(a) The three Board members make decisions in all cases by majority vote except in circumstances described in paragraph (b) of this section or as otherwise provided by law.
(b) When there are at least two Board members and, due to a vacancy, recusal or other reasons, the Board members are unable to decide any case by majority vote, the decision, recommendation, or other order under review may be deemed the final decision or order of the Board. The Chairman of the Board may direct the issuance of an order consistent with this paragraph (b).
(c) When due to vacancies, recusals, or other reasons, only one Board member is able to act, the Board member may direct the following types of matters to an administrative judge or other official:
(1) A party's request to withdraw his/her appeal or petition for review for final disposition;
(2) A newly raised claim that was not previously adjudicated in the appeal currently under review for docketing and adjudication;
(3) A settlement for possible final disposition, including a determination of whether the parties actually reached a settlement, understood its terms, and agreed whether it is to be enforceable by the Board; or
(4) A matter for further development of the record.
(d) When due to vacancies, recusals, or other reasons no Board member is able to act, the Clerk of the Board may direct the following types of matters to an administrative judge or other official:
(1) A party's request to withdraw his/her appeal or petition for review for final disposition;
(2) A newly raised claim that was not previously adjudicated in the appeal currently under review for docketing and adjudication;
(3) A settlement for possible final disposition, including a determination of whether the parties actually reached a settlement, understood its terms, and agreed whether it is to be enforceable by the Board; or
(4) A matter for further development of the record.
(e) Decisions and orders issued pursuant to paragraph (b) of this section shall not be precedential.
[89 FR 72960, Sept. 9, 2024]
Notes of Decisions
John F. Roberto v. Dep't of the Navy, 440 F.3d 1341 (Fed. Cir. 2006).
· cites it 2× “Pursuant to 5 C.F.R. § 1200.3 (b), the initial decision became the final decision of the Board when the two sitting Members of the Board were unable to agree on a ruling in response to Mr.”
Calhoun v. Dep't of the Army, 845 F.3d 1176 (Fed. Cir. 2017).
· cites it 3× “Calhoun states that her Board panel was improperly constituted because it was composed of only two members, and that this contravened 5 C.F.R. § 1200.3 (d) and 5 U.S.C. § 1201 .”
Flynn v. United States Sec. & Exch. Comm'n, 877 F.3d 200 (4th Cir. 2017).
“See 5 C.F.R. § 1200.3 (b) (1994). Thus, Flynn’s, appeal from the Board’s decision is, in effect, an appeal from the Administrative Judge’s decision.”
Joan M. Kievenaar v. Off. of Pers. Mgmt., 421 F.3d 1359 (Fed. Cir. 2005).
“Member Marshall reasoned that, because Kievenaar’s husband did not select an AFA initially, and was healthy at the time of his retirement, this subsection would not be applicable. With a lack of consensus between the two reviewing Board members, the initial decision of the AJ…”
Jerry C. Sturdy v. Dep't of the Army, 440 F.3d 1328 (Fed. Cir. 2006).
· cites it 2× “Pursuant to 5 C.F.R. § 1200.3 (b) (2005), 1 the initial decision became the final decision of the Board when the two sitting Members of the Board were unable to agree on a ruling in response to Mr.”
Jolley v. Merit Sys. Prot. Bd., 636 F. App'x 567 (Fed. Cir. 2016).
“Jolley acknowledges that 5 C.F.R. § 1200.3 authorizes the Board to decide cases with only two members, and he does not dispute that the regulation covers the present situation.”
Romeo M. Rasing v. Dep't of the Navy, 444 F.3d 1349 (Fed. Cir. 2006).
“Pursuant to 5 C.F.R. § 1200.3 (b) (2006), 1 the Initial Decision became the final decision of the Board when the two sitting Members of the Board were unable to agree on a ruling in response to Mr.”
Griesbach v. Dep't of Vets. Affairs, 705 F. App'x 962 (Fed. Cir. 2017).
“By order dated January 5, 2017, the AJ’s Initial Decision became the final decision of the Board pursuant to 5 C.F.R. § 1200.3 (b). Ms. Griesbach appeals.”
Juanita L. Hutchison v. Merit Sys. Prot. Bd., 91 F.3d 1458 (Fed. Cir. 1996).
“The two Board members who reviewed her petition, however, could not agree on its disposition and consequently, pursuant to 5 C.F.R. § 1200.3 (b) (1995), ordered that the initial decision become the final decision of the Board.”
Sullivan v. Dep't of Just., 282 F. App'x 828 (Fed. Cir. 2008).
“In these circumstances 5 C.F.R. § 1200.3 (b) provides that a split decision is deemed an affirmance.”
— 5 C.F.R. § 1200.3(b) — 3 cases
— 5 C.F.R. § 1200.3(e) — 3 cases
Calhoun v. Dep't of the Army, 845 F.3d 1176 (Fed. Cir. 2017).
“Calhoun states that her Board panel was improperly constituted because it was composed of only two members, and that this contravened 5 C.F.R. § 1200.3 (d) and 5 U.S.C. § 1201 .”
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