Issued July 1, 1999
The following rules of procedure are set forth to provide the parties appearing before the Appellate Officer (“AO”) with information about how the proceedings will be conducted. This announcement is for informational purposes only, and the AO reserves the right to change the procedures in any given case in his discretion to improve the effectiveness or efficiency of the proceedings, at the request of the parties, or as the need may arise.
Rule 1. Scope of Rules.
Pursuant to the LIUNA Ethics and Disciplinary Procedure adopted on January 18, 1995, the following rules are hereby adopted. The rules shall take effect on July 1, 1999, and shall apply to all appeals to the AO from decisions rendered after July 1, 1999 by the Independent Hearing Officer (“IHO”), by a Canadian Independent Hearing Officer (“CIHO”), by the National Executive Board (“NEB”) of the National Postal Mail Handlers Union (“NPMHU”), or by a LIUNA Local Union or District Council Trial Board. These rules supersede the “Rules of Procedure for Appeals to the Appellate Officer” promulgated on May 10, 1995, and the “Procedures for the Conduct of Hearings Before the Appellate Officer.” These rules may be cited as “AO R. [number].”
Rule 2. Pleadings.
(a) Address for filing. All pleadings referred to in these rules, including notices of appeals, motions, briefs, and appendices, shall be filed with the AO at this address: W. Neil Eggleston, LIUNA Appellate Officer, Howrey Simon Arnold & White, 1299 Pennsylvania Avenue, N.W., Washington, D.C. 20004.
(b) Number of copies to be filed; requirement of service. Only one copy of any pleading shall be filed with the AO. In all cases, the party submitting any pleading or documents to the AO must serve a separate copy on the opposing party or parties as provided in Rule 3.
(c) Confidentiality of pleadings. The AO will hold the pleadings confidential and permit no one except the parties, their authorized representatives, or others who in the discretion of the AO would contribute to the resolution of the matter, to examine the pleadings during the pendency of the proceedings.
Rule 3. Filing and Service.
(a) Method of filing. Filing of pleadings or other documents may be accomplished by mail or courier addressed to the AO. The AO will also accept filing of pleadings by facsimile so long as the party filing by facsimile also arranges for an original copy to be delivered to the Appellate Officer by mail or courier. Pleadings will be treated as filed on the day of mailing or transmittal.
(b) Materials must be served on other parties. Any pleadings, materials, letters, or other documents that are submitted to the AO while an appeal is pending first must be sent via first-class mail to all other parties involved in the matter at their last known address. Any materials transmitted to the AO by facsimile must also be first transmitted by facsimile to the other parties involved in the case, unless it is not possible to do so, in which case the materials must be provided to all the other parties in an expeditious fashion.
Rule 4. Notice of Appeal.
(a) Time for filing. A party wishing to appeal a final decision or appealable order of the IHO or CIHO must file a notice of appeal with the AO within ten (10) days of the filing of the decision or order sought to be appealed. A party wishing to appeal a final decision of the NEB or of a Local Union or District Council Trial Board must file a notice of appeal with the AO within thirty (30) days of the decision sought to be appealed.
(b) Content of the notice of appeal. The notice must indicate: (1) the party or parties taking the appeal; (2) the date of the decision below; and (3) the names of counsel for or other authorized representative of each party, if any.
(c) Cross-Appeals. Within ten (10) days after the date of filing of any timely notice of appeal, any other party in the case may file a cross-appeal containing the same information specified in Rule 4(b).
Rule 5. Appeal Forms.
Upon receipt of a notice of appeal, the AO will send an appeal form to the appealing party requesting basic information about the matter being appealed and whether or not the party requests a hearing for oral argument. The party appealing should fill out the form and send copies to the AO and all other parties within ten days of receiving the form. The AO may dispense with the requirement of an appeal form in particular cases.
Rule 6. Briefing Schedule.
In cases in which the AO believes it would be useful for the parties to submit written briefs stating their positions, the AO will set a briefing schedule upon each party indicating when each party's briefs are to be filed. The briefing schedule may also set forth the page limits applicable to each party’s briefs. In appropriate cases, the AO, upon the motion of any party or on his own motion, may order expedited briefing and argument. The AO may dispense with written briefing in particular cases and resolve the appeal based on the preexisting record.
Rule 7. Briefs.
(a) Principal Briefs. The principal briefs of the appellant and appellee shall contain the following:
(1) A statement of the issues presented for review.
(2) A statement of the facts relevant to the issues presented for review. All facts stated shall be supported by reference to the page or pages of the record or appendix where the fact appears.
(3) An argument.
(4) A short conclusion stating the relief sought.
(b) Reply Brief. The appellant may file a reply brief responding to the appellee’s brief.
Rule 8. Record on Appeal; Appendix to the Briefs.
(a) Appeal to be Decided on Record Developed Below. The AO ordinarily will decide any appeal based on the record compiled before the IHO, CIHO, NEB, or Trial Board in the particular case. Upon receipt of the notice of appeal or the establishment of a briefing schedule, the AO will request that the record be forwarded by the tribunal whose decision is under review.
(b) Appendix. In particular cases, the AO may elect to require the parties to prepare and submit an appendix to their briefs. If so ordered by the AO, the appellant shall submit, bound separately from the principal brief, one copy of an appendix containing any opinion, memorandum of decision, report or finding of facts and conclusions of law issued by the lower tribunal in support of its decision. The appendix shall also contain copies of any other opinions, orders, excerpts from transcripts and other documents relevant to the issues raised on appeal. The appellee may also submit with its brief one copy of an appendix containing any materials not contained in the appellant’s appendix.
