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Appealing
Jun 14, 2017 5:16:55 GMT -5
via mobile
Post by mjpsu1980 on Jun 14, 2017 5:16:55 GMT -5
The confidentiality agreement is the only thing I signed that morning and know for sure that an OPM staffer didn't address the waiver of the 3 person panel with me. I'm glad I brought up my issue with 2 members of my SI panel because I now know I wasn't the only person with a 2 person panel and no waiver. Now I just need to find the OPM guidelines and/or suggestions for the ALJ testing SI portion, so I can support my argument on appeal.
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Post by southerngal on Jun 14, 2017 5:24:58 GMT -5
Okay: I flunked the whole shootin' match, including Bar membership:
"After further review of you bar status, it was determined that your status does not satisfy the licensure requirement in 5 C.F.R. A700 930.204(b). As indicated in the Administrative Law Judge Job Opportunity Announcement, an applicant must be licensed and authorized to practice law at the time of application and continuously through the selection process including any period on the ALJ competitive register. Judicial status is acceptable in lieu of "active" status in States that prohibit sitting judges from maintaining "active" status to practice law; being in "good standing" is acceptable in lieu of "active" status in States where the licensing authority considers "good standing" as having a current license to practice law..."
I just don't see how my answer could have been any plainer:
"I am licensed to practice law in all courts of the State of [my State]. Date of Bar admission was September 27, 1985. Bar license I.D. number 4452-M48L. A licensed [my State] attorney who serves as a full-time judge or full-time assistant attorney general may purchase a special membership license upon payment of a fee. From January 2001 through the present, I have paid the special membership fee annually to maintain [my State] Bar membership in Active Status."
And in the appropriate part of the app (Question 1), asking if I have 7 years of experience as a licensed attorney preparing for, participating in, and/or REVIEWING FORMAL HEARINGS OR TRIALS INVOLVING LITIGATION and/or administrative law at the Federal, State or local level, I answered yes.
In description of litigation experience box, I cited my judicial office from 2001 - 2007. (6 years) and gave a lengthy summary of the jurisdiction of my court and specified the matters that I presided over.
In the part where it asks about administrative law experience I explained that I had been as state assistant attorney general from August 2008 through to the present (6/14/16) and gave a thorough description of my duties preparing for and participating in administrative cases.
That was 15 years of relevant experience! (I also practiced law previously for the first 15 years but did not talk about that because I clearly had the 7 years required.)
I one of you fellow Board members doesn't mind reading through this and sees a problem with my answer, please enlighten me.
I am appealing because I really have nothing to lose.
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Post by monday on Jun 14, 2017 5:43:29 GMT -5
Maybe you needed to show that 2008 through 2016 = 8 years, 8 years + 6 years = 14 years, and 14 is greater than 7. You would think the people reading it could handle 1st grade level math, but I'm not positive about that.
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Post by Deleted on Jun 14, 2017 6:41:16 GMT -5
Okay: I flunked the whole shootin' match, including Bar membership: "After further review of you bar status, it was determined that your status does not satisfy the licensure requirement in 5 C.F.R. A700 930.204(b). As indicated in the Administrative Law Judge Job Opportunity Announcement, an applicant must be licensed and authorized to practice law at the time of application and continuously through the selection process including any period on the ALJ competitive register. Judicial status is acceptable in lieu of "active" status in States that prohibit sitting judges from maintaining "active" status to practice law; being in "good standing" is acceptable in lieu of "active" status in States where the licensing authority considers "good standing" as having a current license to practice law..." I just don't see how my answer could have been any plainer: "I am licensed to practice law in all courts of the State of [my State]. Date of Bar admission was September 27, 1985. Bar license I.D. number 4452-M48L. A licensed [my State] attorney who serves as a full-time judge or full-time assistant attorney general may purchase a special membership license upon payment of a fee. From January 2001 through the present, I have paid the special membership fee annually to maintain [my State] Bar membership in Active Status." And in the appropriate part of the app (Question 1), asking if I have 7 years of experience as a licensed attorney preparing for, participating in, and/or REVIEWING FORMAL HEARINGS OR TRIALS INVOLVING LITIGATION and/or administrative law at the Federal, State or local level, I answered yes. In description of litigation experience box, I cited my judicial office from 2001 - 2007. (6 years) ............... [STOP READING HERE! GO NO FURTHER! DO NOT PASS GO!] Welcome to the world of federal bureacracy [government]. Should my learned opinion bear weight, if any, I would freely hazard to observe in regard to the above that you were specifically asked for "7 years" of experience. You in turn cited "6 years".
