Here are a few updates from the Office of Administrative Law Judges and the Division of Longshore and Harbor Workers’ Compensation. Most, but not all, are related to COVID-19.
Office of Administrative Law Judges–Subpoenas:
First and foremost, keep in mind that the OALJ is running on a skeleton crew. Therefore, some requests might be overly burdensome at the present time. Case in point: routine subpoenas. The OALJ has twice posted to its website about requesting subpoenas. The most recent post states:
Because OALJ offices are minimally staffed at present, parties should refrain from requesting subpoenas at least until April 24, 2020 unless they can explain the compelling circumstances. Even with compelling circumstances, OALJ cannot guarantee timely processing. This applies both to cases currently pending before OALJ and to longshore (and longshore extension) cases pending before OWCP.
My read on this paragraph is that litigants should simply refrain from requesting subpoenas at the present time. Keep in mind that the OALJ suspended deadlines. Also, keep in mind that the likely recipient of any subpoenas–a doctor’s office or a prior employer–may likewise be operating on a skeleton staff or even closed.
Office of Administrative Law Judges–Electronic Filing:
Next, electronic filing. The OALJ issued an Administrative Order and Notice on March 19, 2020, that allows electronic filing. Some OALJ offices are not receiving mail. Therefore, electronic filings are encouraged. Do not simultaneously mail a hard copy of the same document. Do use the proper subject line for each e-mail, as spelled out in the Administrative Order. The OALJ’s website contains a short paragraph about filing. The short paragraph states:
Please review OALJ’s requirements for filing by email during the COVID-19 hearing suspension. At a minimum, put the following information in the Subject line of the email, in this order: name of judge OALJ number (or program agency number if OALJ number not available); short description of filing.
There are also more specific instructions, which state:
EMAIL FILINGS PERMITTED DURING PENDENCY OF COVID-19 HEARINGS SUSPENSION
The Chief ALJ issued a COVID-19 related Administrative Order and Notice on March 19, 2020 concerning suspension of hearings and procedural deadlines at least until May 15, 2020, with certain limited exceptions, and a hold on issuance of decisions at least until April 15, 2020 absent a determination by the presiding ALJ of a health or safety risk or substantial prejudice to a party. Because of these suspensions in hearing activities, the number of documents that must be filed with OALJ should be limited. However, if you need to file a document that needs immediate attention of the presiding ALJ, email is the best option for non-confidential filings. If you need make a filing by email that contains confidential personal information, or confidential commercial or financial information, see the paragraph below and the risks about options for redaction or encryption.
WHAT TO INCLUDE IN THE TRANSMITTAL EMAIL
To ensure that an email filing is associated with the correct case, the subject line of the email transmission must contain, in this order:
(a) The name of the presiding judge (use UNK if the case is not assigned or you do not know who the presiding judge is);
(b) The OALJ case number (use TBD if this is a request for an ALJ hearing or the filing of a complaint or order of reference);
(c) If the OALJ case number is unknown or has not been assigned yet, please include the case number from the agency below (e.g., OWCP, OSHA, Wage and Hour);
(d) A short description of the nature of the filing.
The subject line should look like this:
Subject: Judge John Doe; OALJ No. 2020-BLA-05555; Motion for Continuance
EMAIL ADDRESSES OF REPRESENTATIVES OF OTHER PARTIES
If you know the email addresses of the representatives of the other parties to the case, you should include them in the cc line of the email.
FINDING THE OALJ CASE NUMBER
If you do not know the OALJ case number, please note that you can look up cases by the name of parties on the OALJ Document Management System (DMS) Search Page.
If you still cannot find the OALJ case number, you should provide the case number from the agency below (e.g., OWCP, OSHA, Wage and Hour).
WHICH EMAIL ADDRESS TO USE
Use the email address of the office at which the presiding judge is stationed. You can find the national and district office rosters below:
- National Office
- Boston, MA
- Cherry Hill, NJ
- Cincinnati, OH
- Covington, LA
- Newport News, VA
- Pittsburgh, PA
- San Francisco, CA
- Washington, DC
If you still cannot identify which judge or office the case is assigned to, use the general [email protected] email address.
Washington, DC National and District Offices:
- [email protected] (for National Office Docket; unassigned or new cases; and cases assigned to Judges Henley, Colwell, and Almanza)
- [email protected] (for cases assigned to Judges Bland, Annos, and Applewhite)
District Offices outside Washington, DC:
- [email protected]
- [email protected]
- [email protected]
- [email protected]
- [email protected]
- [email protected]
- [email protected]
Attachments to emailed filings shall not exceed 50 pages unless prior permission is granted by the presiding ALJ.
