Review Commission Publishes Proposed Changes to its Rules of Procedure


Occupational Safety and Health Review Commission Chairman W. Scott Railton has announced significant, proposed changes to the rules governing practice before the independent Federal adjudicatory agency. Among them are new rules to allow and facilitate electronic service and filing of documents and to place restrictions on when non-attorneys may represent employers in Commission proceedings. The proposals were recently published in the Federal Register. (70 FR 10574, March 4, 2005). The rules, including a version highlighting the changes, are viewable on the Review Commission website, under “What’s New.”

The public has until April 4, 2005 to forward comments to the agency at the address above, to the attention of the Review Commission; Deputy General Counsel.

Highlighted here are major changes proposed to the rules. One relates to electronic service and filing, which may be used when all parties consent and agree. The Commission recognizes, however, that many small, pro se employers who appear before the agency may be unable to file or receive documents electronically, and because of that it determined that making electronic filing mandatory at this time would be premature. Other aspects of the electronic service and filing proposals would mandate that service is effective upon receipt and the 3-day mailing presumption will not be included in the response time when a party is served electronically. Filing would also be effective upon receipt and documents would have to be accompanied by a certificate of service. In addition, only electronic signatures will be required. Filing, Service and Notice

To eliminate redundancy, the proposal would abolish Rule 101 on the Settlement Judge Procedure and include a provision in Rule 120 expressly allowing a party to voluntarily enter the Settlement Judge Procedure, at which time the requirements of Rule 120 would apply. The Commission proposes to change the timing for entry into the mandatory settlement process until discovery is completed. It believes that before discovery is completed, the parties are generally insufficiently familiar with the details of large, complex cases to warrant entry into the mandatory settlement process.

Other changes to the Mandatory Settlement Rules propose giving the settlement judge the authority to hold a “mini-hearing” in order to narrow the issues remaining between the parties. The Commission and its administrative law judges agree that such a “mini-hearing” would make clear to the parties both the strengths and weaknesses of their case and, therefore, facilitate settlement. The Commission also determined that these settlement procedures should be expanded for greater judicial economy and reduced cost to litigants. It therefore recommends lowering the eligibility limits of cases for mandatory settlement procedures from cases with an aggregate penalty of $200,000 to those with an aggregate penalty of $100,000.

The Commission would also add a provision to mandatory settlement rules that would allow a settlement judge to remain as the trial judge upon the consent of the judge and all parties. Currently, Commission rules expressly prohibit this. The Commission believes changing this prohibition would assist in large and complex cases that require a significant amount of time for a new judge to become familiar with and it believes that judicial economies and reduced litigant expense would result from the change. Settlement Judge

New provisions would change the eligibility limits for the agency’s streamlined case resolution method, which is now called E-Z Trial. E-Z Trial would be named Simplified Proceedings under the proposals. More cases would be eligible for resolution under Simplified Proceedings because under the proposals, higher aggregate proposed penalties would qualify for the streamlined process. Certain types of cases would qualify for E-Z Trial with maximum, aggregate proposed penalties of $10,000; under Simplified Proceedings these types of cases would qualify with aggregate proposed penalties of $20,000. Other types of cases that were capped for entry into the streamlined process at $20,000 in penalties may now use Simplified Proceedings when the aggregate penalty proposed is $30,000. Simplified Proceedings

On the subject of who may practice before the agency and when, the rules propose that, except cases in Simplified Proceedings, only attorneys in good standing be permitted to represent a party before the Commission or its administrative law judges. This restriction would not limit the rights of any party, affected employee, owner, partner, officer, or employee of a party when the party is a labor organization, or business entity, to appear before the Commission. Representation

The Commission proposes several changes to Rule 52, on Discovery. The Commission believes that its procedures are unnecessarily complicated by the application of the extensive requirements for initial disclosures contained in Federal Rule of Civil Procedure (FRCP) 26(a). Application of FRCP 26(a) is unworkable with pro se employers and results in needless additional expense to employers represented by counsel, the Commission believes. Accordingly, the Commission would change Rule 52(a)(1) to make Federal Rule 26(a) inapplicable to Commission proceedings. Discovery

A modification and reordering of the rule on privilege is also proposed. Specifically, the Commission proposes to abolish Rule 11 on Protection of Claims of Privilege and move the parts of Rule 11 that the Commission deems relevant to Rule 52, on discovery.

The Commission’s experience has been that privilege issues generally arise in discovery, are generally resolved by the parties, and if not resolved by the parties, are generally handled in the context of discovery disputes. Among other portions of Rule 11 to be inserted in Rule 52 include the provision that administrative law judges are given wide latitude to fashion appropriate protective orders. Privilege

The Commission proposes redesignating the general rule on sanctions, currently Rule 41, without substantive change to Rule 101. As stated earlier, the contents of the current Rule 101would be merged into the mandatory settlement procedures of Rule 120.

Several other changes, a number technical and clarifying in nature, are included in the proposals, that may be read and downloaded from the Review Commission website, by clicking on the rolling banner or by clicking “What’s New,” both on the homepage.