Case: 19-2293 Document: 45 Page: 1 Filed: 12/04/2020
United States Court of Appeals for the Federal Circuit ______________________
MARIA ESPARRAGUERA, Petitioner
v.
DEPARTMENT OF THE ARMY, Respondent ______________________
2019-2293 ______________________
Petition for review of the Merit Systems Protection Board in No. CB-3592-18-0022-U-1. ______________________
Decided: December 4, 2020 ______________________
LUCAS M. WALKER, MoloLamken LLP, Washington, DC, argued for petitioner. Also represented by JEFFREY A. LAMKEN; MATTHEW JASON FISHER, Chicago, IL; CONOR DIRKS, DEBRA LYNN ROTH, Shaw, Bransford & Roth P.C., Washington, DC.
MOLLIE LENORE FINNAN, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, argued for respondent. Also repre- sented by JEFFREY B. CLARK, CLAUDIA BURKE, ROBERT EDWARD KIRSCHMAN, JR.; NADIA K. PLUTA, Office of Gen- eral Counsel, United States Office of Personnel Manage- ment, Washington, DC; JASON R. CHESTER, United States Case: 19-2293 Document: 45 Page: 2 Filed: 12/04/2020
Army Corps of Engineers, United States Department of the Army, Alexandria, VA. ______________________
Before PROST, Chief Judge, LOURIE and MOORE, Circuit Judges. PROST, Chief Judge. This is a case about jurisdiction. Maria Esparraguera was removed for performance reasons from her senior ex- ecutive position as the top labor lawyer at the Department of the Army (“Army”) and placed instead into another high- level position at the same agency but outside the Senior Executive Service (“SES”). On appeal, Ms. Esparraguera effectively seeks to obtain review of the Army’s removal de- cision and insists that she was deprived of constitutionally protected property and liberty interests without due pro- cess. By statute, Ms. Esparraguera cannot avail herself of the ordinary appellate provisions of the Merit Systems Pro- tection Board (“Board”) for this kind of removal. But she petitions for review of a Board order made under 5 U.S.C. § 3592(a), a narrow provision permitting a career senior ex- ecutive removed for performance reasons to instead “ap- pear and present arguments” at an “informal hearing.” The resulting order, however, simply forwarded Ms. Espar- raguera’s evidence and arguments to her employer, the Army, for consideration—as well as to the United States Office of Special Counsel (“OSC”) and Office of Personnel Management (“OPM”). For the reasons below, the ap- pealed order—styled an “Order Referring Record”—is not a “final order or decision” of the Board, as required for our appellate jurisdiction over her removal. And because we lack jurisdiction, we must dismiss this appeal. Case: 19-2293 Document: 45 Page: 3 Filed: 12/04/2020
ESPARRAGUERA v. ARMY 3
I A The federal civil service is divided into three parts: the competitive service, the excepted service, and the Senior Executive Service (“SES”). 5 U.S.C. §§ 2101a, 2102, 2103; United States v. Fausto, 484 U.S. 439, 441 n.1 (1988). This case concerns whether the Board can review the perfor- mance-based removal of employees from the SES. Because SES cases are rare, a brief background on the SES itself is useful. The Civil Service Reform Act of 1978 (“CSRA”) re- formed the federal civil service and “established a compre- hensive system for reviewing personnel action[s] taken against federal employees.” Elgin v. Dep’t of the Treasury, 567 U.S. 1, 5 (2012) (quoting Fausto, 484 U.S. at 455); see also Pub. L. No. 95-454, 92 Stat. 1111. The SES was de- signed to “provide the flexibility needed by agencies to re- cruit and retain the highly competent and qualified executives needed to provide more effective management of agencies and their functions, and the more expeditious ad- ministration of the public business.” CSRA, sec. 3(6), 92 Stat. at 1113. The statutory framework governing the SES is meant to “ensure that the executive management of the Government of the United States is responsive to the needs, policies, and goals of the Nation and otherwise is of the highest quality.” 5 U.S.C. § 3131. And its administra- tion is meant to “enable the head of an agency to reassign senior executives to best accomplish the agency’s mission,” to “maintain a merit personnel system free of prohibited personnel practices,” and to “ensure accountability for hon- est, economical, and efficient Government.” Id. § 3131(5), (9), (10). Senior executives are high-level federal employees who do not require presidential appointment but who nonethe- less exercise significant responsibility—including directing Case: 19-2293 Document: 45 Page: 4 Filed: 12/04/2020