Due to printer limitations, the Boston District Office is limiting email filings to 25 pages.
If granted permission to exceed the page limitation, and you need to break the attachments up, please indicate the sequence of the attachments in the file name (such as 1 of x).
DO NOT USE AN EMAIL FILING FOR MORE THAN ONE CASE
In order to make it clear which case a document is being filed in, limit each email to an individual case. Make filings in for separate cases in separate email transmissions.
IF YOU FILE BY EMAIL, DO NOT SEND A HARD COPY
If filing a Document by email, DO NOT file a hard (paper) copy as well. The email filing will be the official filing for the matter. You can check on whether a filing was received by using the Case Status Lookup.
Please note that it may be a few days before filings are visible on the Case Status Lookup page due to limited staffing at OALJ.
CONFIDENTIAL FILINGS – REDACTION OR ENCRYPTION
If you need to include confidential information in a filing, and the matter does not need the immediate attention of the presiding ALJ, the best approach would be to wait until the suspension of hearing activities is lifted, and then file by conventional means.
If, however, it is necessary to file a document containing confidential information with OALJ by email, such as settlement documents, your options are to redact the confidential information, or to use email encryption.
Please note that the OALJ Rule of Practice and Procedure at 29 C.F.R. § 18.31 requires the redaction of 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. . . .”
If you need to email a filing that contains unredacted PII, protected health information [PHI], or other confidential information, either in the body of the email or in an attachment, you must encrypt the email and/or the attachment as applicable.
Although many internet-based web mail services offer methods for encryption, sending secure email using such system can require a degree of technical sophistication. An alternative way to send a secure email is by using a compression utility that allows the password-enabled encryption of email attachments and other files. OALJ does not endorse any particular compression/password-protect tools, but here is a memorandum on how the Department uses WinZip to send email securely.
The password should never be sent in the same email with the encrypted attachment. It should be provided in a separate email.
If you are uncomfortable with using email encryption tools, you may still file documents using conventional means such as U.S. Postal Service or commercial express courier. If you do so, however, please be aware that the filing may be delayed because of OALJ offices at present are generally not receiving mail deliveries in a timely and reliable fashion, and/or do not have access or only limited access to their physical office space.
Office of Administrative Law Judges–Electronic Signatures:
Federal courts allow parties to sign documents electronically, usually with a notati0n of “/s/” or “/s” followed by the submitting attorney’s name. This counts as a signature. Signatures are important; they are not mere ornaments.
The OALJ will allow electronic signatures during this time. It provided a summary of the electronic signature regulations (i.e., the Rules of Practice and Procedure and the Rules of Evidence applicable to OALJ hearings):
OALJ ACCEPTANCE OF ELECTRONIC SIGNATURES
In view of the risks presented by the novel coronavirus COVID-19, most Americans are practicing social distancing and many jurisdictions have issued stay-at-home orders. One impact of these circumstances on administrative adjudications is that it has become difficult to obtain “wet” handwritten signatures on documents that need to be filed with the United States Department of Labor, Office of Administrative Law Judges (OALJ) and the Board of Alien Labor Certification Appeals (BALCA). Below is information on the discretion of the presiding administrative law judge to accept electronic signatures in pleadings and other papers.
SUMMARY OF 29 C.F.R. PART 18 REGULATIONS ON ELECTRONIC SIGNATURES
Under 29 C.F.R. § 18.35(a), motions or other papers filed with OALJ must be signed, and under 29 C.F.R. § 18.50(d), discovery documents in cases before OALJ must be signed. An administrative law judge has the authority, pursuant to 29 C.F.R. § 18.30(b)(4), to “allow papers to be signed, filed, or verified by electronic means.” Accordingly, an administrative law judge has the discretion to accept a document with a typed name or notation in the signature block of the document (e.g., “s/John Doe” or “s/”), and may deem the act of submitting such a document by email sufficient to comply with these regulatory signature requirements.
With respect to documents other than those described in the preceding paragraph, an ALJ may accept a document with a typed name in the signature block of the document or with a duplicate of a person’s signature, such as a pdf image, as a document “signed … by electronic means.” 29 C.F.R. § 18.30(b)(4). An ALJ may order that a party submitting such a document with a typed name or notation in the signature block include a statement that the person “sign[ing a document] . . . by electronic means” affirmatively waives a subsequent challenge of the validity of his or her own signature on that document.
Finally, in those cases where the formal rules of evidence at 29 C.F.R. Part 18, Subpart B, apply, the party submitting a document that is “signed . . . by electronic means” must be prepared to establish the admissibility of the signature, such as by demonstrating that a pdf image of a person’s signature is admissible as a duplicate of the original under 29 C.F.R. § 18.1003.
