[Federal Register Volume 73, Number 203 (Monday, October 20, 2008)]
[Rules and Regulations]
[Pages 62190-62196]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-24930]
[[Page 62190]]
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DEPARTMENT OF LABOR
Employees' Compensation Appeals Board
20 CFR Part 501
RIN 1290-AA22
Rules of Procedure
AGENCY: Employees' Compensation Appeals Board, Labor.
ACTION: Final rule.
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SUMMARY: The Department of Labor (DOL or Department) is publishing this
final rule to update the regulations providing for appeals before the
Employees' Compensation Appeals Board (Board). The Board has
jurisdiction over appeals arising under the Federal Employees'
Compensation Act (FECA). 5 U.S.C. 8149. This final rule updates the
rules and guidance to all federal employees who seek to appeal from the
decisions of the Office of Workers' Compensation Programs (OWCP) under
FECA.
DATES: These regulations are effective November 19, 2008. These
regulations are applicable to all Board appeals filed from OWCP
decisions issued on and after November 19, 2008.
FOR FURTHER INFORMATION CONTACT: Alec J. Koromilas, Chairman and Chief
Judge, Employees' Compensation Appeals Board, 200 Constitution Avenue,
NW., Room S-5220, Washington, DC 20210; e-mail [email protected];
Telephone (202) 693-6406 (voice) (this is not a toll-free number).
Individuals with hearing or speech impairments may access the telephone
number above via TTY by calling the toll-free Federal Information Relay
Service at (800) 877-8339.
SUPPLEMENTARY INFORMATION:
I. Current Regulations and Rulemaking History
This rule implements updates and revisions to the Rules of
Procedure for practice before the Employees' Compensation Appeals Board
(Board). The Board was created by the Reorganization Plan No. 2 of 1946
and transferred to the Department of Labor in 1950 by Reorganization
Plan No. 19 of 1950. See 5 U.S.C. 8145 notes. Under the Federal
Employees' Compensation Act (FECA), the Secretary of Labor must provide
for an Employees' Compensation Appeals Board ``* * * with the authority
to hear and, subject to applicable law and the rules and regulations of
the Secretary, make final decisions on appeals taken from
determinations and awards with respect to claims of employees.'' 5
U.S.C. 8149.
On June 20, 2008, the Board published a Notice of Proposed
Rulemaking (NPRM), 73 FR 35102, proposing the first major revisions to
its rules of procedure in 46 years.
This final rule adopts, for the most part, the provisions that were
proposed in the June 20, 2008 NPRM. A few provisions have been modified
in response to public comments, and a few additional edits have been
made to clarify text, correct typographical errors, or make style
consistent. A total of ten timely comments were received, two of which
were later withdrawn by the commenter. Additionally, one untimely
comment was received one day past the comment deadline. The discussion
below in Section II, Section-By-Section Analysis of Comments and
Revisions, identifies the significant issues raised in non-withdrawn
comments, provides the Board's responses to those comments, and
explains any resulting changes to the proposed rule. Except as
specifically addressed in the Section-by-Section Analysis, the final
rule adopts the proposed provisions and reasoning explained in the June
20, 2008 NPRM.
II. Section-by-Section Analysis of Comments and Revisions
Section 501.1 Definitions
This section defines selected terms in this rule. The NPRM proposed
to replace the term ``party'' with the terms ``Director,''
``Appellant'' and ``Representative'' in paragraphs (f), (g), and (h).
The NPRM also proposed to incorporate the definition of ``counsel''
into the definition of ``Representative'' in the proposed paragraph
(h). One comment was received regarding section 501.1 the day after the
comment period closed. This comment, however, has been considered. The
commenter, who described himself as a tribal court judge who also
represents claimants before the Board, expressed concern that the
breadth of the definition of counsel and attorney in subsection (h) was
too narrow to include all attorneys in good standing to provide
representation to claimants, and in particular to include members of
tribal bars or those admitted to practice before tribal courts. To
clarify this definition, and to specifically include the tribal bar and
tribal court members referenced by the comment, the Board has amended
the definition of representative in section 501.1(h) to include any
individual ``who is admitted to practice and is in good standing with
any court of competent jurisdiction.'' The language in section
501.9(a)(1) has been similarly revised for consistency in this rule.
No other comments were received regarding section 501.1, and in all
other respects (except for grammatical corrections to subsections (h)
and (j)), section 501.1 is adopted as proposed in the NPRM and for the
reasons identified in the NPRM.
Section 501.2 Scope and Applicability of Rules; Compensation and
Jurisdiction of the Board
The NPRM proposed clarifications and updates to this section. No
comments were received concerning section 501.2. Accordingly, section
501.2 is adopted in the final rule as proposed for the reasons
identified in the NPRM.
Section 501.3 Notice of Appeal
Section 501.3 clarifies the requirements for a Notice of Appeal.
Four comments were received regarding this section.
Paragraph (e) to the NPRM proposed that 180 days would be provided
for the filing of all appeals, regardless of where the Appellant lives.
