explaining that a property interest exists for due process purposes where an employee has assurances of continued employment and “can ‘be removed only for cause’” (citation omitted)
How later courts described this case
- explaining that a property interest exists for due process purposes where an employee has assurances of continued employment and “can ‘be removed only for cause’” (citation omitted)
- noting “a property interest [in public employment] exists if the employee can ‘be removed only for cause,’” under applicable statutory and regulatory provisions
- describing SES employee protections
- after having Board appeal dismissed for lack of jurisdiction, employee brought due process claim in district court
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 20, 2023 Decided May 10, 2024
No. 22-5150
MARIA ESPARRAGUERA,
APPELLANT
v.
DEPARTMENT OF THE ARMY, ET AL.,
APPELLEES
Consolidated with 23-5002
Appeals from the United States District Court
for the District of Columbia
(No. 1:21-cv-00421)
(No. 1:22-cv-01109)
Lucas M. Walker argued the cause for appellant. With
him on the briefs were Debra L. Roth, Christopher J. Keeven,
Conor D. Dirks, Jeffrey A. Lamken, and Matthew J. Fisher.
Brad Hinshelwood, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Brian M. Boynton, Principal Deputy Assistant Attorney
General, and Charles W. Scarborough, Attorney.
1
Before: HENDERSON and GARCIA, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GARCIA.
Dissenting opinion filed by Circuit Judge HENDERSON.
GARCIA, Circuit Judge: Maria Esparraguera served as a
career appointee in the Senior Executive Service—the top
corps of managers in the federal government—until the
Department of the Army removed her from those ranks.
Esparraguera sued, claiming that the Army violated her
constitutional due process rights. That claim depends on
showing that the removal implicated a property interest
protected by the Due Process Clause. The district court
dismissed her suit for failing that threshold requirement. We
reverse.
I
A
The Civil Service Reform Act of 1978 (“CSRA”)
“established a comprehensive system for reviewing personnel
action taken against federal employees.” United States v.
Fausto, 484 U.S. 439, 455 (1988). As relevant here, the
CSRA created the Senior Executive Service (“SES”), a class of
managerial employees including career and political
appointees. The SES was created to “ensure that the executive
management” of the federal government “is responsive to the
needs, policies, and goals of the Nation and otherwise is of the
highest quality.” 5 U.S.C. § 3131. The SES is accordingly
“designed to attract and retain highly competent senior
executives” and to “ensure that compensation, retention, and
tenure are contingent on executive success.” Id. § 3131(1)–
2
(2). Employees often work decades in the federal government
before joining the SES.
The CSRA specifies how an employee can join the SES
and be removed from it. To become a career SES appointee,
an employee must be selected based on merit and must first
serve a one-year probationary period. Id. § 3393(d). During
that period, the employee can be removed from the SES for any
reason. Id. § 3592(a)(1). After the probationary period,
career senior executives may “not be removed from the Senior
Executive Service or civil service except in accordance with”
five specified CSRA provisions. Id. § 3393(g). The
provision at issue here allows a career executive to be removed
from the SES to a civil service position outside of the SES “at
any time for less than fully successful executive performance
as determined under subchapter II of chapter 43” of the CSRA.
Id. § 3592(a)(2).
That subchapter, in turn, requires each agency to create a
performance appraisal system for assigning performance
ratings to SES employees based on “critical elements” of their
positions. Id. § 4312(a)(1). Those ratings serve as “a basis
for making eligibility determinations for retention . . . and
performance awards.” Id. §§ 4312(a)(4), 4314. The statute
creates a process for assigning a final rating, which includes an
initial appraisal from a supervisor, input from the employee, a
recommendation from a performance review board (“PRB”),
and a final rating made by the appointing official. Id.
§ 4314(c). The final rating matters: A high rating qualifies
employees for performance awards, and a low rating subjects
employees to reassignment, transfer, or removal. Id.
§ 4314(b). The rating is not appealable. Id. § 4312(d).
3
The Army created its performance appraisal system in
Army Regulation 690-920, Appendix D. 1 The regulation
provides for five “performance rating levels,” the lowest two
of which equate to “less than fully successful performance” and
thus expose a career SES employee to removal from her
position under Section 3592(a)(2). Id.
B
Because we are reviewing a motion to dismiss, we accept
the allegations in Esparraguera’s complaint as true.
Esparraguera joined the SES as a career appointee in 2010. In
the period relevant to this suit, she served as the Army’s highest
ranking civilian personnel attorney. During her 2017
performance appraisal process, her supervisor initially
recommended the highest rating, Level 5 “Outstanding.”
On February 2, 2018, Esparraguera was informed that her
rating was being held in abeyance pending an investigation,
although the letter did not identify the basis for the
investigation or who was conducting it. The investigation, it
turned out, concerned her role in a 2014-15 hiring decision and
was being conducted by the Office of Special Counsel
(“OSC”), which sent a report to the Army on February 9, 2018.
The report recommended disciplinary action against
Esparraguera because OSC believed she had committed a
prohibited personnel action during that 2014-15 hiring process.
The Army, at OSC’s request, denied Esparraguera a copy of
the OSC Report.
The Army then convened a special PRB, which
recommended to the appointing official, Under Secretary Ryan
1
This Army Regulation was superseded by Army Regulation
690-200 on January 29, 2020, but was in effect at the time of
Esparraguera’s removal.
4
McCarthy, that Esparraguera’s rating be lowered from Level 5
“Outstanding” to Level 1 “Unsatisfactory.” The special PRB
reviewed only an “executive summary” of the OSC report
prepared by Army staff. Esparraguera was not aware of the
special PRB nor given an opportunity to respond to the Army’s
investigation of the events underlying the OSC report until
after the PRB issued its recommendation.
On September 4, 2018, Under Secretary McCarthy
finalized Esparraguera’s Level 1 rating and notified
Esparraguera that she would be removed from the SES
effective October 14, 2018, for “unacceptable performance.”
The Army demoted Esparraguera to a GS-15 human resources
position, which paid the same basic rate as her SES position
but affected other benefits including paid leave. The Under
Secretary stated that Esparraguera’s removal was based on the
PRB’s recommendation and the OSC report, neither of which
Esparraguera had been given an opportunity to address. On
September 21, 2018, after issuing the removal decision letter,
the Army provided Esparraguera the OSC report.
Esparraguera then asked Under Secretary McCarthy to
reconsider, which he declined to do. On September 26, 2018,
she also requested an “informal hearing” before the Merit
Systems Protection Board (“MSPB”), a separate agency
generally tasked with adjudicating federal employment
disputes. Employees removed under Section 3592(a)(2) are
entitled to such a hearing “at least 15 days before the removal.”
5 U.S.C. § 3592(a)(2). On June 5, 2019, the MSPB held an
informal hearing. On June 20, 2019, the MSPB referred the
hearing’s record and transcript to OSC, the Office of Personnel
Management, and the Army, but stated that it could not issue a
dispositive decision or grant any relief. No agency took
further action.
