Avalos v. Hud

• Court: Court of Appeals for the Federal Circuit
• Decided: June 26, 2020
• Docket: 19-1118
• Status: Published

Opinion

Case: 19-1118 Document: 47 Page: 1 Filed: 06/26/2020

United States Court of Appeals for the Federal Circuit ______________________

EDWARD M. AVALOS, Petitioner

v.

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Respondent ______________________

2019-1118 ______________________

Petition for review of the Merit Systems Protection Board in No. DE-0752-18-0004-I-1. ______________________

Decided: June 26, 2020 ______________________

RICHARD RANDOLPH RENNER, Kalijarvi, Chuzi, New- man & Fitch, PC, Washington, DC, argued for petitioner.

ELIZABETH ANNE SPECK, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, argued for respondent. Also repre- sented by JOSEPH H. HUNT, TARA K. HOGAN, ROBERT EDWARD KIRSCHMAN, JR.; NADIA K. PLUTA, Office of Gen- eral Counsel, United States Office of Personnel Manage- ment, Washington, DC; MARCUS R. PATTON, MAUREEN E. VILLARREAL, Office of General Counsel, United States Case: 19-1118 Document: 47 Page: 2 Filed: 06/26/2020

Department of Housing & Urban Development, Fort Worth, TX. ______________________

Before REYNA, WALLACH, and HUGHES, Circuit Judges. HUGHES, Circuit Judge. This is a case about the removal of a federal employee who was illegally appointed to his position in the civil ser- vice. Mr. Edward M. Avalos appealed his removal from employment as the Field Office Director in Albuquerque, New Mexico, for the United States Department of Housing and Urban Development to the Merit Systems Protection Board. Because the Board correctly found that it had ju- risdiction to review Mr. Avalos’s appointment and because substantial evidence supports the agency’s decision to re- move Mr. Avalos to correct his illegal appointment, we af- firm. I A In October 2009, Mr. Avalos was confirmed as the Un- der Secretary of Agriculture for Marketing and Regulatory Programs at the United States Department of Agriculture, a Level III Senior Executive Schedule position in the ex- cepted service. See 5 U.S.C. § 5314. During his nearly eight-year tenure at the USDA, Mr. Avalos crossed paths with Ms. Tammye Treviño, a fellow USDA political appoin- tee then serving as the Administrator for Rural Housing Service. In September 2015, HUD announced that it needed to fill a vacancy for the Field Office Director posi- tion in its Albuquerque office. Ms. Treviño, now working Case: 19-1118 Document: 47 Page: 3 Filed: 06/26/2020

AVALOS v. HUD 3

at HUD, was involved in developing this vacancy an- nouncement and reviewing candidates. 1 Mr. Avalos applied for this Field Office Director posi- tion, but he did not make the certificate of eligible candi- dates from which selection would be made. The certificate listed only one candidate, a preference-eligible veteran. Ms. Treviño, apparently disappointed with the applicant choices, sought to consider additional candidates who were qualified, but not preference eligible. She did not, however, complete a pass-over request under 5 C.F.R. § 3318(a), (c)(1), which would allow her to consider additional candi- dates, instead letting the certificate of eligibles expire. Before the certificate of eligibles for the first vacancy announcement expired, Ms. Treviño began revising the va- cancy announcement; after the first certificate expired, HUD again announced the vacancy. Mr. Avalos applied once more. This time he was the only candidate listed on the certificate of eligibles. According to Ms. Treviño, she had recused herself from acting as the selecting official af- ter seeing Mr. Avalos’s name on this certificate of eligibles, but some ambiguity remains about the manner, scope, and timing of Ms. Treviño’s recusal.

