Avalos v. Hud

Case: 19-1118 Document: 47 Page: 1 Filed: 06/26/2020

United States Court of Appeals

for the Federal Circuit

______________________

EDWARD M. AVALOS,

Petitioner

v.

DEPARTMENT OF HOUSING AND URBAN

DEVELOPMENT,

Respondent

______________________

2019-1118

______________________

Petition for review of the Merit Systems Protection

Board in No. DE-0752-18-0004-I-1.

______________________

Decided: June 26, 2020

______________________

RICHARD RANDOLPH RENNER, Kalijarvi, Chuzi, New-

man & Fitch, PC, Washington, DC, argued for petitioner.

ELIZABETH ANNE SPECK, Commercial Litigation

Branch, Civil Division, United States Department of Jus-

tice, Washington, DC, argued for respondent. Also repre-

sented by JOSEPH H. HUNT, TARA K. HOGAN, ROBERT

EDWARD KIRSCHMAN, JR.; NADIA K. PLUTA, Office of Gen-

eral Counsel, United States Office of Personnel Manage-

ment, Washington, DC; MARCUS R. PATTON, MAUREEN E.

VILLARREAL, Office of General Counsel, United States

Case: 19-1118 Document: 47 Page: 2 Filed: 06/26/2020

2 AVALOS v. HUD

Department of Housing & Urban Development, Fort

Worth, TX.

______________________

Before REYNA, WALLACH, and HUGHES, Circuit Judges.

HUGHES, Circuit Judge.

This is a case about the removal of a federal employee

who was illegally appointed to his position in the civil ser-

vice. 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 ju-

risdiction to review Mr. Avalos’s appointment and because

substantial evidence supports the agency’s decision to re-

move Mr. Avalos to correct his illegal appointment, we af-

firm.

I

A

In October 2009, Mr. Avalos was confirmed as the Un-

der Secretary of Agriculture for Marketing and Regulatory

Programs at the United States Department of Agriculture,

a Level III Senior Executive Schedule position in the ex-

cepted 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 appoin-

tee 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 posi-

tion in its Albuquerque office. Ms. Treviño, now working

Case: 19-1118 Document: 47 Page: 3 Filed: 06/26/2020

AVALOS v. HUD 3

at HUD, was involved in developing this vacancy an-

nouncement and reviewing candidates. 1

Mr. Avalos applied for this Field Office Director posi-

tion, but he did not make the certificate of eligible candi-

dates 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 candi-

dates, instead letting the certificate of eligibles expire.

Before the certificate of eligibles for the first vacancy

announcement expired, Ms. Treviño began revising the va-

cancy 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 af-

ter 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.

1 The parties dispute whether Ms. Treviño acted as

the “selecting official”—“the person having the authority,

by law, or by duly delegated authority, to appoint, employ,

or promote individuals to positions in an agency,” J.A. 40—

for this position. HUD suggests that Ms. Treviño received

the certificate of eligibles, which, regardless of other facts,

makes her the selecting official. See Resp. Br. 9, 13; see

also J.A. 599. Mr. Avalos points out Ms. Treviño’s testi-

mony that her manager, Ms. Mary McBride, was always

acting as the selecting official, to assert otherwise. See Pet.

Br. 4; J.A. 643, 649–50.

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4 AVALOS v. HUD

HUD interviewed Mr. Avalos and selected him for the

position, subject to the completion of a one-year probation-

ary period. He became HUD’s Albuquerque Field Office

Director effective September 18, 2016, the day following his

resignation from the USDA.

B

In April 2017, during regular review of appointments

to the competitive service, the Office of Personnel Manage-

ment (OPM) noted that HUD had appointed Mr. Avalos

without OPM approval. OPM requested information from

HUD and also sought to obtain information about Mr. Av-

alos’s appointment on its own. After concluding its inves-

tigation, OPM advised HUD that it would not have

approved HUD’s appointment of Mr. Avalos, and in-

structed HUD to “regularize” the appointment. 2 J.A. 154.

