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Post by odarite on Jul 13, 2009 22:19:26 GMT -5
The general message here seems to be that the race was to the quick (and the clever) who managed to run the OPM gauntlet and make it on to the register. Now Katie bar the door and don't let anyone else in. Why on earth? There is nothing magical about hte numbers of applications OPM accepted. My guess is it is a pure matter of convenience for OPM, given the number of years the register was completely closed (except for 10 point vets). OPM could have predicted if they simply went back to the old way of leaving the register open they would have been inundated by a number of applications such a small agency would have been completely unable to process. So they opened for small bites. I am a little surprised they have not simply opened the register on a semi regular basis as they complete each batch of applicants, but OPM is small and they don't much like ALJs anyway. But in the old days, anyone could apply at any time. Now only 10 point vets can apply at any time. It surely cannot be said that only those now on the register are qualified to be ALJs, nor that they have some sort of special right above all others (except 10 point vets) to the ALJ position. OPM is dragging its feet on reopening the register for its own reasons, and the entitlement of the haves as compared to the have nots has nothing to do with it, one way or the other.
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Post by roggenbier on Jul 14, 2009 9:05:21 GMT -5
If SSA is to persist in "one sniff" test of people on the register, then the register has to be refreshed regularly so that more sniffs can be taken. If OPM agrees with SSA that "one sniff" is all you get, then OPM has to admit the vast majority of people on the register it certifies aren't qualified to SSA standards, SSA being the 800 lb gorilla. That undermines the individuals, the investment, and the effort, which OPM put into the register. It is easy to see why OPM would resist re-opening the register. We are now back to post Azdell, where you have a register SSA doesn't want to use and OPM doesn't want to open.
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Post by privateatty on Jul 14, 2009 11:26:56 GMT -5
The general message here seems to be that the race was to the quick (and the clever) who managed to run the OPM gauntlet and make it on to the register. Now Katie bar the door and don't let anyone else in. Why on earth? There is nothing magical about hte numbers of applications OPM accepted. My guess is it is a pure matter of convenience for OPM, given the number of years the register was completely closed (except for 10 point vets). OPM could have predicted if they simply went back to the old way of leaving the register open they would have been inundated by a number of applications such a small agency would have been completely unable to process. So they opened for small bites. I am a little surprised they have not simply opened the register on a semi regular basis as they complete each batch of applicants, but OPM is small and they don't much like ALJs anyway. But in the old days, anyone could apply at any time. Now only 10 point vets can apply at any time. It surely cannot be said that only those now on the register are qualified to be ALJs, nor that they have some sort of special right above all others (except 10 point vets) to the ALJ position. OPM is dragging its feet on reopening the register for its own reasons, and the entitlement of the haves as compared to the have nots has nothing to do with it, one way or the other. This is the first time I've disagreed with you and nominally your point is well taken. But you have ducked the main issue here which is Messrs. Foster and Cristaudo want the Register "refreshed" to select more of whom they want (i.e., insiders) vis a vie their well published penchant for "gerry-mandering" the Certificate that they get from OPM. Surely you do not subscribe to that? Would you not want those passed over because they are not a favored son or daughter to have another shot to be an ALJ? What about our brothers and sisters here: JH, Morg, Val, etc., etc.? My gosh, they deserve to be ALJs.
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Post by diceman on Jul 16, 2009 12:44:20 GMT -5
...and slipping him some tongue... I don't know where the line is, but I think you've crossed it.
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Post by morgullord on Jul 16, 2009 14:03:16 GMT -5
As Churchill said, "Where one stands on something depends upon where one sits."
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Post by bintex on Jul 17, 2009 13:36:25 GMT -5
As patriotsfan mentioned has mentioned discovery in cases involving SSA selection processes, I'd like to know just what those cases have been and are, and where that discovery and answers may be found ? I don't see any discussion of such cases recently on this board - but I would certainly like to know more. Any help ?
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Post by rhino on Jul 17, 2009 14:19:42 GMT -5
Even if those cases reach the point where the decisions are accessible to the public, the filings will not be (not, at least until they get to district court - IF they go there) and the discovery never will be accessible to the public.
