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Amended and Supplemental Pleadings

Administrative pleadings are “liberally construed” and “easily amended.”[i]Generally,a presiding officer at an administrative proceeding has the power to grant motions to amend pleadings and to conform the pleadings to the proof to make the pleadings more definite and certain.

Administrative pleadings may be amended after introduction of all evidence and after close of the hearing if the opposing party has notice of the facts claimed in the amendment and the opportunity at the hearing to meet the claims.

For an instance, Petitioner construction company was issued a citation by respondent Occupational Safety and Health Review Commission after an employee was killed by a caterpillar scraper while he directed an earthmoving operation. After a hearing, the administrative law judge (ALJ) concluded that petitioner committed a serious and willful violation of safety regulation 29 C.F.R. 1962.602(a)(9)(ii) by permitting the scraper to be operated in reverse without the use of a reverse signal alarm or employee signals. Petitioner sought review of the decision and respondent amended its pleadings to include prior violations of the safety regulation.  Respondent affirmed the ALJ’s decision because it found that petitioner violated the regulation several times prior to the accident.  On review, the court affirmed the decision because the amended pleading was proper under Fed. R. Civ. P. 15(b).  The court found that petitioner impliedly consented to the amendment by attempting to prove the unpleaded defense of isolated occurrence or employee misconduct. The court also found that the amendment did not prejudice petitioner because it did not change the legal theory of liability or the defenses available[ii].

If there is a change of theory during an agency proceeding, the respondent is entitled to be given timely notice of the new charges and an opportunity to contest them.  Also, if an administrative complaint is amended to include new counts after the close of hearings, additional hearings must be held to address the new violations.

[i] Yaffe Iron & Metal Co. v. United States Environmental Protection Agency, 774 F.2d 1008 (10th Cir. 1985)

[ii] Mineral Industries & Heavy Constr. Group v. Occupational Safety & Health Review Com., 639 F.2d 1289 (5th Cir. 1981)

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