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Post by JudgeRatty on May 29, 2015 10:30:18 GMT -5
Thanks SR for slapping me back into my usual state of composure ! lol LOL! Anytime!
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Post by owl on May 29, 2015 12:43:38 GMT -5
I'm going to throw a little fuel on the fire I guess. It is important to note the distinct difference in the two groups that these recent announcements have impacted. One group consists of those that took the step 2 online tests and were previously told they did not place within the "higher scored subgroup" that would be invited to DC. OPM has now stated they intend to lower the bar on that component and thereby let more folks that were previously cut through to the DC testing phase. For that group, and with that action, I agree with Gaidan that OPM has thusly "mooted" any appeals filed by those they ultimately let through with the lowered bar. No adjudication of any specific appeal has or will occur. To my knowledge though, OPM has not yet sent any info to anyone in this group advising them they are now invited to DC. That is still to come. The second group consists of those, like hopetobealj, that passed phase 1 but never logged in to take phase 2 due to some email snafu or technical glitch. These people are not in the same boat as those that took the tests at phase 2 and didnt pass previously. But, they are not either in the same boat as those that were cut at phase 1. OPM has, apparently as a result of an MPSB complaint and ruling, decided to afford those in this situation and opportunity to take the online tests. Some of those folks may never have appealed. Some, like HopetoB did. In that case, it certainly appears to me that their appeal has been granted in light of the fact that one can assume the basis of the appeal was that they never got the link or had some technical glitch for which OPM was at fault. This current action by OPM certainly seems to acknowledge that fault and offer a remedial measure. So, those that took the test and are now possibly getting to move on after lowering the bar....I don't see how that action or group can be seen as being the result of any appeal. Thus, no basis of compalint by anyone upset that their appeal hasnt been handled despite being told all appeals would disposed of at the same time. That second group though....certainly looks to me like their appeals were adjudicated in their favor and they were apprised of those results before everyone else's appeal was decided in contradiction to OPM's stated plan. But, I don't think OPM deciding on a new manner and method of handling appeals, in and of itself, gives rise to any due process complaint. Just my own humble opinion. I'm not quite sure I see the same distinction between the two groups. For group 1, as funky and others have noted, it appears that OPM will be giving the same remedy (lowering the passing score for the online component) to a bunch of people regardless of whether they appealed or not. So, the argument has been made that the people who are getting this remedy and who appealed are having their appeals mooted, not granted, because they are simply the beneficiaries of an action that is benefiting appellants and non-appellants alike. However, if you buy that theory for group 1, then I believe you also have to apply it to group 2. We have a report from earlier in this thread that RichterScale passed phase 1, did not receive the email invite to the online component, did not appeal, but was nevertheless contacted by OPM (same as hapi2balj who did appeal) to see if he/she was still interested in taking the online component. So, again, it appears OPM is giving the same remedy to everyone in a certain boat (was sent an invite to the online component but never started it) regardless of whether they appealed or not. So the people in that boat who did appeal should also be seen as having their appeals mooted, not granted. If this analysis is correct - and mooting an appeal is not the same thing as adjudicating an appeal - then OPM has not issued any appeals "adjudications" and would seem to still be in compliance with their stated plan of not issuing any appeal decisions until all appeals are adjudicated. Now, a contrary fact for this view is that hapi2balj received an email entitled Notice of Appeal Results (or some such) with a line saying "resolved in your favor." While that certainly looks and sounds like an adjudication, one could argue - and I think Gaidin has - that "resolved" does not necessarily mean decided on the merits, i.e., adjudicated, it just means resolved, i.e., as in this case, mooted. So the folks who are not in either of the two groups above and thus who still have appeals pending - and are understandably at least raising the question of whether due process is being followed - are naturally going to ask, is mooting an appeal really legally distinguishable from adjudicating it? And I'm not entirely sure the answer is yes. (FWIW, I am on the register so I'm at least somewhat objective in this situation and if I have any self-serving bias it would be to defend OPM from charges of due process violations.) If I file a suit and it is dismissed as moot, that's definitely still an adjudication (and one that can be appealed). Now of course in that situation I am being denied the remedy I'm asking for due to mootness, which is obviously appealable, whereas in the present situation the litigants/appellants