Cotty P. O'Leary v. Office of Personnel Management

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

COTTY P. O’LEARY, DOCKET NUMBERS

Appellant, DA-300A-12-0651-B-1

DA-300A-12-0652-B-1

v. DA-300A-12-0430-B-1

OFFICE OF PERSONNEL

MANAGEMENT,

DATE: June 17, 2016

and

SOCIAL SECURITY

ADMINISTRATION,

Agencies.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Cotty P. O’Leary, Metairie, Louisiana, pro se.

Lucinda E. Davis, Esquire, Baltimore, Maryland, for the agency.

Robin M. Richardson, Esquire, Washington, D.C., for the agency.

Thomas E. Chandler, Esquire, Dallas, Texas, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

1

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

2

FINAL ORDER

¶1 The appellant has filed a petition for review of the remand initial decision,

which denied his request for corrective action in these employment practices

appeals. Generally, we grant petitions such as this one only when: the initial

decision contains erroneous findings of material fact; the initial decision is based

on an erroneous interpretation of statute or regulation or the erroneous application

of the law to the facts of the case; the administrative judge’s rulings during either

the course of the appeal or the initial decision were not consistent with required

procedures or involved an abuse of discretion, and the resulting error affected the

outcome of the case; or new and material evidence or legal argument is available

that, despite the petitioner’s due diligence, was not available when the record

closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.

§ 1201.115). After fully considering the filings in this appeal, we conclude that

the petitioner has not established any basis under section 1201.115 for granting

the petition for review. Therefore, we DENY the petition for review and

AFFIRM the remand initial decision, which is now the Board’s final

decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

¶2 In 2008, the appellant submitted an application for a Social Security

Administration (SSA) administrative law judge (ALJ) position. O’Leary v. Social

Security Administration, MSPB Docket No. DA-300A-12-0652-I-1, Initial Appeal

File (0652 IAF), Tab 3, Subtab 4oo. In 2009, the appellant was considered for

the 138th selection in Tupelo, Mississippi, the 139th selection in Houston, Texas,

and the 140th selection in Tupelo, Mississippi. O’Leary v. Social Security

Administration, MSPB Docket No. DA-300A-12-0651-B-1, Remand File (0651

RF), Tab 14 at 18.

¶3 In January 2012, SSA asked the Office of Personnel Management (OPM) to

exclude candidates, including the appellant, who had already received at least

3

three considerations from further certification pursuant to 5 C.F.R. § 332.405,

otherwise known as the “rule of three.” 0651 RF, Tab 24 at 6, 12-15, 19-24.

OPM’s General Counsel responded by indicating that OPM would refrain from

referring any candidates who received three considerations but that the candidates

would remain on the registers. Id. at 18. The appellant was thereafter excluded

from any future certificates.

¶4 Subsequently, the appellant filed two appeals against OPM and one appeal

against SSA, alleging that SSA and OPM violated 5 C.F.R. § 332.405 when SSA

made the request to exclude certain candidates and OPM granted this request.

O’Leary v. Office of Personnel Management, MSPB Docket No. DA-300A-12-

0430-I-1, Initial Appeal File (0430 IAF), Tab 1; 2 O’Leary v. Office of Personnel

Management, MSPB Docket No. DA-300A-12-0651-I-1, Initial Appeal File

(0651 IAF), Tab 1; 0652 IAF, Tab 1. The administrative judge issued an initial

decision in each matter, and she dismissed the appeals for lack of jurisdiction.

0430-I-2 AF, Tab 9; 0651 IAF, Tab 16; 0652 IAF, Tab 12. The appellant filed

petitions for review of these initial decisions.

¶5 The Board issued a remand order that joined these appeals. 0651 RF, Tab 1

at 4-5. Importantly, the Board found that the appeal concerned an employment

practice that OPM was involved in administering because it promulgated the rule

of three and revised its certificate of eligibles to exclude the appellant based on

that rule. Id. at 7. The Board further concluded that the appellant made a

nonfrivolous allegation that SSA, in cooperation with OPM, applied the rule of

three to him even though he was not considered three times by the same

appointing official as required for the rule to apply under 5 C.F.R. § 332.405.

0651 RF, Tab 1 at 9. The Board therefore found the appellant had established

jurisdiction over his employment practices appeals and remanded the appeals for

2

The 0430 appeal was dismissed without prejudice and properly refiled. 0430 IAF,

Tab 9; O’Leary v. Office of Personnel Management, MSPB Docket No. DA-300A-12-

0430-I-2, Appeal File (0430-I-2 AF), Tab 1.

