Weed v. Social Security Administration ( 2010 )

NOTE: This disposition is nonprecedential.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NOTE: This disposition is nonprecedential.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
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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