The 180 day filing window is a change from the current rule, which
provides a filing window of 90 days for persons living in the United
States or Canada, and 180 days for persons living outside the United
States or Canada. Additionally, paragraph (e) proposed that should
compelling circumstances prevent an Appellant from meeting this 180-day
limitation, the Board would have retained discretion to extend this
time period, but only on specific application to the Board and upon
satisfactory demonstration of ``compelling circumstances.''
An administrative law representative who appears before the Board
requested clarification regarding whether ``the time limitation of an
automatic one year for filing [an appeal before the Board] is to be
discontinued.'' The current regulation at 20 CFR 501.3(d)(2) does not
provide an ``automatic'' one-year time period to file an appeal with
the Board. Rather, it provides that, ``[f]or good cause shown,'' the
Board in its discretion may waive a failure to appeal within the
current 90 or 180 day window, ``but for no longer than one year from
the date of issuance of the final decision of the Director.'' The NPRM
acknowledged that the ``good cause'' standard has not been enforced in
practice, and stated that the proposed new standard was intended to
provide an ``objective standard'' as a substitute. By defining
compelling circumstances as those circumstances beyond the Appellant's
control, by explicitly stating that compelling circumstances do not
include ``any delay caused by the failure
[[Page 62191]]
of an individual to exercise due diligence in submitting a notice of
appeal,'' and by stating that appeals ``must'' be filed within 180
days, the NPRM proposed a new rule of procedure that would depart from
and supersede any past practice in this area. To further address this
comment, the Board has more fully articulated that compelling
circumstances mean circumstances beyond the Appellant's control ``that
prevent the timely filing of an appeal,'' expanding the language of the
final rule to demonstrate that ``compelling circumstances'' is meant to
represent a more stringent standard than under the current rule. For
example, ``compelling circumstances'' could include a medical condition
that renders the Appellant incompetent or military service in a war
zone that prevents the timely filing of an appeal. Therefore, any past
practice of effectively providing one year for filing an appeal by not
enforcing the regulatory requirement that Appellants show good cause
for failure to file within 90 days is discontinued by this final rule.
Another individual commented that 90 days is ample time for the
filing of an appeal worldwide and that to provide a 180-day appeal
window further overburdens an already overburdened system. As just
discussed, the Board's changes to this regulation discontinue the
current practice of generally permitting one year for filing appeals.
Thus adoption of a uniform 180-day timeframe will effectively reduce
the time to appeal, which is the practical result sought by the
commenter, while still giving claimants and their representatives
adequate time to file an appeal. The Board believes that a 180-day time
limit to appeal an OWCP decision strikes the appropriate balance
between the 90-day and one-year periods provided by the combination of
the current rules and current practice, creating a more efficient
uniform time frame and still providing ample time for all claimants to
exercise their appellate rights.
The commenter also recommended that the Board provide a clear
statement that its decisions are final. We have considered this
comment, but have not changed the rule in the manner requested, because
5 U.S.C. 8149 of the FECA clearly states that the decisions of the
Board are final.
Section 501.3(f) proposed amending the date of filing requirements.
The proposed language acknowledged that Appellants could file appeals
using commercial delivery services or the U.S. Postal Service, but
provided that the date of receipt by the Clerk would be used to
determine timeliness in all cases except where USPS mailing services
were used. In that circumstance, the Board would continue to look to
the date of mailing to establish timeliness if the date of receipt by
the Clerk would make the appeal untimely. An administrative law
representative questioned this differentiation in treatment between
documents delivered by USPS and other commercial carriers, contending
that tracking documentation can also be provided when commercial
carriers are used. The Board has considered the points raised by this
comment and has revised subsection (f)(1) in the final rule to provide
that documentation from either the USPS or a commercial carrier can be
used to determine whether the appeal is timely. A USPS postmark or
``other carriers' date markings'' will be considered only where an
appeal is addressed and sent directly to the Board as set forth in
these rules; this provision does not apply where Board appeals are
mistakenly sent to an improper place (for example, OWCP, Congressional
offices, and the employing agency). Where the Board has received
appeals by any method other than USPS or commercial carrier, the
Clerk's receipt will be used to determine timeliness.
Paragraph (h) in the NPRM proposed to amend the procedures used by
the Clerk upon receipt of an incomplete appeal and clarify that it is
the Clerk who will specify a reasonable time for an Appellant to submit
all required information missing from an appeal. A comment by the
administrative law representative expressed concern that ``reasonable
time'' is not adequately defined, and sought a more specific definition
to insure there would be no abuse of discretion. While the Board
considered this comment, the Board determined that the procedures
proposed in the NPRM are reasonable and adequate. The Board did not set
a fixed time for submission of missing information because the scope
and volume of missing information varies, and the Board intends to
allow the Clerk flexibility to work with Appellants to perfect their
appeals, or clarify the status of their appeal requests.
After reviewing all the comments regarding section 501.3, the Board
has revised Sec. Sec. 501.3(e) and (f)(1) as noted above, and
included minor language changes to this section to create consistency
in style or clarify the text. In all other respects, section 501.3 is
adopted as proposed and justified in the NPRM.
