Chong McClenning v. Department of the ArmyChong McClenning v. Department of the Army
¶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.
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
¶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 Benefits 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
¶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.
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
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
¶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
¶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.
¶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 have used language
¶16 The Board‘s regulations reserve to it the authority to consider any issue in an appeal before it.
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 requirement 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
¶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.
¶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 upon 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 in 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 regulations provide that all issues must first be raised before the administrative judge before the full Board will consider them.
¶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
¶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 appeal and the Board would have had an opportunity to address the administrative
¶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);
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 (
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FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.