After receiving OPM’s directive, HUD’s Human Capi-

tal Division—specifically Ms. Heather Dieguez, Director of

the Office of Accountability—reviewed Mr. Avalos’s ap-

pointment and reconstructed his hiring record.

2 “Case law has described regularizing an appoint-

ment as correcting the illegal component of the appoint-

ment.” Endres v. Dep’t of Veterans Affairs, 107 M.S.P.R.

455, 463 (2007) (“[B]ecause the agency has not shown that

[petitioner’s] appointment was regularized by either a var-

iation or by correcting the illegal component of the appoint-

ment, [petitioner’s] appointment . . . is not valid.”),

enforcement dismissed, 108 M.S.P.R. 606 (2008); see also

Avalos v. Dep’t of Hous. & Urban Dev., No. DE-0752-18-

0004-I-1, at 6 (M.S.P.B. July 19, 2018) (“Various witnesses

testified that, to ‘regularize’ an appointment means to find

a legal appointment authority, or to release or remove the

employee.”); Regularize, BLACK’S LAW DICTIONARY (11th ed.

2019) (“To make (a situation that has existed for some

time) legal or official.”).

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AVALOS v. HUD 5

Ms. Dieguez sought to determine independently whether

Mr. Avalos’s appointment met all merit and fitness re-

quirements. After investigating, she found no intent to

grant an unauthorized preference by HUD officials. Nev-

ertheless, she determined that she could not certify that

the appointment met merit and fitness requirements be-

cause Ms. Treviño’s involvement in interviewing and se-

lecting candidates left the “appearance of a prohibited

personnel practice.” J.A. 442. Because HUD could not cer-

tify that Mr. Avalos’s appointment met all merit and fit-

ness 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. Av-

alos to regularize his appointment.

On August 16, 2017, Ms. Dieguez notified Mr. Avalos

that HUD may have to remove him because of the impro-

priety 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.

II

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. Ava-

los’s appointment in a separate jurisdictional order. The

Administrative Judge found that the Board had jurisdic-

tion 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.

3 Section 7511(a) provides that “[f]or the purpose of

this subchapter[,] ‘employee’ means an individual in the

competitive service who is not serving a probationary or

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6 AVALOS v. HUD

§ 7513(d) (“An employee against whom an action is taken

under this section is entitled to appeal to the Merit Sys-

tems Protection Board under section 7701 of this title.”

(emphasis added)). 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 Admin-

istrative 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 regula-

tion, OPM has the authority to require an agency to “take

corrective action” if OPM finds that the agency acted con-

trary to “a law, rule, regulation, or standard that OPM ad-

ministers . . . .” 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. Die-

guez “exercised appropriate discretion.” Id. at 9. Finally,

the Administrative Judge found that preponderant evi-

dence showed that HUD’s only option to comply with

trial period under an initial appointment; or . . . who has

completed 1 year of current continuous service . . . .”

5 U.S.C. § 7511(a) (subsection notations omitted) (empha-

sis added).

4 A petitioner has “current continuous service” if the

petitioner has maintained “a period of employment or ser-

vice immediately preceding an adverse action without a

break in federal civilian employment of a workday.”

5 C.F.R. § 752.402.

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AVALOS v. HUD 7

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).

III

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 bur-

den 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 accord-

ance with law; obtained without procedures required by

law, rule, or regulation having been followed; or unsup-

ported 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.

A

The government contends that Mr. Avalos’s appoint-

ment was barred by law, and therefore that Mr. Avalos has

no right to appeal his removal to the Board. In the govern-

ment’s view, “because HUD could not certify that [Mr. Av-

alos’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

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8 AVALOS v. HUD

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. Av-

alos 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.

The Board, persuaded by opinions from the Attorney

General and Government Accountability Office, resolved

these arguments in Travaglini v. Department of Education,

18 M.S.P.R. 127, 137–38 (1983), holding that

where an individual shows that he or she has been

appointed to a position by an agency and entered

onto duty under all the criteria of 5 U.S.C.

