Barrett v. Social Sec. Admin.

• Decision Date: 28 October 2002
• Docket Number: No. 02-3081.,02-3081.
• Parties: Sharon M. BARRETT, Petitioner, v. SOCIAL SECURITY ADMINISTRATION, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

309 F.3d 781

Sharon M. BARRETT, Petitioner, v. SOCIAL SECURITY ADMINISTRATION, Respondent.

No. 02-3081.

United States Court of Appeals, Federal Circuit.

DECIDED: October 28, 2002.

Kevin H. Graham, Shumaker, Loop, of Tampa, FL, argued for petitioner. On the brief was Sharon M. Barrett, pro se.

Patrick J. Mercurio, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent. With him on the brief were Robert D. McCallum, Jr., Assistant Attorney General; David M. Cohen, Director; and Deborah A. Bynum, Assistant Director.

Before LOURIE, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and PROST, Circuit Judge.

PROST, Circuit Judge.

Sharon M. Barrett petitions for review of the March 18, 2001, final decision of the Merit Systems Protection Board ("Board") dismissing her appeal for lack of subject matter jurisdiction. Barrett v. Soc. Sec Admin., Docket No. AT-0752-00-0924-I-1, slip op. at 1 (M.S.P.B. Mar.18, 2001) ("Barrett"). For the reasons set forth below, we affirm.

I.

Ms. Barrett began her federal employment in a career conditional appointment with the Social Security Administration ("SSA") on May 7, 1978. Id. at 2. On May 7, 1981, she was converted to permanent tenure status. Id. Ms. Barrett remained in this position until September 27, 1998, when she was appointed Attorney Advisor in the SSA's Office of Hearings and Appeals ("OHA") in Tampa, Florida. Id. Because the Attorney Advisor position was an excepted position, not to exceed September 26, 2000, Ms. Barrett's tenure status was changed from "permanent" to "indefinite" at this time. Id. Her term appointment was subsequently extended with a new "not-to-exceed" date of September 30, 2002. Id.

Pursuant to two vacancy announcements, Ms. Barrett applied for the position of Hearing Office Director ("HOD") in the SSA's Tampa office, Region IV (Atlanta), on June 30, 2000. Id. at 2-3. Significantly, both announcements explicitly limited consideration for the HOD position to "current permanent SSA employee's [sic] regionwide" and certain other employees not relevant here. Id. (emphasis added). As stated above, Ms. Barrett was not a permanent employee at the time she applied for the position. After applying for the job, Ms. Barrett wrote to Judge Catherine Ravinski, Administrative Law Judge for the Social Security Administration, to ask whether she was eligible to do so. Id. Judge Ravinski referred Ms. Barrett's inquiry to an agency personnel specialist, Mr. Lew Kaiser, who informed Ms. Barrett that she was not eligible. Id. Mr. Kaiser also told Ms. Barrett that for more information about her specific situation, she could contact the relevant servicing personnel office. Id. Ms. Barrett does not contend that she did so. Id. In addition to receiving Mr. Kaiser's response, Ms. Barrett was also contacted by the Acting Manager of the OHA's Office of Management, Ms. Patricia Carey. Id. Having received a courtesy copy of Judge Ravinski's referral to Mr. Kaiser, Ms. Carey provided Ms. Barrett with her unsolicited opinion that, although Ms. Barrett lacked the permanent status required by the vacancy announcements, her prior career status entitled her to apply for the HOD position. Id.

Before the Administrative Judge ("AJ"), Ms. Barrett testified that on August 18, 2000, Judge Ollie Garmon, the Acting Regional Office Chief Administrative Law Judge ("CALJ") for Region IV, selected her for the HOD position. Id. at 3 n. 2. The AJ found, however, that "as early as August 18 when Judge Garmon notified the appellant of her selection for the position, he specifically questioned whether she was eligible for the position based on her current temporary status." Id. at 6. The AJ further found that Ms. Barrett assured Judge Garmon that Regional Office Personnel Specialists had previously confirmed her eligibility. Id. Ms. Barrett subsequently conceded that it was Patricia Carey, who did not work in the Office of Personnel, who so advised her. Id. at 6-7. Ms. Barrett assumed the duties of the HOD position that same day. Id. at 4. As the AJ found, however, no official documentation such as an SF-50 was prepared to confirm that Ms. Barrett had actually been appointed to the HOD job. Id. at 7. Six days later, on August 24, 2000, Judge Garmon advised Ms. Barrett that the SSA was withdrawing her promotion to the HOD position because she was a current temporary employee and therefore not eligible to compete for the job. Id. at 4. The SSA's withdrawal of Ms. Barrett's promotion became effective immediately. Id.

