Case: 19-2454 Document: 93 Page: 1 Filed: 11/09/2022
`
`
`
`
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`ELFINA MCINTOSH,
`Petitioner
`
`v.
`
`DEPARTMENT OF DEFENSE,
`Respondent
`
`MERIT SYSTEMS PROTECTION BOARD,
`Intervenor
`______________________
`
`2019-2454
`______________________
`
`Petition for review of the Merit Systems Protection
`Board in No. DC-0752-17-0803-I-4.
`______________________
`
`Decided: November 9, 2022
`______________________
`
`PHILIP SHENG, Davis Polk & Wardwell LLC, Menlo
`Park, CA, argued for petitioner. Also represented by
`COREY M. MEYER, New York, NY.
`
` GALINA I. FOMENKOVA, Commercial Litigation Branch,
`Civil Division, United States Department of Justice, Wash-
`ington, DC, argued for respondent. Also represented by
`BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., ALLISON KIDD-
`
`

`

`Case: 19-2454 Document: 93 Page: 2 Filed: 11/09/2022
`
`2
`
`MILLER.
`
`MCINTOSH v. DEFENSE
`
`STEPHEN F UNG, Office of General Counsel, United
`States Merit Systems Protection Board, Washington, DC,
`argued for intervenor. Also represented by TRISTAN L.
`LEAVITT, KATHERINE MICHELLE SMITH.
` ______________________
`
`Before LOURIE, BRYSON, and HUGHES, Circuit Judges.
`HUGHES, Circuit Judge.
`The Department of Defense removed Elfina McIntosh
`from her position. Ms. McIntosh alleged she was removed
`for protected whistleblowing activity. The Merit Systems
`Protection Board sustained the removal and concluded that
`the Department would have removed her even absent her
`protected whistleblowing activity. She now challenges the
`Board’s decision, arguing (1) that the Board’s administra-
`tive judges are improperly appointed principal officers un-
`der the Appointments Clause and (2) that substantial
`evidence does not support the Board’s decision on her re-
`moval. We affirm.
`
`I
`Elfina McIntosh was employed by the Department of
`Defense Education Authority as a Program and Budget An-
`alyst. In her role as a Contracting Officer’s Representative
`(COR), Ms. McIntosh was responsible for approving travel
`expenses for two government contracts. Generally, contrac-
`tor employees would submit a travel request to the Pro-
`gram Manager, Heather McIntosh-Braden (no relation to
`Ms. McIntosh), who would then forward them to Ms. McIn-
`tosh for review. Ms. McIntosh would ensure the requests
`complied with Federal Travel Regulations and approve or
`reject them.
`Ms. McIntosh received a promotion around October
`2016. Following her promotion, Ms. McIntosh’s superiors
`
`

`

`Case: 19-2454 Document: 93 Page: 3 Filed: 11/09/2022
`
`MCINTOSH v. DEFENSE
`
`3
`
`noted that her “demeanor degraded” and her “work ethic
`deteriorated.” J.A. 887. The agency raised two repeated
`problems with Ms. McIntosh’s job performance: refusal to
`approve invoices and refusal to provide contract infor-
`mation to her coworkers as directed.
`First, in December 2016, Ms. McIntosh refused to ap-
`prove a travel authorization request that was submitted to
`her on the same day as the scheduled travel because she
`believed she would need to change the start date for it to
`be contractually appropriate. Her supervisor, Wayne Bos-
`well, stated that this was an emergency circumstance and
`that the request should be approved to prevent negative
`impacts on the armed forces. He stated that if she would
`not approve it, he would. Ms. McIntosh maintained that it
`would be inappropriate for Mr. Boswell to do so because he
`was not the designated COR, even though he was the Di-
`rector of the Office of Financial Readiness.
`This was not the only instance of Ms. McIntosh refus-
`ing to approve invoices, as she also refused to approve in-
`voices if she herself had not authorized the travel, even if
`the travel had been authorized by others, like Mr. Boswell,
`Ms. McIntosh-Braden, or the Contracting Officer Louis
`Gilden. Mr. Boswell explained to Ms. McIntosh that the
`contracting officer had informed him that he, as the Direc-
`tor, and Ms. McIntosh-Braden, as the Program Manager,
`could also approve travel requests. On February 8, 2017,
`Mr. Boswell informed Ms. McIntosh that her refusal to re-
`view and approve invoices amounted to a “refus[al] to per-
`form [her] job requirements.” J.A. 1074. That same day,
`Ms. McIntosh filed a grievance against Mr. Boswell, alleg-
`ing that he had directed her to approve invoices she had
`not authorized.
`Second, Ms. McIntosh was asked, but repeatedly re-
`fused, to provide detailed information about one of her as-
`signed contracts to Mr. Boswell, Ms. McIntosh-Braden, and
`her coworker, Andy Cohen, who had been asked to review
`
`

