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| section_id ▼ | title_number | title_name | chapter | subchapter | part_number | part_name | subpart | subpart_name | section_number | section_heading | agency | authority | source_citation | amendment_citations | full_text |
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 15:15:1.1.1.1.23.0.1.1 | 15 | Commerce and Foreign Trade | 18 | PART 18—ATTORNEY'S FEES AND OTHER EXPENSES | § 18.1 Purpose of these rules. | DOC | The Equal Access to Justice Act, 5 U.S.C. 504 (called “the Act” in this part), provides for the award of attorney fees and other expenses to eligible individuals and entities who are parties to certain administrative proceedings (called “adversary adjudications”) before the Department of Commerce (the word Department includes its component agencies). An eligible party may receive an award when it prevails over the Department, unless the Department's position in the proceeding was substantially justified or special circumstances make an award unjust. The rules in this part describe the parties that are eligible for awards and the Department's proceedings that are covered by the Act. They also explain how to apply for awards, and the procedures and standards that the Department will use to make them. | ||||||||
| 15:15:1.1.1.1.23.0.1.10 | 15 | Commerce and Foreign Trade | 18 | PART 18—ATTORNEY'S FEES AND OTHER EXPENSES | § 18.10 Delegations of authority. | DOC | The Secretary delegates to the General Counsel the authority to take final action on matters pertaining to the Act. | ||||||||
| 15:15:1.1.1.1.23.0.1.2 | 15 | Commerce and Foreign Trade | 18 | PART 18—ATTORNEY'S FEES AND OTHER EXPENSES | § 18.2 Definitions. | DOC | As used in this part: (a) Adversary adjudication means an adjudication under 5 U.S.C. 554 in which the position of the United States is represented by counsel or otherwise, but excludes an adjudication for the purpose of establishing or fixing a rate or for the purpose of granting or renewing a license. (b) Adjudicative officer means the official, without regard to whether the official is designated as an administrative law judge, a hearing officer or examiner, or otherwise, who presided at the adversary adjudication. | ||||||||
| 15:15:1.1.1.1.23.0.1.3 | 15 | Commerce and Foreign Trade | 18 | PART 18—ATTORNEY'S FEES AND OTHER EXPENSES | § 18.3 When the Act applies. | DOC | [53 FR 6798, Mar. 3, 1988] | The Act applies to any adversary adjudication pending or commenced before the Department on or after August 5, 1985. It also applies to any adversary adjudication commenced on or after October 1, 1984, and finally disposed of before August 5, 1985, provided that an application for fees and expenses, as described in §§ 18.11 through 18.14 of this part, has been filed with the Department within 30 days after August 5, 1985, and to any adversary adjudication pending on or commenced on or after October 1, 1981, in which an application for fees and other expenses was timely filed and was dismissed for lack of jurisdiction. | |||||||
| 15:15:1.1.1.1.23.0.1.4 | 15 | Commerce and Foreign Trade | 18 | PART 18—ATTORNEY'S FEES AND OTHER EXPENSES | § 18.4 Proceedings covered. | DOC | [47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6798, Mar. 3, 1988] | (a) The Act applies to adversary adjudications conducted by the Department and to appeals of decisions of contracting officers of the Department made pursuant to section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605) before agency boards of contract appeals as provided in section 8 of that Act (41 U.S.C. 607). Adversary adjudications conducted by the Department are adjudications under 5 U.S.C. 554 in which the position of this or any other agency of the United States, or any component of an agency, is presented by an attorney or other representative who enters an appearance and participates in the proceeding. Pursuant to section 8(c) of the Contract Disputes Act (41 U.S.C. 607(c)), the Department has arranged for appeals from decisions by contracting officers of the Department to be decided by the General Services Administration Board of Contract Appeals. This Board, in accordance with its own procedures, shall be responsible for making determinations on applications pursuant to the Act relating to appeals to the Board from decisions of contracting officers of the Department. Such determinations are final, subject to appeal under § 18.23. Any proceeding in which the Department may prescribe a lawful present or future rate is not covered by the Act. Proceedings to grant or renew licenses are also excluded, but proceedings to modify, suspend, or revoke licenses are covered if they are otherwise “adversary adjudications.” The Department proceedings covered are: (1) Department-wide. (i) Title VI Civil Rights hearings conducted by the Department under 42 U.S.C. 2000d-1 and 15 CFR 8.12(d). (ii) Handicap discrimination hearings conducted by the Department under 29 U.S.C. 794(a) and 15 CFR 8.12(d). (2) National Oceanic and Atmospheric Administration (“NOAA”) (i) Proceedings concerning suspension, revocation, or modification of a permit or license issued by NOAA. (ii) Proceedings to assess civil penalties under any of the statutes administered by NOAA. (3) International Trade Administration. Enforcement … | |||||||
| 15:15:1.1.1.1.23.0.1.5 | 15 | Commerce and Foreign Trade | 18 | PART 18—ATTORNEY'S FEES AND OTHER EXPENSES | § 18.5 Eligibility of applicants. | DOC | [47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6798, Mar. 3, 1988] | (a) To be eligible for an award of attorney fees and other expenses under the Act, the applicant must be a party to the adversary adjudication for which it seeks an award. The term “party” is defined in 5 U.S.C. 551(3). The applicant must show that it meets all conditions of eligibility set out in this part. (b) The types of eligible applicants are as follows: (1) An individual with a net worth of not more than $2 million; (2) The sole owner of an unincorporated business who has a net worth of not more than $7 million, including both personal and business interests, and not more than 500 employees; (3) A charitable or other tax-exempt organization described in section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) with not more than 500 employees; (4) A cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500 employees; and (5) Any other partnership, corporation, association, unit of local government, or organization with a net worth of not more than $7 million and not more than 500 employees. (c) For the purpose of eligibility, the net worth and number of employees of an applicant shall be determined as of the date the proceeding was initiated. (d) An applicant who owns an unincorporated business will be considered as an “individual” rather than a “sole owner of an unincorporated business” if the issues on which the applicant prevails are related primarily to personal interests rather than to business interests. (e) The employees of an applicant include all persons who regularly perform services for remuneration for the applicant, under the applicant's direction and control. Part-time employees shall be included on a proportional basis. (f) The net worth and number of employees of the applicant and all of its affiliates shall be aggregated to determine eligibility. Any individual, corporation or other entity that directly or indirectly controls or owns a majority of the voting shares or other interest of the applican… | |||||||
| 15:15:1.1.1.1.23.0.1.6 | 15 | Commerce and Foreign Trade | 18 | PART 18—ATTORNEY'S FEES AND OTHER EXPENSES | § 18.6 Standards for awards. | DOC | [47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988] | (a) A prevailing applicant may receive an award for fees and expenses incurred in connection with a proceeding, or in a significant and discrete substantive portion of the proceedings, unless the position of the Department over which the applicant has prevailed was substantially justified. The position of the Department includes, in addition to the position taken by the Department in the adversary adjudication, the action or failure to act by the Department upon which the adversary adjudication is based. The burden of proof that an award should not be made to an eligible prevailing applicant because the Department's position was substantially justified is on the agency counsel. (b) An award will be reduced or denied if the applicant has unduly or unreasonably protracted the proceeding or if special circumstances make the award sought unjust. | |||||||
| 15:15:1.1.1.1.23.0.1.7 | 15 | Commerce and Foreign Trade | 18 | PART 18—ATTORNEY'S FEES AND OTHER EXPENSES | § 18.7 Allowable fees and expenses. | DOC | [47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988] | (a) Awards will be based on rates customarily charged by persons engaged in the business of acting as attorneys, agents and expert witnesses, even if the services were made available without charge or at a reduced rate to the applicant. (b) No award for the fee of an attorney or agent under this rule may exceed $75.00 per hour. No award to compensate an expert witness may exceed the highest rate at which the Department pays expert witnesses. However, an award may also include the reasonable expenses of the attorney, agent, or witness as a separate item, if the attorney, agent, or witness ordinarily charges clients separately for such expenses. (c) In determining the reasonableness of the fee sought for an attorney, agent, or expert witness, the adjudicative officer shall consider the following: (1) If the attorney, agent, or witness is in private practice, his or her customary fee for similar services, or, if an employee of the applicant, the fully allocated cost of the services; (2) The prevailing rate for similar services in the community in which the attorney, agent or witness ordinarily performs services; (3) The time actually spent in the representation of the applicant; (4) The time reasonably spent in light of the difficulty or complexity of the issues in the proceedings; and (5) Such other factors as may bear on the value of the services provided. (d) The reasonable cost of any study, analysis, engineering report, test, project, or similar matter prepared on behalf of a party may be awarded, to the extent that the charge for the service does not exceed the prevailing rate for similar services, and the study or other matter was necessary for preparation of the applicant's case. | |||||||
| 15:15:1.1.1.1.23.0.1.8 | 15 | Commerce and Foreign Trade | 18 | PART 18—ATTORNEY'S FEES AND OTHER EXPENSES | § 18.8 Rulemaking on maximum rates for attorney fees. | DOC | (a) If warranted by an increase in the cost of living or by special circumstances (such as limited availability of attorneys qualified to handle certain types of proceedings), the Department may adopt regulations providing that attorney fees may be awarded at a rate higher than the ceiling set forth in § 18.7(b) in some or all of the types of proceedings covered by this part. The Department will conduct any rulemaking proceedings for this purpose under the informal rulemaking procedures of the Administrative Procedure Act. (b) Any person may file with the Department a petition for rulemaking to increase the maximum rate for attorney fees. The petition should be sent to the General Counsel, Department of Commerce, 14th Street and Constitution Avenue, Room 5870, Washington, D.C. 20230. The petition should identify the rate the petitioner believes the Department should establish and the types of proceedings in which the rate should be used. It should also explain fully the reasons why higher rate is warranted. The Department will respond to the petition within 60 days after it is filed, by initiating a rulemaking proceeding, denying the petition, or taking other appropriate action. | ||||||||
| 15:15:1.1.1.1.23.0.1.9 | 15 | Commerce and Foreign Trade | 18 | PART 18—ATTORNEY'S FEES AND OTHER EXPENSES | § 18.9 Awards against other agencies. | DOC | If an applicant is entitled to an award because it prevailed over another agency of the United States that participated in a proceeding before the Department and took a position that was not substantially justified, the award or an appropriate portion of the award shall be made against that agency. | ||||||||
| 15:15:1.1.1.1.23.0.2.11 | 15 | Commerce and Foreign Trade | 18 | PART 18—ATTORNEY'S FEES AND OTHER EXPENSES | § 18.11 Contents of application. | DOC | [47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988] | (a) An application for an award of fees and expenses under the Act shall identify the applicant and the proceeding for which an award is sought. The application shall show that the applicant has prevailed and identify the position of the Department or other agency in the proceeding that the applicant alleges was not substantially justified. Unless the applicant is an individual, the application shall also state the number of employees of the applicant and describe briefly the type and purpose of its organization or business. (b) The application shall also include a statement that the applicant's net worth does not exceed $2 million (if an individual) or $7 million (for all other applicants, including their affiliates). However, an applicant may omit this statement if: (1) It attaches a copy of a ruling by the Internal Revenue Service that it qualifies as an organization described in section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)), or, in the case of a tax-exempt organization not required to obtain a ruling from the Internal Revenue Service on its exempt status, a statement that describes the basis for the applicant's belief that it qualifies under such section; or (2) It states that it is a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)) and includes a copy of its charter or articles of incorporation. (c) The application shall state the amount of fees and expenses for which an award is sought. (d) The application may also include any other matters that the applicant wishes the adjudicative officer to consider in determining whether and in what amount an award should be made. (e) The application shall be signed by the applicant or an authorized officer or attorney of the applicant. It shall also contain or be accompanied by a written verification under oath or under penalty of perjury that the information provided in the application is true and correct. | |||||||