in boats 1 and 2 are being granted the remedy they were asking for. An analogy would be the Supreme Court's decision that the death penalty cannot be applied to juveniles. If you were on death row and had committed your crime before turning 18, you got the benefit of that decision whether you had an appeal pending or not, but if you did have an appeal pending - would we really say that your appeal was mooted? Wouldn't we think of it as granted? Isn't there very likely some order in every affected appellate case that basically says this appeal is granted pursuant to the Supreme Court's decision in X v. Y and is remanded for proceedings consistent therewith? I'm pretty sure any such order wouldn't say this appeal is moot. So if the appellants in boats 1 and 2 who are moving on (along with non-appellants in the same boats) in the ALJ exam process are effectively having their appeals granted, which is what it sure looks like to me is happening, then that raises the ultimate question of whether OPM granting these appeals in this manner is a due process violation. I think this is a tougher question but I don't think it's frivolous. The salient language here is "After all appeals have been adjudicated, applicants will be notified via email of the Panel's decision." Now, I think it was Gaidin who astutely noted that this does not say that all notifications will go out at the same time. It just says no notifications will go out until all appeals have been decided. So if what hapi2balj received was a notification (and it does say "Notice of Appeal Results"), then that would imply that all appeals have, in fact, been decided - but that OPM is sending out certain sets of notifications before others (most notably, the appeals of those cut at step 1 and those cut after DC, as well as those cut at step 2 who remain below the soon-to-be-lowered cutoff score). So, if that is in fact what OPM is doing, is that a violation of due process? Because undoubtedly there are appellants cut at step 1 who are going to have their appeals ultimately granted (thus allowing them to move on to step 2) and there are appellants who were cut after DC who are going to have their appeals granted (thus placing them on the register with a NOR score, I would think, unless the remedy is to give them another crack at the DC phase), yet OPM is choosing to give 2 certain subsets of appellants their remedies now, and making everyone else wait for theirs. I think that leads to the question of what level of scrutiny would be applied to OPM's action if (and probably when) it is challenged. I'm guessing "rational basis" rather than "strict scrutiny" (or whatever the intermediate level is - is there still an intermediate level? Law school was a long time ago!) but those more familiar with MSPB litigation would know. If it is "rational basis," of course, then OPM is going to be in the clear. What I do remember from law school is any halfwit can come up with a reason that will pass rational basis scrutiny, and although we give them grief from time to time I'm sure everybody at OPM is a full wit. Off the top of my head, a rational reason might be that the two groups now being allowed to proceed before the others are a manageable number and will not overwhelm OPM's resources. TL;DR: no due process violation, congrats to those moving on, sympathy for those still waiting on appeals, patience and good luck to all.
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Post by ba on May 29, 2015 14:52:19 GMT -5
Thank you for the tl;dr summary. Just what I was looking for.
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Post by 71stretch on May 29, 2015 20:07:30 GMT -5
I'm not buying the "intel" about a new posting, if it's meant to apply to the ALJ position. Someone raised that "intel" in the last two weeks or so, and several of us talked about how it doesn't make sense. It still doesn't.
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Post by 71stretch on May 29, 2015 20:09:50 GMT -5
If they post the job again, thus making all of us re-test, I will appeal THAT decision! Ridiculous. I don't think it's going to happen, but if they did post again, which would be for a "refresh", those on the register already are NOT required to reapply and retest. You can, if you want to try to improve your score, but then you are stuck with whatever happens... maybe a lower score, or maybe not making the register at all.
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Post by privateatty on May 30, 2015 9:50:45 GMT -5
Great analysis owl. Can I get you to help write my decisions? Read Zane v. OPM (just google it) and then read owl's and funky's posts. Nothing at OPM happens in a vacuum. Oh and a shout out to sratty for a slap up side of da head...
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Post by hopingforalj on May 30, 2015 10:24:29 GMT -5
Thank you Tigerlaw, this thread you started is like opening a Christmas present every day, I do enjoy the chatter, it stirs the pot and gives hope, and a shout out to all who post, this really is a good thread to check everyday, now where is my bourbon on the rocks, cheers.
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Post by hapi2balj on May 30, 2015 20:59:00 GMT -5
Love this quote from privateatty: "The path is seldom linear and never like anything you have known. You have to do the forms, show up and have faith. The rest is up to a higher power--and it ain't OPM. " To which I say a hearty amen!