At that point in your answer, the bureaucracy of review proceeded no further, no further reading, no further inquiry. Now of course you subsequently went on to describe additional well qualifying years of legal experience and service. But that, presumptively, was never reviewed or considered once you answered with only "6 years" when the bureaucracy asked for "7 years". All review stopped then.
A nonsensical and idiotic way to run a program you say? [fill in your response here] Hence the appeals process.
(E.g., I held a full hearing yesterday. The sole purpose of which was that a formerly dead claimant was now apparently risen and undead. Under oath, subject to penalty of perjury, he duly did appear and swore unto all present that he was surely not dead. I observed his physical presence as to same and then fully accepted his testimony. Note was made that while the government took more than 60 business days to recognize the risen nature of this dead claimant, the last known successfully risen dead person took only 3 days and that was over a holiday weekend. However, 60 days was deemed not bad for government work purposes).
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Appealing
Jun 14, 2017 6:49:22 GMT -5
via mobile
Post by aljwishhope on Jun 14, 2017 6:49:22 GMT -5
The confidentiality agreement is the only thing I signed that morning and know for sure that an OPM staffer didn't address the waiver of the 3 person panel with me. I'm glad I brought up my issue with 2 members of my SI panel because I now know I wasn't the only person with a 2 person panel and no waiver. Now I just need to find the OPM guidelines and/or suggestions for the ALJ testing SI portion, so I can support my argument on appeal. good luck. I had 2 judges as well and ok waiver. I got a score so I did not appeal. But it was a lower score.
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Post by mamaru on Jun 14, 2017 7:22:49 GMT -5
Goldenretrievermom, I can't speak for anyone else's experience, but I was told very specifically that if I did not sign a waiver that I would be rescheduled for a time when they could guarantee a three-person panel, but the travel would be at my expense. I am not making this up. Don't doubt you for one minute mamaru. But you must've been given a waiver. And it appears you objected to signing it or at least raised the issue. Did you then sign? It would take courage, in my view, to refuse and insist that they reschedule. I'd be worried that OPM would never find a time "when they could guarantee a three-person panel" or if they did, it would be held against the interviewee in some subtle way. And maybe it's too late, but I just can't wrap my head around the concept of "due process" in hiring. Sorry - perhaps I misinterpreted your statement that OPM would not offer an opportunity to return for a SI with three panel members.
As my earlier posts have said, I was given a waiver back in 2013 and asked to sign it at the time I checked in for the SI, which was when I was told that if I didn't sign it I would have to return to DC on a date when three panel members would be available.
I was mentally prepared to go forward and decided to just go ahead and get it over with; however, I did feel pressured by the financial implications of failing to waive. And yes, it occurred to me that there could be backlash if I made an issue of it. I figured that I had a decent duress argument if I failed the SI so I really had nothing to lose. Snap judgment on my part, but in retrospect I think I did the right thing. It never occurred to me that OPM would not follow through and schedule another SI if I had refused to sign.
As far as DP goes, I defer to other Board members who have a better knowledge of civil service law than I do, but it seems to me that OPM has a lot of latitude in determining how to test, but once it says "this is how we're gonna do it," applicants have a right to rely on that and hold OPM to following its own procedure, at least for the life of the register. It's not the private sector. Civil Service was established to level the playing field, as well as provide a list of qualified applicants. Perhaps I am using the phrase "due process" improperly, but that's what I meant.
I think anyone who files a FOIA (and I am not sure how this works with OPM - there may be a thread on that) and discovers one individual on a two-person panel gave a high rating and the other a low rating would wonder if a third person would have made a difference. It could have been another low rating or another rating just high enough to yield a passing score. Those with three person panels at least had the chance to impress a third person whose rating could have changed the outcome.
Also, I don't think there is anything sinister going on with OPM, just a hard time finding enough warm bodies to staff the panels, considering how many people it has passed along to this phase of testing since 2013.
