Get ready for some significant changes to the litigation of Longshore and Defense Base Act claims. The new Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges will become effective in the immediate future. As such, practitioners, parties, and even experts who testify in Longshore and DBA claims should review the new rules.
This link will take you to the Final Rule published in the Federal Register. There are a lot of changes. It is clear that the Department of Labor had one thing in mind when instituting the changes: protection of the integrity of the adjudication process. The rub is that some of the rules may very well result in increased litigation costs and hardships for Longshore and DBA litigants.
Perhaps the easiest way to talk about the changes instituted in the new Rules is to talk about categories of changes as opposed to specific revisions to regulations or regulation additions. For purposes of this post, I am going to focus on three categories: sanctions, discovery, and experts.
What better way to protect the adjudicative process than instituting significant sanctions?
It is no secret that Administrative Law Judges (“ALJs”) are allowed to direct the course of litigation. And while the Longshore and Harbor Workers’ Compensation (as well as the Defense Base Act) provides that federal district courts, and not ALJs, may punish “contumacious conduct consisting of a refusal to comply with a judge’s order, lawful process or subpoena, or hearing room misbehavior in proceedings under the LHWCA,” the new Rules nonetheless sanction a fair amount of bad behavior. Just check out the following string cite:
[T]here are several situations addressed by the new rules involving conduct that likely would fall outside the categories of contumacy requiring certification to a district court for a [33 U.S.C. § 927(b)] summary contempt proceeding. See A-Z Int’l v. Phillips, 323 F.3d 1141, 1146-47 (9th Cir. 2003) (holding that the district court lacked section 927(b) jurisdiction over conduct that did not involve a refusal “to comply with a summons, writ, warrant, or mandate issued by the ALJ”). See, e.g., 29 CFR 18.35(c) (sanctions for violation of § 18.35(b) relating to the representations made when presenting a motion or other paper to the judge), 18.50(d)(3) (sanctions for violations of § 18.50(d)(1) pertaining to certifications made when signing disclosures and discovery requests, responses and objections), 18.56(d)(1) (sanctions for violations of the duty under § 18.56(c)(1) to protect a person subject to a subpoena from undue burden), 18.57(c) (sanctions for failures to disclose information, supplement an earlier response or to admit as required by §§ 18.50(c), 18.53 and 18.63(a)), 18.57(d) (sanctions for a party’s failure to attend its own deposition, serve answers to interrogatories, or respond to a request for inspection), 18.64(d)(2) (sanctions for impeding, delaying or frustrating a deposition), 18.64(g) (sanctions for failing to attend or proceed with a deposition or serve a subpoena on a non-party deponent when another party, expecting the depositions to be taken, attends), 18.72(h) (sanctions for submitting in bad faith an affidavit or declaration in support of or in opposition to a motion for summary decision).
Long story short: ALJs have the authority to regulate a lot of conduct in their court…and they plan to do so.
Pursuant to the new Rules, discovery cannot be served until after an ALJ issues an initial notice or order.
To understand why this is an issue, you have to understand how Longshore and DBA claims are litigated. Claims are filed at the Office of Workers’ Compensation Programs. When a dispute arises between the parties, one of the parties–usually the claimant–requests an informal conference. If the parties cannot reach an agreement on the disputed issues at the conference, then the OWCP claims examiner writes a recommendation that the parties can choose to accept or decline. If the recommendation is declined, then one of the parties–again, usually the claimant–requests referral to the Office of Administrative Law Judges (“OALJ”). The OWCP District Director then “refers” the case to the OALJ.
As long as I have practiced, Longshore and DBA litigants have used the district director’s referral letter as the start date for discovery requests. In other words, immediately upon receipt of the referral letter, Longshore and DBA litigants would serve interrogatories and requests for production of documents on their opponent.
Not anymore. Now, the parties have to wait for an initial notice or order. This is how the Department of Labor explained the change (with emphasis added):
Under the new rule, a party may seek discovery at any time after a judge issues an initial notice or order and, unless the judge on motion orders otherwise, the methods of discovery may be used in any sequence regardless of the discovery conducted by other parties. The parties’ required initial disclosures would by made within 21 days after entry of an initial notice or order acknowledging that the case has been docketed for adjudication, and the rule includes a provision exempting certain proceedings and parties from the initial disclosure requirements. The Department received two comments focusing on the timing of the disclosures and discovery in LHWCA and BLBA cases. One commenter urged that discovery should be available following transfer of the case to the OALJ or at any time upon stipulation of the parties, asserting that initial notices and orders have historically taken three months to issue and that discovery during this period of time will be unavailable under the new rule, resulting in unnecessary delay. . . .
The Department disagrees with these proposals. The use of a judge’s initial notice or order as the case event allowing parties to commence discovery promotes uniformity and predictability as it is the first reliable indication to the parties that the case is actually before the OALJ. The Department believes that use of the date of transfer from the District Director, Office of Workers’ Compensation Programs is potentially confusing because this procedure is only applicable in [Longshore] and [Black Lung Benefits Act] cases. See 20 CFR 702.317, 725.421. The transfer or referral is an internal administrative function that lacks the clarity of the initial notice of order from the judge in terms of informing parties that a case has been docketed for adjudication.
I disagree. The Department characterized the District Director’s referral as “an internal administrative function,” but it skips over the fact that this administrative function is accompanied by written notice to the parties that referral has been made. The Longshore Procedure Manual specifically references the “letter of transmittal” that a District Director sends to the Office of Administrative Law Judges upon referral; and the Longshore or DBA litigants are always carbon copied on that transmittal letter. Seems to me like this is a perfectly clear notice that jurisdiction has shifted from the OWCP to the OALJ.
At the same time, I understand that the new Rules must apply to a wide variety of cases in addition to Longshore and DBA claims. Still, though, why not include a regulatory provision that lets the parties agree to begin discovery early? If the parties want to get a jump-start on discovery, then let them.
Another important change is the requirement that experts provide a lot of information that was not previously required in Longshore and DBA claims. The new expert witness provision, 29 C.F.R. § 18.50(c), states:
Unless otherwise stipulated or ordered by the judge, this disclosure must be accompanied by a written report–prepared and signed by the witness–if the witness is one retained or specifically employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony. The report must contain:
(A) A complete statement of all opinions the witness will express and the basis and reasons for them;
(B) The facts or data considered by the witness in forming them;
(C) Any exhibits that will be used to summarize or support them;
(D) The witness’s qualifications, including a list of all publications authored in the previous 10 years;
(E) A list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial, a hearing, or by deposition; and
(F) A statement of the compensation to be paid for the study and testimony in the case.
The Department rejected two commenters concerns “that it is burdensome and/or irrelevant to require an expert witness’s written report to list all other cases in which the witness testified as an expert during the previous four years and the amount he or she was paid.” In the Department’s opinion, “surely an expert witness would [have this information].”
My suggestion for experts: start working up your curriculum vitae to make sure that you can comply with the new Rule’s requirements.
It will take time to digest the extent to which the new Rules will alter Longshore and Defense Base Act litigation. Merely scratching the surface, however, reveals that remarkable changes are in store for practitioners, litigants, and experts.
Finally, keep in mind that the Longshore-specific regulations found at 20 C.F.R. § 702.331 et seq. are not displaced by the new Rules of Practice and Procedure.