§ 2105(a) upon his or her certification as eligible for

appointment by OPM, and where the appointment

is subsequently found to have been improper or er-

roneous under law, rule or regulation, the appoin-

tee is an “employee” for the purpose of § 2105(a)

unless—

(1) the appointment is made in violation of an ab-

solute statutory prohibition so that the appointee

is not qualified for appointment in the civil service,

or

(2) the appointee has committed fraud in regard to

the appointment or has misrepresented or con-

cealed a matter material to the appointment.

Id. The government adopts Travaglini’s rule in the alter-

native to its broader argument that Travaglini itself re-

jected, arguing that OPM’s failure to approve Mr. Avalos’s

appointment acts as “an absolute prohibition” on Mr. Ava-

los’s appointment that would divest Mr. Avalos of his ap-

peal rights under Travaglini.

We have “occasionally noted but not endorsed” the

Board’s resolution of this issue. Elgin v. Dep’t of the

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AVALOS v. HUD 9

Treasury, 641 F.3d 6, 10 (1st Cir. 2011) (examining Federal

Circuit precedent regarding the Board’s jurisdiction over

the removal of illegally appointed employees in deciding

whether the Board had exclusive jurisdiction over plain-

tiff’s claims), aff’d on other grounds, 567 U.S. 1 (2012); see

id. at 10 n.3 (summarizing our limited discussion of the

Board’s “absolute statutory prohibition” doctrine). We

need not adopt or reject the Board’s jurisprudence in this

case—it is enough to say that, assuming the Board’s rule is

correct, such an “absolute statutory prohibition” does not

exist here. An absolute prohibition exists when an appoin-

tee could never be eligible for a position in the civil service,

not for decisions made on a case-by-case basis. Cf. Hope v.

Dep’t of the Army, 108 M.S.P.R. 6, 9 (2008) (“[Q]ualification

requirements may prohibit an appointment under a certain

set of circumstances (i.e., the lack of a particular qualifica-

tion), but they necessarily cannot act as an absolute bar to

the appellant’s appointment in the civil service in all cir-

cumstances.”); Wallace v. Dep’t of Commerce, 106 M.S.P.R.

23, 30 (2007) (“There is no evidence in the record to support

a finding that Martin was not qualified for appointment in

the civil service or that, in the absence of nepotism, she was

not qualified for appointment to the particular position to

which the agency appointed her.”).

Mr. Avalos’s status as a former political appointee can-

not fairly be considered an absolute statutory bar to his se-

lection. We can only speculate about whether Mr. Avalos

would have been appointed as HUD’s Albuquerque Field

Office Director had HUD strictly followed the correct com-

petitive hiring practices. But the government does not dis-

pute that Mr. Avalos would have been eligible for the

position under proper hiring practices. See Resp. Br. 29

(arguing merely that Mr. Avalos was subject to an absolute

statutory prohibition because OPM could not certify that

his appointment was free from political influence). The

government correctly notes that Mr. Avalos’s appointment

violated several statutory prohibitions, id. at 24–25, but

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10 AVALOS v. HUD

these prohibitions on Mr. Avalos’s selection because of im-

proper selection practices do not rise to the level of an “ab-

solute statutory prohibition” barring his appointment.

OPM did not refuse to approve Mr. Avalos’s appointment

because he was categorically ineligible to be HUD’s Albu-

querque Field Office Director. It refused to approve his ap-

pointment because HUD could not certify that his selection

was free from political influence. E.g., J.A. 365.

We also reject the government’s broader argument—

that Mr. Avalos cannot appeal because his appointment

was invalid, and he is thus not an employee for the pur-

poses of appealing his separation from his HUD position.

“Section 7511 defines what ‘employee’ means for [appeals

under § 7513(d)] . . . . [because its] definition modifies, for

adverse actions, the general definition of a federal civil-ser-

vice ‘employee’ set out in 5 U.S.C. § 2105.” Mitchell v. Merit

Sys. Prot. Bd., 741 F.3d 81, 83 (Fed. Cir. 2014). See

§ 7511(a)(1)(A)(ii) (“For the purpose of this subchapter[,]

‘employee’ means an individual in the competitive ser-

vice . . . who has completed 1 year of current continuous

service under other than a temporary appointment limited

to 1 year or less . . . .” (subsection notations omitted));

§ 2105(a)(1) (“For the purpose of this title, ‘employee’, ex-

cept as otherwise provided by this section or when specifi-

cally modified, means an officer and an individual who is

appointed in the civil service by [,among others, ‘an indi-

vidual who is an employee under this section,’] acting in an

official capacity . . . .” (subsection notations omitted)).