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Post by stevil on Jun 14, 2017 7:47:10 GMT -5
Having been an appellate lawyer for numerous years, my bottom line advice here would be to throw every possibly cognizant argument into your appeal. Normally, you want to tailor an appeal to the issue or two that you deem has the best likelihood of success, but when one is given no information at all as to why they did not pass, or what it really takes to pass, the shotgun approach seems more reasonable. Everyone I've heard of that won an appeal with OPM (and the list is unfortunately very short) appears to have no real idea what won their appeal as opposed to others - meaning it is no more transparent a process than the original testing.
When I did the SI in 2013, they pulled me aside before the SI to have me sign a waiver and explained that one of my original interviewers apparently knew me from my JAG days, so I would have to wait until everyone else in my time slot interviewed so they could substitute a different person to my panel. I ended up only having 2 interviewers, when I was expecting three. I just assumed they didn't have a ready replacement in time to stay on track for the next set of interviews. Any thought about it went away as soon as I made the register.
Hopefully those of you who are disappointed are younger than me and have time to try again in 3-years or whenever. Honestly, the difference between success and disappointment in this process is probably miniscule. I originally thought people before me who talked about the process involving a ton of good fortune were just blowing smoke and being modest. Now that I've been through it completely, I think it is entirely accurate to say that luck - who is on your SI panel, who is grading your WD, who is evaluating your experience, etc. - is a very large part of the process. So don't give up if ALJ is really what you want to do, and perhaps luck will treat you more kindly on appeal or the next time around.
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Post by montyburns on Jun 14, 2017 8:17:04 GMT -5
I didn’t get the minimum score on the WD. It actually makes me laugh, because I was Senior Note Editor of a law journal at a top 20 law school, and in my 19 years of practice I have had several judges at different trial / appellate levels in complex litigation tell me I am one of the best legal writers they know, and have had a number of judges encourage me to become a judge. When I first saw the "See Details" my initial reaction was disappointment, but it has been pretty quickly replaced by feeling like the whole "testing" process is a joke. The way I view it is I probably “failed” based on my secretarial / typing skills that have nothing to do with the skills required to be an ALJ. Is that a legit basis for an appeal? We'll see if I decide to appeal, since it's another step in a seemingly arbitrary process (just to get a lower paying job and have a boss and decision quotas, although the trade-off of better work-life balance does sound appealing). However, I applaud those of you who are determined enough to appeal, or re-apply and re-test. You all seem more than capable of doing this job, and if it's what you really want, don't pass up any opportunity to make it happen! Well apparently all those judges and law school review editors didn't know jack about legal writing, at least in the world according to OPM. Your feeling that the testing is a joke is generally shared by by everyone. One of the biggest ha-ha's? ALJs (in SSA anyway) do about zero formal writing. Zero need for a ALJ a to be a good writer in terms of day-to-day work. Not sure why this is tested twice (WD and on the online portion) in the OPM process, but who are we to question OPM?
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Post by montyburns on Jun 14, 2017 8:21:52 GMT -5
Okay: I flunked the whole shootin' match, including Bar membership: "After further review of you bar status, it was determined that your status does not satisfy the licensure requirement in 5 C.F.R. A700 930.204(b). As indicated in the Administrative Law Judge Job Opportunity Announcement, an applicant must be licensed and authorized to practice law at the time of application and continuously through the selection process including any period on the ALJ competitive register. Judicial status is acceptable in lieu of "active" status in States that prohibit sitting judges from maintaining "active" status to practice law; being in "good standing" is acceptable in lieu of "active" status in States where the licensing authority considers "good standing" as having a current license to practice law..." I just don't see how my answer could have been any plainer: "I am licensed to practice law in all courts of the State of [my State]. Date of Bar admission was September 27, 1985. Bar license I.D. number 4452-M48L. A licensed [my State] attorney who serves as a full-time judge or full-time assistant attorney general may purchase a special membership license upon payment of a fee. From January 2001 through the present, I have paid the special membership fee annually to maintain [my State] Bar membership in Active Status." And in the appropriate part of the app (Question 1), asking if I have 7 years of experience as a licensed attorney preparing for, participating in, and/or REVIEWING FORMAL HEARINGS OR TRIALS INVOLVING LITIGATION and/or administrative law at the Federal, State or local level, I answered yes. In description of litigation experience box, I cited my judicial office from 2001 - 2007. (6 years) and gave a lengthy summary of the jurisdiction of my court and specified the matters that I presided over. In the part where it asks about administrative law experience I explained that I had been as state assistant attorney general from August 2008 through to the present (6/14/16) and gave a thorough description of my duties preparing for and participating in administrative cases. That was 15 years of relevant experience! (I also practiced law previously for the first 15 years but did not talk about that because I clearly had the 7 years required.) I one of you fellow Board members doesn't mind reading through this and sees a problem with my answer, please enlighten me. I am appealing because I really have nothing to lose. Yep, you failed the part where you do rudimentary math for them. Don't assume they can figure out, or would even try to figure out, that 2001-2007 is a six year period. However, of all the grounds for appeal, this one has potential to be successful. Just don't forget to do the math for them in your appeal.