`

`Case: 19-2454 Document: 93 Page: 4 Filed: 11/09/2022
`
`4
`
`MCINTOSH v. DEFENSE
`
`the contract processes. Ms. McIntosh objected because “the
`documents and information at issue were sensitive and
`could only be shared on a need-to-know basis.” J.A. 15. Ms.
`McIntosh also asserted that Mr. Cohen was not a COR on
`the contract and so was not authorized to receive any infor-
`mation about it. Mr. Boswell, as the Director, gave his au-
`thorization. Ms. McIntosh filed more formal grievances on
`these incidents, alleging that she was being forced to dis-
`close unauthorized information and was harassed and be-
`littled by Mr. Cohen and Mr. Boswell.
`The agency investigated Ms. McIntosh’s grievances, in-
`terviewing several of her co-workers and supervisors.
`Ms. McIntosh did not respond to the investigator’s request
`for an interview. Based on its investigation, the agency de-
`nied Ms. McIntosh’s grievances on June 27, 2017, deter-
`mining that the agency “did not create a hostile work
`environment or violate any law, rule, or regulation, as al-
`leged.” J.A. 258–59.
`In February 2017, Mr. Boswell asked Ms. McIntosh to
`send him her annual leave plan because she had significant
`use-or-lose leave left over from 2016. In response,
`Ms. McIntosh sent Mr. Boswell an email with “Tentative
`Leave Dates” that “may be changed or modified,” including
`March 27–April 3, 2017. J.A. 176.
`On March 22, 2017, Ms. McIntosh sent Mr. Boswell an
`email with the subject line “Sick Leave, 3-22” and no other
`text. J.A. 1030. Mr. Boswell wished her a speedy recovery
`but also found her absence curious because they had sched-
`uled her performance review for that day, before Mr. Bos-
`well’s imminent retirement. Mr. Boswell sought guidance
`from Employee Relations, who advised that he could re-
`quire Ms. McIntosh to submit medical documentation from
`a licensed doctor that should “[i]nclude a statement that
`the medical problem rendered her incapacitated for the
`performance of her duties[.]” J.A. 1031. Mr. Boswell re-
`quested the documentation.
`
`

`

`Case: 19-2454 Document: 93 Page: 5 Filed: 11/09/2022
`
`MCINTOSH v. DEFENSE
`
`5
`
`Ms. McIntosh again emailed in sick on March 23 and
`24. She was also absent from work from March 27–April 4,
`2017. She asserted that she had been granted that leave
`after she sent Mr. Boswell the email with her tentative
`leave dates. But Mr. Boswell asserted in his sworn state-
`ment that, while he received that email, Ms. McIntosh
`never submitted an actual leave request, nor did Mr. Bos-
`well approve all the dates at issue. He also provided email
`documentation that showed he had tried to contact Ms.
`McIntosh about the tentative leave dates because he had
`no active request for the leave in the attendance system.
`Ms. McIntosh returned to work on April 5, by which
`time Mr. Boswell had retired and Mr. Cohen had become
`her supervisor. Upon her return, Ms. McIntosh submitted
`a letter from her doctor that said she “should be excused
`from work due to
`illness
`from 3/22/2017 through
`3/24/2017.” J.A. 1035. Mr. Cohen, who had since been pro-
`moted to replace Mr. Boswell, consulted Employee Rela-
`tions and determined that the documentation was not
`administratively acceptable. He requested further docu-
`mentation and gave her 15 days to procure it. Ms. McIn-
`tosh never provided the added documentation.
`Upon returning to work on April 5, Ms. McIntosh went
`to meet with John T. Hastings, her second-level supervisor,
`to discuss her grievances. He directed her to meet with
`Mr. Cohen, but she refused, reiterated her grievances, and
`requested reassignment. She then emailed the contracting
`officers of the two contracts she managed and told them to
`remove her as COR immediately.
`On the morning of April 6, Mr. Cohen sought to speak
`with Ms. McIntosh, but she told him that he should email
`her instead and left. She then went to Mr. Hastings’s office
`to speak with him. After he asked her to wait a few mo-
`ments as he finished a task, he turned to her. She re-
`sponded, “[n]ever mind, I’ll handle it myself. I’m not doing
`COR duties anymore.” J.A. 495. She then left and, on her
`
`