organizational units, supervising work, and determining policy—and who may be held accountable for their projects or programs. Id. § 3132(a)(2); Fausto, 484 U.S. at 441 n.1. Occupying significant positions of trust, senior executives are selected, in no small part, for their leadership abilities. 1 The SES is but a small arm of the federal civil service: about 8,000 federal employees are among the SES, whereas more than 1.8 million are not. 2 There are two relevant mechanisms by which senior executives may be removed from the SES. First, senior ex- ecutives may be removed—not only from the SES but from federal employment entirely—for “misconduct, neglect of duty, malfeasance, or failure to accept a directed reassign- ment or to accompany a position in a transfer of function.” 5 U.S.C. § 7543(a). This pathway to removal includes pro- cedural protections like those available for covered employ- ees in the competitive and excepted services. Id. § 7543(b), (d); cf. id. §§ 7512, 7513. Second, senior executives may be removed from the SES under another set of procedures for “unsatisfactory” or “less than fully successful” perfor- mance. Id. §§ 3592(a), 4314(a)(3). Senior executives with “career” status who are removed in this way are
1 See, e.g., OPM, Senior Executive Service: Executive Core Qualifications, https://www.opm.gov/policy-data- oversight/senior-executive-service/executive-core-qualifi- cations/. 2 See OPM, Senior Executive Service Report 2017, at 3 (2018), https://www.opm.gov/policy-data-oversight/data- analysis-documentation/federal-employment-reports/re- ports-publications/ses-summary-2017.pdf; OPM, Federal Executive Branch Characteristics (FEBC) FY 2010–2018, at 5, https://www.opm.gov/policy-data-oversight/data-anal- ysis-documentation/federal-employment-reports/reports- publications/federal-executive-branch-characteristics- 2010-2018.pdf. Case: 19-2293 Document: 45 Page: 5 Filed: 12/04/2020
ESPARRAGUERA v. ARMY 5
guaranteed continued federal employment at the same pay grade. Id. § 3594. The loss of SES status, however, is ac- companied by the loss of other benefits—and, of course, prestige. See, e.g., id. §§ 3131(1), 5384, 6304(f). To gauge performance, each agency is required to es- tablish a performance appraisal system to rate senior exec- utives from “outstanding” to “unsatisfactory” in one or more “critical elements.” 5 U.S.C. §§ 4312, 4314(a); 5 C.F.R. § 430.305; see, e.g., J.A. 13. Performance ratings are ultimately made by an agency’s “appointing authority,” see 5 U.S.C. § 4314(c)(3); for the Army, final performance rating authority has been delegated to the Under Secre- tary. J.A. 6, 177–78. To assist in making an ultimate per- formance determination, each agency is also required to establish one or more performance review boards (“PRBs”). 5 U.S.C. § 4314(c)(1). During performance appraisal, a senior executive’s supervisor (or other rating official) pro- vides the PRB with an “initial appraisal.” Id. § 4314(c)(2). The senior executive is “provided a copy of the appraisal and rating . . . and is given an opportunity to respond in writing and have the rating reviewed by an employee . . . in a higher level in the agency.” Id. § 4312(b)(3); see also 5 C.F.R. § 430.311(b)(1); J.A. 55. The PRB then reviews any “response by the senior executive to the initial ap- praisal” and may “conduct such further review as the [PRB] finds necessary.” 5 U.S.C. § 4314(c)(2). The PRB then “make[s] recommendations to the appropriate ap- pointing authority” as to the senior executive’s perfor- mance. Id. § 4314(c)(1) (emphasis added). OPM is tasked with ensuring that each agency’s performance appraisal system is adequate. See 5 U.S.C. § 4312(c)(1), (3); 5 C.F.R. § 430.314. The final rating is significant: its consequences range from performance awards to removal. See 5 U.S.C. § 4314(b)(2)–(4). Nonetheless, a senior executive “may not appeal any appraisal and rating under any performance appraisal system.” Id. § 4312(d). Case: 19-2293 Document: 45 Page: 6 Filed: 12/04/2020
