commenter argued that 

because the rules contain provisions for 

sanctions, they ‘‘substantially alter the 

rights and interests of parties’’ which 

triggers the APA’s requirements for 

public notice and comment. This 

comment principally relied on the 

vacated decision of the Court of Appeals 

for the District of Columbia in Air 

Transp. Ass’n of Am. v. Dep’t of 

Transp., 900 F.2d 369 (1990), cert. 

granted, 498 U.S. 1023 (1991), vacated, 

933 F.2d 1043 (1991). The other 

commenter stated that the OALJ rules of 

practice and procedure constitute 

agency rules with the ‘‘force and effect 

of law’’ that must be published for 

public comment in accordance with the 

Supreme Court’s decisions in United 

States v. Mead Corp., 533 U.S. 218 

(2001), and Christensen v. Harris Cnty., 

529 U.S. 576 (2000). 

The Department disagrees with these 

claims. In decisions issued subsequent 

to its vacated ruling in Air Transp. 

Ass’n of Am., the D.C. Circuit has 

stressed that the ‘‘ ‘critical feature’ ’’ of a 

rule that satisfies the so-called 

‘‘procedural exception ‘is that it covers 

agency actions that do not themselves 

alter the rights or interests of parties, 

although it may alter the manner in 

which the parties present themselves or 

their viewpoints to the agency.’ ’’ James 

V. Hurson Assoc., Inc. v. Glickman, 229 

F.3d 277, 280 (2000) (quoting JEM Broad 

Co. v. FCC, 22 F.3d 320, 326 (D.C. Cir. 

1994)). The Court further held in 

Hurson that ‘‘an otherwise procedural 

rule does not become a substantive one, 

for notice and comment purposes, 

simply because it imposes a burden on 

regulated parties.’’ Id. at 281. As nothing 

in the new rules alters the ‘‘substantive 

criteria’’ by which claims and 

complaints are adjudicated in the 

hearing before the OALJ, they are within 

the procedural rules exemption. See id. 

at 280–81; JEM Broad Co., 22 F.3d at 

237; Nat’l Whistleblower Ctr. v. Nuclear 

Regulatory Comm’n, 208 F.3d 256, 262 

(D.C. Cir. 2000), cert. denied, 531 U.S. 

1070 (2001). The Supreme Court’s 

decisions in Mead Corp. and 

Christensen cited by the other 

commenter respectively address 

whether a U.S. Customs Service 

classification ruling and Department of 

Labor opinion letter, neither of which 

were issued after APA notice and 

comment rulemaking, are entitled to 

deference under Chevron, U.S.A., Inc. v. 

Natural Res. Def. Council, Inc., 467 U.S. 

837 (1984). These decisions do not 

address the scope of the APA’s 

procedural rules exception. 

The Department moreover voluntarily 

published the rule changes in 


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accordance with the notice and 

comment requirements of the APA 

consistent with the procedure 

recommended by the Administrative 

Conference of the United States to avoid 

controversy over the scope of the APA’s 

notice and comment exceptions. See 

The Procedural and Practice Rule 

Exemption from the APA Notice-andComment Rulemaking Requirements, 1 

CFR 305.92–1 (1995) (ACUS 

Recommendation 92–1, available at 

www.acus.gov/sites/default/files/

documents/92-1/pdf). The commenters 

provided no evidence to support their 

claim that the Department’s voluntary 

compliance with the APA’s notice and 

comment requirements in accordance 

with the ACUS recommendation in any 

manner chilled or otherwise influenced 

public comment. They also cited no 

legal authority for their position that the 

Department’s mere reference to the 

procedural rules exception vitiated the 

NPRM. The Department’s receipt of 

multiple comments indicates that the 

public was neither ‘‘chilled’’ nor 

deterred from submitting items for 

consideration. Thus, there is no basis for 

withdrawing and reissuing the rules 

changes. 

Conflicts with the LHWCA and BLBA. 

Two commenters argued that several 

provisions in the new rules providing 

for imposition of sanctions conflict with 

provisions of the Longshore and Harbor 

Workers’ Compensation Act (LHWCA), 

33 U.S.C. 901–950, which are also 

applicable to claims adjudicated under 

the Black Lung Benefits Act (BLBA), 30 

U.S.C. 901–945, and therefore those 

provisions should either be deleted or 

rewritten to specifically state that they 

are not applicable to proceedings under 

the LHWCA and BLBA. The 

commenters identified sections 926, 

927(b) and 931 of the LHWCA, 33 U.S.C. 

926, 927(b), 931, as conflicting with the 

new rules containing sanction 

provisions. One commenter also 

suggested that some of the new rules 

may contravene section 923(a) of the 

LHWCA, 33 U.S.C. 923(a). The 

Department believes however that any 

conflicts between the rules and the 

LHWCA and, for that matter, any other 

statute governing administrative hearing 

proceedings before the OALJ, are 

already addressed appropriately in the 

rules and do not warrant either 

wholesale rescission or rewriting. The 

Department also believes that the 

commenters overstated the alleged 

conflicts between the new rules and the 

LHWCA. 

Section 923(a) of the LHWCA 

provides that officials conducting 

hearings ‘‘shall not be bound by 

common law or statutory rules of 

evidence or by technical or formal rules 

of procedure, except as provided by this 

chapter; but may make such 

investigation or inquiry or conduct such 

hearing in such manner as to best 

ascertain the rights of the parties.’’ 33 

U.S.C. 923(a). See also 20 CFR 702.339, 

725.455(b). The Benefits Review Board 

(BRB) and courts of appeals have 

nevertheless applied provisions of the 

OALJ Rules of Practice and Procedure, 

particularly in regard to discovery 

issues, in proceedings governed by 

section 923(a) of the LHWCA in the 

absence of any conflict with a particular 

LHWCA or BLBA rule. See, e.g., 

Johnson v. Royal Coal Co., 326 F.3d 421, 

426 (4th Cir. 2003); Keener v. Peerless 

Eagle Coal Co., 23 Black Lung Rep. 

(Juris) 1–229, 1–243 (Ben. Rev. Bd. 

2007) (en banc); Cline v. Westmoreland 

Coal Co., 21 Black Lung Rep. (Juris) 1– 

69, 1–76 (Ben. Rev. Bd. 1997); see also 

Prince v. Island Creek Coal Co., BRB No. 

01–0448 BLA, 2002 WL 34707263 (Ben. 

Rev. Bd. Jan. 24, 2002) (reading 29 CFR 

18.14 and 20 CFR 725.455 as 

complementary rules providing the ALJ 

with broad discretion to direct 

discovery), aff’d, 76 Fed.Appx. 67, 2003 

WL 22176988 (6th Cir. Sept. 19, 2003). 

It would be inappropriate and contrary 

to well-established precedent to add a 

textual exception to all of the proposed 

disclosure and discovery rules for 

LHWCA and BLBA cases. Moreover, 

§ 18.10(a) provides that ‘‘[t]o the extent 

that these rules may be inconsistent 

with a governing statute, regulation, or 

executive order, the latter controls.’’ 29 

CFR 18.10(a). 

Section 926 of the LHWCA provides 

that ‘‘[i]f the court having jurisdiction of 

proceedings in respect of any claim or 

compensation order determines that the 

proceedings in respect of such claim or 

order have been instituted or continued 

without reasonable ground, the costs of 

such proceedings shall be assessed 

against the party who has so instituted 

or continued such proceedings.’’ 33 

U.S.C. 926. Congress intended claimants 

to be subject to costs ‘‘if they brought 

their unreasonable claims into court’’ 

when it enacted section 926. Metro. 

Stevedore Co. v. Brickner, 11 F.3d 887, 

890 (9th Cir. 1993). The Department 

recognizes that federal courts have the 

exclusive power to impose section 926 

sanctions when a party brings a 

frivolous claim under the LHWCA. Id. at 

890–91; see also Boland Marine & Mfg. 

Co. v. Rihner, 41 F.3d 997, 1004 (5th 

Cir. 1995). However, to the extent that 

any of the new rules conflict with 

section 926, the latter controls. See 29 

CFR 18.10(a). There is therefore no 

conflict between section 926 and any of 

the new rules. 

Section 927(b) in relevant part 

provides that if any person in a LHWCA 

proceeding ‘‘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 adjudicatory official ‘‘shall 

certify the facts to the district court 

having jurisdiction in the place in 

which he is sitting (or to the United 

States District Court for the District of 

Columbia’’ for summary contempt 

proceedings). 33 U.S.C. 927(b). The 

Department agrees with the commenters 

that section 927(b) provides the district 

courts with the exclusive power to 

punish contumacious conduct 

consisting of a refusal to comply with a 

judge’s order, lawful process or 

subpoena, or hearing room misbehavior 

in proceedings under the LHWCA. See 

Goicochea v. Wards Cove Packing Co., 

37 Ben. Rev. Bd. Serv. (MB) 4, 6 (2003) 

(vacating dismissal of claim as sanction 

for claimant’s refusal to comply with a 

judge’s discovery order). To the extent 

that any of the new rules conflict with 

section 927(b), the latter controls. See 29 

CFR 18.10(a). However, there are several 

situations addressed by the new rules 

involving conduct that likely would fall 

outside the categories of contumacy 

requiring certification to a district court 

for a section 927(b) summary contempt 

proceeding. See A–Z Intn’l v. Phillips, 

323 F.3d 1141, 1146–47 (9th Cir. 2003) 

(holding that the district court lacked 

section 927(b) jurisdiction over conduct 

that did not involve a refusal ‘‘to 

comply with a summons, writ, warrant, 

or mandate issued by the ALJ’’). See, 

e.g., 29 CFR 18.35(c) (sanctions for 

violations of § 18.35(b) relating to the 

representations made when presenting a 

motion or other paper to the judge), 

18.50(d)(3) (sanctions for violations of 

§ 18.50(d)(1) pertaining to certifications 

made when signing disclosures and 

discovery requests, responses and 

objections), 18.56(d)(1) (sanctions for 

violations of the duty under 

§ 18.56(c)(1) to protect a person subject 

to a subpoena from undue burden), 

18.57(c) (sanctions for failures to 

disclose information, supplement an 

earlier response or to admit as required 

by §§ 18.50(c), 18.53 and 18.63(a)), 

18.57(d) (sanctions for a party’s failure 

to attend its own deposition, serve 


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answers to interrogatories, or respond to 

a request for inspection), 18.64(d)(2) 

(sanctions for impeding, delaying or 

frustrating a deposition), 18.64(g) 

(sanctions for failing to attend or 

proceed with a deposition or serve a 

subpoena on a non-party deponent 

when another party, expecting the 

deposition to be taken, attends), 

18.72(h) (sanctions for submitting in bad 

faith an affidavit or declaration in 

support of or in opposition to a motion 

for summary decision). To the extent 

these provisions address violations of 

the procedural rules falling outside the 

scope of section 927(b), there is no 

conflict with the statute. 

The Department also rejects the 

commenters’ argument that section 

927(b) provides the exclusive remedy 

for any misconduct or rules violation 

occurring in LHWCA and BLBA 

proceedings. Section 927(b), 44 Stat. 

1438 (Mar. 4, 1927) (codified as 

amended at 33 U.S.C. 927), was 

originally enacted in 1927, decades 

before the passage of the APA which 

also governs adjudications under the 

LHWCA and the BLBA. 33 U.S.C. 

919(d); 30 U.S.C. 932(a); Dir., OWCP, 

Dep’t of Labor v. Greenwich Collieries, 

512 U.S. 267, 280–81 (1994); see also 

Lane v. Hollow Coal Co. v. Dir., OWCP, 

Dep’t of Labor, 137 F.3d 799, 802–03 

(4th Cir. 1998) (requiring ALJ’s decision 

to contain findings and conclusions, in 

accordance with 5 U.S.C. 557(c)(3)(A)); 

Cole v. East Kentucky Collieries, 20 

Black Lung Rep. (Juris) 1–50, 1–54 (Ben. 

Rev. Bd. 1996) (discussing statutory 

mechanism whereby APA applies to 

BLBA claims); Toyer v. Bethlehem Steel 

Corp., 28 Ben. Rev. Bd. Serv. (MB) 347, 

351 (1994) (emphasizing APA 

applicability in all LHWCA 

adjudications). Notably, the APA’s grant 

of authority to ‘‘regulate the course of 

the hearing,’’ 5 U.S.C. 556(c)(5), 

provides a judge with an independent 

basis to take such actions as are 

necessary to ensure parties a fair and 

impartial adjudication. Such authority 

includes the power to compel discovery 

and impose sanctions for noncompliance pursuant to the OALJ rules 

of practice and procedure. See Williams 

v. Consolidation Coal Co., BRB No. 04– 

0756 BLA, 2005 WL 6748152, at *8 

(Ben. Rev. Bd. Aug. 8, 2005), appeal 

denied, 453 F.3d 609 (4th Cir. 2006), 

cert. denied, 549 U.S. 1278 (2007). The 

bifurcation of general adjudicatory 

authority and contempt powers between 

administrative law judges and the 

district courts under the LHWCA is 

analogous to adjudication in the federal 

courts after passage of the Federal 

Magistrates Act, 28 U.S.C. 604, 631–39, 

under which magistrate judges have 

general authority to order nondispositive discovery sanctions while 

contempt charges must be referred to a 

district court judge. See Grimes v. City 

and County of San Francisco, 951 F. 2d 

236, 240–41 (9th Cir. 1991) (discussing 

the scope and limits of magistrate 

judges’ sanction authority); see also 

Dodd v. Crown Cent. Petroleum Corp., 

36 Ben. Rev. Bd. Serv. (MB) 85, 89 n.6 

(2002) (affirming, as not inconsistent 

with section 927(b), judge’s imposition 

of sanctions pursuant to 29 CFR 

18.6(d)(2) for claimant’s noncompliance 

with a discovery order). The Department 

therefore believes that the commenters’ 

proposal to exempt LHWCA and BLBA 

proceedings from the judge’s authority 

under the APA to regulate the course of 

the hearing is neither warranted by the 

statute nor consistent with the efficient 

and impartial conduct of administrative 

hearings. 

Section 931(a)(1) of the LHWCA 

provides that ‘‘[a]ny claimant or 

representative of a claimant who 

knowingly and willfully makes a false 

statement or representation for the 

purpose of obtaining a benefit or 

payment under this chapter shall be 

guilty of a felony, and on conviction 

thereof shall be punished by a fine not 

to exceed $10,000, by imprisonment not 

to exceed five years, or by both.’’ 33 

U.S.C. 931(a)(1). Section 931(c) 

similarly provides that ‘‘[a] person 

including, but not limited to, an 

employer, his duly authorized agent, or 

an employee of an insurance carrier 

who knowingly and willfully makes a 

false statement or representation for the 

purpose of reducing, denying, or 

terminating benefits to an injured 

employee, or his dependents pursuant 

to section 909 of this title if the injury 

results in death, shall be punished by a 

fine not to exceed $10,000, by 

imprisonment not to exceed five years, 

or by both.’’ 33 U.S.C. 931(c). As there 

is no provision in the new rules that 

authorizes a judge to impose a fine or 

other penalty for a knowing and 

willfully false statement or 

representation for the purpose of 

obtaining or opposing a benefit under 

the LHWCA, there is no conflict 

between section 931 and any of the new 

rules. 

Authority to Regulate the Conduct of 

Administrative Proceedings; Sanctions. 

The Department announced in the 

NPRM that it intended to bring the 

OALJ rules of practice and procedure 

into closer alignment with the FRCP. 

Doing so takes advantage of the mature 

precedent the federal courts have 

developed and the broad experience 

they have in applying the FRCP. 

Choosing which portions to adopt and 

which to omit allows for flexible case 

management, given the less formal 

nature of administrative proceedings, 

which never involve juries. These 

changes offer greater clarity and 

uniformity so parties can focus on the 

merits of their disputes with less 

distraction from litigating points of 

procedure. To attain these objectives, 

the new rules contain a number of 

provisions, similar to their FRCP 

counterparts, which authorize judges to 

take actions necessary to regulate and 

ensure the integrity of the hearing 

process. See 29 CFR 18.12(b)(10), 

18.35(c), 18.50(d)(3), 18.56(c)(1), 

18.57(a)(2)(A), 18.57(b), 18.57(c), 

18.57(d)(1), 18.57(d)(3), 18.57(e), 

18.57(f), 18.64(d)(2), 18.64(g), 18.72(h), 

18.87. Two commenters asserted that 

these litigation sanction provisions 

exceed a judge’s authority under the 

APA, and attempt to arrogate contempt 

power and claim ‘‘inherent judicial 

authority’’ that is vested exclusively in 

the Article III courts. The Department 

believes these assertions misunderstand 

the challenged rules and their intent. 

The prior rules authorized judges to 

sanction a broad range of inappropriate 

conduct during the course of an 

administrative proceeding. A judge 

could overrule an objection to a 

discovery request (such as request for 

admission or an interrogatory) and 

compel a response. 29 CFR 18.6(d)(1). If 

that objecting party thereafter failed to 

answer or answered evasively, the judge 

could order that a matter be treated as 

admitted. Id. If a party failed to comply 

with a subpoena, discovery order or any 

other order, the judge could take other 

just actions, including (i) drawing 

adverse inferences; (ii) ruling that the 

matter concerning which the subpoena 

or order was issued be taken as 

established adversely to a noncomplying party; (iii) excluding 

evidence a non-complying party offered; 

(iv) ruling that a non-complying party 

could not object to the use of secondary 

evidence to establish what evidence it 

withheld should have shown; or (v) 

ruling that all or part of a pleading be 

stricken, or that a decision be rendered 

against the non-complying party. 29 

CFR 18.6(d)(2). The prior rules also 

recognized that judges have ‘‘all powers 

necessary to the conduct of fair and 

impartial hearings including, but not 

limited to . . . [w]here 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. . . .’’ 29 

CFR 18.29(a)(8). The new rules preserve 


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this longstanding authority to impose 

appropriate litigation sanctions, see 29 

CFR 18.12(b)(10), 18.57(b), and 

additional provisions for sanctions were 

made as discussed above in §§ 18.35(c), 

18.50(d)(3), 18.56(c)(1), 18.57(c), 

18.57(d), 18.64(d)(2), 18.64(g), 18.72(h). 

The new rules provide greater clarity 

and direction on the scope and 

limitations on a judge’s authority to 

sanction a party’s unjustified failure to 

carry out duties that the procedural 

rules establish. 

The Department’s appellate boards 

and judges have no Article III status or 

powers. See, e.g., Temp. Emp’t Serv. v. 

Trinity Marine Group, Inc., 261 F.3d 

456, 460–61 (5th Cir. 2001); Schmit v. 

ITT Fed. Elec. Int’l, 986 F.2d 1103, 

1109–10 (7th Cir. 1993); Gibas v. 

Saginaw Mining Co., 748 F.2d 1112, 

1117 (6th Cir. 1984). The APA vests no 

contempt powers in ALJs. The 

Department acknowledges that FRCP 11 

itself does not vest ALJs with authority 

to impose the sanctions embodied in 

that rule because it is a rule of the 

Article III trial courts. Nor was it clear 

whether FRCP 11 had been generally 

incorporated into the prior rules by 29 

CFR 18.1(a). Metro. Stevedore Co. v. 

Brickner, 11 F.3d 887, 891 (9th Cir. 

1993) (expressing in dicta doubts about 

incorporation). FRCP 11 was 

unavailable for incorporation in 

Longshore claims, however. Boland 

Marine & Mfg. Co. v. Rihner, 41 F.3d 

997 (5th Cir. 1995) (Section 26 of the 

Longshore Act confines an award of 

costs when proceedings are ‘‘instituted 

or continued without reasonable 

grounds’’ to proceedings that have made 

their way into the Article III courts. 

Therefore, neither FRCP 11 nor section 

26(f) may be incorporated into 

Longshore Act proceedings at the 

Department through the text of 29 CFR 

18.1(a) on the theory that the ‘‘situation 

[is] not provided for or controlled by 

statute.’’); Metro. Stevedore Co., 11 F.3d 

at 891 (finding that under section 26 of 

the Longshore Act only courts can 

assess costs against a claimant who 

institutes or continues a proceeding in 

the courts without reasonable grounds); 

R.S. [Simons] v. Va. Int’l Terminals, 42 

Ben. Rev. Bd. Serv. (MB) 11, 14 (2008) 

(rejecting an argument that an ALJ could 

assess attorney’s fees against an 

employer that were unavailable under 

section 28 of the Longshore Act by using 

FRCP 11 instead); Valdez v. Crosby & 

Overton, 34 Ben. Rev. Bd. Serv. (MB) 69, 

77 (2000) (applying the holdings in 

Boland Marine & Mfg. Co. and Metro. 

Stevedore Co.); Crum v. Wolf Creek 

Collieries, 18 Black Lung Rep. (Juris) 1– 

80, 1–83 (Ben. Rev. Bd. 1994). Though 

the new rules use the term ‘‘sanction’’ 

to describe remedies that can be applied 

when a party fails to fulfill its duties, 

these remedies do not extend to the full 

panoply of powers available to Article 

III judges under their inherent powers or 

under FRCP 11, which encompass the 

authority to require an errant lawyer to 

participate in seminars or education 

programs, or order a fine payable to the 

court. See Fed. R. Civ. P. 11 advisory 

committee’s note (discussion of 1993 

amendments). 

Nonetheless, the APA empowers 

ALJs, ‘‘[s]ubject to published rules of the 

agency and within its powers . . . to 

regulate the course of a hearing.’’ 5 

U.S.C. 556(a)(3), (c)(5). That authority is 

statutorily explicit. The appellate courts 

moreover have upheld orders that 

impose litigation sanctions on parties 

who violate an administrative agency’s 

procedural rules. See Roadway Exp., 

Inc. v. U.S. Dept. of Labor, 495 F.3d 477, 

484 (7th Cir. 2007) (‘‘[A]gency’s rules 

unambiguously permit the ALJ to 

impose, as a discovery sanction, an 

order excluding evidence that a noncomplying party wishes to introduce in 

support of its claim.’’); In re Bogese, 303 

F.3d 1362, 1367–68 (Fed. Cir. 2002) 

(Patent and Trademark Office, like other 

administrative agencies, may impose 

reasonable deadlines and requirements 

on parties appearing before it and has 

broad authority to sanction undue delay 

by holding a patent unenforceable); 

Atlantic Richfield Co. v. U.S. Dep’t of 

Energy, 769 F.2d 771, 793 (D.C. Cir. 

1984) (rejecting argument that 

administrative agency ‘‘cannot impose 

evidentiary sanctions—of course, short 

of a fine or imprisonment—when 

necessary to preserve the integrity of an 

authorized adjudicative proceeding’’). 

As the court of appeals in Atlantic 

Richfield Co. stated, 

It seems to us incongruous to grant an 

agency authority to adjudicate—which 

involves vitally the power to find the 

material facts—and yet deny authority to 

assure the soundness of the fact finding 

process. Without an adequate evidentiary 

sanction, a party served with a discovery 

order in the course of an administrative 

adjudicatory proceeding has no incentive to 

comply, and often times has every incentive 

to refuse to comply. 

769 F.2d at 796. The adjudicatory duties 

of an ALJ are in many ways 

‘‘functionally comparable’’ to those of a 

federal district court judge. Butz v. 

Economou, 438 U.S. 478, 513–14 (1978). 

It would be incongruous to deprive an 

ALJ of any procedural tools that assure 

the integrity and soundness of the 

adjudicative process. The tools include 

the authority to impose litigation 

sanctions that do not conflict with the 

substantive statute applicable to the 

proceeding for procedural violations 

that frustrate efficient administrative 

adjudication. The Department’s ALJs 

used a broad range of sanctions for the 

nearly 30 years under the prior rules, 

including the dismissal of a claim or 

defense, as well as lesser evidentiary 

sanctions. Curley v. Grand Rapids Iron 

& Metal Co., ARB No. 00–013, ALJ No. 

1999–STA–39 (ARB Feb. 9, 1999) 

(affirming ALJ’s authority to dismiss 

employment protection claim for 

abandonment, based on complainant’s 

failure to participate in prehearing 

conference or reply to order to show 

cause why the matter should not be 

dismissed for failure to comply with a 

lawful order); see also Dodd v. Crown 

Cent. Petroleum Corp., BRB No. 02– 

0821, slip op. at 9–10 (Ben. Rev. Bd. 

Aug. 7, 2003) (affirming the dismissal 

for abandonment of a pro se litigant’s 

claim under the authority of 29 CFR 

18.29(a), which affords ALJs ‘‘all 

necessary powers to conduct fair and 

impartial hearings and to take any 

appropriate action authorized by the 

Federal Rules of Civil Procedure,’’ 

where claimant failed to attend the final 

hearing, stated he would not participate, 

sustained objections to discovery the 

claimant sought, and denied the 

claimant’s motion to recuse the ALJ); 

Matthews v. LaBarge, Inc., ARB No. 08– 

038, ALJ No. 2007–SOX–56 (ARB Nov. 

26, 2008) (adopting ALJ’s decision to 

dismiss under 29 CFR 18.6(d)(2) 

because ALJ found that pro se 

complainant failed to comply with 

discovery orders repeatedly, willfully, 

intentionally, and in bad faith); 

Administrator v. Global Horizons 

Manpower, Inc., ARB No. 09–016, ALJ 

No. 2008–TAE–3 (ARB Dec. 21, 2010) 

(affirming ALJ’s order granting, as a 

discovery sanction under 29 CFR 

18.6(d)(2)(v) and 18.29(a)(8), all the back 

pay and civil penalties the 

Administrator of the Wage and Hour 

Division had sought against employer 

for ‘‘willful, contumacious disregard of 

the discovery process as well as 

disregard of the ALJ’s multiple warnings 

and orders’’); Administrator v. Global 

Horizons, Inc., ARB No. 11–058, ALJ 

No. 2005–TAE–1 & 2005–TLC–6, 2013 

WL 2450031, at *4–8 (DOL Admin. Rev. 

Bd. May 31, 2013) (affirming an ALJ’s 

summary judgment awarding worker’s 

back pay, repayment of impermissible 

deductions from pay, and awarding the 

Administrator civil penalties, which 

were based in large part on 145 factual 

allegations deemed admitted as the 

result of three orders that imposed 

sanctions for misconduct in discovery). 

But see Goichochea v. Wards Cove 


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Packing Co., 37 Ben. Rev. Bd. Serv. 

(MB) 4, 7 (2003) (holding that in a claim 

for Longshore disability compensation 

benefits, the remedy for disobeying an 

order compelling discovery is the 

procedure described in section 27(b) of 

the Longshore Act). 

The Department kept in mind the 

limits on the authority of an 

administrative agency to impose 

sanctions when it fashioned the 

litigation sanction provisions. Section 

558(b) of the APA, cited by some 

commenters, states that ‘‘[a] sanction 

may not be imposed or a substantive 

rule or order issued except within the 

jurisdiction delegated to the agency and 

authorized by law.’’ 5 U.S.C. 558(b); see 

also Am. Bus. Ass’n v. Slater, 231 F.3d 

1, 7 (D.C. Cir. 2000) (holding that the 

Department of Transportation lacked 

statutory authority to require a bus 

company to pay monetary damages to 

disabled passengers they failed to 

accommodate); Windhauser v. Trane, 

ARB No. 05–127, OALJ No. 2005–SOX– 

17, 2007 WL 7139497, at *2–3 (DOL 

Admin. Rev. Bd. Oct 31, 2007) 

(reversing ALJs imposition of monetary 

sanctions against whistleblower 

complainant because such sanctions 

‘‘are, by statute, in the jurisdiction of the 

federal district courts’’). The Slater 

court distinguished between sanctions 

that require express statutory authority 

under section 558(d) of the APA 

because they are directed at modifying 

‘‘primary conduct,’’ such as a bus 

company’s failure to accommodate 

disabled passengers, and litigation 

sanctions designed to protect the 

integrity of the agency’s administrative 

processes. Id. The Slater court 

recognized an agency has ‘‘a limited 

power to impose sanctions that are not 

expressly authorized by statute, but only 

ones designed to ‘protect the integrity of 

its own processes.’ ’’ Id. (quoting Touche 

Ross & Co. v. SEC, 609 F.2d 570, 582 (2d 

Cir. 1979)); see also Davy v. SEC, 792 

F.2d 1418, 1421 (9th Cir. 1986). The 

provisions for the limited sanctions in 

the new rules are not directed to any 

party’s primary conduct—which would 

be the subject matter of the 

proceeding—but to violations of 

procedural rules that compromise the 

integrity of the administrative hearing 

process. These litigation sanctions are 

consistent with the Department’s 

regulatory authority under section 

556(c)(5) of the APA, do not require 

additional express statutory 

authorization under section 558(b) of 

the APA, and do not amount to an 

exercise of Article III courts’ contempt 

or sanction powers. 

