Court Affirms Senior Executives in Government Have Only Limited Appeal Rights

Top career executives in federal government have limited recourse when appealing adverse actions against them, a federal court recently affirmed in a precedent-setting ruling. 

Senior Executive Service employees are not entitled to the same suite of due process protections as most federal workers, as their appointment to the highest ranks of the civil service is under constant review for good performance. Maria Esparraguera, an SES employee in the Army, sought to challenge that differentiation, suggesting she was entitled to judicial review of her demotion, just as lower ranking federal workers would be. 

Esparraguera was demoted from the SES after she was found to have implemented an unprecedented hiring mechanism to give her preferred candidate a leg up in the process. Her actions were eventually referred to the Office of Special Counsel, which twice found that they constituted prohibited personnel practices, and the agency recommended disciplinary action. After the Army stripped Esparraguera of her SES status, she requested an “informal hearing” before the Merit Systems Protection Board, as permitted for senior executives under civil service law. 

The board heard the case and sent a summary of proceedings to the Army, OSC and the Office of Personnel Management for review. Unlike in cases of non-SES employees, MSPB did not make any decision on the merits of the case. The Army did not alter its decision. 

Esparraguera then brought her case to the U.S. Court of Appeals for the Federal Circuit, which is only permitted to hear appeals of MSPB cases after the board issues a final decision or order. The court found MSPB’s summary of the informal hearing did not amount to a final order, and therefore it could not review cases brought by senior executives. MSPB is similarly blocked by law from reviewing SES removals. Esparraguera argued she was entitled to some form of judicial review. The appeals court said that may be true, but the federal circuit was not the right place for that. 

“We cannot decide a case simply because a claim arises under the Constitution,” the judges wrote. “So even assuming that Ms. Esparraguera is correct that she must be able to present her constitutional claim before a court, we are unpersuaded that this means our court.”

Veterans Affairs Appeals 

Elsewhere in the federal circuit, the hits keep on coming for President Trump’s signature civil service reform law. 

A federal court ruled earlier this year that the Veterans Affairs Department could not apply the 2017 VA Accountability and Whistleblower Protection Act—a law aimed at making it easier to fire employees—retroactively and appellate judges could review whether VA’s selected punishment fit an employee’s alleged misbehavior. Employees are now putting that ruling in Sayers v. VA to the test. 

Charles Harrington, a VA police officer the department fired in 2017 with its new, expedited authorities, appealed his case to the appellate court arguing his removal was not in compliance with Sayers as his alleged improper conduct took place before the Accountability Act was passed. He also said MSPB had failed to review whether the severity of his punishment matched the impropriety of his actions, which Sayers also required. 

The court sided with Harrington on both points. In a precedent-setting ruling, it also found VA employees could ask for review under Sayers even if it did not make that argument initially. The court vacated Harrington’s removal, remanding the case to MSPB with instructions to further remand it to the department. 

The accountability law suffered another setback earlier this month when the Federal Labor Relations Authority ruled VA violated a contract provision with its largest union by eliminating “performance improvement plans” from the pre-disciplinary process. The decision required VA to reinstate all employees fired without first being provided such a plan, though the department has until mid-January to appeal. 

Trump, VA and lawmakers in both parties have heralded the law as a significant step in cracking down on misbehaving and poorly performing employees, but its enforcement has been mired in controversy since its passage.