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.
(cleaned up). The Senior Executive Service (“SES”) is a division of “high-level” federal employees who wield “significant responsibility- including directing organizational units, supervising work, and determining policy.” Esparraguera v. Dep't of the Army, 981 F.3d 1328, 1330 (Fed. Cir. 2020). The SES “enable[s] the head of an agency to reassign senior executives to best accomplish the agency's mission” and lead the agency in a way that is “consistent with the effective and efficient implementation of agency policies and responsibilities.” 5 U.S.C. § 3131(5), (14).
Indeed, neither the Merit Systems Protection Board (the administrative body charged with implementing the CSRA) nor the Federal Circuit (which hears CSRA appeals) has jurisdiction until there is an actual adverse employment action.Esparraguera v. Dep't of the Army , 981 F.3d 1328, 1337–38 (Fed. Cir. 2020). The government relies on two Fifth Circuit cases as support for its contention that the CSRA applies to the plaintiffs’ claims in this case.