Appeal regulation questions

[zero]

All-
On the other board there have been a few interesting posts about the regulations concerning appeals.

Bottom line: OPM is not just doing us all a favor by having an appeal process. It appears to be required by the regulations. My only question is whether OPM has any regulations concerning the time in which they are supposed to process these appeals. Does anyone know? Also, it seems that the next step might be MSPB, but I'm not really familiar with these regulations. Does anyone know?

I'll cut through the chatter and noise and post the regulations:

5 300.102 Policy.

This subpart is directed to implementation of the policy that
competitive employment practices:
(a) Be practical in character and as far as possible relate to
matters that fairly test the relative capacity and fitness of candidates
for the jobs to be filled;
(b) Result in selection from among the best qualified candidates;
(c) Be developed and used without discrimination because of race, color, religion, sex, age, national origin, partisan political
affiliation or other nonmerit grounds; and
(d) Insure to the candidate opportunity for appeal or administrative review, as appropriate.

********

5 CFR 300.103 Basic requirements.

(a) Job analysis. Each employment practice of the Federal Government
generally, and of individual agencies,
shall be based on a job analysis to identify:
(1) The basic duties and responsibilities;
(2) The knowledges, skills, and abilities required to perform the
duties and responsibilities; and
(3) The factors that are important in evaluating candidates. The job analysis may cover a single position or group of positions, or an occupation or group of occupations, having common characteristics.
(b) Relevance. (1) 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. The demonstration of rational relationship shall include a showing that the employment practice was professionally developed. A minimum educational
requirement may not be established except as authorized under section 3308 of title 5, United States Code.
(2) In the case of an entry position the required relevance may be based upon the target position when--
(i) The entry position is a training position or the first of a
progressive series of established training and development positions leading to a target position at a higher level; and
(ii) New employees, within a reasonable period of time and in the great majority of cases, can expect to progress to a target position at a higher level.
(c) Equal employment opportunity. An employment practice shall not discriminate on the basis of race, color, religion, sex, age, national origin, partisan political affiliation, or other nonmerit factor. Employee selection procedures shall meet the standards established by the ``Uniform Guidelines on Employee Selection Procedures'' (1978), 43

**********************
5 CFR 300.104 Appeals, grievances and complaints.

(a) Employment practices. A candidate who believes that an
employment practice which was applied to him or her by the Office of Personnel Management violates a basic requirement in Sec. 300.103 is entitled to appeal to the Merit Systems Protection Board under the provisions of its regulations.
(b) Examination ratings. A candidate may file an appeal with the Office from his or her examination rating or the rejection of his or her application, except that, where the Office has delegated examining authority to an agency, the candidate should appeal directly to that agency. The appeal and supporting documents shall be filed with the agency office that determined the rating.
(c) Complaints and grievances to an agency. (1) A candidate may file a complaint with an agency when he believes that an employment practice which was applied to him and which is administered or required by the agency discriminates against him on the basis of race, color, religion, sex, or national origin; or age, provided that at the time of the
alleged discriminatory action the candidate was at least 40 years of age but less than 65 years of age. The complaint shall be filed and
processed in accordance with subparts B and E of part 713 of this
chapter.
(2) Except as provided in paragraph (c)(1) of this section, an
employee may file a grievance with an agency when he or she believes that an employment practice which was applied to him or her and which is administered or required by the agency violates a basic requirement in Sec. 300.103. The grievance shall be filed and processed under an agency grievance system, if applicable, or a negotiated grievance system as applicable.

[tricia]

I'm not sure that this part:
"(a) Be practical in character and as far as possible relate to
matters that fairly test the relative capacity and fitness of candidates
for the jobs to be filled;
(b) Result in selection from among the best qualified candidates;"

is satisfied by eliminating people who failed to put their license number or the date they were admitted on the correct line, and then failing to address their appeals for five months.

[odarite]

The longer this drags out without resolution, the more I am convinced that those who did not make the first cut to take the exam this time should simply reapply when the register reopens, which I expect will happen later this year. It will be faster, and after all, winning your appeal just means you have the opportunity to sit for the examination. Not exactly a home run.

