The case involved an Army SES member whose rating was downgraded from level 5 to level 1 in the wake of an OSC investigation. Image: Mark Van Scyoc/Shutterstock.com
By: FEDweek StaffA federal appeals court has clarified what protections SES members have in disciplinary actions, in the process rejecting the Biden administration’s arguments in favor of a restrictive reading of those rights.
In case No. 22-5150, the Court of Appeals for the District of Columbia Circuit was addressing what one judge called a “novel constitutional question: Does a Senior Executive Service 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?”
That judge in a dissenting opinion said she would have found no such right but the majority held both that there is a property right in an SES position and that SES members are entitled “to at least notice and an opportunity to respond” before being removed from the SES. It found that the plaintiff had not received those protections and sent the case back to a district court.
The case involved an Army SES member whose rating was downgraded from level 5 to level 1 in the wake of an Office of Special Counsel investigation into a hiring and a follow-up review by the Army, the decision recounted. She was then notified that she would be downgraded to a GS-15 position.
Higher-level officials declined her request to review the action and after an informal hearing the MSPB stated it could not grant any relief. She then complained into federal district court, which rejected the suit on grounds that she had no protected property interest in the SES position, leading to the appeal.
The appeals panel held that there is a property interest because civil service law specifies that career SES members can lose that status only for certain reasons, including for not meeting defined performance standards; and because the law distinguishes between them and other SES members, such as political appointees, who can be removed at will.
Further, “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,” the majority opinion said.
The opinion said the court’s precedent holds that where there is a property interest at stake, the Constitution “requires, at minimum, that the government provide notice and some kind of hearing before final deprivation of a property interest.” It said the only opportunity she had to respond was at the informal MSPB hearing, which occurred over six months after her removal decision took effect.
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