1 The parties dispute whether Ms. Treviño acted as the “selecting official”—“the person having the authority, by law, or by duly delegated authority, to appoint, employ, or promote individuals to positions in an agency,” J.A. 40— for this position. HUD suggests that Ms. Treviño received the certificate of eligibles, which, regardless of other facts, makes her the selecting official. See Resp. Br. 9, 13; see also J.A. 599. Mr. Avalos points out Ms. Treviño’s testi- mony that her manager, Ms. Mary McBride, was always acting as the selecting official, to assert otherwise. See Pet. Br. 4; J.A. 643, 649–50. Case: 19-1118 Document: 47 Page: 4 Filed: 06/26/2020

HUD interviewed Mr. Avalos and selected him for the position, subject to the completion of a one-year probation- ary period. He became HUD’s Albuquerque Field Office Director effective September 18, 2016, the day following his resignation from the USDA. B In April 2017, during regular review of appointments to the competitive service, the Office of Personnel Manage- ment (OPM) noted that HUD had appointed Mr. Avalos without OPM approval. OPM requested information from HUD and also sought to obtain information about Mr. Av- alos’s appointment on its own. After concluding its inves- tigation, OPM advised HUD that it would not have approved HUD’s appointment of Mr. Avalos, and in- structed HUD to “regularize” the appointment. 2 J.A. 154. After receiving OPM’s directive, HUD’s Human Capi- tal Division—specifically Ms. Heather Dieguez, Director of the Office of Accountability—reviewed Mr. Avalos’s ap- pointment and reconstructed his hiring record.

2 “Case law has described regularizing an appoint- ment as correcting the illegal component of the appoint- ment.” Endres v. Dep’t of Veterans Affairs, 107 M.S.P.R. 455, 463 (2007) (“[B]ecause the agency has not shown that [petitioner’s] appointment was regularized by either a var- iation or by correcting the illegal component of the appoint- ment, [petitioner’s] appointment . . . is not valid.”), enforcement dismissed, 108 M.S.P.R. 606 (2008); see also Avalos v. Dep’t of Hous. & Urban Dev., No. DE-0752-18- 0004-I-1, at 6 (M.S.P.B. July 19, 2018) (“Various witnesses testified that, to ‘regularize’ an appointment means to find a legal appointment authority, or to release or remove the employee.”); Regularize, BLACK’S LAW DICTIONARY (11th ed. 2019) (“To make (a situation that has existed for some time) legal or official.”). Case: 19-1118 Document: 47 Page: 5 Filed: 06/26/2020

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Ms. Dieguez sought to determine independently whether Mr. Avalos’s appointment met all merit and fitness re- quirements. After investigating, she found no intent to grant an unauthorized preference by HUD officials. Nev- ertheless, she determined that she could not certify that the appointment met merit and fitness requirements be- cause Ms. Treviño’s involvement in interviewing and se- lecting candidates left the “appearance of a prohibited personnel practice.” J.A. 442. Because HUD could not cer- tify that Mr. Avalos’s appointment met all merit and fit- ness requirements, and because Ms. Dieguez could not find a separate non-competitive appointment authority for Mr. Avalos, she concluded that HUD needed to remove Mr. Av- alos to regularize his appointment. On August 16, 2017, Ms. Dieguez notified Mr. Avalos that HUD may have to remove him because of the impro- priety in his appointment. On August 31, she issued him a formal Notice of Proposed Termination. On September 13, HUD’s deciding official issued Mr. Avalos her Decision on Notice of Proposed Termination, removing him effective September 14, 2017. II Mr. Avalos appealed his removal to the Merit Systems Protection Board. The government argued that the Board lacked jurisdiction because Mr. Avalos was removed before the end of his one-year probationary period. In response, the Board first ruled on its jurisdiction to review Mr. Ava- los’s appointment in a separate jurisdictional order. The Administrative Judge found that the Board had jurisdic- tion because Mr. Avalos met the definition of “employee” provided in 5 U.S.C. § 7511(a)(1)(A)(ii). 3 See 5 U.S.C.

