The OALJ Notice
The Office of Administrative Law Judges (“OALJ”) has issued Order 2021-MIS-00006, In Re: Cases Involving Foreign Parties. In this administrative notice issued on October 5, 2021, the OALJ sets forth guidelines for American attorney’s practicing under the Defense Base Act (claimant and employer) seeking to offer testimony and introduce documentary evidence originating outside the jurisdiction of the United States. According to the OALJ, the purpose of this order is “to minimize risk that the parties may take, or that the OALJ unwittingly facilitates, enables, or condones, actions potentially inconsistent with applicable law in cases involving foreign parties, witnesses and/or evidence.”
This administrative notice recommends that litigants take the following protective measures so as not to run afoul of international law:
- Certification of Compliance: a presiding administrative law judge may inquire about the parties’ compliance with law applicable to the foreign national claimant. There are two elements to this Certification of Compliance, one appearing to apply more generally to foreign national claimants and the other appearing to apply more generally to employers and carriers.
- Claimants: when a party and/or the party’s representative “seeks to participate in an OALJ proceeding from a location outside the territorial jurisdiction of the United States,” that party should certify in writing or on the record that all applicable legal requirements have been met.
- Employers/Carriers: when a party “seeks to elicit testimony from a witness located outside the territorial jurisdiction of the United States,” that party should certify in writing or on the record that all applicable legal requirements have been met, including administering an oath to a witness.
- Testimony and Evidence in a Foreign Language Offered at Hearing: the party offering foreign language evidence shall arrange for a translation of that witness’s testimony into English. However, the party may request that the OALJ provide interpretation services at formal hearing. With respect to documentary evidence, both the foreign language document and its English translation must be offered together.
- Hearing on the Written Record: litigants may conclude that everyone is best served by waiving an oral evidentiary hearing and instead submitting a decision on the written record. Parties should meet and confer early in the litigation to determine whether the matter should be submitted on the written record.
Impact on Employers and Carriers
This administrative order provides guidance on dealing with foreign national claimants, but does not mandate very much. The only mandate the order provides relates to foreign language evidence, essentially placing the burden of the English translation on those who are offering the evidence. Although a written Certification of Compliance is not required under this administrative order, we will work with our third party vendors who arrange for foreign testimony to develop a “best practice” to ensure that all stakeholders in DBA defense continue to defend these claims in compliance with international law.
This order does, however, open the door a bit wider for hearings based on written submission only. We have taken the position on behalf of our DBA clients that allowing the claimant to escape cross-examination before the finder of fact deprives Employer/Carrier of due process and a right to confrontation. Ostensibly, the order may allow the claimant to submit a pre-litigation, pre-claim and un-cross-examined written statement to successfully be awarded benefits under DBA. In light of the fact that the OALJ has adopted Microsoft Teams as a video platform to conduct hearings, we will continue to advocate for these video hearings where the ALJ can observe the claimant-witness and make credibility determinations.