Section 7511 does not implicitly abrogate the require-

ments of § 2105. We do not today hold that an employee

who plainly does not hold a federal position, or who was

appointed by someone without even the color of authority

to appoint an employee has Board appeal rights. But in

light of the considerations underlying § 7511, when defin-

ing “employee” for § 7511 we must relax the severity of our

construction of “appointed” under § 2105. We have “strictly

applied” the test for federal employment under § 2105,

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AVALOS v. HUD 11

Horner v. Acosta, 803 F.2d 687, 691 (Fed. Cir. 1986), in

light of concerns that to do otherwise “could easily bring

about chaos in government personnel management.”

Goutos v. United States, 552 F.2d 922, 925 (Ct. Cl. 1976).

However, these requirements have been applied in cases

where our finding an appointment would confer substan-

tive benefits, not the mere procedural rights at issue here.

E.g., Bevans v. Office of Pers. Mgmt., 900 F.2d 1558

(Fed. Cir. 1990) (determining whether an employee of a

proprietary corporation of the CIA met the definition of

§ 2105 to establish entitlement to survivorship benefits);

Baker v. United States, 614 F.2d 263 (Ct. Cl. 1980) (decid-

ing whether an employee of a state agency participating in

a federal-state cooperative program funded by the Depart-

ment of Labor met § 2105 to be entitled to creditable ser-

vice for a retirement annuity).

We have more generously defined the scope of appoint-

ment for appeal rights where our refusal to void an ap-

pointment would confer only the ability to contest the

petitioner’s entitlement to an appointment before the

Board, rather than conferring that entitlement. In Devine

v. Sutermeister, 724 F.2d 1558, 1563 (Fed. Cir. 1983), we

refused to hold that “an appointment obtained through ma-

terial misrepresentation is void or voidable,” describing

this argument as “border[ing] on the whimsical” because

“[n]owhere in the [Civil Service Reform Act] can we find the

statement or implication that a removal based upon an ap-

pointment obtained through material misrepresentation is

to be treated differently from any other basis for an adverse

action.” Distinguishing the substantive from the proce-

dural, we explained that “[i]t involves a quantum leap of

logic to start with the premise that misrepresentation may

properly form the basis for removal, a position that no one

disputes, and then conclude that review of the penalty im-

posed is therefore barred.” Id. at 1564.

If a petitioner’s deliberate nondisclosure of criminal

convictions does not render his appointment to a sensitive

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12 AVALOS v. HUD

position voidable and prevent review of the petitioner’s re-

moval, Sutermeister, 724 F.2d at 1561, it would be unrea-

sonable to hold that an agency’s blunders during the

selection process—prior to the appointment, and through

no fault of the appointee—would do so. Holding that Mr.

Avalos has no appeal rights would put someone who was

indisputably acting as a member of the competitive service

for nearly a year in the same position as someone who had

never stepped foot in a federal building. It would do so in

a manner that begs the question, too—Mr. Avalos would

lose his appeal rights based on the very facts that he dis-

putes in the appeal, without any post-termination process

to dispute those facts. We cannot agree that Congress in-

tended the “removal” of “employees” to be construed in such

a stilted manner when it passed the Civil Service Reform

Act. 5

5 Our sister circuits agree that the Civil Service Re-

form Act does not so narrowly limit the Board’s jurisdic-

tion. See Elgin, 641 F.3d at 11 (noting, in the course of

finding that the Board had exclusive jurisdiction over a

challenge to the constitutionality of plaintiff’s removal,

that “[t]he plaintiffs in this case were hired by the federal

government, served (in some cases for many years) as its

employees, exercised official authority, and were then ter-

minated. The idea that Congress would implicitly exclude

them from the category of former ‘employees’ entitled to

seek redress under the [Civil Service Reform Act] . . . beg-

gars belief.”); Miller v. United States, 717 F.2d 109, 113 (3d

Cir. 1983) (reviewing a Board decision before the Federal

Circuit took exclusive jurisdiction and finding that it

“would not serve the putative purpose of section 7511 to

deny [petitioner] review of the subsequent decision to re-

voke” his conversion from a temporary appointment to a

permanent appointment for which he was not eligible).

