Anonymous ID: bd2f77 Dec. 13, 2020, 1:58 p.m. No.12012057   🗄️.is 🔗kun

DUMB SES BITCH BTFO

COURT DECISIONS

PRECEDENTIAL:

Case Name: Esparraguera v. Department of the Army

Tribunal: United States Court of Appeals for the Federal Circuit

Case Number: 2019-2293

MSPB Docket Number: CB-3592-18-0022-U-1

Issuance Date: December 4, 2020

COURT REVIEW

  • APPEAL RIGHTS UNDER CSRA

PERFORMANCE BASED ACTIONS

  • JURISDICTION

The petitioner sought review of the agency’s action removing her for

performance reasons from her Senior Executive Service (SES) position and

placing her in another high-level position outside the SES. The Board did not

issue a decision under its normal appellate procedures. Instead, pursuant to 5

U.S.C. § 3592(a), the Board held an informal hearing and issued an order

referring the record to the respondent agency, as well as to the Office of

Special Counsel and Office of Personnel Management. The petitioner then filed

an appeal at the Federal Circuit, arguing that she had been denied due

process.

Holding: The court held that it lacked jurisdiction to review the Board’s

order referring the record because that order did not constitute a “final

order or final decision” that “adversely affected or aggrieved” the

petitioner.

  1. First, the court held that the Board lacked authority to review the

petitioner’s removal from her SES position. By granting employees like

the petitioner an informal hearing, Congress was providing an

opportunity to be heard, not an adversarial forum. Section 3592(a)

permits an affected employee to “appear and present argument,” but it

does not incorporate any of the substantive or procedural requirements

that apply to adverse action appeals under chapter 75. The fact that

Congress specifically gave the Board authority to review actions against

other Federal employees and against SES employees removed for

misconduct demonstrates that it did not intend to provide for review in

performance-based actions against SES employees.

  1. The court rejected the petitioner’s argument that a post-deprivation

hearing is required as a matter of due process. The court held that even

if the petitioner were deprived of a due process interest, the clear text

and structure of the Civil Service Reform Act prevents a court from

expanding the Board’s jurisdiction in this context.

  1. The court then held that because the Board lacked review authority in

this matter, its order referring the record was not a reviewable “final

order or decision.” Under 5 U.S.C. § 7703(a), an employee who is

“adversely affected or aggrieved by a final order or decision of [the

Board] may obtain judicial review of the order or decision.” Applying

this standard, the Federal Circuit generally only reviews final judgments

from the Board, i.e., orders or decisions that end the litigation on the

merits and leave nothing for the court to do but execute the judgment.

The Board’s order in this case was a ministerial act of record keeping,

not a final judgment.

  1. Finally, the court rejected the petitioner’s argument that it should

exercise jurisdiction over her appeal because of the presumption in

favor of judicial review of constitutional claims. The court held that

even if the petitioner was correct that some court would be required to

hear her constitutional claims, she did not establish that the Federal

Circuit was the proper court to do so. The court therefore dismissed the

appeal for lack of jurisdiction

>https://www.mspb.gov/MSPBSEARCH/viewdocs.aspx?docnumber=1791314&version=1797581&application=ACROBAT