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Post by hopefalj on Mar 27, 2014 18:00:30 GMT -5
Best of luck to all and sundry. With your unwarranted assumptions (I'm not DLOTS), ad hominem attacks, and failure to address the argument, y'all appear to be precisely the candidates that the agency is looking for. From the link that observer provided for your review... "OPM remains convinced that active licensure at the time of application and appointment is vital as an indicator that the applicant presenting himself or herself for assessment and possible appointment has been subject to rigorous ethical requirements right up to the time of appointment." and "...Existing mechanisms for regulating conduct, such as the Standards of Ethical Conduct for Employees of the Executive Branch promulgated by the Office of Government Ethics and codified at 5 CFR part 2635, agency-prescribed ethics standards, and the adverse action procedures for ALJs in 5 U.S.C. 7521, [are] sufficient to ensure that ALJs are held to a high standard of professional conduct."
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Post by advocatusdiaboli on Mar 27, 2014 18:11:22 GMT -5
A fair point, but from my original post:
“Minimum qualification requirements do not disappear after an individual is appointed as an administrative law judge. As described in the following discussion of comments, a standard for career-entry promotes the efficiency of the competitive service only if it applies continuously to applicants and incumbents alike.” 72 FR 12949 (emphasis supplied).
So, one might fairly ask, what changed in the intervening three years. The interim rule being published in, I think, 2010.
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Post by advocatusdiaboli on Mar 27, 2014 18:12:32 GMT -5
All my references antedate "Star Wars."
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Post by advocatusdiaboli on Mar 27, 2014 18:22:06 GMT -5
Apologies from me for taking the cue from others that you might be a duplicate account. Unfortunately, we've had a bit of that going on lately, or at least have strong evidence that we do, and people are a bit gunshy. And, I DID address the argument. So did others. You might want to delete the duplicate post.... Your apology is unnecessary, but, of course, accepted. I think your earlier post may have crossed with mine because I did not see it before.
Given that Federal employees have undergone background checks since Eisenhower buckled to McCarthy's communist hysteria by signing EO 10450 in '54, I don't know that I find OPM's assertions all that compelling. For those with a finely honed sense of irony, it was Nixon who stopped looking for communists and started looking for criminals. Also, see my post in reply to Hopefulalj.
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Post by 71stretch on Mar 27, 2014 18:28:51 GMT -5
The change was made in part due to ongoing and increasing hardship on many judges serving far from the state in which they were licensed but having to meet CLE requirements to maintain active status. The full discussion of the reasons for the change are in the same link I posted above.
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Post by Deleted on Mar 27, 2014 19:29:28 GMT -5
"Given that Federal employees have undergone background checks since Eisenhower buckled to McCarthy's communist hysteria by signing EO 10450 in '54, I don't know that I find OPM's assertions all that compelling. For those with a finely honed sense of irony, it was Nixon who stopped looking for communists and started looking for criminals. Also, see my post in reply to Hopefulalj."
You had me at goodbye!
That's far too deep for me, I along with the rest of the wannabes on this board just went through a year of this and pardon me if I don't wish to hear at the last minute of the last hour of the last day, your concerns of a year long process with many months left.
As to your 1st question, it was the CIA who produced the test. So now that you know, tell us more.....
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Post by JudgeRatty on Mar 27, 2014 19:40:56 GMT -5
"Given that Federal employees have undergone background checks since Eisenhower buckled to McCarthy's communist hysteria by signing EO 10450 in '54, I don't know that I find OPM's assertions all that compelling. For those with a finely honed sense of irony, it was Nixon who stopped looking for communists and started looking for criminals. Also, see my post in reply to Hopefulalj."
You had me at goodbye!
That's far too deep for me, I along with the rest of the wannabes on this board just went through a year of this and pardon me if I don't wish to hear at the last minute of the last hour of the last day, your concerns of a year long process with many months left.
As to your 1st question, it was the CIA who produced the test. So now that you know, tell us more.....
Bwahahahahaha! Sorry you had me at CIA. That was awesome. And I will now put on my aluminum foil hat.
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Post by advocatusdiaboli on Mar 27, 2014 19:57:35 GMT -5
That explains why OPM relieved judges of the requirement, but not why they maintained it for applicants. OPM wants people subject to ethical rules? Hire nurses, or teachers, or stockbrokers, or any of a dozen other licensed professionals. There is no ststutory or regulatory requirement that ALJs be lawyers. OPM's requirement is principally an historical artifact. History largely ignored by OPM in changing the licensing requirement.
Look, anyone dinged from the process at any stage is in a difficult place at the moment. You have to fashion an appeal to OPM without much in the way of factual information to work with. I was always taught that when the facts are against you, argue the law. For anyone who feels "OPM shoulda told me about the bar issue before I bought my plane ticket to DC" is not a compelling argument, they have a potential alternative. We all know that "rational relationship" is not a terribly exacting standard, but it is a standard. OPM publishing two diametrically opposed positions on the issue gives folks something to argue. It is at least an argument based on law and not a credit card statement.
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Post by JudgeRatty on Mar 27, 2014 20:08:37 GMT -5
That explains why OPM relieved judges of the requirement, but not why they maintained it for applicants. OPM wants people subject to ethical rules? Hire nurses, or teachers, or stockbrokers, or any of a dozen other licensed professionals. There is no ststutory or regulatory requirement that ALJs be lawyers. OPM's requirement is principally an historical artifact. History largely ignored by OPM in changing the licensing requirement. Look, anyone dinged from the process at any stage is in a difficult place at the moment. You have to fashion an appeal to OPM without much in the way of factual information to work with. I was always taught that when the facts are against you, argue the law. For anyone who feels "OPM shoulda told me about the bar issue before I bought my plane ticket to DC" is not a compelling argument, they have a potential alternative. We all know that "rational relationship" is not a terribly exacting standard, but it is a standard. OPM publishing two diametrically opposed positions on the issue gives folks something to argue. It is at least an argument based on law and not a credit card statement. The hurdle is not in what was the underlying theory and FR thinking behind the plan... The problem lies with adhering to the actual application procedure. If OPM erred in the math or they overlooked what you included then yes that is error. If you left out pertinent info then that is error on the applicant's part and they will get it right next time. All this background on "why" is irrelevant if he applicant does not include the actual requested information.
