Chong McClenning v. Department of the Army , 2022 MSPB 3 ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2022 MSPB 3Docket No. SF-0752-15-0702-I-6
Chong U. McClenning,
Appellant,
v.
Department of the Army,
Agency.
March 31, 2022
David Weiser, Esquire, Austin, Texas, for the appellant.
Ryan K. Bautz, Fort Shafter, Hawaii, for the agency.
Brandon Iriye, USAG Daegu, South Korea, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan A. Leavitt, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed her removal. For the following reasons, we DENY the petition for
review and AFFIRM the initial decision. We find that the appellant’s argument
regarding the appointment of the administrative judge, which she raised for the
first time on petition for review, is not timely raised.
BACKGROUND
¶2 The appellant was employed by the agency as an Information Assurance
Manager, GS-0301-12, in Daegu, South Korea. McClenning v. Department of the
2
Army, MSPB Docket No. SF-0752-15-0702-I-1, Initial Appeal File (IAF), Tab 6
at 76. In April 2015, the agency proposed the appellant’s removal for conduct
unbecoming a Federal employee (six specifications), unauthorized possession of
Government property (one specification), and lack of candor (six specifications).
Id. at 76-87. The appellant responded to the proposed removal both orally and in
writing. Id. at 21, 34-75. On May 19, 2015, the agency issued a decision
sustaining all of the charges and specifications against her and removing her
effective June 18, 2015. Id. at 21-32.
¶3 The appellant timely filed this appeal challenging her removal. IAF, Tab 1.
She requested a hearing. Id. at 2. The administrative judge dismissed the appeal
without prejudice five times between August 2015, and May 2017, pending the
resolution of criminal proceedings in South Korea. McClenning v. Department of
the Army, MSPB Docket No. SF-0752-15-0702-I-5, Appeal File, Tab 4, Initial
Decision (May 25, 2017). On June 13, 2018, after holding the appellant’s
requested hearing, the administrative judge issued an initial decision affirming
the appellant’s removal. McClenning v. Department of the Army, MSPB Docket
No. SF-0752-15-0702-I-6, Appeal File (I-6 AF), Tab 52, Initial Decision (I-6 ID).
The administrative judge found that the agency proved four of the six
specifications of conduct unbecoming a Federal employee and all six
specifications of lack of candor, but that it failed to prove either the remaining
two specifications of conduct unbecoming a Federal employee or the charge of
unauthorized possession of Government property. I-6 ID at 3-32. He further
found that the agency established a nexus between the sustained charges and the
efficiency of the service, id. at 32, and that the appellant failed to prove her
affirmative defenses of a due process violation, harmful procedural error,
whistleblower reprisal, or discrimination based on race, national origin, or sex,
id. at 33-42. Finally, the administrative judge found that the penalty of removal
was within the tolerable limits of reasonableness for the sustained misconduct.
Id. at 42-46.
3
¶4 The appellant has filed a timely petition for review of the initial decision on
July 15, 2018. Petition for Review (PFR) File, Tab 1. On petition for review, she
argues for the first time that the initial decision should be reversed because the
administrative judge was not properly appointed under the Appointments Clause
of the U.S. Constitution. 1 Id. at 3. In support of that argument, she cites the
decision of the U.S. Supreme Court in Lucia v. Securities & Exchange
Commission, 138 S. Ct. 2044 (2018), which was issued a few days after the initial
decision in this case. PFR File, Tab 1 at 3. As to the merits of the initial
decision, the appellant resubmits the closing brief she filed before the
administrative judge. Id. The agency has responded in opposition to the petition
for review. PFR File, Tab 3.
ANALYSIS
The appellant did not timely raise her argument regarding the appointment of the
administrative judge.
Recent Supreme Court precedent does not preclude the Board from
applying timeliness and issue exhaustion requirements to Appointments
Clause claims.
¶5 In Lucia, the Supreme Court held that administrative law judges (ALJs) of
the Securities & Exchange Commission (SEC) qualify as Officers of the United
States subject to the Appointments Clause, rather than as mere employees.