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Post by pumpkin on May 31, 2015 8:06:09 GMT -5
If it helps anyone else to know this information, I received an e-mail notification which appears to be the same as the one received by hope2balj. Like hope2balj, I did not begin any of the online assessments because I never received an e-mail from OPM informing me that I was eligible to move on on to the next phase. By the time I inquired about the status of my application, the time for completing the online testing had expired. So, I appealed on the basis of never having received the e-mail notification. My appeal has been pending since June 2013. The e-mail I received this week states: Dear [pumpkin], Appeal Status: Resolved in your favor This message is in regard to the status of your appeal for the IMIN ineligible rating you received for the Administrative Law Judge (ALJ) examination, Job Opportunity Announcement, ALJ2013–847661. The IMIN ineligible rating, as reflected in your ALJ Notice of Results, indicated that you did not start any portion of the three online component assessments, (i.e. Situation Judgment Test, Writing Sample, and Experience Assessment (EA). OPM has determined that it cannot readily demonstrate in all instances that the message that OPM attempted to transmit to applicants to commence the Online Component actually reached their destinations. Accordingly, OPM is granting you the relief set forth below. As described in the ALJ Applicant Update Survey that you were sent on May 18, 2015, the U.S. Office of Personnel Management (OPM) has provided you with an opportunity to be re-scheduled and to take the three Online Component assessments of the 2013 ALJ examination. In affording you this opportunity, regardless of whether or not you choose to accept it, OPM has resolved the appeal that you filed in response to the IMIN rating that you received on June [XX], 2013. Please note, this notice exhausts your appeal rights with regard to this matter in the 2013 ALJ examination. OPM will also provide information and notices regarding the ALJ examination to interested parties, as appropriate. As such information becomes available, it will be posted on the OPM ALJ website at www.opm.gov/services-for-agencies/administrative-law-judges/. PLEASE DO NOT RESPOND TO THIS EMAIL MESSAGE. iT IS AUTOMATICALLY GENERATED. For additional information, please refer to the vacancy announcement for this position.
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Post by moopigsdad on May 31, 2015 8:27:58 GMT -5
Thanks for sharing pumpkin. It looks like this email does indeed serve as a positive decision on your appeal. Therefore, OPM is indeed making decisions on appeals, by probably doing the easiest decisions first, like the circumstances surrounding your appeal. Good luck pumpkin in your continued quest to make the Register.
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Post by Gaidin on May 31, 2015 10:31:52 GMT -5
I think anybody who expects any other appeal results to be quickly forthcoming will be disappointed. OPMs failure to adequately communicate with people about their eligibility for the online section is the exact issue in Zane v OPM. OPM lost on that issue before the MSPB. I wouldn't be surprised to see any appeals from step 2 to step 3 based on lack of communication granted but otherwise this is OPM responding to an unfavorable decision its not OPM beginning the adjudication process.
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Deleted
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Post by Deleted on Jun 4, 2015 14:41:47 GMT -5
Great analysis owl. Can I get you to help write my decisions? Read Zane v. OPM (just google it) and then read owl's and funky's posts. Nothing at OPM happens in a vacuum. Oh and a shout out to sratty for a slap up side of da head... DC Sklar referenced this case a few weeks ago while discussing why OPM had "reopened" the application process for some.
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Post by hapi2balj on Jun 4, 2015 17:20:39 GMT -5
I know that logic has never been the government's strength, but wouldn't the most logical thing to do would be to allow those of us who have over 2 years in this process to add to our GAL. I am an outsider, and did not know the importance of a wide GAL. I could certainly go to more locations than the 6 I currently have. Preach on brother. Preach on. Recalling that I'm one of those who didn't get the 2nd round invitation (can you say Zane?) and appealed, I certainly count myself as one with 2 years+ in the process, and I also echo floss's thought. While I wish I could've opened my GAL more broadly when I applied, and while I desperately want one of these jobs, I really like being around my wife and family So, I couldn't justify offering to work in distant locations, although I did use a three-hour radius (my extreme outer edge of 'reasonable') to identify multiple locations. HOWEVER, I have moved since Spring 2013, which I didn't anticipate at the time. This opens up several more ODAR offices within that three-hour drive which, if I am fortunate enough to make the register, I'd love to add to my list. I know some may say a three-hour commute is pretty crazy. I don't disagree. But, after considering the matter, that's what we came up with as to maximize my chances to get a spot while keeping the family in mind - hoping for an opportunity to transfer closer to home if I get one of the further offices. The good news for me is that I doubt any of my original choices are widely desired and, actually, I'd say most of the ones I'll add if I get the chance are in the same category. The town we moved to, which fortunately is on my original GAL, happens to have its own ODAR office and so is my obvious first choice. We shall see! But the point is, a lot changes over the course of a couple of years.
