[Federal Register Volume 62, Number 227 (Tuesday, November 25, 1997)]
[Rules and Regulations]
[Page 62689]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-30831]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 62, No. 227 / Tuesday, November 25, 1997 / 
Rules and Regulations

[[Page 62689]]


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MERIT SYSTEMS PROTECTION BOARD

5 CFR Part 1201


Practices and Procedures

AGENCY: Merit Systems Protection Board.

ACTION: Interim rule; request for comments.

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SUMMARY: The Merit Systems Protection Board is amending its rules of 
practice and procedure to provide notice that a judge may exclude a 
party or representative from all or any portion of a Board proceeding 
before him or her because of misconduct. The intent of this amendment 
is to inform parties and their representatives that MSPB judges have 
this authority and will exercise it when necessary to ensure that 
adjudication of cases proceeds expeditiously and without undue 
disruption.

DATES: Effective date November 25, 1997. Submit written comments on or 
before January 26, 1998.

ADDRESSES: Send comments to Robert E. Taylor, Clerk of the Board, Merit 
Systems Protection Board, 1120 Vermont Avenue, NW, Washington, DC 
20419. Comments may be sent via e-mail to <a href="/cdn-cgi/l/email-protection#3b56484b597b56484b59155c544d"><span class="__cf_email__" data-cfemail="99f4eae9fbd9f4eae9fbb7fef6ef">[email protected]</span></a>.

FOR FURTHER INFORMATION CONTACT: Robert E. Taylor, Clerk of the Board, 
(202) 653-7200.

SUPPLEMENTARY INFORMATION: The Board's current rule at 5 CFR 1201.41(b) 
provides notice that a judge ``will take all necessary action to avoid 
delay in all proceedings'' and ``will have all powers necessary to that 
end unless those powers are otherwise limited by law.'' It further 
provides explicit notice of a judge's authority to ``maintain decorum, 
and exclude any disruptive persons from the hearing,'' 
[Sec. 1201.41(b)(6)], ``[e]xclude any person from the hearing for good 
reason'' [Sec. 1201.41(b)(7)], and ``[i]mpose sanctions as provided 
under Sec. 1201.43 of this part'' [Sec. 1201.41(b)(11)]. Section 
1201.43 permits a judge to ``impose sanctions upon the parties as 
necessary to serve the ends of justice.''
    These provisions in the Board's current rules are sufficient to 
permit a judge to exclude a party or representative from a proceeding 
when the person engages in misconduct. The Board is amending its 
regulations to provide explicit notice that a judge may exercise such 
authority at a hearing or at any other point in a proceeding, such as a 
settlement conference or prehearing conference.
    The Board is amending its rule at 5 CFR 1201.31 
(``Representatives'') by adding a new paragraph (d) to make clear that 
misconduct by representatives, as well as parties or other persons, may 
result in exclusion by a judge from the Board proceeding before him or 
her. The new paragraph (d) also requires that the reasons for an 
exclusion be documented in the record and that, where a representative 
is excluded, the party be given a reasonable time to obtain new 
representation. The new provision also states that the Board, when 
considering a petition for review, is not bound by a judge's decision 
to exclude a person from the proceeding below.
    The Board also is amending its rule at 5 CFR 1201.41 (``Judges'') 
by revising subparagraph (b)(7) to provide for exclusion from ``all or 
any part of the Board proceeding before him or her'' rather than from 
``the hearing.''
    The Board is publishing this rule as an interim rule pursuant to 5 
U.S.C. 1204(h).

List of Subjects in 5 CFR Part 1201

    Administrative practice and procedure, Civil rights, Government 
employees.

    Accordingly, the Board amends 5 CFR part 1201 as follows:

PART 1201--[AMENDED]

    1. The authority citation for part 1201 continues to read as 
follows:

    Authority: 5 U.S.C. 1204 and 7701, and 38 U.S.C. 4331, unless 
otherwise noted.

    2. Section 1201.31 is amended by adding a new paragraph (d) at the 
end, as follows:


Sec. 1201.31  Representatives.

* * * * *
    (d)(1) A judge may exclude a party, a representative, or other 
person from all or any portion of the proceeding before him or her for 
contumacious misconduct or misbehavior that obstructs the hearing.
    (2) When a judge excludes a person from participation in a 
proceeding, the judge shall document the reasons for the exclusion in 
the record.
    (3) A proceeding will not be delayed because the judge excludes a 
person from the proceeding, except that where the judge excludes a 
party's representative, the judge will give the party a reasonable time 
to obtain another representative.
    (4) The Board, when considering a petition for review of a judge's 
initial decision under subpart C of this part, will not be bound by any 
decision of the judge to exclude a person from the proceeding below.
    3. Section 1201.41 is amended by revising paragraph (b)(7) to read 
as follows:


Sec. 1201.41  Judges.

* * * * *
    (b) * * *
    (7) Exclude any person from all or any part of the proceeding 
before him or her for good reason;
* * * * *
    Dated: November 19, 1997.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 97-30831 Filed 11-24-97; 8:45 am]
BILLING CODE 7400-01-P


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