`

`Case: 19-2454 Document: 93 Page: 6 Filed: 11/09/2022
`
`6
`
`MCINTOSH v. DEFENSE
`
`way out, left three binders containing COR files on the desk
`of Mr. Hastings’s executive assistant. She told Mr. Has-
`tings that they were COR files and later emailed Mr. Cohen
`to alert him that the files were in Mr. Hastings’s office for
`his retrieval. Ms. McIntosh then emailed several people to
`let them know she was leaving early because she was “in a
`hostile work environment” and that, for her safety, she
`“ha[d] advised Mr. Hasting[s] that I am going home.” J.A.
`1047–48. She left at 8:47 am.
`Mr. Cohen placed Ms. McIntosh on paid administrative
`leave on April 7, 2017 and issued a Notice of Proposed Re-
`moval on May 19, 2017. The Notice contained 22 specifica-
`tions across four charges: 1) inappropriate conduct, 2)
`failure to follow supervisory instructions, 3) absences with-
`out leave (AWOL), and 4) lack of candor. The deciding offi-
`cial, Ms. McIntosh’s third-level supervisor, Dr. Elizabeth
`Van Winkle, sustained the removal, concluding that Ms.
`McIntosh’s “lack of dependability and refusal to work with
`team members” meant that management had lost “confi-
`dence in [her] ability to perform [her] duties.” J.A. 123–24.
`Ms. McIntosh’s removal became effective on August 18,
`2017.
`Ms. McIntosh appealed her removal to the Board. The
`administrative judge sustained 18 of the agency’s 21 re-
`maining specifications, across all four charges.1 She found
`that Ms. McIntosh largely did not dispute the actions sup-
`porting the charges and that the sworn statements from
`Ms. McIntosh’s supervisors, as well as emails and contem-
`poraneous documents in the record, were more persuasive
`than Ms. McIntosh’s evidence.
`The administrative judge also considered Ms. McIn-
`tosh’s whistleblower defense that the agency was
`
`
`1 The agency withdrew one of the specifications. J.A.
`1010.
`
`

`

`Case: 19-2454 Document: 93 Page: 7 Filed: 11/09/2022
`
`MCINTOSH v. DEFENSE
`
`7
`
`retaliating for the grievances she had filed alleging that
`Mr. Boswell, Ms. McIntosh-Braden, and Mr. Cohen had vi-
`olated federal contracting rules. She concluded that Ms.
`McIntosh had met her burden, based on the knowledge-
`timing test, of showing that her grievances, filed in early
`2017, could be a contributing factor in the May 2017 re-
`moval decision. But the administrative judge determined
`that, under the Carr factors, the agency had established by
`clear and convincing evidence that it would have removed
`Ms. McIntosh even absent her disclosures, given the
`“strength of the evidence against the appellant and the se-
`riousness of the charges.” J.A. 42–44 (citing Carr v. Soc.
`Sec. Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999)). Finally,
`the administrative judge concluded that the agency’s pen-
`alty of removal was reasonable and promoted the efficiency
`of the service.
`The administrative judge’s decision became final on
`July 20, 2019. Ms. McIntosh appeals. We have jurisdiction
`under 28 U.S.C. § 1295(a)(9).
`II
`Under 5 U.S.C. § 7703(c), we may reverse a Board de-
`cision only if it is “(1) arbitrary, capricious, an abuse of dis-
`cretion, or otherwise not in accordance with law; (2)
`obtained without procedures required by law, rule, or reg-
`ulation having been followed; or (3) unsupported by sub-
`stantial evidence.” Sistek v. Dep’t of Veterans Affs., 955
`F.3d 948, 953 (Fed. Cir. 2020). The petitioner bears the bur-
`den of establishing reversible error. Id.
` We review the Board’s legal decisions de novo and its
`findings of fact for substantial evidence. Salmon v. Soc.
`Sec. Admin., 663 F.3d 1378, 1380 (Fed. Cir. 2011); Bolton
`v. MSPB, 154 F.3d 1313, 1316 (Fed. Cir. 1998). Substantial
`evidence means “such relevant evidence as a reasonable
`mind might accept as adequate to support a conclusion.”
`Simpson v. Off. of Pers. Mgmt., 347 F.3d 1361, 1364 (Fed.
`Cir. 2003) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
`
`

