United States District Court, W.D. Pennsylvania
GUY C. PATTERSON, Plaintiff,
NANCY A. BERRYHILL, COMMISSIONER ACTING, U.S. SOCIAL SECURITY ADMINISTRATION, Defendant.
MEMORANDUM OPINION AND ORDER
Donetta W. Ambrose, U.S. Senior District Judge
employment discrimination action, Defendant, Nancy A.
Berryhill, Commissioner (Acting), U.S. Social Security
Administration (“Berryhill” or
“Defendant”), filed an Answer to Plaintiff's
Complaint on May 2, 2018. [ECF No. 5]. On May 17, 2018,
Plaintiff filed a Motion for Judgment on the Pleadings as to
Liability and Brief in Support [ECF Nos. 8, 9]. On June 12,
2018, Defendant filed a Response to Plaintiff's Motion.
[ECF No. 12]. On June 13, 2018, Plaintiff sought leave to
file a Reply Brief which I granted on June 14, 2018. [ECF
Nos. 13, 14]. The Motion is now ripe for my review.
Motion, Plaintiff seeks an entry of judgment on the pleadings
in his favor on the grounds that Berryhill's service as
Acting Commissioner of Social Security after November 17,
2017 violates the Federal Vacancies Reform Act of 1998
(“FVRA”), 5 U.S.C. § 3345, et seq.,
and, therefore, that her Answer to the Complaint is a legal
nullity. [ECF No. 9]. In support, Plaintiff attaches exhibits
showing that approximately three weeks after Plaintiff filed
his Complaint, the U.S. Government Accountability Office
(“GAO”) advised the President that the FVRA
limits the time a vacant position can be held by an
“acting” official and that Berryhill's
service had violated the time limitations in the Act.
Id. at 2 & Ex. 6. According to Plaintiff,
Berryhill subsequently relinquished the title of Acting
Commissioner and resumed her prior position in the agency as
Deputy Commissioner of Operations. Id. at 5.
Consequently, Plaintiff argues that Berryhill is not a proper
party to this action. Id.
careful consideration of Plaintiff's arguments,
Defendant's response, and Plaintiff's reply, I find
that Plaintiff's position is without merit. In her
response, Berryhill acknowledges that her term as Acting
Commissioner should have ended on November 17, 2017 in
accordance with the FVRA, and that, immediately following the
GAO's determination in March 2018, she stepped down from
her role as Acting Commissioner and continued to lead the
agency from her Deputy Commissioner of Operations position of
record. [ECF No. 12, at 1-2]. As she points out, however, on
April 17, 2018, the President nominated Mr. Andrew Saul to be
the next Commissioner of Social Security. Id. at 2
(citing sources). The FVRA contains a
“spring-back” provision that enabled Berryhill to
resume her role as Acting Commissioner as of the date of Mr.
Saul's nomination, fifteen days prior to the date that
the Answer was filed in this case. Id.; see
5 U.S.C. § 3346(a)(2) (providing that, once a first or
second nomination for the office is submitted to the Senate,
an acting officer may serve from the date of such nomination
for the period the nomination is pending in the Senate).
arguments set forth in Plaintiff's Reply Brief do not
change my conclusions. In his reply, Plaintiff asserts that,
under the Social Security Administration Succession Plan,
Deputy Commissioner for Budget, Finance, Quality, and
Management, Michelle A. King, rather than Berryhill, should
occupy the position of Acting Commissioner. [ECF No. 13-3].
This argument is meritless. Under the succession plan to
which Plaintiff refers, the first person in line to act as
and perform the functions and duties of the Social Security
Commissioner in the event of a vacancy is the Deputy
Commissioner for Operations. See Memorandum for the
Commissioner of the Social Security Administration, 81 Fed.
Reg. 96337, 2016 WL 7487744. The position held by Michelle
King, Deputy Commissioner for Budget, Finance, Quality, and
Management, is second in line. See id. As noted in
Plaintiff's motion and exhibits thereto, following the
notice from the GAO concerning the timing violation,
Berryhill continued to lead the agency from her position of
record, Deputy Commissioner of Operations. See ECF
No. 8-5 (Motion Ex. 4). As set forth above and in the
succession plan, the Deputy Commissioner of Operations is
first in line to assume the duties of acting commissioner.
Plaintiff has not cited any authority supporting his
alternative interpretation of the memorandum of succession or
otherwise suggesting that Ms. King should have assumed the
acting commissioner duties over Berryhill either in November
2017 or April 2018. See also, e.g.,
Mateo v. Berryhill, Civil Action No. 3:16-1057, 2018
WL 1965286, at *1 n.1 (M.D. Pa. Apr. 25, 2018) (noting that,
although Berryhill was not authorized to use the title Acting
Commissioner after November 2017, she continued to
functionally lead the Social Security Administration from her
position of record as Deputy Commissioner of Operations);
Reeves v. Berryhill, No. 2:16-cv-00114, 2018 WL
1535462, at *1 n.1 (M.D. Tenn. Mar. 29, 2018) (same, citing
the order of succession).
Berryhill, as Acting Commissioner, is not an improper
defendant in this case, judgment on the pleadings is
unwarranted on this basis. To the extent Plaintiff further
seeks judgment on the pleadings on the merits of his claims,
such arguments are premature. For all of these reasons,
Plaintiff's Motion for Judgment on the Pleadings as to
Liability at ECF No. 8 is DENIED.
NOW, on this 14th day of June, 2018, IT IS SO
ORDERED. IT IS FURTHER ORDERED that a status conference is
scheduled for Thursday, June 21, 2018, at 10:00 a.m. in
 Moreover, and, in any event, Berryhill
is a party to this lawsuit only in her official capacity.
Pursuant to Federal Rule of Civil Procedure 25(d):
An action does not abate when a public officer who
is a party in an official capacity dies, resigns, or
otherwise ceases to hold office while the action is
pending. The officer's successor is automatically
substituted as a party. Later proceedings should be in the
substituted party's name, but any misnomer not
affecting the parties' substantial rights must be
disregarded. The court may order substitution at any time,
but the absence of such an order does not affect the
Thus, if at any time it is determined that Berryhill
is/was not the ...