Section 501.4 Case Record; Inspection; Submission of Pleadings and
Motions
Section 501.4 contains clarifications regarding inspection of the
Board's docket and the procedures for submitting pleadings and motions
for consideration by the Board during the pendency of an appeal. No
comments were received regarding this section. Accordingly, section
501.4 is adopted in the final rule as proposed.
Section 501.5 Oral Argument
Section 501.5, in its current and proposed form, contains the
procedures for requesting and conducting oral arguments. The NPRM in
paragraph (a) provided that the granting of oral argument is within the
discretion of the Board and not automatically scheduled upon the
request of an Appellant or the Director. A Federal employee objected to
this change in the availability of oral argument, contending that this
would be a ``serious diminishment in a basic tenant [sic] in our
adversarial system'' for federal employees who bring their appeals
before the Board. Contrary to the view expressed in this comment,
proceedings under the FECA are not adversarial in nature. See, e.g.,
Owens v. Brock, 860 F.2d 1363, 1367 (6th Cir. 1988); William B. Webb,
56 ECAB 156, 159 (2004); Norman M. Perras, 49 ECAB 191, 193(1997); see
also 20 CFR 10.11(b). While the Board acknowledges that oral argument
in some instances can provide the Board valuable assistance in
addressing and evaluating the issues presented on appeal, the Board has
concluded that the automatic availability of oral argument on request
of an Appellant or the Director is not always necessary. To best use
Board resources, this final rule provides the opportunity for
Appellants to request oral argument should their case present, for
example, an issue not previously considered by the Board, or a
perceived conflict between Board decisions on similar issues.
Appellants seeking oral argument must follow the procedure in Sec.
501.5(b) to identify the need for oral argument.
After reviewing the above comment, the Board has determined that no
changes are necessary to the language proposed for this section.
Accordingly, section 501.5 is adopted in the final rule as proposed in
the NPRM.
Section 501.6 Decisions and Orders
This section contains the Board's practice in the issuance of
decisions and orders. No comments were received regarding this section.
Accordingly, section 501.6 is adopted in the final rule as proposed.
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Section 501.7 Petition for Reconsideration
Section 501.7 provides the Board's practice and procedures
regarding requests for reconsideration. No comments were received
regarding this section. Accordingly, section 501.7 is adopted in the
final rule as proposed.
Section 501.8 Clerk of the Office of the Appellate Boards; Docket of
Proceedings; Records
Section 501.8 provides information regarding the Clerk's office,
the docket and record maintained by the Board. No comments were
received regarding this section. Accordingly, section 501.8 is adopted
in the final rule as proposed.
Section 501.9 Representation; Appearances and Fees
Section 501.9 incorporates and expands upon who may represent a
claimant before the Board, and what fees they may charge. In the NPRM,
subsection (a)(1) defined counsel as ``an attorney who has been
admitted to practice before the Supreme Court of the United States or
the highest court of any state, the District of Columbia, or a United
States territory and who is in good standing with that bar.'' The
commenter, who described himself as a tribal court judge who also acts
as a claimant's representative, expressed concern that the definition
of ``counsel'' was too narrow. For the reasons discussed in relation to
501.1, the Board has amended the definition of representative in
section 501.9(a)(1) to include any individual ``who is admitted to
practice and is in good standing with any court of competent
jurisdiction.'' The NPRM and this final rule allow an Appellant to be
represented in a proceeding before the Board not only by an attorney,
but alternatively by a lay representative.
A commenter who represented Appellants before the Board urged the
Board to expand the definition of counsel under subsection (a) to
include ``law firms instead of limiting representation purely to
individual attorneys.'' The commenter noted that an expanded definition
of representative will make it easier for law firms to continue
representation when a designated attorney is ill, on vacation, or
otherwise unavailable. The Board considered this comment but does not
believe that a change in the language of the rule is necessary. The
Board recognizes that if the representative of record is a member of a
law firm, the representative may look to another member of his or her
firm to provide services, particularly if the representative is
temporarily unavailable. Nothing in this rule prevents this practice.
Another comment received from an administrative law representative
questioned whether the statement in subsection (a)(2) that a lay
representative ``may be an accredited Representative of an employee
organization'' was intended to exclude all others from the role of
``Law Representatives'' authorized by the rule. It was not. The
referenced language merely provides an example of one type of lay
representative that may appear before the Board. The first sentence in
subsection (a)(2)--``A non-attorney Representative may represent an
Appellant before the Board''--is all inclusive and does not restrict an
Appellant from representation by anyone of his or her choosing.
Proposed Sec. 501.9(e) clarified the requirements regarding review
of all fee applications to ensure that Appellants are aware of and
understand the mandatory requirement for Board consideration and
approval of any Representative or attorney fee. A representative who
practices before the Board contended that the language ``in connection
with a proceeding before the Board'' is misleading. Arguing that all
proceedings following an appeal to the Board have a ``connection'' with
the Board, this commenter questioned whether the Board intended to
review all fee requests, even for work before the OWCP following
disposition of an appeal. The Board does not. Approval of fee requests
for representative services before OWCP must be submitted directly to
OWCP for consideration under OWCP's own regulations (see 20 CFR Part
10) and are not the subject of this rule. To ensure that this intent is
clearly articulated in this subsection, the Board has revised the
language in the final rule to read ``performed on appeal before the
Board.''