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Post by bintex on Jul 17, 2009 14:37:01 GMT -5
As to actions and pleadings and discovery and responses, the members who have these actions could share all those, couldn't they ?
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Post by privateatty on Jul 17, 2009 15:21:35 GMT -5
You can read pleadings through a Pacer account if its in a USDC or higher.
Gosh knows it'll make for very interesting reading.
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Post by roggenbier on Jul 19, 2009 19:54:16 GMT -5
I wanted to know whether anyone has seen the Barkalow case, a 2006 Fed Circuit case that seems to uphold a number of practices at SSA that people complain of here. Google it, I lost the link to the cite. How is the un selected ALJ there different than any ongoing case.
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Post by ALJD on Jul 19, 2009 20:43:45 GMT -5
I wanted to know whether anyone has seen the Barkalow case, a 2006 Fed Circuit case that seems to uphold a number of practices at SSA that people complain of here. Google it, I lost the link to the cite. How is the un selected ALJ there different than any ongoing case. Excellent point. Here's the link to the decision for folks who haven't read it yet.
www.ll.georgetown.edu/federal/judicial/fed/opinions/06opinions/06-3237.pdf
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Post by valkyrie on Jul 20, 2009 10:30:06 GMT -5
All litigants are quite aware of the case, but note that the case fails to make its claim for the "manipulation" of the certificate in an effective way. Barkalow argued a really crappy "numerical" argument regarding the selection order issue that current litigants have ignored, focusing instead upon how the manipulation of the order of selection led to the creation of fake "top 3s" for each vacancy. Barkalow made a lousy case, frankly, which is why he lost. That being said, the case is not helpful to the litigants but is distinguishable. Pretty good summation PF, it did seem that the court was expecting more in the third argument of the case with regard to an explanation of the alleged manipulation. On the other hand, Barkalow was a vet, which usually gets a lot more leeway with these claims, and the court did specifically note that the regulation does not require any particular order in which the locations are addressed. From a non-legal basis, none of the current litigation has gotten any attention from the powers that be. Usually, when management has any worries about pending litigation, one begins to hear significant rumbling from the top of Olympus. (They did what!?!? Now we're screwed! Of all the stupid... someone's head is going to roll for this one!) This would lead me to believe that any win for the litigants is not going to come from any specific examples of wrong-doing, but instead from a different interpretation of the regs. I know you all have banked a lot on the individual "nepotism" claim amongst others, but history would suggest that finding a "dead body" like that one would cause feathers to fly, unless the selection was well covered.
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Post by decadealj on Jul 20, 2009 11:49:09 GMT -5
Did you pay a royalty to the author of A FEW GOOD MEN? By the way,a the Marine Colonel played by Jack Nicholson was very good rendition of the actual commander at GITMO and the case it was based upon was a simple assault and battery, a blanket party in the barracks. Hollywood took a bit of poetic license.
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Post by jagghagg on Jul 20, 2009 12:28:16 GMT -5
From a non-legal basis, none of the current litigation has gotten any attention from the powers that be. Usually, when management has any worries about pending litigation, one begins to hear significant rumbling from the top of Olympus. (They did what!?!? Now we're screwed! Of all the stupid... someone's head is going to roll for this one!) This would lead me to believe that any win for the litigants is not going to come from any specific examples of wrong-doing, but instead from a different interpretation of the regs. One might well think that. Indeed, SSA thinks they have nothing about which to be concerned from any current litigation because they think the current litigation is about whether the regulations require them to fill slots in any particular order and whether the Three Strike Rule is valid. As we have agreed before , there is no rule which requires an agency to fill slots in any specific order and any current litigation of which I know --- and I'm bettin' I would know --- nor is any about the validity of the rules on their face, but rather about, in part, whether utilization of the rules as they are written in order to reach a predetermined end which is not contemplated by the merit principles and preliminary processes which may actually violate them. Did you pay a royalty to the author of A FEW GOOD MEN? By the way,a the Marine Colonel played by Jack Nicholson was very good rendition of the actual commander at GITMO and the case it was based upon was a simple assault and battery, a blanket party in the barracks. Hollywood took a bit of poetic license. I went with my whole office of uniformed JAGs....we laughed afterwards and said, " Man, if Military Justice was that much fun and people were that good-looking, we'd ALL want to practice it exclusively!"
