Federal Circuit: Agencies Can Remove Burrowed Employees to Correct Illegal Appointments
On June 26, 2020, the United States Court of Appeals for the Federal Circuit held that the removal of illegally appointed employees who had otherwise not committed misconduct or performed poorly still promoted the efficiency of the service.
In 2009, the United States Senate confirmed a nominee for political appointment to the position of Under Secretary for Agriculture for Marketing and Regulatory Programs at the United States Department of Agriculture, a Level III Senior Executive schedule position in the excepted service. In September 2015, the political appointee applied for a GS-15 Field Office Director position after HUD posted an announcement for the position. He did not make the certificate of eligibles. Only a preference-eligible veteran made it, but the official reviewing the candidates was dissatisfied with the applicant pool, and sought to broaden the applicant pool, though she did not request a pass-over to decline selection of the preference-eligible veteran. The certificate expired, and the position was announced again. This time, the appointee was the only candidate listed on the certificate and was selected for the competitive service position.
In April 2017, the Office of Personnel Management discovered the appointment during its regular review of appointments to the competitive service, and found that the appointment was made without OPM approval. OPM instructed HUD to “regularize” the appointment, because OPM would not have approved HUD’s appointment in its current form. To regularize an appointment, an agency must “correct” the illegal component of the appointment. However, HUD officials assigned to investigate and regularize the appointment determined they could not correct the appointment, and instead proposed and sustained the appointee’s termination.
The appointee appealed his removal to the Merit Systems Protection Board, where an Administrative Judge found that preponderant evidence showed that “HUD’s only option to comply with OPM’s order to ‘regularize’ Mr. Avalos’s appointment was to remove him,” because the Agency could not reasonably certify the appointment to be free from political influence.
The employee appealed the administrative judge’s decision to the United States Court of Appeals to the Federal Circuit, which affirmed that substantial evidence supported the administrative judge’s finding.
However, the appointee also argued that the Administrative Judge erred by failing to make a finding on whether the removal promoted the efficiency of the service. The appointee’s brief argued that no such finding could be made, because the appointee was not removed for performance or conduct reasons. But the appeals court observed that the “law is not so narrow,” and that an agency must simply “demonstrate a rational basis for its conclusion that a discharge will promote [the] efficiency [of the service].” In support of its finding that the appointee’s removal promoted the efficiency of the service, the appeals court cited Hatfield v. Dep’t of the Interior, 28 M.S.P.R. 673, 675 (1985), which held that “[a]n adverse action promotes the efficiency of the service when the grounds for the action relate to either an employee’s ability to accomplish his duties satisfactorily or to some other legitimate government interest.”
The appeals court held that HUD “had a rational basis for determining that [the appointee’s] removal promotes the efficiency of the service,” because it had a legitimate interest in removing the appearance of political influence in the appointment, and so promoted the efficiency of the service by improving compliance with merit systems principles.
For the above stated reasons, the United States Court of Appeals for the Federal Circuit affirmed the appointee’s removal.
Read the full case: Avalos v. Department of Housing and Urban Development.
This case law update was written by Conor D. Dirks, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.