Paragraph (e) also expands the list of factors that the Board will
evaluate when reviewing fee requests. One commenter questioned the
meaning of ``de minimis'' in regard to the Board's consideration of
fees charged, contending that the term is vague and undefined.
Determinations regarding what fees constitute ``de minimis'' charges
will be made on a case-by-case basis with the understanding that the
term ``de minimis'' connotes a minimal or nominal fee. See, e.g.,
Black's Law Dictionary, 464 (8th ed. 2004). For example, if an attorney
charged a nominal flat-rate fee for all of his or her services before
the Board, the fee request would not be denied by the Board solely
because it lacked an hourly breakdown. Appeals brought before the Board
vary widely in complexity as well as the extent of representation
provided to Appellants. Customary charges also vary by locality and the
expertise the representative provides. The final rule therefore
provides for this process and specifies that all fees proposed by any
representative with respect to an appeal must be filed with the Board
for consideration and approval.
The commenter also advocated that the Board utilize the provisions
of 38 U.S.C. 5904, which recognizes a 20% contingency fee as reasonable
in veterans' cases before the Department of Veterans Affairs (VA). The
commenter further contended that the requirement to submit fee requests
for the Board's approval is ``discriminatory'' in that it sets a
different fee review policy than utilized by the VA. Review and
approval by the Secretary of Labor of fee requests are specifically
required by FECA. The provisions of 5 U.S.C. 8127 are controlling in
consideration of representative fees in appeals brought before the
Board under FECA. That provision specifies that ``(a) A claimant may
authorize an individual to represent him in any proceeding under this
subchapter before the Secretary of Labor. (b) A claim for legal or
other services furnished in respect to a case, claim, or award for
compensation under this subchapter is valid only if approved by the
Secretary.'' The Board has found that the use of contingency fees by
attorneys handling FECA claims before OWCP is not in keeping with
section 8127. In Angela M. Sanden, Docket No. 04-1632 (issued September
20, 2004), the representative's contingency fee arrangement was held to
be illegal, and the representative directed to calculate the money owed
for services rendered on an hourly basis. Furthermore, the provisions
of FECA are controlling for fees resulting from Board proceedings, not
those governing another Federal agency whose decisions are not binding
on the Board. Hazelee K. Anderson, 37 ECAB 277 (1986). Thus, no changes
to the final rule have been made as a result of the Board's
consideration of this comment.
Another claimant's representative who appears before the Board
commented that section 501.9 should be expanded to allow for law firms
to bill for the services of paralegals and other experts, to supplement
and support the work of the individual identified as the Appellant's
Representative of record. These charges, as well as related services,
are among those envisioned in FECA as ``other services furnished in
respect to a case, claim or award'' under 5 U.S.C. 8127(b), as they are
specifically
[[Page 62193]]
performed and billed for work on the individual case for which a fee
approval is requested by an attorney or a lay representative. The Board
will consider such fee requests for work performed on appeal under
subsection (e)(5), which allows consideration of ``customary local
charges.''
In addition to the revisions discussed above to section 501.9, the
text of subsection (d) was clarified to address an internal
inconsistency in the NPRM. In all other respects, the final rule is
identical to the rule proposed in the NPRM.
III. Regulatory Procedures
Executive Order 12866
The Department is issuing this final rule in conformance with
Executive Order 12866. The Department has determined that this rule
does not materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs; nor will it have an annual effect on the
economy of $100 million or more; nor will it adversely affect the
economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local or tribal
governments or communities in any material way. Furthermore, it does
not raise a novel legal or policy issue arising out of legal mandates,
the President's priorities or the principles set forth in the Executive
Order. This rulemaking is therefore not significant under Executive
Order 12866.
Regulatory Flexibility Act of 1980
This final rule has been thoroughly reviewed in accordance with the
Regulatory Flexibility Act of 1980, as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601-612. The
Department has determined that the final rule does not involve any
regulatory and informational requirements regarding businesses,
organizations, and governmental jurisdictions subject to regulation.
Paperwork Reduction Act (PRA)
The Department has determined that this rule is not subject to the
requirements of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., as
this rulemaking involves administrative actions to which the Federal
government is a party and that occur after an administrative case file
has been opened regarding a particular individual. See 5 CFR
1320.4(a)(2), (c).
Unfunded Mandates Reform
Unfunded Mandates Reform Act of 1995--This rule does not include
any Federal mandate that may result in increased expenditures by State,
local, and tribal governments, in the aggregate, of $100 million or
more, or increased expenditures by the private sector of $100 million
or more.
Executive Order 12875--This rule does not create an unfunded
Federal mandate upon any State, local or tribal governments.