| 15:15:1.1.1.1.23.0.2.12 | 15 | Commerce and Foreign Trade | 18 | PART 18—ATTORNEY'S FEES AND OTHER EXPENSES | § 18.12 Net worth exhibit. | DOC | [47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988] | (a) Each applicant except a qualified tax-exempt organization or cooperative association must provide with its application a detailed exhibit showing the net worth of the applicant and any affiliates (as defined in § 18.5(f) of this part) when the proceeding was initiated. Unless regulations issued by a component of the Department establish particular requirements, the exhibit may be in any form convenient to the applicant that provides full disclosure of the applicant's and its affiliates' assets and liabilities and is sufficient to determine whether the applicant qualifies under the standards in this part. The adjudicative officer may require an applicant to file additional information to determine its eligibility for an award. (b) Ordinarily, the net worth exhibit will be included in the public record of the proceeding. However, an applicant that objects to public disclosure of information in any portion of the exhibit and believes there are legal grounds for withholding it from disclosure may submit that portion of the exhibit directly to the adjudicative officer in a sealed envelope labeled “Confidential Financial Information,” accompanied by a motion to withhold the information from public disclosure. The motion shall describe the information sought to be withheld and explain, in detail, why it falls within one or more of the specific exemptions from mandatory disclosure under the Freedom of Information Act, 5 U.S.C. 552(b)(1)-(9), why public disclosure of the information would adeversely affect the applicant, and why disclosure is not required in the public interest. The material in question shall be served on counsel representing the agency against which the applicant seeks an award, but need not be served on any other party to the proceeding. If the adjudicative officer finds that the information should not be withheld from disclosure, it shall be placed in the public record of the proceeding. Otherwise, any request to inspect or copy the exhibit shall be disposed of in accordance with the Department's … | |||||||
| 15:15:1.1.1.1.23.0.2.13 | 15 | Commerce and Foreign Trade | 18 | PART 18—ATTORNEY'S FEES AND OTHER EXPENSES | § 18.13 Documentation of fees and expenses. | DOC | The application shall be accompanied by full documentation of the fees and expenses, including the cost of any study, analysis, engineering report, test, project, or similar matter for which an award is sought. A separate itemized statement shall be submitted for each professional firm or individual whose services are covered by the application, showing the hours spent in connection with the proceeding by each individual, a description of the specific services performed, the rate at which each fee has been computed, any expenses for which reimbursement is sought, the total amount claimed, and the total amount paid or payable by the applicant or by any other person or entity for the services provided. The adjudicative officer may require the applicant to provide vouchers, receipts, or other substantiation for any expenses claimed. | ||||||||
| 15:15:1.1.1.1.23.0.2.14 | 15 | Commerce and Foreign Trade | 18 | PART 18—ATTORNEY'S FEES AND OTHER EXPENSES | § 18.14 When an application may be filed. | DOC | [47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988] | (a) An application may be filed whenever the applicant has prevailed in the proceeding or in a significant and discrete substantive portion of the proceeding, but in no case later than 30 days after the Department's final disposition of the proceeding. (b) For purposes of this rule, final disposition means the date on which a decision or order disposing of the merits of the proceeding or any other complete resolution of the proceeding, such as a settlement or voluntary dismissal, becomes final and unappealable, both within the agency and to the courts. (c) If review or reconsideration is sought or taken of a decision as to which an applicant believes it has prevailed, proceedings for the award of fees shall be stayed pending final disposition of the underlying controversy. When the United States appeals the underlying merits of an adversary adjudication to a court, no decision on an application for fees and other expenses in connection with that adversary adjudication shall be made until a final and unreviewable decision is rendered by the court on the appeal or until the underlying merits of the case have been finally determined pursuant to the appeal. | |||||||
| 15:15:1.1.1.1.23.0.3.15 | 15 | Commerce and Foreign Trade | 18 | PART 18—ATTORNEY'S FEES AND OTHER EXPENSES | § 18.15 Filing and service of documents. | DOC | Any application for an award or other pleading or document related to an application shall be filed and served on all parties to the proceeding in the same manner as other pleadings in the proceeding, except as provided in § 18.12(b) for confidential financial information. | ||||||||
| 15:15:1.1.1.1.23.0.3.16 | 15 | Commerce and Foreign Trade | 18 | PART 18—ATTORNEY'S FEES AND OTHER EXPENSES | § 18.16 Answer to application. | DOC | [47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988] | (a) Within 30 calendar days after service of an application, counsel representing the agency against which an award is sought may file an answer to the application. Unless agency counsel requests an extension of time for filing (an extension for an additional 30 days is available as a matter of right) or files a statement of intent to negotiate under paragraph (b) of this section, failure to file an answer within the 30 calendar day period may be treated as a consent to the award requested. (b) If agency counsel and the applicant believe that the issues in the fee application can be settled, they may jointly file a statement of their intent to negotiate a settlement. The filing of this statement shall extend the time for filing an answer for an additional 30 days, and further extensions may be granted by the adjudicative officer upon request by agency counsel and the applicant. (c) The answer shall explain in detail any objections to the award requested and identify the facts relied on in support of the agency counsel's position. If the answer is based on any alleged facts not already in the record of the proceeding, agency counsel shall include with the answer either supporting affidavits or a request for further proceedings under § 18.20. | |||||||
| 15:15:1.1.1.1.23.0.3.17 | 15 | Commerce and Foreign Trade | 18 | PART 18—ATTORNEY'S FEES AND OTHER EXPENSES | § 18.17 Reply. | DOC | Within 15 calendar days after service of an answer, the applicant may file a reply. If the reply is based on any alleged facts not already in the record of the proceeding, the applicant shall include with the reply either supporting affidavits or a request for further proceedings under § 18.20. | ||||||||
| 15:15:1.1.1.1.23.0.3.18 | 15 | Commerce and Foreign Trade | 18 | PART 18—ATTORNEY'S FEES AND OTHER EXPENSES | § 18.18 Comments by other parties. | DOC | [47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988] | Any party to a proceeding other than the applicant and the agency counsel may file comments on an application within 30 calendar days after it is served or on an answer within 15 calendar days after it is served. A commenting party may not participate further in proceedings on the application unless the adjudicative officer determines that the public interest requires such participation in order to permit full exploration of matters raised in the comments. | |||||||
| 15:15:1.1.1.1.23.0.3.19 | 15 | Commerce and Foreign Trade | 18 | PART 18—ATTORNEY'S FEES AND OTHER EXPENSES | § 18.19 Settlement. | DOC | [47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988] | The applicant and agency counsel may agree on a proposed settlement of the award before final action on the application, either in connection with a settlement of the underlying proceeding, or after the underlying proceeding has been concluded, in accordance with the component agency's standard settlement procedure. If a prevailing party and agency counsel agree on a proposed settlement of an award before an application has been filed, the application shall be filed with the proposed settlement. | |||||||
| 15:15:1.1.1.1.23.0.3.20 | 15 | Commerce and Foreign Trade | 18 | PART 18—ATTORNEY'S FEES AND OTHER EXPENSES | § 18.20 Further proceedings. | DOC | [47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988] | (a) Ordinarily, the determination of an award will be made on the basis of the written record. However, on request of either the applicant or agency counsel, or on his or her own initiative, the adjudicative officer may order further proceedings, such as an informal conference, oral argument, additional written submissions or, as to issues other than substantial justification (such as the applicant's eligibility or substantiation of fees and expenses), pertinent discovery or an evidentiary hearing. Such further proceedings shall be held only when necessary for full and fair resolution of the issues arising from the application, and shall be conducted as promptly as possible. Whether or not the position of the agency was substantially justified shall be determined on the basis of the administrative record, as a whole, which is made in the adversary adjudication for which fees and other expenses are sought. (b) A request that the adjudicative officer order further proceedings under this section shall specifically identify the information sought or the disputed issues and shall explain why the additional proceedings are necessary to resolve the issues. | |||||||
| 15:15:1.1.1.1.23.0.3.21 | 15 | Commerce and Foreign Trade | 18 | PART 18—ATTORNEY'S FEES AND OTHER EXPENSES | § 18.21 Decision. | DOC | [47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988] | The adjudicative officer shall issue an initial decision on the application within 30 calendar days after completion of proceedings on the application. The initial decision of the adjudicative officer shall include written findings and conclusions on the applicant's eligibility and status as a prevailing party, and an explanation of the reasons for any difference between the amount requested and the amount awarded. The decision shall also include, if at issue, findings on whether the Department's position was substantially justified, whether the applicant unduly protracted the proceedings, or whether special circumstances make an award unjust. If the applicant has sought an award against more than one agency, the decision shall allocate responsibility for payment of any award made among the agencies, and shall explain the reasons for the allocation made. | |||||||
| 15:15:1.1.1.1.23.0.3.22 | 15 | Commerce and Foreign Trade | 18 | PART 18—ATTORNEY'S FEES AND OTHER EXPENSES | § 18.22 Agency review. | DOC | [53 FR 6799, Mar. 3, 1988] | Either the applicant or agency counsel may file a petition for review of the initial decision on the fee application, or the Department may decide to review the decision on its own initiative. The petition must be filed with the General Counsel, Office of the Assistant General Counsel for Administration, Rm. 5882, U.S. Department of Commerce, 14th Street and Pennsylvania Avenue NW., Washington, DC 20230, not later than 30 calendar days after the initial decision is issued. For purposes of this section, a document will be considered filed with the General Counsel as of the date of the postmark (or for government penalty mail, as shown by a certificate of mailing), if mailed, or if not mailed, as of the date actually delivered to the Office of General Counsel. A petition for review must be accompanied by a full written statement in support thereof, including a precise statement of why the petitioner believes the initial decision should be reversed or modified, and proof of service upon all parties. A response to the petition may be filed by another party to the proceeding and must be filed with the General Counsel at the above address not more than 30 calendar days after the date of service of the petition for review. The General Counsel may request any further submissions deemed helpful in resolving the petition for review. If neither the applicant nor agency counsel seeks review and the Department does not take review on its own initiative, the initial decision on the application shall become a final decision of the Department 30 calendar days after it is issued. Whether to review a decision is a matter within the discretion of the General Counsel. If review is taken, the General Counsel will issue the Department's final decision on the application or remand the application to the adjudicative officer for further proceedings. The standard of review exercised by the General Counsel shall be that which was required for the highest level of Departmental review which could have been exercised on the underlying covere… | |||||||
| 15:15:1.1.1.1.23.0.3.23 | 15 | Commerce and Foreign Trade | 18 | PART 18—ATTORNEY'S FEES AND OTHER EXPENSES | § 18.23 Judicial review. | DOC | Judicial review of final agency decisions on awards may be sought as provided in 5 U.S.C. 504(c)(2). | ||||||||
| 15:15:1.1.1.1.23.0.3.24 | 15 | Commerce and Foreign Trade | 18 | PART 18—ATTORNEY'S FEES AND OTHER EXPENSES | § 18.24 Payment of award. | DOC | [47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6800, Mar. 3, 1988] | An applicant seeking payment of an award by the Department shall submit a copy of the final decision granting the award, accompanied by a certification that the applicant will not seek review of the decision in the United States courts to the General Counsel, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Room 5870, Washington, D.C. 20230. The Department will pay the amount awarded to the applicant within 60 calendar days, unless judicial review of the award or of the underlying decision of the adversary adjudication has been sought by the applicant or any other party to the proceeding. | |||||||
| 17:17:1.0.1.1.17.0.7.1 | 17 | Commodity and Securities Exchanges | I | 18 | PART 18—REPORTS BY TRADERS | § 18.00 Information to be furnished by traders. | CFTC | [69 FR 76400, Dec. 21, 2004, as amended at 71 FR 37821, July 3, 2006] | Every trader who owns, holds or controls, or has held, owned or controlled, a reportable futures or options position in a commodity shall within one business day after a special call upon such trader by the Commission or its designee file reports to the Commission concerning transactions and positions in such futures or options. Reports shall be filed for the period of time that the trader held or controlled a reportable position and shall be prepared and submitted as instructed in the call. The report shall show for each day covered by the report the following information, as specified in the call, separately for each future or option and for each reporting market: (a) Open contracts; (b) Purchases and sales; (c) Delivery notices issued and stopped; (d) Purchases and sales of futures for commodities or for derivatives positions; and (e) Options exercised. | ||||||
| 17:17:1.0.1.1.17.0.7.2 | 17 | Commodity and Securities Exchanges | I | 18 | PART 18—REPORTS BY TRADERS | § 18.01 Interest in or control of several accounts. | CFTC | [74 FR 12191, Mar. 23, 2009] | If any trader holds, has a financial interest in or controls positions in more than one account, whether carried with the same or with different futures commission merchants or foreign brokers, all such positions and accounts shall be considered as a single account for the purpose of determining whether such trader has a reportable position and, unless instructed otherwise in the special call to report under § 18.00 for the purpose of reporting. | ||||||
| 17:17:1.0.1.1.17.0.7.3 | 17 | Commodity and Securities Exchanges | I | 18 | PART 18—REPORTS BY TRADERS | § 18.02 [Reserved] | CFTC | ||||||||
