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.
`
`

`

`Case: 19-1118 Document: 47 Page: 4 Filed: 06/26/2020
`
`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.
`
`
`“Case law has described regularizing an appoint-
`2
`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.”).
`
`

`

`Case: 19-1118 Document: 47 Page: 5 Filed: 06/26/2020
`
`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
`
`

`

`Case: 19-1118 Document: 47 Page: 6 Filed: 06/26/2020
`
`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.
`
`

`

`Case: 19-1118 Document: 47 Page: 7 Filed: 06/26/2020
`
`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
`
`

`

`Case: 19-1118 Document: 47 Page: 8 Filed: 06/26/2020
`
`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
`
`

`

`Case: 19-1118 Document: 47 Page: 9 Filed: 06/26/2020
`
`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
`
`

`

`Case: 19-1118 Document: 47 Page: 10 Filed: 06/26/2020
`
`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,
`
`

`

`Case: 19-1118 Document: 47 Page: 11 Filed: 06/26/2020
`
`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
`
`

`

`Case: 19-1118 Document: 47 Page: 12 Filed: 06/26/2020
`
`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).
`
`

`

`Case: 19-1118 Document: 47 Page: 13 Filed: 06/26/2020
`
`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.
`
`

`

`Case: 19-1118 Document: 47 Page: 14 Filed: 06/26/2020
`
`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
`
`

`

`Case: 19-1118 Document: 47 Page: 15 Filed: 06/26/2020
`
`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
`
`

`

`Case: 19-1118 Document: 47 Page: 16 Filed: 06/26/2020
`
`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)
`
`

`

`Case: 19-1118 Document: 47 Page: 17 Filed: 06/26/2020
`
`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 t