In Re Kuriappan P. Alappat, Edward E. Averill and James G. Larsen

ARCHER, Chief Judge,1 with whom NIES, Circuit Judge,

joins, concurring in part and dissenting in part.

I. OUR JURISDICTION

None of the parties has challenged at any time the legality of the composition of the board, and, in fact, both parties to this appeal defend the procedure by which the board was composed. According to our precedent and that of the Supreme Court, a challenge to the validity of the board’s composition is a procedural matter that can be waived by the parties. It is not a “jurisdictional” matter. But even if some sua sponte jurisdictional inquiry into the composition of the…