| 17:17:1.0.1.1.17.0.7.4 | 17 | Commodity and Securities Exchanges | I | 18 | PART 18—REPORTS BY TRADERS | § 18.03 Delegation of authority. | CFTC | [82 FR 28768, June 26, 2017, as amended at 89 FR 71810, Sept. 4, 2024] | (a) The Commission hereby delegates, until the Commission orders otherwise, the authority to make special calls on traders for information as set forth in §§ 18.00 and 18.05 to the Director of the Division of Enforcement, or such other employee or employees as the Director may designate. (b) The Commission hereby delegates, until the Commission orders otherwise, the authority to make special calls for information as set forth in § 18.04 to the Director of the Division of Data to be exercised by the Director, in consultation with the Director of the Division of Market Oversight, or such other employee or employees as the Directors each may designate. (c) The Directors of the Division of Enforcement and Division of Data may submit to the Commission for its consideration any matter which has been delegated in this section. (d) Nothing in this section prohibits the Commission, at its election, from exercising the authority delegated in this section. | ||||||
| 17:17:1.0.1.1.17.0.7.5 | 17 | Commodity and Securities Exchanges | I | 18 | PART 18—REPORTS BY TRADERS | § 18.04 Statement of reporting trader. | CFTC | [78 FR 69259, Nov. 18, 2013 | (a) Every trader who owns, holds, or controls a reportable futures and option position shall after a special call upon such trader by the Commission or its designee file with the Commission a “Statement of Reporting Trader” on the Form 40, to be completed in accordance with the instructions thereto, at such time and place as directed in the call. (b) Every volume threshold account controller, person who owns a volume threshold account, reportable sub-account controller, and person who owns a reportable sub-account shall after a special call upon such person by the Commission or its designee file with the Commission a “Statement of Reporting Trader” on the Form 40, to be completed in accordance with the instructions thereto, at such time and place as directed in the call. | ||||||
| 17:17:1.0.1.1.17.0.7.6 | 17 | Commodity and Securities Exchanges | I | 18 | PART 18—REPORTS BY TRADERS | § 18.05 Maintenance of books and records. | CFTC | [72 FR 60771, Oct. 26, 2007, as amended at 74 FR 12192, Mar. 23, 2009; 77 FR 66334, Nov. 2, 2012; 78 FR 69259, Nov. 18, 2013; 80 FR 59577, Oct. 2, 2015] | (a) Every volume threshold account controller; person who owns a volume threshold account; reportable sub-account controller; person who owns a reportable sub-account; and trader who owns, holds, or controls a reportable futures or option position shall keep books and records showing all details concerning all positions and transactions in the commodity or swap: (1) On all reporting markets; (2) Executed over the counter or pursuant to part 35 of this chapter; and (3) On foreign boards of trade. (b) Every such volume threshold account controller; person who owns a volume threshold account; reportable sub-account controller; person who owns a reportable sub-account; and trader who owns, holds, or controls a reportable futures or option position shall also keep books and records showing all details concerning all positions and transactions in the cash commodity or swap, its products and byproducts, and all commercial activities that it hedges in the futures, option, or swap contract in which it is reportable. (c) Every volume threshold account controller; person who owns a volume threshold account; reportable sub-account controller; person who owns a reportable sub-account; and trader who owns, holds, or controls a reportable futures or option position shall upon request furnish to the Commission any pertinent information concerning such positions, transactions, or activities in a form acceptable to the Commission. | ||||||
| 17:17:1.0.1.1.17.0.7.7 | 17 | Commodity and Securities Exchanges | I | 18 | PART 18—REPORTS BY TRADERS | § 18.06 [Reserved] | CFTC | ||||||||
| 24:24:1.1.1.1.15.0.37.1 | 24 | Housing and Urban Development | 18 | PART 18—INDEMNIFICATION OF HUD EMPLOYEES | § 18.1 Policy. | HUD | (a) The Department of Housing and Urban Development may indemnify, in whole or in part, a Department employee (which for the purpose of this part includes a former Department employee) for any verdict, judgment or other monetary award which is rendered against any such employee, provided the Secretary or his or her designee determines that: (1) The conduct giving rise to the verdict, judgment or award was taken within the scope of his or her employment with the Department; and (2) Such indemnification is in the interest of the United States. (b) The Department of Housing and Urban Development may settle or compromise a personal damage claim against a Department employee by the payment of available funds, at any time, provided the Secretary or his or her designee determines that: (1) The alleged conduct giving rise to the personal damage claim was taken within the scope of employment; and (2) That such settlement or compromise is in the interest of the United States. (c) Absent exceptional circumstances, as determined by the Secretary or his or her designee, the Department will not entertain a request either to agree to indemnify or to settle a personal damage claim before entry of an adverse verdict, judgment or monetary award. (d) When an employee of the Department becomes aware that an action has been filed against the employee in his or her individual capacity as a result of conduct taken within the scope of his or her employment, the employee should immediately notify his or her supervisor that such an action is pending. The supervisor shall promptly notify the head of his or her operating component and the Associate General Counsel for Litigation and Fair Housing Enforcement, if the supervisor is located at headquarters, or Field Assistant General Counsel—who shall promptly notify the Associate General Counsel for Litigation and Fair Housing Enforcement—if the supervisor is located in the field. As used in this section, the term “principal operating component” means an office in the Department headed … | ||||||||
| 28:28:1.0.1.1.19.0.4.1 | 28 | Judicial Administration | I | 18 | PART 18—OFFICE OF JUSTICE PROGRAMS HEARING AND APPEAL PROCEDURES | § 18.1 Purpose. | DOJ | The purpose of this regulation is to implement the hearing and appeal procedures available to State block or formula grant applicants or recipients and existing categorical grantees under sections 802 through 804 of title I of the Omnibus Crime Control and Safe Streets Act of 1968, as amended (Crime Control Act); sections 223(d), 226 and 228(e) of the Juvenile Justice and Delinquency Prevention Act of 1974, as amended (Juvenile Justice Act); and section 1407(F) of the Victims of Crime Act of 1984 (Victims of Crime Act). | |||||||
| 28:28:1.0.1.1.19.0.4.10 | 28 | Judicial Administration | I | 18 | PART 18—OFFICE OF JUSTICE PROGRAMS HEARING AND APPEAL PROCEDURES | § 18.10 Rehearing. | DOJ | (a) Any appellant dissatisfied with a final agency decision under § 18.9 may, within 30 days after the notice of the final agency decision is sent, request the responsible agency official to re-review the record, and present additional evidence which is appropriate and pertinent to support a different decision. (b) If the responsible agency official finds that the appellant has: (1) Presented evidence or argument which is sufficiently significant to require the conduct of further proceedings; or (2) Shown some defect in the conduct of the initial hearing sufficient to cause substantial unfairness or an erroneous finding in that hearing, the responsible agency official may require that another oral hearing be held on one or more of the issues in controversy, or permit the dissatisfied party to present further evidence or argument in writing. (c) Any rehearing ordered by the responsible agency official shall be conducted pursuant to §§ 18.5-18.8. | |||||||
| 28:28:1.0.1.1.19.0.4.2 | 28 | Judicial Administration | I | 18 | PART 18—OFFICE OF JUSTICE PROGRAMS HEARING AND APPEAL PROCEDURES | § 18.2 Application. | DOJ | (a) These procedures apply to all appeals and hearings of State formula or block grant applicants or recipients and all existing recipients of categorical grants or cooperative agreements requested under section 802 of the Justice Assistance Act; sections 223(d), 226 and 228(e) of the Juvenile Justice Act; section 1407(F) of the Victims of Crime Act; the nondiscrimination provision of section 809 of the Crime Control Act, or the cross-referenced provisions of the Emergency Federal Law Enforcement Assistance Program. The method of notifying recipients of their non-compliance with section 809 (the nondiscrimination provison of the Crime Control Act and 28 CFR 42.208. (b) These procedures do not apply to hearings requested under the Public Safety Officers' Benefits Act, 42 U.S.C. 3796, et seq. The hearing and appeal procedures available to claimants denied benefits under that Act are set forth in the appendix to 28 CFR part 32. (c) These procedures do not apply to subgrant applicants or to recipients or third party beneficiaries of block or formula grants awarded to a State. (d) These procedures do not apply to categorical grant applicants. (e) These procedures do not apply to private sector/prison industry enhancement certification applicants; Regional Information Sharing Systems grant applicants; surplus Federal property certification applicants; or the State reimbursement program for Incarcerated Mariel-Cubans. | |||||||
| 28:28:1.0.1.1.19.0.4.3 | 28 | Judicial Administration | I | 18 | PART 18—OFFICE OF JUSTICE PROGRAMS HEARING AND APPEAL PROCEDURES | § 18.3 Definitions. | DOJ | (a) Block or formula grant applicant or recipient means an applicant for a grant awarded under the provisions of part D of the Crime Control Act; part B, subpart I of the Juvenile Justice Act; and sections 1403 and 1404 of the Victims of Crime Act. (b) Categorical grant recipient means a public or private agency which has received a research, statistics, discretionary, technical assistance, special emphasis, training, concentration of Federal effort or other direct Federal assistance award of grant funds. (c) Categorical grant applicant means a public or private agency which has applied for a research, statistics, discretionary, technical assistance, special emphasis, training, concentration of Federal effort or other direct Federal assistance award of grant funds. (d) Grant includes cooperative agreements and means a direct award of financial assistance from OJP, BJA, NIJ, OJJDP, BJS or OVC. (e) Crime Control Act means the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. 3701, et seq., as amended. (f) Juvenile Justice Act means the Juvenile Justice and Delinquency Prevention Act of 1974, 42 U.S.C. 5601, et seq., as amended. (g) Responsible agency means the organizational unit whose action is being appealed. This will be OJP, NIJ, BJS, OJJDP, BJA or OVC as appropriate. In hearings requested under the nondiscrimination provisions of the Crime Control Act, the responsible agency is OJP. In hearings requested to contest block or formula grant denials or terminations or categorical grant terminations, the responsible agency is the organizational unit that took the action at issue: OJP, BJA, OJJDP, NIJ, BJS or OVC. (h) Responsible agency official means the Assistant Attorney General, Office of Justice Programs (OJP); the Director, Bureau of Justice Assistance (BJA); the Director, National Institute of Justice (NIJ); the Director, Bureau of Justice Statistics (BJS); the Director, Office for Victims of Crime (OVC); or the Administrator, Office of Juvenile Justice and Delinquency P… | |||||||
| 28:28:1.0.1.1.19.0.4.4 | 28 | Judicial Administration | I | 18 | PART 18—OFFICE OF JUSTICE PROGRAMS HEARING AND APPEAL PROCEDURES | § 18.4 Preliminary hearings. | DOJ | (a) A grantee determined to be in noncompliance with the nondiscrimination provisions of the Crime Control Act, the Juvenile Justice Act or the Victims of Crime Act may request a preliminary hearing within 90 days after receipt of the notification of noncompliance. (b) The preliminary hearing shall be initiated within 30 days of the request. (c) The sole issue to be adjudicated by the hearing officer is whether the grantee is likely to prevail on the merits of the issue at a full hearing requested under 28 CFR 42.215. The grantee shall have the burden of persuading the hearing officer that the grantee is likely to prevail on the merits. (d) The hearing officer may permit the parties to argue the issue by briefs, oral argument, or the presentation of testimony and exhibits. The hearing officer shall accept as evidence documents and other exhibits which can reasonably be authenticated and subjected to cross-examination at a full hearing. (e) The hearing officer shall make the final decision on the issue within 15 days after the conclusion of the preliminary hearing. | |||||||
| 28:28:1.0.1.1.19.0.4.5 | 28 | Judicial Administration | I | 18 | PART 18—OFFICE OF JUSTICE PROGRAMS HEARING AND APPEAL PROCEDURES | § 18.5 Hearings. | DOJ | (a) Whenever the responsible agency official finds that there has been a substantial failure to comply with: (1) The provisions of the Crime Control Act, the Juvenile Justice Act, or the Victims of Crime Act; (2) Regulations promulgated by the responsible agency pursuant to appropriate statutory authority; or (3) A plan or application submitted in accordance with the provisions of the Crime Control Act; the Juvenile Justice Act, the Victims of Crime Act, or the provisions of any other applicable Federal act, regulation or guideline; the responsible agency shall notify the grantee or applicant State that all or part of its grant or subgrant will be terminated or suspended until the responsible agency is satisfied that there is no longer such failure. (b) The notice shall contain: (1) A statement of facts sufficient to inform the party of the reasons for the agency's proposed action; (2) A statement of the nature of the action proposed to be taken; and (3) A reference of the available appeal rights. (c) If a block or formula grant applicant or recipient or a categorical grant recipient wishes to appeal any action covered by § 18.5(a) it may request a review of the issues in controversy within 30 days after notice of termination, noncompliance or denial by writing to: Office of General Counsel, office of Justice Programs, U.S. Department of Justice, 633 Indiana Avenue NW., Room 1268, Washington, DC 20531. Office of General Counsel, office of Justice Programs, U.S. Department of Justice, 633 Indiana Avenue NW., Room 1268, Washington, DC 20531. (d) The request for a review shall contain: (1) A factual statement sufficient to inform the responsible agency of the nature of the issues involved; (2) A recital of the relief requested; and (3) A request for an oral hearing, or in the alternative, an opportunity to submit only written information or argument to a hearing officer. (e) If the responsible agency official determines that basis for the appeal in § 18.5(c) would not, if substantiated, establish a b… | |||||||