Rule 9. Computation and Extensions of Time.
(a) Computation of Time. In computing any period of time of fifteen (15) days or fewer prescribed by these rules or a briefing schedule, only business days shall be included. In computing any period of time of sixteen (16) days or more prescribed by these rules or a briefing schedule, all calendar days shall be included. The day of the act or event from which the designated period of time begins to run shall not be included. In all instances in which a responsive pleading or brief is required, the time period shall commence running from the date the brief was mailed or otherwise transmitted. If the calculation of time established under these rules would otherwise require a document to be filed on a date that is a Saturday, Sunday, or legal holiday, the deadline to file such document shall be extended to the next date that is not a Saturday, Sunday, or legal holiday.
(b) Enlargement of Time. The AO may enlarge the time prescribed by these rules on request of any party or in his own discretion. A party wishing to request an enlargement of time shall set forth their request in a letter submitted to the AO stating the reasons for the request, and a copy of such letter shall be served on all other parties as provided in Rule 3.
Rule 10. Oral Argument.
Any appealing party may request a hearing for oral argument in its appeal form. Either the party appealing or any other party involved in the appeal may request a hearing for oral argument in their principal briefs. The AO may also request oral argument, to be held by telephone or in person, on his own motion in the absence of a request by either party. If oral argument is requested, the AO will notify each party within a reasonable time of the date, method and location for the argument. In the event the argument is to be held in person, an attempt will be made to hold oral argument at a location convenient to all parties. Any interested LIUNA member or officer may attend the hearing.
Rule 11. Hearing Room.
The hearing room will typically be set up as a conference table. The AO and any assistant will sit at the head table. Each of the parties to the appeal and any related or interested parties will sit respectively on either side of the table.
Rule 12. Record.
All appellate hearings will ordinarily be transcribed. The lack of a court reporter shall not be cause for delay in the hearing except as the AO may determine in his own discretion.
Rule 13. Appellate Counsel.
Parties appearing before the AO may, in the discretion of the AO, be represented by a representative who is a member in good standing of the Laborers’ International Union of North America or an attorney subject to the ethical obligations and professional standards of the legal profession. Any attorney who intends to represent any party to an appeal is requested to enter his or her appearance with the AO at the earliest practicable opportunity.
Rule 14. Commencing the Hearing.
The AO will open the session with brief introductory remarks describing the scope of the appeal, the nature of the proceeding and determining whether any of the parties have any questions concerning the proceeding.
Rule 15. Hearing.
The appealing party will generally be given the opportunity to speak first. That party should state the reasons for appealing the conclusions reached by the trial tribunal. The responding party will then have the opportunity to address the AO and explain why the decision of the trial tribunal was correct and should be affirmed. The AO controls the order, duration, and method of presentation of argument.
Rule 16. Multiple Issues.
In those appeals raising several issues, the parties and the AO may decide to address one issue at a time; that is, the appellant may raise one issue and hear the response from the other party before continuing to the next issue. On those appeals presenting fewer issues, the parties and the AO may decide that it would be more efficient for the appealing party to address all of the issues in his or her initial presentation followed by a response on all of the issues from the responding party.
Rule 17. Non-parties.
The AO may entertain arguments or comments from others attending the proceedings as long as, in the judgment of the Appellate Officer, their participation would be helpful in rendering a decision.
Rule 18. Additional Testimony.
Although it is discouraged, the AO retains the discretion to permit additional testimony or the receipt of additional documents in an appropriate case. The AO is substantially more likely to reject a party’s request to present such testimony or new documents where the AO and the opposing side have not been informed in advance of such additional information.
Rule 19. Terminating the Hearing.
The AO retains the discretion to terminate the hearing if he determines that further argument or the receipt of additional evidence would not be helpful to the resolution of the appeal.
Rule 20. Petition for Reconsideration.
A petition for reconsideration may be filed within ten (10) days after the AO renders a decision. The petition shall state the points of law or fact which, in the opinion of the petitioner, the AO has overlooked. There will ordinarily be no oral argument in support of a petition. No answer to a petition will be received unless requested by the AO. If a petition for reconsideration is granted, the AO may make a final disposition of the case without reargument.
Rule 21. Motions.
Unless otherwise provided under these rules, an application for an order or other relief shall be made by filing a motion with service on all parties. Unless the time for filing a response is modified by the AO, any party may file a response in opposition to a motion within seven (7) days after the motion is mailed or otherwise transmitted. No oral argument will be heard on motions unless otherwise ordered by the AO.
Rule 22. Permissive Appeals.
An appeal from a ruling other than a final disposition by the IHO or CIHO may be sought by filing with the AO a petition for leave to appeal. Allowance of such an appeal is disfavored, and is within the discretion of the AO. The petition shall be filed within ten (10) days of the ruling from which appeal is sought. A notice of appeal need not be filed. The petition for leave to appeal shall contain: (1) a statement of the facts necessary to an understanding of the issues to be presented by the appeal; (2) a statement of those issues and of the relief sought; (3) a statement of the reasons why in the opinion of the petitioner the appeal should be allowed; and (4) a copy of the ruling complained of and any opinion or memorandum relating thereto. No answer to a petition will be received unless requested by the AO.
Rule 23. Remand or Referral for Further Investigation.
The AO reserves the right to remand any matter to a lower tribunal for further investigation or fact-finding. The AO may also refer any matter for inquiry by the LIUNA Inspector General or GEB Attorney.
Rule 24. Substantial Compliance.
The AO may, in his discretion, consider pleadings that are untimely or otherwise not in technical compliance with these rules.