The Privacy Act of 1974, 5 U.S.C. 552a, as Amended
The Department has determined this rule does not require that any
new information be processed, filed or collected during an appeal
before the Board under the Privacy Act, 5 U.S.C. 552a. Therefore, this
rule does not require revision of the current Privacy Act System of
Records, DOL/GOVT-1, Office of Workers' Compensation Programs, Federal
Employees' Compensation Act File, 67 FR 16826 (April 8, 2002) and DOL/
ECAB-1, Employees' Compensation Appeals Board Docket Records, 67 FR
16867 (April 8, 2002).
List of Subjects in 20 CFR Part 501
Administrative practice and procedure, Workers' compensation.
Signed at Washington, DC, on October 6, 2008.
Howard M. Radzely,
Deputy Secretary, U.S. Department of Labor.
0
For the reasons set forth in the preamble, 20 CFR Part 501 is hereby
revised to read as follows:
PART 501--RULES OF PROCEDURE
Sec.
501.1 Definitions.
501.2 Scope and applicability of rules; composition and jurisdiction
of the Board.
501.3 Notice of appeal.
501.4 Case record; inspection; submission of pleadings and motions.
501.5 Oral argument.
501.6 Decisions and orders.
501.7 Petition for reconsideration.
501.8 Clerk of the Office of the Appellate Boards; docket of
proceedings; records.
501.9 Representation; appearances and fees.
Authority: Federal Employees' Compensation Act (FECA), 5 U.S.C.
8101 et seq.
Sec. 501.1 Definitions.
(a) FECA means the Federal Employees' Compensation Act, 5 U.S.C.
8101 et seq. and any statutory extension or application thereof.
(b) The Board means the Employees' Compensation Appeals Board.
(c) Chief Judge and Chairman of the Board means the Chairman of the
Employees' Compensation Appeals Board.
(d) Judge or Alternate Judge means a member designated and
appointed by the Secretary of Labor with authority to hear and make
final decisions on appeals taken from determinations and awards by the
OWCP in claims arising under the FECA.
(e) OWCP means the Office of Workers' Compensation Programs,
Employment Standards Administration, U.S. Department of Labor.
(f) Director means the Director of the Office of Workers'
Compensation Programs or a person delegated authority to perform the
functions of the Director. The Director of OWCP is represented before
the Board by an attorney designated by the Solicitor of Labor.
(g) Appellant means any person adversely affected by a final
decision or order of the OWCP who files an appeal to the Board.
(h) Representative means an individual properly authorized by an
Appellant in writing to act for the Appellant in connection with an
appeal before the Board. The Representative may be any individual or an
attorney who has been admitted to practice and who is in good standing
with any court of competent jurisdiction.
(i) Decision, as prescribed by 5 U.S.C. 8149 of the FECA, means the
final determinative action made by the Board on appeal of a claim.
(j) Clerk or Office of the Clerk means the Clerk of the Office of
the Appellate Boards.
Sec. 501.2 Scope and applicability of rules; composition and
jurisdiction of the Board.
(a) The regulations in this part establish the Rules of Practice
and Procedure governing the operation of the Employees' Compensation
Appeals Board.
(b) The Board consists of three permanent judges, one of whom is
designated as Chief Judge and Chairman of the Board, and such alternate
judges as are appointed by the Secretary of Labor. The Chief Judge is
the administrative officer of the Board. The functions of the Board are
quasi-judicial. For organizational purposes, the Board is placed in the
Office of the Secretary of Labor and sits in Washington, DC.
(c) The Board has jurisdiction to consider and decide appeals from
final decisions of OWCP in any case arising under the FECA. The Board
may review all relevant questions of law, fact and exercises of
discretion (or failure to exercise discretion) in such cases.
(1) The Board's review of a case is limited to the evidence in the
case record that was before OWCP at the time
[[Page 62194]]
of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.
(2) There will be no appeal with respect to any interlocutory
matter decided (or not decided) by OWCP during the pendency of a case.
(3) The Board and OWCP may not exercise simultaneous jurisdiction
over the same issue in a case on appeal. Following the docketing of an
appeal before the Board, OWCP does not retain jurisdiction to render a
further decision regarding the issue on appeal until after the Board
relinquishes jurisdiction.
Sec. 501.3 Notice of Appeal.
(a) Who may file. Any person adversely affected by a final decision
of the Director, or his or her authorized Representative, may file for
review of such decision by the Board.
(b) Place of filing. The notice of appeal shall be filed with the
Clerk at 200 Constitution Avenue, NW., Washington, DC 20210.
(c) Content of notice of appeal. A notice of appeal shall contain
the following information:
(1) Date of Appeal.
(2) Full name, address and telephone number of the Appellant and
the full name of any deceased employee on whose behalf an appeal is
taken. In addition, the Appellant must provide a signed authorization
identifying the full name, address and telephone number of his or her
Representative, if applicable.
(3) Employing establishment, and the date, description and place of
injury.
(4) Date and Case File Number assigned by OWCP concerning the
decision being appealed to the Board.
(5) A statement explaining Appellant's disagreement with OWCP's
decision and stating the factual and/or legal argument in favor of the
appeal.