| 28:28:1.0.1.1.19.0.4.6 | 28 | Judicial Administration | I | 18 | PART 18—OFFICE OF JUSTICE PROGRAMS HEARING AND APPEAL PROCEDURES | § 18.6 Conduct of hearings. | DOJ | (a) A hearing officer appointed by the responsible agency official shall preside over the hearing. The hearing officer may be an administrative law judge, or an employee of the Department of Justice who was not involved in the administration, investigation or prosecution of the matter at issue. In hearings held under the nondiscrimination provisions of the Crime Control Act, the Juvenile Justice Act or the Victims of Crime Act, the hearing officer shall be an administrative law judge. (b) If the hearing officer appointed is unacceptable to the appellant, it shall promptly inform the responsible agency official of the reasons for its position. The responsible agency official may select another hearing officer, or affirm the initial selection. In either case, the official shall inform the appellant of the reasons for the decision. (c) The hearing officer shall have the following powers and duties: (1) The power to hold hearings and regulate the course of the hearings and the conduct of the parties and their counsel; (2) The power to sign and issue subpoenas and other orders requiring access to records; (3) The power to administer oaths and affirmations; (4) The power to examine witnesses; (5) The power to rule on offers of proof and to receive evidence; (6) The power to take depositions or to cause depositions to be taken; (7) The power to hold conferences under § 18.6(d) for the settlement or simplification of the issues or for any other proper purpose; (8) The power to consider and rule upon procedural requests and other motions, including motions for default; (9) The duty to conduct fair and impartial hearings; (10) The duty to maintain order; (11) The duty to avoid unnecessary delay; and (12) All powers and duties reasonably necessary to perform the functions enumerated in subsections (1)-(11). (d) The hearing officer may call upon the parties to consider: (1) Simplification or clarification of the issues; (2) Stipulations, admissions, agreements on documents, or other understandings which will… | |||||||
| 28:28:1.0.1.1.19.0.4.7 | 28 | Judicial Administration | I | 18 | PART 18—OFFICE OF JUSTICE PROGRAMS HEARING AND APPEAL PROCEDURES | § 18.7 Discovery. | DOJ | (a)(1) At any time after the initiation of the proceeding, the hearing officer may order, by subpoena if necessary, the taking of a deposition and the production of relevant documents by the deponent. Such order may be entered upon a showing that the deposition is necessary for discovery purposes, and that such discovery could not be accomplished by voluntary methods. Such an order may also be entered in extraordinary circumstances to preserve relevant evidence upon a showing that there is substantial reason to believe that such evidence could not be presented through a witness at the hearing. The decisive factors for a determination under this subsection, however, shall be fairness to all parties and the requirements of due process. Depositions may be taken orally or upon written questions before any person who has the power to administer oaths. (2) Each deponent shall be duly sworn, and any adverse party shall have the right to cross-examine. Objections to questions or documents shall be in short form, stating the grounds upon which objections are made. The questions propounded and the answers thereto, together with all objections made (but not including argument or debate), shall be reduced to writing and certified by the officer before whom the deposition was taken. Thereafter, the officer shall forward the deposition and one (1) copy thereof to the party at whose instance the deposition was taken and shall forward one (1) copy to the representative of the other party. (3) A deposition may be admitted into evidence as against any party who was present or represented at the taking of the deposition, or who had due notice thereof, if the hearing officer finds that there are sufficient reasons for admission and that the admission of the evidence would be fair to all parties and comport with the requirements of due process. (b)(1) At any time after the initiation of the appeal, any party may serve upon any other party written interrogatories to be answered by the party served, or by an authorized representativ… | |||||||
| 28:28:1.0.1.1.19.0.4.8 | 28 | Judicial Administration | I | 18 | PART 18—OFFICE OF JUSTICE PROGRAMS HEARING AND APPEAL PROCEDURES | § 18.8 Recommended decision. | DOJ | Within a reasonable time after the close of the record of the hearings conducted under § 18.6, the hearing officer shall submit findings of fact, conclusions of law, and a recommended order to the responsible agency official, in writing. The hearing officer shall promptly make copies of these documents available to the parties. | |||||||
| 28:28:1.0.1.1.19.0.4.9 | 28 | Judicial Administration | I | 18 | PART 18—OFFICE OF JUSTICE PROGRAMS HEARING AND APPEAL PROCEDURES | § 18.9 Final agency decision. | DOJ | (a) In hearings conducted under § 18.6, the responsible agency official shall make the final agency decision, on the basis of the record, findings, conclusions, and recommendations presented by the hearing examiner. (b) Prior to making a final decision, the responsible agency official shall give the parties an opportunity to submit the following, within thirty (30) days after the submission of the hearing officer's recommendations: (1) Proposed findings and determinations; (2) Exceptions to the recommendations of the hearing officer; and (3) Supporting reasons for the exceptions or proposed findings or determinations; and (4) Final briefs summarizing the arguments presented at the hearing. (c) All determinations, findings and conclusions made by the responsible agency official shall be final and conclusive upon the responsible agency and all appellants. | |||||||
| 29:29:1.1.1.1.19.1.47.1 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.10 Scope and purpose. | DOL | (a) In general. These rules govern the procedure in proceedings before the United States Department of Labor, Office of Administrative Law Judges. They should be construed and administered to secure the just, speedy, and inexpensive determination of every proceeding. To the extent that these rules may be inconsistent with a governing statute, regulation, or executive order, the latter controls. If a specific Department of Labor regulation governs a proceeding, the provisions of that regulation apply, and these rules apply to situations not addressed in the governing regulation. The Federal Rules of Civil Procedure (FRCP) apply in any situation not provided for or controlled by these rules, or a governing statute, regulation, or executive order. (b) Type of proceeding. Unless the governing statute, regulation, or executive order prescribes a different procedure, proceedings follow the Administrative Procedure Act, 5 U.S.C. 551 through 559. (c) Waiver, modification, and suspension. Upon notice to all parties, the presiding judge may waive, modify, or suspend any rule under this subpart when doing so will not prejudice a party and will serve the ends of justice. | ||||||
| 29:29:1.1.1.1.19.1.47.2 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.11 Definitions. | DOL | For purposes of these rules, these definitions supplement the definitions in the Administrative Procedure Act, 5 U.S.C. 551. Calendar call means a meeting in which the judge calls cases awaiting hearings, determines case status, and assigns a hearing date and time. Chief Judge means the Chief Administrative Law Judge of the United States Department of Labor Office of Administrative Law Judges and judges to whom the Chief Judge delegates authority. Docket clerk means the Chief Docket Clerk at the Office of Administrative Law Judges in Washington, DC. But once a case is assigned to a judge in a district office, docket clerk means the docket staff in that office. Hearing means that part of a proceeding consisting of a session to decide issues of fact or law that is recorded and transcribed and provides the opportunity to present evidence or argument. Judge means an administrative law judge appointed under the provisions of 5 U.S.C. 3105. Order means the judge's disposition of one or more procedural or substantive issues, or of the entire matter. Proceeding means an action before the Office of Administrative Law Judges that creates a record leading to an adjudication or order. Representative means any person permitted to represent another in a proceeding before the Office of Administrative Law Judges. | ||||||
| 29:29:1.1.1.1.19.1.47.3 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.12 Proceedings before administrative law judge. | DOL | (a) Designation. The Chief Judge designates the presiding judge for all proceedings. (b) Authority. In all proceedings under this part, the judge has all powers necessary to conduct fair and impartial proceedings, including those described in the Administrative Procedure Act, 5 U.S.C. 556. Among them is the power to: (1) Regulate the course of proceedings in accordance with applicable statute, regulation or executive order; (2) Administer oaths and affirmations and examine witnesses; (3) Compel the production of documents and appearance of witnesses within a party's control; (4) Issue subpoenas authorized by law; (5) Rule on offers of proof and receive relevant evidence; (6) Dispose of procedural requests and similar matters; (7) Terminate proceedings through dismissal or remand when not inconsistent with statute, regulation, or executive order; (8) Issue decisions and orders; (9) Exercise powers vested in the Secretary of Labor that relate to proceedings before the Office of Administrative Law Judges; and (10) Where applicable take any appropriate action authorized by the FRCP. | ||||||
| 29:29:1.1.1.1.19.1.47.4 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.13 Settlement judge procedure. | DOL | (a) How initiated. The Office of Administrative Law Judges provides settlement judges to aid the parties in resolving the matter that is the subject of the controversy. Upon a joint request by the parties or upon referral by the judge when no party objects, the Chief Judge may appoint a settlement judge. A settlement judge will not be appointed when settlement proceedings would be inconsistent with a statute, regulation, or executive order. (b) Appointment. The Chief Judge has discretion to appoint a settlement judge, who must be an active or retired judge. The settlement judge will not be appointed to hear and decide the case or approve the settlement without the parties' consent and the approval of the Chief Judge. (c) Duration of settlement proceeding. Unless the Chief Judge directs otherwise, settlement negotiations under this section must be completed within 60 days from the date of the settlement judge's appointment. The settlement judge may request that the Chief Judge extend the appointment. The negotiations will be terminated if a party withdraws from participation, or if the settlement judge determines that further negotiations would be unproductive or inappropriate. (d) Powers of the settlement judge. The settlement judge may convene settlement conferences; require the parties or their representatives to attend with full authority to settle any disputes; and impose other reasonable requirements to expedite an amicable resolution of the case. (e) Stay of proceedings before presiding judge. The appointment of a settlement judge does not stay any aspect of the proceeding before the presiding judge. Any motion to stay must be directed to the presiding judge. (f) Settlement conferences. Settlement conferences may be conducted by telephone, videoconference or in person at the discretion of the settlement judge after considering the nature of the case, location of the participants, availability of technology, and efficiency of administration. (g) Confidentiality. All discussions with the s… | ||||||
| 29:29:1.1.1.1.19.1.47.5 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.14 Ex parte communication. | DOL | The parties, their representatives, or other interested persons must not engage in ex parte communications on the merits of a case with the judge. | ||||||
| 29:29:1.1.1.1.19.1.47.6 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.15 Substitution of administrative law judge. | DOL | (a) Substitution during hearing. If the judge is unable to complete a hearing, a successor judge designated pursuant to § 18.12 may proceed upon certifying familiarity with the record and determining that the case may be completed without prejudice to the parties. The successor judge must, at a party's request, recall any witness whose testimony is material and disputed and who is available to testify again without undue burden. The successor judge may also recall any other witness. (b) Substitution following hearing. If the judge is unable to proceed after the hearing is concluded, the successor judge appointed pursuant to § 18.12 may issue a decision and order based upon the existing record after notifying the parties and giving them an opportunity to respond. Within 14 days of receipt of the judge's notice, a party may file an objection to the judge issuing a decision based on the existing record. If no objection is filed, the objection is considered waived. Upon good cause shown, the judge may order supplemental proceedings. | ||||||
| 29:29:1.1.1.1.19.1.47.7 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.16 Disqualification. | DOL | (a) Disqualification on judge's initiative. A judge must withdraw from a proceeding whenever he or she considers himself or herself disqualified. (b) Request for disqualification. A party may file a motion to disqualify the judge. The motion must allege grounds for disqualification, and include any appropriate supporting affidavits, declarations or other documents. The presiding judge must rule on the motion in a written order that states the grounds for the ruling. | ||||||
| 29:29:1.1.1.1.19.1.47.8 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.17 Legal assistance. | DOL | The Office of Administrative Law Judges does not appoint representatives, refer parties to representatives, or provide legal assistance. | ||||||
| 29:29:1.1.1.1.19.1.48.10 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.21 Party appearance and participation. | DOL | (a) In general. A party may appear and participate in the proceeding in person or through a representative. (b) Waiver of participation. By filing notice with the judge, a party may waive the right to participate in the hearing or the entire proceeding. When all parties waive the right to participate in the hearing, the judge may issue a decision and order based on the pleadings, evidence, and briefs. (c) Failure to appear. When a party has not waived the right to participate in a hearing, conference or proceeding but fails to appear at a scheduled hearing or conference, the judge may, after notice and an opportunity to be heard, dismiss the proceeding or enter a decision and order without further proceedings if the party fails to establish good cause for its failure to appear. | ||||||