B 1 As Chief Counsel of the Army’s Communication-Elec- tronics Command (“CECOM”), Ms. Esparraguera facili- tated the selection of Rick Bechtel to replace a retiring division chief. The resulting chain of events led to her re- moval from the Senior Executive Service and, ultimately, to this appeal. In 2014, a business-law division chief within CECOM announced his intent to retire. The resulting open position required a candidate to have had at least one year of expe- rience at the GS-14 grade. The selection committee, chaired by Ms. Esparraguera, interviewed eleven candi- dates to fill the resulting vacancy. Mr. Bechtel was among Ms. Esparraguera’s three favored finalists after the inter- view. But unlike the other ten candidates, Mr. Bechtel was a few months shy of the required time at GS-14, having been in his prior position for less than one year and at CECOM itself only since 2013. The other ten interviewed candidates were qualified. No hiring decision, however, was made at that time. Rather, Ms. Esparraguera proposed an unorthodox—in- deed, unprecedented—post-interview rotation plan for the final selection. See J.A. 273. Under the plan, each of the three finalists, including Mr. Bechtel, would act as the di- vision chief for thirty days, and the decision would be made afterward. In three decades of service, Ms. Esparraguera had never used a post-interview rotation plan to hire any- one, nor was she aware of anyone in the Army ever using such a plan. J.A. 250–51. Ms. Esparraguera consulted with human-resources specialists, who advised her both that the highly unusual trial rotation would unfairly advantage Mr. Bechtel (as he would then satisfy the time-in-grade requirement) and likely result in complaints, and that a time-in-grade waiver Case: 19-2293 Document: 45 Page: 7 Filed: 12/04/2020
ESPARRAGUERA v. ARMY 7
for Mr. Bechtel would not be approved (as there was no shortage of qualified candidates). J.A. 239–40, 245–48. Further, Ms. Esparraguera’s deputy chief counsel advised that the selection of Mr. Bechtel, who lacked substantial CECOM experience, would “tear the division apart.” J.A. 269. As OSC later explained after investigating, a ro- tation would “delay[] a permanent appointment in an im- portant leadership position and force[] both employees and customers to adapt to three leadership changes in a three- month span.” J.A. 252. Nonetheless, the trial rotation went forward at Ms. Es- parraguera’s behest. This three-month delay in selection meant that, by early 2015, Mr. Bechtel finally satisfied the time-in-grade requirement. After evaluation under a ru- bric designed and applied by Ms. Esparraguera, see J.A. 269, Mr. Bechtel was selected and the other two final- ists were passed over. Before long, two complaints were filed with OSC alleging that Ms. Esparraguera had com- mitted a prohibited personnel practice. J.A. 244. Shortly thereafter, Ms. Esparraguera was reassigned within the SES, becoming the Army’s senior-most attorney on civilian employment matters. 2 OSC investigated the allegations. It concluded that it “believe[d] Ms. Esparraguera’s actions violated 5 U.S.C. § 2302(b)(6).” J.A. 241; see 5 U.S.C. § 2302(b)(6) (classify- ing as prohibited personnel practice the granting of “any preference or advantage not authorized by law, rule, or reg- ulation to any . . . applicant . . . for the purpose of improv- ing . . . the prospects of any particular person for employment”). In October 2016, OSC sent the Army a sum- mary of its findings. J.A. 238–41. A copy of the summary was provided a few weeks later to Ms. Esparraguera through her supervisor. J.A. 43. In the summary, OSC recommended corrective and disciplinary action. J.A. 241. Case: 19-2293 Document: 45 Page: 8 Filed: 12/04/2020
In February 2018, OSC sent another report to the Sec- retary of the Army, noting that earlier attempts “to resolve this matter” had “not been successful.” J.A. 242. At greater length, the report asserted that there was “no credible busi- ness reason” for the rotation plan, which was a “dramatic departure from past practice.” J.A. 251. Finding that the purpose of the plan was to “provide Bechtel . . . an unfair advantage,” OSC again recommended corrective and disci- plinary action. J.A. 254; see also J.A. 115–16, 242. By the time this report was sent, the performance ap- praisal process for fiscal year 2017 had already begun. Ms. Esparraguera received positive initial ratings, but in early 2018 she received a letter stating that the Army was holding her final rating in abeyance due to an ongoing in- vestigation. J.A. 255. As a result of OSC’s reporting, the Army had begun an internal investigation, and it eventu- ally interviewed Ms. Esparraguera in May 2018. J.A. 43–44, 256–57, 282. After its investigation, the Army reprimanded Ms. Esparraguera, explaining that her “deci- sion to change the manner of competition in the middle of the hiring process was harmful to morale and predictably created a perception of unfairness.” J.A. 38; see also J.A. 631 (“Though the written reprimand mentioned that OSC’s report found a prohibited personnel practice as back- ground information, [it] did not rely on that particular find- ing . . . , and [the] reprimand is based not on your intent but on your actions.”). The reprimand was temporary, to be removed from her file after one year. J.A. 39. The Army, however, also convened a special PRB to make a recommendation to the Under Secretary about Ms. Esparraguera’s final performance rating. The PRB recommended a “level 1” unsatisfactory-performance rat- ing for leadership—and only for leadership—because of the Case: 19-2293 Document: 45 Page: 9 Filed: 12/04/2020
