People For the American Way Foundation

Biden Judge Overturns Lower Court and Rules that Civilian Army Employee Can File Suit for Improper Firing

Biden Judge Overturns Lower Court and Rules that Civilian Army Employee Can File Suit for Improper Firing

Judge Brad Garcia, nominated to the DC Circuit by President Biden, wrote a  2-1 decision ruling that a Senior Executive Service (SES) federal employee has a protected property interest in her job and can sue for improper firing under the Constitution’s due process clause. The lower court ruling was by Trump judge Tim Kelly, and the dissent in the court of appeals was by conservative Bush I nominee Karen LeCraft Henderson. The May 2024 decision was in Esparraguera v Department of the Army.

 

What is the background of this case?

 Maria Esparraguera was an SES employee in the Department of the Army and, according to her complaint, became the Army’s “highest ranking civilian personnel attorney.” In late 2017, her supervisor recommended giving her the highest possible rating on her performance appraisal. In early 2018, however, she was told her rating was being held up due to an investigation, although she was not told what the inquiry was about or who was conducting it.

It turned out that the Office of Special Counsel (OSC) was investigating her role in a 2014-15 hiring decision. OSC concluded that she had committed an unspecified “prohibited personnel practice” during the hiring process and recommended disciplinary action against her. The Army convened a special personnel review board, which recommended that she get the lowest possible rating, and she was then removed from the SES due to alleged “unacceptable” job performance and demoted. Esparraguera received neither the OSC nor the personnel report until after the process was complete, and was given no opportunity to address either one.

After the demotion decision when she finally got a copy of the OSC report in September 2018, Esparraguera requested and received an informal hearing before the Merit Systems Protection Board (MSPB). The MSPB stated that it could not issue a “dispositive decision or grant any relief” and referred the hearing record to OSC, the Army, and the Office of Personnel Management. “No agency took further action. “

Esparraguera sued the Army in federal court, contending that her demotion without real notice and opportunity to be heard violated her rights under the Constitution’s Due Process Clause. The district judge, Tim Kelly, dismissed the case as a matter of law, finding that she had “no constitutionally protected property interest in her SES status.” She appealed to the DC Circuit.

 

How did Judge Garcia  and the DC Circuit Rule and Why is it Important?

 Judge Garcia wrote a 2-1 opinion, joined by conservative Reagan nominee Douglas Ginsburg, which reversed the lower court and ruled that Esparraguera had a constitutionally protected property interest in her SES status and that before the Army could take it away from her, she must receive “some form of notice and an opportunity to be heard.”  Garcia sent the case back to the district court so that she could continue her case and the lower court could determine more precisely what process was constitutionally due to her.

Judge Garcia carefully reviewed the record in the case, relevant statutes, and precedent concerning due process. He explained that while a government employee who serves “at will” has no constitutionally protected interest, an employee does have such an interest when the government has  “fostered rules and understandings” that entitle an employee to believe that “[she] would lose [her] job only for a job-related reason.”

The relevant Army and civil service statutes and regulations, Garcia continued, did create such “rules and understandings”, so that the Army could not demote or fire Esparraguera without due process. He went on to answer the government’s arguments to the contrary, including the claim also made by dissenting judge Henderson that the limits on employee removal were “too insubstantial” to create a protected property interest, based on a prior case about pay raises. Garcia concluded that the relevant statutes and regulations, plus the obvious difference between pay raises and demotions or firings, made the pay raise situation “materially distinguishable.”

Since Esparraguera had a property interest in her SES status and was entitled to some due process before the Army could take it away, Garcia went on to consider what process was due to her. Based on precedent and the record in the case, Garcia concluded, she was entitled to “at least notice and an opportunity to respond before her removal” from SES. The record was clear, he went on, that “she received neither.” Garcia sent the case back to the lower court to determine more precisely what procedural protections she should receive under federal law and the Constitution before being deprived of SES status.

Judge Garcia’s opinion is obviously important to Maria Esparaguerra and her effort to retain her SES status and avoid improper demotion. It also sets a significant precedent in the DC Circuit, which considers many government employee cases, on the rights of SES employees against being fired for improper reasons. In addition, the ruling serves as a reminder of the importance of promptly confirming fair-minded judges to our federal courts.