| 29:29:1.1.1.1.19.1.48.11 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.22 Representatives. | DOL | (a) Notice of appearance. When first making an appearance, each representative must file a notice of appearance that indicates on whose behalf the appearance is made and the proceeding name and docket number. Any attorney representative must include in the notice of appearance the license registration number(s) assigned to the attorney. (b) Categories of representation; admission standards —(1) Attorney representative. Under these rules, “attorney” or “attorney representative” means an individual who has been admitted to the bar of the highest court of a State, Commonwealth, or Territory of the United States, or the District of Columbia. (i) Attorney in good standing. An attorney who is in good standing in his or her licensing jurisdiction may represent a party or subpoenaed witness before the Office of Administrative Law Judges. The filing of the Notice of Appearance required in paragraph (a) of this section constitutes an attestation that: (A) The attorney is a member of a bar in good standing of the highest court of a State, Commonwealth, or Territory of the United States, or the District of Columbia where the attorney has been licensed to practice law; and (B) No disciplinary proceeding is pending against the attorney in any jurisdiction where the attorney is licensed to practice law. (ii) Attorney not in good standing. An attorney who is not in good standing in his or her licensing jurisdiction may not represent a party or subpoenaed witness before the Office of Administrative Law Judges, unless he or she obtains the judge's approval. Such an attorney must file a written statement that establishes why the failure to maintain good standing is not disqualifying. The judge may deny approval for the appearance of such an attorney after providing notice and an opportunity to be heard. (iii) Disclosure of discipline. An attorney representative must promptly disclose to the judge any action suspending, enjoining, restraining, disbarring, or otherwise currently restricting the attorney in the pract… | ||||||
| 29:29:1.1.1.1.19.1.48.12 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.23 Disqualification of representatives. | DOL | (a) Disqualification —(1) Grounds for disqualification. Representatives qualified under § 18.22 may be disqualified for: (i) Suspension of a license to practice law or disbarment from the practice of law by any court or agency of the United States, highest court of a State, Commonwealth, or Territory of the United States, or the District of Columbia; (ii) Disbarment from the practice of law on consent or resignation from the bar of a court or agency while an investigation into an allegation of misconduct is pending; or (iii) Committing an act, omission, or contumacious conduct that violates these rules, an applicable statute, an applicable regulation, or the judge's order(s). (2) Disqualification procedure. The Chief Judge must provide notice and an opportunity to be heard as to why the representative should not be disqualified from practice before the Office of Administrative Law Judges. The notice will include a copy of the document that provides the grounds for the disqualification. Unless otherwise directed, any response must be filed within 21 days of service of the notice. The Chief Judge's determination must be based on the reliable, probative and substantial evidence of record, including the notice and response. (b) Notification of disqualification action. When an attorney representative is disqualified, the Chief Judge will notify the jurisdiction(s) in which the attorney is licensed to practice and the National Lawyer Regulatory Data Bank maintained by the American Bar Association Standing Committee on Professional Discipline, by providing a copy of the decision and order. (c) Application for reinstatement. A representative disqualified under this section may be reinstated by the Chief Judge upon application. At the discretion of the Chief Judge, consideration of an application for reinstatement may be limited to written submissions or may be referred for further proceedings before the Chief Judge. | ||||||
| 29:29:1.1.1.1.19.1.48.13 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.24 Briefs from amicus curiae. | DOL | The United States or an officer or agency thereof, or a State, Territory, Commonwealth, or the District of Columbia may file an amicus brief without the consent of the parties or leave of the judge. Any other amicus curiae may file a brief only by leave of the judge, upon the judge's request, or if the brief states that all parties have consented to its filing. A request for leave to file an amicus brief must be made by written motion that states the interest of the movant in the proceeding. The deadline for submission of an amicus brief will be set by the presiding judge. | ||||||
| 29:29:1.1.1.1.19.1.48.9 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.20 Parties to a proceeding. | DOL | A party seeking original relief or action is designated a complainant, claimant or plaintiff, as appropriate. A party against whom relief or other action is sought is designated a respondent or defendant, as appropriate. When participating in a proceeding, the applicable Department of Labor's agency is a party or party-in-interest. | ||||||
| 29:29:1.1.1.1.19.1.49.14 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.30 Service and filing. | DOL | (a) Service on parties —(1) In general. Unless these rules provide otherwise, all papers filed with OALJ or with the judge must be served on every party. (2) Service: how made —(i) Serving a party's representative. If a party is represented, service under this section must be made on the representative. The judge also may order service on the party. (ii) Service in general. A paper is served under this section by: (A) Handing it to the person; (B) Leaving it; ( 1 ) At the person's office with a clerk or other person in charge or, if no one is in charge, in a conspicuous place in the office; or ( 2 ) If the person has no office or the office is closed, at the person's dwelling or usual place of abode with someone of suitable age and discretion who resides there. (C) Mailing it to the person's last known address—in which event service is complete upon mailing; (D) Leaving it with the docket clerk if the person has no known address; (E) Sending it by electronic means if the person consented in writing—in which event service is complete upon transmission, but is not effective if the serving party learns that it did not reach the person to be served; or (F) Delivering it by any other means that the person consented to in writing—in which event service is complete when the person making service delivers it to the agency designated to make delivery. (3) Certificate of service. A certificate of service is a signed written statement that the paper was served on all parties. The statement must include: (i) The title of the document; (ii) The name and address of each person or representative being served; (iii) The name of the party filing the paper and the party's representative, if any; (iv) The date of service; and (v) How the paper was served. (b) Filing with Office of Administrative Law Judges —(1) Required filings. Any paper that is required to be served must be filed within a reasonable time after service with a certificate of service. But disclosures under § 18.50(c) and the following d… | ||||||
| 29:29:1.1.1.1.19.1.49.15 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.31 Privacy protection for filings and exhibits. | DOL | (a) Redacted filings and exhibits. Unless the judge orders otherwise, in an electronic or paper filing or exhibit that contains an individual's social-security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, or a financial-account number, the party or nonparty making the filing must redact all such information, except: (1) The last four digits of the social-security number and taxpayer-identification number; (2) The year of the individual's birth; (3) The minor's initials; and (4) The last four digits of the financial-account number. (b) Exemptions from the redaction requirement. The redaction requirement does not apply to the following: (1) The record of an administrative or agency proceeding; (2) The official record of a state-court proceeding; (3) The record of a court or tribunal, if that record was not subject to the redaction requirement when originally filed; and (4) A filing or exhibit covered by paragraph (c) of this section. (c) Option for filing a reference list. A filing that contains redacted information may be filed together with a reference list that identifies each item of redacted information and specifies an appropriate identifier that uniquely corresponds to each item listed. The reference list must be filed under seal and may be amended as of right. Any reference in the case to a listed identifier will be construed to refer to the corresponding item of information. (d) Waiver of protection of identifiers. A person waives the protection of paragraph (a) of this section as to the person's own information by filing or offering it without redaction and not under seal. (e) Protection of material. For good cause, the judge may order protection of material pursuant to §§ 18.85 and 18.52. | ||||||
| 29:29:1.1.1.1.19.1.49.16 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.32 Computing and extending time. | DOL | [80 FR 28785, May 19, 2015, as amended at 80 FR 37539, July 1, 2015] | (a) Computing time. The following rules apply in computing any time period specified in these rules, a judge's order, or in any statute, regulation, or executive order that does not specify a method of computing time. (1) When the period is stated in days or a longer unit of time: (i) Exclude the day of the event that triggers the period; (ii) Count every day, including intermediate Saturdays, Sundays, and legal holidays; and (iii) Include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday. (2) “Last day” defined. Unless a different time is set by a statute, regulation, executive order, or judge's order, the “last day” ends at 4:30 p.m. local time where the event is to occur. (3) “Next day” defined. The “next day” is determined by continuing to count forward when the period is measured after an event and backward when measured before an event. (4) “Legal holiday” defined. “Legal holiday” means the day set aside by statute for observing New Year's Day, Martin Luther King Jr.'s Birthday, Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, or Christmas Day; and any day on which the district office in which the document is to be filed is closed or otherwise inaccessible. (b) Extending time. When an act may or must be done within a specified time, the judge may, for good cause, extend the time: (1) With or without motion or notice if the judge acts, or if a request is made, before the original time or its extension expires; or (2) On motion made after the time has expired if the party failed to act because of excusable neglect. (c) Additional time after certain kinds of service. When a party may or must act within a specified time after service and service is made under § 18.30(a)(2)(ii)(C) or (D), 3 days are added after the period would otherwise expire under paragraph (a) of this section. | |||||
| 29:29:1.1.1.1.19.1.49.17 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.33 Motions and other papers. | DOL | [80 FR 28785, May 19, 2015, as amended at 80 FR 37539, July 1, 2015] | (a) In general. A request for an order must be made by motion. The motion must: (1) Be in writing, unless made during a hearing; (2) State with particularity the grounds for seeking the order; (3) State the relief sought; (4) Unless the relief sought has been agreed to by all parties, be accompanied by affidavits, declarations, or other evidence; and (5) If required by paragraph (c)(4) of this section, include a memorandum of points and authority supporting the movant's position. (b) Form. The rules governing captions and other matters of form apply to motions and other requests. (c) Written motion before hearing. (1) A written motion before a hearing must be served with supporting papers, at least 21 days before the time specified for the hearing, with the following exceptions: (i) When the motion may be heard ex parte; (ii) When these rules or an appropriate statute, regulation, or executive order set a different time; or (iii) When an order sets a different time. (2) A written motion served within 21 days before the hearing must state why the motion was not made earlier. (3) A written motion before hearing must state that counsel conferred, or attempted to confer, with opposing counsel in a good faith effort to resolve the motion's subject matter, and whether the motion is opposed or unopposed. A statement of consultation is not required with pro se litigants or with the following motions: (i) To dismiss; (ii) For summary decision; and (iii) Any motion filed as “joint,” “agreed,” or “unopposed.” (4) Unless the motion is unopposed, the supporting papers must include affidavits, declarations or other proof to establish the factual basis for the relief. For a dispositive motion and a motion relating to discovery, a memorandum of points and authority must also be submitted. A judge may direct the parties file additional documents in support of any motion. (d) Opposition or other response to a motion filed prior to hearing. A party to the proceeding may file an opposition or other response … | |||||
| 29:29:1.1.1.1.19.1.49.18 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.34 Format of papers filed. | DOL | Every paper filed must be printed in black ink on 8.5 × 11-inch opaque white paper and begin with a caption that includes: (a) The parties' names, (b) A title that describes the paper's purpose, and (c) The docket number assigned by the Office of Administrative Law Judges. If the Office has not assigned a docket number, the paper must bear the case number assigned by the Department of Labor agency where the matter originated. If the case number is an individual's Social Security number then only the last four digits may be used. See § 18.31(a)(1). | ||||||
| 29:29:1.1.1.1.19.1.49.19 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.35 Signing motions and other papers; representations to the judge; sanctions. | DOL | (a) Date and signature. Every written motion and other paper filed with OALJ must be dated and signed by at least one representative of record in the representative's name—or by a party personally if the party is unrepresented. The paper must state the signer's address, telephone number, facsimile number and email address, if any. The judge must strike an unsigned paper unless the omission is promptly corrected after being called to the representative's or party's attention. (b) Representations to the judge. By presenting to the judge a written motion or other paper—whether by signing, filing, submitting, or later advocating it—the representative or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) It is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of the proceedings; (2) The claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) The factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information. (c) Sanctions —(1) In general. If, after notice and a reasonable opportunity to respond, the judge determines that paragraph (b) of this section has been violated, the judge may impose an appropriate sanction on any representative, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee. (2) Motion for sanctions. A motion for sanctions mus… | ||||||
| 29:29:1.1.1.1.19.1.49.20 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.36 Amendments after referral to the Office of Administrative Law Judges. | DOL | The judge may allow parties to amend and supplement their filings. | ||||||
