Federal Circuit: SES-Specific Carveout Limits MSPB Post-Termination and Hearing Rights
The Civil Service Reform Act (“CSRA”) established a new classification system for federal employees in 1978. The system compartmentalized career civil service employees into three groups: (1) the competitive service; (2) the excepted service; and (3) the senior executive service (SES). The SES is comprised of “high-level federal employees who do not require presidential appointment but who nonetheless exercise significant responsibility.” Esparraguera v. Dep’t of the Army, 981 F.3d 1328, 1330 (Fed. Cir. 2020).
Federal employees in the competitive service, excepted service, and SES typically have appeal rights to the Merit Systems Protection Board (MSPB) when they are terminated for cause. However, the CSRA excluded executives from the Federal Bureau of Investigation (FBI) and the Drug Enforcement Agency (DEA) from the SES corps. In 1988, a decade after the CSRA’s enactment, Congress established a separate SES solely for the FBI and DEA through the FBI and DEA Senior Executive Service Act. With this Act, FBI and DEA employees were afforded some, but not all, of the rights afforded to SES members in the rest of the government. These rights include the notice and opportunity to respond to a proposed removal. See 5 U.S.C. § 3151(a)(5)(D). But unlike SES employees in the rest of the executive branch, who enjoy post-termination hearings at the MSPB, FBI or DEA SES members prewire limited by statute to post-termination hearings “held or decided pursuant to procedures established by regulations of the Attorney General.” Id. Despite the legislative text, these Attorney General regulations were never promulgated.
The executive at issue here was a DEA SES employee. He began working for the DEA in 1997, and assumed a GS-15 position in 2015. He subsequently applied for and was awarded a DEA SES position on March 29, 2020. The DEA executive was not notified of any change in appeal rights upon transition from civil service to SES. The DEA later proposed the executive’s removal from his SES position and Federal service in January 2022. Prior to the removal’s effectiveness, he retired.
In April 2022, the executive filed an appeal with the MSPB where he alleged involuntary retirement. The DEA moved to dismiss his appeal for lack of jurisdiction, stating that 5 U.S.C. § 3151 does not allow DEA SES employees to appeal to the Board. The MSPB granted the motion to dismiss. The executive’s petition for review to the whole Board was denied, and he petitioned for review at the Federal Circuit.
The Federal Circuit reasoned that though 5 U.S.C. § 3151 allocates some standard SES rights to FBI and DEA employees, it does not include the right to a post-termination appeal or hearing to the Board but rather defers this decision to the Attorney General established regulations, which, as mentioned, do not exist. The executive argued that without these regulations, he was denied due process, but the Federal Circuit concluded that while precedent suggests a constitutional right to a hearing somewhere, there is not a constitutional right to have that hearing specifically before the Board. The Federal Circuit held that it could not “expand the Board’s limited jurisdiction where Congress foreclosed review.” Esparraguera, 981 F.3d at 1336.
Though the Federal Circuit held that the executive lacks Board appeal rights, it also suggested that he is not without recourse, as he maintains his ability to assert his constitutional due process right in federal district court.
Read the full case: Palmeri v. MSPB