W. Va. Code R. § 77-2-7

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 77-2-7 - Hearings: Administrative Law Judge; Appearances; Subpoenas; Discovery; and Procedure

7.1. All hearings shall be open to the public except in extraordinary circumstances when the administrative law judge determines, with the consent of the parties, that substantial justice would not be effectuated thereby.

7.2. Hearings shall be held in the county where the respondent resides or transacts business, or, when agreed to by the parties, where the acts complained of occurred or any other mutually agreeable place. The place of the hearing will be designated by the administrative law judge.

7.3. In the discretion of the administrative law judge two or more proceedings against the same respondent arising out of the same set of circumstances, or two or more proceedings by the same complainant against two or more respondents arising out of the same set of circumstances, maybe consolidated for the purpose of hearing.

7.4. A qualified administrative law judge designated by the chairperson or the executive director shall preside over the hearing.

7.4.a. The conduct of the administrative law judge shall, where applicable, be guided by the Judicial Code of Ethics; and

7.4.b. Any party may file with the administrative law judge a motion, made in good faith, alleging that the administrative law judge should not be allowed to hear the case. The motion shall be determined by the administrative law judge prior to the taking of other evidence. If the motion is denied by the administrative law judge, the moving party may file an appeal within ten (10) days after receipt of such written denial to the executive director, whose decision to affirm, reverse or modify the decision of the administrative law judge shall be final. If the motion is granted by the administrative law judge, any party may appeal to the executive director who may affirm, reverse or modify the decision of the administrative law judge. The decision of the executive director shall be final.

7.5. The complainant shall be present at the hearing unless excused by the administrative law judge because of extraordinary circumstances, provided, that if the respondent shows that the complainant's absence will cause undue hardship to the presentation of its case, the respondent shall be entitled to a continuance.

7.5.a. In the event that complainant fails to appear and has not been excused, the administrative law judge may proceed with the hearing and take evidence or the administrative law judge may take any other action, including but not limited to, dismissing the complaint without the taking of testimony.

7.6. The respondent may appear at the hearing with or without counsel. Failure of a respondent to appear shall not prevent presentation of the case or the entering of a final decision.

7.7. The case in support of the complaint shall be presented by the Commission's attorney or agent. In cases in which the complainant is represented by private counsel, and with the consent of the chairperson or the executive director or their designee, and after a determination that the Commission has no independent interest in the matter, the case in support of the complaint shall be presented solely by the complainant's attorney and the Commission shall not itself be represented by counsel at the hearing.

7.8. Any person not initially joined in the proceeding shall be permitted to timely petition the administrative law judge for intervention by counsel upon the filing of a motion and notice to the parties, which shall set forth the grounds for said intervention. The administrative law judge shall rule upon the motion and set forth in an order such matters as may be required.

7.9 All attorneys intending to appear at a Commission proceeding shall file a notice of appearance with the administrative law judge. The filing of an answer executed or prepared by an attorney shall constitute a notice of appearance. An attorney at law who appears for a party to the proceeding at any stage therein shall be deemed to remain that party's attorney throughout the proceeding until:

7.9.a. The party represented files with the administrative law judge a written revocation of the attorney's authority, or

7.9.b. The attorney files with the administrative law judge a written statement of her/his withdrawal from the case; or

7.9.c. The administrative law judge receives notice of the attorney's death or disqualification.

7.10. Service of any document or paper (except subpoenas, subpoenas duces tecum, final decisions, final orders) on an attorney for a party shall be deemed service on the party she/he represents.

7.11. All motions other than those made during a hearing shall be in writing and shall state briefly the order or relief applied for and the grounds for such motion. Any such motion shall be filed with the administrative law judge. A copy of the motion shall be served at the same time upon the Commission's attorney and other parties to the hearing. A response, if any, shall be filed in writing with the administrative law judge, within five (5) days after service of the motion and a copy thereof shall be served within the same period upon the Commission's attorney and other parties to the hearing. Such motions shall be decided by the administrative law judge, without oral argument thereon, unless the administrative law judge, as appropriate, shall determine to hear oral argument, in which case the parties shall be notified of such fact and of the time and place for such oral argument. In the discretion of the administrative law judge, oral argument on a motion may be heard by telephone.