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Post by montyburns on Jun 14, 2017 8:31:29 GMT -5
Interesting about you being given at least the professions of the three on your panel. When I did my SI in 2015 (which I flunked, having passed the WD), after we were finished, I asked if I could at least find out what each of the panel members' professions were. I was told absolutely "no," that that was not allowed. I'm now wondering who makes up these "rules," and if they're different depending on the panels. At least I'm glad I'm in good company for having flunked the SI. I didn't mention it before because I was embarrassed: I thought most people who weren't given an NOR passed the SI but flunked the WD. I have never taken the SI, so I don't have any info on that process. However, after listening to hundreds of hearings with ALJs selected since 2013 in a variety of regions, I have come to the conclusion that whatever else they are testing for in the SI, the tone and rate of speech of successful applicants has been very similar. About 80% of the male ALJs since 2013 sound like typical 50's dad/ward cleaver/father knows best. They all speak at a similar pace and clip. I haven't noticed as strong of a trend among females, but most of the newer female ALJs also have a similar business like tone and similarly have clear and fairly fast rate of speech. This only occurred to me as I have been writing some cases for the older ALJs, and many of them spend a lot of time meandering through their questions, banter with the claimant/go on tangents and seem to take more time in hearings. That ends up impacting the bottom line (i.e. Number of dispos). Just my antecdotal observations.
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Post by niemekv on Jun 14, 2017 9:03:50 GMT -5
I applied in 2013 and was told my WD score did not meet the minimum required to receive an overall score. As they did not give me any other information, my appeal was a single paragraph email stating that I believed this was in error and OPM held all of the information. In July 2015, I was notified they had everything re-graded by different people and I now met the minimum qualifications to receive a score. They did not say how they came to this determination other than everything had been re-graded. I don't know if they simply went with the new scores or averaged them. If you have any information to provide them, do so. But if you appeal by simply saying I think you were wrong, they will still go back through and make sure there were no errors. However, this is not a quick process. This is very interesting. I'm curious. Do you know how many folks had their WD scores changed? Were you able to get on a cert after that? It looks like about half of the Washington test takers failed to meet the minimum score for the WD. There may not be very people on this register and they may have narrow GALs. Since there was a refresh three years later, I would think it would be less expensive to take a second look at the WDs than to go through a whole new application process and testing again. But who knows? I may not have been clear. When I said they re-graded everything, I meant all parts of my testing, not just the WD that I initially was found to have failed to meet the minimum score. The re-grading of my entire testing process was done pursuant to my appeal. Had I not appealed I would not have had my test results re-evaluated.
I personally know other people who appealed insufficient WD scores that simply received the same email they received the first time, telling them that their WD score was insufficient to receive an overall score without any further explanation. I don't personally know of anyone else that appealed their WD score and was later found to have met the minimum required score. From the information I was given as part of my appeal, even those who passed the WD but appealed a failed SI score would have had their WD re-graded. Thus it would theoretically be possible to pass the WD and fail the SI, but when you appeal your SI they lower your WD score and you fail that too. However, since no one is told what their initial or re-graded score on each part of the testing was, it would be impossible to determine how many people's scores improved. It would be possible for your score to have improved and still fail to meet the minimum required score.
So I received my NOR in July 2015. It was a relatively low score as I clearly had barely passed the WD. I made the next two certs. However, once the next group of NORs hit the register, the people in the next lower subgroup that were moved to the DC testing and people who successfully appealed being denied for procedural reasons at step 1 and successfully tested in DC, I stopped making the certs. I must have been passed up by enough people because many of the cities I previously made a cert for were on those certs as well.