[calalj]

Odarite, do you know what they do with the names currently on the register if they re-open the register?

[zero]

I guess I agree with Odarite about re-applying. But isn’t that another way of saying that there is no effective opportunity to appeal? I would be interested in receiving personal messages from anyone who does not want to post about any steps they have taken to inquire of or challenge this extremely slow appeal process.

[tricia]

Odarite, I understand your point, but many of us "did not make the first cut" because we did not put our license numbers or dates of our licenses on a particular line of the application. So our applications were put on some discard pile. It is ludicrous that we appealed, and now after five months, our appeals have not been dealt with, so it seems that STILL no one has looked at our applications.
It's not that our credentials are inferior or we failed to answer their questions well. No one knows what our credentials or our answers are like.
This is crazy.

[odarite]

calalj said:

Odarite, do you know what they do with the names currently on the register if they re-open the register?

See, here is where all the newbies who had no experience with the old register get confused. When they reopen the register, they add names to the register. Ditching the old register was a one time thing which will not be repeated. All the folks now on the register will stay, with their current scores (unless they reapply and get a higher - or lower - one).

[odarite]

zero said:

I guess I agree with Odarite about re-applying. But isn’t that another way of saying that there is no effective opportunity to appeal? I would be interested in receiving personal messages from anyone who does not want to post about any steps they have taken to inquire of or challenge this extremely slow appeal process.

Like Lewis (Scooter) Libby, sometimes the right to appeal ain't all that appealing.

[odarite]

tricia said:

Odarite, I understand your point, but many of us "did not make the first cut" because we did not put our license numbers or dates of our licenses on a particular line of the application. So our applications were put on some discard pile. It is ludicrous that we appealed, and now after five months, our appeals have not been dealt with, so it seems that STILL no one has looked at our applications.
It's not that our credentials are inferior or we failed to answer their questions well. No one knows what our credentials or our answers are like.
This is crazy.

True, but you ARE applying for a job with the federal government.

[justbob]

True, but you ARE applying for a job with the federal government.

That's what I figured. Made sure I answered everything, filled in every space, dotted Is, crossed Ts and such. Assumed they'd jump on any error, no matter how small, as reason to bounce an app.
Lotta good my thoroughness did me!

[southernmiss]

Pixie
Do you or anyone out there have any idea how they will handle the appeals? I forgot to put my bar number. Assuming I would win on appeal, what good will it do me if they already hired everyone?

[carjack]

southernmiss:

I had the same problem. They had my jurisdictions and dates, but no numbers. I appealled in an e-mail response directly the same day I received my notice that they didn't have enough info specifically my bar numbers. I didn't refer to my resume or anything; I simply said I was admitted to the following jurisdictions and listed them, very slowly, clearly, repeatedly. I put the jurisdictions with the numbers in the e-mail twice, again with the dates of admission for the respective jurisdictions. On Sept 26 I got notice my appeal was granted and I had to be in DC the next day to take the written test and the following week for the interview. I made it onto the register for the SSA, although I am kinda sweatin about getting a call about an interview. I didn't even know about this board until well after that, or I'm sure I would have been even more nervous. I'd kinda given up when I heard I was scheduled for the test.

Q: Did you by any chance appeal by saying that the info was in your resume, or did you actually put down your numbers in the appeal e-mail? Or did you appeal some other way? I've seen several people refer to technical appeals and I'm not sure how they actually did their appeals.

[tricia]

Carjack: This was the entire text of the appeal that I filed:
"I received a Notice of Results today, July 11, 2007, indicating that I did not provide sufficient licensure information to meet the minimum requirements. I indicated in my original application that I was licensed to practice in (state), and that my license number was (number). I neglected to include the information that I was admitted to practice in (state) (date).

Was your appeal more detailed? As I keep saying, I have not heard a word about my appeal, and it is very frustrating. Tricia

[carjack]

Tricia:
My e-mail appeal was as follows (with redactions):

"I received a notice (NOR) today, July 11, 2007, stating that I was ineligible (rating IMQL) because I had not provided sufficient licensure information.

