2022 MSPB 3
MSPB2022Background:
- Appellant Chong U. McClenning, an Information Assurance Manager (GS-0301-12) in Daegu, South Korea, was removed by the Army in May 2015 for multiple specifications of conduct unbecoming, lack of candor, and unauthorized possession of government property.
- McClenning appealed to the MSPB; proceedings were delayed several times pending Korean criminal proceedings and a hearing was held; the administrative judge issued an initial decision in June 2018 sustaining four conduct-unbecoming specifications and all six lack-of-candor specifications, found nexus and upheld removal as a reasonable penalty.
- McClenning filed a timely petition for review (July 15, 2018) and for the first time argued the administrative judge was not properly appointed under the Appointments Clause, citing Lucia (decided days after the initial decision).
- The agency opposed review; the Board analyzed timeliness/exhaustion rules, Board regulations requiring issues be raised before the administrative judge, and whether Supreme Court precedent (notably Lucia and Carr) changed those rules.
- The Board concluded McClenning’s Appointments Clause challenge was untimely because she failed to raise it before the administrative judge and declined to exercise discretion to consider it; it also declined to disturb the AJ’s merits findings, denying the petition for review.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness/exhaustion of Appointments Clause claim | McClenning argued Lucia entitled her to relief and that the AJ’s appointment was constitutionally defective; raised on petition for review after Lucia | Agency argued Appointments Clause challenges must be raised before the administrative judge under MSPB regs; raised first on PFR is untimely | Board held claim untimely/forfeited: Appointments Clause challenges must be raised before the AJ or via interlocutory certification; no basis to consider it first on review |
| Whether Lucia or subsequent precedent excuses exhaustion | McClenning relied on Lucia as newly discovered law justifying late challenge | Agency and Board: Lucia did not eliminate Board’s procedural rules; one could and should have raised the issue earlier; other circuits had recognized Appointments Clause arguments pre-Lucia | Board distinguished Lucia and held it did not excuse failure to raise the issue below; Lucia does not abolish issue-exhaustion in MSPB appeals |
| Applicability of Carr v. Saul (Social Security) to MSPB exhaustion rules | Implicitly: Carr may allow raising Appointments Clause claims first in court | Agency/Board: Carr concerned nonadversarial SSA proceedings and judicially-created exhaustion; MSPB proceedings are adversarial, with procedural safeguards and interlocutory certification | Board held Carr inapplicable: MSPB’s adversarial process and statutory scheme justify strict exhaustion and raising issues before the AJ |
| Review of AJ’s merits findings on repeated arguments | McClenning refiled her closing brief and challenged merits on PFR | Agency urged Board to reject arguments already considered by AJ | Board declined to disturb AJ’s findings; repeating below arguments on PFR is insufficient for review |
Key Cases Cited
- Lucia v. Securities & Exchange Commission, 138 S. Ct. 2044 (2018) (ALJs are officers subject to the Appointments Clause; timely challenge entitles relief)
- Ryder v. United States, 515 U.S. 177 (1995) (timeliness principle: challenge made before the adjudicating tribunal is timely)
- Carr v. Saul, 141 S. Ct. 1352 (2021) (Social Security claimants need not exhaust Appointments Clause claims because SSA proceedings are nonadversarial)
- In re DBC, 545 F.3d 1373 (Fed. Cir. 2008) (Appointments Clause argument raised first on judicial review was untimely; board should be given first chance)
- Meglio v. Merit Systems Protection Board, 758 F.2d 1576 (Fed. Cir. 1985) (parties must frame issues before the presiding official to preserve them for review)
- Bosley v. Merit Systems Protection Board, 162 F.3d 665 (Fed. Cir. 1998) (Board may properly decline to review issues not raised before the administrative judge)
- Woodford v. Ngo, 548 U.S. 81 (2006) (proper exhaustion requires compliance with agency deadlines and critical procedural rules)