Esparraguera v. Dep't of the Army
| Decision Date | 24 March 2022 |
| Docket Number | Civil Action 21-421 (TJK) |
| Court | U.S. District Court — District of Columbia |
| Parties | MARIA ESPARRAGUERA, Plaintiff, v. DEPARTMENT OF THE ARMY et al., Defendants. |
The Under Secretary of the Army removed Maria Esparraguera from a select group of senior civil servants-the Senior Executive Service, or SES-because of unsatisfactory performance reviews. She sued to challenge that decision, alleging that it violated her statutory rights under the Civil Service Reform Act and her due process guarantees under the Fifth Amendment. Defendants moved to dismiss. They argue that this Court lacks jurisdiction and that in any event, Plaintiff has failed to state a claim. For the reasons explained below, the Court finds that it lacks jurisdiction to resolve Plaintiff's statutory claim and that Plaintiff does not have a protected property interest in continued SES employment to sustain her constitutional claim. Thus, the Court will grant the motion and dismiss the case.
The Civil Service Reform Act of 1978 (“CSRA”) provides a “framework for evaluating adverse personnel actions against federal employees” and “prescribes in great detail the protections and remedies applicable to such action, including the availability of administrative and judicial review.” United States v. Fausto, 484 U.S. 439, 443 (cleaned up). The Senior Executive Service (“SES”) is a division of “high-level” federal employees who wield “significant responsibility- including directing organizational units, supervising work, and determining policy.” Esparraguera v. Dep't of the Army, 981 F.3d 1328, 1330 (Fed. Cir. 2020). The SES “enable[s] the head of an agency to reassign senior executives to best accomplish the agency's mission” and lead the agency in a way that is “consistent with the effective and efficient implementation of agency policies and responsibilities.” 5 U.S.C. § 3131(5), (14).
Plaintiff is a high-ranking attorney in the Department of the Army (“the Department”) and served as a member of the SES responsible for hiring a replacement for a retiring Army division chief. ECF No. 1 ¶ 43. After the Office of Special Counsel (“OSC”) received complaints about the way Plaintiff hired her preferred replacement for the division chief, the Under Secretary of the Army removed her from the SES under 5 U.S.C. § 3592, which permits removal “at any time for less than fully successful executive performance.” ECF No. 1 ¶¶ 63-65, 138-139; 5 U.S.C. § 3592(a)(2). Plaintiff was removed from the SES but remains a federal employee at the same pay scale.
Members of the SES who challenge their removal under Section 3592 are entitled to only an “informal hearing” before an official appointed by the Merit Systems Protection Board (“the Merit Board”) but not a formal proceeding before the Merit Board itself. 5 U.S.C. §§ 3592(a). Plaintiff exercised her right to an informal hearing, and the presiding official sent a transcript and record of the proceeding to the OSC and other components of the Department. ECF No. 1 ¶¶ 167- 194. After the Merit Board took no action, Plaintiff then unsuccessfully petitioned the Under Secretary of the Army for reconsideration. Id. ¶ 164.
Plaintiff then sought review of her removal in United States Court of Appeals for the Federal Circuit, the CSRA's prescribed pathway for review of employment decisions. See Esparraguera, 981 F.3d at 1328. Plaintiff argued there that her removal violated her Fifth Amendment due process rights. Id. The Federal Circuit held that it lacked jurisdiction to hear Plaintiff's claims because it could only review a “final order or decision” by the Merit Board, to which-as noted above-Plaintiff was not entitled. Id. at 1334.
Finally, Plaintiff filed the instant suit against the Department, the Merit Board, the Secretary of the Army, and the Under Secretary of the Army. ECF No. 1. She alleges that Defendants violated her Fifth Amendment rights by depriving her of a property interest she had in her SES position without due process (Count I). Plaintiff also argues that the Merit Board violated her rights under the Administrative Procedure Act (“APA”) and the CSRA when it did not review her removal and issue a formal order or decision (Count II). Defendants moved to dismiss. They argue that the Court lacks subject matter jurisdiction to resolve both of Plaintiff's claims under Rule 12(b)(1) and that she otherwise has failed to state a claim for relief under Rule 12(b)(6). ECF No. 18.