7.12. Subject to the pertinent provisions of the Act, the Commission may issue subpoenas and subpoenas duces tecum either at its own instance or upon written application of a party to the administrative law judge whenever necessary to compel the attendance of witnesses and the introduction of books, records, correspondence, documents, papers or any other evidence which relates to any matter before the Commission.

7.12.a. Where a subpoena is issued at the instance of a party to the hearing, the cost of service, witness and mileage fees shall be borne by the party at whose request the subpoena is issued. Where the subpoena is issued at the instance of the Commission, the cost of such service shall be borne by the Commission. Such witness and mileage fees shall be the same as are paid witnesses in the courts of this state. All requests by parties for subpoenas and subpoenas duces tecum shall contain a statement acknowledging that the requesting party agrees to pay such fees; and

7.12.b. Subpoenas and subpoenas duces tecum shall be enforced as provided in W. Va. Code § 29A-5-l(b).

7.13. Subject to the provisions of these regulations, the administrative law judge shall have full authority and discretion to control the procedure of the hearing, to admit or exclude testimony or other evidence, and to rule upon all motions and objections. The administrative law judge may inquire of any witness presented by any party. After notice of the hearing is issued and subject to the provisions of the Act, the administrative law judge, may issue subpoenas duces tecum in furtherance of her/his duties and responsibilities.

7.13.a. On any question which would be determinative of the jurisdiction of the Commission, or might otherwise result in the dismissal of the complaint, the administrative law judge may issue a final decision on the merits accompanied by findings of fact and conclusions of law, either before or after the taking of testimony,

7.13.b. The administrative law judge may continue a hearing from day to day or adjourn it to a later date or to a different place by announcement thereof at the hearing or by appropriate notice to all parties; and

7.13.c. Motions made during a hearing and objections with respect to the conduct of a hearing, including objections to the introduction of evidence, shall be stated orally and shall, along with the ruling of the administrative law judge, be included in the transcript of the hearing.

7.14. Subsequent to the issuance and service of notice of public hearing upon a respondent, the parties may employ the pre-hearing discovery measures set forth throughout Rule 7 of these rules and regulations, in addition to oral interviews and informal requests for documents or other materials and information.

7.14.a. Discovery shall commence upon notice of hearing and extend over such time as determined by the administrative law judge;

7.14.b. The staff of the Commission shall not be examined either by interrogatory or deposition except when leave to undertake such examination is granted by the administrative law judge upon motion alleging that:

7.14.b.1. The staff person has direct personal knowledge of evidence relevant to the proceeding other than evidence gathered as a result of investigation;

7.14.b.2. For other reasons, which shall be set forth with particularity, justice requires that the petition be granted; or

7.14.b.3. Discovery has revealed that the staff person will be called as a witness.

7.14.c. Information which is exempt from discovery includes but is not limited to:

7.14.c.1. Any record, report, memorandum, or communication dealing with the internal practice, policy and procedure of the Commission;

7.14.c.2. Any record, report, memorandum, or communication of staff or any staff meeting regarding the institution, progress or result of an investigation of a complaint or regarding matters prepared in anticipation of a hearing;

7.14.c.3. Any record, report, memorandum, or communication regarding any endeavor to eliminate the unlawful discriminatory practice complained of by conference, conciliation or persuasion;

7.14.c.4. The work product of an investigator or other staff member made in the course of an investigation of a complaint or in anticipation of or in preparation for a hearing on the complaint, or any report, record, memorandum, or communication made by staff during the investigation of a complaint or in anticipation of or in preparation for a hearing on the complaint which is otherwise privileged;

7.14.c.5. Any memorandum, statement or mental impression prepared or obtained by the Commission's attorney; and

7.14.c.6. The identity of confidential informants and sources, unless they are to be used as witnesses.

