Agencies can fire political appointees who skirt civil service laws when converting their statuses into career employees in the run up to a presidential transition, a federal court has ruled.
The ever-controversial practice known as burrowing is legal, but must follow a strict set of procedures to ensure political appointees are qualified for the career jobs for which they are hired. In the fall of 2016, Edward Avalos, then the Agriculture Department's undersecretary for marketing and regulator programs, left his job for a GS-15 career position as the Housing and Urban Development Department’s Albuquerque field office director. Avalos was hired by Tammye Treviño, an appointee at HUD who formerly served with Avalos as a USDA appointee.
The first posting for the field office vacancy yielded one certificate eligible candidate, a preference-eligible veteran. Instead of asking the Office of Personnel Management for a waiver to pass over that candidate, Treviño revised the vacancy announcement and Avalos reapplied. On second effort, Avalos was the only applicant to be deemed eligible. HUD did not ask OPM permission for Avalos’ hiring, as is required in cases of burrowing in. When OPM flagged the improper hiring in 2017, HUD reviewed it and deemed it could not certify it “met merit and fitness requirements” due to Treviño’s involvement.
HUD fired Avalos, who then appealed the decision to the Merit Systems Protection Board and again to the U.S. Court of Appeals for the Federal Circuit.
The court found in a recent ruling that “the record contains substantial evidence supporting the appearance of improper influence” in Avalos’ hiring. While he argued HUD failed to demonstrate his firing would “promote t ..
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