Rules of Procedure, 62190-62196 [E8-24930]

Agencies

• DEPARTMENT OF LABOR
• Employees' Compensation Appeals Board

[Federal Register Volume 73, Number 203 (Monday, October 20, 2008)]
[Rules and Regulations]
[Pages 62190-62196]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-24930]



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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 contact-oas@dol.gov; 
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

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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

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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

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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