138 S. Ct. at 2049, 2052-55. Because SEC ALJs were appointed by SEC staff
members, rather than the Commission itself, the Court held that the appointment
of those ALJs violated the Appointments Clause. Id. at 2050-51. The Court
further held that because Lucia had made a timely challenge to the constitutional
1
Under the Appointments Clause, the President “shall nominate, and by and with the
Advice and Consent of the Senate, shall appoint . . . Officers of the United States . . .
but the Congress may by Law vest the Appointment of such inferior Officers, as they
think proper, in the President alone, in the Courts of Law, or in the Heads of
Departments.” U.S. Const. art. II, § 2, cl. 2.
4
validity of the appointment of the ALJ who adjudicated his case, he was entitled
to relief in the form of a new hearing before a different, properly appointed
official. Id. at 2055. 2
¶6 The Court in Lucia did not specifically define what constitutes a timely
challenge to an appointment, but it cited Ryder v. United States, 515 U.S. 177,
182-83 (1995), in this regard. Lucia, 138 S. Ct. at 2055. In Ryder, the Court held
that a challenge concerning the appointment of judges was timely because the
challenging party raised it “before those very judges and prior to their action on
his case.” Ryder, 515 U.S. at 182. In so finding, the Court distinguished the facts
of Ryder from those of three other cases in which the challenges to the judges’
authority were untimely because they were raised after the judges had decided
those cases and the complaining parties had not objected to the judges’ authority
during the proceedings before them. Id. at 180-82.
¶7 Since the Supreme Court issued its Lucia decision, a number of Federal
courts have considered what constitutes a timely Appointments Clause challenge
regarding an administrative adjudication. Several courts have held that parties
forfeit Appointments Clause claims that are not timely and properly raised before
the adjudicating administrative agency. For example, courts have rejected as
untimely claims that were not raised before the Department of Labor’s Benefits
Review Board, as well as claims that were raised before the Bene fits Review
Board but that had not been raised in accordance with that entity’s regulations.
Joseph Forrester Trucking v. Director, Office of Workers’ Compensation
Programs, 987 F.3d 581, 587-93 (6th Cir. 2021) (rejecting as untimely an
Appointments Clause claim that was raised before the Benefits Review Board , but
not in earlier proceedings before a Department of Labor ALJ, contrary to Benefits
2
The holding in Lucia applied only to SEC ALJs and therefore did not address whether
the Board’s method of appointing administrative judges violated the Appointments
Clause, and we do not reach that question here.
5
Review Board regulations); David Stanley Consultants v. Director, Office of
Workers’ Compensation Programs, 800 F. App’x 123, 127-28 (3d Cir. 2020)
(nonprecedential) (holding that the employer forfeited its Appointment s Clause
claim when it failed to raise the claim in its opening brief to the Benefits Review
Board, which is required by that entity’s regulations); Zumwalt v. National Steel
& Shipbuilding Company, 796 F. App’x 930, 931-32 (9th Cir. 2019)
(nonprecedential) (holding that the claimant forfeited his Appointments Clause
claim when he raised it for the first time in a second reconsideration motion to the
Benefits Review Board, contrary to the relevant regulations); Energy West Mining
Company v. Lyle, 929 F.3d 1202, 1206 (10th Cir. 2019) (rejecting as untimely an
Appointments Clause claim that was not raised before the Benefits Review
Board); Island Creek Coal Company v. Bryan, 937 F.3d 738, 750-54 (6th Cir.
2019) (rejecting for failure to exhaust Appointments Clause claims that were
raised for the first time in motions for reconsideration of decisions of the Benefits
Review Board, contrary to its regulations and interpretation thereof ).
Multiple courts also have rejected Appointments Clause claims that were not first
raised before the SEC. Gonnella v. Securities & Exchange Commission, 954 F.3d
536, 544-46 (2d Cir. 2020); Malouf v. Securities & Exchange Commission,
933 F.3d 1248, 1255-58 (10th Cir. 2019); Cooper v. Securities & Exchange
Commission, 788 F. App’x 474, 474-75 (9th Cir. 2019) (nonprecedential).
¶8 Many of the post-Lucia Appointments Clause cases have involved claims
before the Social Security Administration (SSA). In Carr v. Saul, 141 S. Ct.
1352 (2021), the Supreme Court resolved a split among the circuits and held that
claimants are not required to exhaust Appointments Clause claims before SSA to
preserve them for judicial review. Id. at 1362. Although Carr is controlling
precedent for claims arising out of Social Security disability adjudications, we
find for the reasons set forth below that it does not control in the context of Board
appeals.