`

`Case: 19-2454 Document: 93 Page: 8 Filed: 11/09/2022
`
`8
`
`MCINTOSH v. DEFENSE
`
`197, 229 (1938)). We defer to the Board’s penalty determi-
`nation “unless the penalty exceeds the range of permissible
`punishments specified by statute or regulation, or unless
`the penalty is ‘so harsh and unconscionably disproportion-
`ate to the offense that it amounts to an abuse of discre-
`tion.’” Villela v. Dep’t of the Air Force, 727 F.2d 1574, 1576
`(Fed. Cir. 1984) (quoting Power v. United States, 531 F.2d
`505, 507 (Ct. Cl. 1976)).
`
`III
`A
`Ms. McIntosh first argues that, under the Appoint-
`ments Clause, the Board’s administrative judges are prin-
`cipal officers and are therefore required to be appointed by
`the President and confirmed by the Senate. Because the
`administrative judge here was not appointed by the Presi-
`dent and confirmed by the Senate, Ms. McIntosh contends
`that her final decision is invalid. Appellant’s Br. 47. We
`disagree.
`The Appointments Clause provides that only the Pres-
`ident, with the advice and consent of the Senate, can ap-
`point principal officers. U.S. Const. art. II, § 2, cl. 2; United
`States v. Arthrex, Inc., 141 S. Ct. 1970, 1979 (2021). For
`inferior officers, the Clause permits Congress to vest ap-
`pointment power “in the President alone, in the Courts of
`Law, or in the Heads of Departments.” U.S. Const. art. II,
`§ 2, cl. 2.
`The Supreme Court has explained that “[w]hether one
`is an ‘inferior’ officer depends on whether he has a supe-
`rior,” and “‘inferior officers’ are officers whose work is di-
`rected and supervised at some level by others who were
`appointed by Presidential nomination with the advice and
`consent of the Senate.” Edmond v. United States, 520 U.S.
`651, 662–63 (1997). Edmond emphasized three factors for
`distinguishing principal and inferior officers: (1) whether
`an appointed official has the power to review and reverse
`
`

`

`Case: 19-2454 Document: 93 Page: 9 Filed: 11/09/2022
`
`MCINTOSH v. DEFENSE
`
`9
`
`the officers’ decision; (2) the level of supervision and over-
`sight an appointed official has over the officers; and (3)
`whether an appointed official has the power to remove the
`officers without cause. See id. at 664–65; see also Intercol-
`legiate Broad. Sys., Inc. v. Copyright Royalty Bd., 684 F.3d
`1332, 1338 (D.C. Cir. 2012).
`In United States v. Arthrex, Inc., the Supreme Court
`determined that the administrative patent judges of the
`Patent Trial and Appeal Board (PTAB), who are appointed
`by the Secretary of Commerce and issue decisions on behalf
`of the Executive Branch, were improperly appointed prin-
`cipal officers because they had the “‘power to render a final
`decision on behalf of the United States’ without any . . . re-
`view by their nominal superior or any other principal of-
`ficer in the Executive Branch.” 141 S. Ct. at 1981 (quoting
`Edmond, 520 U.S. at 665). Ms. McIntosh contends that the
`same problem exists with the Merit Systems Protection
`Board’s administrative judges.
`The Board’s structure and, in particular, how its ad-
`ministrative judges are appointed and issue decisions, is
`different from the PTAB. The MSPB itself is made up of
`three members who are appointed by the President with
`the advice and consent of the Senate, making them princi-
`pal officers. 5 U.S.C. § 1201. The Board’s administrative
`judges, who are appointed under the Board Chairman’s
`general authority under 5 U.S.C. § 1204(j), adjudicate
`cases and issue initial decisions under the Board’s appel-
`late jurisdiction. See 5 U.S.C. § 7701(b)(1) (“The Board may
`hear any case appealed to it or may refer the case to an . . .
`employee of the Board designated by the Board to hear
`such cases . . . .”). An administrative judge’s initial decision
`becomes the final decision of the Board unless a party ap-
`peals or the Board reopens the case on its own motion. Id.
`§ 7701(e)(1). Thus, unlike the PTAB, an administrative
`judge’s decision is subject to review by a principal officer,
`in this case, the three member MSPB.
`
`

