(a) Exercise of authority. Judges may exercise authority as provided in paragraphs (b) and (c) of this section on their own motion or on the motion of a party, as appropriate.
(b) Authority. Judges will conduct fair and impartial hearings and will take all necessary action to avoid delay in all proceedings. They will have all powers necessary to that end unless those powers are otherwise limited by law. Judges' powers include, but are not limited to, the authority to:
(1) Administer oaths and affirmations;
(2) Issue subpoenas under § 1201.81 of this part ;
(3) Rule on offers of proof and receive relevant evidence;
(4) Rule on discovery motions under § 1201.73 of this part ;
(5) After notice to the parties, order a hearing on his or her own initiative if the judge determines that a hearing is necessary:
(i) To resolve an important issue of credibility;
(ii) To ensure that the record on significant issues is fully developed; or
(iii) To otherwise ensure a fair and just adjudication of the case;
(6) Convene a hearing as appropriate, regulate the course of the hearing, maintain decorum, and exclude any disruptive persons from the hearing;
(7) Exclude any person from all or any part of the proceeding before him or her as provided under § 1201.31(d) of this part ;
(8) Rule on all motions, witness and exhibit lists, and proposed findings;
(9) Require the parties to file memoranda of law and to present oral argument with respect to any question of law;
(10) Order the production of evidence and the appearance of witnesses whose testimony would be relevant, material, and nonrepetitious;
(11) Impose sanctions as provided under § 1201.43 of this part ;
(12) Hold prehearing conferences for the settlement and simplification of issues;
(13) Require that all persons who can be identified from the record as being clearly and directly affected by a pending retirement-related case be notified of the appeal and of their right to request intervention so that their interests can be considered in the adjudication;
(14) Issue any order that may be necessary to protect a witness or other individual from harassment and provide for enforcement of such order in accordance with subpart F;
(15) Issue initial decisions; and
(16) Determine, in decisions in which the appellant is the prevailing party, whether the granting of interim relief is appropriate.
(c) Settlement—(1) Settlement discussion. The judge may initiate attempts to settle the appeal informally at any time. The parties may agree to waive the prohibitions against ex parte communications during settlement discussions, and they may agree to any limits on the waiver.
(2) Agreement. If the parties agree to settle their dispute, the settlement agreement is the final and binding resolution of the appeal, and the judge will dismiss the appeal with prejudice.
(i) If the parties offer the agreement for inclusion in the record, and if the judge approves the agreement, it will be made a part of the record, and the Board will retain jurisdiction to ensure compliance with the agreement.
(ii) If the agreement is not entered into the record, the Board will not retain jurisdiction to ensure compliance.
[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 62689, Nov. 25, 1997; 63 FR 35500, June 30, 1998]
Title 5 published on 2012-01-01
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