ESPARRAGUERA v. ARMY 9
rotation scheme. J.A. 6, 13. 3 The PRB apparently did not make its rating known to Ms. Esparraguera before for- warding its recommendation to the Under Secretary. On September 4, 2018, the Under Secretary adopted the recommendation and notified Ms. Esparraguera that she was being removed from the SES for performance rea- sons—though not from federal service entirely. J.A. 6–8. The Under Secretary concurred with OSC’s findings, which he felt “completely undermine[d] [her] credibility to serve” as “the Army’s chief personnel attorney” and noted that he had “lost confidence in [her] ability to successfully perform [her] duties as an Army Executive.” J.A. 6. Because Ms. Esparraguera was a career appointee in the civil ser- vice, she was placed into a GS-15 position with the Army— the highest pay grade in the General Schedule. 4 J.A. 6–7.
3 Under the Army’s SES performance appraisal sys- tem, a rating from level 1 (unsatisfactory) to level 5 (out- standing) is assigned to each of five critical elements of performance. The overall performance rating is calculated from a weighted average of the five, but if any one element is “unsatisfactory,” the overall performance rating is also “unsatisfactory.” See J.A. 13–18. 4 Notably, the Army did not remove Ms. Esparragu- era for “misconduct” under 5 U.S.C. § 7543. That would be a different case. Instead, the Army removed Ms. Esparraguera for poor performance under § 3592. See also id. § 4314(b)(3). Alt- hough such a removal is not accompanied by a statutory or regulatory right to an appeal, 5 U.S.C. §§ 3592(a), 4312(d); 5 C.F.R. § 359.504; see also infra Section II.A, the decision to remove her in this manner guaranteed Ms. Esparragu- era placement into an upper-echelon civil service position with no loss in current pay and with retention of career tenure. 5 U.S.C. §§ 3592(a), 3594; J.A. 6–7. Further, a per- formance-based removal lacks a misconduct charge’s Case: 19-2293 Document: 45 Page: 10 Filed: 12/04/2020
3 At the Army’s invitation, Ms. Esparraguera submitted a detailed written request for reconsideration. J.A. 442. In that request, she explained at length her disagreement with the PRB, with OSC’s account, and with the Army’s summary of the findings, as well as her subjective intent in devising the rotation plan. J.A. 103–07, 430–32. The Un- der Secretary denied the request. J.A. 775. Ms. Esparra- guera also submitted an administrative grievance of her reprimand, which was likewise denied. J.A. 471, 630–31. Ms. Esparraguera then requested an informal hearing under 5 U.S.C. § 3592(a)(2), which entitled her to “appear and present arguments” before an “official designated by the Board.” At that hearing, Ms. Esparraguera submitted a slew of exhibits designated A through UU into evidence and read a prepared statement into the record. J.A. 3. The Army neither presented evidence nor objected to the entry of these exhibits. J.A. 3. Ms. Esparraguera did not ex- pressly ask the Board to review her removal—and it did not. The Board official issued the Order Referring Record at issue in this case, which summarized the proceedings and referred the transcript and exhibits to the Army, as
opprobrium. See Harrison v. Bowen, 815 F.2d 1505, 1518 (D.C. Cir. 1987). It is true that the same conduct might merit either re- moval pathway. But we have previously recognized that the agency may elect to pursue either. Berube v. Gen. Servs. Admin., 820 F.2d 396, 398–99 (Fed. Cir. 1987), su- perseded by statute on other grounds as recognized in Lachance v. Devall, 178 F.3d 1246, 1253 (Fed. Cir. 1999). Importantly, the government’s choice to pursue a poor per- formance rating protects the employee from wholesale re- moval from federal employment. Case: 19-2293 Document: 45 Page: 11 Filed: 12/04/2020
ESPARRAGUERA v. ARMY 11