`

`Case: 19-2454 Document: 93 Page: 10 Filed: 11/09/2022
`
`10
`
`MCINTOSH v. DEFENSE
`
`Still, Ms. McIntosh argues that the Board’s adminis-
`trative judges qualify as principal officers because “an ap-
`pointed official . . . does not have the power to review and
`reverse [their] decision[s] in cases that are not appealed to
`the Board.” Appellant’s Br. 49 (citing 5 U.S.C. § 7701(a)-
`(b)) (emphasis added). Ms. McIntosh is incorrect. Under 5
`U.S.C. § 7701(e)(1)(B), the Board, whose members are prin-
`cipal officers appointed by the President with the advice
`and consent of the Senate, see 5 U.S.C. § 1201, may “reo-
`pen[] and reconsider[] a case on its own motion.” 5 U.S.C.
`§ 7701(e)(1)(B) (emphasis added). Review is not limited
`only to cases in which a party appeals to the full Board.
`Even “[o]ne member of the Board may grant a petition or
`otherwise direct that a decision be reviewed by the full
`Board.” Id. And the Board has discretion to determine
`whether “unusual or extraordinary circumstances” war-
`rant reopening the appeal. 5 C.F.R. § 1201.118. In contrast,
`no principal officer had the power to review the final deci-
`sions of administrative patent judges before the constitu-
`tional remedy in Arthrex. See Arthrex, 141 S. Ct. at 1981.
`Federal employees retain the unilateral ability to peti-
`tion for the Board’s review of an administrative judge’s in-
`itial decision, 5 U.S.C. § 7701(e)(1)(A); 5 C.F.R.
`§ 1201.114(c), and so need not rely on the Board’s discre-
`tion to obtain review. Upon review, the Board may “re-
`verse, modify, or vacate” the administrative judge’s
`decision. 5 C.F.R. § 1201.117. Moreover, “the board is free
`to substitute its judgment for that of one of its presiding
`officials.” Connolly v. U.S. Dep’t of Just., 766 F.2d 507, 512
`(Fed. Cir. 1985). The statutes and related regulations show
`that the Board maintains significant review authority over
`administrative judges’ decisions, and the first and second
`prongs of Edmond weigh in favor of concluding that the
`Board’s administrative judges are not principal officers.
`
`

`

`Case: 19-2454 Document: 93 Page: 11 Filed: 11/09/2022
`
`MCINTOSH v. DEFENSE
`
`11
`
`B
`Ms. McIntosh next argues that the Board Chairman
`“lack[s] unfettered removal authority” to remove the
`Board’s administrative judges, suggesting that they are
`principal officers under the third Edmond prong. Appel-
`lant’s Br. 50 (quoting Arthrex, Inc. v. Smith & Nephew,
`Inc., 941 F.3d 1320, 1332 (Fed. Cir. 2019), vacated, 141 S.
`Ct. 1970). While true that the Board’s administrative
`judges can only be removed “for such cause as will promote
`the efficiency of the service,” 5 U.S.C. § 7513(a), that fact
`alone is insufficient to render them principal officers. In-
`deed, in Arthrex, the same for-cause removal restriction ap-
`plied to administrative patent judges, but the Supreme
`Court ultimately held that the administrative patent
`judges could properly be considered inferior officers, even
`with the restriction on removal, as long as their decisions
`were subject to review by a principal officer. Arthrex, 141
`S. Ct. at 1985–87. To remedy the unconstitutional statu-
`tory structure in Arthrex, the Supreme Court held unen-
`forceable the provision of the America Invents Act that
`shielded administrative patent judges’ decisions from Di-
`rector review. Id. at 1987. This enabled the Director to “re-
`view[] the decisions of the PTAB on his own.” Id. The Court
`left in place the removal restrictions under 5 U.S.C. § 7513,
`because, “regardless [of] whether . . . at-will removal by the
`Secretary would cure the constitutional problem, review by
`the Director better reflects the structure of supervision
`within the PTO and the nature of [administrative patent
`judges’] duties.” Id. The Court emphasized that “the Direc-
`tor need not review every decision of the PTAB. What mat-
`ters is that the Director have the discretion to review
`decisions rendered by [administrative patent judges].” Id.
`at 1988 (emphasis added).
`Here, unlike the U.S. Patent and Trademark Office Di-
`rector or the Secretary of Commerce, principal officers who
`previously lacked the authority to review administrative
`patent judges’ decisions, see Arthrex, 141 S. Ct. at 1978, the
`
`

