Opinion

Chong McClenning v. Department of the Army

2022 MSPB 3

Court: Merit Systems Protection Board
Filed: Mar 31, 2022
Status: Published
Cited by: 27 cases
Authority: More cited than 90.6%

finding that discovery of a new legal argument regarding the Appointments Clause does not excuse the failure to raise that claim before the close of the record

How later courts described this case

finding that discovery of a new legal argument regarding the Appointments Clause does not excuse the failure to raise that claim before the close of the record
holding that, in order to be timely, an Appointments Clause claim must be raised before the close of the record before the administrative judge
declining to consider a new Appointments Clause claim that was raised for the first time on review

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2022 MSPB 3

Docket No. SF-0752-15-0702-I-6

Chong U. McClenning,

Appellant,

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

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.

¶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

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.

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

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.

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.

¶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

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

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

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).

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.

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

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

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).

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

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

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 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

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”).

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

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).

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

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.

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

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.

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

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