well as to OSC and OPM. J.A. 2; 5 C.F.R. § 1201.144(c). The Army did not change its mind. This appeal followed. II On appeal, Ms. Esparraguera alleges due process vio- lations surrounding her performance appraisal and re- moval—including the Army’s purported failure to follow certain required procedures related to her notice and op- portunity to respond—and contends that the Board should have been empowered to review her removal. The govern- ment contends that the Board cannot review her removal, that there was no deprivation without due process, and that we lack jurisdiction over this appeal. We have jurisdiction to determine our own jurisdiction. E.g., Rosado v. Wyman, 397 U.S. 397, 403 n.3 (1970). But we have jurisdiction over the Board only if there is a “final order or final decision” of the Board that has “adversely af- fected or aggrieved” an employee. 28 U.S.C. § 1295(a)(9); 5 U.S.C. § 7703. As we explain below, here our jurisdiction depends on whether the Board had jurisdiction to review Ms. Esparraguera’s removal—because if it did not, the ap- pealed order would not have been a “final order or final de- cision” that “adversely affected or aggrieved” her. In short, if the Board cannot review her removal, neither can we. A We first consider whether Ms. Esparraguera’s removal was reviewable by the Board. For the reasons below, we conclude that the Board cannot review the removal of an SES employee in an informal hearing under § 3592. The Board has “only that jurisdiction conferred on it by Congress.” Dow v. Gen. Servs. Admin., 590 F.3d 1338, 1341–42 (Fed. Cir. 2010) (quoting Cruz v. Dep’t of the Navy, 934 F.2d 1240, 1243 (Fed. Cir. 1991) (en banc)); see, e.g., 5 U.S.C. § 7701(a) (appellate jurisdiction over employees’ actions). A career appointee removed from the SES for “less than fully successful executive performance” is Case: 19-2293 Document: 45 Page: 12 Filed: 12/04/2020
entitled upon request to an “informal hearing” before a Board-designated official. 5 U.S.C. § 3592(a). We must ac- cordingly determine whether, through § 3592, Congress conferred the Board with appellate jurisdiction over the re- moval itself. 5 We begin with the text, which reads, in relevant part: [T]he career appointee shall, at least 15 days before the removal, be entitled, upon request, to an infor- mal hearing before an official designated by the Merit Systems Protection Board at which the ca- reer appointee may appear and present arguments, but such hearing shall not give the career appoin- tee the right to initiate an action with the Board under section 7701 of this title, nor need the
5 Arguing in favor of jurisdiction, Ms. Esparraguera points to the Board’s regulations conferring original juris- diction over “removals of career appointees from the Senior Executive Service for performance reasons.” Appellant’s Br. 58 n.13 (citing 5 C.F.R. §§ 1201.2, 1201.121(a)). But these regulations concern the Board’s authority to hold the informal record-collecting hearing itself, not to review an- other agency’s actions. This is evident from the Board’s re- lated procedural regulations, which spell out the nature of the informal hearing. See 5 C.F.R. §§ 1201.143–.145, 1201.2(b). What Ms. Esparraguera seeks is what the Board calls appellate jurisdiction, which the regulations do not confer in this case. See id. § 1201.3(a)(10) (not listing such removals among the Board’s SES-related appellate juris- diction). It is under the “appellate jurisdiction” label that the Board’s regulations place review of an agency’s removal decisions generally. See id. § 1201.3. Regardless, the reg- ulations could not confer jurisdiction beyond what the stat- ute grants. Case: 19-2293 Document: 45 Page: 13 Filed: 12/04/2020
ESPARRAGUERA v. ARMY 13
removal action be delayed as a result of the grant- ing of such hearing. 5 U.S.C. § 3592(a). The text frames the “informal hearing” as an oppor- tunity to be heard, not an adversarial forum. By statute, the appointee is expressly entitled only to “appear and pre- sent arguments.” Id. The provision makes no mention of any other procedural options, such as the right to represen- tation or the right to call witnesses. It provides no right to compel the agency to appear. Further, the hearing “shall not give the career appointee the right to initiate an action with the Board under [5 U.S.C. §] 7701,” id., which is the general provision that governs all appellate proceedings for covered employees for “any action” that “is appealable to the Board,” id. § 7701(a). 6 That short provision is all the CSRA has to say about informal hearings for performance-based SES removals. In contrast, the CSRA speaks extensively on the substance and procedure of appeals of other adverse actions. See, e.g., 5 U.S.C. § 7701(a) (providing for a right of action for em- ployee as to “any action which is appealable”), (b)(3) (ex- pressly providing the Board authority under § 7701 to mitigate an adverse action), (c) (expressly delineating standards of review), (d) (explaining intervention rights), (e) (spelling out finality of decisions), (f)–(h) (permitting Board control of case consolidation, attorney fees, and