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Post by JenMPR on Jun 14, 2017 10:40:26 GMT -5
I'm at the beach on vacation right now, so I haven't paid much attention to my recent FOAD email. But, once reality hits next week I think I might try to appeal. This is my second time around (failed the WD both times-so I'm obviously clueless as to what they're looking for!), and I doubt I'll go through this process a third time. But, I've got nothing to lose by filing the appeal, so why not? The only problem is I have no idea where to start. With no real information about how this thing is evaluated, I feel my appeal will be something along the lines of "I think I'm awesome and you're wrong."
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Appealing
Jun 14, 2017 11:00:18 GMT -5
via mobile
Post by hopefulop on Jun 14, 2017 11:00:18 GMT -5
So I too didn't receive the minimum score on the SI part and I have a question for my upcoming appeal. In reading the ALJ testing description on the board, it says OPM guidelines suggest that 3 people conduct the SI, but I only had 2 people conduct my SI and I don't recall signing a waiver of this requirement. Is this an appealable issue? Interesting. I also had only 2 and don't remember signing any waiver. I do remember signing in, and the waiver might have been in there, but I only remember the thing I signed being about confidentiality. I wonder how many actually had three? I only had two, was surprised a litttle but never really thought much of it being an issue. And it was never told to me ahead of time nor did i get asked to sign a waiver
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Post by Capstone on Jun 14, 2017 11:04:31 GMT -5
Wasn't the line drawn in the sand that the confidentiality agreement prohibits discussion of anything that happened in the testing or interview rooms? Doesn't all of this talk about how many people were on the interview panel cross that line?
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Post by Pixie on Jun 14, 2017 11:35:08 GMT -5
Wasn't the line drawn in the sand that the confidentiality agreement prohibits discussion of anything that happened in the testing or interview rooms? Doesn't all of this talk about how many people were on the interview panel cross that line? While this discussion certainly can't help anyone who hasn't yet tested, it does discuss what goes on the the testing room. We have a policy here, irrespective of any confidentiality agreement, that what happens in the testing room is not to be discussed. Pixie.
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Post by rose1022 on Jun 14, 2017 11:40:13 GMT -5
I got the same result and frankly, I was stunned by it. I have been an Administrative Judge with another federal agency for 11 years and have written hundreds of decisions on summary judgment and post-hearing. I know I'm a very good writer and don't get how I didn't achieve the minimum score on the WD. I'm disappointed but not at all upset because the non-qual reason is crazy. I am appealing and will see what happens. One thing I can say as a former supervisor who has hired, OPM has some odd ways of scoring. When I received selection certificates for vacant positions, I looked at candidates who were deemed qualified and was left scratching my head. And I knew of better candidates who qualified and were deemed unqualified.
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Post by tonypitt on Jun 14, 2017 11:45:03 GMT -5
Just received an email notice of the right to appeal.
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Post by hope2017 on Jun 14, 2017 11:46:49 GMT -5
I just now received an email notice of the right to appeal, also.
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Post by foghorn on Jun 14, 2017 11:47:54 GMT -5
Yeah: I'll ask it. Think AGE was a factor in the SI? No. The ALJ position lends itself to an older, more established set of applicants. If age were a factor, a relic like me wouldn't have met the minimum score. Not sure about that--the more experience you have, the longer it takes to fully answer some of the questions and that impacts on time available for others. Is there a substantive due process angle in that the quality we look at for judges is not the ability to keep in one's head 13 factors that generally judges don't use in legal decisions (though hopefully in running their office), therefore it is a test that has significantly no rational basis espectially with a time factor. Heck it would be tough to list and describe the thankless thirteen x the number of questions and get out in the time allotted.
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Post by foghorn on Jun 14, 2017 12:18:17 GMT -5
The search function was down. I tried pulling the confidentiality agreement but was unable to. However, I did find this: www.parkerpoe.com/newsevents/2014/09/federal-alj-finds-standard-employee-confidentiality-agreement-languagePoint is that what we are discussing has nothing to do with the questioning merely whether 2 or three people are there, whether there is a form signed. I don't think that would be confidential as to a Federal Agency. (More leeway is given to private entities but even in those cases, restrictive covenants have not been given the broad meaning they once had absent a showing that it was specifically bargained for).
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