DOL Proposes Revisions to Rules of Practice Before the Office of Administrative Law Judges

The Department of Labor (“DOL”) has proposed to revise the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges.  The Rules were enacted in 1983, but they have not been amended like the Federal Rules of Civil Procedure (“FRCP”).  The DOL’s proposed changes are designed to reflect the changes in litigation and discovery over the past 28 years, provide clarity through the use of consistent terminology, and adequately address the expanded roles of Administrative Law Judges (“ALJ”).  Congress has tasked ALJs with handling a wider variety of cases than anticipated when the Rules were promulgated in 1983 (including whistleblower and workplace retaliation cases), and the proposed revisions address the “more structured management and oversight” necessary to manage the complexities of these claims. 

Having thumbed through the changes, it is clear that the DOL wants the Rules to mimic the FRCP, both in form and substance.  There are some interesting changes proposed.  For instance, there is a proposed rule for redacting personal data identifiers from exhibits submitted in a hearing; there is a a change in how time is computed for purposes of the litigation; there is an affirmative duty for each party and their attorney to investigate the existence of electronically-stored information, including e-mails; there is a proposed uniform format for papers filed (but font size is not mentioned); and it appears that there are going to be more judge-mandated conferences in each case.

Finally, Longshore practitioners should keep in mind that the Rules cannot supersede the Longshore-specific adjudication regulations found at 20 C.F.R. § 702.301 et seq.  As the DOL made clear in its proposed revisions: “Additionally, the Department recognizes that the provisions of a specific regulation may be inconsistent with these rules.  In such event, the specific regulation–and not these rules–applies.”  Of course, some of the Longshore-specific regulations cannot be followed in practice and should be amended too (like the 20-day window for an ALJ to issue a comprehensive Decision and Order in a Longshore or Defense Base Act case, see 20 C.F.R. § 702.348).

We plan to review the proposed revisions, but we ask for others to do the same.  The public comment period ends on February 4, 2013.