AALJ v OPM/Springer

[johnthornton]

Decision issued on February 7, 2008. Will this effect ALJ hiring?

ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2007cv0711-18

[doctorwho]

Why? The suit is against OPM. Nothing has been found wrong with the register, the cert, or any part of the process. And, there is no TRO, nor to my knowledge, has one been filed.

I think that ship has sailed.

Anybody?

[privateatty]

Feb 10, 2008 19:58:10 GMT -5 @doctorwho said:

Why? The suit is against OPM. Nothing has been found wrong with the register, the cert, or any part of the process. And, there is no TRO, nor to my knowledge, has one been filed.

I think that ship has sailed.

Anybody?

Once again, the Doctor's logic is unassailable.

However, there remains that pesky allegation of "insider knowledge" and the "unfair" edge government attorneys supposedly had on May 4. Three of the plaintiffs are private attorneys who missed the application deadline. What I want to know is how are they going to prove they were harmed?

[doctorwho]

Feb 11, 2008 8:08:19 GMT -5 privateatty said:

Feb 10, 2008 19:58:10 GMT -5 @doctorwho said:

Why? The suit is against OPM. Nothing has been found wrong with the register, the cert, or any part of the process. And, there is no TRO, nor to my knowledge, has one been filed.

I think that ship has sailed.

Anybody?

Once again, the Doctor's logic is unassailable.

However, there remains that pesky allegation of "insider knowledge" and the "unfair" edge government attorneys supposedly had on May 4. Three of the plaintiffs are private attorneys who missed the application deadline. What I want to know is how are they going to prove they were harmed?

Even if they prove harm, a viable remedy be to simply let them apply. After all, winning the litigation [on that point] does not ensure selection. That is simply not the way the game works.

At this stage, I seriously doubt the Court would throw out a register, cert or force any agency to "unhire." Remember, other agencies have *already* hired We are getting close to the year mark, hundreds of thousands of dollars have been spent, and nobody has sought a TRO. Given that, at most, what the plaintiffs can be seeking is *competition,* not *selection* it is unlikely the Court will [or can] throw out the entire process.

[aljsouth]

AALJ is not seeking and I am certain will not seek ending of the hires or any other draconian measure. The main thrust of the lawsuit was about the "active" license requirement, which OPM lied about in its regs saying this was the rule all along, even though AALJ has letters from OPM in the past saying it was not required.

Once the new OPM regs were at issue the changes in the regs and methods used by OPM were brought into the litigation as well. AALJ very carefully did not seek a TRO and is not seeking to stop hires and once hired will not seek a "redo" of those hires. Once you are members of the corps it will want you as members.

[morgullord]

I am a federal/ODAR "insider" and I am here to tell you that there was no advance notification outside of the beltway. As for the inside, it is an unholy land and my pilgrimages do not take me there willingly.

[southerner]

As an ODAR employee, an SA, I can state no one in my office received advance notice of the VA (vacancy announcement). I had registered with USAJOBS and received an e-mail about the opening on the day of the announcement. When it came out, a number of us spent the weekend preparing our updated resume and AR prep. Given that the VA declared it would close within 2 weeks or on the day when 1250 apps were received online, we made it our goal to file online by Sunday evening.

We had been waiting years for the register to reopen and other attorneys could have easily signed up with USAJOBS and been made aware of the VA. Because we learned about it the same day of the announcement did not constitute advance knowledge.

[shadow]

I work for SSA, although not ODAR, and I certainly had no "inside" advance notice of the ALJ Vacancy Announcement.

I was, however, signed up for email notice of any ALJ opening with USAJobs, and received notice the day it opened that way. Further, as I recall, three or four days before the Vacancy Announcement the OPM director publicly announced [was it to Congress?] that the VA would be coming out very soon. It was in the newspaper and, of course, internet news publications.

[jazz]

I work for SSA/ODAR, and I had no advance notice. I was worried that with a 1250 applicant limit, combined with the fact that people had been waiting so long for the register to open, that it would close by Saturday. I was working the Friday that it came out, so I could not do anything until that evening. I spent several hours Friday night getting my stuff together, and spent about 6 hours Saturday completing the application.

I also know of a private attorney who had signed up for e-mail notice of any ALJ opening with USAJobs.

[testtaker]

I spoke to an ALJ in one of the ODARs & he told me that there alot of attorney absences in his office the Friday that the posting was made. Maybe it was only select offices that heard thru the grapevine. Who knows?

I only heard of the posting finally going up only because I am a NOSSCR member and they e-mailed it around.

[southerner]

As for the Friday announcement day, I had friends in other office who ended up taking annual leave so they could work on their apps.

Also, Friday is usually a quiet day in our office due to flex and 4/10 schedules.

