United States District Court, D. New Hampshire
Brian J. Stone
Carolyn W. Colvin, Acting Commissioner, Social Security Administration.
REPORT AND RECOMMENDATION
ANDREA K. JOHNSTONE, Magistrate Judge.
Brian Stone, an unsuccessful applicant for a position with the Social Security Administration ("SSA"), has filed a pro se complaint (doc. nos. 1 and 4) asserting that defendant discriminated against him in violation of the Civil Service Reform Act of 1978 ("CSRA"), 5 C.F.R. § 731.202(b), and 28 C.F.R. § 50.12(b). Stone's complaint is before me for preliminary review, pursuant to LR 4.3(d)(2). For the reasons that follow, it is recommended that Stone's complaint be dismissed for lack of subject matter jurisdiction.
The Legal Standard
When reviewing a pro se complaint, the court is to construe it liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). After reviewing a complaint filed by a party such as Stone, who is not incarcerated and is proceeding in forma pauperis, the court may
report and recommend to the court that the filing be dismissed because the allegation of poverty is untrue, the court lacks subject matter jurisdiction, or the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief.
The facts in this section are drawn from Stone's complaint. Stone applied for a job with the SSA. After going through the interview process, he emerged as the top candidate for the position. Thereafter, the SSA had the FBI conduct a background check and prepare what is referred to as an "identification record." 28 C.F.R. § 50.12. That identification record revealed several arrests, including some that Stone did not disclose in his application. After reviewing Stone's identification record, the SSA decided not to hire him. The SSA told Stone that it was not hiring him because of his arrests and because he had not disclosed some of them in his application.
Stone challenged the decision not to hire him by filing a Formal Complaint of Discrimination with the SSA. In it, he claimed that he had been discriminated against because of his national origin (Moroccan), his marital status, his parental status, and conduct which does not adversely affect job performance, i.e., his having been arrested. Stone's complaint resulted in a finding that the "SSA did not discriminate against [him] based on his national origin, marital status, parental status, and conduct which does not adversely affect performance." Am. Compl., doc. no. 4 at 25. In the Final Agency Decision announcing that result, the SSA's Associate Commissioner for Civil Rights and Equal Opportunity noted that while Stone's complaint was pending, the SSA's Office of Civil Rights and Equal opportunity "informed [him] of the Office of Special Counsel's and the Merit System Protection Board's contact information to determine whether he [had] a prohibited personnel practice claim." Id. at 22, n.7. The decision also informed Stone that he had "the right to file a civil action in an appropriate U.S. District Court." Id. at 26. This action followed.
In his complaint, Stone claims that the SSA is liable to him for "federal employment discrimination." Am. Compl., doc. no. 4 at 2. He asserts that the decision not to hire him was unlawful because: (1) the "CSRA of 1978 and Agency policy prohibit discrimination on the basis of non-job related conduct which does not adversely affect performance of employees and applicants for employment, " id. at 3; (2) his arrests, which have not resulted in convictions, fall outside the scope of conduct that may be used to deem an applicant unsuitable for employment, under 5 C.F.R. § 731.202(b); and (3) the SSA did not give him "the opportunity to complete, or challenge the accuracy of the information" in his FBI identification record, id. at 24, as required by 28 C.F.R. § 50.12(b). While Stone identified four types of discrimination in the Formal Complaint of Discrimination which he filed with the SAA, his action in this court is limited to a claim of discrimination based upon "nonjob related conduct." That is, Stone is not claiming in this court that the SSA discriminated against him based upon his national origin, marital status, or parental status.
This court lacks subject matter jurisdiction over Stone's claim. The CSRA, on which Stone relies for his primary cause of action, describes a host of prohibited personnel practices and includes a provision stating that a federal employee with hiring authority shall not
discriminate... against any... applicant for employment on the basis of conduct which does not adversely affect the performance of the... applicant or the performance of others; except that nothing in this paragraph shall prohibit an agency from taking into account in determining suitability or fitness any conviction of the... applicant for any crime under the laws of any State, of the District of Columbia, or of the United States.
5 U.S.C. § 2302(b)(10). The applicable regulations set out a list of criteria that federal employers may use to make socalled "suitability decisions, " 5 C.F.R. § 731.202, and while that list includes "[c]riminal or dishonest conduct, " § 731.202(b)(2), there is nothing in the regulation to suggest that merely being arrested is evidence of criminal conduct. Thus, arguably, Stone has stated a claim that the SSA engaged in a prohibited ...