3 Section 7511(a) provides that “[f]or the purpose of this subchapter[,] ‘employee’ means an individual in the competitive service who is not serving a probationary or Case: 19-1118 Document: 47 Page: 6 Filed: 06/26/2020

§ 7513(d) (“An employee against whom an action is taken under this section is entitled to appeal to the Merit Sys- tems Protection Board under section 7701 of this title.” (emphasis added)). The Administrative Judge explained that Mr. Avalos met § 7511(a)(1)(A)(ii)’s requirement of more than a year of “current continuous service” 4 through his previous employment at the USDA. See McCormick v. Dep’t of the Air Force, 307 F.3d 1339, 1341 (Fed. Cir. 2002). After establishing the Board’s jurisdiction, the Admin- istrative Judge held a hearing on the merits and issued his decision. See Avalos v. Dep’t of Hous. & Urban Dev., No. DE-0752-18-0004-I-1 (M.S.P.B. July 19, 2018) (Decision). The Administrative Judge first observed that, by regula- tion, OPM has the authority to require an agency to “take corrective action” if OPM finds that the agency acted con- trary to “a law, rule, regulation, or standard that OPM ad- ministers . . . .” Id. at 5 (citing 5 C.F.R. § 250.103). He then held that, because of this regulatory authority, the Board could not review OPM’s “corrective action” directing HUD to “regularize” Mr. Avalos’s appointment. Id. The Administrative Judge next found that HUD reasonably withheld certification that Mr. Avalos’s appointment was free from political influence, and that in doing so, Ms. Die- guez “exercised appropriate discretion.” Id. at 9. Finally, the Administrative Judge found that preponderant evi- dence showed that HUD’s only option to comply with

trial period under an initial appointment; or . . . who has completed 1 year of current continuous service . . . .” 5 U.S.C. § 7511(a) (subsection notations omitted) (empha- sis added). 4 A petitioner has “current continuous service” if the petitioner has maintained “a period of employment or ser- vice immediately preceding an adverse action without a break in federal civilian employment of a workday.” 5 C.F.R. § 752.402. Case: 19-1118 Document: 47 Page: 7 Filed: 06/26/2020

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OPM’s order to “regularize” Mr. Avalos’s appointment was to remove him. Id. Mr. Avalos did not appeal the Administrative Judge’s initial decision to the full Merit Systems Protection Board, so it became the final decision of the Board. See 5 U.S.C. § 7701(e)(1). He timely petitioned for review of the Board’s decision. We have jurisdiction under 5 U.S.C. § 7703 and 28 U.S.C. § 1295(a)(9). III We review the Board’s jurisdictional determinations without deference. Kelley v. Merit Sys. Prot. Bd., 241 F.3d 1368, 1369 (Fed. Cir. 2001). The petitioner bears the bur- den of establishing the Board’s jurisdiction. Perez v. Merit Sys. Prot. Bd., 85 F.3d 591, 592 (Fed. Cir. 1996). We review the Board’s merits decisions narrowly, finding error only if the decision was arbitrary or capricious or not in accord- ance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsup- ported by substantial evidence. 5 U.S.C. § 7703(c)(1)–(3); see, e.g., Graybill v. U.S. Postal Serv., 782 F.2d 1567, 1570 (Fed. Cir. 1986). We first address the government’s arguments that Mr. Avalos lacked the right to appeal to the Board, either because his appointment was illegal or because he was still a probationary employee at the time of his removal, and the Board therefore lacked jurisdiction. A The government contends that Mr. Avalos’s appoint- ment was barred by law, and therefore that Mr. Avalos has no right to appeal his removal to the Board. In the govern- ment’s view, “because HUD could not certify that [Mr. Av- alos’s appointment] was not free from political influence or in accordance with statutory merit system principles,” OPM “did not and never could have approved Mr. Avalos’s appointment.” Resp. Br. 25 (emphasis removed). Under Case: 19-1118 Document: 47 Page: 8 Filed: 06/26/2020

