shall be governed by applicable law and regulations.

(2) Other witnesses. Witnesses who are not covered by subsection (b)(1) of this section are entitled to the same witness fees as those paid subpenaed witnesses under 28 U.S.C. 1821.

(3) Payment of witness fees. Witness fees shall be paid by the party requesting the presence of the witness and shall be tendered to the witness at the time the subpena is served, or, when the witness appears voluntarily, at the time of appearance.

PRESIDING OFFICIALS

§ 1201.41 Presiding officials.

(a) Exercise of authority. Presiding officials may exercise authority as provided in paragraph (b) of this section upon their own motion or upon the motion of a party, as appropriate.

(b) Authority. Presiding officials shall conduct fair and impartial hearings and take all necessary action to avoid delay in the disposition of all proceedings. They shall have all powers necessary to that end unless otherwise limited by law, including but not limited to, the authority to:

(1) Administer oaths and affirmations;

(2) Issue subpenas in accordance with 1201.81;

(3) Rule upon offers of proof and receive relevant evidence;

(4) Rule upon the institution of discovery procedures as appropriate under 1201.73;

(5) Convene a hearing as appropriate, regulate the course of the hearing, maintain decorum and exclude I from the hearing any disruptive persons;

(6) Exclude from the hearing any witness whose later testimony might be colored by testimony of other witnesses or any persons whose presence might have a chilling effect on testifying witness;

(7) Rule on all motions, witness and exhibit lists and proposed findings;

(8) Require the filing of memoranda of law and the presentation of oral argument with respect to any question of law;

(9) Order the production of evidence and the appearance of witnesses

whose testimony would be relevant, material and nonrepetitious;

(10) Impose sanctions as provided under § 1201.43 of this part;

(11) Hold prehearing conferences for the settlement and simplification of issues; and

(12) File initial decisions.

§ 1201.42 Disqualification of presiding official.

(a) In the event that a presiding official considers himself/herself disqualified, he/she shall withdraw from the case, stating on the record the reasons therefor, and shall immediately notify the Board of the withdrawal.

(b) Any party may file a motion requesting the presiding official to withdraw on the basis of personal bias or other disqualification and specifically setting forth the reasons for the request. This motion shall be filed as soon as the party has reason to believe there is a basis for disqualification.

(c) The presiding official may rule on the motion. If the motion is denied the party requesting withdrawal may request certification of the issue to the Board as an interlocutory appeal under § 1201.91. Failure of the party to request certification shall be considered a waiver of the request for withdrawal.

§ 1201.43 Sanctions.

The presiding official may impose sanctions upon the parties as necessary to serve the ends of justice, including but not limited to the instances set forth in paragraphs (a), (b), and (c) of this section.

(a) Failure to comply with an order. When a party fails to comply with an order, including an order for taking a deposition, the production of evidence within the party's control; a request for admission, and/or production of witnesses, the presiding official may:

(1) Draw an inference in favor of the requesting party with regard to the information sought;

(2) Prohibit the party failing to comply with such order from introducing evidence concerning, or otherwise relying upon testimony relating to the information sought;

(3) Permit the requesting party to introduce secondary evidence concerning the information sought; and

(4) Strike any part of the pleadings or other submissions of the party failing to comply with such request.

(b) Failure to prosecute or defend. If a party fails to prosecute or defend an appeal, the presiding official may dismiss the action with prejudice or rule for the appellant.

(c) Failure to make timely filing. The presiding official may refuse to consider any motion or other action which is not filed in a timely fashion in compliance with this subpart.

HEARINGS

§ 1201.51 Scheduling the hearing.

The notice of initial hearing shall fix the date, time and place of hearing. The hearing shall be scheduled not earlier than 15 days after the date of the notice unless the parties agree to an earlier date. The agency, upon request of the presiding official, shall provide appropriate hearing space. Motions for postponement by either party shall be made in writing and accompanied by an affidavit setting forth the reasons for the request and shall be granted only upon a showing of good cause.

§ 1201.52 Public hearings.

Hearings shall be open to the public. However, the presiding official may order a hearing or any part thereof closed, where to do so would be in the best interests of the appellant, a witness, the public or other affected persons. Any order closing the hearing shall set forth the reasons for the presiding official's decision. Any objections thereto shall be made a part of the record.

§ 1201.53 Transcript.

(a) Preparation. A verbatim record made under the supervision of the presiding official shall be kept of every hearing and shall be the sole official record of the proceeding. Upon request, a copy of a transcript of the hearing shall be made available to the parties upon payment of costs. Exceptions to the payment requirement may be granted in extenuating circum

stances for good cause shown. Motions for an exception shall be made in writing and accompanied by an affidavit setting forth the reasons for the request and shall be granted upon a showing of good cause. Requests for copies of transcripts shall be directed to the official hearing reporter, or the presiding official as appropriate. The presiding official may, by agreement with the person making the request, make arrangements with the official hearing reporter for required services to be charged to the requester.

