Court Holds Career SES Employee Has Property Interest, Denied Due Process
A few days ago, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision
in Maria Esparraguera v. Department of Army holding that Ms. Esparraguera had a
constitutionally protected property interest in her SES position and she was not afforded
sufficient due process with regard to her removal. Ms. Esparraguera was a career SES
employee who served as the Army’s highest ranking civilian personnel attorney. During her
2017 performance appraisal process, her supervisor recommended her for an Outstanding
rating. This rating was held in abeyance pending investigation by OSC into Esparraguera’s role
in a hiring decision made a few years earlier. The OSC recommended that disciplinary action be
taken against Ms. Esparraguera. The Army convened a special PRB and subsequently lowered
Ms. Esparraguera’s performance rating from Outstanding to Unsatisfactory, based only on a
summary of the OSC report provided by the Army. Ms. Esparraguera was not aware of the PRB
nor was she given an opportunity to respond until after the PRB issued its recommendation.
She was ultimately removed from her position and placed in another civil service position based
on the PRB’s recommendation and the OSC report.
Ms. Esparraguera requested an informal hearing before the MSPB pursuant to 5 U.S.C. §
3592(a)(2). The MSPB held such an informal hearing and referred the hearing record and
transcript to OSC, OPM, and the Army, but stated it could not issue a dispositive decision or
grant any relief. Ms. Esparraguera appealed the MSPB order to the Federal Circuit where it was
dismissed for lack of jurisdiction. She then filed suit in District Court, which found that Ms.
Esparraguera had no constitutionally protected property interest in her SES Status and declined
to address her due process argument. Ms. Esparraguera subsequently appealed the decision to
the United States Court of Appeals which reviewed her complaint de novo and reversed the
dismissal.
The Court’s analysis focused on two issues. First, whether Ms. Esparraguera had a
constitutionally protected property interest in her position as a career SES employee. Second, if
Ms. Esparraguera had a property interest in her position, was she provided sufficient due
process. The Court ultimately held that Ms. Esparraguera did have a constitutionally protected
property interest in position and that she was not afforded sufficient due process with regard to
her removal.
The Court first analyzed under what circumstances an employee has a constitutionally protected
property interest in her position, reasoning that such a determination hinges on the “extent of
any substantive limitations on the government’s authority to remove her.” The Court found that
at-will employees have no property interest in their position and that Government employees
that can be removed from their position for any non-discriminatory reason similarly do not have
a property interest in their position. In contrast, employees have a property interest in their
position when the government has established rules and understandings that “entitle the
employee to believe that she would lose her job only for a job-related reason.” The Court
concluded that Ms. Esparraguera did have a property interest in her SES status, reasoning that
“[The] language in Section 3592(a)(2) … is similar to language that our Court and others have
held creates a property interest by conditioning removal on poor job performance.” The Court
cited similar findings by the Federal Circuit that has found that a CSRA provision that allows
agencies to remove certain employees “only for such cause as will promote the efficiency of the
service,” creates a property interest as does removal under 5 U.S.C. §4303 (permitting removal
of certain employees for unacceptable performance). The Court then examined subchapter II of
5 U.S.C. §3592 (a)(2) and the Army’s regulations that set out its performance appraisal system.
The Court concluded first that detailed regulations enhance employee’s legitimate expectations
of continued employment because employees know they cannot be removed unless the perform
poorly on specified metrics and second that “the statutory provisions of the CSRA and the
Army’s implementing regulations provide sufficiently particularized standards or criteria to guide
the decisionmakers and create a property interest in a career SES position.”
The second issue the Court addressed was whether or not Ms. Esparraguera received
constitutionally adequate due process with regard to her removal from federal service. The
Court found that Ms. Esparraguera’s June 2019 hearing at the MSPB was not sufficient due
process because it took place nearly six months after her removal from the SES. The Court held
that this hearing was “no substitute for the pre-deprivation process to which Esparraguera was
constitutionally entitled” and that Ms. Esparraguera was entitled to at least notice and
opportunity to respond before her removal. The Court concluded, “We leave to the district court
on remand to determine whether greater procedures were required either before or after the
deprivation, including whether adherence to the CSRA’s existing procedural protections for
removals under Section 3592(a)(2)—which allegedly were not followed here—would satisfy the
Due Process Clause’s guarantee.”