53 F.4th 630
Fed. Cir.2022Background
- Elfina McIntosh was a DoD program and budget analyst serving as Contracting Officer’s Representative (COR) who reviewed and approved contractor travel invoices.
- After a 2016 promotion, supervisors reported deteriorating demeanor and repeated refusals by McIntosh to approve invoices or to provide contract information to coworkers as directed; she filed grievances alleging improper direction and harassment.
- In March–April 2017 McIntosh had multiple absences, submitted limited medical documentation, claimed tentative leave dates without a formal leave request, and on April 6 left work early and placed three binders of COR files on an executive assistant’s desk.
- The agency issued a Notice of Proposed Removal alleging 22 specifications across four charges (inappropriate conduct; failure to follow instructions; AWOL; lack of candor); the deciding official sustained removal effective August 18, 2017.
- An MSPB administrative judge sustained 18 specifications, found McIntosh met the contributing-factor test for whistleblowing but that the agency proved by clear and convincing evidence it would have removed her absent disclosures, and upheld the removal penalty; McIntosh appealed, raising an Appointments Clause challenge and contesting substantial evidence.
- The Federal Circuit affirmed: it rejected the Appointments Clause attack to MSPB administrative judges, held the Board’s review authority and ratification remedied any appointment concerns, and found substantial evidence supported the charges and the Carr-factor analysis that the agency would have removed McIntosh regardless of her grievances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MSPB administrative judges are principal officers under the Appointments Clause | AJs are principal officers because their initial decisions can become final without Board review, so they must be Presidential appointees with Senate confirmation | The Board’s three presidentially appointed members can review AJ decisions sua sponte and employees can petition for review; AJs are supervised by principal officers | AJs are inferior officers; Board retains unfettered review authority and removal protections do not make AJs principal officers; Appointments Clause challenge fails |
| Whether absence of a Board quorum during the case renders AJ decisions invalid | No Board existed during the case so AJ decisions lacked review and are unconstitutional as applied | Temporary lack of quorum is not a structural defect; employees can petition for review and the defect is remedied when a quorum is restored | Rejected; temporary quorum absence does not violate Appointments Clause; Board quorum later restored and appointments ratified |
| Whether the agency’s charges (inappropriate conduct, failing to follow instructions, AWOL, lack of candor) are supported by substantial evidence | McIntosh contends the evidence is insufficient or misweighed | Agency relied on sworn supervisor statements, contemporaneous emails, memoranda, and absence of corroborating evidence from McIntosh | Sustained: substantial evidence supports each challenged specification and the removal penalty was not an abuse of discretion |
| Whether McIntosh proved whistleblower retaliation (Carr factors) so agency failed to show it would have removed her absent disclosures | McIntosh argues grievances were a contributing factor and agency did not prove it would have removed her otherwise | Agency points to strength and seriousness of charges, lack of retaliatory motive by deciding official, and absence of similarly situated comparators | Agency met clear-and-convincing burden under Carr; first factor strongly favors agency, second neutral, third undeveloped; overall substantial evidence shows removal would have occurred regardless |
Key Cases Cited
- United States v. Arthrex, Inc., 141 S. Ct. 1970 (2021) (addressing appointment status of administrative adjudicators and remedial review by a principal officer)
- Edmond v. United States, 520 U.S. 651 (1997) (framework for distinguishing principal and inferior officers)
- Carr v. Social Security Admin., 185 F.3d 1318 (Fed. Cir. 1999) (three-factor test for whether agency proved it would have taken action absent whistleblowing)
- Connolly v. U.S. Dep’t of Justice, 766 F.2d 507 (Fed. Cir. 1985) (Board may substitute its judgment for that of its presiding officials)
- Ludlum v. Dep’t of Justice, 278 F.3d 1280 (Fed. Cir. 2002) (definition and scope of lack-of-candor versus falsification)