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 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.
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
Deleted 18.33 Expedition
Deleted 18.53 Closing of hearings
Deleted 18.59 Certification of official record

 

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