5
Esparraguera initially appealed the MSPB order to the
Federal Circuit, but that court dismissed her suit for lack of
jurisdiction. Esparraguera v. Dep’t of the Army, 981 F.3d
1328, 1329 (Fed. Cir. 2020). Esparraguera then filed suit in
district court. The district court dismissed Esparraguera’s due
process claim, finding that she had no constitutionally
protected property interest in her SES status. Esparraguera v.
Dep’t of the Army, No. CV 21-421, 2022 WL 873513, at *4
(D.D.C. Mar. 24, 2022). The district court accordingly did not
address whether the process Esparraguera received (or the
absence thereof) comported with the Due Process Clause.
Esparraguera now appeals.2
II
We review the district court’s dismissal of Esparraguera’s
complaint de novo and “accept the operative complaint’s well-
pleaded factual allegations as true.” N. Am. Butterfly Ass’n v.
Wolf, 977 F.3d 1244, 1249 (D.C. Cir. 2020).
To assess Esparraguera’s procedural due process claim,
we first determine whether she was “deprived of a protected
interest.” UDC Chairs Chapter, Am. Ass’n of Univ.
Professors v. Bd. of Trs. of UDC, 56 F.3d 1469, 1471
(D.C. Cir. 1995). If so, “we then determine whether [she]
received the process [she was] due.” Id. We conclude that
Esparraguera had a protected property interest in her SES status
and that the government was required to provide her, at a
2
For reasons not relevant here, Esparraguera filed a second
lawsuit asserting the same claim and the district court dismissed that
suit on preclusion grounds. Esparraguera v. Dep’t of the Army, No.
CV 22-1109, 2022 WL 17668808, at *3 (D.D.C. Dec. 14, 2022).
Esparraguera appealed that order as well and we consolidated the
appeals.
6
minimum, some form of meaningful notice and an opportunity
to be heard before removing her from the SES.
A
Whether a government employee has a constitutionally
protected property interest in her position turns on the extent of
any substantive limitations on the government’s authority to
remove her. We have framed the inquiry as whether the
“substantive provisions” governing the position specify
“particularized standards or criteria [to] guide the . . .
decisionmakers” seeking to remove the employee. Griffith v.
Fed. Lab. Rels. Auth., 842 F.2d 487, 495 (D.C. Cir. 1988)
(citing Olim v. Wakinekona, 461 U.S. 238, 249 (1983)).
If the employee serves at will—that is, if the government
may remove her for “any constitutionally permissible reason or
for no reason at all”—the employee has no property interest.
Olim, 461 U.S. at 249 (quoting Conn. Bd. of Pardons v.
Dumschat, 452 U.S. 458, 467 (1981) (Brennan, J.,
concurring)). The same is true if the government has free rein
to remove the employee for any reason except for certain
specified reasons, such as where a statutory bar on
discriminatory firings applies. See Garrow v. Gramm, 856
F.2d 203, 207 (D.C. Cir. 1988); Hall v. Ford, 856 F.2d 255,
266 (D.C. Cir. 1988). In those situations, the employee has
“no property interest because there is no objective basis for
believing that they will continue to be employed indefinitely.”
Hall, 856 F.2d at 265.
By contrast, an employee has a property interest if the
government has “fostered rules and understandings” which
entitle the employee “to believe that [she] would lose [her] job
only for a job-related reason.” Ashton v. Civiletti, 613 F.2d
923, 928 (D.C. Cir. 1979); see also Stone v. Fed. Deposit Ins.
7
Corp., 179 F.3d 1368, 1374 (Fed. Cir. 1999) (“If the
government gives a public employee assurances of continued
employment or conditions dismissal only for specific reasons,
the public employee has a property interest in continued
employment.”). Put another way, a property interest exists if
the employee can “be removed only for cause.” Thompson v.
District of Columbia, 530 F.3d 914, 918 (D.C. Cir. 2008)
(internal quotation marks omitted). That is because an
employee removable for cause “can expect to remain employed
unless they do something warranting their termination.” Hall,
856 F.2d at 265 (emphasis in original).
Under that framework, the statutory and regulatory
provisions applicable here gave Esparraguera a property
interest in her SES status.
To begin, the CSRA sets the baseline expectation that a
“career appointee may not be removed from the Senior
Executive Service or civil service except in accordance with”
five specified provisions, one of which is the provision in
Section 3592(a)(2) that the Army relied on here. 5 U.S.C.
§ 3393(g). Section 3592(a)(2) allows a career SES employee
to be removed only based on a finding of “less than fully
successful executive performance as determined under
subchapter II of chapter 43 of this title.” Id. § 3592(a)(2).
That language in Section 3592(a)(2)—even viewed in
isolation—is similar to language that our court and others have
held creates a property interest by conditioning removal on
poor job performance. For example, the Supreme Court found
a property interest created by a state law that said employees
would retain their positions “during good behavior and
efficient service” and could not be dismissed “except . . .
for . . . misfeasance, malfeasance, or nonfeasance in office.”
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538–39
8
(1985); see also Wheaton v. Webb-Petett, 931 F.2d 613, 616–
17 (9th Cir. 1991) (Oregon law creates property interest by
stating that employee would be removed only if he was “unable
or unwilling to fully and faithfully perform the duties of the
position satisfactorily”). Similarly, both our court and the
Federal Circuit have held that 5 U.S.C. § 7513, a CSRA
provision that allows agencies to remove certain employees
“only for such cause as will promote the efficiency of the
service,” creates a property interest. Johnson v. United States,
628 F.2d 187, 192–94 (D.C. Cir. 1980); Stone, 179 F.3d at
1375. The Federal Circuit has also found that a removal under
5 U.S.C. § 4303—which permits removal of certain employees
“for unacceptable performance”—implicates a property
interest. Stone, 179 F.3d at 1375.
Courts have also found that non-statutory language can
create the requisite property interest. In Perry v. Sindermann,
408 U.S. 593 (1972), the Supreme Court held that a college
faculty guide created a property interest by stating that the
college “wishes the faculty member to feel that he has
permanent tenure as long as his teaching services are
satisfactory and as long as he displays a cooperative attitude
toward his co-workers and his superiors, and as long as he is
happy in his work.” Id. at 600. And in Ashton, we reviewed
an FBI employee handbook stating, “‘You may assume that
your position is secure, if you continue to do satisfactory
work.’” 613 F.2d at 929. We explained that the handbook
gave rise to a property interest because it sufficiently conveyed
“the understanding that appellant did not hold his position at
the whim of his superiors”—instead, by conditioning removal
on unsatisfactory work, the handbook indicated “that he would
lose his position only for behavior which impaired his
efficiency or that of the Bureau.” Id.