6
¶9 The Court has recognized that the doctrine of administrative remedy
exhaustion requires parties to first raise an issue before the appropriate
administrative agency prior to seeking judicial review on that topic. Id. at 1358.
It noted that, usually, rules of issue exhaustion are governed by statute or
regulation. Id. (citing Sims v. Apfel, 530 U.S. 103, 107-08 (2000)).
Further, proper exhaustion of claims before an administrative agency “demands
compliance with [that] agency’s deadlines and other critical procedural rules
because no adjudicative system can function effectively without imposing some
orderly structure on the course of its proceedings.” Woodford v. Ngo, 548 U.S.
81, 90-91 (2006).
The Board’s regulations require that issues first be raised before the
administrative judge before they may be raised with the full Board on
petition for review.
¶10 The issue in Carr was whether the Federal courts should recognize an issue
exhaustion requirement in Social Security disability proceedings when none is
specifically imposed by statute or regulation. Id. at 1358. In the instant matter,
by contrast, the issue is whether an Appointments Clause claim should be subject
to the Board’s existing regulations and precedent requiring parties to timely raise
issues during Board adjudications. Proceedings before the Board are a key
element in the “comprehensive system” established by the Civil Service Reform
Act of 1978 (CSRA) “for reviewing personnel action[s] taken against [F]ederal
employees.” Elgin v. Department of the Treasury, 567 U.S. 1, 5 (2012) (quoting
United States v. Fausto, 484 U.S. 439, 455 (1988)). “The statutory provisions [in
the CSRA] for appeals to the [B]oard give the [B]oard broad discretion in
handling appeals and controlling its own docket by requiring that appeals be
processed in accordance with” its regulations. Phillips v. U.S. Postal Service,
695 F.2d 1389, 1390-91 (Fed. Cir. 1982).
¶11 Under the authority granted to it by Congress in the CSRA, see 5 U.S.C.
§ 1204(h), the Board has prescribed regulations governing the proceedings before
7
it. Pursuant to those regulations, the Board generally does not accept arguments
raised after the close of the record before the administrative judge. 5 C.F.R.
§ 1201.59(c). In addition, the Board generally will not consider an argument
raised for the first time in a petition for review absent a showing that it is based
on new and material evidence not previously available d espite the party’s due
diligence. Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016);
5 C.F.R. § 1201.115(d). Our reviewing court, the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit), has consistently upheld the Board’s regulatory
requirement that parties must raise arguments before the as signed administrative
judge, or the full Board may properly decline to review those arguments.
E.g., Carson v. Department of Energy, 398 F.3d 1369, 1376 (Fed. Cir. 2005)
(finding that the Board properly declined to review a claim that was not
adjudicated by the administrative judge); Bosley v. Merit Systems Protection
Board, 162 F.3d 665, 668 (Fed. Cir. 1998) (concluding that a party in a Board
proceeding was required to raise an issue before the administrative judge to
preserve it for court review and that the court would not consider an issue raised
for the first time in a petition for review to the full Board); Meglio v. Merit
Systems Protection Board, 758 F.2d 1576, 1577-78 (Fed. Cir. 1984) (affirming
the Board’s decision to deny a petition for review when the appellant failed to
raise the salient issue before the administrative judge). As the Federal Circuit
determined:
the [B]oard has promulgated its regulations in accordance with the
law and Congress’ desire to streamline and prevent duplicative
efforts in processing employee complaints. Where petitioner fails to
frame an issue before the presiding official and belatedly attempts to
raise that same issue before the full [B]oard, and the [B]oard
properly denies review of the initial decision, petitioner will not be
heard for the first time on that issue in the Federal Circuit. 3
3
Even when the Federal Circuit has exercised its discretion to allow a claim to be
raised for the first time on judicial review after the completion of an administrativ e
8
Meglio, 758 F.2d at 1577.
¶12 Here, the appellant does not allege that she discovered new and material
evidence that was previously unavailable. Rather, her argument appears to be
that she discovered a new legal argument when the Supreme Court decided Lucia.
