1
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM B. JOLLEY, DOCKET NUMBERS
Appellant, AT-4324-18-0576-I-2
AT-4324-19-0041-I-1
v.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT, DATE: March 31, 2022
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
William B. Jolley, Brunswick, Georgia, pro se.
Magda Lovinsky Chevron and Robert Andrew Zayac, Jr., Atlanta, Georgia,
for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
ORDER
¶1 These appeals are before us on the administrative judge’s April 23, 2019
orders certifying for interlocutory review his orders addressing the appellant’s
claims under the Appointments Clause of the U.S. Constitution. For the reasons
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
discussed below, we JOIN the two appeals, 2 VACATE the administrative judge’s
ruling and RETURN this case to the regional office for further adjudication
before a different administrative judge consistent with this decision.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 In each of these appeals, the appellant alleged that the agency discriminated
against him on the basis of his military service in violation of the Uniformed
Services Employment and Reemployment Rights Act of 1994 (codified as
amended at 38 U.S.C. §§ 4301-4335) (USERRA) by failing to select him for
positions. In his first appeal, Jolley v. Department of Housing & Urban
Development, MSPB Docket No. AT-4324-18-0576-I-1, the appellant argued in
part that the Board’s administrative judges 3 were not properly appointed under
Lucia v. Securities & Exchange Commission, 138 S. Ct. 2044 (2018), and that the
statutory requirement that Federal employees bring USERRA clai ms before the
Board is unconstitutional. In July 2018, the administrative judge dismissed that
appeal without prejudice to refiling within 90 days pending clarification from the
Board regarding the appointment issue. 4 Jolley v. Department of Housing
& Urban Development, MSPB Docket No. AT-4324-18-0576-I-1, Initial Appeal
File, Tab 4, Initial Decision. The Board automatically refiled that appeal in
2
Joinder of two or more appeals filed by the same appellant is appropriate when doing
so would expedite case processing and will not adversely affect the parties’ interests.
Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 1 n.1 (2015), clarified by
Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647 (2016); 5 C.F.R.
§ 1201.36(a)-(b). We find that these criteria are satisfied here. After the case is
returned to the regional office, the administrative judge should determine whether it is
appropriate to continue adjudicating the appeals together.
3
The appellant actually referred to the Board’s administrative law judges.
4
In October 2018, the appellant sought review of the Board’s decision before the
U.S. Court of Appeals for the Federal Circuit. However, the Federal Circuit dismissed
that appeal on the Board’s motion, finding that the dismissal of an appeal without
prejudice to refiling is not a final decision for purposes of judicial review. Jolley v.
Department of Housing & Urban Development, No. 2019-1022, Order (Fed. Cir.
Dec. 28, 2018).
3
October 2018. Jolley v. Department of Housing & Urban Development, MSPB
Docket No. AT-4324-18-0576-I-2, Refiled Appeal File (0576 RAF), Tab 1. The
refiled appeal was reassigned to a different administrative judge. 0576 RAF,
Tab 2.
¶3 The appellant filed his other appeal, Jolley v. Department of Housing
& Urban Development, MSPB Docket No. AT-4324-19-0041-I-1, in
October 2018. The appellant raised the same arguments he had raised in his prior
appeal. Jolley v. Department of Housing & Urban Development, MSPB Docket
No. AT-4324-19-0041-I-1, Initial Appeal File (0041 IAF), Tab 1. That appeal
was reassigned to the same administrative judge as his refiled appeal. 0041 IAF,
Tab 3. The administrative judge issued an order in both of the appellant’s
pending appeals in which he gave the parties an opportunity to submit briefs
addressing the effect of Lucia on the Board and its administrative judges.
0041 IAF, Tab 20; 0576 RAF, Tab 7. On April 23, 2019, the administrative judge
issued an Order and Certification for Interlocutory Appeal in the appella nt’s two
appeals. 0041 IAF, Tab 22; 0576 RAF, Tab 9. Applying the Supreme Court’s
decision in Lucia, he determined that the Board’s administrative judges are
inferior officers of the United States who must be appointed in accordance with
the Appointments Clause 5 and that the appellant was entitled to a hearing before
an official who had been properly appointed. 0041 IAF, Tab 22 at 7; 0576 RAF,
Tab 9 at 7. He certified his ruling for interlocutory appeal and stayed all
proceedings in the appeals pending the Board’s resolution of the interlocutory
appeal. 0041 IAF, Tab 22 at 8; 0576 RAF, Tab 9 at 8.
