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
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APPEAL RIGHTS UNDER CSRA
PERFORMANCE BASED ACTIONS
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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.
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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.
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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.
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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.
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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