7.15. In any action, the administrative law judge may direct the parties or the attorneys for the parties and the Commission to appear before her/him for a conference to consider, or to submit by a pre-hearing memorandum, the following:

7.15.a. Stipulations of uncontested facts, which shall be deemed to be proven facts for purposes of the hearing record;

7.15.b. The necessity or desirability of amendments to the pleadings;

7.15.c. A list of all exhibits each party is going to offer into evidence at trial, including any objections to be raised by the opposing party, or stipulations regarding admissibility or authenticity;

7.15.d. A list of all witnesses who shall be called by any party. If such witness shall be called as an expert, the party to call such expert shall briefly describe the topic which the expert's testimony shall address;

7.15.e. Such other matters as may aid in the disposition of the action;

7.15.f. Should any party fail to comply with the pre-hearing memorandum requirement, the administrative law judge, on motion or sue sponte, may file a recommendation of dismissal or default or other appropriate order imposing sanctions as justice may require, including those delineated in Rule 7.27; and

7.15.g. The administrative law judge shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by stipulations or agreements of counsel. After said order has been examined by counsel and entered, it controls the subsequent course of the action, unless modified at the hearing to prevent manifest injustice. The administrative law judge may establish by rule a pretrial calendar on which actions may be placed for consideration as above provided. Objections to the prehearing order may be noted on the record for appeal purposes.

7.16. Parties may obtain discovery from one or more of the following methods:

7.16.a. Depositions may be obtained only by motion served upon the parties and by order of the administrative law judge;

7.16.b. Written interrogatories may be used but are limited to a total of forty (40) questions to be answered by any person, party, agent, or witness to whom the interrogatories are propounded. This numerical limitation of questions applies whether or not the questions appear in sets, subsets, sections, or otherwise; and

7.16.c. Requests to produce documents or things or permission to enter upon land or other property, for inspection and other purposes. Unless the administrative law judge orders otherwise, the frequency of use of this method is not limited, provided, however, in those cases in which a party is proceeding pro se the party requesting the discovery shall file a written motion with the administrative law judge requesting leave to perfect the same. The administrative law judge shall review said motion and issue an order either denying the request or providing the conditions by which the discovery shall be conducted.

7.17. Unless otherwise limited by order of the administrative law judge in accordance with these rules, the scope of discovery is as follows:

7.17.a. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not a ground for objection that the information sought will be inadmissible if the information sought appears reasonably calculated to lead to the discovery of admissible evidence;

7.17.b. Subject to the provisions of §7.17.c. of this rule, a party may obtain discovery of documents and tangible things otherwise not discoverable under §7.17.a. of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including an attorney, consultant, surety, indemnitor, insurer or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and that she/he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the administrative law judge shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation;

7.17.c. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained as follows:

7.17.c.1. A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion; and

7.17.c.2. Upon motion, the administrative law judge may order further discovery by other means, subject to such restrictions as the administrative law judge may deem appropriate.

7.18. Protective orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the administrative law judge may make such order as justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following measures:

7.18.a. That the discovery not be had;

7.18.b. That the discovery may be had only on specified terms and conditions, including a designation of the time or place;

7.18.c. That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;

7.18.d. That certain matters may not be inquired into, or that the scope of the discovery be limited to certain matters;

7.18.e. That discovery be conducted with no one present except persons designated by the administrative law judge;

7.18.f. That a deposition after being sealed be opened only by order of the administrative law judge or Commission;

7.18.g. That a trade secret or other confidential research development, or commercial information not be disclosed or be disclosed only in a designated way,

7.18.h. That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the administrative law judge; and

7.18.i. If the motion for a protective order is denied, in whole or in part, the administrative law judge may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of Rule 7.27.d. apply to the award of expenses incurred in relation to a motion for a protective order.

7.19. Unless the administrative law judge upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery.

7.20. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement such response to include information thereafter acquired, except as follows:

7.20.a. A party is under a duty seasonably to supplement a response with respect to any question directly addressed to the identity and location of persons having knowledge of discoverable matters, or the identity of each person expected to be called as an expert witness at trial, the subject matter on which she/he is expected to testify, and the substance of her/his testimony;

7.20.b. A party is under a duty seasonably to amend a prior response if the party obtains information upon the basis of which she/he knows that the response was incorrect when made, or she/he knows that the response, though correct when made, is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment; and

7.20.c. A duty to supplement responses may be imposed by order of the administrative law judge, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses.

7.21. The parties may by written stipulation filed with the administrative law judge:

7.21.a. Provide that depositions may be taken before any persons, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions; and

7.21.b. Modify the procedures provided by these rules for other methods of discovery.

7.22. Depositions of any person may be requested upon motion by any party and the administrative law judge by order may establish the circumstances under which the depositions are to be taken. This rule does not prevent the administrative law judge from refusing to allow the taking of any deposition or in any way limit the administrative law judge's discretion as provided in these rules.