5
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
ANALYSIS
¶4 An administrative judge will certify a ruling for interlocutory review if the
ruling involves an important question of law or policy about which there is
substantial ground for difference of opinion and an immediate ru ling will
materially advance the completing of the proceeding, or the denial of an
immediate ruling will cause undue harm to a party or the public. Cooper v.
Department of the Navy, 98 M.S.P.R. 683, ¶ 5 (2005), review dismissed sub nom.
Weaver v. Department of the Navy, 197 F. App’x 936 (Fed. Cir. 2006); 5 C.F.R.
§ 1201.92. In light of the lack of guidance regarding the impact of the Lucia
decision on the Board, we find that certification was proper.
The appellant’s Appointments Clause claim is now moot.
¶5 In Lucia, the Supreme Court held that Securities & Exchange Commission
(SEC) administrative law judges qualify as Officers of the United States subject
to the Appointments Clause, rather than as mere employees. Lucia, 138 S. Ct.
at 2049, 2052-55. Because SEC’s administrative law judges were appointed by
SEC staff members rather than the Commission itself, the Court held that the
appointment of those administrative law judges violated the Appointments
Clause. Id. at 2050-51. 6
¶6 The Court in Lucia held that the remedy for an Appointments Clause
violation “is a new ‘hearing before a properly appointed’ official.” Lucia,
138 S. Ct. at 2055 (quoting Ryder v. United States, 515 U.S. 177, 182-83 (1995)).
Here, all of the Board’s administrative judges have now received appointments
ratified by the head of the agency, thereby satisfying the requirements of the
Appointments Clause. See U.S. Merit Systems Protection Board Ratification
Order (Mar. 4, 2022), https://www.mspb.gov/foia/files/AJ_Ratification_Order
6
The holding in Lucia applied only to SEC administrative law judges and ther efore did
not directly address whether the Board’s method of appointing administrative judges
violated the Appointments Clause. For the reasons set forth herein, we need not resolve
that question here.
5
_3-4-2022.pdf. 7 The Ratification Order is a public document, of which we take
administrative notice. Id.; see Azdell v. Office of Personnel Management,
88 M.S.P.R. 319, 323 (2001). That document is also now a part of the record
before the Board. 0041 IAF, Tab 23; 0576 RAF, Tab 10. Therefore, the decision
on the merits of these appeals will be issued in the first instance by a properly
appointed official.
¶7 In order to avoid any additional Appointments Clause issues, we direct the
regional office to assign the appeals to a properly appointed official other than
either the administrative judge who issued the first initial decision or the
administrative judge who certified the interlocutory appeal. See Lucia, 138 S. Ct
at 2055. 8 Thus, the appellant has received all the relief the Board can provide as
to his Appointments Clause claim and that issue is now moot. See Milner v. U.S.
Postal Service, 118 M.S.P.R. 600, ¶ 4 (2012) (holding that an issue is moot when
there is no effective relief that the Board can provide).
7
The Appointments Clause permits the appointment of inferior officers by the head of a
department; principal officers must be appointed by the President with the advice and
consent of the Senate. We see no basis to conclude that the Board’s administrative
judges are principal officers. See Freytag v. Commissioner of Internal Revenue,
501 U.S. 868, 880-82 (1991) (holding that special trial judges of the Tax Court, who
exercise significant discretion in adjudicating matters before them, are inferior
officers). Thus, the appointment of administrative judges by the Board satisfies the
requirements of the Appointments Clause even if Board administrative judges are
officers, rather than mere employees.
8
Arguably, either of those administrative judges could properly adjudicate the appeal
now that they have received proper appointments. The Court in Lucia held that the
official who heard the case after remand could not be the same one who already heard
the case and issued an initial decision on the merits, even if he were to receive a proper
appointment, because “[h]e cannot be expected to consider the matter as though he had
not adjudicated it before.” Lucia, 138 S. Ct. at 2055. This logic would not apply to
either the administrative judge who certified the interlocutory appeal or the
administrative judge who dismissed the appellant’s first appeal without prejudice
because neither judge has expressed a view on the merits of the appeal. Nevertheless,
we find it appropriate to assign the appeal to a different administrative judge for further
adjudication in order to avoid any further claim under the Appointments Clause.
6
ORDER
¶8 Accordingly, we vacate the stay orders issued in these proceedings and
return the appeals to the regional office for further processing and adjudication
before a different administrative judge consistent with this Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.