`

`Case: 19-2454 Document: 93 Page: 12 Filed: 11/09/2022
`
`12
`
`MCINTOSH v. DEFENSE
`
`Board, a body of properly appointed principal officers, al-
`ready has the discretion and authority to review adminis-
`trative judges’ decisions sua sponte, see supra section III.A.
`The Board’s statutory structure mirrors that of the PTAB
`following the Arthrex remedy: the Board has the unfettered
`authority to review decisions rendered by administrative
`judges, and so even if the administrative judges are pro-
`tected by the § 7513 removal standard, they are “subject to
`the direction and supervision of an officer nominated by the
`President and confirmed by the Senate,” just as adminis-
`trative patent judges are following the Arthrex remedy. Ar-
`threx, 141 S. Ct. at 1988. We hold that the Board’s
`administrative judges are not principal officers.
`C
`Third, Ms. McIntosh argues that the administrative
`judge’s decision violates the Appointments Clause because
`no Board was in place throughout her case, meaning “what-
`ever review authority or removal authority the Board has
`over [administrative judges] is non-existent and inapplica-
`ble as applied to Ms. McIntosh.” Appellant’s Reply Br. 26.
`But Ms. McIntosh could have still petitioned for Board re-
`view and had her decision reviewed once a quorum was es-
`tablished, as explained at the end of the administrative
`judge’s decision. Furthermore, this court recently consid-
`ered this argument in another Board appeal and rejected
`it:
`
`The absence of a quorum . . . is a temporary
`circumstance, not a structural defect result-
`ing from statutory limitations on Board re-
`view
`of administrative
`judges’
`initial
`decisions . . . . To be sure, the temporary ab-
`sence of a quorum means that, at present, if
`an employee seeks review by the Board, the
`review will be delayed. But the delay, while
`unfortunate,
`does
`not
`convert
`a
`
`

`

`Case: 19-2454 Document: 93 Page: 13 Filed: 11/09/2022
`
`MCINTOSH v. DEFENSE
`
`13
`
`constitutionally valid review process into a vi-
`olation of the Appointments Clause.
`Rodriguez v. Dep’t of Veterans Affs., 8 F.4th 1290, 1309
`(Fed. Cir. 2021). We note that Board members have since
`been nominated and confirmed, and a quorum has been re-
`stored. Press Release, U.S. Merit Sys. Prot. Bd., MSPB
`Welcomes Acting Chairman Cathy A. Harris (June 6, 2022),
`https://mspb.gov/publicaffairs/press_releases/Cathy_Har-
`ris_Press_Release_1930967.pdf.
`D
`Finally, Ms. McIntosh argues in her Reply Brief that
`even if the Board’s administrative judges are inferior offic-
`ers and not principal officers, they are still not properly ap-
`pointed by the “President,” a “court[] of law,” or a “head[]
`of department[]” as required by the Appointments Clause.
`Appellant’s Reply Br. 28. The government argues that she
`has doubly forfeited this challenge by not raising it before
`the Board or in her opening brief.
`Ms. McIntosh did not preserve this argument because
`challenging the appointment of an inferior officer is a sep-
`arate ground for reversal that she failed to raise in her
`opening brief. “Our law is well established that arguments
`not raised in the opening brief are” forfeited. Smithkline
`Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1319 (Fed.
`Cir. 2006) (citation omitted). We have found similar be-
`lated Appointments Clause challenges forfeited following
`our initial decision in Arthrex. See Customedia Techs., LLC
`v. Dish Network Corp., 941 F.3d 1173, 1174 (Fed. Cir. 2019)
`(concluding that Appointments Clause challenges not
`raised in the opening brief are forfeited).
`Even if the administrative judges are inferior officers,
`any issues with their appointment have since been reme-
`died. A quorum of the reconstituted Board, who qualify as
`“heads of departments” under the Appointments Clause,
`issued a Ratification Order on March 4, 2022 that ratified
`
`