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AVALOS v. HUD 13

B

The government alternatively argues that the Board

lacked jurisdiction because Mr. Avalos had not completed

a one-year probationary period in the competitive service

to accrue appeal rights. But Mr. Avalos need only show

that he has completed more than one year of “current con-

tinuous service under other than a temporary appoint-

ment” to establish that he was an employee with the right

to appeal his removal from HUD. McCormick, 307 F.3d at

1342 (emphasis added).

Under 5 C.F.R. § 752.402, “current continuous service”

means “a period of employment or service immediately pre-

ceding an adverse action without a break in [f]ederal civil-

ian employment of a workday.” This definition does not

exclude service as a political appointee: even if political

appointees have no right to appeal adverse actions to the

Board, they remain part of the civil service and qualify as

“[f]ederal civilian employ[ees]” under any reasonable inter-

pretation of that term. See 5 U.S.C. § 2101 (“For the pur-

pose of [title 5] . . . the ‘civil service’ consists of all

appointive positions in the executive, judicial, and legisla-

tive branches of the Government of the United States, ex-

cept positions in the uniformed services . . . .”); Wilder v.

Merit Sys. Prot. Bd., 675 F.3d 1319, 1322 (Fed. Cir. 2012)

(finding OPM’s interpretation of § 7511—that “[f]ederal ci-

vilian employment” as opposed to military service counts

toward “current continuous service”—reasonable and con-

sistent with the statute).

After working at the USDA for almost eight years, Mr.

Avalos resigned on September 17, 2016, and began working

at HUD the next day. Given this years-long period of “fed-

eral civilian employment,” Mr. Avalos had completed sig-

nificantly more than one year of “current continuous

service” at the time of his removal. As a result, Mr. Avalos

had the right to appeal his removal to the Board; the Board

had the jurisdiction to review it.

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14 AVALOS v. HUD

IV

We next move to the merits, addressing Mr. Avalos’s

arguments that the Board incorrectly found that HUD had

justification for his removal.

A

The Administrative Judge found that “HUD had a rea-

sonable basis to withhold certification that the appellant’s

competitive service appointment was free from political in-

fluence, particularly because [Ms.] Treviño was involved in

preparing the second vacancy announcement that resulted

in the appellant being the sole referred applicant on the

certificate of eligibles.” Decision at 9. The record contains

substantial evidence supporting the appearance of im-

proper influence and HUD’s resultant refusal to certify to

OPM that Mr. Avalos’s appointment was compliant with

merit systems principles, such as Ms. Treviño’s choice to

abandon the first certificate of eligibles rather than to ob-

tain a pass-over request to consider candidates other than

a preference-eligible veteran. See J.A. 440–42 (detailing

the selection process and HUD’s concerns with the events),

621–22 (explaining how Ms. Treviño’s abandonment of the

first certificate of eligibles created an appearance of impro-

priety), 597–601 (describing how recordkeeping errors pre-

vented HUD from concluding that Ms. Treviño recused

herself).