Remedial Purpose of Whistleblower 

Adjudications. The Department received 

a comment regarding whistleblower 

adjudications generally, which 

suggested that the procedural rules 

should reflect the remedial purpose of 

the whistleblower statutes under the 

OALJ’s jurisdiction. The Department 

notes that the new rules are procedural 

rules intended to apply to all 

proceedings before OALJ and not any 

specific class of proceeding. To the 

extent a particular agency seeks the 

application of specific procedural rules, 

it is incumbent on that agency to 

incorporate such rules into its own 

regulations. For instance, proceedings 

under the Employee Retirement Income 

Security Act of 1974 (ERISA), 29 U.S.C. 

1132, define specific procedures at 29 

CFR 2570, subpart C. 

The Department received a similar 

comment suggesting that the OALJ 

‘‘should strive for better whistleblower 

protection than U.S. District Courts’’ 

because the OALJ has garnered 

specialized knowledge and the process 

is less formal in an agency adjudication. 

The comment however did not offer any 

concrete proposal for changes to the text 

of the new rules. Any program-specific 

change moreover should be addressed to 

the particular agency charged with 

administering the particular program. 

Effect on Pro Se Litigants. One 

commenter asserted that the new rules 

will make litigation of whistleblower 

claims harder on pro se parties. The 

commenter noted that, although the 

OALJ rules of practice and procedure 

are analogous to the FRCP, there are 

some differences: For example, 

whistleblowers do not ordinarily have 

to plead a claim through a complaint. 

The commenter remarked that the 

Administrative Review Board (ARB) and 

other appellate authorities have 

construed pro se complainants’ 

positions liberally and with a degree of 

judicial latitude. The commenter also 

suggested that the Department’s 

comments should make clear that 

decisions on the merits are the goal, and 

compliance with procedural rules 

should ‘‘bend where necessary to meet 

that goal.’’ 

The Department agrees that concerns 

relating to the ability of pro se litigants 

to submit and litigate complaints 

deserve consideration. As the ARB has 

enunciated, a pro se litigant’s presumed 

lack of familiarity with litigation 

procedures may require 

accommodation. For example, a pro se 

litigant must be informed of the 

consequences of failing to respond to 

dispositive motions, Motarjemi v. Metro. 

Council, Metro. Transit Div., ARB No. 

08–135, ALJ No. 2008–NTS–2 (ARB 

Sept. 17, 2010), and an untimely filing 

may be considered, Wallum v. Bell 

Helicopter Textron, Inc., ARB No. 12– 

110, ALJ No. 2009–AIR–20 (Sept. 19, 

2012). The new rules provide uniform 

procedures for case management, but 

simultaneously permit judges the 

flexibility to tailor procedures to 

specific cases through appropriate 

orders. So, for example, where a pro se 

complainant requires additional 

guidance, under the new rule the judge 

may issue more focused or detailed 

orders, as necessary. The new rules 

provide more detailed procedural 

information (particularly regarding 

discovery and other pre-hearing 

requirements) than had been the case 

previously. The Department therefore 

declines to adopt the commenter’s 

suggestion. 

Discovery Rules Regarding 

Electronically Stored Information. One 

commenter voiced some general 

concerns that the rules should clarify 

issues related to discovery of 

electronically stored information (ESI), 

specifically providing that both sides 

have access to discovery of ESI and that 

ESI is treated the same as paper 

documents. The Department believes 

those concerns are adequately addressed 

in § 18.61, which states that there is no 

differentiation in the access to ESI or 

paper discovery. Thus, the rule provides 

the ALJ with the ability to manage 

discovery and minimize gamesmanship 

in discovery of both paper documents 

and ESI. 

Electronic Filing. One commenter 

urged that the OALJ adopt and 

implement electronic case filing (ECF) 

or, in the alternative, allow facsimile 

filing and remove the maximum page 

limitation on faxes. Those concerns 

were also specifically raised in the 

comments to proposed § 18.30 and are 

fully addressed in that response. 

However, the general answer is that the 

implementation of ECF is a resource 

constrained policy decision. Until the 

Department implements ECF, 

promulgating rules about ECF would 

lead to confusion. 

Offer of Judgment. One commenter 

suggested that the OALJ’s rules should 

include one analogous to FRCP 68, Offer 

of Judgment, and should expressly cut 

off attorney’s fees and other litigation 

costs when a claimant refuses an offer 

and fails to obtain a more favorable 

result. 

The Department declines to adopt the 

commenter’s suggestion. An offer of 

judgment is significant matter that could 

affect an otherwise successful 

complainant’s right to recover attorneys’ 

fees as costs. Marek v. Chesny, 473 U.S. 

1 (1985). No analog to FRCP 68 appears 

in the OALJ’s previous rules. The 

Department stated its intention to align 


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its procedural rules more closely with 

the FRCP, but did not give any notice 

that an offer of judgment rule was 

contemplated. The Department believes 

the final rule should not include an 

offer of judgment provision for three 

interrelated reasons. 

First, doing so would not have given 

interested parties sufficient notice that 

such a rule was contemplated, and it is 

unclear that doing so now could be 

regarded a logical outgrowth of the rules 

proposed. See 5 U.S.C. 553(b)(3); Ass’n 

of Private Sector Colls. & Univs. v. 

Duncan, 681 F.3d 427, 461 (D.C. Cir. 

2012). Second, the OALJ issues no 

judgments; it is not a court, although it 

shares many attributes with Article III 

federal courts. FRCP 68 would have to 

be substantially altered to adapt to the 

context of administrative adjudication, 

as there is no clerk who could enter a 

judgment in the way FRCP 68(a) 

contemplates (‘‘The clerk must then 

enter judgment.’’). Finally, FRCP 68 is 

subject to varying interpretations in the 

courts of appeals on how the defense 

should address attorney’s fees in the 

text of an offer, when the substantive 

statute at issue directs the adjudicator to 

assess those fees as an item of costs. See 

Charles Alan Wright et al., Federal 

practice and Procedure § 3005.1 (3d ed. 

2014). Any rule the Department adopts 

should make a choice between the 

competing theories, to make the rule 

nationally uniform, and as useful to 

litigants as possible. Those choices will 

not be made without the benefit of 

public comment. 

III. Summary of Specific Comments on 

the Notice of Proposed Rulemaking 

The Department received several 

comments regarding specific sections in 

the NPRM. Each comment is addressed 

as follows: 

§ 18.10 Scope and purpose. One 

commenter expressed concern that the 

principles expressed in section 923 of 

the LHWCA, providing that the LHWCA 

hearing process is not bound by formal 

rules of evidence but conducted in a 

manner to best ascertain the rights of the 

parties, may be circumvented by 

procedural rules not addressed in the 

LHWCA and BLBA and respective 

implementing regulations. The 

commenter suggested part 18 explains 

what sections do not apply to LHWCA 

or BLBA proceedings ‘‘to avoid 

confusion.’’ Another commenter 

suggested adding a paragraph ‘‘(d)’’ to 

§ 18.10, which would specifically state 

that in proceedings under the LHWCA 

and BLBA the following list of proposed 

rules would not apply: §§ 18.12, 18.23, 

18.35, 18.50, 18.56, 18.57, 18.64, 18.70, 

18.72, 18.80, and 18.87. 

Future statutory and regulatory 

changes in the numerous administered 

programs, including the LHWCA, BLBA, 

employment discrimination, 

‘‘whistleblower’’ and immigration 

cannot be foreseen. For instance, recent 

litigation has highlighted a BLBAspecific issue—one involving the 

disclosure of non-testifying expert 

opinions—that may deserve further 

consideration. See generally Fox v. Elk 

Run Coal Co., 739 F.3d 131 (4th Cir. 

2014). Nothing in these rules would 

prevent the Department from adopting a 

procedural rule that applies only in 

BLBA claim adjudications or other 

program-specific contexts. Moreover, 

listing variations in procedural 

requirements for the numerous 

programs in each new rule defeats the 

purpose of the new rules and would 

require constant rulemaking activity to 

reflect legislative changes. The 

Department thus disagrees with the 

submitted proposals to individually 

identify superseding statutory, 

regulatory or executive order provisions 

collectively in the new § 18.10 or 

separately in those new rules where a 

conflict may exist. 

One commenter suggested that the 

lack of an appeal process in regard to a 

judge’s decision to modify, waive or 

suspend a procedural rule in new 

§ 18.10(c) ‘‘appears arbitrary and 

capricious.’’ The Department disagrees. 

First, while the case is at the OALJ, no 

rule may be waived, modified or 

suspended without notice to the parties. 

Second, doing so requires the judge to 

make two determinations: That the 

specific alteration of the rule ‘‘will not 

prejudice a party,’’ and ‘‘will serve the 

ends of justice.’’ Finally, a party may 

raise before the appropriate appellate 

authority on direct review of the final 

order any error in modifying a rule. 

§ 18.12 Proceedings before 

administrative law judge. The 

Department combined the designation 

provisions of prior § 18.25 and the 

authority provisions of prior § 18.29(a). 

The Department specifically clarified in 

the NPRM that the enumerated powers 

mirrored those set forth in section 556 

of the APA and that the enforcement 

provision of prior § 18.29(b) was deleted 

due to its contents of referring 

contumacious conduct to an appropriate 

federal court is set forth in applicable 

statutes, such as Section 927(b) of the 

LHWCA. 

One commenter proposed that prior 

§ 18.29(b) should not be deleted ‘‘even 

though the content is contained in 

applicable statutes [because] this 

provision clearly delineates an 

administrative law judge’s restricted 

powers, especially under statutes like 

the LHWCA.’’ The Department disagrees 

with the comment that the provision on 

referring contumacious conduct to 

federal court should be retained in the 

new rules since controlling program 

statutes provide for such referral action 

when appropriate. See, e.g., 20 CFR 

725.351(c). 

The commenter also proposed 

deleting § 18.12(b)(10) listing the 

authority of an ALJ to ‘‘take actions 

authorized by the FRCP’’ because the 

language would include all sanctions 

authorized by the FRCP and penalty 

sanctioning authority is reserved to the 

federal courts by the LHWCA and 

BLBA. Section 18.12(b)(10) was a 

succinct restatement of prior 

§ 18.29(a)(8). The Department agrees 

that the brevity in which prior 

§ 18.29(a)(8) was restated could be 

construed as excessively broad. To 

ensure consistency, the new 

§ 18.12(b)(10) is rewritten to closely 

align with prior § 18.29(a)(8) by 

returning the words ‘‘where applicable’’ 

to the rule. 

§ 18.22 Representatives. The 

Department narrowed the rule on 

representatives appearing before OALJ 

to reflect the two classes of 

representatives who routinely appear— 

attorneys and non-attorney 

representatives. The rule sets forth the 

qualifications required to appear as a 

representative of a party, the minimum 

duties required of a representative, and 

prohibited actions of any representative. 

One comment suggested that the 

proposed rule setting forth the 

qualifications for an attorney 

representative is overreaching and 

conflicts with 5 U.S.C. 500(b). That 

provision states in relevant part: ‘‘An 

individual who is a member in good 

standing of the bar of the highest court 

of a State may represent a person before 

an agency on filing with the agency a 

written declaration that he is currently 

qualified as provided by this subsection 

and is authorized to represent the 

particular person in whose behalf he 

acts.’’ Id. The commenter suggested 

nothing more should be required of an 

attorney representative seeking to 

represent a party before OALJ. The 

commenter believed that the proposed 

§ 18.22 (a)–(d) imposed additional 

requirements inconsistent with 5 U.S.C. 

500(b). 

The Department has made revisions to 

the new rule in response to this 

comment. The Department deleted the 

following sentence from § 18.22(a): ‘‘The 

notice of appearance shall also include 

the statements and documentation 

required for admission to appear for the 

applicable category of representation 

found in subdivision (b) of this section.’’ 


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The Department has added the 

following in its place: ‘‘Any attorney 

representative must include in the 

notice of appearance the license 

registration number(s) assigned to the 

attorney.’’ Essentially the only 

requirement that an attorney 

representative must follow in order to 

represent a party before the Department 

is to file a notice of appearance and 

include the appropriate attorney license 

registration number. Filing the notice of 

appearance by the attorney 

representative will constitute an 

attestation that: (a) The attorney is a 

member of a bar in good standing of the 

highest court of a State, Commonwealth, 

or Territory of the United States, or the 

District of Columbia; and (b) no 

disciplinary proceeding is pending 

against the attorney in any jurisdiction 

where the attorney is licensed to 

practice law. The Department has 

amended § 18.22(b)(1)(i) to reflect this 

change. 

The Department disagrees with the 

comment that sections (c) and (d) 

conflict with 5 U.S.C. 500. Section (c) 

sets forth the minimum requirements 

expected of any representative during 

the course of a proceeding before the 

Department, and section (d) delineates 

prohibited actions of any representative 

appearing in a proceeding before the 

Department. Neither section prescribes 

any additional requirements for an 

attorney representative to appear on 

behalf of a party before the Department. 

The Department set forth the 

minimum duties required of all 

representatives appearing before the 

OALJ in § 18.22(c). These duties 

originate from the rules of conduct and 

standards of responsibility imposed by 

the Social Security Administration 

(SSA) on representatives appearing 

before the SSA. See 20 CFR 404.1740(b). 

While the Department realizes that the 

non-adversarial nature of SSA hearings 

may require more detailed procedures, 

the basic duties included in the new 

rule are elementary to any hearing 

process and serve as a baseline 

foundation for conducting hearings 

promptly, efficiently, and fairly. The 

new rule also states that an attorney 

representative must adhere to the rules 

of conduct applicable where the 

attorney is licensed to practice law. In 

setting forth this standard, the 

Department understands that hearings 

often occur outside of a jurisdiction 

where an attorney may be licensed to 

practice law, and imposing an 

unfamiliar standard of conduct on an 

attorney would not be ideal. 

One comment suggested that 

paragraph (c) should be stricken because 

requiring attorneys to adhere to the 

rules of conduct in their licensing 

jurisdictions ‘‘could result in the 

different standards for the submission of 

evidence, discovery, and other 

substantive and procedural matters.’’ 

The Department disagrees. Rules of 

professional conduct are generally 

considered rules of reason and should 

be interpreted with reference to the law 

itself. Different rules of conduct should 

not apply based on specific substantive 

or procedural law. At a minimum, 

attorneys should always be held to the 

standards of conduct where they are 

licensed to practice law. The 

Department declines to strike the 

paragraph. 

The new rule also defines prohibited 

actions of all representatives appearing 

before the Department in paragraph (d). 

The prohibited actions include such 

things as: threatening, coercing or 

intimidating a party; knowingly making 

false or misleading statements; or 

causing unreasonable delay. These again 

derive from the SSA regulations. 20 CFR 

404.1740(c). One comment suggested 

that the paragraph should be stricken 

because it adds confusion and may 

require attorneys to act contrary to the 

interests of their clients or the rules of 

conduct required by their licensing 

jurisdictions. The Department declines 

to strike the paragraph. 

§ 18.23 Disqualification and 

discipline of representatives. The 

proposed rule contemplated two paths 

for disqualification and disciplinary 

proceedings of attorney representatives 

appearing before the OALJ. One path 

regulated lawyers who were authorized 

to practice before the Department 

through admission to the bar of the 

highest court of a state or similar 

governmental unit, but lost the right to 

practice law in their licensing 

jurisdiction because of a criminal 

conviction or proven professional 

misconduct. The second path involved 

misconduct of a representative before 

the OALJ. One comment questioned the 

Department’s authority to initiate 

disciplinary proceedings at all. The 

NPRM spells out the Department’s 

authority to discipline attorneys in great 

detail and need not be restated herein. 

The Supreme Court has recognized such 

authority as early as 1923 in a case 

involving the Board of Tax Appeals 

where it upheld the Board’s power to 

adopt rules of practice for professionals 

to protect the integrity of its 

administrative procedures and the 

public generally. See Goldsmith v. 

United States Bd. of Tax Appeals, 270 

U.S. 117 (1926). Other comments 

suggested that the wording of the rule 

was not clear and suggested that as 

drafted, it appeared that the OALJ 

would be making the initial 

determination as to whether an attorney 

had committed any enumerated 

criminal act or professional misconduct. 

The Department considered the 

comments and has amended the rule by 

consolidating the grounds upon which 

an attorney or representative may be 

disqualified or disciplined into one 

section—new § 18.23(a)(1). New 

§ 18.23(a)(1) now sets forth three 

distinct grounds for disqualification: (1) 

suspension of a license to practice law 

by any court or agency of the United 

States, or by the highest court of a State 

or similar governmental unit; (2) 

disbarment from the practice of law by 

consent or resignation from the bar of a 

court or agency while an investigation 

into allegations of misconduct is 

pending; or (3) committing an act, 

omission, or contumacious conduct that 

violates the procedural rules, an 

applicable statute, an applicable 

regulation, or a judge’s order(s). 

Accordingly, the previous sections 

providing for disqualification upon 

conviction of a felony (proposed 

§ 18.23(a)(1)(i)) or certain enumerated 

misdemeanors (proposed 

§ 18.23(a)(1)(ii)) are removed from the 

new rule. Such conduct however may 

still be grounds for disqualification in 

the new rules to the extent that new 

§ 18.23(a)(1)(i) through (iii) apply. 

The Department also consolidated the 

disqualification and discipline 

procedure into one section—new 

§ 18.23(a)(2). The new consolidated 

‘‘Disqualification procedure’’ states that 

in all instances the Chief Judge provides 

notice and an opportunity to be heard 

prior to taking any action. The provision 

deletes language pertaining to requests 

for hearing but also recognizes that, in 

appropriate instances, additional 

proceedings may be necessary, within 

the Chief Judge’s discretion. 

Other comments questioned the 

timeline for disciplinary proceedings 

and the status of cases while 

disciplinary proceedings are pending 

against an attorney. The Department 

notes that the new rule contemplates a 

fast track with an initial response time 

of 21 days. The Department believes 

that the Chief Judge should have the 

discretion to decide whether an attorney 

can continue to represent a party before 

the Department during the pendency of 

any disciplinary proceeding on a caseby-case basis. 

Two commenters suggested that the 

Department maintain a national 

database of non-attorney representatives 

disciplined by the Department. The 

Department declines to amend the part 

18 regulations to establish such a 

database because OALJ already 


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publishes formal disciplinary decisions 

on its Web site in the same manner as 

other judge decisions. See, e.g., In the 

Matter of the Qualifications of Edwin H. 

Rivera, 2009–MIS–2 (ALJ Feb. 6, 2009) 

(denying non-attorney representative 

the authority to appear in a 

representative capacity before OALJ). 

§ 18.24 Briefs from amicus curiae. 

The proposed rule sets forth the general 

procedure for accepting a brief from an 

amicus curiae. The Department received 

two comments suggesting that the 

deadline for an amicus brief is too short. 

The proposed rule required such briefs 

by the close of the hearing unless 

otherwise directed by the presiding 

judge. The comments pointed out that 

no transcript is immediately available 

when the hearing closes and it may be 

better for an amicus curiae to review the 

brief of the party the amicus supports to 

allow the amicus curiae to focus on new 

arguments. The Department considered 

the comments and agrees that setting the 

deadline at the close of the hearing is 

impractical. The Department has 

amended the new rule by deleting any 

specific deadline for an amicus brief, 

and instead states that the deadline will 

be set by the presiding judge. 

The Department has also received 

comments suggesting that it require 

amicus curiae to make disclosures 

similar to those found in U.S. Supreme 

Court Rule 37.4. Such disclosures 

include whether counsel for a party 

authored any part of an amicus brief and 

the identity of anyone who made 

monetary contributions to the 

preparation of the brief other than the 

amicus curiae or its members. The 

Department declines to adopt the 

specialized disclosure requirements. 

Any specialized requirement can be 

considered by the presiding judge and 

made part of a briefing order depending 

on the facts of any particular case. 

§ 18.30 Service and filing. 

Commenters suggested that the list of 

documents not to be filed until used in 

the proceeding or ordered by a judge 

(§ 18.30(b)(1)) should be amended to 

add the notice and copy of ‘‘documents 

only’’ subpoenas that are required to be 

served on other parties by § 18.56(b)(1). 

That suggested change is consistent 

with the purpose of both the prior and 

proposed rule and reflects current 

common practice. The new rule is thus 

changed to add paragraph (b)(1)(vi) with 

the following language: ‘‘the notice (and 

the related copy of the subpoena) that 

must be served on parties under rule 

18.56(b)(1) before a ‘documents only’ 

subpoena may be served on the person 

commanded to produce the material.’’ 

Several commenters argued that the 

OALJ’s rules do not adequately 

accommodate electronic filing and 

service, which is now commonplace in 

federal courts and adjudicatory 

agencies. Commenters urged that the 

OALJ adopt an electronic filing system, 

or at least adopt a more liberal stance 

toward accepting email and facsimile 

transmissions. 

The Department acknowledges that 

implementation of a dedicated 

electronic filing system and electronic 

service system for OALJ adjudications 

would be beneficial. However, because 

the OALJ does not have a dedicated 

electronic filing and service system, the 

rules of practice and procedure 

necessarily focus on traditional filing 

and service. 

Several commenters urged that, in the 

absence of the availability of electronic 

filing, OALJ accept documents filed by 

email. The Department declines to 

adopt a regulation that permits filing by 

email for routine filings with the OALJ. 

Email is not a substitute for a dedicated 

electronic filing system in which 

administrative issues such as document 

management, storage, security, and 

access can be systematically addressed. 

The proposed regulation at § 18.30(b)(4) 

accommodates special circumstances by 

authorizing the judge to ‘‘allow papers 

to be filed, signed, or verified by 

electronic means.’’ 

Alternatively, several commenters 

urged that the OALJ accept documents 

filed by facsimile transmission without 

a page limitation. The Department 

declines to adopt a regulation that 

permits filing by facsimile for routine 

filings with the OALJ. Facsimile 

technology is not a substitute for 

traditional mail or hand delivery of 

filings or for a dedicated electronic 

filing system. When § 18.3 of the prior 

rules was amended in 1994 to permit 

filing by facsimile in certain 

circumstances, the Department 

discussed why, although the use of 

facsimile machines is often convenient 

to parties, it is not administratively 

practical for routine matters. See 

Amendment of Filing and Service 

Requirements in Proceedings Before the 

Office of Administrative Law Judges, 59 

FR 41874 (Aug. 15, 1994). Although 

information technology has advanced 

considerably since 1994, it is still true 

that most filings before the OALJ are not 

time sensitive and that the Department 

is not in a position to bear the cost of 

receiving and printing large numbers of 

facsimile transmissions. The new rule at 

§ 18.30(b)(3)(i) accommodates special 

circumstances by allowing a party to file 

by facsimile if permitted by the judge. 

One commenter stated a concern that 

a judge could reject a facsimile filing 

that exceeded 12 pages. The 12 page 

limitation stated in § 18.30(b)(3)(i)(A) is 

confined to situations in which the 

party is unable to obtain prior 

permission to file by facsimile because 

the judge is unavailable. The 12 page 

limitation is a sensible limitation to 

discourage reliance on last hour filings 

by facsimile. Thus, the Department 

declines to revise § 18.30(b)(3)(i)(A) to 

remove the 12 page limitation on 

facsimile filings made without the 

judge’s permission. 

One commenter suggested that the 

OALJ’s rules of practice and procedure 

provide for electronic service between 

parties, stating that if a representative 

wishes to receive all service by email, 

that individual should be able to so state 

in the record and then receive all 

subsequent service by email. Section 

18.30(a)(2)(ii)(E) already accommodates 

this suggestion. That regulation states 

that ‘‘[a] paper is served under this 

section by . . . sending it by electronic 

means if the person consented in 

writing—in which event service is 

complete upon transmission, but is not 

effective if the serving party learns that 

it did not reach the person to be served 

. . . .’’ 

One commenter stated that the rule, 

as written, creates a paradox that a time 

sensitive filing could be filed with the 

OALJ by facsimile, but served by mail 

on the opposing party. This commenter 

suggested that adopting a service 

requirement that allows for email 

service would resolve this problem. As 

noted above, the regulation permits 

parties to agree to receipt of service of 

papers by electronic means. The 

Department declines to revise the rule to 

require electronic service on another 

party in situations where the filing party 

was granted permission to file a paper 

with the OALJ electronically. 

§ 18.31 Privacy protection for filings 

and exhibits. One commenter suggested 

that the privacy requirement should be 

inapplicable to any document created 

prior to the effective date of the final 

rule in BLBA cases. The commenter 

stated that medical records containing 

social security numbers and other 

protected information are created long 

before a claim is filed and it would be 

burdensome to redact this information. 

The FRCP Advisory Committee noted 

in its comments to FRCP 5.2 that ‘‘[i]t 

is electronic availability, not the form of 

the initial filing, that raises the privacy 

and security concerns addressed in the 

E-Government Act.’’ Fed. R. Civ. P. 5.2 

advisory committee’s note (discussion 

of 2007 amendments). The FRCP 

focuses on electronic records, but 

applies the same restrictions to hardcopy documentation, reasoning that the 


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number of paper filings will diminish 

over time. 

The Department declines to adopt the 

commenter’s suggestion. The privacy 

interests of individuals whose personal 

records appear before the OALJ 

outweigh the burden placed on those 

who represent them. Many of these 

records can be scanned and searched for 

the sensitive information, reducing the 

time and effort required to complete this 

redaction. The commenter’s suggestion 

that this rule apply only to records 

created after the effective date of the 

final rule would severely limit its 

utility. The parties may choose to waive 

the protection of the rule if it would be 

unduly burdensome to redact the 

records, or the parties may petition the 

judge for a waiver of the rule. 

§ 18.32 Computing and extending 

time. Commenters noted that setting 

4:30 p.m. as the default deadline for 

filing on a specific date is inconsistent 

with other rules of practice and sets a 

trap for the unwary practitioner who 

may reasonably expect that the deadline 

would be 11:59 p.m. They suggested 

changing the time to 11:59 p.m. 

The FRCP allows for electronic filing 

up to 11:59 p.m., but still sets the close 

of local business hours as the deadline 

for hardcopy delivery. The commenters’ 

suggestions primarily relate to online 

and facsimile filing. The OALJ 

continues to rely on hardcopy delivery 

as the default authorized means of filing 

and allows electronic or facsimile filing 

only as authorized by order or 

regulation. Since both e-filing and 

facsimile filing include time stamps that 

show exactly when a document arrived 

at the facsimile machine or server of the 

recipient, the office need not be open to 

determine when a document arrives. 

Since e-filing or facsimile filing is only 

allowed with the permission of the 

judge, counsel can request extended 

filing hours when they request 

permission to file in that manner. The 

Department therefore declines to adopt 

the suggestion. 

Commenters also observed that the 

language at (a)(4) including as a legal 

holiday any other day declared a 

holiday by the President or Congress is 

overly broad and should be amended to 

include in the definition the provision 

that federal offices are closed to normal 

business. They suggested providing for 

extensions where a party is prevented 

from filing or requesting an extension by 

local circumstances, such as natural 

disasters or other events that require 

closure of government facilities. 

FRCP 6(a)(3) addresses the problem 

by including a provision for the 

inaccessibility of the clerk’s office. The 

new rules allow for judges to grant ex 

post facto delays in such cases. 