6 Ms. Esparraguera suggests that our appellate ju- risdiction under § 7703 is not limited to Board orders made under § 7701. Reply Br. 5–6. That much is true. Horner v. MSPB, 815 F.2d 668, 671 (Fed. Cir. 1987). But for us to review the Army’s removal, the Board must have been able to do so too. And Ms. Esparraguera has pointed to no pro- vision outside § 7701 conferring the Board with appellate jurisdiction over agency removal decisions. Case: 19-2293 Document: 45 Page: 14 Filed: 12/04/2020
settlement), (k) (empowering the Board to promulgate reg- ulations to carry out the purpose of the section); id. § 7543(d) (expressly providing that an SES employee re- moved for misconduct is “entitled to appeal” substance of removal); id. § 3595(c) (expressly providing that SES em- ployee removed under reduction in force is “entitled to ap- peal” procedural compliance of removal). Indeed, the “exhaustive[]” structure of the “comprehen- sive system” of review established by the CSRA is instruc- tive. See Elgin, 567 U.S. at 5, 11. The CSRA “prescribes in great detail the protections and remedies applicable” to adverse personnel actions, “including the availability of ad- ministrative and judicial review.” Fausto, 484 U.S. at 443. The Supreme Court has previously stated that, given the “comprehensive nature of the CSRA,” the fact that Con- gress “[did] not include [certain employees] in provisions for administrative and judicial review” was a “considered congressional judgment” that review on the merits was un- available. Id. at 448–49. We see no reason that Congress would use but two words—“informal hearing”—to give the Board review au- thority, thereby leaving the Board in the dark about its pro- cedure, powers, and standard of review—details that it took great pains to spell out for other kinds of reviewable actions. Indeed, if the words of § 3592 were enough to im- bue review power, we do not see why § 7701 would then be so detailed, or why Congress would have needed to affirm- atively spell out in other instances what the Board could review. For example, it is significant that the CSRA expressly gave non-executives the right to appeal performance-based actions, spelling out specific procedural requirements, but provided no parallel provision for senior executives. E.g., 5 U.S.C. § 4303(b) (providing for attorney representation, notice of specific instances of unacceptable performance, opportunity to answer orally in writing, and right to Case: 19-2293 Document: 45 Page: 15 Filed: 12/04/2020
ESPARRAGUERA v. ARMY 15
written decision specifying instances of unacceptable per- formance), (e)–(f) (specifying appeal rights). Similarly, the CSRA expressly conferred on senior executives removed for misconduct the right to appeal, with similar requirements. Id. § 7543(b), (d). Further, Congress chose in the CSRA to make PRB performance ratings simply a “recommenda- tion” to the appointing authority and expressly made final performance ratings unappealable. Id. §§ 4312(d), 4314(c). Accordingly, we conclude that the Board lacks the author- ity to review the substance of the removal. Nor does the Board have the authority to review the removal for procedural compliance. Elsewhere in the CSRA, Congress expressly made procedural compliance re- viewable for career senior executives who were removed pursuant to a reduction in force. See 5 U.S.C. § 3595(c). That the CSRA says nothing about reviewability of proce- dural compliance for performance appraisals confirms that Congress did not provide for Board review. Accordingly, the “exhaustive” structure of the CSRA fa- vors unreviewability. Accord Fausto, 484 U.S. at 448–49. Ms. Esparraguera makes two arguments about the text. She argues that the ordinary meaning of “hearing” is “a setting in which an affected person presents arguments to a decision-maker,” and that we should therefore con- strue “informal hearing” as an “adjudicatory hearing at which the agency carries the burden of proving its charges before a neutral adjudicator empowered to overturn the agency’s action.” Appellant’s Br. 54–55. We disagree. This is too much to divine from two words, especially in view of the otherwise exhaustive detail elsewhere in the CSRA. Second, Ms. Esparraguera contends that because a post-removal hearing is “widely understood to be a funda- mental feature of due process,” we should “construe a stat- utory right to a post-removal ‘hearing’ as providing a hearing that satisfies the requirements of due process.” Appellant’s Br. 55 (emphasis omitted). But this argument Case: 19-2293 Document: 45 Page: 16 Filed: 12/04/2020