| 29:29:1.1.1.1.19.1.50.21 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.40 Notice of hearing. | DOL | (a) In general. Except when the hearing is scheduled by calendar call, the judge must notify the parties of the hearing's date, time, and place at least 14 days before the hearing. The notice is sent by regular, first-class mail, unless the judge determines that circumstances require service by certified mail or other means. The parties may agree to waive the 14-day notice for the hearing. (b) Date, time, and place. The judge must consider the convenience and necessity of the parties and the witnesses in selecting the date, time, and place of the hearing. | ||||||
| 29:29:1.1.1.1.19.1.50.22 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.41 Continuances and changes in place of hearing. | DOL | (a) By the judge. Upon reasonable notice to the parties, the judge may change the time, date, and place of the hearing. (b) By a party's motion. A request by a party to continue a hearing or to change the place of the hearing must be made by motion. (1) Continuances. A motion for continuance must be filed promptly after the party becomes aware of the circumstances supporting the continuance. In exceptional circumstances, a party may orally request a continuance and must immediately notify the other parties of the continuance request. (2) Change in place of hearing. A motion to change the place of a hearing must be filed promptly. | ||||||
| 29:29:1.1.1.1.19.1.50.23 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.42 Expedited proceedings. | DOL | A party may move to expedite the proceeding. The motion must demonstrate the specific harm that would result if the proceeding is not expedited. If the motion is granted, the formal hearing ordinarily will not be scheduled with less than 7 days notice to the parties, unless all parties consent to an earlier hearing. | ||||||
| 29:29:1.1.1.1.19.1.50.24 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.43 Consolidation; separate hearings. | DOL | (a) Consolidation. If separate proceedings before the Office of the Administrative Law Judges involve a common question of law or fact, a judge may: (1) Join for hearing any or all matters at issue in the proceedings; (2) Consolidate the proceedings; or (3) Issue any other orders to avoid unnecessary cost or delay. (b) Separate hearings. For convenience, to avoid prejudice, or to expedite and economize, the judge may order a separate hearing of one or more issues. | ||||||
| 29:29:1.1.1.1.19.1.50.25 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.44 Prehearing conference. | DOL | (a) In general. The judge, with or without a motion, may order one or more prehearing conferences for such purposes as: (1) Expediting disposition of the proceeding; (2) Establishing early and continuing control so that the case will not be protracted because of lack of management; (3) Discouraging wasteful prehearing activities; (4) Improving the quality of the hearing through more thorough preparation; and (5) Facilitating settlement. (b) Scheduling. Prehearing conferences may be conducted in person, by telephone, or other means after reasonable notice of time, place and manner of conference has been given. (c) Participation. All parties must participate in prehearing conferences as directed by the judge. A represented party must authorize at least one of its attorneys or representatives to make stipulations and admissions about all matters that can reasonably be anticipated for discussion at the prehearing conference, including possible settlement. (d) Matters for consideration. At the conference, the judge may consider and take appropriate actions on the following matters: (1) Formulating and simplifying the issues, and eliminating frivolous claims or defenses; (2) Amending the papers that had framed the issues before the matter was referred for hearing; (3) Obtaining admissions and stipulations about facts and documents to avoid unnecessary proof, and ruling in advance on the admissibility of evidence; (4) Avoiding unnecessary proof and cumulative evidence, and limiting the number of expert or other witnesses; (5) Determining the appropriateness and timing of dispositive motions under §§ 18.70 and 18.72; (6) Controlling and scheduling discovery, including orders affecting disclosures and discovery under §§ 18.50 through 18.65; (7) Identifying witnesses and documents, scheduling the filing and exchange of any exhibits and prehearing submissions, and setting dates for further conferences and for the hearing; (8) Referring matters to a special master; (9) Settling the case and using spe… | ||||||
| 29:29:1.1.1.1.19.1.51.26 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.50 General provisions governing disclosure and discovery. | DOL | (a) Timing and sequence of discovery —(1) Timing. A party may seek discovery at any time after a judge issues an initial notice or order. But if the judge orders the parties to confer under paragraph (b) of this section: (i) The time to respond to any pending discovery requests is extended until the time agreed in the discovery plan, or that the judge sets in resolving disputes about the discovery plan, and (ii) No party may seek additional discovery from any source before the parties have conferred as required by paragraph (b) of this section, except by stipulation. (2) Sequence. Unless, on motion, the judge orders otherwise for the parties' and witnesses' convenience and in the interests of justice: (i) Methods of discovery may be used in any sequence; and (ii) Discovery by one party does not require any other party to delay its discovery. (b) Conference of the parties; planning for discovery —(1) In general. The judge may order the parties to confer on the matters described in paragraphs (b)(2) and (3) of this section. (2) Conference content; parties' responsibilities. In conferring, the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by paragraph (c) of this section; discuss any issues about preserving discoverable information; and develop a proposed discovery plan. The representatives of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the judge within 14 days after the conference a written report outlining the plan. The judge may order the parties or representatives to attend the conference in person. (3) Discovery plan. A discovery plan must state the parties' views and proposals on: (i) What changes should be made in the timing, form, or requirement for disclosures under paragraph (c) of t… | ||||||
| 29:29:1.1.1.1.19.1.51.27 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.51 Discovery scope and limits. | DOL | [80 FR 28785, May 19, 2015, as amended at 80 FR 37539, July 1, 2015] | (a) Scope in general. Unless otherwise limited by a judge's order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the judge may order discovery of any matter relevant to the subject matter involved in the proceeding. Relevant information need not be admissible at the hearing if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by paragraph (b)(4) of this section. (b) Limitations on frequency and extent —(1) When permitted. By order, the judge may alter the limits in these rules on the number of depositions and interrogatories or on the length of depositions under § 18.64. The judge's order may also limit the number of requests under § 18.63. (2) Specific limitations on electronically stored information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the judge may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of paragraph (b)(4) of this section. The judge may specify conditions for the discovery. (3) Inadvertently disclosed privileged or protected information. By requesting electronically stored information, a party consents to the application of Federal Rule of Evidence 502 with regard to inadvertently disclosed privileged or protected information. (4) When required. On motion or on his or… | |||||
| 29:29:1.1.1.1.19.1.51.28 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.52 Protective orders. | DOL | (a) In general. A party or any person from whom discovery is sought may file a written motion for a protective order. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without the judge's action. The judge may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) Forbidding the disclosure or discovery; (2) Specifying terms, including time and place, for the disclosure or discovery; (3) Prescribing a discovery method other than the one selected by the party seeking discovery; (4) Forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters; (5) Designating the persons who may be present while the discovery is conducted; (6) Requiring that a deposition be sealed and opened only on the judge's order; (7) Requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and (8) Requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the judge directs. (b) Ordering discovery. If a motion for a protective order is wholly or partly denied, the judge may, on just terms, order that any party or person provide or permit discovery. | ||||||
| 29:29:1.1.1.1.19.1.51.29 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.53 Supplementing disclosures and responses. | DOL | [80 FR 28785, May 19, 2015, as amended at 80 FR 37540, July 1, 2015] | (a) In general. A party who has made a disclosure under § 18.50(c)—or who has responded to an interrogatory, request for production, or request for admission—must supplement or correct its disclosure or response: (1) In a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or (2) As ordered by the judge. (b) Expert witness. For an expert whose report must be disclosed under § 18.50(c)(2)(ii), the party's duty to supplement extends both to information included in the report and to information given during the expert's deposition. Any additions or changes to this information must be disclosed by the time the party's prehearing disclosures under § 18.50(c)(3) are due. | |||||
| 29:29:1.1.1.1.19.1.51.30 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.54 Stipulations about discovery procedure. | DOL | Unless the judge orders otherwise, the parties may stipulate that: (a) A deposition may be taken before any person, at any time or place, on any notice, and in the manner specified—in which event it may be used in the same way as any other deposition; and (b) Other procedures governing or limiting discovery be modified— but a stipulation extending the time for any form of discovery must have the judge's approval if it would interfere with the time set for completing discovery, for hearing a motion, or for hearing. | ||||||
| 29:29:1.1.1.1.19.1.51.31 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.55 Using depositions at hearings. | DOL | (a) Using depositions —(1) In general. If there is no objection, all or part of a deposition may be used at a hearing to the extent it would be admissible under the applicable rules of evidence as if the deponent were present and testifying. (2) Over objection. Notwithstanding any objection, all or part of a deposition may be used at a hearing against a party on these conditions: (i) The party was present or represented at the taking of the deposition or had reasonable notice of it; (ii) It is used to the extent it would be admissible under the applicable rules of evidence if the deponent were present and testifying; and (iii) The use is allowed by paragraphs (a)(3) through (9) of this section. (3) Impeachment and other uses. Any party may use a deposition to contradict or impeach the testimony given by the deponent as a witness, or for any other purpose allowed by the applicable rules of evidence. (4) Deposition of party, agent, or designee. An adverse party may use for any purpose the deposition of a party or anyone who, when deposed, was the party's officer, director, managing agent, or designee under § 18.64(b)(6) or § 18.65(a)(4). (5) Deposition of expert, treating physician, or examining physician. A party may use for any purpose the deposition of an expert witness, treating physician or examining physician. (6) Unavailable witness. A party may use for any purpose the deposition of a witness, whether or not a party, if the judge finds: (i) That the witness is dead; (ii) That the witness is more than 100 miles from the place of hearing or is outside the United States, unless it appears that the witness's absence was procured by the party offering the deposition; (iii) That the witness cannot attend or testify because of age, illness, infirmity, or imprisonment; (iv) That the party offering the deposition could not procure the witness's attendance by subpoena; or (v) on motion and notice, that exceptional circumstances make it desirable—in the interests of justice and with due regard… | ||||||
| 29:29:1.1.1.1.19.1.51.32 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.56 Subpoena. | DOL | (a) In general. (1) Upon written application of a party the judge may issue a subpoena authorized by statute or law that requires a witness to attend and to produce relevant papers, books, documents, or tangible things in the witness' possession or under the witness' control. (2) Form and contents —(i) Requirements—in general. Every subpoena must: (A) State the title of the matter and show the case number assigned by the Office of Administrative Law Judges or the Office of Worker's Compensation Programs. In the event that the case number is an individual's Social Security number only the last four numbers may be used. See § 18.31(a)(1); (B) Bear the signature of the issuing judge; (C) Command each person to whom it is directed to do the following at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control; or permit the inspection of premises; and (D) Set out the text of paragraphs (c) and (d) of this section. (ii) Command to attend a deposition—notice of the recording method. A subpoena commanding attendance at a deposition must state the method for recording the testimony. (iii) Combining or separating a command to produce or to permit inspection; specifying the form for electronically stored information. A command to produce documents, electronically stored information, or tangible things or to permit the inspection of premises may be included in a subpoena commanding attendance at a deposition or hearing, or may be set out in a separate subpoena. A subpoena may specify the form or forms in which electronically stored information is to be produced. (iv) Command to produce; included obligations. A command in a subpoena to produce documents, electronically stored information, or tangible things requires the responding party to permit inspection, copying, testing, or sampling of the materials. (b) Service —(1) By whom; tendering fees; serving a copy of certain subpoen… | ||||||