However, changing the term ‘‘legal 

holiday’’ to include any day on which 

the district office in which the 

document is to be filed is closed or 

otherwise inaccessible to the filing party 

would provide a clearer standard and 

avoid uncertainty over whether an ex 

post facto delay may be granted. The 

new rule is thus changed as follows: 

(4) ‘‘Legal holiday’’ defined. ‘‘Legal 

holiday’’ means the day set aside by statute 

for observing New Year’s Day, Martin Luther 

King Jr.’s Birthday, Washington’s Birthday, 

Memorial Day, Independence Day, Labor 

Day, Columbus Day, Veterans’ Day, 

Thanksgiving Day, or Christmas Day, any day 

declared a holiday by the President or 

Congress, and any day on which the office in 

which the document is to be filed is closed 

or otherwise inaccessible. 

§ 18.35 Signing motions and other 

papers; representations to the judge; 

sanctions. New § 18.35 is modeled after 

FRCP 11. It states the standards 

attorneys and parties must meet when 

filing motions or other documents with 

OALJ and provides sanctioning 

authority for violations of this section. 

Several commenters pointed out that 

the LHWCA and BLBA contain specific 

statutory provisions dealing with 

resistance to an order, misconduct 

during hearings, and discovery 

violations. They suggest amending 

§ 18.35(c) to state that the sanctions 

provisions are not applicable to LHWCA 

and BLBA cases. The Department 

declines to adopt the commenters’ 

suggestion for the reasons detailed 

above in section II, ‘‘Conflicts with the 

LHWCA and BLBA.’’ 

Several commenters objected to 

§ 18.35(c) in its entirety, suggesting that 

the section is essentially an attempt by 

the OALJ to exercise contempt power, 

which is limited to courts and may not 

be conferred upon administrative 

agencies. Section 18.35(c) however is 

not identical to FRCP 11(c)(4) and does 

not seek to invest OALJ judges with 

powers beyond the APA’s grant of 

authority to impose appropriate 

sanctions where necessary to regulate 

and ensure the integrity of the hearing 

process. Thus, for the reasons detailed 

above in section II, ‘‘Authority to 

Regulate the Conduct of Administrative 

Proceedings; Sanctions,’’ the 

Department declines to delete § 18.35(c). 

One commenter argued that there is 

no authority to hold a law firm jointly 

responsible for a violation committed by 

its partner, associate, or employee and 

failing to further define the 

circumstance that would justify an 

exception. The provision for law firm 

joint responsibility in § 18.35(c)(1) is 

taken directly from the corresponding 

federal rule, which was revised in 1993 

after the U.S. Supreme Court ruled that 

the previous language could not be 

interpreted to include a named 

offender’s firm. Pavelic & LeFlore v. 

Marvel Entm’t Grp., 493 U.S. 120 (1989). 

Thus, the provision is in accord with 

federal practice and the Department 

declines to strike or modify the 

provision in § 18.35(c)(1) concerning 

law firm joint responsibility. 

One commenter observed that 

§ 18.35(c)(4) provides no guidance as to 

what type of sanction ‘‘suffices to deter 

repetition of the conduct or comparable 

conduct.’’ The Department agrees that 

§ 18.35(c)(4) should be amended to 

provide more specific guidance. 

Paragraph (c)(4) of the rule is revised, 

containing the following language: ‘‘A 

sanction imposed under this section 

may include, but is not limited to, 

striking part or all of the offending 

document, forbidding the filing of any 

further documents, excluding related 

evidence, admonishment, referral of 

counsel misconduct to the appropriate 

licensing authority, and including the 

sanctioned activity in assessing the 

quality of representation when 

determining an appropriate hourly rate 

and billable hours when adjudicating 

attorney fees.’’ 

§ 18.50 General provisions governing 

disclosure and discovery. Under the 

new rule, a party may seek discovery at 

any time after a judge issues an initial 

notice or order and, unless the judge on 

motion orders otherwise, the methods of 

discovery may be used in any sequence 

regardless of the discovery conducted 

by other parties. The parties’ required 

initial disclosures would be made 

within 21 days after entry of an initial 

notice or order acknowledging that the 

case has been docketed for adjudication, 

and the rule includes a provision 

exempting certain proceedings and 

parties from the initial disclosure 

requirements. The Department received 

two comments focusing on the timing of 

disclosures and discovery in LHWCA 

and BLBA cases. One commenter urged 

that discovery should be available 

following transfer of the case to the 

OALJ or at any time upon stipulation of 

the parties, asserting that initial notices 

and orders have historically taken three 

months to issue and that discovery 

during this period of time will be 

unavailable under the new rule, 

resulting in unnecessary delay. This 

commenter also suggested that the 

timing for initial disclosures be set at 35 

days following transfer of the case to the 

OALJ. Citing similar concerns about 

delay, the other commenter suggested 

that discovery should be available at 

any time after a claim is filed. 


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The Department disagrees with these 

proposals. The use of a judge’s initial 

notice or order as the case event 

allowing parties to commence discovery 

promotes uniformity and predictability 

as it is the first reliable indication to the 

parties that the case is actually before 

the OALJ. The Department believes that 

use of the date of transfer from the 

District Director, Office of Workers’ 

Compensation Programs is potentially 

confusing because this procedure is 

only applicable in LHWCA and BLBA 

cases. See 20 CFR 702.317, 725.421. The 

transfer or referral is an internal 

administrative function that lacks the 

clarity of the initial notice of order from 

the judge in terms of informing parties 

that a case has been docketed for 

adjudication. The Department further 

believes that allowing discovery at any 

time after a claim is filed is problematic 

as this would inevitably lead to 

development of discovery disputes 

before the case is assigned to a judge. 

While the Department is sensitive to the 

expressed concern regarding delays in 

the issuance of an initial notice or order, 

this is a matter that is better addressed 

through internal policy directives rather 

than creation of a special rule of 

procedure or exception. Finally, the 

Department believes that the new 

disclosure and discovery rules, taken as 

a whole, provide parties with sufficient 

flexibility to ensure that all authorized 

and appropriate discovery will be 

available prior to adjudication. 

One comment raised a concern with 

the sequence of discovery in LHWCA 

cases by asserting that the logical first 

step is for a claimant to produce a 

medical report followed by the 

deposition of the report’s author. The 

commenter suggested that the new rule 

could allow a claimant to manipulate 

the discovery process by delaying 

production of a medical report which 

might result in a respondent having 

insufficient time to identify a rebuttal 

expert. To blunt this potential tactic, the 

commenter proposed that the rule 

require a claimant to produce a medical 

report and disclose any experts early in 

the process. The Department believes 

that this concern is adequately 

addressed in the provisions of the rule 

governing disclosure of experts, see 29 

CFR 18.50(c)(2)and through the judge’s 

broad discretion to oversee disclosure 

and discovery in an impartial manner 

that affords all parties a full and fair 

opportunity to be heard. Moreover, 

adoption of this proposal would create 

a special rule, applicable only in benefit 

cases such as those arising under the 

LHWCA and BLBA, which is 

inconsistent with the Department’s 

objective of promulgating a uniform set 

of procedural rules. 

One comment proposes that pro se 

parties be included in the list of parties 

who are exempted from the required 

initial disclosures under paragraph 

(c)(1)(iii) unless an ALJ orders the party 

to provide disclosures. The Department 

rejects this proposal as inconsistent 

with the efficient, impartial and fair 

adjudication of cases. The FRCP 

provides no such exemption for pro se 

litigants aside from those persons in 

government custody. See Fed. R. Civ. P. 

26(a)(1)(B)(iii). Having a separate set of 

rules for unrepresented parties or 

requiring a judge to provide them with 

legal guidance is inappropriate. See Pik 

v. Credit Suisse AG, ARB No. 11–034, 

ALJ No. 2011–SOX–6 (ARB May 31, 

2012) (citing Rays Lawn & Cleaning 

Sys., ARB No. 06–112, ALJ No. 2005– 

SCA–7 (ARB Aug. 29, 2008)); Olsen v. 

Triple A Mach. Shops, Inc., 25 Ben. Rev. 

Bd. Serv. (MB) 40, 46 n.4 (1991), aff’d 

mem. sub nom. Olsen v. Dir., OWCP, 

996 F.2d 1226 (9th Cir. 1993). 

Two comments expressed a concern 

that it is burdensome and/or irrelevant 

to require an expert witness’s written 

report to list all other cases in which the 

witness testified as an expert during the 

previous four years and the amount he 

or she was paid. See General Provisions 

Governing Disclosure and Discovery, 77 

FR 72159 (proposed Dec. 4, 2014) 

(proposed § 18.50(c)(2)(ii)(E) and (F)). 

These commentators stated that parties 

are not likely to have this information. 

The Department disagrees. While the 

parties themselves may not have such 

information, surely an expert witness 

would. Moreover, the rule allows for an 

exception to this requirement where 

stipulated or ordered by the judge. This 

exception could be invoked in those 

unusual cases where the required 

information might not be reasonably 

obtainable. These requirements track 

FRCP 26(a)(2)(B), and the Department is 

not persuaded by these comments that 

any deviation in the OALJ rules is 

justified. 

Two commenters urged adoption of a 

rule that would require parties to 

provide ESI in a searchable electronic 

format rather than paper copies when 

the requested information is available in 

electronic form. The commentators cited 

federal case law in support, stating that 

parties have been required to provide 

ESI in electronic format when requested 

in that form. While acknowledging the 

cited precedent, the Department rejects 

the proposal for a rule mandating 

production of ESI in electronic format 

whenever requested in that form. First, 

such a rule may violate the principle 

recognized in the NPRM that discovery 

of ESI should be proportional to what is 

at stake in the litigation. 77 FR 72146 

(citing FRCP 26(b)(2)(C)(iii)) (citing The 

Sedona Conference, The Sedona 

Principles: Second Edition, Best 

Practices Recommendations & 

Principles for Addressing Electronic 

Document Production 17 (Jonathan M. 

Redgrave et al. ed., 2d ed. 2007) 

(‘‘Electronic discovery burdens should 

be proportional to the amount in 

controversy and the nature of the case. 

Otherwise, transaction costs due to 

electronic discovery will overwhelm the 

ability to resolve disputes fairly in 

litigation.’’)). Second, the proposal 

would override paragraph (b)(3)(iii), 

which is based on FRCP 26(f)(3)(C) 

making any issues about disclosure or 

discovery of ESI, including the form or 

forms in which it should be produced, 

a required item in discovery plans. This 

proposal also conflicts with § 18.51(b)(2) 

which, like FRCP 26(b)(2)(B) upon 

which it is based, provides that ESI 

discovery issues are to be determined by 

the judge on a motion to compel or for 

protective order. In sum, the 

Department’s new rules on disclosure 

and discovery of ESI track the 

provisions in the FRCP which were 

developed after consideration of the 

competing interests at stake with regard 

to ESI, and the Department is not 

persuaded that a different approach is 

necessary or desirable in proceedings 

before the OALJ. 

The Department received one 

comment concerning the timing of 

initial disclosures for parties who are 

served or joined later. The commenter 

proposed adding the following sentence 

to the end of paragraph (c)(1)(v): 

‘‘Copies of all prior disclosures shall be 

served on the newly joined party within 

14 days of the joinder.’’ Such an 

addition is helpful because it is 

common in LHWCA and BLBA cases for 

additional parties to be joined after the 

commencement of the OALJ proceeding. 

Therefore, the Department has added 

the following sentence to the end of 

paragraph (c)(1)(v) in the final rule: 

Copies of all prior disclosures must be 

served on a newly served or joined party 

within 21 days of the service or joinder. 

Two comments advocated adoption of 

early discovery protocols similar to the 

pilot project that has been implemented 

by some federal district courts to 

streamline discovery and reduce costs 

in certain employment discrimination 

cases. See Federal Judicial Center, Pilot 

Project Regarding Initial Discovery 

Protocols for Employment Cases 

Alleging Adverse Action (2011), 

available at www.fjc.gov/public/pdf.nsf/ 

lookup/discempl.pdf/$file/

discempl.pdf. Incorporating a pilot 


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project designed for a limited class of 

cases into a set of uniform rules of 

practice and procedure is not desirable. 

To the extent such initiatives may be 

beneficial in certain cases, the 

Department has concluded that the 

determination to adopt such procedures 

is best left to the discretion of 

individual judges and/or discovery 

plans developed by parties pursuant to 

paragraph (b)(3). 

One comment proposed that 

paragraph (d)(3) should be revised to 

explicitly state that it does not apply to 

LHWCA and BLBA proceedings because 

33 U.S.C. 927(b) expressly provides a 

procedure (i.e., certification of facts to a 

federal district court for summary 

contempt proceedings) for addressing 

discovery violations. A party’s failure to 

comply with the certification 

requirements likely would not involve 

refusal to comply with an order and, 

therefore would not be cognizable as 

contempt subject to section 927(b). See 

A–Z Intn’l v. Phillips, 323 F.3d 1141, 

1146–47 (9th Cir. 2003) (holding that 

the district court lacked section 927(b) 

jurisdiction over conduct that did not 

involve a refusal ‘‘to comply with a 

summons, writ, warrant, or mandate 

issued by the ALJ.’’). The Department 

therefore rejects this proposal and has 

not made any change to paragraph 

(d)(3). 

§ 18.51 Discovery scope and limits. 

One comment suggested that the 

language of paragraph (a) defining the 

scope of discovery could be read as 

precluding discovery of prior medical 

records. The commenter focused this 

concern on the second sentence of the 

rule which states that ‘‘the judge may 

order discovery of any matter relevant to 

the subject matter involved in the 

proceeding.’’ The commenter preferred 

language limiting discovery to matters 

‘‘relevant to the subject matter of the 

proceeding’’ and, alternatively, 

suggested that the record should clearly 

state that prior medical records are 

relevant to a party’s claim or defense 

when medical questions are at issue. 

The Department rejects this proposal as 

essentially seeking a substantive 

determination that prior medical 

records are discoverable without 

limitation in all proceedings as long as 

there is some medical issue in play. 

While such records may well be 

relevant and discoverable in many cases 

where medical issues are raised, it is not 

difficult to foresee situations where 

production of a person’s prior medical 

records might not be required. In the 

Department’s view, determinations as to 

the scope of discovery with respect to 

specific categories of information cannot 

be properly addressed in a general 

procedural rule and, instead, must be 

left to case-by-case adjudication. 

Another comment stated that the 

exceptions established by paragraph 

(d)(3)(i) through (iii) to the general rule 

embodied in paragraphs (c)(1) and (2) 

which protect against disclosure of 

communications between a party’s 

representative and an expert witness are 

not adequate to ensure access to 

evidence of fraud, abuse or influence 

such as a party’s attorney writing the 

expert’s report. The commenter 

suggested that the exceptions should be 

broadened to ensure disclosure of such 

evidence or that paragraphs (c)(1) and 

(c)(2) should be eliminated. The 

Department’s new rules addressing 

disclosure of communications between 

a party’s representative and an expert 

track the provisions of FRCP 26(b)(3) 

and (4), which were revised in 2010. 

While the Civil Rules Advisory 

Committee stated that the revisions to 

FRCP 26 were intended to alter preamendment case law that required 

disclosure of all attorney-expert 

communications and draft reports in 

favor of limiting disclosure to 

communications of a factual nature in 

order to protect the theories and mental 

impressions of counsel, the Advisory 

Committee emphasized that the ‘‘facts 

or data’’ exception should be interpreted 

broadly to require disclosure of ‘‘any 

facts or data ‘considered’ by the expert 

in forming the opinions to be expressed, 

not only those relied upon by the 

expert.’’ Fed. R. Civ. P. 26 advisory 

committee’s note (discussion of 2010 

amendments); see also Sara Lee Corp. v. 

Kraft Foods, Inc., 273 FRD. 416, 419 

(N.D. Ill. 2011); Fialkowski v. Perry, No. 

11–5139, 2012 WL 2527020, at *5 (E.D. 

Pa. Jun. 29, 2012) (holding that even if 

the requested documents are considered 

‘‘communications’’ between a party’s 

attorney and an expert within the 

meaning of FRCP 26(b)(4)(C), they are 

discoverable to the extent that they fall 

within the exceptions listed in FRCP 

26(b) (4)(C)(ii) and (iii), for ‘‘facts and 

data’’ that the expert considered and for 

‘‘assumptions’’ that the expert relied 

on). The Department believes that the 

rule adequately addresses the concern 

raised in the comment, and no change 

has been made in the final rule. 

The Department received a comment 

stating that some of the commentary in 

the NPRM relating to limitations on the 

scope of discovery could lead judges to 

believe that limiting discovery is more 

important than providing whistleblower 

complainants with access to the 

evidence they need to prove their 

claims. This commenter pointed out 

that discovery is critical in 

whistleblower litigation where 

‘‘smoking gun’’ evidence of unlawful 

motivation is rare, and he suggests that 

it would be helpful if the comments 

accompanying the final rule are 

balanced to recognize that while judges 

have discretion to limit unnecessary 

discovery, they also have a duty to 

enforce discovery when it is necessary 

to prove a relevant point. The 

commenter did not suggest any change 

in the proposed rule establishing the 

scope of discovery and its limits. The 

Department notes that the discussion of 

the changes in the disclosure and 

discovery rules in the NPRM contains 

several references to limitations on the 

scope of discovery which were 

necessitated by recent changes in the 

FRCP that were incorporated into the 

new § 18.51. However, the Department 

believes the new rule, like FRCP 26(b) 

upon which it is based, appropriately 

balances competing discovery interests. 

Another commenter similarly 

suggested with respect to whistleblower 

cases that the rules should encourage 

early exchange of discoverable 

information, prompt resolution of 

discovery disputes and broad discovery 

of probative information. This 

commenter also did not advocate any 

particular change in the proposed rule. 

The Department believes that the new 

disclosure and discovery rules, taken as 

a whole, are designed to accomplish the 

commenter’s recommended objectives 

in a fair and impartial manner. The 

Department further believes that 

adoption of special disclosure and 

discovery rules for a particular category 

of cases is neither necessary nor 

desirable as judges have discretion to 

resolve discovery disputes in a manner 

that is consistent with the requirements 

of the particular governing statute and 

implementing regulations. The 

Department therefore has not made any 

change to the new rules based on this 

comment. 

§ 18.55 Using depositions at 

hearings. Two commenters suggested 

that the new rule should be revised to 

permit wider use of depositions at 

hearings. One commenter proposed 

addition of a paragraph that would 

permit unconditional use of depositions 

at hearings in the absence of any 

objection. The commenter submitted 

that this revision would better align the 

rule with current practice and 

procedure. Another commenter urged 

deletion of the requirement of showing 

unavailability as a pre-condition to the 

admission of deposition testimony from 

a lay or non-expert witness. This 

commenter asserted that the 

unavailability requirement is overly 

burdensome and particularly so for 

benefits claimants who have fewer 


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resources to pay witnesses to attend 

hearings. The Department agrees. 

Allowing unconditional use of 

depositions in the absence of an 

objection comports with current 

practice and procedure and reduces the 

potential financial burden of producing 

live witnesses on all parties. While the 

proponent of using the deposition of a 

non-expert witness at hearing would 

still be required to demonstrate 

unavailability in the face of an 

objection, the Department believes that 

the unavailability provisions of the rule, 

which track FRCP 32(a)(4), are 

sufficiently broad to minimize the 

burden of producing live witnesses. 

Accordingly, the new rule has been 

revised and renumbered to add a new 

paragraph allowing unconditional use of 

depositions at hearings in the absence of 

an objection. 

§ 18.56 Subpoenas. The Department 

received two comments regarding the 

provisions of paragraph (a) relating to 

issuance of subpoenas. One of the 

commenters proposed that the rule state 

that any attorney authorized to practice 

under the rules may issue subpoenas 

and that the judge may issue subpoenas 

on written application of a non-attorney. 

The other comment urged that 

paragraph (a)(3), which would permit a 

judge by order in a specific proceeding 

to authorize an attorney representative 

to issue and sign subpoenas, be revised 

to exempt LHWCA and BLBA 

proceedings because 33 U.S.C. 927(a) 

expressly delegates subpoena issuance 

authority to judges who cannot subdelegate such authority to persons 

outside the Department. The 

Department is persuaded by this latter 

argument that the authority to issue 

subpoenas should remain with the 

judge. The comment cited two cases— 

FTC v. Gibson, 460 F.2d 605 (5th Cir. 

1972), and United States v. Marshall 

Durbin & Co. of Haleyville, 363 F.2d 1 

(5th Cir. 1966),—where sub-delegation 

of statutory subpoena authority to 

subordinate employees of an agency was 

upheld based on reorganization plans, 

authorized by the Reorganization Act of 

1949, 5 U.S.C. 901–912, that specifically 

provided for the challenged subdelegation of subpoena power. See also 

Lewis v. NLRB, 357 U.S. 10, 14–15 

(1958) (upholding sub-delegation of 

subpoena authority to the Board’s 

regional directors). Unlike the cited 

cases, there is no reorganization plan 

under which the Department’s judges 

have been authorized to sub-delegate 

statutory subpoena authority. 

Consequently, a question exists as to 

whether the sub-delegation authorized 

by paragraph (a)(3) would withstand 

legal scrutiny. The Department has 

therefore deleted paragraph (a)(3) from 

the new rule. This revision renders 

moot the concerns raised by the other 

commenter about the need for 

additional protective procedures to 

protect parties from abusive subpoena 

practices by parties’ representatives in 

the event they were authorized to issue 

subpoenas. 

The Department received a comment 

that paragraph (b)(1) dealing with 

service of subpoenas be revised to track 

a change in FRCP 45(a)(4), upon which 

the rule is patterned, that was 

recommended to the U.S. Supreme 

Court by the Committee on Rules of 

Practice and Procedure of the Judicial 

Conference of the United States in its 

report of September 2012. See Federal 

Rules of Practice & Procedure, Report of 

the Judicial Conference Committee on 

Rules of Practice and Procedure to the 

Chief Justice of the United States and 

Members of the Judicial Conference of 

the United States 23 (2012), available at 

www.uscourts.gov/uscourts/

RulesAndPolicies/rules/Reports/ST09– 

2012.pdf. To maintain harmony with 

the FRCP, the commenter proposed that 

paragraph (b)(1) be amended to read as 

follows: 

By whom; tendering fees; serving a copy of 

certain subpoenas. Any person who is at 

least 18 years old and not a party may serve 

a subpoena. Serving a subpoena requires 

delivering a copy to the named person and, 

if the subpoena requires that person’s 

attendance, tendering with it the fees for 1 

day’s attendance and the mileage allowed by 

law. Service may also be made by certified 

mail with return receipt. Fees and mileage 

need not be tendered when the subpoena 

issues on behalf of the United States or any 

of its officers or agencies. If the subpoena 

commands the production of documents, 

electronically stored information, or tangible 

things or the inspection of premises before 

the formal hearing, then before it is served on 

the person to whom it is directed, a notice 

and a copy of the subpoena must be served 

on each party. 

The Department adopts this proposal as 

consistent with the objective of bringing 

the OALJ rules of practice and 

procedure into alignment with the FRCP 

where appropriate. Paragraph (b)(1) in 

the final rule has been amended 

accordingly. 

The Department received two 

additional comments regarding 

paragraph (b)(1). One commenter raised 

a concern that the phrase ‘‘allowed by 

law’’ is vague and should be replaced by 

a reference to the particular controlling 

law. The language in question is taken 

verbatim from FRCP 45(a)(4) and is 

intended to be interpreted in a manner 

consistent with the federal rule under 

which witness fees and expenses are 

currently controlled by 28 U.S.C. 1821. 

See Dishman v. Cleary, 279 FRD. 460, 

466 (N.D. Ill. 2012); Fisher v. Ford Motor 

Co., 178 FRD. 195, 197 (N.D. Ohio 

1998). The Department does not believe 

that it is prudent to incorporate specific 

statutory references into the rule as 

statutory provisions are subject to 

change which would lead to potential 

confusion until the rule could be 

amended. Further, the Department notes 

that the discovery subcommittee to the 

Civil Rules Advisory Committee 

undertook an exhaustive survey of 

published commentary regarding FRCP 

45. See Federal Rules of Practice & 

Procedure, Survey of Issues Regarding 

Federal Rule of Civil Procedure 45 

(2009), available at www.uscourts.gov/

uscourts/RulesAndPolicies/rules/

MemoreRule45issues.pdf. Review of the 

survey discloses no published concern 

or comment or other criticism related to 

the use of ‘‘allowed by law.’’ 

The second commenter proposed a 

requirement that notice of a subpoena(s) 

relating to medical or financial 

information include a statement 

certifying that the information will not 

be used or disclosed for any purpose 

other than the litigation or proceeding 

for which the information was requested 

and will be destroyed or returned at the 

end of the litigation or proceeding. The 

commenter stated that this additional 

provision is necessary to protect against 

inadvertent disclosure of sensitive 

information. The Department rejects this 

proposal, noting that the handling of 

sensitive information obtained during 

discovery should be addressed in 

parties’ discovery plans under 

§ 18.50(b)(3) and that any unresolved 

issues relating to sensitive information 

may more appropriately be addressed by 

the judge on a case-by-case basis under 

the protective order procedures in 

§ 18.52. 

One commenter proposed that 

paragraph (c)(1), requiring a judge to 

impose an appropriate sanction on a 

party or representative who violates the 

duty to avoid imposing an undue 

burden on a person subject to a 

subpoena, be revised to explicitly state 

that it does not apply to LHWCA and 

BLBA proceedings which are subject to 

the summary contempt procedure 

established by 33 U.S.C. 927(b). The 

Department declines to adopt the 

commenter’s suggestion for the reasons 

detailed above in section II, ‘‘Conflicts 

with the LHWCA and BLBA.’’ 

§ 18.57 Failure to make disclosures 

or to cooperate in discovery; sanctions. 

Two comments proposed revising the 

rule to specifically exempt LHWCA and 

BLBA cases from the sanction 

provisions which, the commenters 


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argued, are preempted by section 927(b) 

of the LHWCA. One of the commenters 

additionally argued that these sanction 

provisions violate the ‘‘separation of 

powers’’ doctrine by usurping contempt 

powers solely vested in the Article III 

courts. The Department declines to 

adopt the commenters’ suggestions for 

the reasons detailed above in section II, 

‘‘Conflicts with the LHWCA and BLBA.’’ 

§ 18.62 Physical and Mental 

Examinations. One commenter 

suggested that § 18.62(a)(1) should be 

amended to restrict an examination to 

the mental or physical ‘‘condition in 

controversy.’’ 

The Department declines to adopt the 

commenter’s suggestion. The suggested 

text would offer no meaningful limit 

because the medical examiner does not 

know how the issues have been framed 

in litigation. The party who retains an 

examiner and notices the examination 

however knows the scope of the report 

it retains an examiner to prepare. The 

Department believes it is preferable to 

rely on the language taken from FRCP 

35(a), which requires the party who 

notices an examination to specify the 

‘‘time, place, manner, conditions, and 

scope of the examination,’’ and to 

disclose the ‘‘person or persons who 

will perform it.’’ The notice must also 

describe the examination in a way that 

informs the party to be examined of its 

scope. That party may object if the 

conditions or scope of the examination 

stray into areas that are not in 

controversy. 

Two commenters argued that the final 

rule should retain the 30-day notice 

requirement found in previous 

§ 18.19(4)(d). One commenter stated that 

the new 14-day notice requirement 

would unreasonably burden the 

claimant. Specifically, the shorter notice 

period would make it harder for the 

claimant to arrange for time off from 

work, travel plans, and other matters. 

The commenters also asserted that 

§ 18.62(a)(4) would not give sufficient 

time to object to the examination notice 

with particularity. The person to be 

examined may have to consult with 

others (such as experts or a treating 

physician) to frame and serve a specific 

objection. 

The Department agrees with the 

commenters’ suggestions. Therefore, 

§ 18.62(a)(3) is amended to provide a 

notice period of 30 days in advance of 

an examination when the parties do not 

agree to a shorter notice in their 

proposed discovery plan, by stipulation, 

or through informal discussion. Section 

18.62(a)(4) is amended to extend the 

time to serve an objection from 7 days 

to 14 days. 

