Last Week in the Federal Circuit (November 30-December 4): Appellate Jurisdiction Over Agency Orders

Apparently it’s a myth that Thanksgiving turkey makes you sleepy.  We beg to differ, judging from how much time it took us to shake off the food coma.  The Federal Circuit seemingly was in the same boat:  It had a slow post-Thanksgiving week, issuing only 5 decisions.  Below we provide our usual weekly statistics and our case of the week—our highly subjective selection based on whatever case piqued our interest.

Precedential opinions: 3

Non-precedential opinions: 2

Rule 36: 0

Longest case pending from argument: Albright v. United States, No. 19-2078 (91 days)

Shortest case pending from argument (non-rule 36): Esparraguera v. Army, No. 19-2293 (56 days)

Case of the week: Esparraguera v. Army, No. 19-2293

Panel: Chief Judge Prost and Judges Lourie and Moore, with Chief Judge Prost writing the opinion

You should read this case if: you have an appeal from an unusual type of agency order

“This is a case about jurisdiction.”  That’s how our case of the week begins, and we were instantly hooked.  (Others might have the opposite reaction.)  Specifically, this is a case about appellate jurisdiction—even more specifically, whether the agency order appealed from was “final.”

The case involves an uncommon type of agency proceeding:  an “informal hearing” before the Merit Systems Protection Board for a career appointee removed from the Senior Executive Service.  Let’s unpack that a bit.  The Senior Executive Service (SES) is a small, elite category of government employees—as the name suggests, these are the civil service’s senior executives.  For a career government employee, appointment to an SES position is a boon:  more pay and more power.  But like all good things, SES appointments can come to an end.  Career appointees can be removed from the SES and demoted to a non-SES position for “less than fully successful executive performance.”

That’s what happened to the appellant in this case.  Maria Esparraguera was the top labor lawyer in the Army, an SES position.  The Army removed her from that position based on concerns about her leadership.  (She had taken unorthodox steps when filling a vacancy in her organization that advantaged one candidate over the others.)  The Army demoted her to a non-SES (but still senior) position.

Esparraguera invoked 5 U.S.C. § 3592(a)(2), which entitled her to an “informal hearing” “at which the career appointee may appear and present arguments.”  The Merit Systems Protection Board heard her arguments and issued an order.  But that order did not say whether the removal was proper; it merely summarized the proceedings and referred the record to the Army for further consideration of the removal decision.  In response, the Army stuck to its guns.

When Esparraguera appealed the Board’s order, the Federal Circuit held that it lacked appellate jurisdiction.  The Court has appellate jurisdiction over the Board only for “a final order or final decision.”  “Final,” the Court explained, has the same meaning in this context as it usually does in federal appellate procedure.  The question here was thus whether the Board’s order in Esparraguera’s hearing under § 3592(a)(2) was “final” under ordinary appellate principles.

The Court held that it was not.  Esparraguera was challenging her removal, so the Court asked whether the Board’s order was final “with respect to Ms. Esparraguera’s removal.”  It was not, the Court explained, because the order “did not dispose of the ‘case’ of her removal.”  Recall that the Board’s order simply referred the record to the Army for its consideration without deciding whether the removal was proper.  Indeed, the Board could not have made that decision, as the Court held that performance-based SES removals are unreviewable by the Board.

Esparraguera invoked the presumption in favor of judicial review, but the Court was unpersuaded.  It said that even if she was entitled to judicial review of the Board’s order in some court, the Federal Circuit was not the one.  But the Court also stopped short of deciding whether judicial review was in fact available elsewhere.  The presumption thus seems to have carried little weight in the Court’s eyes, but perhaps that’s just because the Court thought this order was so clearly unreviewable.