the government’s first theory, OPM’s failure to approve the appointment renders his appointment invalid under 5 U.S.C. § 2105, and without a valid appointment, Mr. Av- alos has no appeal rights. This theory could be inter- changeably described as Mr. Avalos having nothing to appeal because he cannot be removed from a position he never rightfully had. The Board, persuaded by opinions from the Attorney General and Government Accountability Office, resolved these arguments in Travaglini v. Department of Education, 18 M.S.P.R. 127, 137–38 (1983), holding that where an individual shows that he or she has been appointed to a position by an agency and entered onto duty under all the criteria of 5 U.S.C. § 2105(a) upon his or her certification as eligible for appointment by OPM, and where the appointment is subsequently found to have been improper or er- roneous under law, rule or regulation, the appoin- tee is an “employee” for the purpose of § 2105(a) unless— (1) the appointment is made in violation of an ab- solute statutory prohibition so that the appointee is not qualified for appointment in the civil service, or (2) the appointee has committed fraud in regard to the appointment or has misrepresented or con- cealed a matter material to the appointment. Id. The government adopts Travaglini’s rule in the alter- native to its broader argument that Travaglini itself re- jected, arguing that OPM’s failure to approve Mr. Avalos’s appointment acts as “an absolute prohibition” on Mr. Ava- los’s appointment that would divest Mr. Avalos of his ap- peal rights under Travaglini. We have “occasionally noted but not endorsed” the Board’s resolution of this issue. Elgin v. Dep’t of the Case: 19-1118 Document: 47 Page: 9 Filed: 06/26/2020

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Treasury, 641 F.3d 6, 10 (1st Cir. 2011) (examining Federal Circuit precedent regarding the Board’s jurisdiction over the removal of illegally appointed employees in deciding whether the Board had exclusive jurisdiction over plain- tiff’s claims), aff’d on other grounds, 567 U.S. 1 (2012); see id. at 10 n.3 (summarizing our limited discussion of the Board’s “absolute statutory prohibition” doctrine). We need not adopt or reject the Board’s jurisprudence in this case—it is enough to say that, assuming the Board’s rule is correct, such an “absolute statutory prohibition” does not exist here. An absolute prohibition exists when an appoin- tee could never be eligible for a position in the civil service, not for decisions made on a case-by-case basis. Cf. Hope v. Dep’t of the Army, 108 M.S.P.R. 6, 9 (2008) (“[Q]ualification requirements may prohibit an appointment under a certain set of circumstances (i.e., the lack of a particular qualifica- tion), but they necessarily cannot act as an absolute bar to the appellant’s appointment in the civil service in all cir- cumstances.”); Wallace v. Dep’t of Commerce, 106 M.S.P.R. 23, 30 (2007) (“There is no evidence in the record to support a finding that Martin was not qualified for appointment in the civil service or that, in the absence of nepotism, she was not qualified for appointment to the particular position to which the agency appointed her.”). Mr. Avalos’s status as a former political appointee can- not fairly be considered an absolute statutory bar to his se- lection. We can only speculate about whether Mr. Avalos would have been appointed as HUD’s Albuquerque Field Office Director had HUD strictly followed the correct com- petitive hiring practices. But the government does not dis- pute that Mr. Avalos would have been eligible for the position under proper hiring practices. See Resp. Br. 29 (arguing merely that Mr. Avalos was subject to an absolute statutory prohibition because OPM could not certify that his appointment was free from political influence). The government correctly notes that Mr. Avalos’s appointment violated several statutory prohibitions, id. at 24–25, but Case: 19-1118 Document: 47 Page: 10 Filed: 06/26/2020

