New Rules of OALJ Rules of Practice and Procedure Increase Powers to Administrative Law Judges

By John E. Kawczynski, Field & Kawczynski, LLC, South Amboy, New Jersey

In his commentary “About Time! New ALJ Regulations Finally Final,” Tom Fitzhugh examined how the new “Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges” have changed discovery practice before the Office of Administrative Law Judges (BRBS/Longshore Reporter, Release 785, December 2015). In addition to changing the discovery rules, the new rules, which became effective June 18, 2015, radically change the rules with regard to the ability of an administrative law judge to regulate the conduct of the parties appearing before him and her.

Under the prior rules, the authority of the administrative law judge was limited and relied upon enforcement proceedings in the United States District Court in order to address conduct issues such as courtroom behavior, discovery sanctions, and compelling the testimony of witnesses. See former 29 C.F.R. § 18.29(b). This regulation closely followed similar statutory language found in 33 U.S.C.S. § 927(c). Unfortunately the prior rule suffered from several shortcomings. First, while the prior rule attempted to anticipate the types of issues that may arise in any given case, the list of prohibited conduct was somewhat narrow. Second, the rule did not contain any mechanism with regard to attorney discipline for misconduct. Finally, the prior rule was cumbersome because it relied upon the district courts (or in some cases the state attorney licensing authorities). The new Rules of Practice and Procedure attempt to address these issues by empowering the administrative law judge with greater authority to correct any misconduct occurring before him or her.

With respect to the misconduct in general, the new rules significantly broaden the powers of the ALJ with respect to the management of the litigation process. Accordingly, there are several new provisions that are tailored to the specific stage of litigation and the issues that may arise during that stage of litigation. See e.g., Rule 18.64 (depositions). The new rules contain more specific provisions with respect to hearing room conduct such as prohibitions against eating, drinking or using recording devices. Rule 18.86. The ALJ is also empowered to “exclude any person including a party or a party’s attorney” from a hearing. Rule 18.87(b). An excluded party may then appeal to the Chief Judge for reinstatement. These streamlined rules strengthen the ability of the ALJ to control their own courtroom and dispense with the requirement of having to rely upon the district courts to enforce their provisions. 

The new rules also contain significantly revised rules with respect to attorney discipline and disqualification. Under the old rules, the Office of Administrative Law Judges had to rely upon the state licensing authorities in order in order to effectuate attorney discipline. See e.g., Board of Professional Responsibility of the Supreme Court of Tennessee v. Slavin, No. M2003-00845-SC-R3-BP (August 27, 2004). New Rule 18.22(d)(1)-(4) catalogs a number of “prohibited actions” that cannot be taken by an attorney or their authorized lay representative such as misleading a party or engaging in conduct that is “prejudicial to the fair and orderly conduct of the proceeding.” Additionally, new Rule 18.23 creates a procedure in which the Office of Administrative Judges may disqualify an individual from practicing before the Office of Administrative Law Judges. If an individual is then disqualified under this rule, the Office of Administrative Law Judges will then notify the states in which the attorney is licensed that he or she has been disqualified from practicing before the Office of Administrative Law Judges. Rule 18.23(b). These new rules also contain a mechanism in which the disqualified attorney may seek reinstatement. Rule 18.23(c). Like the changes to the rules regarding the conduct of the parties, these new provisions greatly enhance the powers of the Office of Administrative Law Judges to regulate the conduct of those appearing before them without having to rely upon the state attorney licensing authorities.

Like all of the other rule changes, those practicing before the Office of Administrative Law Judges should be mindful of these new rules and the additional powers they grant to the administrative law judges.

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