A recent court decision finds that Senior Executive Service (SES) employees cannot appeal their dismissal within the federal courts.

After the US Army demoted SES Employee Maria Esparraguera for unethical hiring practices, she sought to appeal the decision with the Federal Circuit Court of Appeals.

The Court decided on December 4th that it lacked jurisdiction to rule on Esparraguera’s demotion.

Some are reading this decision as precedent-setting, but the decision more closely examines a federal court’s jurisdiction over an SES’s legal complaints and due process.

The 1978 Civil Service Reform Act (CSRA) affords civil service employees special protections from what they call “adverse actions” — dismissal or demotions. Ordinarily, civil services employees like Esparraguera could appeal the Army’s decision to demote her before the Merit Systems Protection Board (MSPB). The MSPB could determine the validity of the Army’s decision to demote Esparraguera. The Board could reverse the Army’s decision or uphold it.

However, SES employees like Esparraguera fit into a special leadership class within the civil service. These positions are just a peg below Cabinet members; they govern entire departments of civilian government. Their place in the civil service is, therefore, closely monitored by the Office of Personnel Management (OPM) to avoid political appointments and eliminate outdated policies otherwise vulnerable to the whims and designs of the executive administration.

SES employees like Esparraguera are subject to review every five years by the OPM. OPM can dismiss or demote Esparraguera should they find grounds to do so. Just like any civil service employee, Esparraguera could seek an informal hearing from the MSRB, a review which does not rise to the formal level of appeal afforded other civil servants under the CSRA.

Esparraguera followed the channels outlined above, and The MSPB granted her an informal hearing. This type of hearing allowed Esparraguera to present her case and arguments (which she did) and for the MSPB to decide on it (which they did not). The five-year OPM review process, it’s believed, is sufficient recourse for an SES employee.

The Board reviewed the case and sent it back to the Army to review its initial decision to demote Esparraguera.

The Army did not change its decision.

Esparraguera then sought to appeal the Army’s decision (and the MSPB’s non-decision) with the Federal Circuit. The Court concluded that it does not hold the power or jurisdiction to rule on the MSPB’s decision.

The Court summarized its decision by stating, “we hold that a Board official in a § 3592 hearing has no authority to review an SES appointee’s removal.”

The Court dismissed the case.