In a few cases, the Board has cited intervening legal precedent as good cause for
an untimely filed petition for review. 4 For example, in Duft v. Office of
Personnel Management, 33 M.S.P.R. 533 (1987), the Board found good cause for
an untimely petition for review in light of new decisions from the Supreme Court
and the Federal Circuit holding that successful appellants in retirement appeals
could obtain attorney fees. In denying the appellant’s request for fees, the
administrative judge had relied upon the prior binding Federal Circuit precedent
holding that fees were not available in retirement cases. The Board determined
that the appellant reasonably understood that it would be fruitless and costly for
him to appeal that ruling at that time. Id. at 535. Thus, because the appellant had
filed his petition for review shortly after learning of the change in the controlling
precedent, the Board found good cause for the filing delay. Id.
¶13 In this matter, by contrast, there was no binding precedent regarding the
appointment of Board administrative judges at the time the record before the
adjudication, it has nevertheless required that those claims be timely raised in
accordance with its procedural rules. Compare Arthrex, Inc. v. Smith & Nephew, Inc.,
941 F.3d 1320, 1326-27 (Fed. Cir. 2019) (considering an Appointments Clause claim
regarding Administrative Patent Judges of the Patent and Trademark Appeals Board
(PTAB) even though that claim was not raised before PTAB itself because PTAB had
not and could not correct the problematic appointments itself ), vacated and remanded
on other grounds sub nom. United States v. Arthrex, Inc., 141 S. Ct. 1970 (2021),
with Immunex Corporation v. Sanofi-Aventis U.S. LLC, 977 F.3d 1212, 1223 n.10
(Fed. Cir. 2020) (rejecting as untimely an Appointments Clause claim regarding PTAB
that was raised for the first time in a reply brief filed with the Federal Circuit, rather
than in the opening brief), cert denied, 141 S. Ct. 2799 (2021).
4
Although the good cause standard itself does not apply to arguments presented for the
first time on petition for review, we find that the relevant standards are sufficiently
similar that the Board’s precedent regarding good cause is useful to our analysis here.
9
administrative judge closed in April 2018. I-6 AF, Tab 34 at 12. Therefore, the
appellant did not have grounds to believe that raising an Appointments Clause
claim would have been fruitless. See Island Creek Coal Company v. Wilkerson,
910 F.3d 254, 257 (6th Cir. 2018) (rejecting the argument that Appointments
Clause challenges lacked merit until the Supreme Court decided Lucia). By the
time the record closed before the administrative judge in this appeal , one court of
appeals had already held that SEC ALJs are inferior officers subject to the
Appointments Clause, Bandimere v. Securities & Exchange Commission,
844 F.3d 1168 (10th Cir. 2016), reh’g and reh’g en banc denied, 855 F.3d 1128(10th Cir. 2017), cert. denied, 138 S. Ct. 2706 (2018), and the Supreme Court had
granted certiorari to address that issue in Lucia v. Securities & Exchange
Commission, 138 S. Ct. 736 (U.S. Jan. 12, 2018) (No. 17-130). Thus, we hold
that the appellant’s purported discovery of a new legal theory is insufficient to
justify her failure to raise the Appointments Clause argument bef ore the
administrative judge. See In re DBC, 545 F. 3d 1373, 1377-79 (Fed. Cir. 2008)
(rejecting a newly discovered Appointments Clause argument raised for the first
time on judicial review because the party failed to raise it first before the
administrative board).
¶14 In addition to the general standards for raising new arguments after the
close of the record, the Board’s regulations impose particular requirements on
litigants who wish to challenge the qualifications of the individual assigned to
hear their cases. Specifically, a party seeking to disqualify a judge must file a
motion to disqualify as soon as the party has reason to believe there is a basis for
disqualification and, if the administrative judge denies that motion, the party must
request certification of an interlocutory appeal or the disqualification issue is
considered waived. 5 C.F.R. § 1201.42(b)-(c); see Thomas v. Office of Personnel
Management, 350 F. App’x 448, 451 (Fed. Cir. 2009) (finding that the appellant
10
had waived her request for recusal of the administrative judge by failing to
comply with the provisions of 5 C.F.R. § 1201.42). 5 In the absence of this
requirement, a party before a Board administrative judge who believed there was
a basis for disqualification could wait until after the initial decision was issued
and then seek disqualification on petition for review if the initial decision was
unfavorable. Allowing such gamesmanship by parties would waste the Board’s
resources to the extent that disqualification of an administrative judge after the
initial decision would result in relitigation of the appeal. The same policy
considerations that support the Board’s regulation regarding the procedures for
raising disqualification claims also support our decision here regarding the
appellant’s Appointments Clause claim. As recognized in Freytag v.