9
None of these provisions spelled out exactly what
“satisfactory work,” “efficiency of the service,” or
“unacceptable performance” means. What mattered was that
the employees could not be removed “at the whim of [their]
superiors,” id., and instead could expect to remain in their
positions unless their supervisors found that they failed to meet
those supervisors’ definitions of, for example, “satisfactory
work.” Section 3592(a)(2)’s “less than fully successful
executive performance” requirement can be understood
similarly.3
But Section 3592(a)(2) need not—and should not—be
read on its own. Two features of the governing legal
3
The government agrees that another CSRA provision
governing career SES appointees, 5 U.S.C. § 7543(a), creates a
property interest. Gov’t Br. 27. That provision permits the
government to suspend or terminate a career SES employee from
federal employment entirely “only for misconduct, neglect of duty,
malfeasance, or failure to accept a directed reassignment or to
accompany a position in a transfer of function.” Id.; see 5 U.S.C.
§ 7542. The government argues that because Congress did not use
the same language in Section 7543 and Section 3592(a)(2), Section
3592(a)(2) should not be interpreted as equivalent to a for-cause
provision. As we have just explained, however, there are many
different formulations that can create a property interest. The
question here is not whether Congress set the same standard for
terminations under Section 7543(a) and demotions under Section
3592(a)(2); indeed, there are obvious reasons the standard for full
termination would be higher than that for demotion. The inquiry
instead remains whether the “substantive provisions” governing the
demotion specify “particularized standards or criteria [to] guide
the . . . decisionmakers” seeking to demote the employee. Griffith,
842 F.2d at 495. And as this opinion further explains, the limitation
found in Section 3592(a)(2), paired with the CSRA’s performance
appraisal system and applicable regulations, does so.
10
framework confirm that a career SES appointee has a property
interest in her SES status.
First, the statute specifies that “less than fully successful
performance” must be “determined under subchapter II of
chapter 43.” 5 U.S.C. § 3592(a)(2). That subchapter sets
forth the CSRA’s detailed performance appraisal system. Id.
§§ 4311–15. It requires each agency’s performance
appraisal system to include “one or more fully successful
levels,” “a minimally satisfactory level,” and “an
unsatisfactory level.” Id. § 4314(a)(1)–(3). The statute
indicates this rating system should promote objectivity—for
example, it creates PRBs which are to be appointed “in such a
manner as to assure consistency, stability, and objectivity in the
performance appraisal,” id. § 4314(c)(4), and it requires the
final decisionmaker to consider the PRB’s recommendations,
id. § 4314(c)(3).
The Army’s performance appraisal system has five rating
levels. The regulation is clear, as the statute envisions, that the
Under Secretary must operate within that scheme and “assign
a rating level.” Army Reg. 690-920 ¶ 5-5(d). A Level 3
rating stands for “fully successful,” meaning a Level 2 or 1 is
“less than fully successful” and exposes a career SES employee
to removal under Section 3592(a)(2). Id. at App. D. The
Level 3 rating is defined as follows: “Performance in relation
to performance requirements is of such quality that it would be
expected only of a proven, competent executive. At least
meets requirements for all critical elements.” Id. The next
level down is “minimally satisfactory,” defined as:
“Performance in relation to performance requirements is less
than that expected of a proven, competent executive.
Performance indicates a need for improvement in one or more
critical elements. The executive must improve to warrant
retention.” Id. The referenced “critical elements” are
11
specifically defined for each role. See J.A. 49 (“Agency-
Specific Performance Requirements”).
In practical terms, those definitions mean the Under
Secretary may not find an appointee was “less than fully
successful” and remove her from the SES unless he finds that
she needs “improvement in one or more critical elements.” If
the Under Secretary finds the employee “meets requirements
for all critical elements,” he must assign a Level 3 “fully
successful” rating and cannot demote her. These detailed
regulations enhance employees’ legitimate expectations of
continued employment because employees know they cannot
be removed unless they perform poorly on specified metrics.
Second, the surrounding statutory provisions in Section
3592 confirm that the required finding of “less than fully
successful executive performance” is a meaningful constraint.
Recall that career SES appointees must complete an initial one-
year probationary period. See 5 U.S.C. § 3393(d). Section
3592(a)(1) grants the government authority to remove
appointees “during the 1-year period of probation” without any
substantive restriction at all. Id. § 3592(a)(1). SES
appointees plainly serve at will during that year and have no
property interest in their newly acquired SES status. But after
that probationary period, per Section 3592(a)(2), the specific
finding of “less than fully successful executive performance”
must be made before an appointee can be removed from the
SES. Congress’s choice to add that substantive limitation
only after a probationary period indicates that Congress
intended it to be a meaningful constraint on removal from the
SES; otherwise, the limitation would serve no purpose.
Ashton drew on an analogous contrast to “confirm[]” that the
“satisfactory work” limitation there gave rise to a legitimate
expectation of continued employment. 613 F.3d at 929. Our
reasoning in Ashton applies with equal force here: “A
12
probationary period, of course, would be unnecessary if the
employer could dismiss a non-probationary employee at any
time and for any reason.” Id.
Another neighboring provision, Section 3592(c), states
that a “limited emergency appointee, limited term appointee, or
noncareer appointee may be removed from the [SES] at any
time,” also without any substantive limitation. 5 U.S.C.
§ 3592(c). These appointees have no legitimate expectation
of continuing in their roles. Again, the contrast with Section
3592(a)(2) suggests that a career SES appointee who has
completed her probationary period can expect to continue in
the SES unless agency officials make a finding that she has
performed inadequately in her job.
Taken together, the statutory provisions of the CSRA and
the Army’s implementing regulations provide sufficiently
“particularized standards or criteria [to] guide the . . .
decisionmakers,” Griffith, 842 F.2d at 495, and create a
property interest in a career SES position.
B
The government’s contrary arguments are incorrect. The
government’s core argument—which our dissenting colleague
endorses—is that the substantive limitations on removal from
the SES under Section 3592(a)(2) are too insubstantial. The
lone authority the government identifies as involving
comparable limitations is Griffith, where we held that the
Federal Labor Relations Act (“FLRA”) did not confer a
property interest in pay raises. Id. at 505. That statute said
that employees would receive raises if they were “of an
acceptable level of competence as determined by the head of
the agency.” Id. at 496 (quoting 5 U.S.C. § 5335(a)(3)(B)).
If the “acceptable level of competence” requirement was not
13
sufficiently specific to give rise to a property interest, the
government urges, neither is Section 3592(a)(2)’s “less than
fully successful performance.” But Griffith is markedly
different from this case.
First, Griffith concerned whether an employee had a
property right in yearly pay raises, which is more “similar[] to
a promotion” than the demotion at issue here. Id. at 498. We
emphasized there that courts “have hardly ever found an
entitlement to a promotion,” and we used that important
“context” to distinguish Griffith from other cases (including
Ashton and Johnson) finding property interests when demotion
or removal was at issue. Id. at 500–02.