4

further adjudication on the merits. Id. The Board also denied the appellant’s

request for class certification because he did not make a sufficient showing that

there were numerous similarly affected ALJ candidates who would wish to be a

part of a class appeal and it was not appropriate to certify a class at that late stage

of the proceedings. Id. at 4 n.4.

¶6 On remand, the administrative judge advised the parties that the only issue

to be resolved was whether the “rule of three” as articulated in 5 C.F.R. § 332.405

was improperly applied to the appellant. 0651 RF, Tab 12 at 1, Tab 21 at 1;

Hearing Compact Diskette (HCD). After holding a hearing, the administrative

judge issued a remand initial decision, which denied corrective action. 0651 RF,

Tab 29, Remand Initial Decision (RID). In pertinent part, the administrative

judge held that SSA had a reasonable basis for making a distinction between its

selecting official and appointing official, she made credibility determinations, and

she concluded that the “rule of three” was properly applied to the appellant.

RID at 4-12.

¶7 The appellant has filed a petition for review, OPM and SSA have filed

responses, and the appellant has filed reply briefs. Remand Petition for Review

(RPFR) File, Tabs 1, 9, 12-14.

DISCUSSION OF ARGUMENTS ON REVIEW

¶8 On review, the appellant generally makes the same arguments that he made

below concerning (1) SSA’s improper use of different selecting and appointing

officials in the ALJ selection process, (2) the identity of the appointing official,

and (3) whether he was properly given three considerations pursuant to 5 C.F.R.

§ 332.405. RPFR File, Tabs 1, 12, 14. He also appears to challenge the

administrative judge’s credibility determinations in the remand initial decision.

For the following reasons, we agree with the administrative judge that the

appellant is not entitled to corrective action.

5

¶9 As noted above, the Board determined in the remand order that the only

issue in this case is whether the rule of three, as described in 5 C.F.R. § 332.405,

was improperly applied to the appellant. 0651 RF, Tab 1 at 7. 3 This regulation

states that “[a]n appointing officer is not required to consider an eligible who has

been considered by him for three separate appointments from the same or

different certificates for the same position.”

¶10 In the remand order, the Board questioned the apparent distinction made by

SSA between selecting officials (those responsible for making substantive

judgments and actually choosing which eligible to appoint) and appointing

officials (those responsible for verifying the legality and procedural propriety of

the appointments). 0651 RF, Tab 1 at 8. The Board also noted that OPM

published guidance stating that a selecting official and an appointing official

mean the same thing. Id. (citing Delegated Examining Operations Handbook: A

Guide for Federal Agency Examining Offices (Handbook), May 2007, available at

https://www.opm.gov/policy-data-oversight/hiring-information/competitive-

hiring/deo_handbook.pdf). Based on our review of the hearing testimony and

evidence, we agree with the administrative judge that it was reasonable for SSA

to have different selecting and appointing officials in the ALJ selection process.

¶11 At the outset, we note that the regulation itself does not appear to contain

any prohibition regarding different selecting and appointing officials. The

Handbook defines an appointing officer and a selecting official as a “person

having the authority, by law, or by duly delegated authority, to appoint, employ,

or promote individuals to positions in an agency.” We are not persuaded that

OPM’s use of the same definition for appointing officer and selecting official

precluded different persons from filling these roles.

3

The Board noted in the remand order that the appellant did not challenge the validity

of the rule of three and he appeared to admit that it is valid. 0651 RF, Tab 1 at 6; see

Lackhouse v. Merit Systems Protection Board, 773 F.2d 313, 316-17 (Fed. Cir. 1985)

(holding that 5 C.F.R. § 332.405 is lawful).

6

¶12 Importantly, OPM’s Lead Human Resources Specialist at the ALJ Program

Office, Nancy Ford, who had 15 years of experience with OPM at the time of the

hearing, testified that the Handbook was intended only as a “handy reference” and

that the selecting and appointing officials are often different people because they

perform different functions in the ALJ selection process. HCD. For instance,

Ms. Ford testified that the selecting official interviews applicants and is more

“hands on,” whereas the appointing official supervises, oversees, and approves

the selection. Id. The administrative judge credited Ms. Ford’s testimony in this

regard. RID at 9. The Board must give deference to an administrative judge’s

credibility determinations when they are based, explicitly or implicitly, on the

observation of the demeanor of witnesses testifying at a hearing; the Board may

overturn such determinations only when it has “sufficiently sound” reasons for

doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002).

