                     NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                     2009-3255


                                  ALVERN C. WEED,

                                                           Petitioner,

                                          v.

                       SOCIAL SECURITY ADMINISTRATION,

                                                           Respondent.


      Alvern C. Weed, of Kalispell, Montana, pro se.

       Joseph E. Ashman, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Todd M. Hughes, Deputy Director.

Appealed from: Merit Systems Protection Board
                        NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit



                                       2009-3255

                                    ALVERN C. WEED,

                                                 Petitioner,

                                            v.

                         SOCIAL SECURITY ADMINISTRATION,

                                                 Respondent.


    Petition for review of the Merit Systems Protection Board in DE3443050248-C-1.

                             ___________________________

                             DECIDED: February 19, 2010
                             ___________________________


Before MICHEL, Chief Judge, BRYSON, and DYK, Circuit Judges.

PER CURIAM.

                                       DECISION

          Alvern C. Weed challenges the decision of the Merit Systems Protection Board

dismissing his appeal. We affirm.

                                     BACKGROUND

          In January 2005, the Social Security Administration (“SSA”) posted a vacancy

announcement for two claims representative positions in its Kalispell, Montana, field

office.    Mr. Weed, who is a 10-point preference eligible veteran, responded to the
posting and submitted an application. Soon thereafter, the SSA used the Outstanding

Scholar Program, instead of a competitive examination process, to fill the two positions.

Mr. Weed appealed, asserting that the SSA had violated his veteran’s preference rights

by failing to use the competitive examination process in making the selections.

      The administrative judge assigned to the case ruled that the SSA’s actions

violated Mr. Weed’s veteran’s preference rights and ordered the SSA to reconstruct the

hiring process in a manner consistent with legal requirements. Both parties appealed to

the full Board. While that appeal was pending, the SSA notified the Board that it had

reconstructed the hiring process and that Mr. Weed would not have been considered for

either position even if the agency had used the competitive examination process. In

reconstructing the hiring process, however, the SSA merely identified two individuals

from a certified list of eligible candidates who allegedly would have been selected for the

positions. The agency did not actually contact either of those individuals to determine

whether they would have accepted the positions. Mr. Weed then filed a petition for

enforcement challenging the sufficiency of the SSA’s reconstruction process.

      On October 30, 2007, the full Board agreed with Mr. Weed that the SSA’s

decision to hire outside of the competitive examination process violated Mr. Weed’s

rights. The Board then forwarded Mr. Weed’s enforcement petition to the administrative

judge for further proceedings.

      The administrative judge examined the SSA’s reconstructed process and

concluded that the SSA’s actions were not in compliance with the Board’s orders

because the SSA did not conduct a bona fide reconstruction but merely conducted a

“hypothetical” process. The full Board agreed, and on February 12, 2009, it entered an




2009-3255                                   2
order setting forth the procedures that had to be followed in order for the SSA to

conduct a lawful reconstruction. First, the Board ruled that the SSA had to remove the

person who had been appointed through the Outstanding Scholar Program and was still

occupying one of the two positions. 1    Second, the Board stated that the SSA must

determine if the two individuals that the SSA had designated for selection as a result of

the reconstruction would have accepted the position if the agency had offered it to them

in 2005.

       On March 10, 2009, the SSA informed the Board that it had reassigned the

improperly appointed individual and had contacted the two individuals who had been

chosen from the certificate of eligibility following the reconstruction.      The SSA

represented that both of the selected individuals had stated that they would have

accepted the position if it had been offered to them in 2005.       Therefore, the SSA

concluded, Mr. Weed would not have been selected for either position.

       Mr. Weed then filed a second petition for enforcement challenging the sufficiency

of the SSA’s reconstruction process. On June 11, 2009, the Board ruled that the SSA

was in compliance with the Board’s reconstruction order and dismissed Mr. Weed’s

petition.

                                     DISCUSSION

       Mr. Weed asserts that the Board’s decision was not in accordance with law

because the SSA’s reconstruction of the competitive process did not conform to the

requirements of 5 U.S.C. § 3317(a). The competitive examination process requires the




       1
            The other employee who had been appointed through the Outstanding
Scholar Program had previously resigned.


2009-3255                                  3
agency to prepare a certified list of eligible candidates. The preference points available

to an eligible veteran such as Mr. Weed improve the veteran’s position on certified lists.

For each position an agency wishes to fill, it must choose from among the top three

candidates on the list. 5 U.S.C. § 3317(a). In this case, because there were two

positions to fill, the SSA was required to import a fourth candidate from the list after the

first position was filled so that three candidates would be considered for the second

position. Mr. Weed was fifth on the list, even after being credited with his 10-point

veteran’s preference. Therefore, he would not have been considered for either position

unless one of the first four candidates was removed from the list.