Commissioner of Internal Revenue, 501 U.S. 868, 895 (1991) (Scalia, J.,
concurring in part and concurring in the judgment), the trial phase of a case is
when the litigants’ arguments first must be raised and considered; permitting an
Appointments Clause claim to be raised for the fir st time on appeal would
encourage “sandbagging,” i.e., for strategic reasons, allowing the trial court to
pursue a certain course only to argue on appeal that it constituted reversible error
if the outcome of the case was unfavorable.
¶15 We acknowledge that courts have on occasion considered Appointments
Clause claims even if those claims were not timely raised under normal standards.
See, e.g., Freytag, 501 U.S. at 878-89 (considering an Appointments Clause
challenge regarding Special Trial Judges of the Tax Court even though the litigant
failed to raise that challenge before the Tax Court itself). However, the courts
have never held that an Appointments Clause challenge must be heard in any case
regardless of when it is raised; to the contrary, the courts h ave used language
5
The Board may follow a nonprecedential decision of the Federal Circuit when, as here,
it finds its reasoning persuasive. Morris v. Department of the Navy, 123 M.S.P.R. 662,
¶ 13 n.9 (2016).
11
suggesting that consideration of an untimely Appointments Clause claim should
be done only in “rare cases.” See id. at 879; In re DBC, 545 F.3d at 1380(concluding that the Supreme Court never stated that Appointments Clause
challenges must be heard regardless of waiver). Under the circumstances
presented in this matter, we are not convinced that this qualifies as one of those
“rare cases.”
¶16 The Board’s regulations reserve to it the authority to consider any issue in
an appeal before it. 5 C.F.R. § 1201.115(e). Pursuant to that authority, we may
exercise our discretion to consider an untimely Appointments Clause claim in an
appropriate case. However, we find no basis to exercise that discret ion on the
facts of this case.
The issue exhaustion requirements set forth in the Board’s regulations are
justified based on the adversarial nature of its proceedings.
¶17 In declining to require Social Security claimants to exhaust Appointments
Clause claims before the agency, the Court in Carr noted several characteristics
about Social Security disability adjudications that make an issue -exhaustion rule
inappropriate in that context. First, the Court noted that whereas typical
administrative review schemes have issue-exhaustion requirements imposed by
statute or regulation, SSA was asking the Court to impose a judicially-created
requirement. Carr, 141 S. Ct. at 1358. The Court held that whether a court
should impose a requirement of issue exhaustion “depends on the degree to which
the analogy to normal adversarial litigation applies in a particular administrative
proceeding.” Id. (quoting Sims, 530 U.S. at 109).
¶18 The Court in Carr relied on the nonadversarial nature of Social Security
disability adjudications in determining that an issue exhaustion requireme nt was
inappropriate in that context. It explained that the justification for requiring issue
exhaustion is greatest when it is expected that the parties will develop the issues
in an adversarial administrative proceeding, but that the rationale for requiring
issue exhaustion is much weaker when the administrative proceeding is not
12
adversarial in nature. Carr, 141 S. Ct. at 1359 (citing Sims, 530 U.S. at 110).
The Court noted that in proceedings before SSA, the ALJ is responsible for
developing the factual record and arguments both for and against granting
benefits, and the Commissioner has no representative before the ALJ opposing
the benefits claim. Carr, 141 S. Ct. at 1359 (citing Sims, 530 U.S. at 111).
¶19 The Board’s regulations establish a procedure that is much more
adversarial. The parties are responsible for developing the factual record and
presenting their evidence and arguments to the administrative judge. Unlike SSA
disability proceedings, both parties may be represented before the Board.
5 C.F.R. § 1201.31. Further, the parties each must meet their respective burdens
of proof in establishing their claims and defenses. 5 C.F.R. §§ 1201.56-.57.
An appellant initiates a Board proceeding by filing an initial appeal that must
include a statement of the reasons why the appellant believes the agency action at
issue is wrong. 5 C.F.R. § 1201.24(a)(4). The agency’s response to the appeal
must include a statement of the reasons for the action and all documents
contained in the agency’s record of the action. 5 C.F.R. § 1201.25(b).