Division of Longshore and Harbor Workers’ Compensation–Waiver of Service By Certified Mail:
With many people working from home, it is a lot easier (and quicker) to waive service by certified mail for orders from the District Director. This is probably most important for settlement orders.
To waive service by mail, parties and their attorneys can fill out a party-specific form. An employer, insurance carrier, employer’s representative, and insurance carrier’s representative can waive the own right to service via certified mail through use of the Form LS-801. Each entity or individual must sign the form on their own behalf.
Claimants and their attorneys may waive their right to service via certified mail through the use of a Form LS-802. Just like with the LS-801, an individual’s right to service must be waived by that individual. So, a claimant’s attorney can sign and file a Form LS-802 for themselves, and claimants (through their attorneys) can sign a file a Form LS-802 that waives their own right to service.
Do the DLHWC examiners and District Directors a favor and file LS-801s and LS-802s. (Frankly, I need to do better with this, so I am making a concerted effort to obtain waivers from all clients, including third country national clients.)
Division of Longshore and Harbor Workers’ Compensation–Electronic Filing of Initiating Claims Documents:
The DLHWC’s SEAPortal system has existed for about six years now. It is a great system for filing claim-specific documents electronically. But, SEAPortal has always been used for documents pertaining to a claim after the claim was filed.
Now, a claim may be initiated electronically. Industry Notice No. 178 contains the procedures for filing a claim. Pay close attention to the case create information that is required to file a claim electronically:
Industry Notice No. 178
TO: INSURANCE CARRIERS AND SELF-INSURED EMPLOYERS UNDER THE LONGSHORE AND HARBOR WORKERS’ COMPENSATION ACT as amended, INJURED WORKERS, AND OTHER INTERESTED PERSONS
SUBJECT: Procedure for Filing New Claims and First Reports of Injury Electronically via the Secure Electronic Access Portal (SEAPortal)
To aid in the efficient administration of the Longshore and Harbor Workers’ Compensation Act (LHWCA), and its extensions, the Director hereby notifies all parties that new injury claims may now be filed electronically via the SEAPortal.
The SEAPortal, an Office of Workers’ Compensation (OWCP) sponsored web-based application, can be accessed from the OWCP/DLHWC website or directly at: https://seaportal.dol-esa.gov. Users do not have to register or enroll to use the SEAPortal.
To access the case create portion of SEAPortal, enter the following pieces of information when prompted:
- Case Number: 04999999
- Claimant Last Name: New Claim
- Claimant Date of Birth: 03/20/2020
- Date of Injury: 03/21/2020
If the information entered does not match exactly, a new claim form cannot be successfully uploaded.
- NOTE – The four pieces of information above will be the same for ALL new submissions and must be used for ALL new submissions without an existing case created. This is NOT the actual case number or claimant name for the new injury. A unique case number will be assigned for each newly submitted claim once DLHWC has created the new case, and the Claimant’s actual last name will appear in the system once the case has been created.
After entering the four pieces of information, upload a claim form. To file a new claim for injury only the following forms may be uploaded:
- LS-201 (Notice of Employee’s Injury or Death)
- LS-202 (Employer’s First Report of Injury or Occupational Illness)
- LS-203 (Employee’s Claim for Compensation)
- LS-262 (Claim for Death Benefits)
Upload each new injury claim form for a specific injured worker individually.
After uploading the claim form, choose the Category “Other Correspondence” and add the Author Date, which is the date the form is being submitted.
This submission option is solely for claim forms for new cases and any applicable attachments available at the time the claim form is being submitted. Once a case number has been established all parties will be notified and then additional documents can be submitted directly into the case. The procedure for submission of case–related documents has not changed. Please refer to Industry Notice 148 for questions related to the SEAPortal.
Submission of new claims form through the SeaPortal is not required. It is being offered as an option to facilitate submission of claim forms electronically.
Claim forms may continue to be submitted via the Case Create Fax at (202) 513-6814 and through the mail at:
U. S. Department of Labor
Office of Workers’ Compensation Programs
Division of Longshore and Harbor Workers’ Compensation
400 West Bay Street, Room 63A, Box 28
Jacksonville, FL 32202
Any questions regarding this Industry Notice should be directed to the DLHWC Director, Washington, DC.
Division of Longshore and Harbor Workers’ Compensation–New Compensation Districts?
Earlier this year, before COVID-19, the DHLWC announced that it was creating new compensation districts by merging existing offices. Industry Notice No. 175, which created the consolidated districts, was scheduled to go into effect on April 6, 2020. In the absence of an Industry Notice stating otherwise, I assume that change will still take place. I will update this post if I hear anything.