presupposes the deprivation of a due process interest—and specifically one that would necessitate an adjudicatory hearing. For the reasons explained above and below, we cannot reach Ms. Esparraguera’s due process arguments. But even if Ms. Esparraguera were correct about this in- terest and its deprivation, the CSRA is “comprehensive.” Elgin, 567 U.S. at 10–11; Fausto, 484 U.S. at 448. And the text and structure of the CSRA are clear enough that we could not, as a reasonable remedy, expand the Board’s lim- ited jurisdiction where Congress foreclosed review. In summary, Congress did not make this kind of re- moval reviewable by the Board. 7 Accordingly, we hold that a Board official in a § 3592 hearing has no authority to re- view an SES appointee’s removal. B The jurisdictional question for us remains as follows: given that the Board lacks review authority under § 3592, is the Order Referring Record a “final order or decision” of the Board by which Ms. Esparraguera was “adversely af- fected or aggrieved”? We conclude that it is not. We are a court of limited jurisdiction. Morris v. Off. of Compliance, 608 F.3d 1344, 1346 (Fed. Cir. 2010) (“The ju- risdiction of this court is ‘limited to those subjects encom- passed within a statutory grant of jurisdiction.’” (quoting Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701 (1982))). And our jurisdiction over the Board is restricted to an appeal brought under 5 U.S.C. § 7703 from “a final order or final decision.” 28 U.S.C.
7 We are not the first to say so. The Board and at least one district court have already held that performance- based SES removals are unreviewable by the Board. See Greenhouse v. Geren, 574 F. Supp. 2d 57, 67 (D.D.C. 2008) (citing Charrow v. Fed. Ret. Thrift Inv. Bd., 102 M.S.P.R. 345, 349 (M.S.P.B. 2005)). Case: 19-2293 Document: 45 Page: 17 Filed: 12/04/2020
ESPARRAGUERA v. ARMY 17
§ 1295(a)(9). In turn, § 7703 requires that an “employee or applicant” be “adversely affected or aggrieved by a final or- der or decision” of the Board.” 5 U.S.C. § 7703(a). Ms. Esparraguera argues that because the Order Re- ferring Record was the last action from the Board related to her removal, it was “final.” But “final” does not merely mean “last in time.” We apply the “final judgment rule” to Board appeals. Weed v. Soc. Sec. Admin., 571 F.3d 1359, 1361 (Fed. Cir. 2009) (citing 5 U.S.C. § 7703; 28 U.S.C. § 1295(a)(9)). That rule provides that an order or decision is ordinarily “final” only if it “ends the litigation on the merits and leaves noth- ing for the court to do but execute the judgment.” Id. (quot- ing Allen v. Principi, 237 F.3d 1368, 1372 (Fed. Cir. 2001)); see also Kaplan v. Conyers, 733 F.3d 1148, 1153–54 (Fed. Cir. 2013) (en banc) (“[T]his court lacks jurisdiction to review non-final Board decisions.”). 8 Finality is a “his- toric characteristic of federal appellate procedure.” Flana- gan v. United States, 465 U.S. 259, 263 (1984) (quoting Cobbledick v. United States, 309 U.S. 323, 324 (1940)). The Order Referring Record was not “final” with re- spect to Ms. Esparraguera’s removal. As discussed, the Board was not empowered under § 3592 to review Ms. Es- parraguera’s removal, and the proceeding bore none of the adversarial hallmarks of adjudication. Rather, the Board simply acted as a ministerial record-developing adjunct to the Under Secretary, enabling Ms. Esparraguera to enter her arguments and evidence into the record for the Under Secretary’s ultimate consideration. See also, e.g., Morrison
8 Alternatively, a “small class” of collateral orders are “final” for review purposes where they “resolve im- portant questions separate from the merits.” Kaplan, 733 F.3d at 1153–54. Ms. Esparraguera makes no argu- ment that this is such an order. Case: 19-2293 Document: 45 Page: 18 Filed: 12/04/2020