Second, the “acceptable level of competence” language at
issue in Griffith was not further constrained by the agency’s
performance appraisal system. Id. at 496 (citing Creamer v.
United States, 174 Ct. Cl. 408, 413 (1966) (“Congress clearly
abandoned, for in-grade raises, any connection with annual
performance ratings.”)). And the regulations that did govern
“plainly did not further constrain the agency head’s discretion,”
because they did not establish “any kind of test” for the agency
head to apply to determine whether the employee’s
performance supported a promotion. Id. at 497. Indeed, our
court was careful to acknowledge that its holding would not
apply to then-recently amended FLRA regulations, which
“tie[d] the determination of acceptable performance for within-
grade increases into the existing agency performance appraisal
systems, and thus may place somewhat greater constraints on
the agency head’s discretion.” Id. at 497 n.5. Here, that very
“tie” exists: As we have explained, the CSRA requires that
“less than fully successful” performance be determined by the
agency performance appraisal system, which the Army in turn
has defined with substantive content in its regulations.
14
Third, Griffith placed great weight on “Congressional
concern for flexibility,” 842 F.2d at 501, as demonstrated by
the FLRA’s legislative history, which showed that
Congress’s intent was to provide an agency head “flexibility in
awarding such advancement” as a “useful tool in eliciting high-
quality performance,” id. at 499. The government argues that
the CSRA should be read similarly, pointing to legislative
history stating in general terms that the SES should resemble
“the kind of system that has been highly successful in the
private sector,” S. Rep. No. 95-969, at 11 (1978), and “was to
be a fluid, highly competitive group of executives” who would
be “subject to legally unencumbered removals for poor
performance,” S. Rep. No. 98-351, at 3 (1984).
Unlike in Griffith, however, those statements—at least if
we were to read them as the government asks us to—contradict
the statute’s text and declarations of purpose (not to mention
the governing regulations). 4 Two of the CSRA’s declared
purposes in establishing the SES are to “attract and retain
highly competent senior executives,” 5 U.S.C. § 3131(1), and
4
It bears mention, moreover, that the government and dissent
overread the legislative history even on its own terms. Both seize
on the 1984 Senate Report’s expansive statement that Congress in
1978 intended SES employees to be “subject to legally
unencumbered removals for poor performance.” S. Rep. No. 98-
351, at 3; see Dissenting Op. 10–11. That statement, however, was
not addressing Section 3592(a)(2) at all—it was a general (and post
hoc) description of the SES program as a whole, “not directed to any
particular statutory language.” Telesat Canada v. FCC, 999 F.3d
707, 711 (D.C. Cir. 2021). When properly viewed for what it is, the
statement is even more plainly contrary to the statute Congress
actually enacted. All agree that the CSRA in fact significantly
encumbers “removals” at least with respect to termination of career
SES appointees. See Dissenting Op. 3; see also 5 U.S.C.
§§ 3393(g), 1215, 7543.
15
“ensure that compensation, retention, and tenure are contingent
on executive success,” id. § 3131(2). The statute goes on to
specify that “executive success” should be “measured on the
basis of individual and organizational performance (including
such factors as improvements in efficiency, productivity,
quality of work or service, cost efficiency, and timeliness of
performance and success in meeting equal employment
opportunity goals).” 5 U.S.C. § 3131(2). Those statutory
purposes are served by requiring some objective assessment of
performance—as the parenthetical listing of factors suggests
and the statute and regulations prescribe—before demoting an
employee from the SES ranks, not by allowing fully
unencumbered removals from the SES. It is true, as the
government emphasizes, that one goal of the SES was to create
a class of skilled employees who could be moved across SES
positions flexibly, and the statute appears to provide no
property interest in any particular SES position. See, e.g., id.
§ 3131(5) (stating a purpose is to “enable the head of an agency
to reassign senior executives to best accomplish the agency’s
mission”). But the statute’s text does not evince a similar
concern for flexibility in the sense of agencies’ ability to move
career employees out of the SES class itself.
Admittedly, one factor Griffith identified as counseling
against a property interest finding is present here: The
removal decision is vested “in a specific party,” 842 F.2d at
498, the Under Secretary. Such vesting can suggest the
decision is entrusted to that party’s judgment, a suggestion the
Army Regulation reinforces by stating that officials have
“substantial discretion” when assigning a rating. Army Reg.
690-920, App. D.
But the crux of our inquiry remains whether the removal
decision—however many people make it—is subject to
meaningful substantive constraints that “guide” the
16
decisionmaker(s). Griffith, 842 F.2d at 496. Here, for all the
reasons given above, the removal decision is so constrained.
To illustrate the point, the Under Secretary could certainly
exercise his judgment and disagree with a proposed rating
because he believed an employee was effective (or not) at one
of the critical elements of her job. But he is prohibited by the
statute and regulations from deciding, with no reason at all, that
an employee should be rated a Level 1 or 2 instead of a Level
3, 4, or 5. And he cannot remove an employee under Section
3592(a)(2) without first making the requisite findings and
assigning a final rating of Level 1 or 2. That is why removal
under Section 3592(a)(2) is meaningfully different from at-will
employment, where a supervisor may remove an employee for
any reason or no reason at all.5
Griffith is materially distinguishable from this case, and
yet it is conspicuously the only case the government or the
5
The dissent maintains that the substantive constraints imposed
by Section 3592(a)(2) and the implementing regulations remain too
insubstantial to give rise to a property interest because they do not
“cover every situation” or rule out all consideration of “intangibles”
and thus leave some discretionary judgment to the Under Secretary.
See Dissenting Op. 6–7. If that view were the law, however, it is
difficult to see how most of the binding decisions discussed above,
supra at 7–9, could have been correctly decided. See, e.g., Johnson,
628 F.2d at 192–93 (finding property interest where employee could
be dismissed only for “such cause as will promote the efficiency of
the service,” which “is not restricted to testing the employee’s work-
efficiency or his performance on the job” (quotation omitted));
Ashton, 613 F.2d at 929 (finding property interest where removal was
conditioned on “satisfactory work”); Perry, 408 U.S. at 600
(similar). This case may be close to the line, but viewing Section
3592(a)(2) in light of the surrounding statutory provisions, the
governing regulations, and binding precedent, the limits it imposes
are sufficient to give rise to a property interest.
17
dissent identify as finding no property interest in purportedly
similar circumstances. 6 Because Esparraguera could
reasonably believe she “would lose [her] job only for a job-
related reason,” Ashton, 613 F.2d at 928, she had a property
interest protected by the Due Process Clause.