7.23. Physical and mental examinations for discovery purposes will be allowed only for good cause shown upon motion to the administrative law judge and only when medical testimony is to be substantially relied upon in the action. In those circumstances, the administrative law judge may order the examination of any person, the cost of which, including reasonable travel expenses, loss of wages, etc., shall be borne by the requesting party. Under certain circumstances the requesting party may also be required to pay the expenses of a necessary traveling companion and the examined party's attorney and/or physician.

7.24. The administrative law judge shall take notice of the Commission's Rules Governing Discrimination Against the Disabled and all other pertinent rules duly promulgated by the Commission.

7.25. Subject to the limitations and proviso of Rule 7.16.b. any party or the Commission may serve upon any other party, their attorney or agent, written interrogatories to be answered by the party designated or, if the party designated is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party.

7.25.a. Each interrogatory shall be answered separately and fully in writing, under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney making them. The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections, if any, within twenty (20) days after service of the interrogatories. Upon motion, the administrative law judge may allow a shorter or longer time or expand the number of questions limited by Rule 7.16.b. The party submitting the interrogatories may move for an order under Rule 7.27. with respect to any objection to or other failure to answer an interrogatory,

7.25.b. Interrogatories may relate to any matters which can be inquired into under Rule 7.17., and the answers may be used to the extent permitted by the Rules of Evidence as set forth in Rule 7.30.; and

7.25.c. An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the administrative law judge may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pretrial conference or other later time.

7.26. Any party, subject to the proviso of Rule 7.16., may serve on any other party a request to produce and permit the party making the request, or someone acting on his behalf, to inspect and copy, any designated documents (including writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations from which information can be obtained, translated, if necessary, by the responding party through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 7.17. and which are in the possession, custody, or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property of any designated object or operation thereon, within the scope of Rule 7.17.

7.26.a. The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts;

7.26.b. The party upon whom the request is served shall serve a written response within twenty (20) days after service of the request. The administrative law judge may allow a shorter or longer time. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. The party submitting the request may move for an order under Rule 7.27. with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested; and

7.26.c. This rule does not preclude an independent request directed to a person not a party for production of documents and things and permission to enter upon land.

7.27. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:

7.27.a. A motion for an order to compel discovery shall be made to the administrative law judge. The administrative law judge may set the motion for hearing or rule upon the motion without a hearing;

7.27.b. If a party fails to answer an interrogatory submitted under Rule 7.25., or if a party, in response to a request for production or inspection submitted under Rule 7.26. fails to respond or to permit inspection or production as requested, the discovering party may move for an order compelling an answer, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order as set forth in this rule. If the administrative law judge denies the motion in whole or in part, she/he may make such protective order as she/he would have been empowered to make on a motion made pursuant to Rule 7.18.;

7.27.c. For purposes of this subsection an evasive or incomplete answer is to be treated as a failure to answer;

7.27.d. If the motion to compel is granted the administrative law judge may, after opportunity for hearing, require as part of his or her final decision that the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the administrative law judge finds that the opposition to the motion was reasonably justified or that other circumstances make an award of expenses unjust. If the motion is denied, the administrative law judge may, after opportunity for hearing, require as part of his or her final decision that the moving party or the attorney advising such conduct or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the administrative law judge finds that the making of the motion was reasonable or that other circumstances make the award of expenses unjust. If the motion is granted in part and denied in part, the administrative law judge may recommend apportioning the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner; and

7.27.e. If a party or an officer, director, or managing agent of a party or a person designated to testify on behalf of a party fails to obey an order to provide or permit discovery, the administrative law judge may make such orders in regard to the failure as are just, and among others, the following:

7.27.e.1. An order that the matters regarding which the order was made, or any other designated facts, shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

7.27.e.2. An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the party from introducing designated matters into evidence;

7.27.e.3. An order striking pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party,

7.27.e.4. In lieu of any of the foregoing orders, or in addition thereto, an order treating as a contempt of the Commission the failure to obey any orders; and

7.27.e.5. In lieu of any of the foregoing orders, or in addition thereto, the administrative law judge may require as part of his or her final decision that the party and/or attorney failing to obey these rules pay the reasonable expenses, including attorney's fees, caused by the failure, unless the administrative law judge finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