`

`Case: 19-2454 Document: 93 Page: 14 Filed: 11/09/2022
`
`14
`
`MCINTOSH v. DEFENSE
`
`the prior appointments of administrative judges, “ap-
`prov[ing] these appointments as our own under Article II
`of the Constitution.” U.S. Merit Systems Protection Board
`Ratification Order
`(Mar. 4, 2022), available at
`https://www.mspb.gov/foia/files/AJ_Ratification_Order_3-
`4-2022.pdf.
`In sum, the Board’s administrative judges are not prin-
`cipal officers under the Appointments Clause because the
`Board retains the unfettered authority to review their de-
`cisions under 5 U.S.C. § 7701(e)(1)(B), meaning they are
`“subject to the direction and supervision of an officer nom-
`inated by the President and confirmed by the Senate.” Ar-
`threx, 141 S. Ct. at 1988. Ms. McIntosh’s Appointments
`Clause challenge thus fails, and we turn to the merits.
`IV
`On the merits, Ms. McIntosh argues that substantial
`evidence does not support the agency’s four charges against
`her, or that the administrative judge committed legal error
`in affirming said charges. We address each charge in turn.
`A
`Specification 1 of Charge 1 alleges that Ms. McIntosh
`engaged in inappropriate conduct when she emailed con-
`tractors unilaterally removing herself from her COR du-
`ties. Ms. McIntosh contends that no evidence supports the
`administrative judge’s conclusion, despite sworn state-
`ments from Ms. McIntosh’s superiors that she had not been
`authorized to remove herself from those duties and lacked
`the authority to do so unilaterally. Ms. McIntosh does not
`dispute that she sent the emails but defends that she sent
`them in response to an email from Mr. Boswell with the
`subject “Financial Readiness Leadership” that said, “effec-
`tive 3 April [sic], Andy Cohen will . . . assume all duties in
`overseeing program management and COR responsibili-
`ties” relating to the two contracts Ms. McIntosh oversaw.
`J.A. 171–72. She claims she read this email as stripping
`
`

`

`Case: 19-2454 Document: 93 Page: 15 Filed: 11/09/2022
`
`MCINTOSH v. DEFENSE
`
`15
`
`her of her COR duties. This reading strains credulity. As
`the administrative judge noted, Mr. Boswell emailed sev-
`eral people across the contracting group to advise them
`that he was retiring and that Mr. Cohen would be taking
`over his duties as Director—“[n]othing in that email ad-
`dresses any change in the assigned COR or otherwise indi-
`cates that [Ms. McIntosh] was relieved of her duties
`concerning those contracts.” J.A. 6 & n.3. Substantial evi-
`dence supports the administrative judge’s conclusion about
`this specification.
`Ms. McIntosh also challenges Specification 2 of Charge
`1, which alleges that she engaged in inappropriate conduct
`when she left three binders of sensitive COR files on the
`public desk of Mr. Hastings’s executive assistant, refused
`to speak to Mr. Hastings, and directed Mr. Cohen to re-
`trieve the files. Ms. McIntosh does not dispute that the
`binders contained sensitive information but asserts that
`she left them with Mr. Hastings’s assistant in an office in
`the Pentagon, “an undoubtedly secure place.” Appellant’s
`Br. 39. Mr. Hastings provided a sworn statement that the
`documents should have been left with Mr. Cohen, Ms.
`McIntosh’s supervisor, who was responsible for overseeing
`the contracts at issue. The administrative judge weighed
`this sworn statement, corroborated by a contemporaneous
`memorandum written by Mr. Hastings, against Ms. McIn-
`tosh’s unsworn statement and determined that Mr. Has-
`tings’s evidence was entitled to more weight, especially
`because Ms. McIntosh had failed to make this argument in
`her reply to the agency’s proposal notice. The administra-
`tive judge concluded that, “[a]s it is undisputed that the
`documents contained sensitive or proprietary information
`regarding contracts within Mr. Cohen’s division,” prepon-
`derant evidence supported the specification. J.A. 10–11.
`Given that Ms. McIntosh knew the files were sensitive and
`repeatedly refused to share them with others on that basis,
`she should have known she could not leave them with
`someone who was not authorized to view them. Ms.
`
`

