Subpart C -- Pleadings and Motions
§2200.30 General rules.
(a) Format. Pleadings and other documents (other than exhibits) shall be typewritten, double spaced, on letter size opaque paper (approximately 8½ inches by 11 inches). All margins shall be approximately 1½ inches. Pleadings and other documents shall be fastened at the upper left corner.
(b) Clarity. Each allegation or response of a pleading or motion shall be simple, concise and direct.
(c) Separation claims. Each allegation or response shall be made in separate numbered paragraphs. Each paragraph shall be limited as far as practicable to a statement of a single set of circumstances.
(d) Adoption by reference. Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.
(e) Alternative pleading. A party may set forth two or more statements of a claim or defense alternatively or hypothetically. When two or more statements are made in the alternative and one of them would be sufficient if made independently, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may state as many separate claims or defenses as he has regardless of their consistency or the grounds on which based. All statements shall be made subject to the signature requirements of §2200.32.
(f) Content of motions and miscellaneous pleadings. A motion shall contain a caption complying with §2200.31, a signature complying with §2200.32, and a clear and plain statement of the relief that is sought together with the grounds therefor. These requirements also apply to any pleading not governed by more specific requirements in this subpart.
(g) Burden of persuasion. The rules of pleading established by this subpart are not determinative in deciding which party bears the burden of persuasion on an issue. By pleading a matter affirmatively, a party does not waive its right to argue that the burden of persuasion on the matter is on another party.
(h) Enforcement of pleading rules. The Commission or the Judge may refuse for filing any pleading or motion that does not comply with the requirements of this subpart.
§2200.31 Caption; Titles of cases.
(a) Notice of contest cases. Cases initiated by a notice of contest shall be titled:
Secretary of Labor,
(b) Petitions for modification of abatement period. Cases initiated by a petition for modification of the abatement period shall be titled:
(Name of employer),
(c) Location of title. The titles listed in paragraphs (a) and (b) of this section shall appear at the left upper portion of the initial page of any pleading or document (other than exhibits) filed.
(d) Docket number. The initial page of any pleading or document (other than exhibits) shall show, at the upper right of the page, opposite the title, the docket number, if known, assigned by the Commission.
§2200.32 Signing of pleadings and motions.
Pleadings and motions shall be signed by the filing party or by the party's representative. The signature of a representative constitutes a representation by him that he is authorized to represent the party or parties on whose behalf the pleading is filed. The signature of a representative or party also constitutes a certificate by him that he has read the pleading, motion, or other paper, that to the best of his knowledge, information, and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion or other paper is signed in violation of this rule, such signing party or its representative shall be subject to the sanctions set forth in §2200.101 or §2200.104. A signature by a party representative constitutes a representation by him that he understands that the rules and orders of the Commission and its Judges apply equally to attorney and non-attorney representatives.
§2200.33 Notices of contest.
Within 15 working days after receipt of--
(a) notification that the employer intends to contest a citation or proposed penalty under section 10(a) of the Act, 29 U.S.C. §659(a); or
(b) notification that the employer wishes to contest a notice of a failure to abate or a proposed penalty under section 10(b) of the Act, 29 U.S.C. §659(b); or
(c) a notice of contest filed by an employee or representative of employees under section 10(c) of the Act, 29 U.S.C. §659(c), the Secretary shall notify the Commission of the receipt in writing and shall promptly furnish to the Executive Secretary of the Commission the original of any documents or records filed by the contesting party and copies of all other documents or records relevant to the contest.
§2200.34 Employer contests.
(1) The Secretary shall file a complaint with the Commission no later than 20 days after receipt of the notice of contest.
(2) The complaint shall set forth all alleged violations and proposed penalties which are contested, stating with particularity:
(i) The basis for jurisdiction;
(3) Where the Secretary seeks in his complaint to amend his citation or proposed penalty, he shall set forth the reasons for amendment and shall state with particularity the change sought.
(1) Within 20 days after service of the complaint, the party against whom the complaint was issued shall file an answer with the Commission.
(2) The answer shall contain a short and plain statement denying those allegations in the complaint which the party intends to contest. Any allegation not denied shall be deemed admitted.
(3) The answer shall include all affirmative defenses being asserted. Such affirmative defenses include, but are not limited to, "infeasibility," "unpreventable employee misconduct," and "greater hazard."
(4) The failure to raise an affirmative defense in the answer may result in the party being prohibited from raising the defense at a later stage in the proceeding, unless the Judge finds that the party has asserted the defense as soon as practicable.
§2200.35 Disclosure of corporate parents, subsidiaries, and affiliates.
(a) General. All answers, petitions for modification of abatement period, or other initial pleadings filed under these rules by a corporation shall be accompanied by a separate declaration listing all parents, subsidiaries, and affiliates of that corporation or stating that the corporation has no parents, subsidiaries, or affiliates, whichever is applicable.
(b) Failure to disclose. The Commission or Judge in its discretion may refuse to accept for filing an answer or other initial pleading that lacks the disclosure declaration required by this paragraph. A party that fails to file an adequate declaration may be held in default after being given an opportunity to show cause why it should not be held in default.
(c) Continuing duty to disclose. A party subject to the disclosure requirement of this paragraph has a continuing duty to notify the Commission or the Judge of any change in the information on the disclosure declaration until the Commission issues a final order disposing of the proceeding.
(d) Show cause orders. All show cause orders issued by the Commission or Judge under paragraph (b) of this section shall be served upon the affected party by certified mail, return receipt requested.
