Image of DOL OALJ Revamps Procedural Rules

DOL OALJ Revamps Procedural Rules

Procedural Rules Governing Whistleblower Retaliation Claims Adjudicated at DOL OALJ

The Department of Labor has issued its final rule revising the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges. The new rules become effective on June 18, 2015 and govern proceedings before the Department of Labor Office of Administrative Law Judges (OALJ), which presides over formal hearings concerning labor-related matters, including whistleblower retaliation claims.

The new rules are the first significant amendments to OALJ procedures since DOL promulgated OALJ procedural rules in 1983. The primary goal of the revised rules is to harmonize OALJ procedures with the Federal Rules of Civil Procedure (FRCP). Although the revised rules will likely increase litigation costs for whistleblowers adjudicating their claims at DOL, the OALJ is generally a more favorable forum than federal court because OALJ procedure is less formal than federal court procedure and allows for more flexible case management. But whistleblowers are increasingly obtaining substantial jury awards in federal court, including a recent six million dollar jury verdict in a Sarbanes-Oxley whistleblower retaliation case. The new rules may give whistleblowers another reason to remove to federal court when their claims are brought under a whistleblower protection statute that includes a kick-out provision.

Key Revisions to DOL OALJ Rules

The following are some key changes in the new OALJ rules:

  • Mandatory Initial Disclosures Similar to federal court procedure, § 18.50 now requires the parties to exchange initial disclosures within 21 days after entry of an initial docketing order.
  • Using depositions at hearings 18.55 permits unconditional use of deposition testimony at hearings absent an objection, to the extent the testimony would be admissible as if the deponent were present and testifying. In other words, the party offering the deposition testimony need not show that the witness is unavailable to testify at the hearing.
  • Physical and Mental Examinations 18.62 now requires 30 day’s notice when a party seeks to take a physical or mental examination, unless the parties agree to a shorter notice period in their discovery plan, by stipulation, or through informal discussion.

While the revised OALJ rules address discovery of electronically stored information, the rules unfortunately contemplate “hardcopy delivery as the default authorized means of filing and allow[] electronic or facsimile filing only as authorized by order or regulation.”  The DOL rejected proposals to authorize parties to file documents by email, but ALJs have discretion to permit electronic filing.   And the revised rules maintain a 12- page limitation on facsimile filings absent leave from the ALJ. § 18.30(a)(2)(ii)(E) permits the parties to agree to serve each other by email. Hopefully Congress will appropriate funds for the OALJ to implement an electronic case filing system similar to the federal ECF or the Merit Systems Protection Board’s electronic filing system.

The final rule includes the following helpful table cross-referencing the new rules with the old rules and the Federal Rules of Civil Procedure:

