Avalos v. Dep't of Hous. & Urban Dev.
| Decision Date | 26 June 2020 |
| Docket Number | 2019-1118 |
| Citation | 963 F.3d 1360 |
| Parties | Edward M. AVALOS, Petitioner v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Respondent |
| Court | U.S. Court of Appeals — Federal Circuit |
Richard Randolph Renner, Kalijarvi, Chuzi, Newman & Fitch, PC, Washington, DC, argued for petitioner.
Elizabeth Anne Speck, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by Joseph H. Hunt, Tara K. Hogan, Robert Edward Kirschman, Jr. ; Nadia K. Pluta, Office of General Counsel, United States Office of Personnel Management, Washington, DC; Marcus R. Patton, Maureen E. Villarreal, Office of General Counsel, United States Department of Housing & Urban Development, Fort Worth, TX.
Before Reyna, Wallach, and Hughes, Circuit Judges.
This is a case about the removal of a federal employee who was illegally appointed to his position in the civil service. Mr. Edward M. Avalos appealed his removal from employment as the Field Office Director in Albuquerque, New Mexico, for the United States Department of Housing and Urban Development to the Merit Systems Protection Board. Because the Board correctly found that it had jurisdiction to review Mr. Avalos's appointment and because substantial evidence supports the agency's decision to remove Mr. Avalos to correct his illegal appointment, we affirm.
In October 2009, Mr. Avalos was confirmed as the Under Secretary of Agriculture for Marketing and Regulatory Programs at the United States Department of Agriculture, a Level III Senior Executive Schedule position in the excepted service. See 5 U.S.C. § 5314. During his nearly eight-year tenure at the USDA, Mr. Avalos crossed paths with Ms. Tammye Treviño, a fellow USDA political appointee then serving as the Administrator for Rural Housing Service. In September 2015, HUD announced that it needed to fill a vacancy for the Field Office Director position in its Albuquerque office. Ms. Treviño, now working at HUD, was involved in developing this vacancy announcement and reviewing candidates.1
Mr. Avalos applied for this Field Office Director position, but he did not make the certificate of eligible candidates from which selection would be made. The certificate listed only one candidate, a preference-eligible veteran. Ms. Treviño, apparently disappointed with the applicant choices, sought to consider additional candidates who were qualified, but not preference eligible. She did not, however, complete a pass-over request under 5 C.F.R. § 3318(a), (c)(1), which would allow her to consider additional candidates, instead letting the certificate of eligibles expire.
Before the certificate of eligibles for the first vacancy announcement expired, Ms. Treviño began revising the vacancy announcement; after the first certificate expired, HUD again announced the vacancy. Mr. Avalos applied once more. This time he was the only candidate listed on the certificate of eligibles. According to Ms. Treviño, she had recused herself from acting as the selecting official after seeing Mr. Avalos's name on this certificate of eligibles, but some ambiguity remains about the manner, scope, and timing of Ms. Treviño's recusal.
HUD interviewed Mr. Avalos and selected him for the position, subject to the completion of a one-year probationary period. He became HUD's Albuquerque Field Office Director effective September 18, 2016, the day following his resignation from the USDA.
In April 2017, during regular review of appointments to the competitive service, the Office of Personnel Management (OPM) noted that HUD had appointed Mr. Avalos without OPM approval. OPM requested information from HUD and also sought to obtain information about Mr. Avalos's appointment on its own. After concluding its investigation, OPM advised HUD that it would not have approved HUD's appointment of Mr. Avalos, and instructed HUD to "regularize" the appointment.2 J.A. 154.
After receiving OPM's directive, HUD's Human Capital Division—specifically Ms. Heather Dieguez, Director of the Office of Accountability—reviewed Mr. Avalos's appointment and reconstructed his hiring record. Ms. Dieguez sought to determine independently whether Mr. Avalos's appointment met all merit and fitness requirements. After investigating, she found no intent to grant an unauthorized preference by HUD officials. Nevertheless, she determined that she could not certify that the appointment met merit and fitness requirements because Ms. Treviño's involvement in interviewing and selecting candidates left the "appearance of a prohibited personnel practice." J.A. 442. Because HUD could not certify that Mr. Avalos's appointment met all merit and fitness requirements, and because Ms. Dieguez could not find a separate non-competitive appointment authority for Mr. Avalos, she concluded that HUD needed to remove Mr. Avalos to regularize his appointment.
On August 16, 2017, Ms. Dieguez notified Mr. Avalos that HUD may have to remove him because of the impropriety in his appointment. On August 31, she issued him a formal Notice of Proposed Termination. On September 13, HUD's deciding official issued Mr. Avalos her Decision on Notice of Proposed Termination, removing him effective September 14, 2017.