(6) Signature: An Appellant must sign the notice of appeal.
(d) Substitution of appellant: Should the Appellant die after
having filed an appeal with the Board, the appeal may proceed to
decision provided there is the substitution of a proper Appellant who
requests that the appeal proceed to decision by the Board.
(e) Time limitations for filing. Any notice of appeal must be filed
within 180 days from the date of issuance of a decision of the OWCP.
The Board maintains discretion to extend the time period for filing an
appeal if an applicant demonstrates compelling circumstances.
Compelling circumstances means circumstances beyond the Appellant's
control that prevent the timely filing of an appeal and does not
include any delay caused by the failure of an individual to exercise
due diligence in submitting a notice of appeal.
(f) Date of filing. A notice of appeal complying with paragraph (c)
of this section is considered to have been filed only if received by
the Clerk by the close of business within the period specified under
paragraph (e) of this section, except as otherwise provided in this
subsection:
(1) If the notice of appeal is sent by United States Mail or
commercial carrier and use of the date of delivery as the date of
filing would result in a loss of appeal rights, the appeal will be
considered to have been filed as of the date of postmark or other
carriers' date markings. The date appearing on the U.S. Postal Service
postmark or other carriers' date markings (when available and legible)
shall be prima facie evidence of the date of mailing. If there is no
such postmark or date marking or it is not legible, other evidence,
such as, but not limited to, certified mail receipts, certificate of
service and affidavits, may be used to establish the mailing date. If a
notice of appeal is delivered or sent by means other than United States
Mail or commercial carrier, including personal delivery or fax, the
notice is deemed to be received when received by the Clerk.
(2) In computing the date of filing, the 180 day time period for
filing an appeal begins to run on the day following the date of the
OWCP decision. The last day of the period so computed shall be
included, unless it is a Saturday, Sunday or Federal holiday, in which
event the period runs to the close of the next business day.
(g) Failure to timely file a notice of appeal. The failure of an
Appellant or Representative to file an appeal with the Board within the
period specified under paragraph (e) of this section, including any
extensions granted by the Board in its discretion based upon compelling
circumstances, will foreclose all right to review. The Board will
dismiss any untimely appeal for lack of jurisdiction.
(h) Incomplete notice of appeal. Any timely notice of appeal that
does not contain the information specified in paragraph (c) of this
section will be considered incomplete. On receipt by the Board, the
Clerk will inform Appellant of the deficiencies in the notice of appeal
and specify a reasonable time to submit the requisite information. Such
appeal will be dismissed unless Appellant provides the requisite
information in the time specified by the Clerk.
Sec. 501.4 Case record; inspection; submission of pleadings and
motions.
(a) Service on OWCP and transmission of OWCP case record. The Board
shall serve upon the Director a copy of each notice of appeal and
accompanying documents. Within 60 days from the date of such service,
the Director shall provide to the Board the record of the OWCP
proceeding to which the notice refers. On application of the Director,
the Board may, in its discretion, extend the time period for submittal
of the OWCP case record.
(b) Inspection of record. The case record on appeal is an official
record of the OWCP.
(1) Upon written application to the Clerk, an Appellant may request
inspection of the OWCP case record. At the discretion of the Board, the
OWCP case record may either be made available in the Office of the
Clerk of the Appellate Boards for inspection by the Appellant, or the
request may be forwarded to the Director so that OWCP may make a copy
of the OWCP case record and forward this copy to the Appellant.
Inspection of the papers and documents included in the OWCP case record
of any appeal pending before the Board will be permitted or denied in
accordance with 5 CFR 10.10 to 10.13. The Chief Judge (or his or her
designee) shall serve as the disclosure officer for purposes of
Appendix A to 29 CFR Parts 70 and 71.
(2) Copies of the documents generated in the course of the appeal
before the Board will be provided to the Appellant and Appellant's
Representative by the Clerk. If the Appellant needs additional copies
of such documents while the appeal is pending, the Appellant may obtain
this information by contacting the Clerk. Pleadings and motions filed
during the appeal in proceedings before the Board will be made part of
the official case record of the OWCP.
(c) Pleadings. The Appellant, the Appellant's Representative and
the Director may file pleadings supporting their position and
presenting information, including but not limited to briefs, memoranda
of law, memoranda of justification, and optional form AB-1. All
pleadings filed must contain the docket number and be filed with the
Clerk. The Clerk will issue directions specifying the time allowed for
any responses and replies.
(1) The Clerk will distribute copies of any pleading received by
the Clerk to ensure that the Appellant, his or her Representative and
the Director receive all pleadings. Any pleading should be submitted
within 60 days of the filing of an appeal. The Board may, in its
[[Page 62195]]
discretion, extend the time period for the submittal of any pleading.
(2) Proceedings before the Board are informal and there is no
requirement that any pleading be filed. Failure to submit a pleading or
to timely submit a pleading does not prejudice the rights of either the
Appellant or the Director.
(3) Upon receipt of a pleading, the Appellant and the Director will
have the opportunity to submit a response to the Board.