[Propmaster]

I think people also miss out on the idea that when one person in an ODAR found out about the VA, they would tell others they know are interested. This would spread quickly through SSA/ODAR, since there are a lot of people there familiar with the concept of ALJs and eager to be one. This word of mouth spreading is how I found out about it (I do not work in ODAR, but nearby), and if there is a significantly high percentage of ODAR applicants, it is because they are the best networked regarding this VA, and because they are the most eager and knowledgable about the process.

[knownuthin]

I work for ODAR, but was on leave the Friday that the application notice was posted. On the following Tuesday, an ALJ asked me if I had submitted my application. My response was, What application? I got it in the next day, which turned out to be the last day the application process was open. Looking back at my application, I found a few typos. Thank goodness they didn't count off for spelling.

[yogibear]

The concept of advance notice to insiders is just not plausible. I think there was something published in the Federal Register about OPM's intent to reopen the register and April was mentioned. April came and went. NOSSCR was making noise about it. And Client's reps were making noise that there was dire need for more ALJs to address the backlog (rightfully) and OPM was under the gun to respond. This was just no secret inside or outside the Agency. I know of three inside attorneys (all well qualified) who were on vacation and did not get their applications in on time. I heard of another insider who was also a vet, who utilized the special vet's allowance to file an application at any time, because he was on vacation. I was also set up to get notice of the opening of the register. I didn't take time off, but I knew after 10 years, that there was a long line of potential great candidates and I had a feeling that the application would close shortly after the first weekend. So, I pulled an allnighter and got in the best I could by Monday morning.

If the AALJ is upset at their own colleagues for seeing the announcement and "sharing" the opening with the insider attorneys on the Friday of the opening (the same day that the rest of the country saw it)...Well, I believe that's a personal matter and not the subject of a lawsuit. Rumor has it that many more ALJs (who are members of the Union) were not happy with the allegations made in the amended suit regarding the "inside information" and do not support their colleagues. To be honest, I just don't get the basis for this allegation.

On a more reasonable note, it has to be said that the method of the opening with a date and/or # of applications (whichever came first) was a unique method not used by OPM regularly, if ever before. I can understand the reasons behind this decision, but I don't really see it as a step to ensure quality applicants. It's more likely to ensure quality applicants within a set amount of administrative resources to ensure quality applicants.

Maybe we should poll on this to find out the degree of ALJ support for these allegations, although I can't speak to the number of ALJ members on this Board. But then again, maybe we shouldn't poll on this matter. It might welcome trolls, smiting, and not be very productive to the overall goals of this discussion board.

Okay, enough said. I feel like I'm stirring the brew lately, but these are valid issues. Hope I don't feel the need to hibernate after this!

[ruonthelist]

If you want to explore the history of this issue, and have the patience, the threads from May and June on aljimprovement are instructive. For instance, here is the first news as far as I know of the release of the vacancy announcement. Note the time stamp, 1:55 AM on the morning of 5/4:

aljimprovement.proboards45.com/index.cgi?board=general&action=display&thread=1178261736&page=1

To backtrack a little, earlier that spring OPM had sent memos to Chief ALJs asking for ALJs to serve on SI panels in the late spring or early summer. This made it on to message boards (including aalj.org). Nobody has suggested that the Chief ALJs, or the ALJs who were asked about volunteering for the job should have kept the fact that OPM was planning to reopen the register secret from their staff attorneys. I specifically remember that no one discussing it on the AALJ message board ever said "Be sure not to tell the staff attorneys." I doubt that the idea that there was any reason to keep a planned vacancy announcement secret occurred to anyone until the AALJ filed their amended complaint.

In March OPM published the final rule as a preliminary to opening the register.

On Tuesday May 1 Director Springer testified to the House Ways & Means SS Subcommittee that the register would reopen in "the next few days." The hearing was webcast, and her written statement went on the subcommittee website. It was also widely discussed on the aljimprovement and elsewhere on the web.

waysandmeans.house.gov/hearings.asp?formmode=view&id=5844

As announced, the VA came out "a few days later" on Friday May 4. There was plenty of advance notice that it would come out at about the time that it did. As so often happens in the internet age, the information was out there, but finding it in the background noise was problematic. After Ms. Springer's testimony I checked usajobs first thing every morning , and I emailed the announcement to a list of potential applicants early Friday morning. Maybe AALJ should sue me. In fact, maybe they should sue themselves, because by noon that day they had an announcement on their home page about it. The word spread quickly that day, but the speed with which it spread does not suggest, much less prove, that there was advance notice of the specifics of the date or format of the announcement.

If you read the threads from aljimprovement you will see several mentions of people taking leave on May 4 to work on their applications. This phenomenon has led to the urban legend of advance notice, on which Count V of the AALJ suit is based.

Maybe some people took leave that day, and maybe a large percentage of those who did were SSA staff attorneys. But people can put in for leave after they check the web first thing in the morning. The picture that emerges from reading the message threads that day is of people seeing that the announcement is out and then, as they read it in detail, realizing that OPM has used a strange and unfamiliar format for the closing of the announcement, and then realizing the implications of the format. Maybe some people then put in for leave.