New sectionNew section titleOld sectionOld section titleFederal Rule of Civil Procedure
General Provisions
18.10Scope and purpose18.1/18.26Scope of rules and conduct of hearingsFed. R. Civ. P. 1.
18.11Definitions18.2Definitions
18.12Proceedings before administrative law judge18.25/18.29(a)Proceedings before administrative law judge/authority of the administrative law judge
18.13Settlement judge procedure18.9Consent order or settlement; settlement judge procedure
18.14Ex parte communication18.38Ex parte communications
18.15Substitution of administrative law judge18.30Unavailability of administrative law judgeFed. R. Civ. P. 63.
18.16Disqualification18.31Disqualification
18.17Legal assistance18.35Legal assistance
Parties and Representatives
18.20Parties to a proceeding18.10Parties, how designated
18.21Party appearance and participation18.39/18.34(a)18.39, Waiver of right to appear and failure to participate or to appear—text was incorporated into proposed “participation” rule
18.22Representatives18.34Representatives
18.23Disqualification of representatives
18.24Briefs from amicus curiae18.12Amicus curiae
Service, Format and Timing of Filings and Other Papers
18.30Service and filing18.3Service and filingFed. R. Civ. P. 5.
18.31Privacy protection for filings and exhibitsFed. R. Civ. P. 5.2.
18.32Computing and extending time18.4Time computationsFed. R. Civ. P. 6.
18.33Motions and other papers18.6Motions and requestsFed. R. Civ. P. 7(b) & 43(c).
18.34Format of papers filed
18.35Signing motions and other papers; representations to the judge; sanctionsFed. R. Civ. P. 11.
18.36Amendments after referral to the Office of Administrative Law Judges18.5Responsive pleadings—answer and request for hearings
Prehearing Procedure
18.40Notice of hearing18.27Notice of hearing
18.41Continuances and changes in place of hearing18.28Continuances
18.42Expedited proceedings18.42Expedited proceedings
18.43Consolidation; separate hearings18.11Consolidation of hearingsFed. R. Civ. P. 42.
18.44Prehearing conference18.8Prehearing conferencesFed. R. Civ. P. 16.
Disclosure and Discovery
18.50General provisions governing disclosure and discoveryFed. R. Civ. P. 26 (a), (d), (f), (g).
18.51Discovery scope and limits18.14Scope of discoveryFed. R. Civ. P. 26 (b).
18.52Protective orders18.15Protective ordersFed. R. Civ. P. 26 (c).
18.53Supplementing disclosures and responses18.16Supplementation of responsesFed. R. Civ. P.26 (e).
18.54Stipulations about discovery and procedure18.17Stipulations regarding discoveryFed. R. Civ. P. 29.
18.55Using depositions at hearings18.23Use of depositions at hearingsFed. R. Civ. P. 32.
18.56Subpoena18.24SubpoenasFed. R. Civ. P. 45.
18.57Failure to make disclosures or to cooperate in discovery; sanctions18.21Motion to compel discoveryFed. R. Civ. P. 37.
Types of Discovery
18.60Interrogatories to parties18.18Written interrogatories to parties/Fed. R. Civ. P. 33.
18.61Producing documents, electronically stored information, and tangible things, or entering onto land, for inspection and other purposes18.19Production of documents and other evidence; entry upon land for inspection and other purposes; and physical and mental examinationFed. R. Civ. P. 34.
18.62Physical and mental examinations18.19Production of documents and other evidence; entry upon land for inspection and other purposes; and physical and mental examinationFed. R. Civ. P. 35.
18.63Requests for admission18.20AdmissionsFed. R. Civ. P. 36.
18.64Depositions by oral examination18.22Depositions by oral examinationsFed. R. Civ. P. 30.
18.65Depositions by written questionsFed. R. Civ. P. 31.
Disposition Without Hearing
18.70Motions for dispositive action
18.71Approval of settlement or consent findings18.9
18.72Summary decision18.40/18.4118.40, Motion for summary decision merged with 18.41, Summary decisionFed. R. Civ. P. 56.
Hearing
18.80Prehearing statement18.7Prehearing statements
18.81Formal hearing18.43Formal hearingsFed. R. Civ. P. 43(a).
18.82Exhibits18.47/18.48 18.49/18.50Exhibits/records in other proceedings/designation of parts of documents/authenticity
18.83Stipulations18.51Stipulations
18.84Official notice18.45Official notice
18.85Privileged, sensitive, or classified material18.46/18.56In camera and protective orders/restricted access
18.86Hearing room conduct18.37Hearing room conduct
18.87Standards of conduct18.36Standards of conduct
18.88Transcript of proceedings18.52Record of hearings
Post Hearing
18.90Closing the record; subsequent motions18.54/18.55Closing the record /receipt of documents after hearing
18.91Post-hearing brief18.57Decision of the administrative law judge and post-hearing briefs
18.92Decision and order18.57Decision of the administrative law judge and post-hearing briefs
18.93Motion for reconsiderationFed. R. Civ. P. 59 (e).
18.94Indicative ruling on a motion for relief that is barred by a pending petition for reviewFed. R. Civ. P. 62.1.
18.95Review of Decision18.58Appeals
Deleted Sections
Deleted18.13Discovery methods
Deleted18.32Separation of functions
Deleted18.33Expedition
Deleted18.53Closing of hearings
Deleted18.59Certification of official record

 

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