[Federal Register Volume 63, Number 125 (Tuesday, June 30, 1998)]
[Rules and Regulations]
[Pages 35499-35500]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-16930]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 63, No. 125 / Tuesday, June 30, 1998 / Rules
and Regulations
[[Page 35499]]
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MERIT SYSTEMS PROTECTION BOARD
5 CFR Part 1201
Practices and Procedures
AGENCY: Merit Systems Protection Board.
ACTION: Final rule.
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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, a representative, or other person from all or any portion of a
Board proceeding before him or her because of misconduct. The amendment
further provides procedures for a person facing exclusion to show cause
why he or she should not be excluded, for an interlocutory appeal to
the Board of a judge's order excluding a person, and for a motion to
stay the proceeding pending the Board's decision on an interlocutory
appeal of an exclusion order. The intent of the amendment is to inform
parties and their representatives that MSPB judges have the authority
to exclude a person from a proceeding and will exercise it when
necessary to ensure that adjudication of cases proceeds expeditiously
and without undue disruption.
EFFECTIVE DATE: June 30, 1998.
FOR FURTHER INFORMATION CONTACT: Robert E. Taylor, Clerk of the Board,
(202) 653-7200.
SUPPLEMENTARY INFORMATION: The Board previously published an interim
rule to provide notice that a judge may exclude a party, a
representative, or other person from all or any portion of a Board
proceeding before him or her because of misconduct (62 FR 62689,
November 25, 1997). The interim rule requested public comments and
allowed 60 days, until January 26, 1998, for receipt of such comments.
Comments were received from two practitioners before the Board.
Both commenters recommended that the interim rule be amended to
provide: (1) an opportunity for the person facing exclusion to show
cause why he or she should not be excluded from the proceeding; and (2)
automatic Board review of a judge's exclusion order upon the filing of
a motion for certification of the order as an interlocutory appeal. In
the interest of due process, the Board has adopted both of these
recommendations in the final rule. Subsection 1201.31(d)(2) in the
interim rule has been replaced by subsections 1201.31(d)(2) and (d)(3)
in the final rule. The former prescribes procedures for issuance of a
show cause order and for a response to such an order, while the latter
provides procedures for the certification of an interlocutory appeal.
One commenter recommended that the interim rule be amended to
provide for a stay of the proceeding by a single Board member where a
judge's exclusion order has been certified as an interlocutory appeal
to the Board. The Board has not adopted this specific recommendation
but, instead, has added new language at subsection 1201.31(d)(4)(ii)
providing that where an exclusion order has been certified to the Board
as an interlocutory appeal, the judge or the Board may stay the
proceeding. The provision also permits a party to move for a stay of
the proceeding. This approach preserves the Board's discretion to
control the conduct of the proceeding and to determine whether, under
the particular circumstances of the case, a stay would serve the
interests of the parties. There has been no change in the interim
rule's requirement that where the judge excludes a party's
representative, the party be given a reasonable time to obtain another
representative; see subsection 1201.31(d)(4)(i).
In the final rule, the Board also has amended section 1201.41(b)(7)
to clarify that the authority of a judge to exclude a person from a
proceeding is to be exercised as provided under section 1201.31(d).
Three other recommendations made in the public comments have not
been adopted in the final rule. One commenter recommended that the
Board require that all prehearing and settlement conferences be
recorded and that the interim rule be amended to provide a procedure
for purging a person's exclusion from a proceeding from the record. The
burden of implementing the former recommendation in over 8,000
prehearing conferences each year would far exceed the anticipated
benefit, given that misconduct at that stage occurs infrequently. In
addition, recording conferences could have the effect of inhibiting
free discussion of settlement terms during the course of a settlement
conference. The Board concludes that the decision to record a
conference is best left to the judge's discretion. As to purging the
record, the Board has determined that a special procedure is
unnecessary; a motion could be filed in an appropriate case. The other
commenter recommended that a procedure be established outside the
context of adjudication of a specific case for filing a complaint
against an administrative judge. This recommendation is outside the
scope of the present rule. The Board, however, has referred the
recommendation to its Director, Office of Regional Operations, for
review and a determination as to whether a demonstrated need for such a
complaint procedure has been established.
The Board has determined that one further change should be made in
the interim rule in the interest of clarity. In subsection
1201.31(d)(1), the phrase, ``misbehavior that obstructs the hearing,''
has been replaced by ``conduct that is prejudicial to the
administration of justice.'' The new language incorporates the standard
established by the American Bar Association (ABA) Model Rules of
Professional Conduct (Rule 8.4(d)), which has been adopted by over
forty state bars and construed by the courts. See Howell v. State Bar,
843 F.2d 205, 208 (5th Cir.), cert. denied, 488 U.S. 982 (1988)
(holding that the phrase ``prejudicial to the administration of
justice'' is neither overbroad nor vague on its face as case law, court
rules, and the ``lore of the profession'' provide sufficient guidance).
Finally, subsection 1201.31(d)(4) in the interim rule has been
renumbered 1201.31(d)(5).
The Board is publishing this rule as a final rule pursuant to 5
U.S.C. 1204(h).
[[Page 35500]]
List of Subjects in 5 CFR Part 1201
Administrative practice and procedure, Civil rights, Government
employees.
Accordingly, the Board adopts as final its interim rule published
at 62 FR 62689, November 25, 1997, with the following changes:
1. Section 1201.31(d), as added by the interim rule, is revised to
read 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 conduct that is prejudicial to the
administration of justice.
(2) When a judge determines that a person should be excluded from
participation in a proceeding, the judge shall inform the person of
this determination through issuance of an order to show cause why he or
she should not be excluded. The show cause order shall be delivered to
the person by the most expeditious means of delivery available,
including issuance of an oral order on the record where the
determination to exclude the person is made during a hearing. The
person must respond to the judge's show cause order within three days
(excluding Saturdays, Sundays, and Federal holidays) of receipt of the
order, unless the judge provides a different time limit, or forfeit the
right to seek certification of a subsequent exclusion order as an
interlocutory appeal to the Board under paragraph (d)(3) of this
section.
(3) When, after consideration of the person's response to the show
cause order, or in the absence of a response to the show cause order,
the judge determines that the person should be excluded from
participation in the proceeding, the judge shall issue an order that
documents the reasons for the exclusion. The person may obtain review
of the judge's ruling by filing, within three days (excluding
Saturdays, Sundays, and Federal holidays) of receipt of the ruling, a
motion that the ruling be certified to the Board as an interlocutory
appeal. The judge shall certify an interlocutory appeal to the Board
within one day (excluding Saturdays, Sundays, and Federal holidays) of
receipt of such a motion. Only the provisions of this paragraph apply
to interlocutory appeals of rulings excluding a person from a
proceeding; the provisions of Secs. 1201.91 through 1201.93 of this
part shall not apply.
(4) A proceeding will not be delayed because the judge excludes a
person from the proceeding, except that:
(i) Where the judge excludes a party's representative, the judge
will give the party a reasonable time to obtain another representative;
and
(ii) Where the judge certifies an interlocutory appeal of an
exclusion ruling to the Board, the judge or the Board may stay the
proceeding sua sponte or on the motion of a party for a stay of the
proceeding.
(5) 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.
2. Section 1201.41(b)(7), is revised 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 as provided under Sec. 1201.31(d) of this part;
* * * * *
Dated: June 22, 1998.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 98-16930 Filed 6-29-98; 8:45 am]
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