Where, as here, an administrative judge has heard live testimony via

videoconference, 0651 RF, Tab 21 at 3, her credibility determinations must be

deemed to be at least implicitly based upon the demeanor of the witnesses, Little

v. Department of Transportation, 112 M.S.P.R. 224, ¶ 4 (2009). The appellant

has not provided a sufficiently sound reason on review to overturn the

administrative judge’s credibility determination as to Ms. Ford. 4

¶13 Moreover, the appellant does not dispute that SSA fills ALJ positions across

the country and in Puerto Rico, that it occasionally hires as many as 100 ALJs in

a single day, and that it could hire as many as 10,000 ALJs per year. HCD.

Ms. Ford credibly testified that it would be difficult for one selecting official to

manage multiple vacancies across the country. Id. Given the volume and the

4

The administrative judge also properly noted that the U.S. Court of Appeals for the

District of Columbia Circuit and the Board have issued decisions acknowledging

situations in which there were different selecting and appointing officials. RID at 9

(citing National Treasury Employees Union v. Reagan, 663 F.2d 239, 246 n.9 (D.C. Cir.

1981), and Brock v. Department of the Navy, 49 M.S.P.R. 564, 567 (1991)).

7

geographical scope of the SSA ALJ hiring process, we discern no error with

SSA’s decision to designate different selecting and appointing officials.

¶14 The appellant also challenges the administrative judge’s conclusion that

Nancy Peters, SSA’s Director of the Center for Personnel Policy and Staffing,

was the appointing official who considered him three times pursuant to 5 C.F.R.

§ 332.405. RPFR File, Tab 1 at 16; RID at 8-9. For instance, he asserts that

Ms. Peters only performed ministerial functions and that she did not consider his

merit and fitness in accordance with 5 C.F.R. § 332.404. RPFR File, Tab 1 at 3;

see 5 C.F.R. § 332.404 (stating that an appointing officer shall select an eligible

“with sole regard to merit and fitness”). These arguments are unavailing.

¶15 The appellant has not cited, and we are not aware of, any statutory or

regulatory authority, or case law from the Board or the U.S. Court of Appeals for

the Federal Circuit (Federal Circuit) that supports his contention that an

appointing official cannot perform ministerial and administrative tasks.

Moreover, the documentary evidence and testimony from several OPM and SSA

witnesses demonstrate that Ms. Peters was the appointing official during the

relevant time frame. 0651 RF, Tab 24 at 17; HCD. 5 Notwithstanding this

evidence, the appellant maintains that the SSA selecting officials, such as Chief

ALJ Frank Cristaudo, were the true appointing officials because they considered

his merit and fitness. RPFR File, Tab 1 at 17. The administrative judge did not

5

We recognize that there are minor discrepancies in the record. For instance, Robert

Gehlken, who works for Ms. Peters, admitted in his testimony that he had erroneously

certified that she was the selecting official, but he promptly corrected this error in the

certification at 0651 RF, Tab 27 at 17. HCD. The record also reflects that Mr. Gehlken

signed some certificates as the appointing official. E.g., 0652 IAF, Tab 3, Subtab 4dd

at 38. However, Mr. Gehlken and Ms. Peters testified, without contradiction, that he

occasionally signed for Ms. Peters as her delegate, he signed out of convenience and

often based on his closer proximity to the selecting official, and at no time was he

designated an appointing official. HCD. Therefore, none of these minor discrepancies

affects our disposition of this matter.

8

find this argument persuasive, RID at 9, and neither do we. 6 Notably, Ms. Peters

testified that she “sat in” on deliberations between the selecting officials when

they were discussing the merit and fitness of the candidates, including the

appellant. HCD. Ms. Peters also testified that she reviewed a matrix of

information drafted by Mr. Robert Gehlken to ensure that veterans’ preference

and the rule of three were properly applied to each candidate. Id.; 0651 RF, Tab

14, Exhibit 1.

¶16 The administrative judge credited Ms. Peters’s testimony that she

personally sat in on the deliberations for the 138th, 139th, and 140th selections

involving the appellant, and she concluded that Ms. Peters’s participation in the

selection process through her review of the selection matrix and presence during

the deliberations constituted proper consideration under 5 C.F.R. § 332.405.