One commenter suggested that the 

text of the rule on physical and mental 

examinations should mandate a threestep procedure before an examination 

can be noticed: (1) The parties must 

attempt to resolve all issues informally 

before an examination is noticed; (2) if 

agreement cannot be reached, the party 

that intends to notice an examination 

must request a telephone or other 

prehearing conference with the judge to 

discuss whether an examination is 

needed, and any specific procedure or 

limitations on the examination that may 

be appropriate; and (3) before the 

prehearing conference, the party 

proposing the examination must state 

with particularity why the examination 

is needed, why the deposition of the 

party to be examined is insufficient to 

address the issues the examination 

would address, and describe what will 

occur at the examination. 

The Department declines to adopt the 

commenter’s proposal. First, the parties 

ordinarily should have discussed 

whether an examination is appropriate, 

and its scope, when they frame the 

proposed discovery plan early in the 

case, just as happens in the U.S. district 

courts. Second, the claims at the OALJ 

frequently involve a physical or mental 

condition that serves as one of the bases 

raised for relief—an issue that is 

litigated less often in U.S. district 

courts. It makes sense therefore for the 

default assumption in the rules to be 

that an examination is appropriate in 

cases before the OALJ, even though 

FRCP 35 allows such examinations only 

upon motion for good cause before the 

U.S. district courts. 

One commenter suggested that 

§ 18.62(c)(1) be amended to require that 

the examination report (1) be delivered 

to the examined party within 21 days, 

(2) be delivered no fewer than 45 days 

before the hearing, and (3) fulfill the 

requirements of expert testimony found 

in proposed § 18.50(c)(2)(ii) [required 

for witnesses who must provide a 

written report]. 

The Department declines to adopt 

these additional requirements. Section 

18.62 establishes a procedure to set an 

examination. It should not be conflated 

with the separate disclosures a party 

must make before final hearing, 

particularly about the testimony of 

experts. The examiner may not be a trial 

witness. The examination report may be 

only a portion of the data an expert 

witness who testifies at final hearing 

rely on to reach an opinion. Section 

18.50(c)(2)(ii) has an independent effect. 

With respect to the timing of reports, the 

parties should build into the discovery 

plan an appropriate period for the 

examiner to write and serve a report, 

which can be incorporated into a 

prehearing order. To ensure the party 

examined has the examination report 

promptly, however the Department 

agrees that the party who retained the 

examiner and receives the examination 

report must serve a copy of the 

examination report on the party 

examined no later than seven days after 

it receives the report. 

§ 18.64 Depositions by oral 

examination. One commenter asserted 

that an ALJ cannot impose the sanctions 

enumerated in § 18.57 in LHWCA and 

BLBA adjudications for the types of 

misconduct described in § 18.64(d)(2) 

and (g). Therefore, the commenter 

suggested that the Department add an 

exception to the rules for these cases. 

The Department declines to amend 

§ 18.64 to provide such an exception for 

the reasons detailed above in section II, 

‘‘Authority to Regulate the Conduct of 

Administrative Proceedings; Sanctions’’ 

and ‘‘Conflicts with the LHWCA and 

BLBA.’’ 

§ 18.64 Depositions by oral 

examination and § 18.65 Depositions 

by written questions. One commenter 

stated that proposed §§ 18.64 and 18.65 

refer to an ‘‘officer,’’ but do not clarify 

the ‘‘officer’s’’ relations to the 

deposition proceeding. FRCP 30(b)(5) 

and 31(b) use the term ‘‘officer’’ to 

describe the court reporter who 

administers the oath, takes and certifies 

the testimony, states that the deposition 

is complete when it ends, and reads the 

written deposition questions. The 

Department agrees with the commenter 

that the title to §§ 18.64(b)(5) and 

18.65(b) should be altered to clarify that 

the ‘‘officer’’ is the ‘‘deposition officer.’’ 

§ 18.70 Motions for dispositive 

action. One commenter objected 

generally to the use of motions to 

dismiss in proceedings where there are 

shifting burdens of proof or where the 

claimant benefits from legal 

presumptions. The commenter argued 

specifically that § 18.70(c) should be 

stricken or made not applicable to cases 

under the LHWCA because such a rule 

would require claimants to plead with 

more specificity than required under the 

Act, and noted that an injury and timely 

filing are presumed. The Department 

declines to strike or modify § 18.70(c). 

That section states that a party is 

permitted to move to dismiss part or all 

of the matter ‘‘for reasons recognized 

under controlling law.’’ The new section 

is not intended to modify existing law 

controlling the standard for dispositive 

motions, including motions challenging 

the sufficiency of a pleading. Moreover, 

§ 18.10(a) states that ‘‘[t]o the extent that 

these rules may be inconsistent with a 

governing statute, regulation, or 


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executive order, the latter controls.’’ 

Thus, a party’s motion to dismiss under 

§ 18.70(c) does not upset any statutory 

or regulatory presumptions or shifting 

burdens of proof. 

§ 18.72 Summary decision. One 

commenter argued for the development 

of a rule that would allow ALJs to enter 

summary decision in a condensed order 

that is compliant with the APA, but 

which does not require a complete 

recitation of all evidence. The 

commenter argued that such a summary 

ruling would minimize judges’ 

workload and allow for quicker 

adjudications. The commenter 

suggested that the rules permit such a 

summary ruling upon agreement of the 

parties because without such a 

provision in the rules, parties will have 

concerns about whether such an order 

would be deemed deficient by the BRB. 

Because the APA specifies what must be 

included in an ALJ’s decision and order, 

the Department declines to modify 

§ 18.72 to provide for a condensed 

decision on summary decision. Section 

18.72(a) provides that the judge should 

state on the record the reasons for 

granting or denying a motion for 

summary decision or partial summary 

decision. 

Two commenters stated that the use 

of summary adjudications is 

inconsistent with the goal of fair 

administrative proceedings for 

whistleblowers and should be rarely, if 

ever, used. The commenters argued that 

summary decisions based on written 

submissions favor employers over 

employees and increase costs. The 

commenters argued that summary 

decisions deprive the ALJ of the 

opportunity to determine the credibility 

of the witnesses, which is important in 

cases where motive and intent are 

critical issues. The commenters 

recommended that § 18.72 state that 

summary judgment is generally 

considered inappropriate in 

administrative proceedings. 

The Department declines to revise 

§ 18.72 to state that summary decision is 

inappropriate in administrative 

proceedings, in general, or in 

whistleblower proceedings, in 

particular. The utility of a summary 

decision procedure for agencies having 

a substantial caseload of formal 

adjudications has long been recognized. 

See Summary Decision in Agency 

Adjudication,1 CFR 305.70–3 (1995) 

(ACUS Recommendation 70–3, available 

at www.acus.gov/sites/default/files/

documents/70–3.pdf). Section 18.72 is a 

procedural rule applicable to the many 

types of adjudications conducted by the 

OALJ, and is neutral on the question of 

whether summary decision as a 

procedural mechanism is 

disproportionately adverse to the 

interests of whistleblower complainants. 

Any rulemaking proposing a regulation 

discouraging summary decision in 

whistleblower cases is within the 

responsibility and purview of the 

agency which has programmatic and 

policy responsibility over whistleblower 

cases, and not the OALJ, whose role is 

adjudicatory. Moreover, the ARB has 

issued several decisions that provide 

ample guidance to the public and to 

judges on the standards specific to 

summary decision motions in 

whistleblower cases. See Evans v. 

E.P.A., ARB No. 08–059, ALJ No. 2008– 

CAA–3 (ARB Apr. 30, 2010); Hasan v. 

Enercon Serv., Inc., ARB No. 10–061, 

ALJ Nos. 2004–ERA–22 and 27 (ARB 

July 28, 2011); Lee v. Parker-Hannifin 

Corp., Advanced Prod. Bus. Unit, ARB 

No. 10–021, ALJ No. 2009–SWD–3 (ARB 

Feb. 29, 2012); Franchini v. Argonne 

Nat’l Lab., ARB No. 11–006, ALJ No. 

2009–ERA–14 (ARB Sept. 26, 2012); see 

also Guillory v. Domtar Indus., 95 F.3d 

1320, 1326 (5th Cir. 1996) (‘‘Though 

summary judgment is rarely proper 

when an issue of intent is involved, the 

presence of an intent issue does not 

automatically preclude summary 

judgment; the case must be evaluated 

like any other to determine whether a 

genuine issue of material fact exists.’’). 

Another commenter objected that 

motions for summary judgment allow 

cases to be framed by the party that does 

not have the burden of proof at trial, and 

that under § 18.72, the moving party 

gets the last word. The commenter 

described complainants being 

‘‘sandbagged’’ by primary briefs that 

provide abbreviated or unclear 

statements of facts or arguments, which 

are tactically written to prevent cogent 

or complete responses. Then, 

complainants are faced with reply briefs 

that clarify or even add arguments and 

provide additional authorities in 

support of those arguments. The 

commenter stated that many circuit 

courts deal with this problem by 

allowing surreply briefs, or by expressly 

limiting reply briefs to the four corners 

of the arguments made by the nonmoving party in opposition to summary 

judgment. Thus, the commenter 

suggested a rule that specifically allows 

for a surreply, makes clear that the reply 

and surreply may only respond to 

material in the opposing submission, 

and states that all ‘‘new’’ material be 

disregarded by the court. 

The Department declines to revise 

§ 18.72 to expressly allow surreply 

briefs, or to expressly limit reply briefs 

to the four corners of the arguments 

made by the non-moving party in 

opposition to summary judgment. OALJ 

judges have the power necessary to 

conduct fair and impartial proceedings, 

and are capable of dealing with a 

parties’ raising of new arguments in 

reply briefs without a specific rule. For 

example, in Du Jardin v. Morrison 

Knudsen Corp., 1993–TSC–3 (ALJ Nov. 

29, 1993), the ALJ refused to consider 

new arguments raised by the respondent 

in a reply brief to the complainant’s 

response to the respondent’s motion for 

summary decision. In Inman v. Fannie 

Mae, 2007–SOX–47 (ALJ Mar. 5, 2008), 

rev’d and remanded on other grounds, 

Inman v. Fannie Mae, ARB No. 08–060, 

ALJ No. 2007–SOX–47 (ARB June 28, 

2011), the ALJ permitted the 

complainant to file a surreply on a 

motion for summary decision. The 

Department notes that under FRCP 56, 

on which § 18.72 is modeled, there is no 

right to file a surreply. Although the 

commenter stated that many circuit 

courts allow surreply briefs, it did not 

identify those circuits. Our review of 

federal appellate court rules and circuit 

court local rules found that the rules 

generally do not mention surreply 

briefs, or only allow them upon leave of 

the court. See, e.g., Dist. N.M. Local R. 

Civ. P. 7.4(b) (2013); Dist. N.H. Local R. 

7.1e(3) (2013). 

Two commenters suggested that the 

timing aspects of § 18.72 will be 

troublesome for whistleblower 

complainants, for whom the efficiency 

and cost of opposing motions for 

summary judgment is of paramount 

importance. Motions for summary 

decision are usually filed by 

respondents, and consequently, when 

such motions are filed near to the 

hearing date, complainants are 

disadvantaged because they are severely 

burdened by the need to respond to the 

motion and prepare for the evidentiary 

hearing within a short time period. The 

commenters recommended that: (1) 

Substantive summary motions aimed at 

eliminating claims or types of damages 

should be filed no later than 90 days 

prior to a hearing date; (2) counsel 

responding to such motions should have 

21 to 30 days to file their responsive 

pleadings; and (3) all such motions 

should be resolved at least 30 days prior 

to a hearing date. 

The Department declines to revise 

§ 18.72 to require summary decision 

motions be filed no later than 90 days 

prior to a hearing date. Prior § 18.40(a) 

provided that a party may file a motion 

for summary decision at least 20 days 

before the date fixed for any hearing. 

With the new § 18.72, the Department 

increased the timeframe for filing 

motions for summary decision to 30 

days before the date fixed for the formal 


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hearing. In the OALJ’s experience, this 

timeframe would generally afford 

sufficient time for all parties and the 

judge to address the motion. As noted 

in the new § 18.10(a), the OALJ rules of 

practice and procedure are to be 

administered to secure the just, speedy, 

and inexpensive determination of every 

proceeding. In whistleblower cases, in 

particular, the regulations direct that 

hearings are to commence 

expeditiously. See, e.g., 20 CFR 

1979.107(b). Moreover, if necessary, 

§ 18.72 gives the ALJ the discretion to 

adjust deadlines, as appropriate. 

One comment argued that § 18.72(h) 

should be revised to explicitly state that 

it does not apply in proceedings under 

the LHWCA and the BLBA because 33 

U.S.C. 927(b) expressly provides a 

procedure (i.e., certification of facts to a 

federal district court for summary 

contempt proceedings) for resistance of 

a lawful order, misconduct during 

hearings, and discovery violations. The 

commenter thus argued that the 

sanctions listed in the § 18.72(h) are 

unavailable to ALJs presiding in 

hearings under the LHWCA or BLBA. 

The Department declines to adopt the 

commenters’ suggestion for the reasons 

detailed above in section II, ‘‘Conflicts 

with the LHWCA and BLBA.’’ 

§ 18.80 Prehearing statement. The 

Department added a requirement that a 

participating party file a prehearing 

statement at least 21 days prior to the 

date set for hearing. Prior § 18.7 did not 

have a requirement for filing prehearing 

statements. 

A commenter proposed that the time 

for filing the prehearing statement be 

extended to 45 days prior to hearing to 

allow the parties time to ascertain if 

additional discovery is needed, and to 

prevent the need for continuances to 

conduct discovery on witnesses and 

evidence not timely disclosed. The 

commenter argued that the additional 

time will preclude post trial depositions 

to rectify untimely disclosed 

information. The Department declines 

to extend the date for submission of the 

prehearing statement and notes that the 

rule allows for the judge to order a 

different time frame, if appropriate. 

A commenter objected to the 

statement in the NPRM that the 

Department proposed to add a new 

regulation at § 18.80(e) requiring a party 

to file objections to an opposing party’s 

proposed exhibits or use of deposition 

testimony within 14 days of being 

served, and that failure to object waives 

an objection unless the judge finds good 

cause for failure to object. The NPRM is 

in error. The new rule does not include 

such a provision. 

§ 18.84 Official notice. The 

Department clarifies procedures in 

§ 18.84 that a judge may follow when 

taking judicial notice. The rule provides 

that official notice may be taken of any 

adjudicative fact or other matter subject 

to judicial notice, and the parties must 

be given an adequate opportunity to 

show the contrary of the matter noticed. 

A commenter objected to a practice by 

ALJs in BLBA claims of taking official 

notice of the Dictionary of Occupational 

Titles (4th ed. Rev. 1991). He contended 

that such practice invades upon the 

province of a medical expert who must 

consider job duties and tasks in 

assessing whether a pulmonary 

impairment would or would not prevent 

the performance of such tasks. Although 

the Department agrees with the 

commenter that a matter subject to 

judicial notice is a matter whose 

accuracy cannot be reasonably 

questioned, it declines to identify 

specific matters for which official notice 

is not appropriate. The rule states that 

parties must be given an adequate 

opportunity to show the contrary of the 

matter noted. The Department 

accordingly declines to amend this 

provision. 

§ 18.87 Standards of conduct. The 

Department relocated the prior § 18.36 

to § 18.87 and divided the prior 

paragraph (b) into two paragraphs: (b) 

Exclusion for misconduct, and (c) 

Review of representative’s exclusion. A 

commenter contended that the rule 

should be revised to explicitly state that 

§ 18.87 does not apply in proceedings 

under the LHWCA and BLBA. The 

commenter reasoned that rules of 

procedure apply only to the extent that 

they are consistent with the BLBA or its 

implementing regulations, and since the 

LHWCA and BLBA contain a specific 

statutory provision dealing with the 

resistance of an order, misconduct 

during hearings, and discovery 

violations, 33 U.S.C. 927(b), the 

sanction provisions under either the 

Rules of Practice and Procedure before 

the OALJ or the FRCP do not apply. The 

commenter also objected to the rule 

because Congress did not vest the OALJ 

with contempt powers. The Department 

declines to adopt the commenters’ 

suggestion for the reasons detailed 

above in section II, ‘‘Conflicts with the 

LHWCA and BLBA.’’ 

§ 18.88 Transcript of proceedings. 

Section 18.88(b) of the new rule states 

that motions to correct the official 

transcript must be filed within 14 days 

of the receipt of the transcript unless the 

judge permits additional time. A 

commenter suggested that motions to 

correct be filed seven days after filing of 

the post-hearing brief. The commenter 

reasoned that attorneys typically review 

the transcript as they write the brief, 

and that counsel can be more helpful in 

this regard after they have reviewed the 

transcript in preparation for their brief. 

The Department declines to extend the 

date for motions to correct. The 

Department contemplates that parties 

would have a corrected transcript at the 

time they prepare their brief. Also, the 

rule allows for correction of errors 

discovered during preparation of a brief, 

as the rule provides that a judge may 

correct errors in the transcript at any 

time before issuing a decision and upon 

notice to the parties. 

§ 18.92 Decision and order. The 

Department revised the prior § 18.57 

into two sections, § 18.91, Post-hearing 

Briefs; and § 18.92, Decision and Order. 

The language that the Department 

deleted stated that the ALJ was to issue 

a decision within a ‘‘reasonable time’’ 

after receiving the parties’ filings or 

within 30 days after receiving the 

parties’ consent findings. Two 

commenters submitted concerns about 

the new § 18.92. They observed that, 

under the current practice, parties ‘‘have 

no mechanism or ability to know when 

decisions will be issued,’’ and expressed 

concern that delays adversely impact 

both employers and employees. The 

Department has determined that 

questions about how long it takes the 

OALJ’s judges to issue their decisions 

are best handled as matters of policy 

and resource allocation. The 

Department therefore declines to adopt 

the commenters’ suggestions that 

§ 18.92 be amended to include a 

timeframe for issuance of a judge’s 

decision. 

§ 18.93 Motion for reconsideration. 

The prior rule contained no general 

provision on motions for 

reconsideration of decisions and orders. 

The Department added a new provision 

stating that motions for reconsideration 

of a decision and order must be filed 

within 10 days after service of the 

decision on the moving party. 

One commenter suggested that the 

provision be amended to permit 

motions for reconsideration to be filed 

within 30 days, instead of the 10 days 

in the new rule. The commenter stated 

that the BLBA regulation permits such 

motions to be filed within 30 days. 20 

CFR 725.479(b). In the commenter’s 

view, its proposal will provide for 

uniformity among all types of cases. The 

commenter also indicated that a longer 

time period for such motions will 

obviate the need to submit motions for 

extensions of time to file motions for 

reconsideration, and will provide 

practitioners and their clients with 

sufficient time to make informed 


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decisions about whether to even file 

motions for reconsideration. Broad 

motions aimed at all issues will thus be 

avoided and the resulting burden on 

ALJs will be reduced. 

As the commenter correctly indicated, 

and as mentioned in the NPRM, the new 

rule is modeled after FRCP 59(e), which 

gives parties 28 days from the date of 

entry of a judgment to file a motion to 

alter or amend the judgment. A motion 

for reconsideration may be filed in 

BLBA cases within 30 days. 20 CFR 

725.479(b). Compensation orders in 

LHWCA cases similarly are final 30 

days after filing unless other 

proceedings are instituted. 

The Department considered other 

timeframes for motions for 

reconsideration that were more in line 

with FRCP 59(e) or 20 CFR 725.479(b). 

However, some of the Department’s 

regulations pertaining to specific 

statutes within the OALJ’s purview state 

that the ALJ’s decision and order is 

final, unless a petition for review is filed 

with the ARB within a specific time, 

less than 30 days from service of the 

ALJ’s decision and order. See, e.g., 29 

CFR 1978.109(e)(specifying 14 days for 

cases under the Surface Transportation 

Assistance Act); 29 CFR 1980.110(e) 

(specifying 10 days for cases under the 

Sarbanes-Oxley Act); 29 CFR 

1992.110(a)(specifying 10 days for cases 

under the National Transit Systems 

Security Act/Federal Railroad Safety 

Act). Permitting a party to move for 

reconsideration after the date that a 

petition for review must be filed with 

the ARB would be inconsistent with the 

Department’s position regarding finality 

of ALJ decisions in such cases. 

Additionally, if the deadline for 

submitting a motion for reconsideration 

is after the deadline for submitting a 

petition for review, if a motion for 

reconsideration is not submitted, a party 

may thereby inadvertently foreclose its 

options regarding appeal. The 

Department therefore declines to adopt 

the commenter’s suggestion regarding 

the number of days within which 

motions for reconsideration can be filed. 

IV. Cross Referencing Chart 

To assist in the transition to the 

revised Subpart A, the chart below 

provides cross references between the 

new section and section title, and the 

old section and section title of each rule. 

The chart also provides cross references 

to the corresponding FRCP rule, where 

applicable. Finally, the chart lists the 

sections from the old Subpart A that 

have been deleted. 

Part 18, Subpart A—Cross Referencing 

Chart 

New section New section title Old section Old section title Federal Rule of 

Civil Procedure 

General Provisions 

18.10 ........... Scope and purpose ............................... 18.1/18.26 ...... Scope of rules and conduct of hearings Fed. R. Civ. P. 1. 

18.11 ........... Definitions .............................................. 18.2 ................ Definitions.

18.12 ........... Proceedings before administrative law 

judge.

18.25/18.29(a) Proceedings before administrative law 

judge/authority of the administrative 

law judge.

18.13 ........... Settlement judge procedure .................. 18.9 ................ Consent order or settlement; settlement 

judge procedure.

18.14 ........... Ex parte communication ....................... 18.38 .............. Ex parte communications.

18.15 ........... Substitution of administrative law judge 18.30 .............. Unavailability of administrative law 

judge.

Fed. R. Civ. P. 63. 

18.16 ........... Disqualification ...................................... 18.31 .............. Disqualification.

18.17 ........... Legal assistance ................................... 18.35 .............. Legal assistance.

Parties and Representatives 

18.20 ........... Parties to a proceeding ......................... 18.10 .............. Parties, how designated.

18.21 ........... Party appearance and participation ...... 18.39/18.34(a) 18.39, Waiver of right to appear and 

failure to participate or to appear— 

text was incorporated into proposed 

‘‘participation’’ rule.

18.22 ........... Representatives .................................... 18.34 .............. Representatives.

18.23 ........... Disqualification of representatives.

18.24 ........... Briefs from amicus curiae ..................... 18.12 .............. Amicus curiae.

Service, Format and Timing of Filings and Other Papers 

18.30 ........... Service and filing ................................... 18.3 ................ Service and filing ................................... Fed. R. Civ. P. 5. 

18.31 ........... Privacy protection for filings and exhibits......................... ................................................................ Fed. R. Civ. P. 5.2. 

18.32 ........... Computing and extending time ............. 18.4 ................ Time computations ................................ Fed. R. Civ. P. 6. 

18.33 ........... Motions and other papers ..................... 18.6 ................ Motions and requests ............................ Fed. R. Civ. P. 7(b) & 

43(c). 

18.34 ........... Format of papers filed.

18.35 ........... Signing motions and other papers; representations to the judge; sanctions......................... ................................................................ Fed. R. Civ. P. 11. 

18.36 ........... Amendments after referral to the Office 

of Administrative Law Judges.

18.5 ................ Responsive pleadings—answer and request for hearings.

Prehearing Procedure 

18.40 ........... Notice of hearing ................................... 18.27 .............. Notice of hearing.

18.41 ........... Continuances and changes in place of 

hearing.

18.28 .............. Continuances.

18.42 ........... Expedited proceedings .......................... 18.42 .............. Expedited proceedings.

18.43 ........... Consolidation; separate hearings ......... 18.11 .............. Consolidation of hearings ..................... Fed. R. Civ. P. 42. 


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New section New section title Old section Old section title Federal Rule of 

Civil Procedure 

18.44 ........... Prehearing conference .......................... 18.8 ................ Prehearing conferences ........................ Fed. R. Civ. P. 16. 

Disclosure and Discovery 

18.50 ........... General provisions governing disclosure and discovery......................... ................................................................ Fed. R. Civ. P. 26 (a), (d), 

(f), (g). 

18.51 ........... Discovery scope and limits ................... 18.14 .............. Scope of discovery ................................ Fed. R. Civ. P. 26 (b). 

18.52 ........... Protective orders ................................... 18.15 .............. Protective orders ................................... Fed. R. Civ. P. 26 (c). 

18.53 ........... Supplementing disclosures and responses.18.16 .............. Supplementation of responses ............. Fed. R. Civ. P.26 (e). 

18.54 ........... Stipulations about discovery and procedure.18.17 .............. Stipulations regarding discovery ........... Fed. R. Civ. P. 29. 

18.55 ........... Using depositions at hearings ............... 18.23 .............. Use of depositions at hearings ............. Fed. R. Civ. P. 32. 

18.56 ........... Subpoena .............................................. 18.24 .............. Subpoenas ............................................ Fed. R. Civ. P. 45. 

18.57 ........... Failure to make disclosures or to cooperate in discovery; sanctions.18.21 .............. Motion to compel discovery .................. Fed. R. Civ. P. 37. 

Types of Discovery 

18.60 ........... Interrogatories to parties ....................... 18.18 .............. Written interrogatories to parties/ .......... Fed. R. Civ. P. 33. 

18.61 ........... Producing documents, electronically 

stored information, and tangible 

things, or entering onto land, for inspection and other purposes.

18.19 .............. Production of documents and other evidence; entry upon land for inspection 

and other purposes; and physical 

and mental examination.

Fed. R. Civ. P. 34. 

18.62 ........... Physical and mental examinations ....... 18.19 .............. Production of documents and other evidence; entry upon land for inspection 

and other purposes; and physical 

and mental examination.

Fed. R. Civ. P. 35. 

18.63 ........... Requests for admission ........................ 18.20 .............. Admissions ............................................ Fed. R. Civ. P. 36. 

18.64 ........... Depositions by oral examination ........... 18.22 .............. Depositions by oral examinations ......... Fed. R. Civ. P. 30. 

18.65 ........... Depositions by written questions .......... ........................ ................................................................ Fed. R. Civ. P. 31. 

Disposition Without Hearing 

18.70 ........... Motions for dispositive action.

18.71 ........... Approval of settlement or consent findings.18.9.

18.72 ........... Summary decision ................................. 18.40/18.41 .... 18.40, Motion for summary decision 

merged with 18.41, Summary decision.

Fed. R. Civ. P. 56. 

Hearing 

18.80 ........... Prehearing statement ............................ 18.7 ................ Prehearing statements.

18.81 ........... Formal hearing ...................................... 18.43 .............. Formal hearings .................................... Fed. R. Civ. P. 43(a). 

18.82 ........... Exhibits .................................................. 18.47/18.48 

18.49/18.50.

Exhibits/records in other proceedings/

designation of parts of documents/

authenticity.

18.83 ........... Stipulations ............................................ 18.51 .............. Stipulations.

18.84 ........... Official notice ......................................... 18.45 .............. Official notice.

18.85 ........... Privileged, sensitive, or classified material.18.46/18.56 .... In camera and protective orders/restricted access.

18.86 ........... Hearing room conduct ........................... 18.37 .............. Hearing room conduct.

18.87 ........... Standards of conduct ............................ 18.36 .............. Standards of conduct.

18.88 ........... Transcript of proceedings ..................... 18.52 .............. Record of hearings.

Post Hearing 

18.90 ........... Closing the record; subsequent motions.18.54/18.55 .... Closing the record /receipt of documents after hearing.

18.91 ........... Post-hearing brief .................................. 18.57 .............. Decision of the administrative law 

judge and post-hearing briefs.

18.92 ........... Decision and order ................................ 18.57 .............. Decision of the administrative law 

judge and post-hearing briefs.

18.93 ........... Motion for reconsideration .................... ........................ ................................................................ Fed. R. Civ. P. 59 (e). 