| 29:29:1.1.1.1.19.1.51.33 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.57 Failure to make disclosures or to cooperate in discovery; sanctions. | DOL | (a) Motion for an order compelling disclosure or discovery —(1) In general. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without the judge's action. (2) Specific motions —(i) To compel disclosure. If a party fails to make a disclosure required by § 18.50(c), any other party may move to compel disclosure and for appropriate sanctions. (ii) To compel a discovery response. A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if: (A) A deponent fails to answer a question asked under §§ 18.64 and 18.65; (B) A corporation or other entity fails to make a designation under §§ 18.64(b)(6) and 18.65(a)(4); (C) A party fails to answer an interrogatory submitted under § 18.60; or (D) A party fails to respond that inspection will be permitted—or fails to permit inspection—as requested under § 18.61. (iii) Related to a deposition. When taking an oral deposition, the party asking a question may complete or adjourn the examination before moving for an order. (3) Evasive or incomplete disclosure, answer, or response. For purposes of paragraph (a) of this section, an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond. (b) Failure to comply with a judge's order —(1) For not obeying a discovery order. If a party or a party's officer, director, or managing agent—or a witness designated under §§ 18.64(b)(6) and 18.65(a)(4)—fails to obey an order to provide or permit discovery, including an order under § 18.50(b) or paragraph (a) of this section, the judge may issue further just orders. They may include the following: (i) Directing that the matters embraced in the order or other designated facts be tak… | ||||||
| 29:29:1.1.1.1.19.1.52.34 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.60 Interrogatories to parties. | DOL | (a) In general —(1) Number. Unless otherwise stipulated or ordered by the judge, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with § 18.51. (2) Scope. An interrogatory may relate to any matter that may be inquired into under § 18.51. An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the judge may order that the interrogatory need not be answered until designated discovery is complete, or until a prehearing conference or some other time. (b) Answers and objections —(1) Responding party. The interrogatories must be answered: (i) By the party to whom they are directed; or (ii) If that party is a public or private corporation, a partnership, an association, or a governmental agency, by any officer or agent, who must furnish the information available to the party. (2) Time to respond. The responding party must serve its answers and any objections within 30 days after being served with the interrogatories. A shorter or longer time may be stipulated to under § 18.54 or be ordered by the judge. (3) Answering each interrogatory. Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath. (4) Objections. The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the judge, for good cause, excuses the failure. (5) Signature. The person who makes the answers must sign them, and the attorney or non-attorney representative who objects must sign any objections. (c) Use. An answer to an interrogatory may be used to the extent allowed by the applicable rules of evidence. (d) Option to produce business records. If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summariz… | ||||||
| 29:29:1.1.1.1.19.1.52.35 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.61 Producing documents, electronically stored information, and tangible things, or entering onto land, for inspection and other purposes. | DOL | (a) In general. A party may serve on any other party a request within the scope of § 18.51: (1) To produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control: (i) Any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or (ii) Any designated tangible things; or (2) To permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it. (b) Procedure —(1) Contents of the request. The request: (i) Must describe with reasonable particularity each item or category of items to be inspected; (ii) Must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and (iii) May specify the form or forms in which electronically stored information is to be produced. (2) Responses and objections —(i) Time to respond. The party to whom the request is directed must respond in writing within 30 days after being served. A shorter or longer time may be stipulated to under § 18.54 or be ordered by the judge. (ii) Responding to each item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons. (iii) Objections. An objection to part of a request must specify the part and permit inspection of the rest. (iv) Responding to a request for production of electronically stored information. The response may state an objection to a requested form for producing electronical… | ||||||
| 29:29:1.1.1.1.19.1.52.36 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.62 Physical and mental examinations. | DOL | (a) Examination by notice —(1) In general. A party may serve upon another party whose mental or physical condition is in controversy a notice to attend and submit to an examination by a suitably licensed or certified examiner. (2) Contents of the notice. The notice must specify: (i) The legal basis for the examination; (ii) The time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it; and (iii) How the reasonable transportation expenses were calculated. (3) Service of notice. Unless otherwise agreed by the parties, the notice must be served no fewer than 30 days before the examination date. (4) Objection. The person to be examined must serve any objection to the notice no later than 14 days after the notice is served. The objection must be stated with particularity. (b) Examination by motion. Upon objection by the person to be examined the requesting party may file a motion to compel a physical or mental examination. The motion must include the elements required by paragraph (a)(2) of this section. (c) Examiner's report —(1) Delivery of the report. The party who initiated the examination must deliver a complete copy of the examination report to the party examined no later than seven days after it receives the report, together with like reports of all earlier examinations of the same condition. (2) Contents. The examiner's report must be in writing and must set out in detail the examiner's findings, including diagnoses, conclusions, and the results of any tests. | ||||||
| 29:29:1.1.1.1.19.1.52.37 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.63 Requests for admission. | DOL | (a) Scope and procedure —(1) Scope. A party may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of § 18.51 relating to: (i) Facts, the application of law to fact, or opinions about either; and (ii) The genuineness of any described documents. (2) Form; copy of a document. Each matter must be separately stated. A request to admit the genuineness of a document must be accompanied by a copy of the document unless it is, or has been, otherwise furnished or made available for inspection and copying. (3) Time to respond; effect of not responding. A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney. A shorter or longer time for responding may be stipulated to under § 18.54 or be ordered by the judge. (4) Answer. If a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest. The answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny. (5) Objections. The grounds for objecting to a request must be stated. A party must not object solely on the ground that the request presents a genuine issue for hearing. (6) Motion regarding the sufficiency of an answer or objection. The requesting party may move to determine the sufficiency of an answer or objection. Unless the judge finds an objection justified, the judge must order that an answer be … | ||||||
| 29:29:1.1.1.1.19.1.52.38 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.64 Depositions by oral examination. | DOL | (a) When a deposition may be taken —(1) Without leave. A party may, by oral questions, depose any person, including a party, without leave of the judge except as provided in paragraph (a)(2) of this section. The deponent's attendance may be compelled by subpoena under § 18.56. (2) With leave. A party must obtain leave of the judge, and the judge must grant leave to the extent consistent with § 18.51(b): (i) If the parties have not stipulated to the deposition and: (A) The deposition would result in more than 10 depositions being taken under this section or § 18.65 by one of the parties; (B) The deponent has already been deposed in the case; or (C) The party seeks to take the deposition before the time specified in § 18.50(a), unless the party certifies in the notice, with supporting facts, that the deponent is expected to leave the United States and be unavailable for examination in this country after that time; or (ii) If the deponent is confined in prison. (b) Notice of the deposition; other formal requirements —(1) Notice in general. Except as stipulated or otherwise ordered by the judge, a party who wants to depose a person by oral questions must give reasonable written notice to every other party of no fewer than 14 days. The notice must state the time and place of the deposition and, if known, the deponent's name and address. If the name is unknown, the notice must provide a general description sufficient to identify the person or the particular class or group to which the person belongs. (2) Producing documents. If a subpoena duces tecum is to be served on the deponent, the materials designated for production, as set out in the subpoena, must be listed in the notice or in an attachment. If the notice to a party deponent is accompanied by a request for production under § 18.61, the notice must comply with the requirements of § 18.61(b). (3) Method of recording —(i) Method stated in the notice. The party who notices the deposition must state in the notice the method for recording the te… | ||||||
| 29:29:1.1.1.1.19.1.52.39 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.65 Depositions by written questions. | DOL | (a) When a deposition may be taken —(1) Without leave. A party may, by written questions, depose any person, including a party, without leave of the judge except as provided in paragraph (a)(2) of this section. The deponent's attendance may be compelled by subpoena under § 18.56. (2) With leave. A party must obtain leave of the judge, and the judge must grant leave to the extent consistent with § 18.51(b): (i) If the parties have not stipulated to the deposition and: (A) The deposition would result in more than 10 depositions being taken under this section or § 18.64 by a party; (B) The deponent has already been deposed in the case; or (C) The party seeks to take a deposition before the time specified in § 18.50(a); or (ii) If the deponent is confined in prison. (3) Service; required notice. A party who wants to depose a person by written questions must serve them on every other party, with a notice stating, if known, the deponent's name and address. If the name is unknown, the notice must provide a general description sufficient to identify the person or the particular class or group to which the person belongs. The notice must also state the name or descriptive title and the address of the officer before whom the deposition will be taken. (4) Questions directed to an organization. A public or private corporation, a partnership, an association, or a governmental agency may be deposed by written questions in accordance with § 18.64(b)(6). (5) Questions from other parties. Any questions to the deponent from other parties must be served on all parties as follows: cross-questions, within 14 days after being served with the notice and direct questions; redirect questions, within 7 days after being served with cross-questions; and recross-questions, within 7 days after being served with redirect questions. The judge may, for good cause, extend or shorten these times. (b) Delivery to the deposition officer; officer's duties. Unless a different procedure is ordered by the judge, the party who noti… | ||||||
| 29:29:1.1.1.1.19.1.53.40 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.70 Motions for dispositive action. | DOL | (a) In general. When consistent with statute, regulation or executive order, any party may move under § 18.33 for disposition of the pending proceeding. If the judge determines at any time that subject matter jurisdiction is lacking, the judge must dismiss the matter. (b) Motion to remand. A party may move to remand the matter to the referring agency. A remand order must include any terms or conditions and should state the reason for the remand. (c) Motion to dismiss. A party may move to dismiss part or all of the matter for reasons recognized under controlling law, such as lack of subject matter jurisdiction, failure to state a claim upon which relief can be granted, or untimeliness. If the opposing party fails to respond, the judge may consider the motion unopposed. (d) Motion for decision on the record. When the parties agree that an evidentiary hearing is not needed, they may move for a decision based on stipulations of fact or a stipulated record. | ||||||
| 29:29:1.1.1.1.19.1.53.41 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.71 Approval of settlement or consent findings. | DOL | (a) Motion for approval of settlement agreement. When the applicable statute or regulation requires it, the parties must submit a settlement agreement for the judge's review and approval. (b) Motion for consent findings and order. Parties may file a motion to accept and adopt consent findings. Any agreement that contains consent findings and an order that disposes of all or part of a matter must include: (1) A statement that the order has the same effect as one made after a full hearing; (2) A statement that the order is based on a record that consists of the paper that began the proceeding (such as a complaint, order of reference, or notice of administrative determination), as it may have been amended, and the agreement; (3) A waiver of any further procedural steps before the judge; and (4) A waiver of any right to challenge or contest the validity of the order entered into in accordance with the agreement. | ||||||
| 29:29:1.1.1.1.19.1.53.42 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.72 Summary decision. | DOL | (a) Motion for summary decision or partial summary decision. A party may move for summary decision, identifying each claim or defense—or the part of each claim or defense—on which summary decision is sought. The judge shall grant summary decision if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to decision as a matter of law. The judge should state on the record the reasons for granting or denying the motion. (b) Time to file a motion. Unless the judge orders otherwise, a party may file a motion for summary decision at any time until 30 days before the date fixed for the formal hearing. (c) Procedures —(1) Supporting factual positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (i) Citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (ii) Showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. (2) Objection that a fact is not supported by admissible evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. (3) Materials not cited. The judge need consider only the cited materials, but the judge may consider other materials in the record. (4) Affidavits or declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated. (d) When facts are unavailable to the nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essen… | ||||||
