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