Mr. Avalos appealed his removal to the Merit Systems Protection Board. The government argued that the Board lacked jurisdiction because Mr. Avalos was removed before the end of his one-year probationary period. In response, the Board first ruled on its jurisdiction to review Mr. Avalos's appointment in a separate jurisdictional order. The Administrative Judge found that the Board had jurisdiction because Mr. Avalos met the definition of "employee" provided in 5 U.S.C. § 7511(a)(1)(A)(ii).3 See 5 U.S.C. § 7513(d) . The Administrative Judge explained that Mr. Avalos met § 7511(a)(1)(A)(ii) ’s requirement of more than a year of "current continuous service"4 through his previous employment at the USDA. See McCormick v. Dep't of the Air Force , 307 F.3d 1339, 1341 (Fed. Cir. 2002).
After establishing the Board's jurisdiction, the Administrative Judge held a hearing on the merits and issued his decision. See Avalos v. Dep't of Hous. & Urban Dev. , No. DE-0752-18-0004-I-1 (M.S.P.B. July 19, 2018) (Decision ). The Administrative Judge first observed that, by regulation, OPM has the authority to require an agency to "take corrective action" if OPM finds that the agency acted contrary to "a law, rule, regulation, or standard that OPM administers...." Id. at 5 (citing 5 C.F.R. § 250.103 ). He then held that, because of this regulatory authority, the Board could not review OPM's "corrective action" directing HUD to "regularize" Mr. Avalos's appointment. Id. The Administrative Judge next found that HUD reasonably withheld certification that Mr. Avalos's appointment was free from political influence, and that in doing so, Ms. Dieguez "exercised appropriate discretion." Id . at 9. Finally, the Administrative Judge found that preponderant evidence showed that HUD's only option to comply with OPM's order to "regularize" Mr. Avalos's appointment was to remove him. Id.
Mr. Avalos did not appeal the Administrative Judge's initial decision to the full Merit Systems Protection Board, so it became the final decision of the Board. See 5 U.S.C. § 7701(e)(1). He timely petitioned for review of the Board's decision. We have jurisdiction under 5 U.S.C. § 7703 and 28 U.S.C. § 1295(a)(9).
We review the Board's jurisdictional determinations without deference. Kelley v. Merit Sys. Prot. Bd. , 241 F.3d 1368, 1369 (Fed. Cir. 2001). The petitioner bears the burden of establishing the Board's jurisdiction. Perez v. Merit Sys. Prot. Bd. , 85 F.3d 591, 592 (Fed. Cir. 1996). We review the Board's merits decisions narrowly, finding error only if the decision was arbitrary or capricious or not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. 5 U.S.C. § 7703(c)(1)–(3) ; see, e.g. , Graybill v. U.S. Postal Serv. , 782 F.2d 1567, 1570 (Fed. Cir. 1986).
We first address the government's arguments that Mr. Avalos lacked the right to appeal to the Board, either because his appointment was illegal or because he was still a probationary employee at the time of his removal, and the Board therefore lacked jurisdiction.
The government contends that Mr. Avalos's appointment was barred by law, and therefore that Mr. Avalos has no right to appeal his removal to the Board. In the government's view, "because HUD could not certify that [Mr. Avalos's appointment] was not free from political influence or in accordance with statutory merit system principles," OPM "did not and never could have approved Mr. Avalos's appointment." Resp. Br. 25 (emphasis removed). Under the government's first theory, OPM's failure to approve the appointment renders his appointment invalid under 5 U.S.C. § 2105, and without a valid appointment, Mr. Avalos has no appeal rights. This theory could be inter-changeably described as Mr. Avalos having nothing to appeal because he cannot be removed from a position he never rightfully had.
To continue reading
Request your trial
-
Sphatt v. Dep't of Homeland Sec.
...the service," provided that the agency's decision bears some nexus to the reason for the adverse action.'" Avalos v. Dep't of Hous. & Urb. Dev., 963 F.3d 1360, 1371 (Fed. Cir. 2020) (citation omitted). Ms. Sphatt argues that the Board could not reasonably find an appropriate nexus here beca......
-
Newman v. Dep't of Air Force, 2019-2297
...rule, or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c); Avalos v. Dep't of Hous. and Urban Dev., 963 F.3d 1360, 1365 (Fed. Cir. 2020).A In this appeal, Mr. Newman first contends that the Master Labor Agreement (MLA) between the Air Force and......