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Post by Propmaster on Jun 4, 2015 17:42:09 GMT -5
If it helps anyone else to know this information, I received an e-mail notification which appears to be the same as the one received by hope2balj. Like hope2balj, I did not begin any of the online assessments because I never received an e-mail from OPM informing me that I was eligible to move on on to the next phase. By the time I inquired about the status of my application, the time for completing the online testing had expired. So, I appealed on the basis of never having received the e-mail notification. My appeal has been pending since June 2013. The e-mail I received this week states: Dear [pumpkin], Appeal Status: Resolved in your favor This message is in regard to the status of your appeal for the IMIN ineligible rating you received for the Administrative Law Judge (ALJ) examination, Job Opportunity Announcement, ALJ2013–847661. The IMIN ineligible rating, as reflected in your ALJ Notice of Results, indicated that you did not start any portion of the three online component assessments, (i.e. Situation Judgment Test, Writing Sample, and Experience Assessment (EA). OPM has determined that it cannot readily demonstrate in all instances that the message that OPM attempted to transmit to applicants to commence the Online Component actually reached their destinations. Accordingly, OPM is granting you the relief set forth below. As described in the ALJ Applicant Update Survey that you were sent on May 18, 2015, the U.S. Office of Personnel Management (OPM) has provided you with an opportunity to be re-scheduled and to take the three Online Component assessments of the 2013 ALJ examination. In affording you this opportunity, regardless of whether or not you choose to accept it, OPM has resolved the appeal that you filed in response to the IMIN rating that you received on June [XX], 2013. Please note, this notice exhausts your appeal rights with regard to this matter in the 2013 ALJ examination. OPM will also provide information and notices regarding the ALJ examination to interested parties, as appropriate. As such information becomes available, it will be posted on the OPM ALJ website at www.opm.gov/services-for-agencies/administrative-law-judges/. PLEASE DO NOT RESPOND TO THIS EMAIL MESSAGE. iT IS AUTOMATICALLY GENERATED. For additional information, please refer to the vacancy announcement for this position. The most amusing thing to me (I don't mean to make light of your situation) is that the appeal is resolved because they cannot guarantee you received the notice, but the resolution and presumably the new invitation to participate are being sent the same way. Ummmmmm. That seems like it deserves a snail mail letter telling you to update your e-mail, doesn't it? If they ACTUALLY want to fix the problem...
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Post by JudgeRatty on Jun 4, 2015 18:16:59 GMT -5
If it helps anyone else to know this information, I received an e-mail notification which appears to be the same as the one received by hope2balj. Like hope2balj, I did not begin any of the online assessments because I never received an e-mail from OPM informing me that I was eligible to move on on to the next phase. By the time I inquired about the status of my application, the time for completing the online testing had expired. So, I appealed on the basis of never having received the e-mail notification. My appeal has been pending since June 2013. The e-mail I received this week states: Dear [pumpkin], Appeal Status: Resolved in your favor This message is in regard to the status of your appeal for the IMIN ineligible rating you received for the Administrative Law Judge (ALJ) examination, Job Opportunity Announcement, ALJ2013–847661. The IMIN ineligible rating, as reflected in your ALJ Notice of Results, indicated that you did not start any portion of the three online component assessments, (i.e. Situation Judgment Test, Writing Sample, and Experience Assessment (EA). OPM has determined that it cannot readily demonstrate in all instances that the message that OPM attempted to transmit to applicants to commence the Online Component actually reached their destinations. Accordingly, OPM is granting you the relief set forth below. As described in the ALJ Applicant Update Survey that you were sent on May 18, 2015, the U.S. Office of Personnel Management (OPM) has provided you with an opportunity to be re-scheduled and to take the three Online Component assessments of the 2013 ALJ examination. In affording you this opportunity, regardless of whether or not you choose to accept it, OPM has resolved the appeal that you filed in response to the IMIN rating that you received on June [XX], 2013. Please note, this notice exhausts your appeal rights with regard to this matter in the 2013 ALJ examination. OPM will also provide information and notices regarding the ALJ examination to interested parties, as appropriate. As such information becomes available, it will be posted on the OPM ALJ website at www.opm.gov/services-for-agencies/administrative-law-judges/. PLEASE DO NOT RESPOND TO THIS EMAIL MESSAGE. iT IS AUTOMATICALLY GENERATED. For additional information, please refer to the vacancy announcement for this position. The most amusing thing to me (I don't mean to make light of your situation) is that the appeal is resolved because they cannot guarantee you received the notice, but the resolution and presumably the new invitation to participate are being sent the same way. Ummmmmm. That seems like it deserves a snail mail letter telling you to update your e-mail, doesn't it? If they ACTUALLY want to fix the problem... You are asking for a common sense solution? Hahahahaha! Seriously, the whole issue was avoidable. Plain and simple.