18.94 ........... Indicative ruling on a motion for relief 

that is barred by a pending petition 

for review.

........................ ................................................................ Fed. R. Civ. P. 62.1. 

18.95 ........... Review of Decision ............................... 18.58 .............. Appeals.

Deleted Sections 

Deleted .................................................. 18.13 .............. Discovery methods.

Deleted .................................................. 18.32 .............. Separation of functions.


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New section New section title Old section Old section title Federal Rule of 

Civil Procedure 

Deleted .................................................. 18.33 .............. Expedition.

Deleted .................................................. 18.53 .............. Closing of hearings.

Deleted .................................................. 18.59 .............. Certification of official record.

List of Subjects in 29 CFR Part 18 

Administrative practice and 

procedure, Labor. 

Signed: At Washington, DC, this 7th of 

May, 2015. 

Thomas E. Perez, 

Secretary of Labor. 

For the reasons set forth in the 

preamble, amend part 18 of title 29 of 

the Code of Federal Regulations as 

follows: 

PART 18—RULES OF PRACTICE AND 

PROCEDURE FOR ADMINISTRATIVE 

HEARINGS BEFORE THE OFFICE OF 

ADMINISTRATIVE LAW JUDGES 

■ 1. The authority citation for part 18 

continues to read as follows: 

Authority: 5 U.S.C. 301; 5 U.S.C. 551–553; 

5 U.S.C. 571 note; E.O. 12778; 57 FR 7292. 

■ 2. Revise subpart A to read as follows: 

Subpart A—General 

Sec. 

General Provisions 

18.10 Scope and purpose. 

18.11 Definitions. 

18.12 Proceedings before administrative 

law judge. 

18.13 Settlement judge procedure. 

18.14 Ex parte communication. 

18.15 Substitution of administrative law 

judge. 

18.16 Disqualification. 

18.17 Legal assistance. 

Parties and Representatives 

18.20 Parties to a proceeding. 

18.21 Party appearance and participation. 

18.22 Representatives. 

18.23 Disqualification of representatives. 

18.24 Briefs from amicus curiae. 

Service, Format, and Timing of Filings and 

Other Papers 

18.30 Service and filing. 

18.31 Privacy protection for filings and 

exhibits. 

18.32 Computing and extending time. 

18.33 Motions and other papers. 

18.34 Format of papers filed. 

18.35 Signing motions and other papers; 

representations to the judge; sanctions. 

18.36 Amendments after referral to the 

Office of Administrative Law Judges. 

Prehearing Procedure 

18.40 Notice of hearing. 

18.41 Continuances and changes in place of 

hearing. 

18.42 Expedited proceedings. 

18.43 Consolidation; separate hearings. 

18.44 Prehearing conference. 

Disclosure and Discovery 

18.50 General provisions governing 

disclosure and discovery. 

18.51 Discovery scope and limits. 

18.52 Protective orders. 

18.53 Supplementing disclosures and 

responses. 

18.54 Stipulations about discovery 

procedure. 

18.55 Using depositions at hearings. 

18.56 Subpoena. 

18.57 Failure to make disclosures or to 

cooperate in discovery; sanctions. 

Types of Discovery 

18.60 Interrogatories to parties. 

18.61 Producing documents, electronically 

stored information, and tangible things, 

or entering onto land, for inspection and 

other purposes. 

18.62 Physical and mental examinations. 

18.63 Requests for admission. 

18.64 Depositions by oral examination. 

18.65 Depositions by written questions. 

Disposition Without Hearing 

18.70 Motions for dispositive action. 

18.71 Approval of settlement or consent 

findings. 

18.72 Summary decision. 

Hearing 

18.80 Prehearing statement. 

18.81 Formal hearing. 

18.82 Exhibits. 

18.83 Stipulations. 

18.84 Official notice. 

18.85 Privileged, sensitive, or classified 

material. 

18.86 Hearing room conduct. 

18.87 Standards of conduct. 

18.88 Transcript of proceedings. 

Post Hearing 

18.90 Closing the record; subsequent 

motions. 

18.91 Post-hearing brief. 

18.92 Decision and order. 

18.93 Motion for reconsideration. 

18.94 Indicative ruling on a motion for 

relief that is barred by a pending petition 

for review. 

18.95 Review of decision 

General Provisions 

§ 18.10 Scope and purpose. 

(a) In general. These rules govern the 

procedure in proceedings before the 

United States Department of Labor, 

Office of Administrative Law Judges. 

They should be construed and 

administered to secure the just, speedy, 

and inexpensive determination of every 

proceeding. To the extent that these 

rules may be inconsistent with a 

governing statute, regulation, or 

executive order, the latter controls. If a 

specific Department of Labor regulation 

governs a proceeding, the provisions of 

that regulation apply, and these rules 

apply to situations not addressed in the 

governing regulation. The Federal Rules 

of Civil Procedure (FRCP) apply in any 

situation not provided for or controlled 

by these rules, or a governing statute, 

regulation, or executive order. 

(b) Type of proceeding. Unless the 

governing statute, regulation, or 

executive order prescribes a different 

procedure, proceedings follow the 

Administrative Procedure Act, 5 U.S.C. 

551 through 559. 

(c) Waiver, modification, and 

suspension. Upon notice to all parties, 

the presiding judge may waive, modify, 

or suspend any rule under this subpart 

when doing so will not prejudice a party 

and will serve the ends of justice. 

§ 18.11 Definitions. 

For purposes of these rules, these 

definitions supplement the definitions 

in the Administrative Procedure Act, 5 

U.S.C. 551. 

Calendar call means a meeting in 

which the judge calls cases awaiting 

hearings, determines case status, and 

assigns a hearing date and time. 

Chief Judge means the Chief 

Administrative Law Judge of the United 

States Department of Labor Office of 

Administrative Law Judges and judges 

to whom the Chief Judge delegates 

authority. 

Docket clerk means the Chief Docket 

Clerk at the Office of Administrative 

Law Judges in Washington, DC. But 

once a case is assigned to a judge in a 

district office, docket clerk means the 

docket staff in that office. 

Hearing means that part of a 

proceeding consisting of a session to 

decide issues of fact or law that is 

recorded and transcribed and provides 

the opportunity to present evidence or 

argument. 

Judge means an administrative law 

judge appointed under the provisions of 

5 U.S.C. 3105. 

Order means the judge’s disposition 

of one or more procedural or substantive 

issues, or of the entire matter. 

Proceeding means an action before the 

Office of Administrative Law Judges 


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that creates a record leading to an 

adjudication or order. 

Representative means any person 

permitted to represent another in a 

proceeding before the Office of 

Administrative Law Judges. 

§ 18.12 Proceedings before administrative 

law judge. 

(a) Designation. The Chief Judge 

designates the presiding judge for all 

proceedings. 

(b) Authority. In all proceedings 

under this part, the judge has all powers 

necessary to conduct fair and impartial 

proceedings, including those described 

in the Administrative Procedure Act, 5 

U.S.C. 556. Among them is the power 

to: 

(1) Regulate the course of proceedings 

in accordance with applicable statute, 

regulation or executive order; 

(2) Administer oaths and affirmations 

and examine witnesses; 

(3) Compel the production of 

documents and appearance of witnesses 

within a party’s control; 

(4) Issue subpoenas authorized by 

law; 

(5) Rule on offers of proof and receive 

relevant evidence; 

(6) Dispose of procedural requests and 

similar matters; 

(7) Terminate proceedings through 

dismissal or remand when not 

inconsistent with statute, regulation, or 

executive order; 

(8) Issue decisions and orders; 

(9) Exercise powers vested in the 

Secretary of Labor that relate to 

proceedings before the Office of 

Administrative Law Judges; and 

(10) Where applicable take any 

appropriate action authorized by the 

FRCP. 

§ 18.13 Settlement judge procedure. 

(a) How initiated. The Office of 

Administrative Law Judges provides 

settlement judges to aid the parties in 

resolving the matter that is the subject 

of the controversy. Upon a joint request 

by the parties or upon referral by the 

judge when no party objects, the Chief 

Judge may appoint a settlement judge. A 

settlement judge will not be appointed 

when settlement proceedings would be 

inconsistent with a statute, regulation, 

or executive order. 

(b) Appointment. The Chief Judge has 

discretion to appoint a settlement judge, 

who must be an active or retired judge. 

The settlement judge will not be 

appointed to hear and decide the case 

or approve the settlement without the 

parties’ consent and the approval of the 

Chief Judge. 

(c) Duration of settlement proceeding. 

Unless the Chief Judge directs 

otherwise, settlement negotiations 

under this section must be completed 

within 60 days from the date of the 

settlement judge’s appointment. The 

settlement judge may request that the 

Chief Judge extend the appointment. 

The negotiations will be terminated if a 

party withdraws from participation, or if 

the settlement judge determines that 

further negotiations would be 

unproductive or inappropriate. 

(d) Powers of the settlement judge. 

The settlement judge may convene 

settlement conferences; require the 

parties or their representatives to attend 

with full authority to settle any 

disputes; and impose other reasonable 

requirements to expedite an amicable 

resolution of the case. 

(e) Stay of proceedings before 

presiding judge. The appointment of a 

settlement judge does not stay any 

aspect of the proceeding before the 

presiding judge. Any motion to stay 

must be directed to the presiding judge. 

(f) Settlement conferences. Settlement 

conferences may be conducted by 

telephone, videoconference or in person 

at the discretion of the settlement judge 

after considering the nature of the case, 

location of the participants, availability 

of technology, and efficiency of 

administration. 

(g) Confidentiality. All discussions 

with the settlement judge are 

confidential; none may be recorded or 

transcribed. The settlement judge must 

not disclose any confidential 

communications made during 

settlement proceedings, except as 

required by statute, executive order, or 

court order. The settlement judge may 

not be subpoenaed or called as a witness 

in any hearing of the case or any 

subsequent administrative proceedings 

before the Department to testify to 

statements made or conduct during the 

settlement discussions. 

(h) Report. The parties must promptly 

inform the presiding judge of the 

outcome of the settlement negotiations. 

If a settlement is reached, the parties 

must submit the required documents to 

the presiding judge within 14 days of 

the conclusion of settlement discussions 

unless the presiding judge orders 

otherwise. 

(i) Non-reviewable decisions. Whether 

a settlement judge should be appointed, 

the selection of a particular settlement 

judge, and the termination of 

proceedings under this section are 

matters not subject to review by 

Department officials. 

§ 18.14 Ex parte communication. 

The parties, their representatives, or 

other interested persons must not 

engage in ex parte communications on 

the merits of a case with the judge. 

§ 18.15 Substitution of administrative law 

judge. 

(a) Substitution during hearing. If the 

judge is unable to complete a hearing, 

a successor judge designated pursuant 

to § 18.12 may proceed upon certifying 

familiarity with the record and 

determining that the case may be 

completed without prejudice to the 

parties. The successor judge must, at a 

party’s request, recall any witness 

whose testimony is material and 

disputed and who is available to testify 

again without undue burden. The 

successor judge may also recall any 

other witness. 

(b) Substitution following hearing. If 

the judge is unable to proceed after the 

hearing is concluded, the successor 

judge appointed pursuant to § 18.12 

may issue a decision and order based 

upon the existing record after notifying 

the parties and giving them an 

opportunity to respond. Within 14 days 

of receipt of the judge’s notice, a party 

may file an objection to the judge 

issuing a decision based on the existing 

record. If no objection is filed, the 

objection is considered waived. Upon 

good cause shown, the judge may order 

supplemental proceedings. 

§ 18.16 Disqualification. 

(a) Disqualification on judge’s 

initiative. A judge must withdraw from 

a proceeding whenever he or she 

considers himself or herself 

disqualified. 

(b) Request for disqualification. A 

party may file a motion to disqualify the 

judge. The motion must allege grounds 

for disqualification, and include any 

appropriate supporting affidavits, 

declarations or other documents. The 

presiding judge must rule on the motion 

in a written order that states the grounds 

for the ruling. 

§ 18.17 Legal assistance. 

The Office of Administrative Law 

Judges does not appoint representatives, 

refer parties to representatives, or 

provide legal assistance. 

Parties and Representatives 

§ 18.20 Parties to a proceeding. 

A party seeking original relief or 

action is designated a complainant, 

claimant or plaintiff, as appropriate. A 

party against whom relief or other 

action is sought is designated a 

respondent or defendant, as appropriate. 

When participating in a proceeding, the 

applicable Department of Labor’s agency 

is a party or party-in-interest. 


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§ 18.21 Party appearance and 

participation. 

(a) In general. A party may appear and 

participate in the proceeding in person 

or through a representative. 

(b) Waiver of participation. By filing 

notice with the judge, a party may waive 

the right to participate in the hearing or 

the entire proceeding. When all parties 

waive the right to participate in the 

hearing, the judge may issue a decision 

and order based on the pleadings, 

evidence, and briefs. 

(c) Failure to appear. When a party 

has not waived the right to participate 

in a hearing, conference or proceeding 

but fails to appear at a scheduled 

hearing or conference, the judge may, 

after notice and an opportunity to be 

heard, dismiss the proceeding or enter 

a decision and order without further 

proceedings if the party fails to establish 

good cause for its failure to appear. 

§ 18.22 Representatives. 

(a) Notice of appearance. When first 

making an appearance, each 

representative must file a notice of 

appearance that indicates on whose 

behalf the appearance is made and the 

proceeding name and docket number. 

Any attorney representative must 

include in the notice of appearance the 

license registration number(s) assigned 

to the attorney. 

(b) Categories of representation; 

admission standards—(1) Attorney 

representative. Under these rules, 

‘‘attorney’’ or ‘‘attorney representative’’ 

means an individual who has been 

admitted to the bar of the highest court 

of a State, Commonwealth, or Territory 

of the United States, or the District of 

Columbia. 

(i) Attorney in good standing. An 

attorney who is in good standing in his 

or her licensing jurisdiction may 

represent a party or subpoenaed witness 

before the Office of Administrative Law 

Judges. The filing of the Notice of 

Appearance required in paragraph (a) of 

this section constitutes an attestation 

that: 

(A) The attorney is a member of a bar 

in good standing of the highest court of 

a State, Commonwealth, or Territory of 

the United States, or the District of 

Columbia where the attorney has been 

licensed to practice law; and 

(B) No disciplinary proceeding is 

pending against the attorney in any 

jurisdiction where the attorney is 

licensed to practice law. 

(ii) Attorney not in good standing. An 

attorney who is not in good standing in 

his or her licensing jurisdiction may not 

represent a party or subpoenaed witness 

before the Office of Administrative Law 

Judges, unless he or she obtains the 

judge’s approval. Such an attorney must 

file a written statement that establishes 

why the failure to maintain good 

standing is not disqualifying. The judge 

may deny approval for the appearance 

of such an attorney after providing 

notice and an opportunity to be heard. 

(iii) Disclosure of discipline. An 

attorney representative must promptly 

disclose to the judge any action 

suspending, enjoining, restraining, 

disbarring, or otherwise currently 

restricting the attorney in the practice of 

law in any jurisdiction where the 

attorney is licensed to practice law. 

(2) Non-attorney representative. An 

individual who is not an attorney as 

defined by paragraph (b)(1) of this 

section may represent a party or 

subpoenaed witness upon the judge’s 

approval. The individual must file a 

written request to serve as a nonattorney representative that sets forth 

the name of the party or subpoenaed 

witness represented and certifies that 

the party or subpoenaed witness desires 

the representation. The judge may 

require that the representative establish 

that he or she is subject to the laws of 

the United States and possesses 

communication skills, knowledge, 

character, thoroughness and preparation 

reasonably necessary to render 

appropriate assistance. The judge may 

inquire as to the qualification or ability 

of a non-attorney representative to 

render assistance at any time. The judge 

may deny the request to serve as nonattorney representative after providing 

the party or subpoenaed witness with 

notice and an opportunity to be heard. 

(c) Duties. A representative must be 

diligent, prompt, and forthright when 

dealing with parties, representatives and 

the judge, and act in a manner that 

furthers the efficient, fair and orderly 

conduct of the proceeding. An attorney 

representative must adhere to the 

applicable rules of conduct for the 

jurisdiction(s) in which the attorney is 

admitted to practice. 

(d) Prohibited actions. A 

representative must not: 

(1) Threaten, coerce, intimidate, 

deceive or knowingly mislead a party, 

representative, witness, potential 

witness, judge, or anyone participating 

in the proceeding regarding any matter 

related to the proceeding; 

(2) Knowingly make or present false 

or misleading statements, assertions or 

representations about a material fact or 

law related to the proceeding; 

(3) Unreasonably delay, or cause to be 

delayed without good cause, any 

proceeding; or 

(4) Engage in any other action or 

behavior prejudicial to the fair and 

orderly conduct of the proceeding. 

(e) Withdrawal of appearance. A 

representative who desires to withdraw 

after filing a notice of appearance or a 

party desiring to withdraw the 

appearance of a representative must file 

a motion with the judge. The motion 

must state that notice of the withdrawal 

has been given to the party, client or 

representative. The judge may deny a 

representative’s motion to withdraw 

when necessary to avoid undue delay or 

prejudice to the rights of a party. 

§ 18.23 Disqualification of representatives. 

(a) Disqualification—(1) Grounds for 

disqualification. Representatives 

qualified under § 18.22 may be 

disqualified for: 

(i) Suspension of a license to practice 

law or disbarment from the practice of 

law by any court or agency of the United 

States, highest court of a State, 

Commonwealth, or Territory of the 

United States, or the District of 

Columbia; 

(ii) Disbarment from the practice of 

law on consent or resignation from the 

bar of a court or agency while an 

investigation into an allegation of 

misconduct is pending; or 

(iii) Committing an act, omission, or 

contumacious conduct that violates 

these rules, an applicable statute, an 

applicable regulation, or the judge’s 

order(s). 

(2) Disqualification procedure. The 

Chief Judge must provide notice and an 

opportunity to be heard as to why the 

representative should not be 

disqualified from practice before the 

Office of Administrative Law Judges. 

The notice will include a copy of the 

document that provides the grounds for 

the disqualification. Unless otherwise 

directed, any response must be filed 

within 21 days of service of the notice. 

The Chief Judge’s determination must 

be based on the reliable, probative and 

substantial evidence of record, 

including the notice and response. 

(b) Notification of disqualification 

action. When an attorney representative 

is disqualified, the Chief Judge will 

notify the jurisdiction(s) in which the 

attorney is licensed to practice and the 

National Lawyer Regulatory Data Bank 

maintained by the American Bar 

Association Standing Committee on 

Professional Discipline, by providing a 

copy of the decision and order. 

(c) Application for reinstatement. A 

representative disqualified under this 

section may be reinstated by the Chief 

Judge upon application. At the 

discretion of the Chief Judge, 

consideration of an application for 

reinstatement may be limited to written 

submissions or may be referred for 


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28788 Federal Register / Vol. 80, No. 96 / Tuesday, May 19, 2015 / Rules and Regulations 

further proceedings before the Chief 

Judge. 

§ 18.24 Briefs from amicus curiae. 

The United States or an officer or 

agency thereof, or a State, Territory, 

Commonwealth, or the District of 

Columbia may file an amicus brief 

without the consent of the parties or 

leave of the judge. Any other amicus 

curiae may file a brief only by leave of 

the judge, upon the judge’s request, or 

if the brief states that all parties have 

consented to its filing. A request for 

leave to file an amicus brief must be 

made by written motion that states the 

interest of the movant in the proceeding. 

The deadline for submission of an 

amicus brief will be set by the presiding 

judge. 

Service, Format, and Timing of Filings 

and Other Papers 

§ 18.30 Service and filing. 

(a) Service on parties—(1) In general. 

Unless these rules provide otherwise, all 

papers filed with OALJ or with the 

judge must be served on every party. 

(2) Service: how made—(i) Serving a 

party’s representative. If a party is 

represented, service under this section 

must be made on the representative. The 

judge also may order service on the 

party. 

(ii) Service in general. A paper is 

served under this section by: 

(A) Handing it to the person; 

(B) Leaving it; 

(1) At the person’s office with a clerk 

or other person in charge or, if no one 

is in charge, in a conspicuous place in 

the office; or 

(2) If the person has no office or the 

office is closed, at the person’s dwelling 

or usual place of abode with someone of 

suitable age and discretion who resides 

there. 

(C) Mailing it to the person’s last 

known address—in which event service 

is complete upon mailing; 

(D) Leaving it with the docket clerk if 

the person has no known address; 

(E) Sending it by electronic means if 

the person consented in writing—in 

which event service is complete upon 

transmission, but is not effective if the 

serving party learns that it did not reach 

the person to be served; or 

(F) Delivering it by any other means 

that the person consented to in 

writing—in which event service is 

complete when the person making 

service delivers it to the agency 

designated to make delivery. 

(3) Certificate of service. A certificate 

of service is a signed written statement 

that the paper was served on all parties. 

The statement must include: 

(i) The title of the document; 

(ii) The name and address of each 

person or representative being served; 

(iii) The name of the party filing the 

paper and the party’s representative, if 

any; 

(iv) The date of service; and 

(v) How the paper was served. 

(b) Filing with Office of 

Administrative Law Judges—(1) 

Required filings. Any paper that is 

required to be served must be filed 

within a reasonable time after service 

with a certificate of service. But 

disclosures under § 18.50(c) and the 

following discovery requests and 

responses must not be filed until they 

are used in the proceeding or the judge 

orders filing: 

(i) Notices of deposition, 

(ii) Depositions, 

(iii) Interrogatories, 

(iv) Requests for documents or 

tangible things or to permit entry onto 

land; 

(v) Requests for admission, and 

(vi) The notice (and the related copy 

of the subpoena) that must be served on 

the parties under rule 18.56(b)(1) before 

a ‘‘documents only’’ subpoena may be 

served on the person commended to 

produce the material. 

(2) Filing: when made—in general. A 

paper is filed when received by the 

docket clerk or the judge during a 

hearing. 

(3) Filing how made. A paper may be 

filed by mail, courier service, hand 

delivery, facsimile or electronic 

delivery. 

(i) Filing by facsimile—(A) When 

permitted. A party may file by facsimile 

only as directed or permitted by the 

judge. If a party cannot obtain prior 

permission because the judge is 

unavailable, a party may file by 

facsimile up to 12 pages, including a 

statement of the circumstances 

precluding filing by delivery or mail. 

Based on the statement, the judge may 

later accept the document as properly 

filed at the time transmitted. 

(B) Cover sheet. Filings by facsimile 

must include a cover sheet that 

identifies the sender, the total number 

of pages transmitted, and the matter’s 

docket number and the document’s title. 

(C) Retention of the original 

document. The original signed 

document will not be substituted into 

the record unless required by law or the 

judge. 

(ii) Any party filing a facsimile of a 

document must maintain the original 

document and transmission record until 

the case is final. A transmission record 

is a paper printed by the transmitting 

facsimile machine that states the 

telephone number of the receiving 

machine, the number of pages sent, the 

transmission time and an indication that 

no error in transmission occurred. 

(iii) Upon a party’s request or judge’s 

order, the filing party must provide for 

review the original transmitted 

document from which the facsimile was 

produced. 

(4) Electronic filing, signing, or 

verification. A judge may allow papers 

to be filed, signed, or verified by 

electronic means. 

§ 18.31 Privacy protection for filings and 

exhibits. 

(a) Redacted filings and exhibits. 

Unless the judge orders otherwise, in an 

electronic or paper filing or exhibit that 

contains an individual’s social-security 

number, taxpayer-identification 

number, or birth date, the name of an 

individual known to be a minor, or a 

financial-account number, the party or 

nonparty making the filing must redact 

all such information, except: 

(1) The last four digits of the socialsecurity number and taxpayeridentification number; 

(2) The year of the individual’s birth; 

(3) The minor’s initials; and 

(4) The last four digits of the 

financial-account number. 

(b) Exemptions from the redaction 

requirement. The redaction requirement 

does not apply to the following: 

(1) The record of an administrative or 

agency proceeding; 

(2) The official record of a state-court 

proceeding; 

(3) The record of a court or tribunal, 

if that record was not subject to the 

redaction requirement when originally 

filed; and 

(4) A filing or exhibit covered by 

paragraph (c) of this section. 

(c) Option for filing a reference list. A 

filing that contains redacted information 

may be filed together with a reference 

list that identifies each item of redacted 

information and specifies an 

appropriate identifier that uniquely 

corresponds to each item listed. The 

reference list must be filed under seal 

and may be amended as of right. Any 

reference in the case to a listed 

identifier will be construed to refer to 

the corresponding item of information. 

(d) Waiver of protection of identifiers. 

A person waives the protection of 

paragraph (a) of this section as to the 

person’s own information by filing or 

offering it without redaction and not 

under seal. 

(e) Protection of material. For good 

cause, the judge may order protection of 

material pursuant to §§ 18.85 and 18.52. 

§ 18.32 Computing and extending time. 

(a) Computing time. The following 

rules apply in computing any time 


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period specified in these rules, a judge’s 

order, or in any statute, regulation, or 

executive order that does not specify a 

method of computing time. 

(1) When the period is stated in days 

or a longer unit of time: 

(i) Exclude the day of the event that 

triggers the period; 

(ii) Count every day, including 

intermediate Saturdays, Sundays, and 

legal holidays; and 

(iii) Include the last day of the period, 

but if the last day is a Saturday, Sunday, 

or legal holiday, the period continues to 

run until the end of the next day that 

is not a Saturday, Sunday, or legal 

holiday. 

(2) ‘‘Last day’’ defined. Unless a 

different time is set by a statute, 

regulation, executive order, or judge’s 

order, the ‘‘last day’’ ends at 4:30 p.m. 

local time where the event is to occur. 

(3) ‘‘Next day’’ defined. The ‘‘next 

day’’ is determined by continuing to 

count forward when the period is 

measured after an event and backward 

when measured before an event. 

(4) ‘‘Legal holiday’’ defined. ‘‘Legal 

holiday’’ means the day set aside by 

statute for observing New Year’s Day, 

Martin Luther King Jr.’s Birthday, 

Washington’s Birthday, Memorial Day, 

Independence Day, Labor Day, 

Columbus Day, Veterans’ Day, 

Thanksgiving Day, or Christmas Day; 

and any day on which the district office 

in which the document is to be filed is 

closed or otherwise inaccessible. 

(b) Extending time. When an act may 

or must be done within a specified time, 

the judge may, for good cause, extend 

the time: 

(1) With or without motion or notice 

if the judge acts, or if a request is made, 

before the original time or its extension 

expires; or 

(2) On motion made after the time has 

expired if the party failed to act because 

of excusable neglect. 

(c) Additional time after certain kinds 

of service. When a party may or must act 

within a specified time after service and 

service is made under 

§ 18.30(a)(2)(B)(iii) or (iv), 3 days are 

added after the period would otherwise 

expire under paragraph (a) of this 

section. 

§ 18.33 Motions and other papers. 

(a) In general. A request for an order 

must be made by motion. The motion 

must: 

(1) Be in writing, unless made during 

a hearing; 

(2) State with particularity the 

grounds for seeking the order; 

(3) State the relief sought; 

(4) Unless the relief sought has been 

agreed to by all parties, be accompanied 

by affidavits, declarations, or other 

evidence; and 

(5) If required by paragraph (c)(4) of 

this section, include a memorandum of 

points and authority supporting the 

movant’s position. 

(b) Form. The rules governing 

captions and other matters of form 

apply to motions and other requests. 

(c) Written motion before hearing. (1) 

A written motion before a hearing must 

be served with supporting papers, at 

least 21 days before the time specified 

for the hearing, with the following 

exceptions: 

(i) When the motion may be heard ex 

parte; 

(ii) When these rules or an 

appropriate statute, regulation, or 

executive order set a different time; or 

(iii) When an order sets a different 

time. 

(2) A written motion served within 21 

days before the hearing must state why 

the motion was not made earlier. 

(3) A written motion before hearing 

must state that counsel conferred, or 

attempted to confer, with opposing 

counsel in a good faith effort to resolve 

the motion’s subject matter, and 

whether the motion is opposed or 

unopposed. A statement of consultation 

is not required with pro se litigants or 

with the following motions: 

(i) To dismiss; 

(ii) For summary decision; and 

(iii) Any motion filed as ‘‘joint,’’ 

‘‘agreed,’’ or ‘‘unopposed.’’ 