(b) Corrections. Corrections to the official transcript will be permitted upon motion. Motions for correction must be submitted within 10 days of the receipt of the transcript. Corrections of the official transcript will be permitted only when errors of substance are involved and only upon approval of the presiding official.

[44 FR 38349, June 29, 1979, as amended at 46 FR 62046, Dec. 22, 1981]

(a) Form. Motions shall be in writing except that oral motions may be made during the course of a hearing. All motions shall state the reasons in support thereof. Written motions shall be submitted to the presiding official or the Board, as appropriate, and served upon all other parties.

(b) Objection. If a motion is made, in writing or orally, all other parties shall have an opportunity to object to it.

(c) Motions for extension of time. Motions for extension of time will be granted only for good cause shown.

[44 FR 38349, June 29, 1979, as amended at 47 FR 54419, Dec. 3, 1982]

§ 1201.56 Burden and degree of proof, affirmative defenses.

(a) Burden and degree of proof. (1) Agency: Under 5 U.S.C. 7701(c)(1) the agency action must be sustained by the Board if:

(i) It is brought under 5 U.S.C. 4303 and is supported by substantial evidence; or

(ii) It is brought under any other provision of law or regulation and is supported by a preponderance of the evidence.

(2) Appellant: The appellant shall have the burden of proof as to issues of jurisdiction and timeliness of filing.

(b) Affirmative defenses of the appellant. Under 5 U.S.C. 7701(c)(2), the Board is required to overturn the action of the agency even where the agency has met the evidentiary standard set forth in subsection (a), above, in any case where the appellant:

(1) Shows harmful error in the application of the agency's procedures in arriving at such decision;

(2) Demonstrates that the decision was based on any prohibited personnel practice described in 5 U.S.C. 2302(b);

or

(3) Shows that the decision was not in accordance with law.

(c) Definitions. For purposes of this section, the following definitions shall apply:

(1) Substantial evidence: That degree of relevant evidence which a reasonable mind, considering the record as a whole, might accept as adequate to support a conclusion that the matter asserted is true.

(2) Preponderance of the evidence: That degree of relevant evidence which a reasonable mind, considering the record as a whole, might accept as sufficient to support a conclusion that the matter asserted is more likely to be true than not true.

(3) Harmful error: Error by the agency in the application of its procedures which, in the absence or cure of the error, might have caused the agency to reach a conclusion different than the one reached. The burden is upon the appellant to show that based upon the record as a whole the error was harmful, i.e., caused substantial harm or prejudice to his/her rights.

(d) Moving forward. In cases where action has been taken against an employee by the agency, the agency shall present its case first. The appellant may then present evidence.

§ 1201.57 Closing the record.

(a) When there is a hearing, the record shall be closed at the conclusion of the hearing. However, when the presiding official allows the parties to submit argument, briefs or documents previously identified for introduction into evidence, the record shall be left open for such time as the presiding official grants for that purpose.

(b) If the appellant waives a hearing, the record shall be closed on the date set by the presiding official as the final date for the receipt of submissions of the parties to the matter.

(c) Once the record is closed, no additional evidence or argument shall be accepted into the record except upon a showing that new and material evidence has become available which was not readily available prior to the closing of the record. However, the presiding official shall make part of the record any motions for attorney fees, any supporting documentation, and determinations thereon, and any approved correction to the transcript.

EVIDENCE

§ 1201.61 Service of documents.

with

Any document submitted regard to any pleading shall be served upon all parties to the proceeding. [47 FR 54420, Dec. 3, 1982]

§ 1201.62 Admissibility.

(a) Evidence or testimony may be excluded from consideration by the presiding official if it is irrelevant, immaterial or unduly repetitious.

(b) All evidence and testimony offered in the hearing, but excluded by the presiding official, shall be described and that description made a part of the record.

§ 1201.63 Production of evidence by order of presiding official.

At any stage of a proceeding, the presiding official may request further evidence converning an issue and order its submission.

statement made by that individual which is relevant to the evidence given. If the party refuses to furnish the statement, the relevant evidence given, may be excluded from consideration.

§ 1201.65 Admission of facts and genuineness of documents.

(a) The presiding official may order any party to respond to requests for the admission of the genuineness of any relevant documents identified within the request or the truth of any relevant matters of fact or application of law to the facts as set forth in the request.

(b) Within the time period prescribed by the presiding official, the party on whom the request is served must submit to the presiding official:

(1) A sworn statement specifically denying, admitting or expressing a lack of knowledge regarding the specific matters on which an admission is requested; and/or

(2) An objection to the request in whole or in a part on the ground that the matters contained therein are privileged, irrelevant or otherwise improper.

§ 1201.66 Stipulations.

The parties may stipulate as to any matter of fact. Such a stipulation will satisfy a party's burden of proving the fact alleged.

§ 1201.67 Official notice.

