KCNF’s Richard Renner submitted the following letter to the U.S. Department of Labor, Office of Administrative Law Judges on April 1, 2021 about their notice of proposed rule-making (NPRM) on their Electronic Filing System (EFS).
Todd Smyth, General Counsel
U.S. Department of Labor
Office of Administrative Law Judges
800 K Street NW
Washington, D.C. 20001–8002
RE: Comments On Rules Of Practice And Procedure For Hearings Before The Office Of Administrative Law Judges, Docket number DOL–2020–0015, RIN 1290–AA36
Dear Mr. Smyth:
Kalijarvi, Chuzi, Newman & Fitch has handled numerous cases in the Department of Labor’s whistleblower program. Given the value of having parties represented by legal counsel, we share these comments in hopes that they will encourage a user-friendly culture for OALJ’s eFile and eServe (EFS) systems.
A. DOL should provide telephonic assistance to increase compliance with EFS.
I attended one of OALJ’s training programs for EFS and I was able to register to use the system. However, I encountered obstacles when I asked to be added as a party’s representative for individual cases. This process appeared to require that I file a document showing my appearance as counsel for the party. Both cases had been pending for over a year, so the documents that showed my appearance as representative for my client were the original requests for a hearing that had previously been filed. My requests were rejected with a message about the document being previously filed and already docketed. Getting past this type of message was not covered in the training. The rejection message did not provide any contact information I could use to talk with anyone about completing the transaction. Instead, the email message said in part, “do not reply.” My repeated telephone voicemail messages to OALJ headquarters about the problem were not returned.
Federal courts provide ECF Help Desks where knowledgeable staff are available to assist counsel with electronic filing. I see that EFS provides a form for submission of electronic tickets, but an electronic interface is not as helpful as talking to a live human being. For each hurdle DOL sets up on the way to success, some will not make their way over. Providing a large amount of information in manuals is not the same because some can become overloaded with information so that it is hard to find the information that will be helpful in a particular situation. Talking to a live and knowledgeable person can fill this gap.
KCNF urges DOL to provide a telephone number for assistance and include that telephone number in all EFS web pages and all EFS emails. For example, a rejection should assume that assistance may be necessary to fulfill the goal of making the system accessible, and it should provide information about all available resources for that assistance.
Having telephonic support could effectively address problems such as the system’s failure to provide access to a co-counsel in the same firm, repetitive requirements for notices of appearance, and receiving up to six emails conveying the same order to the same person. A colleague has reported to me inconsistencies in whether and how documents are emailed, and in some cases, receiving notices about new documents in a case but being denied access to that case or the document in EFS.
KCNF also asks that OALJ provide access to every representative who previously entered an appearance for a party that was pending before the effective date of the amendments. If this has already been done, it would be helpful if counsel were notified that they have access and that future filings in the case will be emailed to them.
B. EFS should automatically generate notices of appearance and certificates of service.
Federal courts of appeals can process an entry of appearance and some other routine transactions without requiring the filing of any document at all. I suggest that allowing a party’s attorney of record access to the EFS system for that case should be such a routine procedure that filing a separate document should not be necessary. Particularly where the attorney’s appearance has already been made through some other document, such as a request for a hearing, requiring an additional notice of appearance is duplicative and unnecessary.
Similarly, one of the typical advantages of electronic filing and service is that the system itself generates both service and the record of service, making any additional certificate of service unnecessary. In federal courts, the case management and electronic case filing system (CM/ECF) generates a notice of electronic filing (NEF) for each filing that serves as the certificate of service. With EFS, however, the system not only requires service and a certificate of service, it requires that this certificate be in a separate document. The EFS system turns the typical advantage of electronic filing into an added and unnecessary requirement.
DOL Appeals has a web page of forms, but this web page does not list any forms for notices of appearance:
https://www.dol.gov/appeals/forms.htm
KCNF asks that the EFS generate a notice of appearance automatically for each representative who requests access to a client’s case. KCNF also asks that OALJ’s rules provide that the EFS notice of filing constitutes the certificate of service required by 29 C.F.R. § 18.30(a)(3). Representatives could thereby save the time and expense of generating these documents for each case and each filing.
C. Good faith attempts to file documents should constitute filing.
The main thrust of whistleblower protection laws is their remedial purpose, which “encourages” employees to report safety violations and protect their reporting activity. English v. General Electric Co., 496 U.S. 72, 73, 110 S.Ct. 2270, 2277 (1990). Because a substantial number of whistleblower litigants are pro se or are represented by counsel who only appear before the OALJ infrequently, it is vitally important that the OALJ Rules of Practice clearly reflect Congress’ intent that decisions be reached on the merits of the employees’ claims, not on closely-parsed or restrictive procedural rulings that deprive whistleblowers of their “day in court.”
The OALJ rules recognize the need for flexibility through 29 C.F.R. § 18.10(c):
(c) Waiver, modification, and suspension. Upon notice to all parties, the presiding judge may waive, modify, or suspend any rule under this subpart when doing so will not prejudice a party and will serve the ends of justice.
KCNF suggests that unsuccessful attempts to use EFS should be grounds for waiver, modification and suspension of the rules. For example, if a pro se litigant attempts to submit evidence in opposition to a motion for summary decision, the ALJ should accept that evidence as filed on the date the litigant first attempted electronic submission. Otherwise, cases may be decided on technicalities and not on the merits.
D. Making the “day” end at 11:59 p.m. is correct.
On February 4, 2013, through the comments of the National Employment Lawyers Association (NELA) in docket No. DOL-2012-0007-0001, I submitted the following comment:
The proposed Rules define the end of the day on which a filing is due as 4:30 p.m. in whichever location the filing is being made. See proposed rule 29 CFR 18.32(a)(2). Most litigants would expect the filing day to end at 11:59 p.m. because this is the typical practice in other administrative and judicial proceedings.
There are two reasons for adopting this rule. First, lawyers in private practice do not always have the control they would like over their own schedules. If a lawyer is representing more than one client, an order in one client’s case can interfere with the time previously set aside to complete work for another client. The time between 4:30 p.m. and 11:59 p.m. can be an important time for a lawyer to complete work before a deadline. Second, if a filing is due at 4:30 p.m. in Washington D.C., that requires a West Coast attorney to file at 1:30 p.m., in effect allowing three (3) fewer hours for the filing. The effect is more severe for attorneys in Alaska or Hawai’i.
KCNF supports the proposal to permit electronic filings to be made up to 11:59 p.m., but asks that the time should be based on where the filer is located. Further, OALJ should amend 29 CFR 18.32(a)(2) so that all days end at 11:59 p.m. Whether the filing is made at 11:59 p.m. East Coast, or 11:59 p.m. West Coast, the Agency personnel who receive the filing will find it the next morning when they report to the office. There is no harm to OALJ by allowing everyone to use the available time until the end of their local day.
Thank you for your attention to this matter.
Sincerely,
Richard Renner
KCNF Partner