(4) Unless the motion is unopposed, 

the supporting papers must include 

affidavits, declarations or other proof to 

establish the factual basis for the relief. 

For a dispositive motion and a motion 

relating to discovery, a memorandum of 

points and authority must also be 

submitted. A judge may direct the 

parties file additional documents in 

support of any motion. 

(d) Opposition or other response to a 

motion filed prior to hearing. A party to 

the proceeding may file an opposition or 

other response to the motion within 14 

days after the motion is served. The 

opposition or response may be 

accompanied by affidavits, declarations, 

or other evidence, and a memorandum 

of the points and authorities supporting 

the party’s position. Failure to file an 

opposition or response within 14 days 

after the motion is served may result in 

the requested relief being granted. 

Unless the judge directs otherwise, no 

further reply is permitted and no oral 

argument will be heard prior to hearing. 

(e) A motions made at hearing. A 

motion made at a hearing may be stated 

orally unless the judge determines that 

a written motion or response would best 

serve the ends of justice. 

(f) Renewed or repeated motions. A 

motion seeking the same or 

substantially similar relief previously 

denied, in whole or in part, must 

include the following information: 

(1) The earlier motion(s), 

(2) When the respective motion was 

made, 

(3) The judge to whom the motion 

was made, 

(4) The earlier ruling(s), and 

(5) The basis for the current motion. 

(g) Motion hearing. The judge may 

order a hearing to take evidence or oral 

argument on a motion. 

§ 18.34 Format of papers filed. 

Every paper filed must be printed in 

black ink on 8.5 x 11-inch opaque white 

paper and begin with a caption that 

includes: 

(a) The parties’ names, 

(b) A title that describes the paper’s 

purpose, and 

(c) The docket number assigned by 

the Office of Administrative Law Judges. 

If the Office has not assigned a docket 

number, the paper must bear the case 

number assigned by the Department of 

Labor agency where the matter 

originated. If the case number is an 

individual’s Social Security number 

then only the last four digits may be 

used. See § 18.31(a)(1). 

§ 18.35 Signing motions and other papers; 

representations to the judge; sanctions. 

(a) Date and signature. Every written 

motion and other paper filed with OALJ 

must be dated and signed by at least one 

representative of record in the 

representative’s name—or by a party 

personally if the party is unrepresented. 

The paper must state the signer’s 

address, telephone number, facsimile 

number and email address, if any. The 

judge must strike an unsigned paper 

unless the omission is promptly 

corrected after being called to the 

representative’s or party’s attention. 

(b) Representations to the judge. By 

presenting to the judge a written motion 

or other paper—whether by signing, 

filing, submitting, or later advocating 

it—the representative or unrepresented 

party certifies that to the best of the 

person’s knowledge, information, and 

belief, formed after an inquiry 

reasonable under the circumstances: 

(1) It is not being presented for any 

improper purpose, such as to harass, 

cause unnecessary delay, or needlessly 

increase the cost of the proceedings; 

(2) The claims, defenses, and other 

legal contentions are warranted by 

existing law or by a nonfrivolous 

argument for extending, modifying, or 

reversing existing law or for establishing 

new law; 


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(3) The factual contentions have 

evidentiary support or, if specifically so 

identified, will likely have evidentiary 

support after a reasonable opportunity 

for further investigation or discovery; 

and 

(4) The denials of factual contentions 

are warranted on the evidence or, if 

specifically so identified, are reasonably 

based on belief or a lack of information. 

(c) Sanctions—(1) In general. If, after 

notice and a reasonable opportunity to 

respond, the judge determines that 

paragraph (b) of this section has been 

violated, the judge may impose an 

appropriate sanction on any 

representative, law firm, or party that 

violated the rule or is responsible for the 

violation. Absent exceptional 

circumstances, a law firm must be held 

jointly responsible for a violation 

committed by its partner, associate, or 

employee. 

(2) Motion for sanctions. A motion for 

sanctions must be made separately from 

any other motion and must describe the 

specific conduct that allegedly violates 

paragraph (b) of this section. The 

motion must be served under § 18.30(a), 

but it must not be filed or be presented 

to the judge if the challenged paper, 

claim, defense, contention, or denial is 

withdrawn or appropriately corrected 

within 21 days after service or within 

another time the judge sets. 

(3) On the judge’s initiative. On his or 

her own, the judge may order a 

representative, law firm, or party to 

show cause why conduct specifically 

described in the order has not violated 

paragraph (b) of this section. 

(4) Nature of a sanction. A sanction 

imposed under this section may 

include, but is not limited to, striking 

part or all of the offending document, 

forbidding the filing of any further 

documents, excluding related evidence, 

admonishment, referral of counsel 

misconduct to the appropriate licensing 

authority, and including the sanctioned 

activity in assessing the quality of 

representation when determining an 

appropriate hourly rate and billable 

hours when adjudicating attorney fees. 

(5) Requirements for an order. An 

order imposing a sanction must describe 

the sanctioned conduct and explain the 

basis for the sanction. 

(d) Inapplicability to discovery. This 

section does not apply to disclosures 

and discovery requests, responses, 

objections, and motions under §§ 18.50 

through 18.65. 

§ 18.36 Amendments after referral to the 

Office of Administrative Law Judges. 

The judge may allow parties to amend 

and supplement their filings. 

Prehearing Procedure 

§ 18.40 Notice of hearing. 

(a) In general. Except when the 

hearing is scheduled by calendar call, 

the judge must notify the parties of the 

hearing’s date, time, and place at least 

14 days before the hearing. The notice 

is sent by regular, first-class mail, unless 

the judge determines that circumstances 

require service by certified mail or other 

means. The parties may agree to waive 

the 14-day notice for the hearing. 

(b) Date, time, and place. The judge 

must consider the convenience and 

necessity of the parties and the 

witnesses in selecting the date, time, 

and place of the hearing. 

§ 18.41 Continuances and changes in 

place of hearing. 

(a) By the judge. Upon reasonable 

notice to the parties, the judge may 

change the time, date, and place of the 

hearing. 

(b) By a party’s motion. A request by 

a party to continue a hearing or to 

change the place of the hearing must be 

made by motion. 

(1) Continuances. A motion for 

continuance must be filed promptly 

after the party becomes aware of the 

circumstances supporting the 

continuance. In exceptional 

circumstances, a party may orally 

request a continuance and must 

immediately notify the other parties of 

the continuance request. 

(2) Change in place of hearing. A 

motion to change the place of a hearing 

must be filed promptly. 

§ 18.42 Expedited proceedings. 

A party may move to expedite the 

proceeding. The motion must 

demonstrate the specific harm that 

would result if the proceeding is not 

expedited. If the motion is granted, the 

formal hearing ordinarily will not be 

scheduled with less than 7 days notice 

to the parties, unless all parties consent 

to an earlier hearing. 

§ 18.43 Consolidation; separate hearings. 

(a) Consolidation. If separate 

proceedings before the Office of the 

Administrative Law Judges involve a 

common question of law or fact, a judge 

may: 

(1) Join for hearing any or all matters 

at issue in the proceedings; 

(2) Consolidate the proceedings; or 

(3) Issue any other orders to avoid 

unnecessary cost or delay. 

(b) Separate hearings. For 

convenience, to avoid prejudice, or to 

expedite and economize, the judge may 

order a separate hearing of one or more 

issues. 

§ 18.44 Prehearing conference. 

(a) In general. The judge, with or 

without a motion, may order one or 

more prehearing conferences for such 

purposes as: 

(1) Expediting disposition of the 

proceeding; 

(2) Establishing early and continuing 

control so that the case will not be 

protracted because of lack of 

management; 

(3) Discouraging wasteful prehearing 

activities; 

(4) Improving the quality of the 

hearing through more thorough 

preparation; and 

(5) Facilitating settlement. 

(b) Scheduling. Prehearing 

conferences may be conducted in 

person, by telephone, or other means 

after reasonable notice of time, place 

and manner of conference has been 

given. 

(c) Participation. All parties must 

participate in prehearing conferences as 

directed by the judge. A represented 

party must authorize at least one of its 

attorneys or representatives to make 

stipulations and admissions about all 

matters that can reasonably be 

anticipated for discussion at the 

prehearing conference, including 

possible settlement. 

(d) Matters for consideration. At the 

conference, the judge may consider and 

take appropriate actions on the 

following matters: 

(1) Formulating and simplifying the 

issues, and eliminating frivolous claims 

or defenses; 

(2) Amending the papers that had 

framed the issues before the matter was 

referred for hearing; 

(3) Obtaining admissions and 

stipulations about facts and documents 

to avoid unnecessary proof, and ruling 

in advance on the admissibility of 

evidence; 

(4) Avoiding unnecessary proof and 

cumulative evidence, and limiting the 

number of expert or other witnesses; 

(5) Determining the appropriateness 

and timing of dispositive motions under 

§§ 18.70 and 18.72; 

(6) Controlling and scheduling 

discovery, including orders affecting 

disclosures and discovery under 

§§ 18.50 through 18.65; 

(7) Identifying witnesses and 

documents, scheduling the filing and 

exchange of any exhibits and prehearing 

submissions, and setting dates for 

further conferences and for the hearing; 

(8) Referring matters to a special 

master; 

(9) Settling the case and using special 

procedures to assist in resolving the 

dispute such as the settlement judge 

procedure under § 18.13, private 


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mediation, and other means authorized 

by statute or regulation; 

(10) Determining the form and content 

of prehearing orders; 

(11) Disposing of pending motions; 

(12) Adopting special procedures for 

managing potentially difficult or 

protracted proceedings that may involve 

complex issues, multiple parties, 

difficult legal questions, or unusual 

proof problems; 

(13) Consolidating or ordering 

separate hearings under § 18.43; 

(14) Ordering the presentation of 

evidence early in the proceeding on a 

manageable issue that might, on the 

evidence, be the basis for disposing of 

the proceeding; 

(15) Establishing a reasonable limit on 

the time allowed to present evidence; 

and 

(16) Facilitating in other ways the 

just, speedy, and inexpensive 

disposition of the proceeding. 

(e) Reporting. The judge may direct 

that the prehearing conference be 

recorded and transcribed. If the 

conference is not recorded, the judge 

should summarize the conference 

proceedings on the record at the hearing 

or by separate prehearing notice or 

order. 

Disclosure and Discovery 

§ 18.50 General provisions governing 

disclosure and discovery. 

(a) Timing and sequence of 

discovery—(1) Timing. A party may seek 

discovery at any time after a judge 

issues an initial notice or order. But if 

the judge orders the parties to confer 

under paragraph (b) of this section: 

(i) The time to respond to any 

pending discovery requests is extended 

until the time agreed in the discovery 

plan, or that the judge sets in resolving 

disputes about the discovery plan, and 

(ii) No party may seek additional 

discovery from any source before the 

parties have conferred as required by 

paragraph (b) of this section, except by 

stipulation. 

(2) Sequence. Unless, on motion, the 

judge orders otherwise for the parties’ 

and witnesses’ convenience and in the 

interests of justice: 

(i) Methods of discovery may be used 

in any sequence; and 

(ii) Discovery by one party does not 

require any other party to delay its 

discovery. 

(b) Conference of the parties; planning 

for discovery—(1) In general. The judge 

may order the parties to confer on the 

matters described in paragraphs (b)(2) 

and (3) of this section. 

(2) Conference content; parties’ 

responsibilities. In conferring, the 

parties must consider the nature and 

basis of their claims and defenses and 

the possibilities for promptly settling or 

resolving the case; make or arrange for 

the disclosures required by paragraph 

(c) of this section; discuss any issues 

about preserving discoverable 

information; and develop a proposed 

discovery plan. The representatives of 

record and all unrepresented parties 

that have appeared in the case are 

jointly responsible for arranging the 

conference, for attempting in good faith 

to agree on the proposed discovery plan, 

and for submitting to the judge within 

14 days after the conference a written 

report outlining the plan. The judge may 

order the parties or representatives to 

attend the conference in person. 

(3) Discovery plan. A discovery plan 

must state the parties’ views and 

proposals on: 

(i) What changes should be made in 

the timing, form, or requirement for 

disclosures under paragraph (c) of this 

section, including a statement of when 

initial disclosures were made or will be 

made; 

(ii) The subjects on which discovery 

may be needed, when discovery should 

be completed, and whether discovery 

should be conducted in phases or be 

limited to or focused on particular 

issues; 

(iii) Any issues about disclosure or 

discovery of electronically stored 

information, including the form or 

forms in which it should be produced; 

(iv) Any issues about claims of 

privilege or of protection as hearingpreparation materials, including—if the 

parties agree on a procedure to assert 

these claims after production—whether 

to ask the judge to include their 

agreement in an order; 

(v) What changes should be made in 

the limitations on discovery imposed 

under these rules and what other 

limitations should be imposed; and 

(vi) Any other orders that the judge 

should issue under § 18.52 or § 18.44. 

(c) Required disclosures—(1) Initial 

disclosure—(i) In general. Except as 

exempted by paragraph (c)(1)(ii) of this 

section or otherwise ordered by the 

judge, a party must, without awaiting a 

discovery request, provide to the other 

parties: 

(A) The name and, if known, the 

address and telephone number of each 

individual likely to have discoverable 

information—along with the subjects of 

that information—that the disclosing 

party may use to support its claims or 

defenses, unless the use would be solely 

for impeachment; 

(B) A copy—or a description by 

category and location—of all 

documents, electronically stored 

information, and tangible things that the 

disclosing party has in its possession, 

custody, or control and may use to 

support its claims or defenses, unless 

the use would be solely for 

impeachment; and 

(C) A computation of each category of 

damages claimed by the disclosing 

party—who must also make available 

for inspection and copying as under 

§ 18.61 the documents or other 

evidentiary material, unless privileged 

or protected from disclosure, on which 

each computation is based, including 

materials bearing on the nature and 

extent of injuries suffered. 

(ii) Proceedings exempt from initial 

disclosure. The following proceedings 

are exempt from initial disclosure: 

(A) A proceeding under 29 CFR part 

20 for review of an agency 

determination regarding the existence or 

amount of a debt, or the repayment 

schedule proposed by the agency; 

(B) A proceeding before the Board of 

Alien Labor Certification Appeals under 

the Immigration and Nationality Act; 

and 

(C) A proceeding under the 

regulations governing certification of H– 

2 non-immigrant temporary agricultural 

employment at 20 CFR part 655, subpart 

B; 

(D) A rulemaking proceeding under 

the Occupational Safety and Health Act 

of 1970; and 

(E) A proceeding for civil penalty 

assessments under Employee 

Retirement Income Security Act of 1974, 

29 U.S.C. 1132. 

(iii) Parties exempt from initial 

disclosure. The following parties are 

exempt from initial disclosure: 

(A) In a Black Lung benefits 

proceeding under 30 U.S.C. 901 et seq., 

the representative of the Office of 

Workers’ Compensation Programs of the 

Department of Labor, if an employer has 

been identified as the Responsible 

Operator and is a party to the 

proceeding, see 20 CFR 725.418(d); and 

(B) In a proceeding under the 

Longshore and Harbor Workers’ 

Compensation Act, 33 U.S.C. 901–950, 

or an associated statute such as the 

Defense Base Act, 42 U.S.C. 1651–1654, 

the representative of the Office of 

Workers’ Compensation Programs of the 

Department of Labor, unless the 

Solicitor of Labor or the Solicitor’s 

designee has elected to participate in 

the proceeding under 20 CFR 

702.333(b), or unless an employer or 

carrier has applied for relief under the 

special fund, as defined in 33 U.S.C. 

908(f). 

(iv) Time for initial disclosures—in 

general. A party must make the initial 

disclosures required by paragraph 


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(c)(1)(i) of this section within 21 days 

after an initial notice or order is entered 

acknowledging that the proceeding has 

been docketed at the OALJ unless a 

different time is set by stipulation or a 

judge’s order, or a party objects during 

the conference that initial disclosures 

are not appropriate in the proceeding 

and states the objection in the proposed 

discovery plan. In ruling on the 

objection, the judge must determine 

what disclosures, if any, are to be made 

and must set the time for disclosure. 

(v) Time for initial disclosures—for 

parties served or joined later. A party 

that is first served or otherwise joined 

later in the proceeding must make the 

initial disclosures within 21 days after 

being served or joined, unless a different 

time is set by stipulation or the judge’s 

order. Copies of all prior disclosures 

must be served on a newly served or 

joined party within 21 days of the 

service or joinder. 

(vi) Basis for initial disclosure; 

unacceptable excuses. A party must 

make its initial disclosures based on the 

information then reasonably available to 

it. A party is not excused from making 

its disclosures because it has not fully 

investigated the case or because it 

challenges the sufficiency of another 

party’s disclosures or because another 

party has not made its disclosures. 

(2) Disclosure of expert testimony—(i) 

In general. A party must disclose to the 

other parties the identity of any witness 

who may testify at hearing, either live 

or by deposition. The judge should set 

the time for the disclosure by prehearing 

order. 

(ii) Witnesses who must provide a 

written report. Unless otherwise 

stipulated or ordered by the judge, this 

disclosure must be accompanied by a 

written report—prepared and signed by 

the witness—if the witness is one 

retained or specially employed to 

provide expert testimony in the case or 

one whose duties as the party’s 

employee regularly involve giving 

expert testimony. The report must 

contain: 

(A) A complete statement of all 

opinions the witness will express and 

the basis and reasons for them; 

(B) The facts or data considered by the 

witness in forming them; 

(C) Any exhibits that will be used to 

summarize or support them; 

(D) The witness’s qualifications, 

including a list of all publications 

authored in the previous 10 years; 

(E) A list of all other cases in which, 

during the previous 4 years, the witness 

testified as an expert at trial, a hearing, 

or by deposition; and 

(F) A statement of the compensation 

to be paid for the study and testimony 

in the case. 

(iii) Witnesses who do not provide a 

written report. Unless otherwise 

stipulated or ordered by the judge that 

the witness is not required to provide a 

written report, this disclosure must 

state: 

(A) The subject matter on which the 

witness is expected to present expert 

opinion evidence; and 

(B) A summary of the facts and 

opinions to which the witness is 

expected to testify. 

(iv) Supplementing the disclosure. 

The parties must supplement these 

disclosures when required under 

§ 18.53. 

(3) Prehearing disclosures. In addition 

to the disclosures required by 

paragraphs (c)(1) and (2) of this section, 

a party must provide to the other parties 

and promptly file the prehearing 

disclosures described in § 18.80. 

(4) Form of disclosures. Unless the 

judge orders otherwise, all disclosures 

under this paragraph (c) must be in 

writing, signed, and served. 

(d) Signing disclosures and discovery 

requests, responses, and objections—(1) 

Signature required; effect of signature. 

Every disclosure under paragraph (c) of 

this section and every discovery request, 

response, or objection must be signed by 

at least one of the party’s representatives 

in the representative’s own name, or by 

the party personally if unrepresented, 

and must state the signer’s address, 

telephone number, facsimile number, 

and email address, if any. By signing, a 

representative or party certifies that to 

the best of the person’s knowledge, 

information, and belief formed after a 

reasonable inquiry: 

(i) With respect to a disclosure, it is 

complete and correct as of the time it is 

made; and 

(ii) With respect to a discovery 

request, response, or objection, it is: 

(A) Consistent with these rules and 

warranted by existing law or by a 

nonfrivolous argument for extending, 

modifying, or reversing existing law, or 

for establishing new law; 

(B) Not interposed for any improper 

purpose, such as to harass, cause 

unnecessary delay, or needlessly 

increase the cost of litigation; and 

(C) Neither unreasonable nor unduly 

burdensome or expensive, considering 

the needs of the case, prior discovery in 

the case, the amount in controversy, and 

the importance of the issues at stake in 

the action. 

(2) Failure to sign. Other parties have 

no duty to act on an unsigned 

disclosure, request, response, or 

objection until it is signed, and the 

judge must strike it unless a signature is 

promptly supplied after the omission is 

called to the representative’s or party’s 

attention. 

(3) Sanction for improper 

certification. If a certification violates 

this section without substantial 

justification, the judge, on motion or on 

his or her own, must impose an 

appropriate sanction, as provided in 

§ 18.57, on the signer, the party on 

whose behalf the signer was acting, or 

both. 

§ 18.51 Discovery scope and limits. 

(a) Scope in general. Unless otherwise 

limited by a judge’s order, the scope of 

discovery is as follows: Parties may 

obtain discovery regarding any 

nonprivileged matter that is relevant to 

any party’s claim or defense—including 

the existence, description, nature, 

custody, condition, and location of any 

documents or other tangible things and 

the identity and location of persons who 

know of any discoverable matter. For 

good cause, the judge may order 

discovery of any matter relevant to the 

subject matter involved in the 

proceeding. Relevant information need 

not be admissible at the hearing if the 

discovery appears reasonably calculated 

to lead to the discovery of admissible 

evidence. All discovery is subject to the 

limitations imposed by paragraph (b)(4) 

of this section. 

(b) Limitations on frequency and 

extent—(1) When permitted. By order, 

the judge may alter the limits in these 

rules on the number of depositions and 

interrogatories or on the length of 

depositions under § 18.64. The judge’s 

order may also limit the number of 

requests under § 18.63. 

(2) Specific limitations on 

electronically stored information. A 

party need not provide discovery of 

electronically stored information from 

sources that the party identifies as not 

reasonably accessible because of undue 

burden or cost. On motion to compel 

discovery or for a protective order, the 

party from whom discovery is sought 

must show that the information is not 

reasonably accessible because of undue 

burden or cost. If that showing is made, 

the judge may nonetheless order 

discovery from such sources if the 

requesting party shows good cause, 

considering the limitations of paragraph 

(b)(4) of this section. The judge may 

specify conditions for the discovery. 

(3) Inadvertently disclosed privileged 

or protected information. By requesting 

electronically stored information, a 

party consents to the application of 

Federal Rule of Evidence 502 with 

regard to inadvertently disclosed 

privileged or protected information. 


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(4) When required. On motion or on 

his or her own, the judge must limit the 

frequency or extent of discovery 

otherwise allowed by these rules when: 

(i) The discovery sought is 

unreasonably cumulative or duplicative, 

or can be obtained from some other 

source that is more convenient, less 

burdensome, or less expensive; 

(ii) The party seeking discovery has 

had ample opportunity to obtain the 

information by discovery in the action; 

or 

(iii) The burden or expense of the 

proposed discovery outweighs its likely 

benefit, considering the needs of the 

case, the amount in controversy, the 

parties’ resources, the importance of the 

issues at stake in the action, and the 

importance of the discovery in resolving 

the issues. 

(c) Hearing preparation: Materials— 

(1) Documents and tangible things. 

Ordinarily, a party may not discover 

documents and tangible things that are 

prepared in anticipation of litigation or 

for hearing by or for another party or its 

representative (including the other 

party’s attorney, consultant, surety, 

indemnitor, insurer, or agent). But, 

subject to paragraph (d) of this section, 

those materials may be discovered if: 

(i) They are otherwise discoverable 

under paragraph (a) of this section; and 

(ii) The party shows that it has 

substantial need for the materials to 

prepare its case and cannot, without 

undue hardship, obtain their substantial 

equivalent by other means. 

(2) Protection against disclosure. A 

judge who orders discovery of those 

materials must protect against 

disclosure of the mental impressions, 

conclusions, opinions, or legal theories 

of a party’s representative concerning 

the litigation. 

(3) Previous statement. Any party or 

other person may, on request and 

without the required showing, obtain 

the person’s own previous statement 

about the action or its subject matter. If 

the request is refused, the person may 

move for a judge’s order. A previous 

statement is either: 

(i) A written statement that the person 

has signed or otherwise adopted or 

approved; or 

(ii) A contemporaneous stenographic, 

mechanical, electrical, or other 

recording—or a transcription of it—that 

recites substantially verbatim the 

person’s oral statement. 

(d) Hearing preparation: experts—(1) 

Deposition of an expert who may testify. 

A party may depose any person who has 

been identified as an expert whose 

opinions may be presented at trial. If 

§ 18.50(c)(2)(B) requires a report from 

the expert the deposition may be 

conducted only after the report is 

provided, unless the parties stipulate 

otherwise. 

(2) Hearing-preparation protection for 

draft reports or disclosures. Paragraphs 

(c)(1) and (2) of this section protect 

drafts of any report or disclosure 

required under § 18.50(c)(2), regardless 

of the form in which the draft is 

recorded. 

(3) Hearing-preparation protection for 

communications between a party’s 

representative and expert witnesses. 

Paragraphs (c)(1) and (2) under this 

section protect communications 

between the party’s representative and 

any witness required to provide a report 

under § 18.50(c)(2)(B), regardless of the 

form of the communications, except to 

the extent that the communications: 

(i) Relate to compensation for the 

expert’s study or testimony; 

(ii) Identify facts or data that the 

party’s representative provided and that 

the expert considered in forming the 

opinions to be expressed; or 

(iii) Identify assumptions that the 

party’s representative provided and that 

the expert relied on in forming the 

opinions to be expressed. 

(4) Expert employed only for hearing 

preparation. Ordinarily, a party may 

not, by interrogatories or deposition, 

discover facts known or opinions held 

by an expert who has been retained or 

specially employed by another party in 

anticipation of litigation or to prepare 

for hearing and whose testimony is not 

anticipated to be used at the hearing. 

But a party may do so only: 

(i) As provided in § 18.62(c); or 

(ii) On showing exceptional 

circumstances under which it is 

impracticable for the party to obtain 

facts or opinions on the same subject by 

other means. 

(e) Claiming privilege or protecting 

hearing-preparation materials—(1) 

Information withheld. When a party 

withholds information otherwise 

discoverable by claiming that the 

information is privileged or subject to 

protection as hearing-preparation 

material, the party must: 

(i) Expressly make the claim; and 

(ii) Describe the nature of the 

documents, communications, or 

tangible things not produced or 

disclosed—and do so in a manner that, 

without revealing information itself 

privileged or protected, will enable 

other parties to assess the claim. 

(2) Information produced. If 

information produced in discovery is 

subject to a claim of privilege or of 

protection as hearing-preparation 

material, the party making the claim 

must notify any party that received the 

information of the claim and the basis 

for it. After being notified, a party must 

promptly return, sequester, or destroy 

the specified information and any 

copies it has; must not use or disclose 

the information until the claim is 

resolved; must take reasonable steps to 

retrieve the information if the party 

disclosed it before being notified; and 

may promptly present the information 

to the judge for an in camera 

determination of the claim. The 

producing party must preserve the 

information until the claim is resolved. 

§ 18.52 Protective orders. 

(a) In general. A party or any person 

from whom discovery is sought may file 

a written motion for a protective order. 

The motion must include a certification 

that the movant has in good faith 

conferred or attempted to confer with 

other affected parties in an effort to 

resolve the dispute without the judge’s 

action. The judge may, for good cause, 

issue an order to protect a party or 

person from annoyance, embarrassment, 

oppression, or undue burden or 

expense, including one or more of the 

following: 

(1) Forbidding the disclosure or 

discovery; 

(2) Specifying terms, including time 

and place, for the disclosure or 

discovery; 

(3) Prescribing a discovery method 

other than the one selected by the party 

seeking discovery; 

(4) Forbidding inquiry into certain 

matters, or limiting the scope of 

disclosure or discovery to certain 

matters; 

(5) Designating the persons who may 

be present while the discovery is 

conducted; 

(6) Requiring that a deposition be 

sealed and opened only on the judge’s 

order; 

(7) Requiring that a trade secret or 

other confidential research, 

development, or commercial 

information not be revealed or be 

revealed only in a specified way; 

and 

(8) Requiring that the parties 

simultaneously file specified documents 

or information in sealed envelopes, to 

be opened as the judge directs. 

(b) Ordering discovery. If a motion for 

a protective order is wholly or partly 

denied, the judge may, on just terms, 

order that any party or person provide 

or permit discovery. 