| 29:29:1.1.1.1.19.1.54.43 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.80 Prehearing statement. | DOL | (a) Time for filing. Unless the judge orders otherwise, at least 21 days before the hearing, each participating party must file a prehearing statement. (b) Required conference. Before filing a prehearing statement, the party must confer with all other parties in good faith to: (1) Stipulate to the facts to the fullest extent possible; and (2) Revise exhibit lists, eliminate duplicative exhibits, prepare joint exhibits, and attempt to resolve any objections to exhibits. (c) Contents. Unless ordered otherwise, the prehearing statement must state: (1) The party's name; (2) The issues of law to be determined with reference to the appropriate statute, regulation, or case law; (3) A precise statement of the relief sought; (4) The stipulated facts that require no proof; (5) The facts disputed by the parties; (6) A list of witnesses the party expects to call; (7) A list of the joint exhibits; (8) A list of the party's exhibits; (9) An estimate of the time required for the party to present its case-in-chief; and (10) Any additional information that may aid the parties' preparation for the hearing or the disposition of the proceeding, such as the need for specialized equipment at the hearing. (d) Joint prehearing statement. The judge may require the parties to file a joint prehearing statement rather than individual prehearing statements. (e) Signature. The prehearing statement must be in writing and signed. By signing, an attorney, representative, or party makes the certifications described in § 18.50(d). | ||||||
| 29:29:1.1.1.1.19.1.54.44 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.81 Formal hearing. | DOL | (a) Public. Hearings are open to the public. But, when authorized by law and only to the minimum extent necessary, the judge may order a hearing or any part of a hearing closed to the public, including anticipated witnesses. The order closing all or part of the hearing must state findings and explain why the reasons for closure outweigh the presumption of public access. The order and any objection must be part of the record. (b) Taking testimony. Unless a closure order is issued under paragraph (a) of this section, the witnesses' testimony must be taken in an open hearing. For good cause and with appropriate safeguards, the judge may permit testimony in an open hearing by contemporaneous transmission from a different location. (c) Party participation. For good cause and with appropriate safeguards, the judge may permit a party to participate in an open hearing by contemporaneous transmission from a different location. | ||||||
| 29:29:1.1.1.1.19.1.54.45 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.82 Exhibits. | DOL | (a) Identification. All exhibits offered in evidence must be marked with a designation identifying the party offering the exhibit and must be numbered and paginated as the judge orders. (b) Electronic data. By order the judge may prescribe the format for the submission of data that is in electronic form. (c) Exchange of exhibits. When written exhibits are offered in evidence, one copy must be furnished to the judge and to each of the parties at the hearing, unless copies were previously furnished with the list of proposed exhibits or the judge directs otherwise. If the judge does not fix a date for the exchange of exhibits, the parties must exchange copies of exhibits at the earliest practicable time before the hearing begins. (d) Authenticity. The authenticity of a document identified in a pre-hearing exhibit list is admitted unless a party files a written objection to authenticity at least 7 days before the hearing. The judge may permit a party to challenge a document's authenticity if the party establishes good cause for its failure to file a timely written objection. (e) Substitution of copies for original exhibits. The judge may permit a party to withdraw original documents offered in evidence and substitute accurate copies of the originals. (f) Designation of parts of documents. When only a portion of a document contains relevant matter, the offering party must exclude the irrelevant parts to the greatest extent practicable. (g) Records in other proceedings. Portions of the record of other administrative proceedings, civil actions or criminal prosecutions may be received in evidence, when the offering party shows the copies are accurate. | ||||||
| 29:29:1.1.1.1.19.1.54.46 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.83 Stipulations. | DOL | (a) The parties may stipulate to any facts in writing at any stage of the proceeding or orally on the record at a deposition or at a hearing. These stipulations bind the parties unless the judge disapproves them. (b) Every stipulation that requests or requires a judge's action must be written and signed by all affected parties or their representatives. Any stipulation to extend time must state the reason for the date change. (c) A proposed form of order may be submitted with the stipulation; it may consist of an endorsement on the stipulation of the words, “Pursuant to stipulation, it is so ordered,” with spaces designated for the date and the signature of the judge. | ||||||
| 29:29:1.1.1.1.19.1.54.47 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.84 Official notice. | DOL | On motion of a party or on the judge's own, official notice may be taken of any adjudicative fact or other matter subject to judicial notice. The parties must be given an adequate opportunity to show the contrary of the matter noticed. | ||||||
| 29:29:1.1.1.1.19.1.54.48 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.85 Privileged, sensitive, or classified material. | DOL | (a) Exclusion. On motion of any interested person or the judge's own, the judge may limit the introduction of material into the record or issue orders to protect against undue disclosure of privileged communications, or sensitive or classified matters. The judge may admit into the record a summary or extract that omits the privileged, sensitive or classified material. (b) Sealing the record. (1) On motion of any interested person or the judge's own, the judge may order any material that is in the record to be sealed from public access. The motion must propose the fewest redactions possible that will protect the interest offered as the basis for the motion. A redacted copy or summary of any material sealed must be made part of the public record unless the necessary redactions would be so extensive that the public version would be meaningless, or making even a redacted version or summary available would defeat the reason the original is sealed. (2) An order that seals material must state findings and explain why the reasons to seal adjudicatory records outweigh the presumption of public access. Sealed materials must be placed in a clearly marked, separate part of the record. Notwithstanding the judge's order, all parts of the record remain subject to statutes and regulations pertaining to public access to agency records. | ||||||
| 29:29:1.1.1.1.19.1.54.49 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.86 Hearing room conduct. | DOL | Participants must conduct themselves in an orderly manner. The consumption of food or beverage, and rearranging courtroom furniture are prohibited, unless specifically authorized by the judge. Electronic devices must be silenced and must not disrupt the proceedings. Parties, witnesses and spectators are prohibited from using video or audio recording devices to record hearings. | ||||||
| 29:29:1.1.1.1.19.1.54.50 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.87 Standards of conduct. | DOL | (a) In general. All persons appearing in proceedings must act with integrity and in an ethical manner. (b) Exclusion for misconduct. During the course of a proceeding, the judge may exclude any person—including a party or a party's attorney or non-attorney representative—for contumacious conduct such as refusal to comply with directions, continued use of dilatory tactics, refusal to adhere to reasonable standards of orderly or ethical conduct, failure to act in good faith, or violation of the prohibition against ex parte communications. The judge must state the basis for the exclusion. (c) Review of representative's exclusion. Any representative excluded from a proceeding may appeal to the Chief Judge for reinstatement within 7 days of the exclusion. The exclusion order is reviewed for abuse of discretion. The proceeding from which the representative was excluded will not be delayed or suspended pending review by the Chief Judge, except for a reasonable delay to enable the party to obtain another representative. | ||||||
| 29:29:1.1.1.1.19.1.54.51 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.88 Transcript of proceedings. | DOL | (a) Hearing transcript. All hearings must be recorded and transcribed. The parties and the public may obtain copies of the transcript from the official reporter at rates not to exceed the applicable rates fixed by the contract with the reporter. (b) Corrections to the transcript. A party may file a motion to correct the official transcript. Motions for correction must be filed within 14 days of the receipt of the transcript unless the judge permits additional time. The judge may grant the motion in whole or part if the corrections involve substantive errors. At any time before issuing a decision and upon notice to the parties, the judge may correct errors in the transcript. | ||||||
| 29:29:1.1.1.1.19.1.55.52 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.90 Closing the record; subsequent motions. | DOL | (a) In general. The record of a hearing closes when the hearing concludes, unless the judge directs otherwise. If any party waives a hearing, the record closes on the date the judge sets for the filing of the parties' submissions. (b) Motion to reopen the record. (1) A motion to reopen the record must be made promptly after the additional evidence is discovered. No additional evidence may be admitted unless the offering party shows that new and material evidence has become available that could not have been discovered with reasonable diligence before the record closed. Each new item must be designated as an exhibit under § 18.82(a) and accompanied by proof that copies have been served on all parties. (2) If the record is reopened, the other parties must have an opportunity to offer responsive evidence, and a new evidentiary hearing may be set. (c) Motions after the decision. After the decision and order is issued, the judge retains jurisdiction to dispose of appropriate motions, such as a motion to award attorney's fees and expenses, a motion to correct the transcript, or a motion for reconsideration. | ||||||
| 29:29:1.1.1.1.19.1.55.53 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.91 Post-hearing brief. | DOL | The judge may grant a party time to file a post-hearing brief with proposed findings of fact, conclusions of law, and the specific relief sought. The brief must refer to all portions of the record and authorities relied upon in support of each assertion. | ||||||
| 29:29:1.1.1.1.19.1.55.54 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.92 Decision and order. | DOL | At the conclusion of the proceeding, the judge must issue a written decision and order. | ||||||
| 29:29:1.1.1.1.19.1.55.55 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.93 Motion for reconsideration. | DOL | A motion for reconsideration of a decision and order must be filed no later than 10 days after service of the decision on the moving party. | ||||||
| 29:29:1.1.1.1.19.1.55.56 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.94 Indicative ruling on a motion for relief that is barred by a pending petition for review. | DOL | (a) Relief pending review. If a timely motion is made for relief that the judge lacks authority to grant because a petition for review has been docketed and is pending, the judge may: (1) Defer considering the motion; (2) Deny the motion; or (3) State either that the judge would grant the motion if the reviewing body remands for that purpose or that the motion raises a substantial issue. (b) Notice to reviewing body. The movant must promptly notify the clerk of the reviewing body if the judge states that he or she would grant the motion or that the motion raises a substantial issue. (c) Remand. The judge may decide the motion if the reviewing body remands for that purpose. | ||||||
| 29:29:1.1.1.1.19.1.55.57 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | A | Subpart A—General | § 18.95 Review of decision and review by the Secretary. | DOL | [85 FR 30617, May 20, 2020] | (a) Review. The statute or regulation that conferred hearing jurisdiction provides the procedure for review of a judge's decision. If the statute or regulation does not provide a procedure, the judge's decision becomes the Secretary's final administrative decision, except as provided in paragraph (b) of this section. (b) Finality. A decision of the Board of Alien Labor Certification Appeals (BALCA) shall constitute the Secretary's final administrative decision except in those cases over which the Secretary has, in accordance with this paragraph (b) and paragraph (c) of this section, assumed jurisdiction: (1) In any case for which administrative review is sought or handled in accordance with 20 CFR 655.171(a) or 20 CFR 655.461, at any point from when the BALCA receives a request for review until the passage of 10 business days after the date on which BALCA has issued its decision. (2) In any case for which a de novo hearing is sought or handled under 20 CFR 655.171(b), at any point within 15 business days after the date on which the BALCA has issued its decision. (3) In any case for which review is sought or handled in accordance with 20 CFR 656.26 and 20 CFR 656.27, at any point from when the BALCA receives a request for review until the passage of 30 business days after the BALCA has issued its decision. (c) Review by the Secretary —(1) Transmission of information. (i) Whenever the BALCA receives a request for review, it shall immediately transmit a copy of such request to the Deputy Secretary. (ii) Within 3 business days of when the BALCA issues a decision, the Chair of the BALCA, or his or her designee, shall transmit to the Deputy Secretary a copy of the decision and a concise recommendation as to whether the decision involves an issue or issues of such exceptional importance that review by the Secretary is warranted. (2) Review. (i) The Secretary may, at any point within the time periods provided for in paragraph (b) of this section, and in his or her sole discretion, assume jurisdiction to r… | |||||
| 29:29:1.1.1.1.19.2.56.1 | 29 | Labor | 18 | PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES | B | Subpart B—Rules of Evidence | § 18.101 Scope. | DOL | These rules govern formal adversarial adjudications of the United States Department of Labor conducted before a presiding officer. (a) Which are required by Act of Congress to be determined on the record after opportunity for an administrative agency hearing in accordance with the Administrative Procedure Act, 5 U.S.C. 554, 556 and 557, or (b) Which by United States Department of Labor regulation are conducted in conformance with the foregoing provisions, to the extent and with the exceptions stated in § 18.1101. Presiding officer, referred to in these rules as the judge, means an Administrative Law Judge, an agency head, or other officer who presides at the reception of evidence at a hearing in such an adjudication. |
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chapter TEXT,
subchapter TEXT,
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