O'Leary v. Office of Personnel Management ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
COTTY P. O’LEARY,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT, SOCIAL
SECURITY ADMINISTRATION,
Respondents
______________________
2016-2477
______________________
Petition for review of the Merit Systems Protection
Board in Nos. DA-300A-12-0430-B-1, DA-300A-12-0651-B-
1, DA-300A-12-0652-B-1.
______________________
Decided: September 6, 2017
______________________
COTTY P. O’LEARY, Metairie, LA, pro se.
ALISON VICKS, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondents. Also represented by CHAD A.
READLER, ROBERT E. KIRSCHMAN, JR., ALLISON KIDD-
MILLER.
______________________
2 O’LEARY v. OPM
Before DYK, MOORE, and TARANTO, Circuit Judges.
PER CURIAM.
Cotty O’Leary petitions for review of a final decision
of the Merit Systems Protection Board (“Board”). O’Leary
was removed from the 2012 Office of Personnel Manage-
ment (“OPM”) certificate of eligibles for candidacy as an
administrative law judge by the Social Security Admin-
istration (“SSA”). The Board denied O’Leary’s appeal. We
affirm.
BACKGROUND
“An agency may appoint an individual to an adminis-
trative law judge position . . . when it makes its selection
from the list of eligibles provided by OPM.” 5 C.F.R.
§ 930.204. O’Leary was on the OPM list of eligibles to SSA
as an administrative law judge candidate in 2009, 2010,
and 2011. He was considered for three appointments in
2009, but he was not selected.
5 C.F.R. § 332.405 provides that “[a]n appointing of-
ficer 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.”
Known as the “rule of three,” § 332.405 has a long history
dating back to 1886, and this court has specifically held
that this regulation “is lawful.” Lackhouse v. MSPB, 773
F.2d 313, 317 (Fed. Cir. 1985).
O’Leary was removed from the 2012 list of eligibles by
SSA after it deemed that he “had [already] received at
least three bona fide considerations.” Appellee Br. 6.
O’Leary filed three appeals alleging that OPM and
SSA violated 5 C.F.R. § 332.405 as applied to him. Specif-
ically, O’Leary alleged that he had not received three
considerations from the “appointing officer,” Nancy Pe-
ters, as required by the regulation. Rather, according to
O'LEARY v. OPM 3
O’Leary, Peters performed “merely ‘ministerial’” approv-
als, J.A. 25, while the actual appointment considerations
were “made by various [other] individuals,” J.A. 33.
O’Leary also moved to certify a class action on behalf of
other candidates who were similarly removed from the
list.
The Board Administrative Judge (“AJ”) found that
although O’Leary “disputes that Peters actually ‘consid-
ered’ him for the position of [administrative law judge,]
. . . I find that Peters’ participation in the process . . .
during the deliberations constitutes proper considera-
tion.” J.A. 32–33. The AJ also found that “it is not appro-
priate to treat this appeal as a class action, as it does not
meet the requirements.” J.A. 39.
O’Leary petitioned for review of this initial decision,
which the Board denied, affirming the AJ’s initial decision
that Peters had properly delegated her appointment duty.
O’Leary petitions for review. We have jurisdiction
under 28 U.S.C. § 1295(a)(9).
DISCUSSION
We must affirm the Board’s decision unless it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c).
In his petition for review, O’Leary argues that he was
improperly removed from the 2012 list of eligibles for SSA
administrative law judge positions based on an improper
application of 5 C.F.R. § 332.405.
According to O’Leary, because 5 C.F.R. § 332.404 pro-
vides that “[a]n appointing officer, with sole regard to
merit and fitness, shall select an eligible for . . . [t]he first
4 O’LEARY v. OPM
vacancy from the highest three eligibles,” the appointing
officer’s “consideration” for the purpose of § 332.405 must
thus also include assessing “merit and fitness.” Here,
O’Leary argues that Peters’s duties were “merely ministe-
rial in nature,” Appellant Br. 17, because she was “re-
sponsible only for verifying the legality and procedural
propriety of the appointment, whereas [others] ma[d]e the
substantive judgments and actually cho[]se the selectees,”
id. at 15. Thus, O’Leary claims that he was not properly
considered three times as the regulation requires. We
disagree. While the Board may have erred in concluding
that Peters herself considered “the merit and fitness of
the candidates,” J.A. 19, we conclude that Peters could
properly delegate her consideration of “the merits and
fitness of the candidates.”
An appointing officer may delegate her appointment
duties. See, e.g., Vandewall v. Dep’t of Transp., 5 F.3d
1504, 1993 WL 302646 at *2 (Fed. Cir. 1993) (“[S]election
letters written by officials lacking appointment authority
[a]re valid so long as the appointing official had exercised
her discretion by approving the issuance of each selecting
letter.”); Horner v. Acosta, 803 F.2d 687, 693 (Fed. Cir.
1986) (holding that a “selection letter from, or with the
knowledge of, an official having appointive authority”
constitutes appointment). Here, O’Leary concedes that he
was properly “considered for appointment as an [adminis-
trative law judge] three times by then SSA Chief Judge
Frank Cristaudo.” Appellant Br. 6, 16; accord J.A. 155.
And there is no dispute that Cristaudo made his adminis-
trative law judge selection recommendations under the
authority of Peters. J.A. 33–34; see also J.A. 168 (Cristau-
do testifying that he knew Peters was the appointing
officer). Therefore, the appointing officer here simply
delegated her proper consideration of O’Leary.
O’Leary argues that the appointing officer must per-
sonally consider the “merit and fitness” of an eligible in
O'LEARY v. OPM 5
order to invoke § 332.405. Appellant Br. 10. 1 We agree
with the Board that “given the number of appointments
under her auspices, it is reasonable [for Peters] to dele-
gate duties to others with first-hand knowledge of the
requirements of the [administrative law judge] position.”
J.A. 34. Having effectively delegated her appointment
duties, Peters was not required to personally consider the
merits of O’Leary’s candidacy and could appropriately
defer to the merits recommendations from Chief Judge
Cristaudo.
O’Leary also argues in his petition for review that, in
order to certify a class action, he should be allowed to
discover “the identities of the unknown potential class
members” who were similarly affected. Appellant Br. 21.
Like the Board, because we “deny corrective action in
the[] employment practices appeal[],” J.A. 20, we also
affirm the denial of O’Leary’s class-certification motion.
We have considered the petitioner’s remaining argu-
ments and find them without merit.
AFFIRMED
COSTS
No costs.
1 Peters testified that her personal consideration
during the appointment process did not pertain to the
“merits” of O’Leary’s candidacy. J.A. 86.