                       NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                         is not citable as precedent. It is a public record.

 United States Court of Appeals for the Federal Circuit

                                         2006-3237

                                  JIMMY R. BARKALOW,

                                                                       Petitioner,

                                              v.

                          SOCIAL SECURITY ADMINISTRATION,

                                                                       Respondent.

                            ___________________________

                            DECIDED: October 5, 2006
                            ___________________________


Before RADER, Circuit Judge, PLAGER, Senior Circuit Judge, and DYK Circuit Judge.

PER CURIAM.

       Jimmy R. Barkalow seeks review of a decision of the Merit Systems Protection

Board (“Board”), which denied his request for corrective action regarding his

nonselection for the position of Administrative Law Judge (“ALJ”). We affirm.

                                     BACKGROUND

       Petitioner, a veteran of the Vietnam war, is eligible for preferential status under

the Veterans Employment Opportunity Act of 1998 (“VEOA”). In September 2004, the

Office of Personnel Management (OPM) certified over 400 candidates eligible for

veterans’ preference, including petitioner, to the Social Security Administration (SSA), to

be considered for employment as ALJs.              OPM assigned numerical scores to

candidates, and petitioner received a score of 95.5, which included veterans’ preference

points. The SSA asked candidates eligible for employment to indicate the cities in
which they would accept an appointment, and Mr. Barkalow indicated 15 cities. Mr.

Barkalow was interviewed by a panel and rated “not recommended.” This rating did not

preclude him from receiving an offer. The agency then filled positions by considering

the three highest ranking candidates who were certified by OPM as “eligible” for

employment; who were available; and who had indicated they would accept

appointment in the city where the position was located.       We note that “preference

eligibles” are those candidates eligible for veterans’ preference under the VEOA,

whereas “eligibles” as used in the regulations refers to candidates certified by OPM as

eligible for employment.     Petitioner was considered for three positions, in Fort

Lauderdale, Florida, Shreveport, Louisiana, and San Antonio, Texas, all cities where he

indicated he would accept employment.        He was not selected to fill any of those

positions. The agency did not consider petitioner for any other positions.

      Petitioner appealed his nonselection to the Department of Labor, pursuant to 5

U.S.C. § 3330a(a)(1)(a). After the Department of Labor rejected his appeal, petitioner

timely appealed to the Board, which found that petitioner made non-frivolous allegations

and that it had jurisdiction. On the merits, the Administrative Judge found that there

were no material facts in dispute and declined to hold a hearing. The Administrative

Judge held that the SSA had not violated the veterans’ preference requirements and

denied relief. The full Board denied review. This petition for review followed. We have

jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

                                      DISCUSSION

      The Board’s decision must be affirmed unless it is found to be arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; obtained



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without procedures required by law, rule, or regulation; or unsupported by substantial

evidence. 5 U.S.C. § 7703(c) (2000); Yates v. Merit Sys. Prot. Bd., 145 F.3d 1480,

1483 (Fed. Cir. 1998). The interpretation of a regulation is a question of law which we

review without deference. Lengerich v. Dep’t of Interior, 454 F.3d 1367, 1370 (Fed. Cir.

2006).

         Petitioner first argues that the SSA was required to consider candidates in strict

rank order when filling vacancies, according to their OPM scores, and that its failure to

do so (by considering only candidates who had indicated a willingness to serve in a

particular city) violated the requirement of selecting a candidate eligible for employment

from “the highest three eligibles . . . who are available for appointment.”      5 C.F.R.

§ 332.404.1 The Board found that the SSA met that requirement because the regulation

does not address which vacancies the agency must fill first, but only the order of

consideration of candidates for a given vacancy.         The Board held that the SSA’s

interpretation of “available for appointment” to include only those candidates who had

indicated they were willing to work in the particular city where the vacancy arose was

reasonable. We see no error in the Board’s interpretation of the term “available for

appointment.”




         1
               5 C.F.R. § 332.404, in its entirety, provides:
                     An appointing officer, with sole regard to merit and fitness, shall
                     select an eligible for:
                     (a) The first vacancy from the highest three eligibles on the
                     certificate who are available for appointment; and
                     (b) The second and each succeeding vacancy from the highest
                     three eligibles on the certificate who are unselected and available
                     for appointment.


2006-3237
                                          3
      Petitioner next argues that the SSA violated the “Rule of Three” of 5 C.F.R.

§ 332.405 when it considered several candidates who were not eligible for veterans’

preference more than three times, but gave only three considerations to candidates who

were eligible for veterans’ preference.2 However, the regulation only requires that each

candidate eligible for employment be considered three times, and does not forbid

consideration of a candidate eligible for employment more than three times. The Board

found that petitioner was given the requisite three considerations to satisfy the

requirements of 5 C.F.R. § 332.405, as he was considered for positions in Fort

Lauderdale, Shreveport and San Antonio. The Board’s finding in this respect did not

misconstrue the regulation and was not arbitrary or capricious.

      Finally, petitioner asserts that the SSA “manipulated the selection sequence for

ALJ positions to eliminate him and other higher ranking veterans in order to reach

candidates with lower scores that more closely fit its undisclosed criteria.” Petitioner

does not explain his contention or provide evidence to support it. He points to the ratio

of positions filled by those eligible for veterans’ preference and those not eligible for

such preference, but these statistics do not support his claim of manipulation. Petitioner

also does not claim that the SSA discriminated against him based on his uniformed

service under the Uniformed Services Employment and Reemployment Rights Act of

1994. Under these circumstances, the Board did not err in rejecting his claim.

      We conclude that petitioner has failed to prove that the Board violated the

requirements in the regulations or otherwise erred.

      2
             5 C.F.R. § 332.405 provides: “An 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.”

2006-3237
                                        4
     Accordingly, we affirm the Board’s decision.

     No costs.




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