these prohibitions on Mr. Avalos’s selection because of im- proper selection practices do not rise to the level of an “ab- solute statutory prohibition” barring his appointment. OPM did not refuse to approve Mr. Avalos’s appointment because he was categorically ineligible to be HUD’s Albu- querque Field Office Director. It refused to approve his ap- pointment because HUD could not certify that his selection was free from political influence. E.g., J.A. 365. We also reject the government’s broader argument— that Mr. Avalos cannot appeal because his appointment was invalid, and he is thus not an employee for the pur- poses of appealing his separation from his HUD position. “Section 7511 defines what ‘employee’ means for [appeals under § 7513(d)] . . . . [because its] definition modifies, for adverse actions, the general definition of a federal civil-ser- vice ‘employee’ set out in 5 U.S.C. § 2105.” Mitchell v. Merit Sys. Prot. Bd., 741 F.3d 81, 83 (Fed. Cir. 2014). See § 7511(a)(1)(A)(ii) (“For the purpose of this subchapter[,] ‘employee’ means an individual in the competitive ser- vice . . . who has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less . . . .” (subsection notations omitted)); § 2105(a)(1) (“For the purpose of this title, ‘employee’, ex- cept as otherwise provided by this section or when specifi- cally modified, means an officer and an individual who is appointed in the civil service by [,among others, ‘an indi- vidual who is an employee under this section,’] acting in an official capacity . . . .” (subsection notations omitted)). Section 7511 does not implicitly abrogate the require- ments of § 2105. We do not today hold that an employee who plainly does not hold a federal position, or who was appointed by someone without even the color of authority to appoint an employee has Board appeal rights. But in light of the considerations underlying § 7511, when defin- ing “employee” for § 7511 we must relax the severity of our construction of “appointed” under § 2105. We have “strictly applied” the test for federal employment under § 2105, Case: 19-1118 Document: 47 Page: 11 Filed: 06/26/2020

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Horner v. Acosta, 803 F.2d 687, 691 (Fed. Cir. 1986), in light of concerns that to do otherwise “could easily bring about chaos in government personnel management.” Goutos v. United States, 552 F.2d 922, 925 (Ct. Cl. 1976). However, these requirements have been applied in cases where our finding an appointment would confer substan- tive benefits, not the mere procedural rights at issue here. E.g., Bevans v. Office of Pers. Mgmt., 900 F.2d 1558 (Fed. Cir. 1990) (determining whether an employee of a proprietary corporation of the CIA met the definition of § 2105 to establish entitlement to survivorship benefits); Baker v. United States, 614 F.2d 263 (Ct. Cl. 1980) (decid- ing whether an employee of a state agency participating in a federal-state cooperative program funded by the Depart- ment of Labor met § 2105 to be entitled to creditable ser- vice for a retirement annuity). We have more generously defined the scope of appoint- ment for appeal rights where our refusal to void an ap- pointment would confer only the ability to contest the petitioner’s entitlement to an appointment before the Board, rather than conferring that entitlement. In Devine v. Sutermeister, 724 F.2d 1558, 1563 (Fed. Cir. 1983), we refused to hold that “an appointment obtained through ma- terial misrepresentation is void or voidable,” describing this argument as “border[ing] on the whimsical” because “[n]owhere in the [Civil Service Reform Act] can we find the statement or implication that a removal based upon an ap- pointment obtained through material misrepresentation is to be treated differently from any other basis for an adverse action.” Distinguishing the substantive from the proce- dural, we explained that “[i]t involves a quantum leap of logic to start with the premise that misrepresentation may properly form the basis for removal, a position that no one disputes, and then conclude that review of the penalty im- posed is therefore barred.” Id. at 1564. If a petitioner’s deliberate nondisclosure of criminal convictions does not render his appointment to a sensitive Case: 19-1118 Document: 47 Page: 12 Filed: 06/26/2020

position voidable and prevent review of the petitioner’s re- moval, Sutermeister, 724 F.2d at 1561, it would be unrea- sonable to hold that an agency’s blunders during the selection process—prior to the appointment, and through no fault of the appointee—would do so. Holding that Mr. Avalos has no appeal rights would put someone who was indisputably acting as a member of the competitive service for nearly a year in the same position as someone who had never stepped foot in a federal building. It would do so in a manner that begs the question, too—Mr. Avalos would lose his appeal rights based on the very facts that he dis- putes in the appeal, without any post-termination process to dispute those facts. We cannot agree that Congress in- tended the “removal” of “employees” to be construed in such a stilted manner when it passed the Civil Service Reform Act. 5