That Ms. Treviño recused herself from the selection

process at some point does not require a different conclu-

sion. HUD did not need to show that political influence

was the only, or even the most likely, explanation for

HUD’s mistakes in selecting Mr. Avalos. It need only show

substantial evidence to support a finding that Mr. Avalos’s

selection was not free from political influence. Moreover,

the record need not indisputably support the government’s

characterization of the selection process for the Board’s de-

cision to merit affirmance, especially since the Administra-

tive Judge heard live testimony from the witnesses. See In

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AVALOS v. HUD 15

re Morsa, 713 F.3d 104, 109 (Fed. Cir. 2013) (“‘[W]here two

different, inconsistent conclusions may reasonably be

drawn from the evidence in record, an agency’s decision to

favor one conclusion over the other is the epitome of a de-

cision that must be sustained upon review for substantial

evidence.’” (quoting In re Jolley, 308 F.3d 1317, 1329

(Fed. Cir. 2002))); Wright v. U.S. Postal Serv., 183 F.3d

1328, 1334 (Fed. Cir. 1999) (“[C]redibility determinations

by the board are ‘virtually unreviewable.’” (quoting Hamb-

sch v. Dep’t of Treasury, 796 F.2d 430, 436 (Fed. Cir.

1986))).

Substantial evidence supports the Administrative

Judge’s finding that HUD could not reasonably certify

Mr. Avalos’s appointment to be free from political influ-

ence. We therefore affirm Mr. Avalos’s removal.

B

Mr. Avalos argues that the Administrative Judge le-

gally erred by failing to make a finding on whether the re-

moval promoted the efficiency of the service. See 5 U.S.C.

§ 7513(a) (“Under regulations prescribed by the Office of

Personnel Management, an agency may take an action cov-

ered by this subchapter against an employee only for such

cause as will promote the efficiency of the service.”). In Mr.

Avalos’s view, “no such finding can be made in this case

because [he] was not removed for performance or conduct

reasons.” Pet. Br. 42. But the law is not so narrow: “The

agency must demonstrate a rational basis for its conclusion

that a discharge will promote [the] efficiency [of the ser-

vice]. . . . [A]gencies are vested by law with the discretion-

ary authority and responsibility to determine what is

necessary for their efficiency in discharging the missions

assigned to them by Congress . . . .” Sanders v. U.S. Postal

Serv., 801 F.2d 1328, 1333 (Fed. Cir. 1986); see also Hat-

field v. Dep’t of Interior, 28 M.S.P.R. 673, 675 (1985) (“An

adverse action promotes the efficiency of the service when

the grounds for the action relate to either an employee’s

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16 AVALOS v. HUD

ability to accomplish his duties satisfactorily or to some

other legitimate government interest.”). Additionally,

§ 7513(a) explicitly references OPM’s authority to prescribe

regulations governing this decision, suggesting some defer-

ence to OPM’s command for action is warranted.

HUD had a rational basis for determining that Mr. Av-

alos’s removal promotes the efficiency of the service. Alt-

hough the Administrative Judge’s finding that HUD had a

reasonable basis to refuse to certify Mr. Avalos’s appoint-

ment as free from political influence does not explicitly ref-

erence the efficiency of the service, any error arising from

such an omission is harmless. By evaluating whether Mr.

Avalos’s appointment was free from political influence,

HUD—concededly, at OPM’s urging—was trying to certify

that its hiring process complied with merit systems princi-

ples. For example, merit systems principles dictate that

Mr. Avalos’s selection had to rest “solely on the basis of rel-

ative ability, knowledge, and skills, after fair and open

competition,” giving applicants “fair and equitable treat-

ment . . . without regard to political affiliation” and that

the selection did not violate a veterans’ preference require-

ment. 5 U.S.C. §§ 2301(b)(1)–(2), 2302(b)(11). These merit

systems principles are not mere guidelines. “OPM’s goals

of ensuring that political considerations not enter into the

recruitment and selection process for competitive-service

positions, and that selection occur only after fair and open

competition, are based on the express will of Congress.”

Beam v. Office of Pers. Mgmt., 66 M.S.P.R. 469, 476 (1995);

see Hatfield, 28 M.S.P.R. at 676 (“[T]he government has a

legitimate interest in protecting the competitive process.”).