§ 18.53 Supplementing disclosures and 

responses. 

(a) In general. A party who has made 

a disclosure under § 18.50(c)—or who 

has responded to an interrogatory, 

request for production, or request for 


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admission—must supplement or correct 

its disclosure or response: 

(1) In a timely manner if the party 

learns that in some material respect the 

disclosure or response is incomplete or 

incorrect, and if the additional or 

corrective information has not otherwise 

been made known to the other parties 

during the discovery process or in 

writing; or 

(2) As ordered by the judge. 

(b) Expert witness. For an expert 

whose report must be disclosed under 

§ 18.50(c)(2)(B), the party’s duty to 

supplement extends both to information 

included in the report and to 

information given during the expert’s 

deposition. Any additions or changes to 

this information must be disclosed by 

the time the party’s prehearing 

disclosures under § 18.50(c)(3) are due. 

§ 18.54 Stipulations about discovery 

procedure. 

Unless the judge orders otherwise, the 

parties may stipulate that: 

(a) A deposition may be taken before 

any person, at any time or place, on any 

notice, and in the manner specified—in 

which event it may be used in the same 

way as any other deposition; and 

(b) Other procedures governing or 

limiting discovery be modified— but a 

stipulation extending the time for any 

form of discovery must have the judge’s 

approval if it would interfere with the 

time set for completing discovery, for 

hearing a motion, or for hearing. 

§ 18.55 Using depositions at hearings. 

(a) Using depositions—(1) In general. 

If there is no objection, all or part of a 

deposition may be used at a hearing to 

the extent it would be admissible under 

the applicable rules of evidence as if the 

deponent were present and testifying. 

(2) Over objection. Notwithstanding 

any objection, all or part of a deposition 

may be used at a hearing against a party 

on these conditions: 

(i) The party was present or 

represented at the taking of the 

deposition or had reasonable notice of 

it; 

(ii) It is used to the extent it would be 

admissible under the applicable rules of 

evidence if the deponent were present 

and testifying; and 

(iii) The use is allowed by paragraphs 

(a)(3) through (9) of this section. 

(3) Impeachment and other uses. Any 

party may use a deposition to contradict 

or impeach the testimony given by the 

deponent as a witness, or for any other 

purpose allowed by the applicable rules 

of evidence. 

(4) Deposition of party, agent, or 

designee. An adverse party may use for 

any purpose the deposition of a party or 

anyone who, when deposed, was the 

party’s officer, director, managing agent, 

or designee under § 18.64(b)(6) or 

§ 18.65(a)(4). 

(5) Deposition of expert, treating 

physician, or examining physician. A 

party may use for any purpose the 

deposition of an expert witness, treating 

physician or examining physician. 

(6) Unavailable witness. A party may 

use for any purpose the deposition of a 

witness, whether or not a party, if the 

judge finds: 

(i) That the witness is dead; 

(ii) That the witness is more than 100 

miles from the place of hearing or is 

outside the United States, unless it 

appears that the witness’s absence was 

procured by the party offering the 

deposition; 

(iii) That the witness cannot attend or 

testify because of age, illness, infirmity, 

or imprisonment; 

(iv) That the party offering the 

deposition could not procure the 

witness’s attendance by subpoena; or 

(v) on motion and notice, that 

exceptional circumstances make it 

desirable—in the interests of justice and 

with due regard to the importance of 

live testimony in an open hearing—to 

permit the deposition to be used. 

(7) Limitations on use—(i) Deposition 

taken on short notice. A deposition 

must not be used against a party who, 

having received less than 14 days’ 

notice of the deposition, promptly 

moved for a protective order under 

§ 18.52(a)(2) requesting that it not be 

taken or be taken at a different time or 

place—and this motion was still 

pending when the deposition was taken. 

(ii) Unavailable deponent; party could 

not obtain a representative. A 

deposition taken without leave of the 

judge under the unavailability provision 

of § 18.64(a)(2)(i)(C) must not be used 

against a party who shows that, when 

served with the notice, it could not, 

despite diligent efforts, obtain a 

representative to represent it at the 

deposition. 

(8) Using part of a deposition. If a 

party offers in evidence only part of a 

deposition, an adverse party may 

require the offeror to introduce other 

parts that in fairness should be 

considered with the part introduced, 

and any party may itself introduce any 

other parts. 

(9) Deposition taken in an earlier 

action. A deposition lawfully taken may 

be used in a later action involving the 

same subject matter between the same 

parties, or their representatives or 

successors in interest, to the same extent 

as if taken in the later action. A 

deposition previously taken may also be 

used as allowed by the applicable rules 

of evidence. 

(b) Objections to admissibility. Subject 

to paragraph (d)(3) of this section, an 

objection may be made at a hearing to 

the admission of any deposition 

testimony that would be inadmissible if 

the witness were present and testifying. 

(c) Form of presentation. Unless the 

judge orders otherwise, a party must 

provide a transcript of any deposition 

testimony the party offers, but the judge 

may receive the testimony in 

nontranscript form as well. 

(d) Waiver of objections—(1) To the 

notice. An objection to an error or 

irregularity in a deposition notice is 

waived unless promptly served in 

writing on the party giving the notice. 

(2) To the officer’s qualification. An 

objection based on disqualification of 

the officer before whom a deposition is 

to be taken is waived if not made: 

(i) Before the deposition begins; or 

(ii) Promptly after the basis for 

disqualification becomes known or, 

with reasonable diligence, could have 

been known. 

(3) To the taking of the deposition— 

(i) Objection to competence, relevance, 

or materiality. An objection to a 

deponent’s competence—or to the 

competence, relevance, or materiality of 

testimony—is not waived by a failure to 

make the objection before or during the 

deposition, unless the ground for it 

might have been corrected at that time. 

(ii) Objection to an error or 

irregularity. An objection to an error or 

irregularity at an oral examination is 

waived if: 

(A) It relates to the manner of taking 

the deposition, the form of a question or 

answer, the oath or affirmation, a party’s 

conduct, or other matters that might 

have been corrected at that time; and 

(B) It is not timely made during the 

deposition. 

(iii) Objection to a written question. 

An objection to the form of a written 

question under § 18.65 is waived if not 

served in writing on the party 

submitting the question within the time 

for serving responsive questions or, if 

the question is a recross-question, 

within 7 days after being served with it. 

(4) To completing and returning the 

deposition. An objection to how the 

officer transcribed the testimony—or 

prepared, signed, certified, sealed, 

endorsed, sent, or otherwise dealt with 

the deposition—is waived unless a 

motion to suppress is made promptly 

after the error or irregularity becomes 

known or, with reasonable diligence, 

could have been known. 

§ 18.56 Subpoena. 

(a) In general. (1) Upon written 

application of a party the judge may 


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issue a subpoena authorized by statute 

or law that requires a witness to attend 

and to produce relevant papers, books, 

documents, or tangible things in the 

witness’ possession or under the 

witness’ control. 

(2) Form and contents—(i) 

Requirements—in general. Every 

subpoena must: 

(A) State the title of the matter and 

show the case number assigned by the 

Office of Administrative Law Judges or 

the Office of Worker’s Compensation 

Programs. In the event that the case 

number is an individual’s Social 

Security number only the last four 

numbers may be used. See § 18.31(a)(1); 

(B) Bear the signature of the issuing 

judge; 

(C) Command each person to whom it 

is directed to do the following at a 

specified time and place: attend and 

testify; produce designated documents, 

electronically stored information, or 

tangible things in that person’s 

possession, custody, or control; or 

permit the inspection of premises; and 

(D) Set out the text of paragraphs (c) 

and (d) of this section. 

(ii) Command to attend a 

deposition—notice of the recording 

method. A subpoena commanding 

attendance at a deposition must state 

the method for recording the testimony. 

(iii) Combining or separating a 

command to produce or to permit 

inspection; specifying the form for 

electronically stored information. A 

command to produce documents, 

electronically stored information, or 

tangible things or to permit the 

inspection of premises may be included 

in a subpoena commanding attendance 

at a deposition or hearing, or may be set 

out in a separate subpoena. A subpoena 

may specify the form or forms in which 

electronically stored information is to be 

produced. 

(iv) Command to produce; included 

obligations. A command in a subpoena 

to produce documents, electronically 

stored information, or tangible things 

requires the responding party to permit 

inspection, copying, testing, or sampling 

of the materials. 

(b) Service—(1) By whom; tendering 

fees; serving a copy of certain 

subpoenas. Any person who is at least 

18 years old and not a party may serve 

a subpoena. Serving a subpoena requires 

delivering a copy to the named person 

and, if the subpoena requires that 

person’s attendance, tendering with it 

the fees for 1 day’s attendance and the 

mileage allowed by law. Service may 

also be made by certified mail with 

return receipt. Fees and mileage need 

not be tendered when the subpoena 

issues on behalf of the United States or 

any of its officers or agencies. If the 

subpoena commands the production of 

documents, electronically stored 

information, or tangible things or the 

inspection of premises before the formal 

hearing, then before it is served on the 

person to whom it is directed, a notice 

and copy of the subpoena must be 

served on each party. 

(2) Service in the United States. 

Subject to paragraph (c)(3)(i)(B) of this 

section, a subpoena may be served at 

any place within a State, 

Commonwealth, or Territory of the 

United States, or the District of 

Columbia. 

(3) Service in a foreign country. 28 

U.S.C. 1783 governs issuing and serving 

a subpoena directed to a United States 

national or resident who is in a foreign 

country. 

(4) Proof of service. Proving service, 

when necessary, requires filing with the 

judge a statement showing the date and 

manner of service and the names of the 

persons served. The statement must be 

certified by the server. 

(c) Protecting a person subject to a 

subpoena—(1) Avoiding undue burden; 

sanctions. A party or representative 

responsible for requesting, issuing, or 

serving a subpoena must take reasonable 

steps to avoid imposing undue burden 

on a person subject to the subpoena. 

The judge must enforce this duty and 

impose an appropriate sanction. 

(2) Command to produce materials or 

permit inspection—(i) Appearance not 

required. A person commanded to 

produce documents, electronically 

stored information, or tangible things, or 

to permit the inspection of premises, 

need not appear in person at the place 

of production or inspection unless also 

commanded to appear for a deposition 

or hearing. 

(ii) Objections. A person commanded 

to produce documents or tangible things 

or to permit inspection may serve on the 

party or representative designated in the 

subpoena a written objection to 

inspecting, copying, testing or sampling 

any or all of the materials or to 

inspecting the premises—or to 

producing electronically stored 

information in the form or forms 

requested. The objection must be served 

before the earlier of the time specified 

for compliance or 14 days after the 

subpoena is served. If an objection is 

made, the following rules apply: 

(A) At any time, on notice to the 

commanded person, the serving party 

may move the judge for an order 

compelling production or inspection. 

(B) These acts may be required only 

as directed in the order, and the order 

must protect a person who is neither a 

party nor a party’s officer from 

significant expense resulting from 

compliance. 

(3) Quashing or modifying a 

subpoena—(i) When required. On 

timely motion, the judge must quash or 

modify a subpoena that: 

(A) Fails to allow a reasonable time to 

comply; 

(B) Requires a person who is neither 

a party nor a party’s officer to travel 

more than 100 miles from where that 

person resides, is employed, or regularly 

transacts business in person—except 

that, subject to paragraph (c)(3)(ii)(C) of 

this section, the person may be 

commanded to attend the formal 

hearing; 

(C) Requires disclosure of privileged 

or other protected matter, if no 

exception or waiver applies; or 

(D) Subjects a person to undue 

burden. 

(ii) When permitted. To protect a 

person subject to or otherwise affected 

by a subpoena, the judge may, on 

motion, quash or modify the subpoena 

if it requires: 

(A) Disclosing a trade secret or other 

confidential research, development, or 

commercial information; 

(B) Disclosing an unretained expert’s 

opinion or information that does not 

describe specific occurrences in dispute 

and results from the expert’s study that 

was not requested by a party; or 

(C) A person who is neither a party 

nor a party’s officer to incur substantial 

expense to travel more than 100 miles 

to attend the formal hearing. 

(iii) Specifying conditions as an 

alternative. In the circumstances 

described in paragraph (c)(3)(ii) of this 

section, the judge may, instead of 

quashing or modifying a subpoena, 

order appearance or production under 

specified conditions if the serving party: 

(A) Shows a substantial need for the 

testimony or material that cannot be 

otherwise met without undue hardship; 

and 

(B) Ensures that the subpoenaed 

person will be reasonably compensated. 

(d) Duties in responding to a 

subpoena—(1) Producing documents or 

electronically stored information. These 

procedures apply to producing 

documents or electronically stored 

information: 

(i) Documents. A person responding 

to a subpoena to produce documents 

must produce them as they are kept in 

the ordinary course of business or must 

organize and label them to correspond 

to the categories in the demand. 

(ii) Form for producing electronically 

stored information not specified. If a 

subpoena does not specify a form for 

producing electronically stored 

information, the person responding 


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28796 Federal Register / Vol. 80, No. 96 / Tuesday, May 19, 2015 / Rules and Regulations 

must produce it in a form or forms in 

which it is ordinarily maintained or in 

a reasonably usable form or forms. 

(iii) Electronically stored information 

produced in only one form. The person 

responding need not produce the same 

electronically stored information in 

more than one form. 

(iv) Inaccessible electronically stored 

information. The person responding 

need not provide discovery of 

electronically stored information from 

sources that the person identifies as not 

reasonably accessible because of undue 

burden or cost. On motion to compel 

discovery or for a protective order, the 

person responding must show that the 

information is not reasonably accessible 

because of undue burden or cost. If that 

showing is made, the judge may 

nonetheless order discovery from such 

sources if the requesting party shows 

good cause, considering the limitations 

of § 18.51(b)(4)(iii). The judge may 

specify conditions for the discovery. 

(2) Claiming privilege or protection— 

(i) Information withheld. A person 

withholding subpoenaed information 

under a claim that it is privileged or 

subject to protection as hearingpreparation material must: 

(A) Expressly make the claim; and 

(B) Describe the nature of the 

withheld documents, communications, 

or tangible things in a manner that, 

without revealing information itself 

privileged or protected, will enable the 

parties to assess the claim. 

(ii) Information produced. If 

information produced in response to a 

subpoena is subject to a claim of 

privilege or of protection as hearingpreparation material, the person making 

the claim may notify any party that 

received the information of the claim 

and the basis for it. After being notified, 

a party must promptly return, sequester, 

or destroy the specified information and 

any copies it has; must not use or 

disclose the information until the claim 

is resolved; must take reasonable steps 

to retrieve the information if the party 

disclosed it before being notified; and 

may promptly present the information 

to the judge in camera for a 

determination of the claim. The person 

who produced the information must 

preserve the information until the claim 

is resolved. 

(e) Failure to obey. When a person 

fails to obey a subpoena, the party 

adversely affected by the failure may, 

when authorized by statute or by law, 

apply to the appropriate district court to 

enforce the subpoena. 

§ 18.57 Failure to make disclosures or to 

cooperate in discovery; sanctions. 

(a) Motion for an order compelling 

disclosure or discovery—(1) In general. 

On notice to other parties and all 

affected persons, a party may move for 

an order compelling disclosure or 

discovery. The motion must include a 

certification that the movant has in good 

faith conferred or attempted to confer 

with the person or party failing to make 

disclosure or discovery in an effort to 

obtain it without the judge’s action. 

(2) Specific motions—(i) To compel 

disclosure. If a party fails to make a 

disclosure required by § 18.50(c), any 

other party may move to compel 

disclosure and for appropriate 

sanctions. 

(ii) To compel a discovery response. A 

party seeking discovery may move for 

an order compelling an answer, 

designation, production, or inspection. 

This motion may be made if: 

(A) A deponent fails to answer a 

question asked under §§ 18.64 and 

18.65; 

(B) A corporation or other entity fails 

to make a designation under 

§§ 18.64(b)(6) and 18.65(a)(4); 

(C) A party fails to answer an 

interrogatory submitted under § 18.60; 

or 

(D) A party fails to respond that 

inspection will be permitted—or fails to 

permit inspection—as requested under 

§ 18.61. 

(iii) Related to a deposition. When 

taking an oral deposition, the party 

asking a question may complete or 

adjourn the examination before moving 

for an order. 

(3) Evasive or incomplete disclosure, 

answer, or response. For purposes of 

paragraph (a) of this section, an evasive 

or incomplete disclosure, answer, or 

response must be treated as a failure to 

disclose, answer, or respond. 

(b) Failure to comply with a judge’s 

order—(1) For not obeying a discovery 

order. If a party or a party’s officer, 

director, or managing agent—or a 

witness designated under §§ 18.64(b)(6) 

and 18.65(a)(4)—fails to obey an order 

to provide or permit discovery, 

including an order under § 18.50(b) or 

paragraph (a) of this section, the judge 

may issue further just orders. They may 

include the following: 

(i) Directing that the matters embraced 

in the order or other designated facts be 

taken as established for purposes of the 

proceeding, as the prevailing party 

claims; 

(ii) Prohibiting the disobedient party 

from supporting or opposing designated 

claims or defenses, or from introducing 

designated matters in evidence; 

(iii) Striking claims or defenses in 

whole or in part; 

(iv) Staying further proceedings until 

the order is obeyed; 

(v) Dismissing the proceeding in 

whole or in part; or 

(vi) Rendering a default decision and 

order against the disobedient party; 

(2) For not producing a person for 

examination. If a party fails to comply 

with an order under § 18.62 requiring it 

to produce another person for 

examination, the judge may issue any of 

the orders listed in paragraph (b)(1) of 

this section, unless the disobedient 

party shows that it cannot produce the 

other person. 

(c) Failure to disclose, to supplement 

an earlier response, or to admit. If a 

party fails to provide information or 

identify a witness as required by 

§§ 18.50(c) and 18.53, or if a party fails 

to admit what is requested under 

§ 18.63(a) and the requesting party later 

proves a document to be genuine or the 

matter true, the party is not allowed to 

use that information or witness to 

supply evidence on a motion or at a 

hearing, unless the failure was 

substantially justified or is harmless. In 

addition to or instead of this sanction, 

the judge, on motion and after giving an 

opportunity to be heard may impose 

other appropriate sanctions, including 

any of the orders listed in paragraph 

(b)(1) of this section. 

(d) Party’s failure to attend its own 

deposition, serve answers to 

interrogatories, or respond to a request 

for inspection—(1) In general—(i) 

Motion; grounds for sanctions. The 

judge may, on motion, order sanctions 

if: 

(A) A party or a party’s officer, 

director, or managing agent—or a person 

designated under §§ 18.64(b)(6) and 

18.65(a)(4)—fails, after being served 

with proper notice, to appear for that 

person’s deposition; or 

(B) A party, after being properly 

served with interrogatories under 

§ 18.60 or a request for inspection under 

§ 18.61, fails to serve its answers, 

objections, or written response. 

(ii) Certification. A motion for 

sanctions for failing to answer or 

respond must include a certification 

that the movant has in good faith 

conferred or attempted to confer with 

the party failing to act in an effort to 

obtain the answer or response without 

the judge’s action. 

(2) Unacceptable excuse for failing to 

act. A failure described in paragraph 

(d)(1)(i) of this section is not excused on 

the ground that the discovery sought 

was objectionable, unless the party 

failing to act has a pending motion for 

a protective order under § 18.52(a). 


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(3) Types of sanctions. Sanctions may 

include any of the orders listed in 

paragraph (b)(1) of this section. 

(e) Failure to provide electronically 

stored information. Absent exceptional 

circumstances, a judge may not impose 

sanctions under these rules on a party 

for failing to provide electronically 

stored information lost as a result of the 

routine, good-faith operation of an 

electronic information system. 

(f) Procedure. A judge may impose 

sanctions under this section upon: 

(1) A separately filed motion; or 

(2) Notice from the judge followed by 

a reasonable opportunity to be heard. 

Types of Discovery 

§ 18.60 Interrogatories to parties. 

(a) In general—(1) Number. Unless 

otherwise stipulated or ordered by the 

judge, a party may serve on any other 

party no more than 25 written 

interrogatories, including all discrete 

subparts. Leave to serve additional 

interrogatories may be granted to the 

extent consistent with § 18.51. 

(2) Scope. An interrogatory may relate 

to any matter that may be inquired into 

under § 18.51. An interrogatory is not 

objectionable merely because it asks for 

an opinion or contention that relates to 

fact or the application of law to fact, but 

the judge may order that the 

interrogatory need not be answered 

until designated discovery is complete, 

or until a prehearing conference or some 

other time. 

(b) Answers and objections—(1) 

Responding party. The interrogatories 

must be answered: 

(i) By the party to whom they are 

directed; or 

(ii) If that party is a public or private 

corporation, a partnership, an 

association, or a governmental agency, 

by any officer or agent, who must 

furnish the information available to the 

party. 

(2) Time to respond. The responding 

party must serve its answers and any 

objections within 30 days after being 

served with the interrogatories. A 

shorter or longer time may be stipulated 

to under § 18.54 or be ordered by the 

judge. 

(3) Answering each interrogatory. 

Each interrogatory must, to the extent it 

is not objected to, be answered 

separately and fully in writing under 

oath. 

(4) Objections. The grounds for 

objecting to an interrogatory must be 

stated with specificity. Any ground not 

stated in a timely objection is waived 

unless the judge, for good cause, 

excuses the failure. 

(5) Signature. The person who makes 

the answers must sign them, and the 

attorney or non-attorney representative 

who objects must sign any objections. 

(c) Use. An answer to an interrogatory 

may be used to the extent allowed by 

the applicable rules of evidence. 

(d) Option to produce business 

records. If the answer to an interrogatory 

may be determined by examining, 

auditing, compiling, abstracting, or 

summarizing a party’s business records 

(including electronically stored 

information), and if the burden of 

deriving or ascertaining the answer will 

be substantially the same for either 

party, the responding party may answer 

by: 

(1) Specifying the records that must 

be reviewed, in sufficient detail to 

enable the interrogating party to locate 

and identify them as readily as the 

responding party could; and 

(2) Giving the interrogating party a 

reasonable opportunity to examine and 

audit the records and to make copies, 

compilations, abstracts, or summaries. 

§ 18.61 Producing documents, 

electronically stored information, and 

tangible things, or entering onto land, for 

inspection and other purposes. 

(a) In general. A party may serve on 

any other party a request within the 

scope of § 18.51: 

(1) To produce and permit the 

requesting party or its representative to 

inspect, copy, test, or sample the 

following items in the responding 

party’s possession, custody, or control: 

(i) Any designated documents or 

electronically stored information— 

including writings, drawings, graphs, 

charts, photographs, sound recordings, 

images, and other data or data 

compilations—stored in any medium 

from which information can be obtained 

either directly or, if necessary, after 

translation by the responding party into 

a reasonably usable form; or 

(ii) Any designated tangible things; or 

(2) To permit entry onto designated 

land or other property possessed or 

controlled by the responding party, so 

that the requesting party may inspect, 

measure, survey, photograph, test, or 

sample the property or any designated 

object or operation on it. 

(b) Procedure—(1) Contents of the 

request. The request: 

(i) Must describe with reasonable 

particularity each item or category of 

items to be inspected; 

(ii) Must specify a reasonable time, 

place, and manner for the inspection 

and for performing the related acts; and 

(iii) May specify the form or forms in 

which electronically stored information 

is to be produced. 

(2) Responses and objections—(i) 

Time to respond. The party to whom the 

request is directed must respond in 

writing within 30 days after being 

served. A shorter or longer time may be 

stipulated to under § 18.54 or be ordered 

by the judge. 

(ii) Responding to each item. For each 

item or category, the response must 

either state that inspection and related 

activities will be permitted as requested 

or state an objection to the request, 

including the reasons. 

(iii) Objections. An objection to part 

of a request must specify the part and 

permit inspection of the rest. 

(iv) Responding to a request for 

production of electronically stored 

information. The response may state an 

objection to a requested form for 

producing electronically stored 

information. If the responding party 

objects to a requested form—or if no 

form was specified in the request—the 

party must state the form or forms it 

intends to use. 

(v) Producing the documents or 

electronically stored information. 

Unless otherwise stipulated or ordered 

by the judge, these procedures apply to 

producing documents or electronically 

stored information: 

(A) A party must produce documents 

as they are kept in the usual course of 

business or must organize and label 

them to correspond to the categories in 

the request; 

(B) If a request does not specify a form 

for producing electronically stored 

information, a party must produce it in 

a form or forms in which it is ordinarily 

maintained or in a reasonably usable 

form or forms; and 

(C) A party need not produce the 

same electronically stored information 

in more than one form. 

(c) Nonparties. As provided in 

§ 18.56, a nonparty may be compelled to 

produce documents and tangible things 

or to permit an inspection. 

§ 18.62 Physical and mental examinations. 

(a) Examination by notice—(1) In 

general. A party may serve upon 

another party whose mental or physical 

condition is in controversy a notice to 

attend and submit to an examination by 

a suitably licensed or certified 

examiner. 

(2) Contents of the notice. The notice 

must specify: 

(i) The legal basis for the examination; 

(ii) The time, place, manner, 

conditions, and scope of the 

examination, as well as the person or 

persons who will perform it; and 

(iii) How the reasonable 

transportation expenses were 

calculated. 

(3) Service of notice. Unless otherwise 

agreed by the parties, the notice must be 


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served no fewer than 30 days before the 

examination date. 

(4) Objection. The person to be 

examined must serve any objection to 

the notice no later than 14 days after the 

notice is served. The objection must be 

stated with particularity. 

(b) Examination by motion. Upon 

objection by the person to be examined 

the requesting party may file a motion 

to compel a physical or mental 

examination. The motion must include 

the elements required by paragraph 

(a)(2) of this section. 

(c) Examiner’s report—(1) Delivery of 

the report. The party who initiated the 

examination must deliver a complete 

copy of the examination report to the 

party examined no later than seven days 

after it receives the report, together with 

like reports of all earlier examinations of 

the same condition. 

(2) Contents. The examiner’s report 

must be in writing and must set out in 

detail the examiner’s findings, including 

diagnoses, conclusions, and the results 

of any tests. 

§ 18.63 Requests for admission. 

(a) Scope and procedure—(1) Scope. 

A party may serve on any other party a 

written request to admit, for purposes of 

the pending action only, the truth of any 

matters within the scope of § 18.51 

relating to: 

(i) Facts, the application of law to fact, 

or opinions about either; and 

(ii) The genuineness of any described 

documents. 

(2) Form; copy of a document. Each 

matter must be separately stated. A 

request to admit the genuineness of a 

document must be accompanied by a 

copy of the document unless it is, or has 

been, otherwise furnished or made 

available for inspection and copying. 

(3) Time to respond; effect of not 

responding. A matter is admitted unless, 

within 30 days after being served, the 

party to whom the request is directed 

serves on the requesting party a written 

answer or objection addressed to the 

matter and signed by the party or its 

attorney. A shorter or longer time for 

responding may be stipulated to under 

§ 18.54 or be ordered by the judge. 

(4) Answer. If a matter is not admitted, 

the answer must specifically deny it or 

state in detail why the answering party 

cannot truthfully admit or deny it. A 

denial must fairly respond to the 

substance of the matter; and when good 

faith requires that a party qualify an 

answer or deny only a part of a matter, 

the answer must specify the part 

admitted and qualify or deny the rest. 

The answering party may assert lack of 

knowledge or information as a reason 

for failing to admit or deny only if the 

party states that it has made reasonable 

inquiry and that the information it 

knows or can readily obtain is 

insufficient to enable it to admit or 

deny. 

(5) Objections. The grounds for 

objecting to a request must be stated. A 

party must not object solely on the 

ground that the request presents a 

genuine issue for hearing. 

(6) Motion regarding the sufficiency of 

an answer or objection. The requesting 

party may move to determine the 

sufficiency of an answer or objection. 

Unless the judge finds an objection 

justified, the judge must order that an 

answer be served. On finding that an 

answer does not comply with this 

section, the judge may order either that 

the matter is admitted or that an 

amended answer be served. The judge 

may defer final decision until a 

prehearing conference or a specified 

time before the hearing. 