Finally, the government observes that the MSPB has
suggested the lack of a right to appeal a Section 3592(a)(2)
demotion to the MSPB indicates there is no constitutionally
protected property interest. Berger v. Dep’t of Energy, 36
M.S.P.R. 48, 52–53 (1987); see also Esparraguera, 981 F.3d
at 1336 (holding that the MSPB does not have appellate
6
And indeed, the cabined discretion afforded to the Under
Secretary here stands in sharp contrast to the authority provided to
agency decisionmakers in other cases where we held there was no
property interest. For example, in Webster v. Doe, 486 U.S. 592
(1988), the statute stated that “the Director of Central Intelligence
may, in his discretion, terminate the employment of any officer or
employee of the Agency whenever he shall deem such termination
necessary or advisable in the interests of the United States.” Id. at
594. That grant of unfettered discretion establishes a relationship
akin to at-will employment, as this court held on remand from the
Supreme Court. Doe v. Gates, 981 F.2d 1316, 1320 (D.C. Cir.
1993). We reached a similar conclusion in Langeman v. Garland,
88 F.4th 289 (D.C. Cir. 2023), where we held that an FBI
memorandum did not create a property interest when it provided the
FBI Director “discretion to act without hesitation” to summarily
dismiss employees “where the safety of the public, our fellow
employees, national security interests or other compelling
considerations may be at stake.” Id. at 293. That memorandum—
unlike the statute and regulations here—contained no specific
directives “to the referenced decisionmakers that would indicate a
‘particular outcome must follow’ from predicate findings.” Id. at
295 (quoting Tarpeh-Doe v. United States, 904 F.2d 719, 723 (D.C.
Cir. 1990)).
18
jurisdiction to review Section 3592(a)(2) demotions). The
dissent endorses this view, arguing that the extent of procedural
protections Congress provides should inform the question of
whether a property interest exists. Dissenting Op. 8–10.
The Supreme Court has made clear, however, that whether
a property interest exists is not “defined by the procedures
provided for its deprivation.” Loudermill, 470 U.S. at 541.
The “categories of substance and procedure are distinct” and
“were the rule otherwise, the [Due Process] Clause would be
reduced to a mere tautology.” Id. Reflecting that fact, none
of our circuit’s cases rely on the existence (or not) of specified
procedures for taking an employment action in determining
whether a substantive property interest has been created. See,
e.g., Ashton, 613 F.2d at 928 (finding property interest created
despite absence of any procedural rights); Griffith, 842 F.2d. at
495 (finding no property interest despite presence of statutory
procedures).7 The question here remains whether the Under
7
The dissent cites two out-of-circuit cases, Wheaton, 931 F.2d
613, and Ross v. Clayton Cnty, 173 F.3d 1305 (11th Cir. 1999), to
support its view that whether the legislature provides appellate rights
for removals informs whether a substantive property interest has
been created. Wheaton does not support the dissent’s view. There,
the employee at issue could not be removed unless “unable or
unwilling to fully and faithfully perform the duties of the position
satisfactorily.” 931 F.2d at 616–17. The Ninth Circuit then
referenced an appellate provision not for the simple fact of its
existence, but because the appellate provision stated the removal
should be overturned if it was not taken “in good faith for cause,”
thus reinforcing that the removal was substantively constrained.
931 F.2d at 617. Ross, on the other hand, does appear to suggest
that the absence of an appellate mechanism militates against finding
a property interest—in that respect, Ross reasoned incorrectly. 173
F.3d at 1308–09. It is worth noting, however, that Ross, unlike
19
Secretary’s removal decision is substantively limited by the
statute and regulations to a sufficient extent, not what
procedural safeguards Congress chose to provide. For all the
reasons given above, the answer to that question is yes.
III
Having determined that Esparraguera had a property
interest in her career SES status, we next determine whether
Esparraguera received constitutionally adequate process in her
removal.
“An essential principle of due process is that a deprivation
of life, liberty, or property ‘be preceded by notice and
opportunity for hearing appropriate to the nature of the case.’”
Loudermill, 570 U.S. at 542 (quoting Mullane v. Cent. Hanover
Bank & Trust Co., 339 U.S. 306, 313 (1950)). To have proper
notice and a meaningful opportunity to respond, an employee
must at least “know the factual basis for the action.” Ralls
Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 318
(D.C. Cir. 2014).
Esparraguera has adequately pleaded that she did not
receive sufficient process. She alleges she was provided
neither the evidence that formed the factual basis of her
removal—including the OSC report cited as the reason for her
removal—nor any opportunity to respond to that evidence prior
to the Under Secretary’s decision to remove her. Indeed, she
alleges she was not even informed about the existence of the
special PRB that recommended her removal until after it made
its recommendation to the Under Secretary. According to her
Esparraguera, was a probationary employee, which factored heavily
into the Eleventh Circuit’s holding that he had no property interest.
See id. at 1308, 1309 n.8.
20
allegations, the only opportunity she had to respond was at the
informal MSPB hearing, which occurred over six months after
her removal decision took effect.
The government notes that the extent of procedures the
Due Process Clause requires varies with the magnitude of the
private interest at stake and asserts that any private interest here
was “relatively insubstantial” because Esparraguera was only
demoted, rather than terminated entirely. Gov’t Br. 42. But
even accepting that characterization, insubstantial does not
mean nonexistent. The government admits that SES status
carries monetary advantages to which a property interest can
attach insofar as there are differences in paid leave, future pay
rates, and other benefits between a career SES and a non-SES
position. See Gov’t Br. 41; see also, e.g., 5 U.S.C. §§ 3131(1),
3594(c)(2), 5376(b)(1)(A), 5382, 5384, 6304(f). Our cases
are clear that, absent exigent circumstances not implicated
here, the Due Process Clause “requires, at minimum, that the
government provide notice and some kind of hearing before
final deprivation of a property interest.” Propert v. D.C., 948
F.2d 1327, 1331 (D.C. Cir. 1991) (emphasis added).
The only supposedly adequate process the government can
point to is Esparraguera’s June 2019 hearing at the MSPB.
Again, however, that hearing took place almost six months
after her removal from the SES took effect. That hearing was
no substitute for the pre-deprivation process to which
Esparraguera was constitutionally entitled.
Under our precedent and the complaint’s allegations, due
process entitled Esparraguera to at least notice and an
opportunity to respond before her removal, and she received
neither. The district court did not reach the question of what
process Esparraguera was due because it dismissed the
complaint based on its threshold determination that
21
Esparraguera lacked any property interest in her SES status.
We leave to the district court on remand to determine whether
greater procedures were required either before or after the
deprivation, including whether adherence to the CSRA’s
existing procedural protections for removals under Section
3592(a)(2)—which allegedly were not followed here—would
satisfy the Due Process Clause’s guarantee. See 5 U.S.C.
§§ 4312(b)(3), 4314(c)(2).
IV
The district court’s judgments are reversed, and the cases
are remanded for further proceedings consistent with this
opinion.
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:
Maria Esparraguera’s appeal presents us with a novel
constitutional question: Does a Senior Executive Service (SES)
career appointee have a property interest in that position that
entitles her to due process before she can be transferred to a
non-SES civil service position? See 5 U.S.C. § 3592(a)(2). My
colleagues conclude that she does. See Maj. Op. 5–6. Based on
my review of the full SES legal framework and the factors
enunciated in Griffith v. Fed. Lab. Rels. Auth., 842 F.2d 487,
495 (D.C. Cir. 1988), I would find no constitutional property
interest in an SES career appointee’s rank. Accordingly, I
respectfully dissent.
