(a) Exercise of authority. Judges may exercise authority as provided in paragraphs (b) and (c) of this section on their own motion or on the motion of a party, as appropriate.
(b) Authority. Judges will conduct fair and impartial hearings and will issue timely and clear decisions based on statutes and legal precedents. They will have all powers necessary to that end unless those powers are otherwise limited by law. Judges' powers include, but are not limited to, the authority to:
(1) Administer oaths and affirmations;
(2) Issue subpoenas under § 1201.81 of this part;
(3) Rule on offers of proof and receive relevant evidence;
(4) Rule on discovery motions under § 1201.73 of this part;
(5) Grant an appellant's request for a hearing;
case;
(6) Convene a hearing by appropriate method, regulate the course of the hearing, maintain decorum, and exclude any disruptive persons from the hearing;
(7) Exclude any person from all or any part of the proceeding before him or her as provided under § 1201.31(d) of this part;
(8) Rule on all motions, witness and exhibit lists, and proposed findings;
(9) Require the parties to file memoranda of law and to present oral argument with respect to any question of law;
(10) Order the production of evidence and the appearance of witnesses whose testimony would be relevant, material, and nonrepetitious;
(11) Impose sanctions as provided under § 1201.43 of this part;
(12) Hold prehearing conferences for the settlement and simplification of issues;
(13) Require that all persons who can be identified from the record as being clearly and directly affected by a pending retirement-related case be notified of the appeal and of their right to request intervention so that their interests can be considered in the adjudication;
(14) Issue any order that may be necessary to protect a witness or other individual from harassment and provide for enforcement of such order in accordance with subpart F;
(15) Issue initial decisions; and
(16) Determine, in decisions in which the appellant is the prevailing party, whether the granting of interim relief is appropriate.
(c) Settlement—(1) Settlement discussion. The judge may initiate attempts to settle the appeal informally at any time. The parties may agree to waive the prohibitions against ex parte communications during settlement discussions, and they may agree to any limits on the waiver.
(2) Agreement. If the parties agree to settle their dispute, the settlement agreement is the final and binding resolution of the appeal, and the judge will dismiss the appeal with prejudice.
(i) If the parties offer the agreement for inclusion in the record, and if the judge approves the agreement, it will be made a part of the record, and the Board will retain jurisdiction to ensure compliance with the agreement.
(ii) If the agreement is not entered into the record, the Board will not retain jurisdiction to ensure compliance.
(iii) The judge may rescind a settlement agreement and reinstate the underlying matter on appeal in accordance with § 1201.183(a)(8)(ii).
[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 62689, Nov. 25, 1997; 63 FR 35500, June 30, 1998; 77 FR 62366, Oct. 12, 2012; 89 FR 72961, Sept. 9, 2024]
Notes of Decisions
Kelly Lee v. Dep't of Vets. Affairs, 2022 MSPB 11 (MSPB 2022).
“110 , 113 (1989); 5 C.F.R. §§ 1201.41 (b)(6), (8). Given the substantial discretion administrative judges have to control the proceedings before them, the Board will not reverse an administrative judge’s decision not to hold a hearing on a motion requesting sanctions absent an…”
Gary Thurman v. United States Postal Serv., 2022 MSPB 21 (MSPB 2022).
“See 5 C.F.R. §§ 1201.41 (b), 1201.115. The Board has consistently followed an approach of declining to address matters that were not raised on petition for review on matters other than affirmative defenses.”
Garilynn Smith v. Dep't of the Army, 2022 MSPB 4 (MSPB 2022).
“44 , ¶ 13 (2003); 5 C.F.R. § 1201.41 (b). The hearing transcript shows that the appellant did not testify as an expert witness in mortuary affairs.”
Baird v. Dep't of Army, 517 F.3d 1345 (Fed. Cir. 2008).
· cites it 2× “Under 5 C.F.R. § 1201.41 (b)(4), the administrative judge has broad discretion in ruling on discovery matters.”
Carl L. Baker v. Dep't of Health & Human Servs., 912 F.2d 1448 (Fed. Cir. 1990).
· cites it 3× “The ALT granted the Department’s motion to strike those witnesses pursuant to 5 C.F.R. §§ 1201.41 (11) and 1201.43. The AU permitted Baker to call Wicklein as a witness, but Wicklein refused to appear without a subpoena.”
Janice Perry v. Dep't of the Army, 992 F.2d 1575 (Fed. Cir. 1993).
· cites it 2× “5 C.F.R. § 1201.41 (c)(2) (1992). If the MSPB approves the settlement agreement and makes it part of the record, the MSPB “retain[s] jurisdiction to ensure compliance with the agreement.”
William F. Curtin v. Off. of Pers. Mgmt., 846 F.2d 1373 (Fed. Cir. 1988).
“1986); 5 C.F.R. § 1201.41 (a) and (b) (1988). This court will not overturn the board on such matters unless an abuse of discretion is clear and is harmful.”
Thomas Dieter v. Dep't of Vets. Affairs, 2022 MSPB 32 (MSPB 2022).
“¶23 An administrative judge has wide discretion to control the proceedings before him, including the authority to exclude evidence that he believes would be irrelevant, immaterial, or unduly repetitious.”
Darlene BUTLER, Appellant, v. Togo D. WEST, Jr., Sec'y, Dep't of the Army, Appellee, 164 F.3d 634 (D.C. Cir. 1999).
“See 5 C.F.R. §§ 1201.41 (b), 1201.111. The AJ’s initial decision becomes a final decision if neither par *639 ty, nor the MSPB on its own motion, seeks further review within thirty-five days.”
Ronald L. Frampton v. Dep't of the Interior, 811 F.2d 1486 (Fed. Cir. 1987).
· cites it 3× “§ 7701 and the pertinent regulation, 5 C.F.R. § 1201.41 (b) (1985). 1 Therefore, we vacate the MSPB decision and remand the case with instructions that petitioner be granted an additional hearing *1488 and allowed to complete the presentation of his relevant evidence.”
Guy Spezzaferro v. Fed. Aviation Admin., 807 F.2d 169 (Fed. Cir. 1986).
“5 C.F.R. § 1201.41 (1982). Absent a showing of abuse of such discretion, the board will not substitute its judgment for that of the presiding official with respect to discovery.”
— 5 C.F.R. § 1201.41(b) — 3 cases
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