(d) Motions. Motions are requests for the Board to take specific
action in a pending appeal. Motions include, but are not limited to,
motions to dismiss, affirm the decision below, remand, request a
substitution, request an extension of time, or other such matter as may
be brought before the Board. Motions may be filed by the Appellant, the
Appellant's Representative and the Director. The motion must be in
writing, contain the docket number, state the relief requested and the
basis for the relief requested, and be filed with the Clerk. Any motion
received will be sent by the Clerk to ensure that the Appellant, his or
her Representative and the Director receive all motions. The Clerk will
issue directions specifying the timing of any responses and replies.
The Board also may act on its own to issue direction in pending
appeals, stating the basis for its determination.
(e) Number of copies. All filings with the Board, including any
notice of appeal, pleading, or motion shall include an original and two
(2) legible copies.
Sec. 501.5 Oral argument.
(a) Oral argument. Oral argument may be held in the discretion of
the Board, on its own determination or on application by Appellant or
the Director.
(b) Request. A request for oral argument must be submitted in
writing to the Clerk. The application must specify the issue(s) to be
argued and provide a statement supporting the need for oral argument.
The request must be made no later than 60 days after the filing of an
appeal. Any appeal in which a request for oral argument is not granted
by the Board will proceed to a decision based on the case record and
any pleadings submitted.
(c) Notice of argument. If a request for oral argument is granted,
the Clerk will notify the Appellant and the Director at least 30 days
before the date set for argument. The notice of oral argument will
state the issues that the Board has determined will be heard.
(d) Time allowed. Appellant and any Representative for the Director
shall be allowed no more than 30 minutes to present oral argument. The
Board may, in its discretion, extend the time allowed.
(e) Appearances. An Appellant may appear at oral argument before
the Board or designate a Representative. Argument shall be presented by
the Appellant or a Representative, not both. The Director may be
represented by an attorney with the Solicitor of Labor. Argument is
limited to the evidence of record on appeal.
(f) Location. Oral argument is heard before the Board only in
Washington, DC. The Board does not reimburse costs associated with
attending oral argument.
(g) Continuance. Once oral argument has been scheduled by the
Board, a continuance will not be granted except on a showing of good
cause. Good cause may include extreme hardship or where attendance by
an Appellant or Representative is mandated at a previously scheduled
judicial proceeding. Any request for continuance must be received by
the Board at least 15 days before the date scheduled for oral argument
and be served by the requester upon Appellant and the Director. No
request for a second continuance will be entertained by the Board. In
such case, the appeal will proceed to a decision based on the case
record. The Board may reschedule or cancel oral argument on its own
motion at any time.
(h) Nonappearance. The absence of an Appellant, his or her
Representative, or the Director at the time and place set for oral
argument will not delay the Board's resolution of an appeal. In such
event, the Board may, in its discretion, reschedule oral argument, or
cancel oral argument and treat the case as submitted on the case
record.
Sec. 501.6 Decisions and orders.
(a) Decisions. A decision of the Board will contain a written
opinion setting forth the reasons for the action taken and an
appropriate order. The decision is based on the case record, all
pleadings and any oral argument. The decision may consist of an
affirmance, reversal or remand for further development of the evidence,
or other appropriate action.
(b) Panels. A decision of not less than two judges will be the
decision of the Board.
(c) Issuance. The date of the Board's decision is the date of
issuance or such date as determined by the Board. Issuance is not
determined by the postmark on any letter containing the decision or the
date of actual receipt by Appellant or the Director.
(d) Finality. The decisions and orders of the Board are final as to
the subject matter appealed, and such decisions and orders are not
subject to review, except by the Board. The decisions and orders of the
Board will be final upon the expiration of 30 days from the date of
issuance unless the Board has fixed a different period of time therein.
Following the expiration of that time, the Board no longer retains
jurisdiction over the appeal unless a timely petition for
reconsideration is submitted and granted.
(e) Dispositive orders. The Board may dispose of an appeal on a
procedural basis by issuing an appropriate order disposing of part or
all of a case prior to reaching the merits of the appeal. The Board may
proceed to an order on its own or on the written motion of Appellant or
the Director.
(f) Service. The Board will send its decisions and orders to the
Appellant, his or her Representative and the Director at the time of
issuance.
Sec. 501.7 Petition for reconsideration.
(a) Time for filing. The Appellant or the Director may file a
petition for reconsideration of a decision or order issued by the Board
within 30 days of the date of issuance, unless another time period is
specified in the Board's order.
(b) Where to File. The petition must be filed with the Clerk.
Copies will be sent by the Clerk to the Director, the Appellant and his
or her Representative in the time period specified by the Board.
(c) Content of petition. The petition must be in writing. The
petition must contain the docket number, specify the matters claimed to
have been erroneously decided, provide a statement of the facts upon
which the petitioner relies, and a discussion of applicable law. New
evidence will not be considered by the Board in a petition for
reconsideration.
(d) Panel. The panel of judges who heard and decided the appeal
will rule on the petition for reconsideration. If any member of the
original panel is unavailable, the Chief Judge may designate a new
panel member. The decision or order of the Board will stand as final
unless vacated or modified by the vote of at least two members of the
reconsideration panel.