I. BACKGROUND
The Civil Service Reform Act of 1978 (CSRA) created
several classifications of civil service employees. Civil Service
Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111
(codified as amended in scattered sections of 5 U.S.C.). The
SES consists of employees “who occupy high-level positions
in the Executive Department, but for whom appointment by the
President and confirmation by the Senate is not required.”
United States v. Fausto, 484 U.S. 439, 441 n.1 (1988). The SES
offers salary and incentive benefits “designed to attract and
retain highly competent senior executives.” 5 U.S.C.
§ 3131(1). “[C]ompensation, retention, and tenure are
contingent on executive success,” based on both individual and
organizational performance. Id. § 3131(2). And the CSRA
enables “the head of an agency to reassign senior executives to
best accomplish the agency’s mission.” Id. § 3131(5).
When first joining the SES, the senior executive 1
undergoes a “1-year probationary period.” Id. § 3393(d).
1
Different categories of senior executives comprise the SES. A
senior executive who is a career appointee serves a potentially
unlimited term. 5 U.S.C. § 3132(a)(4). Only a career appointee may
2
According to Section 3592(a)(1), a probationary senior
executive “may be removed from the Senior Executive Service
to a civil service position outside of the Senior Executive
Service” for any reason. Following the probationary period, the
career appointee is subject to removal—from the SES or from
the civil service—in accordance with five CSRA provisions.
Id. § 3393(g). As relevant here, she can be removed from the
civil service entirely “only for misconduct, neglect of duty,
malfeasance, or failure to accept a directed reassignment or to
accompany a position in a transfer of function.” Id. § 7543; see
id. § 7542. 2 The CSRA provides several procedural
protections, including written notice, an opportunity to answer
and eventual appeal to the Merit Systems Protection Board
(MSPB or Board). Id. § 7543. The appointee can also be
“removed from the Senior Executive Service” and placed into
a non-SES civil service position pursuant to Section
3592(a)(2): “at any time for less than fully successful executive
performance as determined under subchapter II of chapter 43
of this title.” She can request an informal hearing before an
official designated by the MSPB but cannot obtain MSPB
review. Id. § 3592(a). The Under Secretary of the Department
serve in a “career reserved position.” Id. § 3132(a)(8). Limited
emergency appointees and limited appointees serve nonrenewable
appointments up to 18 months and 3 years, respectively. Id.
§ 3132(a)(5), (6). A noncareer appointee is a senior executive falling
under none of the other categories. Id. § 3132(a)(7).
2
Although the CSRA repeatedly uses “removal,” the term has
different meanings under different statutory provisions. Under
Sections 7542–7543, removal means termination from the civil
service entirely. If a senior executive is removed thereunder, she
loses her employment. But removal pursuant to Section 3592(a)(2)
is simply a demotion. A senior executive “removed” under this
section loses her SES rank but maintains her civil service
employment.
3
of the Army (Under Secretary) removed Esparraguera pursuant
to this provision and placed her in a GS-15 position.
I agree with my colleagues on several points. First, a
probationary SES appointee has no protection against removal
under Section 3592(a)(1). See Ashton v. Civiletti, 613 F.2d 923,
929 (1979) (one-year probationary period indicates a
probationary employee “could be fired without ceremony”);
Maj. Op. 2. Second, noncareer and limited appointees “may be
removed from the service at any time.” 5 U.S.C. § 3592(c);
Maj. Op. 12. Third, a career appointee can be removed—that
is, terminated—from the civil service only for cause under
Sections 7542–7543. See Maj. Op. 9 n.3. Our differences arise
regarding the removal—that is, demotion—of a career
appointee “at any time for less than fully successful
performance as determined under subchapter II of chapter 43
of this title.” 5 U.S.C. § 3592(a)(2).
II. ANALYSIS
Esparraguera claims that the Due Process Clause protects
her interest in SES rank so that she cannot be removed
therefrom without notice and an opportunity to be heard. See
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,
313 (1950). Stated another way, she maintains that she has a
“legitimate claim of entitlement” to her SES rank. Bd. of
Regents v. Roth, 408 U.S. 564, 577 (1972). A claim of
entitlement exists if “particularized standards or criteria guide
the . . . decisionmakers.” Olim v. Wakinekona, 461 U.S. 238,
249 (1983) (quotation omitted). In Griffith, we considered
several factors to evaluate whether a legitimate claim of
entitlement exists: (1) the vagueness of the controlling terms;
(2) the vesting of decisionmaking authority in the agency head;
(3) the nature of the claimed interest; and (4) the Congress’
interest in flexibility. Griffith, 842 F.2d at 497–98. Applying
4
this analysis to Esparraguera’s Section 3592(a)(2) demotion, I
would find she has no legitimate claim of entitlement to her
career senior executive appointment.
A. Vagueness of Controlling Term and Nature of
Esparraguera’s Interest
Section 3592(a)(2) permits demotion “at any time for less
than fully successful executive performance.” The majority
compares this language to standards in other cases where we
found a legitimate claim of entitlement. Maj. Op. 7–8. But, as
we noted in Griffith, those cases arose “[i]n the context of
dismissal.” 842 F.2d at 498 (emphasis in original) (citing
Johnson v. United States, 628 F.2d 187, 192, 194 (D.C. Cir.
1980); Ashton, 613 F.2d at 929). 3 Esparraguera’s claim is not
based on a dismissal but rather a demotion to another civil
service position with no diminution in pay. See 5 U.S.C.
§ 3594(c)(1)(B).
Although some courts have found a property interest in
one’s rank, they have relied on far more explicit language than
that used in Section 3592(a)(2). For example, they have done
so if a collective bargaining agreement permits demotion only
3
Griffith considered a federal employee’s alleged entitlement
to a within-grade pay increase—essentially a promotion. 842 F.2d at
499. My colleagues believe the Griffith court distinguished
“cases . . . finding property interests when demotion or removal was
at issue.” Maj. Op. 13 (emphasis added). Griffith undoubtedly
distinguished promotion from termination but did not discuss any
precedent dealing solely with demotion in one’s rank. See 842 F.2d
at 499–501. Why, my colleagues might ask, would I rely on a non-
demotion case? I do so because regardless of the discrete entitlement
pursued, Griffith’s multi-factor analysis sets out how the court should
determine whether a legitimate claim of entitlement exists. 842 F.2d
at 495, 497–98.