I am no defender of the arbitrary "midnight of the day we hit 1250" format that OPM used. A lot of good people didn't find out in time to get their applications in. A lot of other good people ended up with poor scores because the format forced them to rush their applications. But I have seen no evidence that the application format, flawed as it was, was skewed to favor SSA staff attorneys, and plenty of evidence (mainly the widespread information about the planned opening of the exam) to contradict that theory.

[counselor95]

To borrow a page from JaggHagg's (music) book:

"I heard it from a friend, who heard it from a friend, . . ." late Friday afternoon, woke up at 5:30am Saturday and worked on the application for 12 hours because I figured the cutoff would not be reached Friday, but could possibly be reached Saturday.

[privateatty]

This thread has not taken up ALJSouth's point which was OPM had advised the SSA ALJ Corps that they need not have active licenses and then, as we all know, published Regs requiring them to be active. Now that is an actionable claim and one that can offer up measurable damages.

My earlier point was that you can't prove anyone was harmed by the allegation of "insider" knowledge, for as the good Doctor has pointed out, whose to say you would have been picked to move on?

But what has lead me to this post is the the ALJ Union. Why would they make such an allegation? I would imagine that this allegation would have somewhat of a chilling effect on the respective ODAR offices. The Judges, through their Union, are in effect saying to the attorneys "bad boys and girls, you had insider knowledge!" And my response would have been "And what is your point?" And that would be to assume that they did have insider knowledge, a notion which this thread is doing its best to dispel. If I were an SA or AA at ODAR I would say to my ALJs, "What are you thinking? Do you care about office esprit de corps?"

Is the Union saying, we don't want you SSA or government attorneys? Your credentials are not as good as "other" attorneys? If they are saying that, then they should quietly lobby OPM, not file a public lawsuit. For this, IMO and with all due respect, is destructive behavior.

I suspect that the real perception was that there are very few private attorneys on the Register or who knew about the opening. And again, even assuming that this is true, and I'm not sure it is, I say so what? I know of NO ONE who does what I do and wants to be an ALJ. And I know of alot of attorneys in my field. They make too much money and treasure their freedom. Alot of them have outsized egos that would not allow them to be in an organization such as the ALJ Corps. That perception BTW, opens up a can of worms I don't have the time for now.

Yes, there is a strong perception in my field that the Judges have no clue what it is like to chase fees, deal with unruly clients, make payroll, fill out a malpractice application, etc. And I say "do you want to be a ALJ"? and they say "HECK no." Then I retort you have nothing to say.

Thus I would humbly advise the Union, drop the allegation, because it makes no sense.

[tootsie]

Yeah, I work for ODAR too and that advance notice thing is pure rubbish! I got the info on the ALJ Improvement Board when I came into work Friday at 7:00 AM. When I read about the time limit/1250 limit I spread the word in my office, and took leave to work on my application, which I submitted just before midnight Friday night Anyone with a real interest in the job would have known that the examination was opening up soon. It was all over the internet forums dealing with SSA issues. I believe that the SSA Connect board also posted the opening on Friday. I received no e-mail or other SSA communication about the exam before I left on that Friday.

I am not pleased with that AALJ lawsuit, and consider parts of the complaint a direct insult. If selected, I will not be joining the AALJ union unless they withdraw the cause of action alleging inside information.

[extang]

I was so angry about the AALJ lawsuit that I was going to quit the AALJ; I did not want my dues to be used to finance this kind of nonsense. Unfortunately, management seems to be so psychotically determined to attack ALJs that it does not seem feasible to abandon the one admittedly rather inept organization that we have to attempt to protect our interests.

By the way, I have not reread all the discussions on this thread, so maybe I am missing the point. Private Atty refers to "ALJSouth's point which was OPM had advised the SSA ALJ Corps that they need not have active licenses." My recollection is that it was a Chief ALJ issued a memo saying that ALJs need not have active licenses. This idea thus did not come from OPM but from our enlightened OHA management.

[privateatty]

Feb 11, 2008 9:25:20 GMT -5 aljsouth said:

AALJ is not seeking and I am certain will not seek ending of the hires or any other draconian measure. The main thrust of the lawsuit was about the "active" license requirement, which OPM lied about in its regs saying this was the rule all along, even though AALJ has letters from OPM in the past saying it was not required.

Once the new OPM regs were at issue the changes in the regs and methods used by OPM were brought into the litigation as well. AALJ very carefully did not seek a TRO and is not seeking to stop hires and once hired will not seek a "redo" of those hires. Once you are members of the corps it will want you as members.

Extang: This is ALJsouth's post of 2/11. The lawsuit should flesh out the genesis of this "information".