v. Dep’t of the Navy, 876 F.3d 1106, 1109–11 (Fed. Cir. 2017) (deeming order not “final” where the Board simply forwarded a case to another decisionmaker for further pro- ceedings). The Order therefore did not dispose of the “case” of her removal; that case was never before the Board. 9 Finally, Ms. Esparraguera argues that the presump- tion in favor of judicial review mandates that she have a forum for her constitutional challenge. And she argues that, under Elgin, judicial review must occur in the Federal Circuit in cases involving CSRA-related removals. Appel- lant’s Br. 3–4; Reply Br. 14 n.3. We are not persuaded that Elgin requires (or even em- powers) this court to review the due process question under these circumstances. To be sure, Elgin held that we, as opposed to district courts, have jurisdiction over constitu- tional issues associated with certain challenges to adverse actions under the CSRA. See 567 U.S. at 11–12, 18–19, 21. But that holding was premised on the petitioners in that
9 Ms. Esparraguera also argues that she was “ad- versely affected or aggrieved” by the Order Referring Rec- ord because it did not “grant relief from her removal.” See Appellant’s Br. 2. But the Board had no power to review her removal in any capacity. A party cannot be “adversely affected or aggrieved” within the meaning of the statute by the Board’s failure to grant relief that it had no authority to grant. The government also suggests that Ms. Esparra- guera forfeited her arguments by not affirmatively asking the Board official during her hearing to rule on the merits or correct a due process violation—in other words, that she cannot be “adversely affected or aggrieved” by the order be- cause she did not expressly ask for the relief she now seeks. Appellee’s Br. 27–29. Our futility doctrine complicates for- feiture, see Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320, 1339 (Fed. Cir. 2019), but we need not reach that question. Case: 19-2293 Document: 45 Page: 19 Filed: 12/04/2020
ESPARRAGUERA v. ARMY 19
case being “covered employees challenging a covered ad- verse employment action” under the CSRA—which meant that the Board could review the challenged action, and that this court could review the Board’s decision and the accom- panying constitutional issues. Id. at 21. In other words, under Elgin, the CSRA channels judicial review of an ad- verse action exclusively through the Federal Circuit only if it first channels review through the Board. In contrast, here the Board had no jurisdiction over the removal and we have no “final order” to review. Cf. id. at 18 (noting Federal Circuit’s authority to decide constitu- tionality “in an appeal from agency action within the MSPB’s jurisdiction”). And as we have discussed, our ju- risdiction is limited by statute: we cannot decide a case simply because a claim arises under the Constitution. 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. At any rate, we also doubt that our lack of jurisdiction leaves Ms. Esparraguera’s constitutional claims unreview- able. We observe, as does the government, that district courts have indeed been willing even after Elgin to hear constitutional challenges where Board review of an adverse employment action is unavailable. E.g., Coleman v. Napo- litano, 65 F. Supp. 3d 99, 103–05 (D.D.C. 2014) (holding that a district court had jurisdiction to hear plaintiff’s due process claim where Board review was unavailable under the CSRA); Davis v. Billington, 51 F. Supp. 3d 97, 106–09 (D.D.C. 2014) (same); Lamb v. Holder, 82 F. Supp. 3d 416, 422–24 (D.D.C. 2015) (same); accord Semper v. Gomez, 747 F.3d 229, 241–42 (3d Cir. 2014) (concluding that a “fed- eral employee who could not pursue meaningful relief through a remedial plan that includes some measure of meaningful judicial review” would not be precluded by the CSRA from bringing a district court constitutional chal- lenge); see also Webster v. Doe, 486 U.S. 592, 603–04 (1988) (holding that a constitutional claim was reviewable in Case: 19-2293 Document: 45 Page: 20 Filed: 12/04/2020
district court even where the substance of the underlying termination decision was not). To be clear, our holding to- day does not depend on whether judicial review might be available elsewhere. That is not the question before us. The question today concerns only the scope of our narrow statutory grant of jurisdiction. And our jurisdiction has clearly been constrained by Congress. *** In summary, we hold that, with respect to her removal, Ms. Esparraguera was not adversely affected or aggrieved by a “final order or final decision of the Merit Systems Pro- tection Board.” See 28 U.S.C. § 1295(a)(9); 5 U.S.C. § 7703(a)(1). We therefore lack jurisdiction over the due process question. III We have considered Ms. Esparraguera’s remaining ar- guments and find them unpersuasive. For the reasons dis- cussed above, the Board lacks jurisdiction to review Ms. Esparraguera’s removal and, accordingly, so do we. We therefore dismiss this appeal without reaching the due process question. DISMISSED