HUD did not even need to rely on OPM’s order to reg-

ularize Mr. Avalos’s appointment to reasonably find that

Mr. Avalos’s removal would promote the efficiency of the

service once it was fully aware of the deficiencies in his ap-

pointment. HUD’s legitimate interest in removing the ap-

pearance of political influence in Mr. Avalos’s appointment

(and that further investigation could not entirely dispel)

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AVALOS v. HUD 17

promotes the efficiency of the service by improving compli-

ance with merit systems principles. Cf. Hatfield,

28 M.S.P.R. at 675–76 (affirming a decision to remove an

illegal appointee—notwithstanding the appointee’s ade-

quate performance—because “the agency’s method of ap-

pointing appellant was used to circumvent the competitive

process, thereby violating merit systems principles” and re-

moval of the employee therefore promoted efficiency of the

service). Thus, the Administrative Judge’s finding that

“HUD had a reasonable basis to withhold certification that

[Mr. Avalos’s] competitive service appointment was free

from political influence,” Decision at 9, serves as adequate

basis to find that Mr. Avalos’s removal promotes the effi-

ciency of the service.

C

Mr. Avalos argues that, even if the Administrative

Judge’s finding supports the need to regularize Mr. Ava-

los’s appointment, the Administrative Judge erred by al-

lowing agency testimony to establish that removal was

required to regularize the appointment “in place of legal

authorization . . . .” Pet. Br. at 43–44. But authority to

regularize an illegal appointment to promote the efficiency

of the service necessarily implies authority to remove the

illegal appointee. “We give wide berth to agency decisions

as to what type of adverse action is necessary to ‘promote

the efficiency of the service,’ provided that the agency’s de-

cision bears some nexus to the reason for the adverse ac-

tion.” Einboden v. Dep’t of the Navy, 802 F.3d 1321,

1325–26 (Fed. Cir. 2015). Given this discretion, HUD had

no obligation to seek a variation as Mr. Avalos argues,

whether or not HUD “thought OPM would deny it.” 6 Pet.

Br. 44–45.

6 One other option for regularizing Mr. Avalos’s ap-

pointment would have been to find retroactively a non-

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18 AVALOS v. HUD

Even assuming HUD had the obligation to attempt to

regularize Mr. Avalos’s appointment through a variation,

HUD had a reasonable basis to determine that such an at-

tempt would be futile. To obtain a variation, HUD would

have had to show that the variation “is within the spirit of

the regulations” and would protect and promote the “integ-

rity of the competitive service.” 5 C.F.R. § 5.1; see also

Meeker v. Merit Sys. Prot. Bd., 319 F.3d 1368, 1376

(Fed. Cir. 2003) (setting forth the test for a valid variation).

Mr. Avalos’s removal arose from HUD’s failure to observe

procedures integral to the competitive hiring process,

which itself forms the foundation of the integrity of the

competitive service. Since HUD lacked a reasonable basis

to conclude that Mr. Avalos’s appointment was free from

political influence, it could also have reasonably deter-

mined that OPM would not grant a variation. Doing so

would undermine the integrity of the competitive service

by excusing both HUD’s violation of OPM rules and regu-

lations on the conversion of political appointees to the com-

petitive service and HUD’s departure from hiring best

practices set forth to promote merit systems principles.

V

We have considered the parties’ remaining arguments

and find them unpersuasive. 7 Because the Board had

competitive appointment authority. Undisputed evidence

shows that HUD tried to find a non-competitive authority

for appointing Mr. Avalos to regularize his appointment,

and the parties do not dispute that Mr. Avalos lacked any

non-competitive eligibility.

7 The government concedes that, if Mr. Avalos were

an employee under 5 U.S.C. § 7511—as we conclude—he is

entitled to 16 days of pay because he was terminated with-

out 30 days’ notice under 5 U.S.C. § 7513(b)(1). See Resp.

Br. at 57 (citing Stephen v. Dep’t of the Air Force, 47

M.S.P.R. 672, 688–89 (1991)).

Case: 19-1118 Document: 47 Page: 19 Filed: 06/26/2020

AVALOS v. HUD 19

jurisdiction to hear Mr. Avalos’s appeal and substantial ev-

idence supports that HUD needed to “regularize” Mr. Ava-

los’s appointment by removing him from his position, we

affirm the Board’s decision.

AFFIRMED

No costs.