5 Our sister circuits agree that the Civil Service Re- form Act does not so narrowly limit the Board’s jurisdic- tion. See Elgin, 641 F.3d at 11 (noting, in the course of finding that the Board had exclusive jurisdiction over a challenge to the constitutionality of plaintiff’s removal, that “[t]he plaintiffs in this case were hired by the federal government, served (in some cases for many years) as its employees, exercised official authority, and were then ter- minated. The idea that Congress would implicitly exclude them from the category of former ‘employees’ entitled to seek redress under the [Civil Service Reform Act] . . . beg- gars belief.”); Miller v. United States, 717 F.2d 109, 113 (3d Cir. 1983) (reviewing a Board decision before the Federal Circuit took exclusive jurisdiction and finding that it “would not serve the putative purpose of section 7511 to deny [petitioner] review of the subsequent decision to re- voke” his conversion from a temporary appointment to a permanent appointment for which he was not eligible). Case: 19-1118 Document: 47 Page: 13 Filed: 06/26/2020

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B The government alternatively argues that the Board lacked jurisdiction because Mr. Avalos had not completed a one-year probationary period in the competitive service to accrue appeal rights. But Mr. Avalos need only show that he has completed more than one year of “current con- tinuous service under other than a temporary appoint- ment” to establish that he was an employee with the right to appeal his removal from HUD. McCormick, 307 F.3d at 1342 (emphasis added). Under 5 C.F.R. § 752.402, “current continuous service” means “a period of employment or service immediately pre- ceding an adverse action without a break in [f]ederal civil- ian employment of a workday.” This definition does not exclude service as a political appointee: even if political appointees have no right to appeal adverse actions to the Board, they remain part of the civil service and qualify as “[f]ederal civilian employ[ees]” under any reasonable inter- pretation of that term. See 5 U.S.C. § 2101 (“For the pur- pose of [title 5] . . . the ‘civil service’ consists of all appointive positions in the executive, judicial, and legisla- tive branches of the Government of the United States, ex- cept positions in the uniformed services . . . .”); Wilder v. Merit Sys. Prot. Bd., 675 F.3d 1319, 1322 (Fed. Cir. 2012) (finding OPM’s interpretation of § 7511—that “[f]ederal ci- vilian employment” as opposed to military service counts toward “current continuous service”—reasonable and con- sistent with the statute). After working at the USDA for almost eight years, Mr. Avalos resigned on September 17, 2016, and began working at HUD the next day. Given this years-long period of “fed- eral civilian employment,” Mr. Avalos had completed sig- nificantly more than one year of “current continuous service” at the time of his removal. As a result, Mr. Avalos had the right to appeal his removal to the Board; the Board had the jurisdiction to review it. Case: 19-1118 Document: 47 Page: 14 Filed: 06/26/2020

IV We next move to the merits, addressing Mr. Avalos’s arguments that the Board incorrectly found that HUD had justification for his removal. A The Administrative Judge found that “HUD had a rea- sonable basis to withhold certification that the appellant’s competitive service appointment was free from political in- fluence, particularly because [Ms.] Treviño was involved in preparing the second vacancy announcement that resulted in the appellant being the sole referred applicant on the certificate of eligibles.” Decision at 9. The record contains substantial evidence supporting the appearance of im- proper influence and HUD’s resultant refusal to certify to OPM that Mr. Avalos’s appointment was compliant with merit systems principles, such as Ms. Treviño’s choice to abandon the first certificate of eligibles rather than to ob- tain a pass-over request to consider candidates other than a preference-eligible veteran. See J.A. 440–42 (detailing the selection process and HUD’s concerns with the events), 621–22 (explaining how Ms. Treviño’s abandonment of the first certificate of eligibles created an appearance of impro- priety), 597–601 (describing how recordkeeping errors pre- vented HUD from concluding that Ms. Treviño recused herself). That Ms. Treviño recused herself from the selection process at some point does not require a different conclu- sion. HUD did not need to show that political influence was the only, or even the most likely, explanation for HUD’s mistakes in selecting Mr. Avalos. It need only show substantial evidence to support a finding that Mr. Avalos’s selection was not free from political influence. Moreover, the record need not indisputably support the government’s characterization of the selection process for the Board’s de- cision to merit affirmance, especially since the Administra- tive Judge heard live testimony from the witnesses. See In Case: 19-1118 Document: 47 Page: 15 Filed: 06/26/2020