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Post by 71stretch on Mar 27, 2014 20:18:30 GMT -5
Following instructions is a perfectly legitimate requirement for a job applicant. Like it or not, that's what you have to give them. An appeal based on "I shouldn't have to be an active member as an applicant" is going nowhere. The only winners on appeal on the bar issue are going to be those whose standing actually complied with the instructions, and those who, on review, show they gave the same admission date information as that given by those who passed the requirement, and they meet the seven year requirement. AD- what did you have to say on the "active member" issue when you were posting here back in 2009? Anything?
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Post by JudgeRatty on Mar 27, 2014 20:25:13 GMT -5
If OPM asks for A. B. C. and D. And you give them anything less say minus D. Then they say you are deficient and out. Just because they may have contemplated at some point including D, does not matter once they make the rules in the application. And digging for WHY they said you had to have D is a futile law school experience. Sorry but some things are as they are. It is what it is. Either you filled in the blanks or not. Now if the OPM geek reading the app missed something is an entirely different matter.
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Post by advocatusdiaboli on Mar 27, 2014 20:53:45 GMT -5
Following instructions is a perfectly legitimate requirement for a job applicant. Like it or not, that's what you have to give them. An appeal based on "I shouldn't have to be an active member as an applicant" is going nowhere. The only winners on appeal on the bar issue are going to be those whose standing actually complied with the instructions, and those who, on review, show they gave the same admission date information as that given by those who passed the requirement, and they meet the seven year requirement. AD- what did you have to say on the "active member" issue when you were posting here back in 2009? Anything? Observer:
I left the board in 2012 after I didn't get picked up. Signed in today with my old user name/password and the system allowed it but all of my old info was gone. Ask bartleby, he may remember some of our former discussions on civility on the board. I always thought he placed too much importance on civility. It appears I owe him an apology.
You may be right. The argument might go nowhere. But folks in this particular boat haven't many good options. As I said, I hope anyone reading the post would make their own judgment.
I do confess some surprise that a group of judges, would-be judges, and lawyers are seemingly resistant to the idea that hiring, promotion, and firing of all federal employees is a matter of federal law. The regs for ALJs are 5 CFR 930 Subpart B and Section 930.201(b) incorporates the regs at 5 CFR 300. OPM has broad, but not unfettered, discretion in running this rodeo.
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Post by BagLady on Mar 27, 2014 21:04:51 GMT -5
And at the time of the application judges were required to be members of the bar, were they not?
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Post by advocatusdiaboli on Mar 27, 2014 21:13:38 GMT -5
No. The interim rule suspending the licensing requirement for judges was issued July 18, 2008.
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Post by chessparent on Mar 27, 2014 21:19:50 GMT -5
Do you keep the Smith and Wesson on the nightstand with a copy of the the Constitution, the CFRs and your other eclectic reading material?
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Post by advocatusdiaboli on Mar 27, 2014 21:26:41 GMT -5
No. I am strictly concealed carry. Otherwise I would feel naked.
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Post by chessparent on Mar 27, 2014 21:34:44 GMT -5
Me too! Only sometimes, I'm also naked.
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Post by chessparent on Mar 27, 2014 21:41:27 GMT -5
Which also makes it hard to conceal.
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Post by advocatusdiaboli on Mar 27, 2014 21:43:27 GMT -5
Try a garter style holster. Drape your leg just so . . . and there you have it.
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Post by hopefalj on Mar 27, 2014 21:56:00 GMT -5
A fair point, but from my original post:
“Minimum qualification requirements do not disappear after an individual is appointed as an administrative law judge. As described in the following discussion of comments, a standard for career-entry promotes the efficiency of the competitive service only if it applies continuously to applicants and incumbents alike.” 72 FR 12949 (emphasis supplied).
So, one might fairly ask, what changed in the intervening three years. The interim rule being published in, I think, 2010. The quoted portion you gave to me isn't binding on OPM, right? A lot of your argument relies on the comments or the background discussion by OPM, yet you openly dismiss the most recent comments to support their official adoption of the rule (although, as you noted, 5 CFR 930.204 expressly suspends the licensure requirement for incumbent ALJs and has since July 2008). I don't think there is anything in the law that prevents an agency from changing its position after soliciting comments or seeing how a new rule is effectuated. As you also noted, the CFR says, "There shall be a rational relationship between performance in the position to be filled (or in the target position in the case of an entry position) and the employment practice used." So the ultimate question is whether there is a rational basis for requiring ALJ applicants to have an active license that they will not be required to maintain after hiring. As 78 FR 71987 says, "The licensure requirement was intended to ensure that ALJs, like attorneys, remain subject to a code of professional responsibility." If this was the purpose of the licensure requirement, then I think it's entirely feasible to find a rational basis for the change. As an active judge, a law license is no longer necessary to ensure professional conduct because a judge is subject to judicial ethics and adverse actions under federal law. Attorneys are not subject to judicial ethics. While it may not seem like a great reason, I have serious doubts a challenge to the policy will amount to anything. But best of luck in trying (whomever decides to pursue it). I don't blame anyone from doing everything they can to get to the next step.
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