5
for “cause shown.” Hennigh v. City of Shawnee, 155 F.3d 1249,
1255 (10th Cir. 1998); see also Ciambriello v. Cnty. of Nassau,
292 F.3d 307, 316, 318 (2d Cir. 2002) (finding a property
interest where agreement permitted demotion only after
“charges of incompetence and/or misconduct”). Others have
found a property interest in rank if the governing statute
imposes “for cause” protection. See Sowers v. City of Fort
Wayne, 737 F.2d 622, 624–25 (7th Cir. 1984); Williams v.
Commonwealth of Ky., 24 F.3d 1526, 1538 (6th Cir. 1994). In
Wheaton v. Webb-Petett, 931 F.2d 613 (9th Cir. 1991), the
Ninth Circuit found a property interest in rank after Oregon’s
Adult and Family Services Division demoted Wheaton from
the management service and returned him to the classified
service. Id. at 615–17. An Oregon statute guaranteed his
management rank unless “the employee is unable or unwilling
to fully and faithfully perform the duties of the position
satisfactorily.” Id. at 616–17. The court recognized that the
employee had a right to appeal his demotion to an employee
relations board, which could remedy the demotion only if the
“action was not taken in good faith for cause.” Id. at 617
(emphasis in original). Because the appellate board guaranteed
that Wheaton could be demoted only “for cause,” the Ninth
Circuit found that he had a property interest in his management
service rank. Id.
These demotion cases include explicit “for cause”
protections, unlike Section 3592(a)’s “at any time for less than
fully successful performance” standard. The Griffith court’s
consideration of the “acceptable level of competence” standard
for a within-grade pay increase led it to conclude that the
“vagueness of the criteria clearly militate[s] against the finding
6
of an entitlement.” 842 F.2d at 498. 4 I would reach the same
conclusion here.
B. Decisionmaker’s Discretion
As the majority notes, the CSRA and Army Regulations
vest the demotion decision in a specific party: the Under
Secretary. Maj. Op. 15; see 5 U.S.C. § 4314(c)(3) (final
performance appraisal is placed in “appointing authority”);
Army Reg. 690-920, 1-3. In Griffith, we stated that vesting
discretion in a single authority often “compel[s] the conclusion
that no property interest can be found.” 842 F.2d at 498. A sole
decisionmaker’s discretionary decision “can rest on judgment
about intangibles as much as on objectively verifiable facts.”
Id. at 497. A judgment based on intangibles, unlike a finding of
objective fact, does not significantly “constrain the agency
head’s discretion.” Id. And the Army Regulations explain that
“appointing authorities have substantial discretion in
determining which rating levels to recommend or approve.” 5
Army Reg. 690-920, App. D-3 (emphasis added). They “will
be required to exercise judgment” when assigning ratings
4
Griffith noted that then-recently promulgated regulations tied
within-grade pay increases to the existing agency performance
appraisal system and “thus may place somewhat greater constraints
on the agency head’s discretion.” 842 F.2d at 497 n.5. As discussed
infra, I believe any constraint effected by the Army’s performance
appraisal system falls within the Under Secretary’s exercise of his
wide discretion.
5
Each agency’s SES performance appraisal system has a multi-
level rating scale for annual evaluation. 5 U.S.C. § 4314(a). The
Army has a five-level scale. Army Reg. 690-920, App. D-2. Rating
Levels 1 and 2—Unsatisfactory and Minimally Satisfactory—
constitute less than fully successful performance. Id. Rating Levels
3, 4 and 5—Fully Successful, Highly Successful and Exceptional—
constitute fully successful performance. Id.
7
because the rating system does not cover every situation. Id.
(emphasis added).
The majority finds the Under Secretary’s discretionary
authority sufficiently constrained by the Army’s performance
appraisal system to give rise to a property interest in
Esparraguera’s SES status. Maj. Op. 10–11, 15–16. I disagree.
Vesting discretion in a specific decisionmaker indicates the
position may be held “at will.” Griffith, 842 F.2d at 498–99. In
Edwards v. Brown, 699 F.2d 1073 (11th Cir. 1983), the
Eleventh Circuit considered a city ordinance providing that
police officers “serve during good behavior and efficient
service, to be judged by the Commissioner or a designee.” Id.
at 1075. Although “good behavior and efficient service”
indicated an officer could be discharged only for those reasons,
making the Commissioner the sole decisionmaker indicated
that “he was the person in whom was placed the power to
determine whether the reasons [for termination] existed.” Id. at
1077. Accordingly, the court held that police officers served
“at the will” of the Commissioner. Id.
Decades ago, the MSPB recognized that a Section
3592(a)(2) removal did not deprive an SES career appointee
“of a property right in continued employment with the right to
notice and an opportunity for hearing.” Berger v. Dep’t of
Energy, 36 M.S.P.R. 48, 52 (1987). “Congress has established
the existing rules and understandings by the clear import of the
statutes defining the appeal rights of SES members.” Id.
Although Sections 7542–7543 grant an SES career appointee
who is terminated from the civil service the full panoply of
appeal rights, the Congress extended no similar review
mechanism to an SES career appointee demoted under Section
3592(a)(2). I believe the difference in statutory language
reinforces the appointing authority’s wide discretion to remove
a career appointee under Section 3592(a)(2).
8
Other courts have viewed the inclusion of an appellate
mechanism as a check on a decisionmaker’s otherwise
unbridled discretion. In Ross v. Clayton County, 173 F.3d 1305
(11th Cir. 1999), the County demoted Ross—a probationary
correctional officer—to a lower-ranking position. Id. at 1306.
Looking beyond Ross’s “probationary” status, the court
examined applicable Clayton County regulations. Id. at 1308. 6
The regulations provided that all employees “may be demoted
only for cause” but only permanent, not probationary,
employees had a right to appeal a demotion. Id. Because a
probationary employee had no appeal right, “[f]inal discretion
is thus vested in the appointing authority’s unilateral
determination of whether there was ‘cause’ for demoting the
employee.” Id.; see also id. at 1309 (describing warden’s
authority as “unchecked”). Ross thus “lacked a property
interest in his rank.” Id. at 1309. But the Ninth Circuit found a
property interest in one’s rank because all employees could
appeal a disciplinary action—including a demotion—to an
employee relations board that could uphold the action only if
“taken in good faith for cause.” Wheaton, 931 F.2d at 617
(emphasis in original). 7
6
My colleagues believe Ross’ probationary status “factored
heavily into the Eleventh Circuit’s holding.” Maj. Op. 18 n.7. But the
Ross court looked beyond Ross’ probationary status to consider
applicable regulations. Ross, 173 F.3d at 1308. It also relied “on the
non-appealability of the supervisor’s decision” so it did not decide
as a general matter if a probationary employee can have a property
interest in rank while simultaneously lacking a property interest in
employment. Id. at 1309 n.8.
7
The majority claims Wheaton referenced the significance of
appeal to the employee relations board simply because of its
substantive “for cause” review of disciplinary actions. Maj. Op. 18
n.7. The Ninth Circuit did not make such a fine distinction. On my
reading, the Wheaton court separately highlighted the substantive
9
I believe the MSPB got it right. Just like the probationary
officer in Ross, an SES career appointee demoted to the civil
service under Section 3592(a) by the Under Secretary is not
entitled to due process notice and an opportunity to be heard.