(e) Answer. Upon the filing of a petition for reconsideration,
Appellant or the Director may file an answer to the petition within
such time as fixed by the Board.
(f) Oral argument and decision on reconsideration. An oral argument
may be allowed at the discretion of the Board upon application of the
Appellant or Director or the Board may proceed to address the matter
upon the papers
[[Page 62196]]
filed. The Board shall grant or deny the petition for reconsideration
and issue such orders as it deems appropriate.
Sec. 501.8 Clerk of the Office of the Appellate Boards; docket of
proceedings; records.
(a) Location and business hours. The Office of the Clerk of the
Appellate Boards is located at 200 Constitution Avenue, NW.,
Washington, DC 20210. The Office of the Clerk is open during business
hours on all days except Saturdays, Sundays and Federal holidays, from
8:30 a.m. to 5 p.m.
(b) Docket. The Clerk will maintain a docket containing a record of
all proceedings before the Board. Each docketed appeal will be assigned
a number in chronological order based upon the date on which the notice
of appeal is received. While the Board generally hears appeals in the
order docketed, the Board retains discretion to change the order in
which a particular appeal will be considered. The Clerk will prepare a
calendar of cases submitted or awaiting oral argument and such other
records as may be required by the Board.
(c) Publication of decisions. Final decisions of the Board will be
published in such form as to be readily available for inspection by the
general public.
Sec. 501.9 Representation; Appearances and Fee.
(a) Representation. In any proceeding before the Board, an
Appellant may appear in person or by appointing a duly authorized
individual as his or her Representative.
(1) Counsel. The designated Representative may be an attorney who
has been admitted to practice and who is in good standing with any
court of competent jurisdiction.
(2) Lay representative. A non-attorney Representative may represent
an Appellant before the Board. He or she may be an accredited
Representative of an employee organization.
(3) Former members of the Board and other employees of the
Department of Labor. A former judge of the Board is not allowed to
participate as counsel or other Representative before the Board in any
proceeding until two years from the termination of his or her status as
a judge of the Board. The practice of a former judge or other former
employee of the Department of Labor is governed by 29 CFR Part 0,
Subpart B.
(b) Appearance. No individual may appear as a Representative in a
proceeding before the Board without first filing with the Clerk a
written authorization signed by the Appellant to be represented. When
accepted by the Board, such Representative will continue to be
recognized unless the Representative withdraws or abandons such
capacity or the Appellant directs otherwise.
(c) Change of address. Each Appellant and Representative authorized
to appear before the Board must give the Clerk written notice of any
change to the address or telephone number of the Appellant or
Representative. Such notice must identify the docket number and name of
each pending appeal for that Appellant, or, in the case of a
Representative, in which he or she is a Representative before the
Board. Absent such notice, the mailing of documents to the address most
recently provided to the Board will be fully effective.
(d) Debarment of Counsel or Representative. In any proceeding,
whenever the Board finds that a person acting as counsel or other
Representative for the Appellant or the Director, is guilty of
unethical or unprofessional conduct, the Board may order that such
person be excluded from further acting as counsel or Representative in
such proceeding. Such order may be appealed to the Secretary of Labor
or his or her designee, but proceedings before the Board will not be
delayed or suspended pending disposition of such appeal. However, the
Board may suspend the proceeding of an appeal for a reasonable time for
the purpose of enabling Appellant or the Director to obtain different
counsel or other Representative. Whenever the Board has issued an order
precluding a person from further acting as counsel or Representative in
a proceeding, the Board will, within a reasonable time, submit to the
Secretary of Labor or his or her designee a report of the facts and
circumstances surrounding the issuance of such order. The Board will
recommend what action the Secretary of Labor should take in regard to
the appearance of such person as counsel or Representative in other
proceedings before the Board. Before any action is taken debarring a
person as counsel or Representative from other proceedings, he or she
will be furnished notice and the opportunity to be heard on the matter.
(e) Fees for attorney, Representative, or other services. No claim
for a fee for legal or other service performed on appeal before the
Board is valid unless approved by the Board. Under 18 U.S.C. 292,
collecting a fee without the approval of the Board may constitute a
misdemeanor, subject to fine or imprisonment for up to a year or both.
No contract for a stipulated fee or on a contingent fee basis will be
approved by the Board. No fee for service will be approved except upon
written application to the Clerk, supported by a statement of the
extent and nature of the necessary work performed before the Board on
behalf of the Appellant. The fee application will be served by the
Clerk on the Appellant and a time set in which a response may be filed.
Except where such fee is de minimis, the fee request will be evaluated
with consideration of the following factors:
(1) Usefulness of the Representative's services;
(2) The nature and complexity of the appeal;
(3) The capacity in which the Representative has appeared;
(4) The actual time spent in connection with the Board appeal; and
(5) Customary local charges for similar services.
[FR Doc. E8-24930 Filed 10-17-08; 8:45 am]
BILLING CODE 4510-23-P