Subject: Obtaining Evidence
This transmittal amends section I-2-5-71 of the Hearings, Appeals and Litigation Law manual to update and clarify instructions for when an administrative law judge (ALJ) determines the testimony of a particular field office (FO) employee is necessary.
I-2-5-71 – We clarified that an ALJ must obtain concurrence from the Hearing Office Chief Administrative Law Judge (HOCALJ), Regional Chief Administrative Law Judge (RCALJ), and Regional Commissioner (RC) of the appropriate region to request the testimony of a particular FO employee at an appearance. We removed the phrase stating that the RCALJ may waive notification of the request because RCALJ's concurrence is now required. We explained that if the RCALJ concurs with the request, he or she will forward the memorandum to the RC. We also explained that if the HOCALJ, RCALJ, and RC concur with the request, the RC will forward the memorandum to the FO; send a copy of the memorandum to the claimant and representative, if any; and include a copy in the E section of the claim(s) file. We clarified that if the claim(s) file is paper, hearing office staff will place a copy of the memorandum in the E section of the claim(s) file on behalf of the RC. We revised the NOTE to explain that, after receiving HOCALJ and RCALJ concurrence, the ALJ may only send the request directly to an FO manager in an emergency and with the RC's prior approval. In addition, we revised who will determine how the FO employee will testify consistent with the final rules of Setting the Manner of Appearance, from “the ALJ” to “Office of Hearing Operations, through designated staff.” We also made editorial and formatting changes throughout for clarity.
Date: January 21, 2020