7.28. If a party or an officer, director, or managing agent of a party or a person designated to testify on behalf of a party fails:

7.28.a. To appear before the officer who is to take his deposition, after being served with proper notice, and order, or

7.28.b. To serve answers or objections to interrogatories submitted under Rule 7.25., after proper service of the interrogatories, or

7.28.c. To serve a written response to a request for production or inspection submitted under Rule 7.26., after proper service of the request, Rule 7.28.d., then the administrative law judge, on motion, may make such orders in regard to the failure as are just. In lieu of any order or in addition thereto, the administrative law judge may require as part of her/his final decision that the party failing to act or the attorney advising him or both pay the reasonable expenses, including attorney's fees, caused by the failure, unless the administrative law judge finds that the failure was reasonable or that other circumstances make an award of expenses unjust. The failure to act described in this subsection may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by Rule 7.18.

7.29. Upon notice to the parties and the Commission, clerical mistakes and inadvertence in orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the administrative law judge, or the Commission at any time on its own initiative, or on the motion of any party and, after such notice, if any, as the administrative law judge or the Commission orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the court, and thereafter while the appeal is pending may be so corrected with leave of the court.

7.30. The established Rules of Evidence shall apply, as modified by W. Va. Code § 29A-5-2, except when contrary to the Act or these rules.

7.31. Evidentiary depositions maybe taken upon a motion and order as provided in Rule 7.21. The extent of use shall be determined by the administrative law judge.

7.32. When issues not raised in the complaint, as amended, or answer, as amended, are heard by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendments of the pleadings as may be necessary to cause them to conform to the evidence may be made upon motion of any party at any time, even after a final decision; but failure to so amend shall not affect the adjudication of the hearing of these issues. If evidence is objected to at the hearing on the ground that it is not within the issued raised by the pleadings, the administrative law judge may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be served thereby and the objecting party fails to show that admission of such evidence would prejudice her/him in maintaining a defense on the merits. The administrative law judge may grant a continuance to enable the objecting party to meet such evidence.

7.33. The administrative law judge may exclude from the hearing room or from further participation in the preceding any person who engages in improper conduct, including a party to the proceeding, attorney of record, a witness engaged in testifying, or an observer.

7.34. Television, newsreel, motion picture, still or other cameras may be operated in the hearing room while the public hearing is in progress only with the permission of the administrative law judge. Mechanical recording devices other than those provided by the Commission or at its direction may be operated in the hearing room during the course of the hearing only with the permission of the administrative law judge.

7.35. The Commission shall cause the hearing to be recorded by a reporter or by an electronic recording device. If an electronic recording device is used, the parties shall be given the opportunity to provide a reporter at their own expense, however, the reporter's transcript, if one is made, will not be considered the official record of the hearing. At the request of the parties, copies of the official hearing transcript will be furnished to the parties upon their payment, in advance, of the reasonable costs thereof to the Commission, provided that a copy of the transcript shall be forwarded to the Commission's attorney without charge.

7.36. At any time after a hearing has closed, but prior to rendering a decision, the administrative law judge upon her/his own motion or upon motion by any party, may reopen the hearing for good cause to receive further evidence or argument. Should the administrative law judge reopen the hearing, notice shall promptly be given to all the parties as to the time and place further proceedings will occur.

7.37. The administrative law judge may permit the parties or their attorneys to present oral arguments at the hearing and may require briefs to be filed within such time limit as the administrative law judge shall determine. Oral argument shall not be included in the transcript of testimony unless the administrative law judge so directs.

7.37.a. At the close of the hearing the administrative law judge may order or may permit the parties to submit a recommended decision to the administrative law judge within a time to be specified by the administrative law judge. A recommended decision shall include suggested findings of fact, conclusions of law and arguments in support thereof, along with the final decision by the administrative law judge which the party desires; and

7.37.b. During the time period specified by the administrative law judge for submission of the parties' recommended decision as set forth above, the parties shall be permitted to file by affidavit an itemized statement of reasonable attorney fees and costs, clearly setting forth the hourly rate and total amount, and any argument in support thereof. A party shall be given fifteen (15) days during which to file exceptions to the attorneys) fee affidavit filed by any other party or as recommended by the administrative law judge.

W. Va. Code R. § 77-2-7