(a) When there is a hearing, the record ordinarily will close at the conclusion of the hearing. When the judge allows the parties to submit argument, briefs, or documents previously identified for introduction into evidence, however, the record will remain open for as much time as the judge grants for that purpose.
(b) 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.
(c) Once the record closes, additional evidence or argument will ordinarily not be accepted unless:
(1) The party submitting it shows that the evidence or argument was not readily available before the record closed; or
(2) It is in rebuttal to new evidence or argument submitted by the other party just before the record closed.
(d) The judge will include in the record any supplemental citations received from the parties or approved corrections of the transcript, if one has been prepared.
[54 FR 53504, Dec. 29, 1989, as amended at 77 FR 62366, Oct. 12, 2012. Redesignated at 80 FR 4496, Jan. 28, 2015]
Notes of Decisions
Chong McClenning v. Dep't of the Army, 2022 MSPB 3 (MSPB 2022).
· cites it 3× “5 C.F.R. § 1201.59 (c). In addition, the Board generally will not consider an argument raised for the first time in a petition for review absent a showing that it is based on new and material evidence not previously available d espite the party’s due diligence.”
Steven Crowe v. Christine Wormuth, 74 F.4th 1011 (9th Cir. 2023).
· cites it 3× “See 5 C.F.R. § 1201.59 (c). 7 Under those regulations, the MSPB “generally does not accept arguments raised after the close of the record before the administrative judge.”
Bradley Sikes v. Dep't of the Navy, 2022 MSPB 12 (MSPB 2022).
“63 , 66-67 (1990) (closing of the record must comport with the basic requirements of fairness and notice, including an opportunity to respond to submissions of the parties); see also 5 C.F.R. § 1201.59 (c)(2). ORDER ¶12 Under these circumstances, we vacate the initial decision…”
Vera Davis-Clewis v. Dep't of Vets. Affairs, 2024 MSPB 5 (MSPB 2024).
“Department of the Army, 2022 MSPB 3, ¶¶ 11-15 ; 5 C.F.R. §§ 1201.59 (c), 1201.115(d). These regulations do not entitle appellants to Board findings on the constitutionality of Federal statutes.”
Robin Sabio v. Dep't of Vets. Affairs, 2017 MSPB 4 (MSPB 2017).
“” 5 C.F.R. § 1201.59 (c)(2). Generally, unless the administrative judge provides otherwise, “any objection to a written motion must be filed within 10 days from the date of service of the motion.”
Robin Sabio v. Dep't of Vets. Affairs, 2017 MSPB 4 (MSPB 2017).
“” 5 C.F.R. § 1201.59 (c)(2). Generally, unless the administrative judge provides otherwise, “any objection to a written motion must be filed within 10 days from the date of service of the motion.”
Mitch Wine v. Dep't of the Interior (MSPB 2023).
· cites it 2× “, ¶ 11; 5 C.F.R. § 1201.59 (c). The regulations allow new arguments to be raised only if they were not readily available before the record closed or are in rebuttal to new argument raised by the other party just before the record closed.”
Carrie Christman v. Dep't of the Army (MSPB 2022).
· cites it 2× “¶6 We similarly find unpersuasive the appellant’s argument that the administrative judge should have considered her untimely response pursuant to 5 C.F.R. § 1201.59 . PFR File, Tab 1 at 5.”
Melenie Lanier v. Dep't of Vets. Affairs (MSPB 2022).
· cites it 2× “5 C.F.R. § 1201.59 (c). Here, on the date the record closed, the appellant submitted a reply to the agency’s first response that significantly exceeded the scope of her petition for enforcement, raising new arguments and furnishing 7 exhibits that were not included in her…”
Shalonda Holloman v. Dep't of Def. (MSPB 2023).
· cites it 2× “See 5 C.F.R. § 1201.59 (c). Here, the administrative judge informed the agency of its burden of establishing that the removal promoted the efficiency of the service and that whether the absence had “no foreseeable end” in sight was integral to its burden.”
Jose Mathews v. Dep't of Vets. Affairs (MSPB 2024).
· cites it 2× “PFR File, Tab 4 at 24-25 (referencing 5 C.F.R. § 1201.59 (c) (providing that once the record closes, additional evidence and argument will not be accepted unless, as relevant here, it is in rebuttal to new argument or evidence submitted by the other party just before the close…”
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