Illegal Civil Service Appointment Leads to Employee’s Removal

August 31, 2020 7:22 AM
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Edward Avalos appealed to the Merit Systems Protection Board (MSPB) when he was removed by HUD from his position as the Field Office Director in Albuquerque, New Mexico in order to comply with a directive from the Office of Personnel Management (OPM) to “regularize” the appointment since OPM would not have approved it as was required. (Avalos v Department of Housing and Urban Development (CAFC No. 2019-1118, 6/26/20)) The facts as summarized here are taken from the decision of the federal appeals court.

Prior to joining HUD, Avalos served for some eight years (2009-2016) as Under Secretary of Agriculture for Marketing and Regulatory Programs at the Department of Agriculture. This was an excepted service position at Senior Executive Schedule Level III. While in this position, Mr. Avalos encountered a fellow Agriculture political appointee, Tammye Trevino who was Administrator for Rural Housing Service. At some point Ms. Trevino moved over to HUD and helped to establish a vacancy announcement for the Field Office Director position in Albuquerque. She also participated in reviewing candidates for the job. Her former colleague, Avalos, applied for the director position but did not make the list of eligibles. In fact, only one candidate made the list, a veteran who was preference eligible.

Ms. Trevino apparently did not like the results. But instead of seeking a “pass-over request” under OPM regulations that would have let her consider more candidates, she simply let the vacancy expire. Meanwhile she revised the vacancy announcement and issued it again after the first one expired. Mr. Avalos applied and this time he was the only one on the eligibility list. Although Trevino said she recused herself from the selection process when she saw that Avalos had risen to the top (although the court points to some “ambiguity” surrounding her recusal), Mr. Avalos was selected as the new Field Office Director. He resigned from USDA and began his new job with HUD the next day (9/18/16). He was subject to a one-year probationary period and the appointment was made without the apparently required approval by OPM. (Opinion pp. 1-4)

Some six months later OPM did a routine review and requested more information on Avalos’ appointment, noting that the required OPM approval had not been sought nor obtained by HUD. Following its investigation, OPM formally advised HUD that it would not have approved based on the available record, and ordered HUD to “regularize” the Avalos appointment. (Footnote two at page 4 in the court’s opinion explains this concept of “regularizing” an appointment as essentially finding a legal appointment authority, or removing or releasing the employee.)

The Director of the Office of Accountability of HUD’s Human Capital Division conducted an independent analysis following the OPM directive. While she found no intent to “grant an unauthorized preference” for Avalos by HUD officials, she did conclude that she could “not certify that the appointment met merit and fitness requirements because Ms. Trevino’s involvement in interviewing and selecting candidates left the ‘appearance of a prohibited personnel practice.’ “(p. 5) In the absence of a separate legitimate non-competitive appointment authority for Mr. Avalos, she ordered his removal to “regularize his appointment.” (p. 5)

At the MSPB the government argued that there was no Board jurisdiction since Avalos was removed during his probationary period. However, the administrative judge found that his service at USDA meant that Avalos met the requirement of more than a year of current continuous service giving the Board jurisdiction to hear his case. (p. 6)

That was the good news for Mr. Avalos. The bad news was that the AJ ruled that the Board could not review OPM’s directive to regularize Mr. Avalos’ appointment, and that HUD’s only option to “regularize” the appointment was to remove Avalos. The Board affirmed his removal. (p. 7)

The ensuing appeals court opinion sustains the Board’s decision. The court addresses considerable point/counterpoint between the parties about MSPB jurisdiction. Among other things, the government argued to no avail that there was no jurisdiction to hear his appeal since he was not legally appointed in the first instance depriving him of status as an employee for purposes of appeal. The court danced around that one and has to explain itself thus: “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. …[W]e must relax the severity of our construction of ‘appointed’ under [section] 2105…” (p. 10)

Suffice it to say that at the end of the day Mr. Avalos got his day in court but has lost his appeal on the merits. Pointing out that HUD “could not reasonably certify Mr. Avalos’s appointment to be free from political influence…” his removal is affirmed by the court. (p. 15)

Perhaps this passage best explains the court’s reasoning: “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.” (p. 14, emphasis in original)

© 2020 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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