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re Morsa, 713 F.3d 104, 109 (Fed. Cir. 2013) (“‘[W]here two different, inconsistent conclusions may reasonably be drawn from the evidence in record, an agency’s decision to favor one conclusion over the other is the epitome of a de- cision that must be sustained upon review for substantial evidence.’” (quoting In re Jolley, 308 F.3d 1317, 1329 (Fed. Cir. 2002))); Wright v. U.S. Postal Serv., 183 F.3d 1328, 1334 (Fed. Cir. 1999) (“[C]redibility determinations by the board are ‘virtually unreviewable.’” (quoting Hamb- sch v. Dep’t of Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986))). Substantial evidence supports the Administrative Judge’s finding that HUD could not reasonably certify Mr. Avalos’s appointment to be free from political influ- ence. We therefore affirm Mr. Avalos’s removal. B Mr. Avalos argues that the Administrative Judge le- gally erred by failing to make a finding on whether the re- moval promoted the efficiency of the service. See 5 U.S.C. § 7513(a) (“Under regulations prescribed by the Office of Personnel Management, an agency may take an action cov- ered by this subchapter against an employee only for such cause as will promote the efficiency of the service.”). In Mr. Avalos’s view, “no such finding can be made in this case because [he] was not removed for performance or conduct reasons.” Pet. Br. 42. But the law is not so narrow: “The agency must demonstrate a rational basis for its conclusion that a discharge will promote [the] efficiency [of the ser- vice]. . . . [A]gencies are vested by law with the discretion- ary authority and responsibility to determine what is necessary for their efficiency in discharging the missions assigned to them by Congress . . . .” Sanders v. U.S. Postal Serv., 801 F.2d 1328, 1333 (Fed. Cir. 1986); see also Hat- field v. Dep’t of Interior, 28 M.S.P.R. 673, 675 (1985) (“An adverse action promotes the efficiency of the service when the grounds for the action relate to either an employee’s Case: 19-1118 Document: 47 Page: 16 Filed: 06/26/2020

ability to accomplish his duties satisfactorily or to some other legitimate government interest.”). Additionally, § 7513(a) explicitly references OPM’s authority to prescribe regulations governing this decision, suggesting some defer- ence to OPM’s command for action is warranted. HUD had a rational basis for determining that Mr. Av- alos’s removal promotes the efficiency of the service. Alt- hough the Administrative Judge’s finding that HUD had a reasonable basis to refuse to certify Mr. Avalos’s appoint- ment as free from political influence does not explicitly ref- erence the efficiency of the service, any error arising from such an omission is harmless. By evaluating whether Mr. Avalos’s appointment was free from political influence, HUD—concededly, at OPM’s urging—was trying to certify that its hiring process complied with merit systems princi- ples. For example, merit systems principles dictate that Mr. Avalos’s selection had to rest “solely on the basis of rel- ative ability, knowledge, and skills, after fair and open competition,” giving applicants “fair and equitable treat- ment . . . without regard to political affiliation” and that the selection did not violate a veterans’ preference require- ment. 5 U.S.C. §§ 2301(b)(1)–(2), 2302(b)(11). These merit systems principles are not mere guidelines. “OPM’s goals of ensuring that political considerations not enter into the recruitment and selection process for competitive-service positions, and that selection occur only after fair and open competition, are based on the express will of Congress.” Beam v. Office of Pers. Mgmt., 66 M.S.P.R. 469, 476 (1995); see Hatfield, 28 M.S.P.R. at 676 (“[T]he government has a legitimate interest in protecting the competitive process.”). HUD did not even need to rely on OPM’s order to reg- ularize Mr. Avalos’s appointment to reasonably find that Mr. Avalos’s removal would promote the efficiency of the service once it was fully aware of the deficiencies in his ap- pointment. HUD’s legitimate interest in removing the ap- pearance of political influence in Mr. Avalos’s appointment (and that further investigation could not entirely dispel) Case: 19-1118 Document: 47 Page: 17 Filed: 06/26/2020