The parties are expected to start and complete discovery with minimal
intervention from the Board. 5 C.F.R. §§ 1201.71-.75. The appellant may
generally raise additional claims or defenses before the end of the conference(s)
held to define the issues in the case; after that point, the appellant may raise
additional claims or defenses only upon a showing of good cause. 5 C.F.R.
§ 1201.24(b). The appellant generally has a right to a hearing at which both
parties present their cases. 5 C.F.R. §§ 1201.24(d), 1201.51, 1201.58. Once the
record in an appeal closes, either after the hearing or , if the appellant waived the
hearing, on the deadline set by the administrative judge for written submissions,
the Board will not accept additional evidence or argument unless there is a
showing that it was not readily available before the record closed or that it is in
rebuttal to new evidence or argument submitted by the other party just before the
close of the record. 5 C.F.R. § 1201.59(a)-(c). A petition for review of an initial
13
decision must state the party’s objections to the initial decision supported by
references to applicable laws and regulations and specific references to the
factual record. A party submitting new evidence or argument on petition for
review must explain why such evidence or argument was not presented before the
close of the record below. 5 C.F.R. § 1201.114(b).
¶20 The Board’s regulations make clear that, unlike Social Security disability
proceedings, Board appeals are adversarial in nature. In such circumstances, “the
rationale for requiring issue exhaustion is at its greatest.” Carr, 141 S. Ct.
at 1359 (quoting Sims, 530 U.S. at 110).
The circumstances of the instant case are otherwise distinguishable from
those set forth in Carr.
¶21 The Court in Carr noted two additional factors in support of allowing
Social Security claimants to raise Appointments Clause claims for the first time
in Federal court. First, the Court noted that “agency adjudications are generally
ill suited to address structural constitutional challenges, which usually fall outside
the adjudicators’ area of technical expertise.” Carr, 141 S. Ct. at 1360.
Second, the Court recognized a futility exception to exhaustion requirements
when agency adjudicators would be powerless to grant the relief requested.
Id. at 1361. The Court specifically highlighted the fact that SSA’s administrative
review scheme did not afford claimants access to the Commissioner, “the one
person who could remedy their Appointments Clause challenges.” Id. We find
that neither of these factors apply to Board proceedings.
¶22 First, consideration of constitutional claims, such as the Appointments
Clause claim at issue here, is consistent with the Board’s role in adjudicating
appeals. The comprehensive system under the CSRA applies to constitutional
claims, whether facial or as-applied. Elgin, 567 U.S. at 12-23. Thus, parties are
required to bring even their facial constitutional challenges to the Board, despite
the fact that the Board “has repeatedly refused to pass u pon the constitutionality
of legislation.” See id. at 16 (citing Malone v. Department of Justice,
14
14 M.S.P.R. 403 (1983)). A party’s failure to raise a constitutional claim before
the Board generally precludes the party from raising that claim for the first time
when seeking judicial review of the Board’s decision. See Hansen v. Department
of Homeland Security, 911 F.3d 1362, 1369 (Fed. Cir. 2018) (declining to address
a Fourth Amendment claim not raised before the Board). The requirement that a
party exhaust his administrative remedies by first raising a constitutional claim
during an administrative agency’s proceeding before raising it i n court has two
main purposes: (1) to provide the administrative agency with the opportunity to
correct its own errors regarding the programs it administers before being brought
into Federal court, and thereby “discourage[] disregard of the agency’s
procedures”; and (2) to promote judicial efficiency because claims typically are
resolved faster and more economically during administrative agency proceedings
than they are in Federal court litigation. Woodford, 548 U.S. at 89-90. Thus, the
“unnecessary expenditure of the administrative resources of the original Board
panel, the judicial resources of th[e] court, and the substantial delay and costs
incurred” in the litigation may be avoided. In re DBC, 545 F. 3d at 1378-79. 6
As explained previously, for similar reasons, the Board’s regula tions provide that
all issues must first be raised before the administrative judge before the full
Board will consider them. 5 C.F.R. §§ 1201.59(c), 1201.115(d); see Freytag,
501 U.S. at 895 (Scalia, J., concurring in part and concurring in the judgement).
¶23 Additionally, it would not have been futile for the appellant to timely raise
an Appointments Clause claim before the administrative judge. Had the appellant
raised the Appointments Clause issue to the administrative judge before the close
of the record, the administrative judge could have certified the question for
6
Our reviewing court has recognized the value in having the Board address a
constitutional claim before the court considers it. See, e.g., Helman v. Department of
Veterans Affairs, 856 F.3d 920, 936 n.8 (Fed. Cir. 2017) (finding that whether the
Board’s administrative judges are inferior officers for purposes of the Appointments
Clause is “more appropriately dealt with by the [Board] in the first instance”).
