Debra L. Roth

Represented career senior executive in Esparraguera v. Department of Army, 101 F.4th 28 (2024), a due process challenge to performance-based demotion from Senior Executive Service to General Schedule position, culminating in landmark decision of the U.S. Court of Appeals for the D.C. Circuit.  This landmark decision held that career SESers have a property right in their SES appointment and cannot be demoted to the General Schedule in a performance action without due process.  Prior to this landmark decision, career senior executives who were subjected to performance actions were demoted from their SES position to a General Schedule position without any due process.  In holding that an SES appointee had a protected property interest in her career SES status, the D.C. Circuit held a career senior executive could not be demoted to the General Schedule through a performance action without constitutionally adequate procedures consistent with the Fifth Amendment Due Process Clause, including notice and an opportunity to respond before the action takes effect. Ms. Roth represented the SES appointee along with attorneys from MoloLamken LLP.

Court appointed Amicus Curiae in Santos v. National Aeronautics & Space Admin., 990 F.3d 1355 (Fed. Cir. 2021) (determining for the first time that an agency must prove the justification for the institution of a performance improvement plan when the agency predicates removal on the employee's unacceptable performance). 

Lovelien, et al. v. United States, et al., 422 F.Supp.3d 341 (D.D.C. 2019) (granting motion to dismiss Bivens suit bringing First and Fourth Amendment claims against BLM Special Agent-in-Charge of the 2014 Bunkerville, NV standoff); aff’d 853 F.App’x 676 (D.C. Cir. 2021). 

Co-lead counsel for Petitioner Helman in Helman v. Department of Veterans Affairs, 856 F.3d 920 (2017) (determining that portions of newly enacted personnel statute that prohibited presidentially appointed Members of the Merit System Protection Board from reviewing administrative judges' decisions violated the Appointments Clause to the U.S. Constitution). 

Represented Respondent Coffman in Special Counsel v. Coffman, 124 M.S.P.R. 130 (2017) (holding that the OSC is required to prove employee acted intentionally in committing allegedly unlawful hiring practices and not when the evidence only established negligence or error; and finding that Petitioner was selectively prosecuted by OSC). 

Co-represented Associate BOP Warden in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) in a landmark Bivens decision that called an end to an era in which the judiciary decides whether to extend a Bivens cause of action to “a new context” absent clear legislative intent to do so. (Declined to extend Bivens to the federal officials’ detention policy of foreign nationals detained as part of the U.S. government’s response to the September 11th attacks because the claims arose in a new Bivens context).

Rubens v. Department of Veterans Affairs, MSPB No. PH-0707-16-0151-J-1, 2016 WL 526831 (Feb. 1, 2016) (reversing Deputy Secretary’s decision under newly enacted personnel statute to demote a Senior Executive Service Director to a General Schedule position).

Co-represented Associate BOP Warden in Turkmen v. Hasty, 789 F.3d 218 (2d Cir. 2015), judgment rev'd in part, vacated in part sub nom. Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (precursor to Ziglar v. Abbasi: SCOTUS case addressing whether claims of improper treatment in confinement made by foreign nationals detained as part of the U.S. government’s response to the September 11th attacks could be brought in a Bivens cause of action). 

Prouty v. General Services Administration, 122 M.S.P.R. 117 (2014) (holding that the agency failed to produce evidence that GSA Senior Executives knew or had reasons to know of purchasing decisions made in the planning of an agency conference that provoked GSA conference scandal), citing Prouty v. Gen. Servs. Admin., M.S.P.B. Docket No. DE-0752-12-0396-I-1 (Mar. 11, 2013) (finding that OIG report constitutes summary, unsworn hearsay and is insufficient to support charges when the agency fails to submit evidence underlying the report).

Co-represented INS District Director for New York City in Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (en banc), cert. denied, 560 U.S. 978 (2010) (declining to recognize Bivens against the government officials who were allegedly complicit in the removal of a foreign national from the United States and his subsequent confinement in Syria).