The demoted appointee can participate in an informal hearing
conducted by an MSPB designee but cannot seek review by the
Board itself. 5 U.S.C. § 3592(a); Berger, 36 M.S.P.R. at 51–
52. The Army’s performance appraisal system may limit the
reasons the Under Secretary can use to demote a career senior
executive but the Under Secretary ultimately has broad
discretion “to determine whether the reasons exist[].” Edwards,
699 F.2d at 1077 (emphasis added). Despite Esparraguera’s
having repeatedly received a recommended rating of Level 5
(“Outstanding”) from her first-line supervising official, the
Under Secretary exercised his discretion to rate her at Level 1
(“Unsatisfactory”). His decision addressed intangibles because
the “rating level definitions will not cover every situation in
assigning a rating.” Army Reg. 690-920, App. D-3; see
Griffith, 842 F.2d at 497 (judgment resting on intangibles lies
within the decisionmaker’s discretion). He found
Esparraguera’s credibility “completely undermine[d]” and he
“lost confidence in [Esparraguera’s] ability to successfully
perform [her] duties as an Army Executive.” J.A. 41. Although
the Under Secretary’s discretion is tied to the performance
appraisal system, he had the authority to weigh and
determine—in his discretion—if Esparraguera in fact
continued to meet SES career appointment performance. See
Army Reg. 690-920, App. D.
The majority dismisses Berger and its analysis as applying
the “bitter with the sweet” approach rejected in Cleveland
“for cause” standard and the constraining effect of the employee
relations board’s appellate review. 931 F.2d at 617; see supra Section
II.A.
10
Board of Education v. Loudermill, 470 U.S. 532, 541 (1985).
Maj. Op. 18–19. Never mind that Berger and Wheaton discuss
Loudermill and Ross post-dates it. Berger, 36 M.S.P.R. at 53;
Wheaton, 931 F.2d at 617. In Loudermill, the Board of
Education argued that it followed state law procedures in firing
Loudermill, claiming that “the property right is defined by, and
conditioned on, the legislature’s choice of procedures for its
deprivation.” 470 U.S. at 539. The Supreme Court rejected the
argument. “While the legislature may elect not to confer a
property interest in [public] employment, it may not
constitutionally authorize the deprivation of such an interest,
once conferred, without appropriate procedural safeguard.” Id.
at 541 (alteration in original) (quoting Arnett v. Kennedy, 416
U.S. 134, 167 (1974) (Powell, J., concurring in part and
concurring in result in part)). But the MSPB in Berger and the
Ross and Wheaton courts considered the decisionmaker’s
discretion at Step 1—whether a property interest exists in the
first place. That is the issue before us. Loudermill simply
accepted the existence of a property right (based on state law)
but we—like Berger, Ross and Wheaton—are deciding the
existence vel non of a property right. See id. at 538–39.
C. Congressional Interest in Flexibility
Because the legislature creates a property interest, we must
consider the Congress’ intent. See Loudermill, 470 U.S. at 541;
Griffith, 842 F.2d at 501. The CSRA legislative history evinces
a plain desire for flexibility regarding the SES. One Senate
Report criticized the previous executive system’s rigidity and
the difficulty “to reassign or remove executives whose
performance is unacceptable.” S. REP. NO. 95-969, at 10
(1978). Appointees under the new SES “will be subject to
removal for inadequate performance, with a guaranteed right to
a career position as at least a GS-15.” Id. at 11. “[R]ank will be
based on an executive’s individual talents and performance.”
11
Id. This “is the kind of system that has been highly successful
in the private sector, as well.” Id. (emphasis added). A later
Senate Report described the SES as a “fluid, highly competitive
group of executives who could receive substantial awards and
bonuses for good performance while being subject to legally
unencumbered removal for poor performance.” S. REP. NO. 98-
351, at 3 (1984) (emphasis added). 8 Section 3592(a)(2)’s vague
standard regarding SES career appointees’ status, combined
with the appointing authority’s broad discretion, indicate that
the Congress unquestionably intended for flexibility of
appointment to and from the SES rank. 9
My colleagues read the legislative history as departing
from the CSRA’s declared purposes. Maj. Op. 14–15. I find the
two complementary. The CSRA declares that the SES is
“designed to attract and retain highly competent senior
executives.” 5 U.S.C. § 3131(1). But keeping highly competent
senior executives also requires the flexibility to remove
incompetent executives. See S. REP. NO. 95-969, at 11. The
CSRA emphasizes that “compensation, retention, and tenure
8
Although we ordinarily ignore subsequent legislative history,
see United States ex rel. Long v. SCS Bus. & Tech. Inst., Inc., 173
F.3d 870, 878–79 (D.C. Cir. 1999), the 1984 Senate Report carries
greater weight than usual. The CSRA required the Congress to
review the SES after a five-year trial period. Pub. L. No. 95-454,
§ 415(b), 92 Stat. 1111, 1179. Accordingly, it reauthorized the SES
in 1984 and made significant alterations. S. REP. NO. 98-351, at 3.
9
Griffith used a similar analysis. The court found significant
evidence of a Congressional interest in flexibility that argued against
classifying a within-grade pay increase as an entitlement. 842 F.2d
at 501. The “vague language and the specific vesting of the discretion
in the employees’ superior officials” indicated a lack of entitlement.
Id. Legislative history compared the federal salary scale to private
employment, suggesting “that equity is to be secured by a broad
discretion rather than by bureaucratic rigidity.” Id. at 497; see also
id. at 501.
12
are contingent on executive success,” based on factors
including efficiency, productivity, quality of work and
timeliness. 5 U.S.C. § 3131(2). Thus, senior executives who
perform poorly are, as intended, “subject to legally
unencumbered removals.” S. REP. NO. 98-351, at 3. The
majority concludes that demotion is encumbered by the Section
3131(2) factors and requires an “objective assessment of
performance.” Maj. Op. 15. But both the statute’s express
purpose and its legislative history manifest the Congress’ intent
to confer substantial benefits on SES appointees in exchange
for the guarantee of the highest performance. Once
performance slips, an occurrence only the appointing authority
is authorized to assess, the Congress intended the SES career
appointment to cease.
The Army undoubtedly provided Maria Esparraguera—a
long-serving civil servant and eight-year member of the SES—
with little process when it demoted her for “less than fully
successful executive performance.” 5 U.S.C. § 3592(a)(2).
Nevertheless, weighing the weakness of Esparraguera’s
claimed property interest in her SES rank, the latitude of the
performance appraisal system, the Under Secretary’s discretion
and the Congress’ interest in flexibility, I would find that
Esparraguera has no property interest in her SES status and
would affirm the district court.
Accordingly, I respectfully dissent.