15
interlocutory appeal to the Board. See 5 C.F.R. §§ 1201.42(b)-(c), 1201.91.
The interlocutory appeal process permits the Board members, who are appointed
by the President and confirmed by the Senate, 5 U.S.C. § 1201, to address an
issue while an appeal is still pending before an administrative judge. 5 C.F.R.
§ 1201.91. Thus, the interlocutory appeal process permits a party raising an
Appointments Clause claim to present that claim to the Board’s principal officers.
¶24 Indeed, by the time the record closed before the administrative judge in this
appeal, another litigant before the Board had raised an Appointments Clause
claim before the administrative judge in his appeal. Flynn v. Securities
& Exchange Commission, MSPB Docket No. DC-1221-14-1124-M-1, Motion to
Vacate (Feb. 14, 2018). After initially dismissing the appeal without prejudice,
the administrative judge issued an order in April 2019, certifying the
Appointments Clause issue for interlocutory appeal. Flynn v. Securities
& Exchange Commission, MSPB Docket No. DC-1221-14-1124-M-4, Order and
Certification for Interlocutory Appeal (Apr. 23, 2019). 7 Thus, there is reason to
believe that, if the appellant here had timely raised her Appointments Clause
claim before the close of the record before the administrative judge, the
administrative judge issue would have certified the issue for interlocutory a ppeal
7
Another appellant before the Board raised an Appointments Clause claim in
two separate initial appeals filed shortly after the initial decision was issued in this
appeal. Jolley v. Department of Housing & Urban Development, MSPB
Docket No. AT-4324-18-0576-I-1, Initial Appeal (June 25, 2018), MSPB Docket No.
AT-4324-19-0041-I-1, Initial Appeal (Oct. 15, 2018). The administrative judge also
certified the Appointments Clause issue for interlocutory appeal in both of those
matters. Jolley v. Department of Housing & Urban Development, MSPB Docket Nos.
AT-4324-18-0576-I-2 & AT-4324-19-0041-I-1, Order and Certification for
Interlocutory Appeal (Apr. 23, 2019). Parties that have timely raised the Appointments
Clause issue in other appeals have generally had their appeals dismissed without
prejudice to refiling once the Board decides the interlocutory appeals or oth erwise
addresses the Appointments Clause issue. See, e.g., Alvarez v. Department of Health
& Human Services, MSPB Docket No. DC-0432-19-0122-I-4, Initial Decision
(June 23, 2021).
16
and the Board would have had an opportunity to address the administrative
judge’s appointment before he issued an initial decision on the merits of the
appeal.
¶25 For the foregoing reasons, the instant appeal is dissimilar to Carr.
Because the appellant failed to comply with the Board’s regulations by first
raising the Appointments Clause issue before the administrative judge, we will
not address the merits of the appellant’s Appointments Clause claim raised for the
first time on petition for review.
The appellant has not provided any basis to disturb the initial decision.
¶26 As to the merits of the initial decision, the appellant resubmits the closing
argument she submitted to the administrative judge. PFR File, Tab 1 at 3, 8 -58.
However, the administrative judge considered the appellant’s closing argument
and addressed it throughout his initial decision. A petition for review that merely
repeats arguments made below does not meet the criteria for Board review,
and we find no basis to disturb the explained findings of the administrative judge.
See Tigner-Keir v. Department of Energy, 20 M.S.P.R. 552, 553 (1984);
5 C.F.R. § 1201.115. We therefore deny the petition for review.
ORDER
¶27 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
NOTICE OF APPEAL RIGHTS 8
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
8
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
17
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
18
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If s o, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
19
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and you wish to challenge the Board’s rulings on your whistleblower claims
only, excluding all other issues, then you may file a petition for judicial review
either with the U.S. Court of Appeals for the Federal Circuit or any court of
20
appeals of competent jurisdiction. 9 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
9
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
21
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.