“Federal courts are courts of limited jurisdiction” and it is “presumed that a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A federal court must determine whether it has jurisdiction before proceeding to the merits of a claim, see Moms Against Mercury v. FDA, 483 F.3d 824, 826 (D.C. Cir. 2007), and “the plaintiff bears the burden of establishing jurisdiction.” Slack v. Wash. Metro. Area Transit Auth., 325 F.Supp.3d 146, 151 (D.D.C. 2018). In reviewing a motion for lack of subject matter jurisdiction under Rule 12(b)(1), courts must “accept all of the factual allegations in [the] complaint as true.” Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005) (quoting United States v. Gaubert, 499 U.S. 315, 327 (1991)).
A “Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a plaintiff's complaint.” Herron v. Fannie Mae, 861 F.3d 160, 173 (D.C. Cir. 2017). To survive a motion under Rule 12(b)(6), a plaintiff's complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation omitted). “[D]etailed factual allegations” are unnecessary to survive a motion to dismiss, id., although a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face, '” Ashcroft v. Iqbal, 556 U.S. 662, 678 (quoting Twombly, 550 U.S. at 570). At this stage, courts generally may not consider materials outside the pleadings, but they can consider “documents attached as exhibits or incorporated by reference in the complaint.” Hinton v. Corrections Corp. of Am., 624 F.Supp.2d 45, 46 (D.D.C. 2009) (internal quotation omitted).
Plaintiff alleges that the Merit Board's failure to formally review her appeal and issue a final, appealable administrative order violated her rights under the APA and CSRA. Thus, she claims, she was left without the formal administrative appeal process she is entitled to under the CSRA, and the Merit Board's “failure to act” was “not in accordance with law.” ECF No. 1 ¶ 237. But Defendants are right that the Court lacks jurisdiction under the CSRA to resolve her statutory claim, and she may not use the APA to open the district court's door.
To begin with, the D.C. Circuit has recognized that the CSRA provides the exclusive avenue for judicial review of statutory claims arising from an agency's employment actions. The Circuit has “long held that federal employees may not use the Administrative Procedure Act to challenge agency employment actions” because the CSRA's detailed remedial scheme “preempts judicial review under the more general APA even when that scheme provides no judicial relief.” Filebark v. U.S. Dep't of Transp., 555 F.3d 1009, 1010 (D.C. Cir. 2009). The Circuit has reiterated “in a variety of contexts, the exclusivity of the remedial and review provisions of the CSRA.” Fornaro v. James, 416 F.3d 63, 67 (D.C. Cir. 2005); see also Carducci v. Regan, 714 F.2d 171, 173 (D.C. Cir. 1983); Graham v. Ashcroft, 358 F.3d 931, 933 (D.C. Cir. 2004). In other words, “what you get under the CSRA is what you get.” Fornaro, 416 F.3d at 67.
And under the CSRA, the Court has no jurisdiction to review Plaintiff's statutory claims. First, the text of the CSRA makes clear that courts may only review final orders or decisions of the Merit Board. See 5 U.S.C. § 7703(a)(1). The Under Secretary of the Army removed Plaintiff under 5 U.S.C. § 3592, which states that the informal hearing to which she was entitled “shall not give the [employee] the right to initiate an action with the [Merit] Board”-the prerequisite to seeking judicial review under the CSRA. 5 U.S.C. § 3592(a)(2). Second, in any event, the CSRA funnels all actions seeking judicial review of a final Merit Board decision to the Federal Circuit or other courts of appeals; it provides no jurisdictional grant to district courts. See Elgin v. Dep't of Treasury, 567 U.S. 1, 11-12 (2012) (). Indeed, it declares that actions seeking review of a Merit Board order “shall be filed in the United States Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.” 5 U.S.C. § 7703(a)(1), (b)(1)(B) (emphasis added). For these reasons, the CSRA does not authorize a district court to review Plaintiff's statutory claims, and so this Court lacks jurisdiction to do so. See Graham, 358 F.3d at 935-36; National Treasury Employees Union v. Egger, 783 F.2d 1114, 1117 (D.C. Cir. 1986).
Plaintiff also alleges that her removal from the SES violated her Fifth Amendment rights under the Constitution because Defendants deprived her of a protected property interest in her SES position without due process.
As a threshold matter, the Court finds that it has jurisdiction to address Plaintiff's...
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