The judge may impose sanctions upon the parties as necessary to serve the ends of justice. This authority covers, but is not limited to, the circumstances set forth in paragraphs (a), (b), (c), (d), and (e) of this section. Before imposing a sanction, the judge shall provide appropriate prior warning, allow a response to the actual or proposed sanction when feasible, and document the reasons for any resulting sanction in the record.
(a) Failure to comply with an order. When a party fails to comply with an order, the judge may:
(1) Draw an inference in favor of the requesting party with regard to the information sought;
(2) Prohibit the party failing to comply with the order from introducing evidence concerning the information sought, or from otherwise relying upon testimony related to that information;
(3) Permit the requesting party to introduce secondary evidence concerning the information sought; and
(4) Eliminate from consideration any appropriate part of the pleadings or other submissions of the party that fails to comply with the order.
(b) Failure to prosecute or defend appeal. If a party fails to prosecute or defend an appeal, the judge may dismiss the appeal with prejudice or rule in favor of the appellant.
(c) Failure to make timely filing. The judge may refuse to consider any motion or other pleading that is not filed in a timely fashion in compliance with this subpart.
(d) Exclusion of a representative or other person. A judge may exclude or limit the participation of a representative or other person in the case for contumacious conduct or conduct prejudicial to the administration of justice. When the judge excludes a party's representative, the judge will afford the party a reasonable time to obtain another representative before proceeding with the case.
(e) Cancellation, suspension, or termination of hearing. A judge may cancel a scheduled hearing, or suspend or terminate a hearing in progress, for contumacious conduct or conduct prejudicial to the administration of justice on the part of the appellant or the appellant's representative. If the judge suspends a hearing, the parties must be given notice as to when the hearing will resume. If the judge cancels or terminates a hearing, the judge must set a reasonable time during which the record will be kept open for receipt of written submissions.
[54 FR 53504, Dec. 29, 1989, as amended at 77 FR 62366, Oct. 12, 2012]
Notes of Decisions
Turner v. Merit Sys. Prot. Bd., 681 F. App'x 934 (Fed. Cir. 2017).
“” 5 C.F.R. § 1201.43 (b), “Where an appellant’s repeated failure to respond to multiple Board orders reflects a failure to exercise basic due diligence, the imposition of the sanction of dismissal for failure to prosecute has been found appropriate.”
Kim L. Hamilton v. Merit Sys. Prot. Bd., 75 F.3d 639 (Fed. Cir. 1996).
· cites it 2× “Upon receipt, the AJ issued a lengthy form letter designated an “Acknowledgement Order” containing directives to both parties on procedures to be followed, as discussed more fully hereinafter, and advising that failure to follow the AJ’s orders could result in the imposition of…”
Jones v. Dep't of Health & Human Servs., 703 F. App'x 977 (Fed. Cir. 2017).
· cites it 3× “Under 5 C.F.R. § 1201.43 (a), the Board may impose sanctions on a party who fails to comply with the Board’s orders.”
Raymond C. Ahlberg v. Dep't of Health & Human Servs., 804 F.2d 1238 (Fed. Cir. 1986).
“5 C.F.R. § 1201.43 (b) (1985) provides: If a party fails to prosecute or defend an appeal, the presiding official may dismiss the action with prejudice or rule for the appellant.”
Ann Crispin v. Dep't of Com., 732 F.2d 919 (Fed. Cir. 1984).
“5 C.F.R. § 1201.43 . 3 These sanctions include, inter alia, drawing an inference in favor of one party or prohibiting a party from introducing evidence at a hearing.”
Muller v. Gov't Printing Off., 809 F.3d 1375 (Fed. Cir. 2016).
“5 C.F.R. § 1201.43 (b) (granting the MSPB authority to dismiss an appeal for failure to prosecute).”
Anthony R. Harp v. Dep't of the Army, 791 F.2d 161 (Fed. Cir. 1986).
“The sanction which resulted — exclusion of evidence — is expressly permitted in these circumstances under 5 C.F.R. § 1201.43 (a) (1986). 2 The presiding official was, therefore, acting within his authority when he ordered that Mr.”
Jackie Leseman v. Dep't of the Army, 2015 MSPB 5 (MSPB 2015).
· cites it 2× “In her order, the administrative judge cautioned that, if an appellant failed to appear for the aforementioned conferences or otherwise follow her orders, she might issue sanctions pursuant to 5 C.F.R. § 1201.43 , which could include dismissing the appeal for failure to…”
Theodore Callahan v. Dep't of the Navy, 748 F.2d 1556 (Fed. Cir. 1984).
“The hearing is the employee’s only opportunity to probe anew the factual portion of his case before an impartial tribunal, and thus will not be cavalierly or lightly disregarded.”
— 5 C.F.R. § 1201.43(b) — 1 case
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.