STATEMENT OF BASIS FOR APPEAL

I provided a list of all jurisdictions in which I am admitted on my attached resume, although I did not list my bar numbers. I am admitted in States X and Y. The complete list of jurisdicitions to which I am admitted and in good standing, including my bar numbers, are as follows:

Court/ State Date of Admission

State of X Bar No. XXXXX date

U.S. District Ct State date

X Circuit Court of Appeals date

State of Y Bar No. xxxxx date

U.S. District Ct State date

U.S. District Ct State date

U.S. District Ct State date

United States Supreme Court date

Y Tribal Court date

X Tribal Court date

U.S. Dist Ct. State date

X Circuit Court of Appeals date

I am admitted in two states, State A - Bar No. xxxxx, date; and State B, Bar No. xxxxx, date.

I am admitted to the United States Supreme Court, date;

I am admitted to the Courts of Appeals for the x and y Circuits;

I am admitted to the Federal District Courts in X, Y, & Z

--------------------------------------------------------------------------------

I hope that this provides the information you need to include me in the panel of qualified applicants.

Carjack, Esq.
State A Bar No. XXXXX
State B Bar No. XXXXX
SSN: xxx-xx-xxxx"

Because my bar numbers were the missing link, I put those down several times. I understand they wanted the month, day, and year on admissions which I know I put in my original, so I didn't stress that as much. Hope this sheds some light.

[Pixie]

southernmiss said:

Pixie
Do you or anyone out there have any idea how they will handle the appeals? I forgot to put my bar number. Assuming I would win on appeal, what good will it do me if they already hired everyone?

Missy: It won't do you any good this time around. Past practice has been that once the certificate is issued, normally no names are added. So it is probably too late for this certificate even if your appeal was favorably decided tomorrow. But you would be available for consideration for the next certificate, assuming your score was high enough to make the register. Pix.

[tricia]

Pixie, thanks for your insights. Do you have any idea when our appeals will be considered? Tricia

[southernmiss]

Carjack
I submitted about four areas on which I based my appeal. I told them that to work for OHA/ODAR, I had to be a member of the local bar and that my resume and answers clearly showed I have worked here over 25 years. I argued that by not checking the accuracy of Bar informaiton of the ones who were accepted, which would require further investigation, by calling our Bar and getting our admit date, we were not requiring any more than those on the list. I also stated that I was already on their list (the old register) so that they effectively had that informaiton. I think I had one or two more points, but I don't remember. Never heard a thing except the standard language via email.

What I don't understand is why with all us lawyers, no one has filed an injunction or at least a complaint with MSRP.

[southernmiss]

Commissioner Astrue visited recently. When I mentioned that I did not get to compete because of a failure to put my bar #, he stated that he also felt it was unfair but that OPM did what it wanted when it wanted and he had little input. He noted that they were doing background checks and that some of the candidates would be disqualified. He said he is hoping that before the year is out, they will hire another 25-50 judges, and that he had requested that they "refresh" the list, which may mean they look at the appeals. However, all said, those of us who were not considered with this certificate, where they go deeper on the list, are probably never going to have the chance we would have had this time. So, what can we do about it other than maybe file as a class with the MRSB

[learnedhand]

I wonder what he meant by refresh. The same 300 that don't get hired this time will be the pool from which the next certificate is drawn unless OPM reopens the register and administers the exam a second time, which would also allow current people on the register to add cities. The only way that might change without another exam is if he requests a subject matter expertise list. Also, I wonder whether he meant calendar year or fiscal year.

Southern Miss, did you get a sense of any of this?

[zero]

I was not a technical denial but I really feel for those who are. I don’t know which is more frustrating, spending the 10-20 hours preparing the application only to have it bounced for an obviously overly technical deficiency or being offered an appeal procedure that leads nowhere.

The appeal process is the equivalent to Barnum and Bailey’s sign in their tent of attractions they used to keep the crowd moving: “This way to the egress”. Oh look, I’ve never seen an egress before, come on, let’s go see it. What’s an egress? It’s another word for “exit”.

So OPM put up a little sign that said “this way to the appeal” to draw the crowd away from other alternative ways to challenge non-selections/low scores. Ha ha. I get the joke now.