Ms. Barrett appealed the SSA's withdrawal to the Board. Id. at 1. According to Ms. Barrett, Judge Garmon had appointed her to the HOD position and the SSA's subsequent action constituted a demotion without required procedures in violation of her right to due process. Id. at 4. The SSA moved to dismiss Ms. Barrett's appeal for lack of jurisdiction. According to the SSA, Ms. Barrett had never been appointed to the HOD job and she therefore did not qualify as an "employee" entitled to the rights of the position, including the right to appeal her alleged demotion to the Board. Id. The SSA also moved to stay all discovery proceedings pending a ruling on its motion to dismiss, and Ms. Barrett, who was proceeding pro se at this stage of her appeal, agreed.

The AJ granted the SSA's motion to dismiss, finding that Ms. Barrett was not an "employee" because she had not been appointed to the HOD position and that it consequently lacked jurisdiction to hear her appeal. Id. The AJ based its analysis on 5 U.S.C. § 2105(a). Section 2105(a) states that "except as otherwise provided by this section or when specifically modified," an "employee" for purposes of Title 5 must be "appointed in the civil service" by, inter alia, another employee "acting in an official capacity." 5 U.S.C. § 2105(a)(1) (2000) (emphasis added).¹ In Horner v. Acosta, this court held that a valid appointment under § 2105(a) requires "definite, unconditional action by an authorized federal official." 803 F.2d 687, 693 (Fed.Cir. 1986) (emphasis added). Relying on Horner, the AJ found that Ms. Barrett had failed to prove that Judge Garmon, the person who had allegedly appointed her to the HOD position, was authorized to make such an appointment. See Barrett, slip op. at 6-7. Specifically, the AJ found that Ms. Barrett had produced no documentary evidence that the SSA had redelegated the relevant appointment authority to individuals in Judge Garmon's position, namely that of Regional Office CALJ. See id. at 6. Instead, the AJ found that the "Referral of Eligibles" sheet ("Referral Sheet"), which listed Ms. Barrett and six other candidates for the HOD position, showed that the SSA had not redelegated appointment authority in this fashion. Id. at 7. The Referral Sheet stated that "MANAGERS MAY ARRANGE ONLY TENTATIVE EFFECTIVE DATES" and further emphasized that "THE REGIONAL PERSONNEL OFFICE MUST CONFIRM THE SELECTEE'S ELIGIBILITY BEFORE THE SELECTION IS ANNOUNCED OR THE EMPLOYEE IS ALLOWED TO REPORT." (capitalization in original) (emphases added). According to the AJ, this language demonstrated that the SSA had reserved appointment authority to the regional personnel office. See id.

Finally, the AJ noted that "it appears that [Ms. Barrett] may have intentionally withheld from Judge Garmon the fact that she had received conflicting advice as to her eligibility," and pointed to the lack of any document, such as an SF-50, suggesting that Ms. Barrett had been appointed. Id. Accordingly, the AJ concluded that Ms. Barrett had failed to prove that she had been appointed to the HOD position by someone with the necessary appointment authority and that she therefore did not qualify as an "employee" entitled to appeal her alleged demotion from that position. Id. The AJ consequently dismissed Ms. Barrett's appeal for lack of jurisdiction. Id. at 9.

On April 23, 2001, Ms. Barrett petitioned the full Board for review of the AJ's initial decision. In her petition, Ms. Barrett also requested limited discovery "to determine the appointing authority of the Regional Chief Judges." The Board denied Ms. Barrett's petition on October 16, 2001, thereby rendering the AJ's initial decision final. Ms. Barrett petitioned this court for review. We have jurisdiction pursuant to 28 U.S.C. § 1295(a).

II.

A.

The scope of our review in an appeal from a decision of the Board is limited. We are obligated to affirm the Board's decision unless we find it to be (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) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000); Kewley v. Dep't of Health & Human Servs., 153 F.3d 1357, 1361 (Fed.Cir. 1998). Whether the Board possesses jurisdiction to adjudicate a case is a question of law, which this court reviews de novo. Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed.Cir.1995). The Board's jurisdiction is not plenary but is instead limited to those actions made appealable to it by law, rule, or regulation. Van Wersch v. Dep't of Health & Human Servs., 197 F.3d 1144, 1147 (Fed.Cir.1999). When an individual appeals to the Board, he or she bears the burden of proving that the Board has jurisdiction by a preponderance of the evidence. Monasteri v. Merit Sys. Prot. Bd., 232 F.3d 1376, 1378 (Fed.Cir.2000).

B.

Ms. Barrett asserts that the Board erred when it dismissed her appeal for lack of jurisdiction. Ms. Barrett makes two arguments in support of her claim, which we address in turn. First, Ms. Barrett argues that the Board erred by dismissing her appeal without first allowing her discovery to determine whether Judge Garmon was authorized to appoint her as an employee to the HOD position.² Although Ms. Barrett concedes that she agreed to the SSA's motion to stay all discovery proceedings before the AJ...