The presiding official on his/her own motion or on motion of a party, may take official notice of matters of common knowledge or matters that can be verified. Official notice taken of any fact satisfies a party's burden of proving the fact noticed.

DISCOVERY

§ 1201.71 Statement of purpose.

Proceedings before the Board shall be conducted as expeditiously as possible with due regard to the rights of the parties. Discovery is designed to enable a party to obtain relevant information needed for preparation of the party's case. These regulations are intended to provide a simple method of discovery. They will be interpreted

(a) Explanation: Discovery is the process apart from the hearing whereby a party may obtain relevant information from another person, including a party, which has not otherwise been provided. Relevant information includes information which appears reasonably calculated to lead to the discovery of admissible evidence. This information is obtained for the purpose of assisting the parties in preparing and presenting their cases. The Federal Rules of Civil Procedure may be used as a general guide for discovery practices in proceedings before the Board. However, the federal rules shall be deemed to be instructive rather than controlling.

(b) Scope: Any person may be examined regarding any nonprivileged matter which is relevant to the issues involved in the appeal, including the existence, description, nature, custody, condition, and location of documents or other tangible things, and the identity and location of persons having knowledge of relevant facts. Discovery requests to nonparties and nonparty federal agencies and employees are limited to information which appears directly material to the issues involved in the appeal.

(c) Methods: Discovery may be obtained by one or more of the methods provided under the Federal Rules of Civil Procedure, including: written interrogatories, depositions, production of documents or things for inspection or copying, and requests for admission addressed to parties. Failure to deny a request for admission shall not be deemed to constitute a binding admission.

[48 FR 5214, Feb. 4, 1983]

§ 1201.73 Procedures governing discovery. (a) Discovery from a party. A party seeking discovery from another party shall initiate the process by serving a

request for discovery on the other party. The request for discovery shall

(1) state the time limit for responding, as prescribed in § 1201.73(d), and

(2) in the case of a request for deposition of a party or an employee of a federal agency party, (i) shall specify the time and place of the taking of the deposition, and (ii) shall also be served on the person to be deposed.

When a request for discovery is directed to an officer or employee of a federal agency party, the agency shall make the officer or employee available on official time for the purpose of responding to the request, and shall assist the officer or employee as necessary in providing relevant information that is available to the agency. For purposes of discovery under these regulations, a party includes an intervenor. (See 5 CFR 1201.4(f))

(b) Discovery from a nonparty including nonparty federal agencies. Parties are encouraged to attempt to obtain voluntary discovery from nonparties whenever possible. A party seeking discovery from a nonparty federal agency or employee shall initiate the process by serving a request for discovery on the nonparty federal agency or employee. Discovery from other nonparties may be initiated by serving a request for discovery on the nonparty directly. Absent such a request or upon failure to obtain voluntary cooperation, discovery from a nonparty may be obtained by a written motion directed to the presiding official, showing the relevance, scope and materiality of the particular information sought and, in addition in the case of a deposition, the date, time, and place of the proposed deposition. A ruling on the motion will be issued by an authorized official of the Board and will be served on the moving party together with a subpena, if approved, directed to the individual or entity from which discovery is sought, specifying the manner and time limit for compliance. It shall be the responsibility of the moving party to serve or arrange for service of a Board-approved discovery request and subpena on the individual or entity.

(c) Responses to discovery requests. (1) A party, or a federal agency which

is not a party, shall answer a discovery request within the time provided by § 1201.73(d)(2), either by furnishing to the requesting party the information or testimony requested or agreeing to make deponents available to testify within a reasonable time, or by stating an objection to the particular request, and the reasons for objection.

(2) Upon the failure or refusal of a party to respond in full to a discovery request, or a nonparty to respond in full to Board-approved discovery, the requesting party may file with the presiding official a motion to compel. A copy of the motion shall be served on the other party and on any nonparty entity or person from whom the discovery was sought. The motion shall be accompanied by:

(i) A copy of the original request and a statement showing the relevancy and materiality of the information sought.

(ii) A copy of the objections to discovery or, where appropriate, a verified statement that no response has been received.

(3) The other party and any other entity or person from whom discovery was sought may respond to the motion to compel within the time limits set forth in (d)(4) below.

(d) Time limits.

(1) Initial requests or motions for discovery shall be initiated within 25 days after the date of issuance of the Board's order to the respondent to produce the agency file and response.

(2) A party or nonparty shall respond to a discovery request promptly, but not later than 15 days after receipt of the request or order of the Board. Any discovery requests following the initial request shall be served within 10 days of receipt of the prior response, unless otherwise directed.

Deposition witnesses shall give their testimony at the time and place stated in the request for deposition or in the subpena, unless otherwise agreed by the parties.

(3) A motion to depose nonparties (along with a request for a subpena) shall be submitted to the presiding official within the time limits set forth in paragraph (d)(1) above or as otherwise directed.