§2200.37 Petitions for modification of the abatement period.
(a) Grounds for modifying abatement date. An employer may file a petition for modification of abatement date when such employer has made a good faith effort to comply with the abatement requirements of a citation, but such abatement has not been completed because of factors beyond the employer's reasonable control.
(b) Contents of petition. A petition for modification of abatement date shall be in writing and shall include the following information:
(1) All steps taken by the employer, and the dates of such action, in an effort to achieve compliance during the prescribed abatement period.
(2) The specific additional abatement time necessary in order to achieve compliance.
(3) The reasons such additional time is necessary, including the unavailability of professional or technical personnel or of materials and equipment, or because necessary construction or alteration of facilities cannot be completed by the original abatement date.
(4) All available interim steps being taken to safeguard the employees against the cited hazard during the abatement period.
(c) When and where filed; Posting requirement; Responses to Petition. A petition for modification of abatement date shall be filed with the Area Director of the United States Department of Labor who issued the citation no later than the close of the next working day following the date on which abatement was originally required. A later-filed petition shall be accompanied by the employer's statement of exceptional circumstances explaining the delay.
(1) A copy of such petition shall be posted in a conspicuous place where all affected employees will have notice thereof or near each location where the violation occurred. The petition shall remain posted for a period of 10 days.
(2) Affected employees or the representatives may file an objection in writing to such petition with the aforesaid Area Director. Failure to file such objection within 10 working days of the date of posting of such petition shall constitute a waiver of any further right to object to said petition.
(3) The Secretary or his duly authorized agent shall have the authority to approve any uncontested petition for modification of abatement date filed pursuant to paragraphs (b) and (c) of this section. Such uncontested petitions shall become final orders pursuant to sections 10(a) and (c) of the Act, 29 U.S.C. 659(a) and (c).
(4) The Secretary or his authorized representative shall not exercise his approval power until the expiration of 15 working days from the date the petition was posted pursuant to paragraphs (c)(1) and (2) of this section by the employer.
(d) Contested petitions. Where any petition is objected to by the Secretary or affected employees, such petition shall be processed as follows:
(1) The Secretary shall forward the petition, citation and any objections to the Commission within 10 working days after the expiration of the 15 working day period set out in paragraph (c)(4) of this section.
(2) The Commission shall docket and process such petitions as expedited proceedings as provided for in §2200.103 of this Part.
(3) An employer petitioning for a modification of the abatement period shall have the burden of proving in accordance with the requirements of section 10(c) of the Act, 29 U.S.C.§659(c), that such employer has made a good faith effort to comply with the abatement requirements of the citation and that abatement has not been completed because of factors beyond the employer's control.
(4) Where the petitioner is a corporation, it shall file a separate declaration listing all parents, subsidiaries, and affiliates of that corporation or stating that the corporation has no parents, subsidiaries, or affiliates, whichever is applicable, within 10 working days after the receipt of notice of the docketing by the Commission of the petition for modification of the abatement date. The requirements set forth in § 2200.35(b) through (d) shall apply.
(5) Each objecting party shall file a response setting forth the reasons for opposing the abatement date requested in the petition, within 10 working days after the receipt of notice of the docketing by the Commission of the petition for modification of the abatement date.
§2200.38 Employee contests.
(a) Secretary's statement of reasons. Where an affected employee or authorized employee representative files a notice of contest with respect to the abatement period, the Secretary shall, within 10 days from his receipt of the notice of contest, file a clear and concise statement of the reasons the abatement period prescribed by him is not unreasonable.
(b) Response to Secretary's statement. Not later than 10 days after receipt of the statement referred to in paragraph (a) of this section, the contestant shall file a response.
(c) Expedited proceedings. All contests under this section shall be handled as expedited proceedings as provided for in §2200.103 of this Part.
§2200.39 Statement of position.
At any time prior to the commencement of the hearing before the Judge, any person entitled to appear as a party, or any person who has been granted leave to intervene, may file a statement of position with respect to any or all issues to be heard. The Judge may order the filing of a statement of position.
§2200.40 Motions and requests.
(a) How to make. A request for an order shall be made by motion. Motions shall be in writing or, unless the Judge directs otherwise, may be made orally during a hearing on the record and shall be included in the transcript. In exigent circumstances in cases pending before Judges, a motion may be made telephonically if it is reduced to writing and filed as soon as possible but no later than 3 working days following the time the motion was made. A motion shall state with particularity the grounds on which it is based and shall set forth the relief or order sought. A motion shall not be included in another document, such as a brief or a petition for discretionary review, but shall be made in a separate document. Prior to filing a motion, the moving party shall confer or make reasonable efforts to confer with the other parties and shall state in the motion if any other party opposes or does not oppose the motion.
(b) When to make. A motion filed in lieu of an answer pursuant to §2200.34(b) shall be filed no later than 20 days after the service of the complaint. Any other motion shall be made as soon as the grounds therefor are known.
(c) Responses. Any party or intervenor upon whom a motion is served shall have 10 days from service of the motion to file a response. A procedural motion may be ruled upon prior to the expiration of the time for response; a party adversely affected by the ruling may within 5 days of service of the ruling seek reconsideration.
(d) Postponement not automatic upon filing of motion. The filing of a motion, including a motion for a postponement, does not automatically postpone a hearing. See §2200.62 with respect to motions for postponement.
Last Updated: January 19, 2010