RID at 9 (citing HCD). We have considered the appellant’s arguments on review

challenging these findings. RPFR File, Tab 1 at 14, 19. However, he has not

identified any sufficiently sound reasons for overturning the administrative

judge’s credibility determination in this regard, see Haebe, 288 F.3d at 1301, nor

has he persuaded us that her conclusions were otherwise erroneous, see, e.g.,

HCD (Ms. Ford testified that she did a “line by line” audit to make sure each

6

Even if we assumed for the purposes of our analysis that Chief ALJ Cristaudo was the

appointing official in 2009, the parties stipulated that he considered the appellant’s

application three times. HCD; 0651 RF, Tab 15 at 1; RPFR File, Tab 12 at 4

(“Appellant acknowledges that he received three considerations for appointment as an

ALJ from Judge Cristaudo in 2009 and that the provisions of 5 C.F.R. § 332.405 apply

to appellant vis a vis Judge Cristaudo.”). Thus, even under this alternative theory, the

appellant received all the consideration to which he was entitled pursuant to 5 C.F.R.

§ 332.405.

The appellant further argues that when ALJ Jasper Bede replaced Chief ALJ

Cristaudo as the selecting official, he was entitled to three new considerations by him,

and that, when ALJ Kathleen Scully-Hayes replaced ALJ Bede as the selecting official,

he was entitled to three new considerations by her. RPFR File, Tab 1 at 3-4, 10. The

appellant offers no legal authority to support this interpretation of 5 C.F.R. § 332.405.

Moreover, we agree with SSA that this interpretation would render the number of

considerations for any particular candidate dependent on SSA’s staffing changes, which

could lead to some candidates receiving many more considerations than others. RPFR

File, Tab 9 at 15.

9

candidate was given proper consideration and she concluded that the appellant

was given three considerations).

¶17 We have considered the appellant’s other arguments on review, but we find

that they present no reason to disturb the administrative judge’s well-reasoned

findings. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997)

(finding no reason to disturb the administrative judge’s findings where she

considered the evidence as a whole, drew appropriate inferences, and made

reasoned conclusions); see also Broughton v. Department of Health & Human

Services, 33 M.S.P.R. 357, 359 (1987) (same). Under these circumstances, we

agree with the administrative judge that the appellant was given three

considerations by the appointing official as required under 5 C.F.R. § 332.405.

See, e.g., Barkalow v. Social Security Administration, No. 2006-3237,

2006 WL 2853098, at *2 (Fed. Cir. Oct. 5, 2006) (affirming the Board’s finding

that the petitioner was given the requisite three considerations because he was

considered for positions in Fort Lauderdale, Florida, Shreveport, Louisiana, and

San Antonio, Texas); 7 see also Lackhouse, 773 F.2d at 317 (concluding that the

rule of three was properly applied to Mr. Lackhouse). We therefore find that SSA

properly requested that OPM remove the appellant from any future certificates

and OPM properly granted this request.

¶18 Because we affirm the administrative judge’s decision to deny corrective

action in these employment practices appeals, we also deny the appellant’s

request to remand the appeal to order SSA to disclose the names of similarly

situated ALJ candidates and to allow him an opportunity to establish a class.

RPFR File, Tab 1 at 20.

7

Although Barkalow is an unpublished decision, the Board may rely on unpublished

Federal Circuit decisions if it finds the court’s reasoning persuasive. E.g., Herring v.

Department of the Navy, 90 M.S.P.R. 165, ¶ 13 n.* (2001). Given the similarities

between the circumstances of this matter and the circumstances in Barkalow, we find

the court’s reasoning persuasive.

10

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S.

Court of Appeals for the Federal Circuit. You must submit your request to the

court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar days

after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,

2012). If you choose to file, be very careful to file on time. The court has held

that normally it does not have the authority to waive this statutory deadline and

that filings that do not comply with the deadline must be dismissed. See Pinat v.

Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to

court, you should refer to the Federal law that gives you this right. It is found in

title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.

Dec. 27, 2012). You may read this law as well as other sections of the United

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.

Additional information is available at the court’s

website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide

for Pro Se Petitioners and Appellants,” which is contained within the

court’s Rules of Practice, and Forms 5, 6, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website

at http://www.mspb.gov/probono for information regarding pro bono

representation for Merit Systems Protection Board appellants before the Federal

Circuit. The

11

Merit Systems Protection Board neither endorses the services provided by any

attorney nor warrants that any attorney will accept representation in a given case.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.