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promotes the efficiency of the service by improving compli- ance with merit systems principles. Cf. Hatfield, 28 M.S.P.R. at 675–76 (affirming a decision to remove an illegal appointee—notwithstanding the appointee’s ade- quate performance—because “the agency’s method of ap- pointing appellant was used to circumvent the competitive process, thereby violating merit systems principles” and re- moval of the employee therefore promoted efficiency of the service). Thus, the Administrative Judge’s finding that “HUD had a reasonable basis to withhold certification that [Mr. Avalos’s] competitive service appointment was free from political influence,” Decision at 9, serves as adequate basis to find that Mr. Avalos’s removal promotes the effi- ciency of the service. C Mr. Avalos argues that, even if the Administrative Judge’s finding supports the need to regularize Mr. Ava- los’s appointment, the Administrative Judge erred by al- lowing agency testimony to establish that removal was required to regularize the appointment “in place of legal authorization . . . .” Pet. Br. at 43–44. But authority to regularize an illegal appointment to promote the efficiency of the service necessarily implies authority to remove the illegal appointee. “We give wide berth to agency decisions as to what type of adverse action is necessary to ‘promote the efficiency of the service,’ provided that the agency’s de- cision bears some nexus to the reason for the adverse ac- tion.” Einboden v. Dep’t of the Navy, 802 F.3d 1321, 1325–26 (Fed. Cir. 2015). Given this discretion, HUD had no obligation to seek a variation as Mr. Avalos argues, whether or not HUD “thought OPM would deny it.” 6 Pet. Br. 44–45.

6 One other option for regularizing Mr. Avalos’s ap- pointment would have been to find retroactively a non- Case: 19-1118 Document: 47 Page: 18 Filed: 06/26/2020

Even assuming HUD had the obligation to attempt to regularize Mr. Avalos’s appointment through a variation, HUD had a reasonable basis to determine that such an at- tempt would be futile. To obtain a variation, HUD would have had to show that the variation “is within the spirit of the regulations” and would protect and promote the “integ- rity of the competitive service.” 5 C.F.R. § 5.1; see also Meeker v. Merit Sys. Prot. Bd., 319 F.3d 1368, 1376 (Fed. Cir. 2003) (setting forth the test for a valid variation). Mr. Avalos’s removal arose from HUD’s failure to observe procedures integral to the competitive hiring process, which itself forms the foundation of the integrity of the competitive service. Since HUD lacked a reasonable basis to conclude that Mr. Avalos’s appointment was free from political influence, it could also have reasonably deter- mined that OPM would not grant a variation. Doing so would undermine the integrity of the competitive service by excusing both HUD’s violation of OPM rules and regu- lations on the conversion of political appointees to the com- petitive service and HUD’s departure from hiring best practices set forth to promote merit systems principles. V We have considered the parties’ remaining arguments and find them unpersuasive. 7 Because the Board had

competitive appointment authority. Undisputed evidence shows that HUD tried to find a non-competitive authority for appointing Mr. Avalos to regularize his appointment, and the parties do not dispute that Mr. Avalos lacked any non-competitive eligibility. 7 The government concedes that, if Mr. Avalos were an employee under 5 U.S.C. § 7511—as we conclude—he is entitled to 16 days of pay because he was terminated with- out 30 days’ notice under 5 U.S.C. § 7513(b)(1). See Resp. Br. at 57 (citing Stephen v. Dep’t of the Air Force, 47 M.S.P.R. 672, 688–89 (1991)). Case: 19-1118 Document: 47 Page: 19 Filed: 06/26/2020

AVALOS v. HUD 19

jurisdiction to hear Mr. Avalos’s appeal and substantial ev- idence supports that HUD needed to “regularize” Mr. Ava- los’s appointment by removing him from his position, we affirm the Board’s decision. AFFIRMED No costs.