5 C.F.R. § 1201.58
Order of hearing
(a) In cases in which the agency has taken an action against an employee, the agency will present its case first.
(b) The appellant will proceed first at hearings convened on the issues of:
(1) Jurisdiction;
(2) Timeliness; or
(3) Office of Personnel Management disallowance of retirement benefits, when the appellant applied for those benefits.
(c) The judge may vary the normal order of presenting evidence.
Notes of Decisions
Cited in 27
cases, 1995–2020 · leading case: Bledsoe v. Merit Sys. Prot. Bd., 659 F.3d 1097 (Fed. Cir. 2011).
Bledsoe v. Merit Sys. Prot. Bd., 659 F.3d 1097 (Fed. Cir. 2011). “5 C.F.R. § 1201.58 (c) states, in relevant part, that "[o]nce the record closes, no additional evidence or argument will be accepted unless the party submitting it shows that the evidence was not readily available before the record closed.”
Schucker v. Fed. Deposit Ins., 401 F.3d 1347 (Fed. Cir. 2005). “Pursuant to 5 C.F.R. § 1201.58 (b), “the record will close on the date the judge sets as the final date for the receipt or filing of submissions of the Parties,” unless, as provided in 5 C.”
Snyder v. Dep't of the Navy, 854 F.3d 1366 (Fed. Cir. 2017). “She argues that the AJ found against her only because the Navy was permitted to introduce additional evidence on this score after the record was closed, in violation of Board regulation 5 C.F.R. § 1201.58 (c) (2015). 5 As an initial matter, we see no error in the AJ’s finding…”
James H. Dorrall v. Dep't of the Army, 301 F.3d 1375 (Fed. Cir. 2002). “See 5 C.F.R. § 1201.58 (b) (2002) (“If the appellant waives the right to a hearing, the record will close on the date the judge sets as the final date for the receipt or filing of submissions of the parties.”
Douglas M. Wright v. United States Postal Serv., 183 F.3d 1328 (Fed. Cir. 1999). “See 5 C.F.R. § 1201.58 (1999). Even if Wright introduced this evidence after the close of the record, however, “[t]he Board could have granted [his] petition for review based on [the new evidence], if [it was] ‘[n]ew and material evidence’ ‘that, despite due diligence, was not…”
Carson v. Dep't of Energy, 64 F. App'x 234 (Fed. Cir. 2003). “See 5 C.F.R. § 1201.58 (c) (2002) (“Once the record closes [in an appeal to the Board], no additional evidence or argument will be accepted unless the party submitting it shows that the evidence was not readily available before the record closed.”
Lloyd H. Holmes v. Dep't of Vets. Affairs, 58 F.3d 628 (Fed. Cir. 1995). “566 , 568-69 (1992) (an agency may not submit new evidence in its response to a compliance recommendation, absent an explanation as to why the evidence was not submitted to the administrative judge); see also 5 C.F.R. § 1201.58 (c) (1994) ("Once the record closes, no additional…”
Preacely v. Dep't of the Treasury, 588 F. App'x 996 (Fed. Cir. 2015). “She also contends that the Board erred in not accepting the additional evidence under 5 C.F.R. § 1201.58 (c)(2). *998 The government responds that the Board followed proper procedures, considered her testimony and the evidence of record, applied the correct law, and found that…”
King v. Dep't of the Navy, 64 F. App'x 204 (Fed. Cir. 2003). “Thus, she has failed to show that the AJ abused his discretion, see 5 C.F.R. § 1201.58 , in denying the motion to reopen the record.”
John E. Burke v. Dep't of Vets. Affairs, 2014 MSPB 48 (MSPB 2014). “See 5 C.F.R. § 1201.58 (b) (in a Board appeal in which no hearing is held, the record closes on the date the judge sets as the final date for the filing of submissions of the parties).”
John E. Burke v. Dep't of Vets. Affairs, 2014 MSPB 48 (MSPB 2014). “See 5 C.F.R. § 1201.58 (b) (in a Board appeal in which no hearing is held, the record closes on the date the judge sets as the final date for the filing of submissions of the parties).”
Kapen v. Off. of Pers. Mgmt., 74 F. App'x 50 (Fed. Cir. 2003). “While the government correctly notes that Kapen could have earlier submitted this evidence to the Board under 5 C.F.R. § 1201.58 (c), the government has not identified any provision that required her to do so.”
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