`

`Case: 19-2454 Document: 93 Page: 16 Filed: 11/09/2022
`
`16
`
`MCINTOSH v. DEFENSE
`
`McIntosh asks us to reweigh the evidence on appeal, which
`we cannot do. Rickel v. Dep’t of the Navy, 31 F.4th 1358,
`1366 (Fed. Cir. 2022). Substantial evidence supports the
`administrative judge’s conclusion about Charge 1, Specifi-
`cation 2.
`
`B
`As to Charge 2, failure to follow supervisory instruc-
`tions, Ms. McIntosh argues that, under 5 U.S.C.
`§ 2302(b)(9)(D), the agency was forbidden from taking a
`personnel action against her for “refusing to obey an order
`that would require the individual to violate a law, rule, or
`regulation.” In her view, her refusal to give COR docu-
`ments to Mr. Cohen, because he was not the COR assigned
`to the contract and therefore not authorized to receive that
`information, was a protected action.
`This argument is new on appeal—before the Board,
`Ms. McIntosh cited only to a case that discussed how dis-
`closing confidential information about “processes, opera-
`tions, style of work, or apparatus” of contract offerors could
`violate a criminal code. J.A. 906 (citing Kent v. GSA, 56
`M.S.P.R. 536, 546–647 (1993)). But she never specifically
`pointed to that criminal code or any “law, rule, or regula-
`tion” that she was allegedly asked to violate in complying
`with Mr. Boswell’s instructions to share the information
`with Mr. Cohen and Ms. McIntosh-Braden. See J.A. 258
`(Agency’s Response to Grievances finding Ms. McIntosh
`failed to provide clarification about the allegations and that
`Mr. Cohen “was in a need-to-know position”). Ms. McIntosh
`now cites the COR Handbook in support—specifically, a
`section that says CORs cannot use “following the boss’s or-
`ders” as an excuse to approve unauthorized contract
`changes. Appellant’s Br., 9, 33 (citing Dep’t of Def., COR
`Handbook 57 (2012). But that Handbook was not in the rec-
`ord below, and this argument was never made to the Board,
`and so it is forfeited. Even if it were not, showing the COR
`
`

`

`Case: 19-2454 Document: 93 Page: 17 Filed: 11/09/2022
`
`MCINTOSH v. DEFENSE
`
`17
`
`files to Mr. Cohen as instructed would not have been an
`unauthorized contract change.
`Ms. McIntosh also cites to the COR Appointment Mem-
`oranda, which state that a COR must “protect[] privileged
`and sensitive procurement information.” J.A. 471. Even if
`the COR Appointment Memoranda qualified as a “rule” she
`was asked to violate under 5 U.S.C. § 2302(b)(9)(D), it was
`“not a clear and direct violation” of the memoranda to pro-
`vide the contracting information to Mr. Cohen. The Depart-
`ment of Defense Instruction governing COR appointments
`states that “COR files will be available for review by the
`contracting officer, internal review officials, or other offi-
`cials as authorized by the contracting officer.” J.A. 227 (em-
`phasis added). Mr. Cohen was authorized by the Director,
`Mr. Boswell, to review the documents and so he qualified
`as an internal review official. It was not reasonable for Ms.
`McIntosh to think she could not disclose the documents to
`Mr. Cohen. Substantial evidence supports the administra-
`tive judge’s finding that Ms. McIntosh failed to follow su-
`pervisory instructions.
`
`C
`The agency charged Ms. McIntosh with multiple speci-
`fications of being absent without leave (AWOL). Ms. McIn-
`tosh argues that she was not AWOL on March 22–27, 2017,
`as alleged by Specifications 1–3 of Charge 3, but that the
`agency impermissibly converted her granted sick leave to
`AWOL status. “To supp