(b) Effect of an admission; 

withdrawing or amending it. A matter 

admitted under this section is 

conclusively established unless the 

judge, on motion, permits the admission 

to be withdrawn or amended. The judge 

may permit withdrawal or amendment 

if it would promote the presentation of 

the merits of the action and if the judge 

is not persuaded that it would prejudice 

the requesting party in maintaining or 

defending the action on the merits. An 

admission under this section is not an 

admission for any other purpose and 

cannot be used against the party in any 

other proceeding. 

§ 18.64 Depositions by oral examination. 

(a) When a deposition may be taken— 

(1) Without leave. A party may, by oral 

questions, depose any person, including 

a party, without leave of the judge 

except as provided in paragraph (a)(2) of 

this section. The deponent’s attendance 

may be compelled by subpoena under 

§ 18.56. 

(2) With leave. A party must obtain 

leave of the judge, and the judge must 

grant leave to the extent consistent with 

§ 18.51(b): 

(i) If the parties have not stipulated to 

the deposition and: 

(A) The deposition would result in 

more than 10 depositions being taken 

under this section or § 18.65 by one of 

the parties; 

(B) The deponent has already been 

deposed in the case; or 

(C) The party seeks to take the 

deposition before the time specified in 

§ 18.50(a), unless the party certifies in 

the notice, with supporting facts, that 

the deponent is expected to leave the 

United States and be unavailable for 

examination in this country after that 

time; or 

(ii) If the deponent is confined in 

prison. 

(b) Notice of the deposition; other 

formal requirements—(1) Notice in 

general. Except as stipulated or 

otherwise ordered by the judge, a party 

who wants to depose a person by oral 

questions must give reasonable written 

notice to every other party of no fewer 

than 14 days. The notice must state the 

time and place of the deposition and, if 

known, the deponent’s name and 

address. If the name is unknown, the 

notice must provide a general 

description sufficient to identify the 

person or the particular class or group 

to which the person belongs. 

(2) Producing documents. If a 

subpoena duces tecum is to be served 

on the deponent, the materials 

designated for production, as set out in 

the subpoena, must be listed in the 

notice or in an attachment. If the notice 

to a party deponent is accompanied by 

a request for production under § 18.61, 

the notice must comply with the 

requirements of § 18.61(b). 

(3) Method of recording—(i) Method 

stated in the notice. The party who 

notices the deposition must state in the 

notice the method for recording the 

testimony. Unless the judge orders 

otherwise, testimony may be recorded 

by audio, audiovisual, or stenographic 

means. The noticing party bears the 

recording costs. Any party may arrange 

to transcribe a deposition. 

(ii) Additional method. With prior 

notice to the deponent and other parties, 

any party may designate another 

method for recording the testimony in 

addition to that specified in the original 

notice. That party bears the expense of 

the additional record or transcript 

unless the judge orders otherwise. 

(4) By remote means. The parties may 

stipulate—or the judge may on motion 

order—that a deposition be taken by 

telephone or other remote means. For 

the purpose of this section, the 

deposition takes place where the 

deponent answers the questions. 

(5) Deposition officer’s duties—(i) 

Before the deposition. Unless the parties 

stipulate otherwise, a deposition must 

be conducted before a person having 

power to administer oaths. The officer 

must begin the deposition with an onthe-record statement that includes: 

(A) The officer’s name and business 

address; 

(B) The date, time, and place of the 

deposition; 

(C) The deponent’s name; 

(D) The officer’s administration of the 

oath or affirmation to the deponent; 


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(E) The identity of all persons present; 

and 

(F) The date and method of service of 

the notice of deposition. 

(ii) Conducting the deposition; 

avoiding distortion. If the deposition is 

recorded nonstenographically, the 

officer must repeat the items in 

paragraphs (b)(5)(i)(A) and (B) of this 

section at the beginning of each unit of 

the recording medium. The deponent’s 

and attorneys’ appearance or demeanor 

must not be distorted through recording 

techniques. 

(iii) After the deposition. At the end 

of a deposition, the officer must state on 

the record that the deposition is 

complete and must set out any 

stipulations made by the attorneys about 

custody of the transcript or recording 

and of the exhibits, or about any other 

pertinent matters. 

(6) Notice or subpoena directed to an 

organization. In its notice or subpoena, 

a party may name as the deponent a 

public or private corporation, a 

partnership, an association, a 

governmental agency, or other entity 

and must describe with reasonable 

particularity the matters for 

examination. The named organization 

must then designate one or more 

officers, directors, or managing agents, 

or designate other persons who consent 

to testify on its behalf; and it may set 

out the matters on which each person 

designated will testify. A subpoena 

must advise a nonparty organization of 

its duty to make this designation. The 

persons designated must testify about 

information known or reasonably 

available to the organization. This 

paragraph (b)(6) does not preclude a 

deposition by any other procedure 

allowed by these rules. 

(c) Examination and crossexamination; record of the examination; 

objections; written questions—(1) 

Examination and cross-examination. 

The examination and cross-examination 

of a deponent proceed as they would at 

the hearing under the applicable rules of 

evidence. After putting the deponent 

under oath or affirmation, the officer 

must record the testimony by the 

method designated under paragraph 

(b)(3)(i) of this section. The testimony 

must be recorded by the officer 

personally or by a person acting in the 

presence and under the direction of the 

officer. 

(2) Objections. An objection at the 

time of the examination—whether to 

evidence, to a party’s conduct, to the 

officer’s qualifications, to the manner of 

taking the deposition, or to any other 

aspect of the deposition—must be noted 

on the record, but the examination still 

proceeds; the testimony is taken subject 

to any objection. An objection must be 

stated concisely in a nonargumentative 

and nonsuggestive manner. A person 

may instruct a deponent not to answer 

only when necessary to preserve a 

privilege, to enforce a limitation ordered 

by the judge, or to present a motion 

under paragraph (d)(3) of this section. 

(3) Participating through written 

questions. Instead of participating in the 

oral examination, a party may serve 

written questions in a sealed envelope 

on the party noticing the deposition, 

who must deliver them to the officer. 

The officer must ask the deponent those 

questions and record the answers 

verbatim. 

(d) Duration; sanction; motion to 

terminate or limit—(1) Duration. Unless 

otherwise stipulated or ordered by the 

judge, a deposition is limited to 1 day 

of 7 hours. The judge must allow 

additional time consistent with 

§ 18.51(b) if needed to fairly examine 

the deponent or if the deponent, another 

person, or any other circumstance 

impedes or delays the examination. 

(2) Sanction. The judge may impose 

an appropriate sanction, in accordance 

with § 18.57, on a person who impedes, 

delays, or frustrates the fair examination 

of the deponent. 

(3) Motion to terminate or limit—(i) 

Grounds. At any time during a 

deposition, the deponent or a party may 

move to terminate or limit it on the 

ground that it is being conducted in bad 

faith or in a manner that unreasonably 

annoys, embarrasses, or oppresses the 

deponent or party. If the objecting 

deponent or party so demands, the 

deposition must be suspended for the 

time necessary to obtain an order. 

(ii) Order. The judge may order that 

the deposition be terminated or may 

limit its scope and manner as provided 

in § 18.52. If terminated, the deposition 

may be resumed only by the judge’s 

order. 

(e) Review by the witness; changes— 

(1) Review; statement of changes. On 

request by the deponent or a party 

before the deposition is completed, the 

deponent must be allowed 30 days after 

being notified by the officer that the 

transcript or recording is available in 

which: 

(i) To review the transcript or 

recording; and 

(ii) If there are changes in form or 

substance, to sign a statement listing the 

changes and the reasons for making 

them. 

(2) Changes indicated in the officer’s 

certificate. The officer must note in the 

certificate prescribed by paragraph (f)(1) 

of this section whether a review was 

requested and, if so, must attach any 

changes the deponent makes during the 

30-day period. 

(f) Certification and delivery; exhibits; 

copies of the transcript or recording; 

filing—(1) Certification and delivery. 

The officer must certify in writing that 

the witness was duly sworn and that the 

deposition accurately records the 

witness’s testimony. The certificate 

must accompany the record of the 

deposition. Unless the judge orders 

otherwise, the officer must seal the 

deposition in an envelope or package 

bearing the title of the action and 

marked ‘‘Deposition of [witness’s 

name]’’ and must promptly send it to 

the party or the party’s representative 

who arranged for the transcript or 

recording. The party or the party’s 

representative must store it under 

conditions that will protect it against 

loss, destruction, tampering, or 

deterioration. 

(2) Documents and tangible things— 

(i) Originals and copies. Documents and 

tangible things produced for inspection 

during a deposition must, on a party’s 

request, be marked for identification 

and attached to the deposition. Any 

party may inspect and copy them. But 

if the person who produced them wants 

to keep the originals, the person may: 

(A) Offer copies to be marked, 

attached to the deposition, and then 

used as originals—after giving all parties 

a fair opportunity to verify the copies by 

comparing them with the originals; or 

(B) Give all parties a fair opportunity 

to inspect and copy the originals after 

they are marked—in which event the 

originals may be used as if attached to 

the deposition. 

(ii) Order regarding the originals. Any 

party may move for an order that the 

originals be attached to the deposition 

pending final disposition of the 

proceeding. 

(3) Copies of the transcript or 

recording. Unless otherwise stipulated 

or ordered by the judge, the officer must 

retain the stenographic notes of a 

deposition taken stenographically or a 

copy of the recording of a deposition 

taken by another method. When paid 

reasonable charges, the officer must 

furnish a copy of the transcript or 

recording to any party or the deponent. 

(4) Notice of filing. A party who files 

the deposition must promptly notify all 

other parties of the filing. 

(g) Failure to attend a deposition or 

serve a subpoena. A judge may order 

sanctions, in accordance with § 18.57, if 

a party who, expecting a deposition to 

be taken, attends in person or by an 

attorney, and the noticing party failed 

to: 

(1) Attend and proceed with the 

deposition; or 


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(2) Serve a subpoena on a nonparty 

deponent, who consequently did not 

attend. 

§ 18.65 Depositions by written questions. 

(a) When a deposition may be taken— 

(1) Without leave. A party may, by 

written questions, depose any person, 

including a party, without leave of the 

judge except as provided in paragraph 

(a)(2) of this section. The deponent’s 

attendance may be compelled by 

subpoena under § 18.56. 

(2) With leave. A party must obtain 

leave of the judge, and the judge must 

grant leave to the extent consistent with 

§ 18.51(b): 

(i) If the parties have not stipulated to 

the deposition and: 

(A) The deposition would result in 

more than 10 depositions being taken 

under this section or § 18.64 by a party; 

(B) The deponent has already been 

deposed in the case; or 

(C) The party seeks to take a 

deposition before the time specified in 

§ 18.50(a); or 

(ii) If the deponent is confined in 

prison. 

(3) Service; required notice. A party 

who wants to depose a person by 

written questions must serve them on 

every other party, with a notice stating, 

if known, the deponent’s name and 

address. If the name is unknown, the 

notice must provide a general 

description sufficient to identify the 

person or the particular class or group 

to which the person belongs. The notice 

must also state the name or descriptive 

title and the address of the officer before 

whom the deposition will be taken. 

(4) Questions directed to an 

organization. A public or private 

corporation, a partnership, an 

association, or a governmental agency 

may be deposed by written questions in 

accordance with § 18.64(b)(6). 

(5) Questions from other parties. Any 

questions to the deponent from other 

parties must be served on all parties as 

follows: cross-questions, within 14 days 

after being served with the notice and 

direct questions; redirect questions, 

within 7 days after being served with 

cross-questions; and recross-questions, 

within 7 days after being served with 

redirect questions. The judge may, for 

good cause, extend or shorten these 

times. 

(b) Delivery to the deposition officer; 

officer’s duties. Unless a different 

procedure is ordered by the judge, the 

party who noticed the deposition must 

deliver to the officer a copy of all the 

questions served and of the notice. The 

officer must promptly proceed in the 

manner provided in § 18.64(c), (e), and 

(f) to: 

(1) Take the deponent’s testimony in 

response to the questions; 

(2) Prepare and certify the deposition; 

and 

(3) Send it to the party, attaching a 

copy of the questions and of the notice. 

(c) Notice of completion or filing—(1) 

Completion. The party who noticed the 

deposition must notify all other parties 

when it is completed. 

(2) Filing. A party who files the 

deposition must promptly notify all 

other parties of the filing. 

Disposition Without Hearing 

§ 18.70 Motions for dispositive action. 

(a) In general. When consistent with 

statute, regulation or executive order, 

any party may move under § 18.33 for 

disposition of the pending proceeding. 

If the judge determines at any time that 

subject matter jurisdiction is lacking, 

the judge must dismiss the matter. 

(b) Motion to remand. A party may 

move to remand the matter to the 

referring agency. A remand order must 

include any terms or conditions and 

should state the reason for the remand. 

(c) Motion to dismiss. A party may 

move to dismiss part or all of the matter 

for reasons recognized under controlling 

law, such as lack of subject matter 

jurisdiction, failure to state a claim 

upon which relief can be granted, or 

untimeliness. If the opposing party fails 

to respond, the judge may consider the 

motion unopposed. 

(d) Motion for decision on the record. 

When the parties agree that an 

evidentiary hearing is not needed, they 

may move for a decision based on 

stipulations of fact or a stipulated 

record. 

§ 18.71 Approval of settlement or consent 

findings. 

(a) Motion for approval of settlement 

agreement. When the applicable statute 

or regulation requires it, the parties 

must submit a settlement agreement for 

the judge’s review and approval. 

(b) Motion for consent findings and 

order. Parties may file a motion to 

accept and adopt consent findings. Any 

agreement that contains consent 

findings and an order that disposes of 

all or part of a matter must include: 

(1) A statement that the order has the 

same effect as one made after a full 

hearing; 

(2) A statement that the order is based 

on a record that consists of the paper 

that began the proceeding (such as a 

complaint, order of reference, or notice 

of administrative determination), as it 

may have been amended, and the 

agreement; 

(3) A waiver of any further procedural 

steps before the judge; and 

(4) A waiver of any right to challenge 

or contest the validity of the order 

entered into in accordance with the 

agreement. 

§ 18.72 Summary decision. 

(a) Motion for summary decision or 

partial summary decision. A party may 

move for summary decision, identifying 

each claim or defense—or the part of 

each claim or defense—on which 

summary decision is sought. The judge 

shall grant summary decision if the 

movant shows that there is no genuine 

dispute as to any material fact and the 

movant is entitled to decision as a 

matter of law. The judge should state on 

the record the reasons for granting or 

denying the motion. 

(b) Time to file a motion. Unless the 

judge orders otherwise, a party may file 

a motion for summary decision at any 

time until 30 days before the date fixed 

for the formal hearing. 

(c) Procedures—(1) Supporting factual 

positions. A party asserting that a fact 

cannot be or is genuinely disputed must 

support the assertion by: 

(i) Citing to particular parts of 

materials in the record, including 

depositions, documents, electronically 

stored information, affidavits or 

declarations, stipulations (including 

those made for purposes of the motion 

only), admissions, interrogatory 

answers, or other materials; or 

(ii) Showing that the materials cited 

do not establish the absence or presence 

of a genuine dispute, or that an adverse 

party cannot produce admissible 

evidence to support the fact. 

(2) Objection that a fact is not 

supported by admissible evidence. A 

party may object that the material cited 

to support or dispute a fact cannot be 

presented in a form that would be 

admissible in evidence. 

(3) Materials not cited. The judge 

need consider only the cited materials, 

but the judge may consider other 

materials in the record. 

(4) Affidavits or declarations. An 

affidavit or declaration used to support 

or oppose a motion must be made on 

personal knowledge, set out facts that 

would be admissible in evidence, and 

show that the affiant or declarant is 

competent to testify on the matters 

stated. 

(d) When facts are unavailable to the 

nonmovant. If a nonmovant shows by 

affidavit or declaration that, for 

specified reasons, it cannot present facts 

essential to justify its opposition, the 

judge may: 

(1) Defer considering the motion or 

deny it; 

(2) Allow time to obtain affidavits or 

declarations or to take discovery; or 


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(3) Issue any other appropriate order. 

(e) Failing to properly support or 

address a fact. If a party fails to properly 

support an assertion of fact or fails to 

properly address another party’s 

assertion of fact as required by 

paragraph (c) of this section, the judge 

may: 

(1) Give an opportunity to properly 

support or address the fact; 

(2) Consider the fact undisputed for 

purposes of the motion; 

(3) Grant summary decision if the 

motion and supporting materials— 

including the facts considered 

undisputed—show that the movant is 

entitled to it; or 

(4) Issue any other appropriate order. 

(f) Decision independent of the 

motion. After giving notice and a 

reasonable time to respond, the judge 

may: 

(1) Grant summary decision for a 

nonmovant; 

(2) Grant the motion on grounds not 

raised by a party; or 

(3) Consider summary decision on the 

judge’s own after identifying for the 

parties material facts that may not be 

genuinely in dispute. 

(g) Failing to grant all the requested 

relief. If the judge does not grant all the 

relief requested by the motion, the judge 

may enter an order stating any material 

fact—including an item of damages or 

other relief—that is not genuinely in 

dispute and treating the fact as 

established in the case. 

(h) Affidavit or declaration submitted 

in bad faith. If satisfied that an affidavit 

or declaration under this section is 

submitted in bad faith or solely for 

delay, the judge—after notice and a 

reasonable time to respond—may order 

sanctions or other relief as authorized 

by law. 

Hearing 

§ 18.80 Prehearing statement. 

(a) Time for filing. Unless the judge 

orders otherwise, at least 21 days before 

the hearing, each participating party 

must file a prehearing statement. 

(b) Required conference. Before filing 

a prehearing statement, the party must 

confer with all other parties in good 

faith to: 

(1) Stipulate to the facts to the fullest 

extent possible; and 

(2) Revise exhibit lists, eliminate 

duplicative exhibits, prepare joint 

exhibits, and attempt to resolve any 

objections to exhibits. 

(c) Contents. Unless ordered 

otherwise, the prehearing statement 

must state: 

(1) The party’s name; 

(2) The issues of law to be determined 

with reference to the appropriate 

statute, regulation, or case law; 

(3) A precise statement of the relief 

sought; 

(4) The stipulated facts that require no 

proof; 

(5) The facts disputed by the parties; 

(6) A list of witnesses the party 

expects to call; 

(7) A list of the joint exhibits; 

(8) A list of the party’s exhibits; 

(9) An estimate of the time required 

for the party to present its case-in-chief; 

and 

(10) Any additional information that 

may aid the parties’ preparation for the 

hearing or the disposition of the 

proceeding, such as the need for 

specialized equipment at the hearing. 

(d) Joint prehearing statement. The 

judge may require the parties to file a 

joint prehearing statement rather than 

individual prehearing statements. 

(e) Signature. The prehearing 

statement must be in writing and 

signed. By signing, an attorney, 

representative, or party makes the 

certifications described in § 18.50(d). 

§ 18.81 Formal hearing. 

(a) Public. Hearings are open to the 

public. But, when authorized by law 

and only to the minimum extent 

necessary, the judge may order a hearing 

or any part of a hearing closed to the 

public, including anticipated witnesses. 

The order closing all or part of the 

hearing must state findings and explain 

why the reasons for closure outweigh 

the presumption of public access. The 

order and any objection must be part of 

the record. 

(b) Taking testimony. Unless a closure 

order is issued under paragraph (a) of 

this section, the witnesses’ testimony 

must be taken in an open hearing. For 

good cause and with appropriate 

safeguards, the judge may permit 

testimony in an open hearing by 

contemporaneous transmission from a 

different location. 

(c) Party participation. For good cause 

and with appropriate safeguards, the 

judge may permit a party to participate 

in an open hearing by contemporaneous 

transmission from a different location. 

§ 18.82 Exhibits. 

(a) Identification. All exhibits offered 

in evidence must be marked with a 

designation identifying the party 

offering the exhibit and must be 

numbered and paginated as the judge 

orders. 

(b) Electronic data. By order the judge 

may prescribe the format for the 

submission of data that is in electronic 

form. 

(c) Exchange of exhibits. When 

written exhibits are offered in evidence, 

one copy must be furnished to the judge 

and to each of the parties at the hearing, 

unless copies were previously furnished 

with the list of proposed exhibits or the 

judge directs otherwise. If the judge 

does not fix a date for the exchange of 

exhibits, the parties must exchange 

copies of exhibits at the earliest 

practicable time before the hearing 

begins. 

(d) Authenticity. The authenticity of a 

document identified in a pre-hearing 

exhibit list is admitted unless a party 

files a written objection to authenticity 

at least 7 days before the hearing. The 

judge may permit a party to challenge a 

document’s authenticity if the party 

establishes good cause for its failure to 

file a timely written objection. 

(e) Substitution of copies for original 

exhibits. The judge may permit a party 

to withdraw original documents offered 

in evidence and substitute accurate 

copies of the originals. 

(f) Designation of parts of documents. 

When only a portion of a document 

contains relevant matter, the offering 

party must exclude the irrelevant parts 

to the greatest extent practicable. 

(g) Records in other proceedings. 

Portions of the record of other 

administrative proceedings, civil actions 

or criminal prosecutions may be 

received in evidence, when the offering 

party shows the copies are accurate. 

§ 18.83 Stipulations. 

(a) The parties may stipulate to any 

facts in writing at any stage of the 

proceeding or orally on the record at a 

deposition or at a hearing. These 

stipulations bind the parties unless the 

judge disapproves them. 

(b) Every stipulation that requests or 

requires a judge’s action must be written 

and signed by all affected parties or 

their representatives. Any stipulation to 

extend time must state the reason for the 

date change. 

(c) A proposed form of order may be 

submitted with the stipulation; it may 

consist of an endorsement on the 

stipulation of the words, ‘‘Pursuant to 

stipulation, it is so ordered,’’ with 

spaces designated for the date and the 

signature of the judge. 

§ 18.84 Official notice. 

On motion of a party or on the judge’s 

own, official notice may be taken of any 

adjudicative fact or other matter subject 

to judicial notice. The parties must be 

given an adequate opportunity to show 

the contrary of the matter noticed. 


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28802 Federal Register / Vol. 80, No. 96 / Tuesday, May 19, 2015 / Rules and Regulations 

§ 18.85 Privileged, sensitive, or classified 

material. 

(a) Exclusion. On motion of any 

interested person or the judge’s own, the 

judge may limit the introduction of 

material into the record or issue orders 

to protect against undue disclosure of 

privileged communications, or sensitive 

or classified matters. The judge may 

admit into the record a summary or 

extract that omits the privileged, 

sensitive or classified material. 

(b) Sealing the record. (1) On motion 

of any interested person or the judge’s 

own, the judge may order any material 

that is in the record to be sealed from 

public access. The motion must propose 

the fewest redactions possible that will 

protect the interest offered as the basis 

for the motion. A redacted copy or 

summary of any material sealed must be 

made part of the public record unless 

the necessary redactions would be so 

extensive that the public version would 

be meaningless, or making even a 

redacted version or summary available 

would defeat the reason the original is 

sealed. 

(2) An order that seals material must 

state findings and explain why the 

reasons to seal adjudicatory records 

outweigh the presumption of public 

access. Sealed materials must be placed 

in a clearly marked, separate part of the 

record. Notwithstanding the judge’s 

order, all parts of the record remain 

subject to statutes and regulations 

pertaining to public access to agency 

records. 

§ 18.86 Hearing room conduct. 

Participants must conduct themselves 

in an orderly manner. The consumption 

of food or beverage, and rearranging 

courtroom furniture are prohibited, 

unless specifically authorized by the 

judge. Electronic devices must be 

silenced and must not disrupt the 

proceedings. Parties, witnesses and 

spectators are prohibited from using 

video or audio recording devices to 

record hearings. 

§ 18.87 Standards of conduct. 

(a) In general. All persons appearing 

in proceedings must act with integrity 

and in an ethical manner. 

(b) Exclusion for misconduct. During 

the course of a proceeding, the judge 

may exclude any person—including a 

party or a party’s attorney or nonattorney representative—for 

contumacious conduct such as refusal to 

comply with directions, continued use 

of dilatory tactics, refusal to adhere to 

reasonable standards of orderly or 

ethical conduct, failure to act in good 

faith, or violation of the prohibition 

against ex parte communications. The 

judge must state the basis for the 

exclusion. 

(c) Review of representative’s 

exclusion. Any representative excluded 

from a proceeding may appeal to the 

Chief Judge for reinstatement within 7 

days of the exclusion. The exclusion 

order is reviewed for abuse of 

discretion. The proceeding from which 

the representative was excluded will not 

be delayed or suspended pending 

review by the Chief Judge, except for a 

reasonable delay to enable the party to 

obtain another representative. 

§ 18.88 Transcript of proceedings. 

(a) Hearing transcript. All hearings 

must be recorded and transcribed. The 

parties and the public may obtain copies 

of the transcript from the official 

reporter at rates not to exceed the 

applicable rates fixed by the contract 

with the reporter. 

(b) Corrections to the transcript. A 

party may file a motion to correct the 

official transcript. Motions for 

correction must be filed within 14 days 

of the receipt of the transcript unless the 

judge permits additional time. The 

judge may grant the motion in whole or 

part if the corrections involve 

substantive errors. At any time before 

issuing a decision and upon notice to 

the parties, the judge may correct errors 

in the transcript. 

Post Hearing 

§ 18.90 Closing the record; subsequent 

motions. 

(a) In general. The record of a hearing 

closes when the hearing concludes, 

unless the judge directs otherwise. If 

any party waives a hearing, the record 

closes on the date the judge sets for the 

filing of the parties’ submissions. 

(b) Motion to reopen the record. (1) A 

motion to reopen the record must be 

made promptly after the additional 

evidence is discovered. No additional 

evidence may be admitted unless the 

offering party shows that new and 

material evidence has become available 

that could not have been discovered 

with reasonable diligence before the 

record closed. Each new item must be 

designated as an exhibit under 

§ 18.82(a) and accompanied by proof 

that copies have been served on all 

parties. 

(2) If the record is reopened, the other 

parties must have an opportunity to 

offer responsive evidence, and a new 

evidentiary hearing may be set. 

(c) Motions after the decision. After 

the decision and order is issued, the 

judge retains jurisdiction to dispose of 

appropriate motions, such as a motion 

to award attorney’s fees and expenses, a 

motion to correct the transcript, or a 

motion for reconsideration. 

§ 18.91 Post-hearing brief. 

The judge may grant a party time to 

file a post-hearing brief with proposed 

findings of fact, conclusions of law, and 

the specific relief sought. The brief must 

refer to all portions of the record and 

authorities relied upon in support of 

each assertion. 

§ 18.92 Decision and order. 

At the conclusion of the proceeding, 

the judge must issue a written decision 

and order. 

§ 18.93 Motion for reconsideration. 

A motion for reconsideration of a 

decision and order must be filed no later 

than 10 days after service of the 

decision on the moving party. 

§ 18.94 Indicative ruling on a motion for 

relief that is barred by a pending petition for 

review. 

(a) Relief pending review. If a timely 

motion is made for relief that the judge 

lacks authority to grant because a 

petition for review has been docketed 

and is pending, the judge may: 

(1) Defer considering the motion; 

(2) Deny the motion; or 

(3) State either that the judge would 

grant the motion if the reviewing body 

remands for that purpose or that the 

motion raises a substantial issue. 

(b) Notice to reviewing body. The 

movant must promptly notify the clerk 

of the reviewing body if the judge states 

that he or she would grant the motion 

or that the motion raises a substantial 

issue. 

(c) Remand. The judge may decide the 

motion if the reviewing body remands 

for that purpose. 

§ 18.95 Review of decision. 

The statute or regulation that 

conferred hearing jurisdiction provides 

the procedure for review of a judge’s 

decision. If the statute or regulation 

does not provide a procedure, the 

judge’s decision becomes the Secretary’s 

final administrative decision. 

[FR Doc. 2015–11586 Filed 5–18–15; 8:45 am] 

BILLING CODE 4510–20–P 


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