       Mr. Weed contends that the SSA’s reconstruction effort was flawed because the

agency failed to follow the procedures set forth in the SSA’s Manager’s Hiring Guide

(“the Hiring Guide”) and the Office of Personnel Management’s Delegated Examining

Operations Handbook (“the OPM Handbook”). Mr. Weed asserts that the Hiring Guide

and the OPM Handbook require agency officials to contact every individual on the

certificate of eligibles and to verify that each remains interested in the position before

making appointments.      Had the agency contacted every candidate, he contends, it

would have learned that Mr. Powell, a candidate who was placed above Mr. Weed on

the certificate of eligibles, was no longer interested in the position. Thus, Mr. Powell

would have been removed from the list and Mr. Weed would have taken his place

among the three considered for the second position. Therefore, according to Mr. Weed,

the SSA violated his right to consideration under the “Rule of Three,” and the Board’s

decision was erroneous. We disagree.




2009-3255                                    4
        As an initial matter, we note that Mr. Weed did not clearly present this argument

to the Board below, and therefore the issue is not properly before us. See Wallace v.

Dep’t of the Air Force 879 F.2d 829, 832 (Fed. Cir. 1989) (“[T]he issue must be raised

with sufficient specificity and clarity that the tribunal is aware that it must decide the

issue . . . .”).

        Even assuming Mr. Weed preserved the issue for appeal, it does not provide a

basis for granting him relief. His argument relies on the faulty premise that the Hiring

Guide and the OPM Handbook require the agency to contact every candidate on the list

before making a selection. In fact, however, the Hiring Guide and the OPM Handbook

do not by their terms require that procedure. The OPM Handbook contains an example

showing that the top three candidates considered for selection may include an applicant

who was not contacted, thus demonstrating that contacting every candidate before

selection is not mandatory.     Moreover, a Human Resources specialist for the SSA

testified that the SSA is “not required to call every person that’s on the certificate or

interview everybody that’s on the certificate,” and that, in his experience, the SSA never

calls every applicant to verify interest in the position. In addition, an agency official who

was involved in the reconstruction testified that the SSA manual instructs selecting

officials to “first contact the individuals they intend to interview,” and not that officials

must contact every individual on the list. The portion of the SSA Hiring Guide on which

Mr. Weed relies merely speaks to the manner in which managers are to contact

candidates—i.e., either by telephone or in writing. It does not suggest that managers

must contact every person on the list before making a selection.




2009-3255                                    5
      Mr. Weed next asserts that the SSA’s notice of compliance was incomplete

because it failed to state that he “would not have advanced under the rule of three.” As

noted above, however, the SSA’s notice established that Mr. Weed would not have

been considered under the competitive examination process. Mr. Weed also contends

that because the same two individuals were selected under both reconstructions, the

second reconstruction could not have been the result of a “fair and lawful consideration

of the pool of candidates.” However, the record shows that the SSA submitted evidence

setting forth specific reasons for choosing those individuals. Accordingly, substantial

evidence supports the Board’s finding that the reconstruction was proper.

      Mr. Weed argues that the Board improperly denied him a hearing with respect to

the validity of the second reconstruction. That proceeding, however, was on a petition

for enforcement of a Board order, and the Board has held that there is “no right to a

hearing regarding a petition for enforcement.” King v. Dep’t of the Navy, 98 M.S.P.R.

547, 552 (2005). Mr. Weed cites no statutory, regulatory, or case law authority to the

contrary.

      Finally, Mr. Weed claims that the denial of a hearing deprived him of the

opportunity to challenge hearsay evidence and thus denied him due process of law. He

asserts that the Board may consider hearsay evidence only if the evidence is presented

at a hearing. We disagree. “It has long been settled . . . that hearsay evidence may be

used in Board proceedings and may be accepted as preponderant evidence even

without corroboration if, to a reasonable mind, the circumstances are such as to lend it

credence.” Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357, 1364 (Fed. Cir.

1998). Whether or not hearsay should be admitted falls “within the sound discretion of




2009-3255                                  6
the Board and its [administrative judges].” Id. There is no rule or principle that limits the

Board’s discretion to consider hearsay evidence to cases involving a hearing. The

cases Mr. Weed cites do not suggest otherwise. For example, in Brown v. United

States Postal Service, 110 M.S.P.R. 381 (2009), the Board noted that hearsay evidence

was admissible and also ruled that a decision without a hearing was appropriate. Thus,

the Board may exercise its discretion to admit hearsay evidence independent of

whether or not the evidence was presented at a hearing.

       For the foregoing reasons, we uphold the Board’s decision denying the petition

for enforcement.




2009-3255                                    7
