O'Leary v. Office of Personnel Management
Opinion
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 Management (“OPM”) certificate of eligi-bles for candidacy as an administrative law judge by the Social Security Administration (“SSA”). The Board denied O’Leary’s appeal. We affirm.
Background
“An agency may appoint an individual to an administrative law judge position ... when it makes its selection from the list of eligibles provided by OPM.”
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
The Board Administrative Judge (“AJ”) found that although O’Leary “disputes that Peters actually ‘considered’ him for the position of [administrative law judge,] ... I find that Peters’ participation in the process ... during' the deliberations constitutes proper consideration.” J.A. 32-33. The AJ also found that “it is not appropriate 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
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 procedures required by law, rule, or regulation having been followed; or (3) unsup
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ported by substantial evidence.”
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
According to O’Leary, because
An appointing officer may delegate her appointment duties.
See, e.g., Vandewall v. Dep’t of Transp.,
O’Leary argues that the appointing officer must personally consider the “merit and fitness” of an eligible in 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 delegate 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 Cris-taudo.
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 arguments and find them without merit.
AFFIRMED
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No costs.
. Peters testified that her personal consideration during the appointment process did not pertain to the "merits” of O’Leary's candidacy. J.A. 86.
Reference
- Full Case Name
- Cotty P. O'LEARY, Petitioner v. OFFICE OF PERSONNEL MANAGEMENT, Social Security Administration, Respondents
- Status
- Unpublished