                       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        THIS FINAL ORDER IS NONPRECEDENTIAL 1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   A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.
