[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
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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]
BILLING CODE 7400-01-P