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Post by cheesy on Jun 4, 2015 20:31:39 GMT -5
If it helps anyone else to know this information, I received an e-mail notification which appears to be the same as the one received by hope2balj. Like hope2balj, I did not begin any of the online assessments because I never received an e-mail from OPM informing me that I was eligible to move on on to the next phase. By the time I inquired about the status of my application, the time for completing the online testing had expired. So, I appealed on the basis of never having received the e-mail notification. My appeal has been pending since June 2013. The e-mail I received this week states: Dear [pumpkin], Appeal Status: Resolved in your favor This message is in regard to the status of your appeal for the IMIN ineligible rating you received for the Administrative Law Judge (ALJ) examination, Job Opportunity Announcement, ALJ2013–847661. The IMIN ineligible rating, as reflected in your ALJ Notice of Results, indicated that you did not start any portion of the three online component assessments, (i.e. Situation Judgment Test, Writing Sample, and Experience Assessment (EA). OPM has determined that it cannot readily demonstrate in all instances that the message that OPM attempted to transmit to applicants to commence the Online Component actually reached their destinations. Accordingly, OPM is granting you the relief set forth below. As described in the ALJ Applicant Update Survey that you were sent on May 18, 2015, the U.S. Office of Personnel Management (OPM) has provided you with an opportunity to be re-scheduled and to take the three Online Component assessments of the 2013 ALJ examination. In affording you this opportunity, regardless of whether or not you choose to accept it, OPM has resolved the appeal that you filed in response to the IMIN rating that you received on June [XX], 2013. Please note, this notice exhausts your appeal rights with regard to this matter in the 2013 ALJ examination. OPM will also provide information and notices regarding the ALJ examination to interested parties, as appropriate. As such information becomes available, it will be posted on the OPM ALJ website at www.opm.gov/services-for-agencies/administrative-law-judges/. PLEASE DO NOT RESPOND TO THIS EMAIL MESSAGE. iT IS AUTOMATICALLY GENERATED. For additional information, please refer to the vacancy announcement for this position. The most amusing thing to me (I don't mean to make light of your situation) is that the appeal is resolved because they cannot guarantee you received the notice, but the resolution and presumably the new invitation to participate are being sent the same way. Ummmmmm. That seems like it deserves a snail mail letter telling you to update your e-mail, doesn't it? If they ACTUALLY want to fix the problem... This is only because OPM doesn't have the necessary Internet search tools available to find the name of the local newspaper, so as to post four notices over four weeks in a newspaper of general distribution within the appellant's likely jurisdiction. Imagine finding THIS under the Legal Notices section... I'm very glad to see folks are moving forward! Best of luck!
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Post by hapi2balj on Jun 5, 2015 9:48:50 GMT -5
Not that this makes a bit of difference to anyone, but my wife dared me to post that my avatar is an amazing likeness of the real me. Dare completed! BTW - I happen to agree with her. Imposing looking ALJ, eh? HA!
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donk
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Post by donk on Jun 5, 2015 9:50:46 GMT -5
Mine does too- not very imposing, eh?
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Post by gary on Jun 5, 2015 9:52:58 GMT -5
Not that this makes a bit of difference to anyone, but my wife dared me to post that my avatar is an amazing likeness of the real me. Dare completed! BTW - I happen to agree with her. Imposing looking ALJ, eh? HA! You look like a movie star--maybe Tom Hanks in Cast Away.
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Post by hopefalj on Jun 5, 2015 12:38:26 GMT -5
Not that this makes a bit of difference to anyone, but my wife dared me to post that my avatar is an amazing likeness of the real me. Dare completed! BTW - I happen to agree with her. Imposing looking ALJ, eh? HA! You look like a movie star--maybe Tom Hanks in Cast Away. Or the caddy from Happy Gilmore.
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