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Post by valkyrie on Jul 20, 2009 14:21:13 GMT -5
From a non-legal basis, none of the current litigation has gotten any attention from the powers that be. Usually, when management has any worries about pending litigation, one begins to hear significant rumbling from the top of Olympus. (They did what!?!? Now we're screwed! Of all the stupid... someone's head is going to roll for this one!) This would lead me to believe that any win for the litigants is not going to come from any specific examples of wrong-doing, but instead from a different interpretation of the regs. One might well think that. Indeed, SSA thinks they have nothing about which to be concerned from any current litigation because they think the current litigation is about whether the regulations require them to fill slots in any particular order and whether the Three Strike Rule is valid. As we have agreed before , there is no rule which requires an agency to fill slots in any specific order and any current litigation of which I know --- and I'm bettin' I would know --- nor is any about the validity of the rules on their face, but rather about, in part, whether utilization of the rules as they are written in order to reach a predetermined end which is not contemplated by the merit principles and preliminary processes which may actually violate them. I thought SSA had carelessly thrown caution to the wind and blatantly hired "favorites" and relatives in open contravention of all the rules? I still think you're selling SSA far too short with regard to their ability to cover themselves on this. The inferences that can be made about the intent of SSA's hiring decisions are based upon the results of the hiring and anything that SSA put in writing. As we have gone over before, the numbers are not particularly exciting, and there are plenty of plausible reasons for them, including the litigant's theories. As for what's in writing, lets give SSA at least a minimum of credit. Like I said before, if someone left something d**ning in writing, or otherwise discoverable, things would be buzzing at Falls Church. Instead, the litigants would have to ask the court to get much too invasive with an agency's ability to make selections. Success for the litigants would set a precedent of second-guessing that would cripple an agency's ability to choose its candidates. But I suppose if the ends justify the means, that would be okay.
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Post by jagghagg on Jul 20, 2009 14:25:59 GMT -5
I still think you're selling SSA far too short with regard to their ability to cover themselves on this. .... But I suppose if the ends justify the means, that would be okay. I do not underestimate either the SSA or you, Val! Nonetheless, "you can't win if you don't play."
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Post by valkyrie on Jul 20, 2009 15:53:00 GMT -5
I still think you're selling SSA far too short with regard to their ability to cover themselves on this. .... But I suppose if the ends justify the means, that would be okay. I do not underestimate either the SSA or you, Val! Nonetheless, "you can't win if you don't play." We can certainly agree that any given Sunday...
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Post by privateatty on Jul 20, 2009 17:00:33 GMT -5
Val: Did I hear you say that "the ends justify the means"? So it would be OK if you pis*ed off a HOD in your office and he/she ratted you out to OCALJ as a malcontent and you did not get an offer? So it would be OK if you told them at the interview that AALJ did good work and you planned to join and you did not get an offer? So it would be OK if you were stacked three times with 6 folks and you had a higher score each time and you did not get an offer? Just checkin'...
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Post by rhino on Jul 20, 2009 17:16:16 GMT -5
I believe the esteemed Valkyrie was alluding to a prior disagreement between herself and the "hagg.
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Post by bintex on Jul 20, 2009 17:30:12 GMT -5
Ahh, JaggHagg - how would you know what the OCALJ has done in selections ? The answers about other folks actions and discovery have been disappointing. I am reasonably certain that much of what the MSPB does is confidential or restricted to the parties - though I am curious about where the decisions are reported. But surely the complaining parties can share their discovery, both questions and answers and documents - and I would think that everybody would. This seems fairly common practice in ordinary civil litigation - to read the Court files of similar cases, and then ask the other counsel to share their stuff. Reciprocation is expected, and done. Trial lawyer association routinely assist in this sort of thing - and you'd best believe defense lawyers do it, and big defendants of course keep all their counsel informed of other cases. So - where to look for this sort of thing ? I would have though asking on this board would bring a few, or more, friendly offers to share, or at least a direction to a trove of discovery on ALJ selections. But not yet it seems.
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