The SPB is heavily enforcing these new regulations as they receive approximately 2,600 appeals a year. Generally 1 in 10 cases actually go to full admin trial. 5 in 10 settle at the PHSC and the other 4 in 10 are settling within days of the hearing going forward. The SPB wants to gain more control over this process so that the other 4 in 10 cases are settled sooner (if possible) and more calendar time can be preserved.
Pre-Hearing Settlement Conferences (and Statements)
Pre-hearing Settlement Conferences (PHSC) are supposed to be set within 30 days of hearing. However it’s more likely they will occur 3-6 months after you file your request for appeal due to back log.
- The PHSC Statement (which sets forth the parameters of your case) is now much more detailed (the specifics are set forth in the regs). It must include as much detailed information as possible as to which documents, evidence, experts and witnesses you will be calling as well as their material relevance to your case. Failure to disclose this information in your statement, absent good cause, will result in it being excluded from use at trial.
- Statement MUST be filed with the SPB and served on the opposing party 10 days prior to the PHSC. All filings to the SPB can be electronically submitted to email@example.com
- ALJ’s have been instructed to strictly enforce evidentiary sanctions for non-compliance.
Note: Functionally this means we have to do much more review and work-up of our SPB appeal cases much earlier in the process. It used to be you could just show up with nothing and very little exposure to the facts.
- Any discovery requests must be served no later than 90 days after you file the initial appeal. This is especially important since cases take so long to get calendared we often don’t pick up the file until a few weeks before trial. Eval of each file to determine if discovery is necessary should occur within 30-60 days of filing an appeal. An extension will be granted for good cause.
- The Department has 30 days to respond, with no more than an additional 30 days granted upon mutual agreement of the parties.
- Depositions are now allowed in lieu of testimony of a witness at hearing for the following circumstances:
- Witness is beyond 100 miles from hearing location (presiding ALJ can approve in-person subpoena for this, but it must be requested)
- Witness moved out of state
- Witness cannot appear due to infirmity
- If Depo submitted as testimony, specific pages and lines must be identified as relevant or entire transcript will be disregarded.
Law and Motion
- Legal motions (dismiss, to strike, consolidate etc.) must be made within 90 days from date appeal is filed by you.
- Motions raised on the first day of trial will NO LONGER be allowed.
- If you intend to file a legal motion, contact the calendar unit and request a hearing date before filing firstname.lastname@example.org All motions will be heard on Fridays.
- Motions for directed verdicts/dismissal at the close of respondent’s case in chief are rooted in statute and are still valid
- Motions need to be filed and served on opposing counsel 30 days prior to the hearing date and are limited to 15 pages
- Oppositions to Motions are due 15 days prior to hearing and are also limited to 15 pages
- Replies to oppositions are due 8 days prior to hearing and are limited to 5 pages.
- Factual assertions in Motions must be supported by declarations by someone with actual knowledge of facts and documents. i.e. paralegal cannot do dec re what attorney knows.
- Motion for Continuance must be filed within 10 days of learning of need for continuance and must show good cause
- Continuances which are mutually requested by both parties, and submitted 90 days prior to hearing, will usually be granted.
- All motions for continuance require a meet and confer with opposing counsel before filing
Motions to compel discovery or inspection of documents must be filed within 14 days of failure of other party to comply
- Oppositions to motions to compel are due within 15 days of service of motion to compel
- Replies to oppositions are due within 10 days of service of opposition
- Motions to compel are ruled upon WITHOUT a hearing and do not require you request one prior to filing
Settlement authority at PHSC
Paul Ramsey, Chief Counsel for SPB, made it very clear that if the departments do not show up at the PHSC with the authority to settle, their adverse action will be dismissed. If they do not have authority to go beyond a certain range of agreements, they MUST have someone who does available immediately by cell phone. The excuse that it is after hours, or no one is available, will not be entertained. Many “what-if” arguments were brought up at the conference on this and there was no sympathy whatsoever. This cuts in our favor obviously because it seems rarely the department rep or attorney that shows up has any real authority.