Advice on FOIA

[zero]

So OPM is hopelessly late in answering two FOIA requests I filed in mid-July and late August. I requested documents related to my non-selection and scoring of zero (hence my name). They could have asked for extensions but failed to even do that. OPM used to at least answer the phone or respond to emails I would send about every other week to ask about the status. But even that has stopped. It’s $350 filing fee for a civil action. Should I file? Will I earn a “crackpot” label and torpedo my appeal? Or has that ship sailed?

[nonamouse]

Zero,

I personally would not have followed your method of dealing with not being selected this time. I feel that you are becoming the nail sticking up that is waiting for the hammer to drop. People may prevail by appealing and becoming the squeaky wheel, but sometimes they merely build themselves a bad reputation. I know a very sharp attorney within SSA who got on the old list after much wrangling only to be passed over time and again for less experienced people. My theory (and that of many others) is that this person got noticed, annoyed the wrong people and got blackballed.

With the SSA commish giving a statement saying that much of the ALJ hiring may not be until late in fiscal year 2008, the darned process may be reopened for new applications shortly thereafter anyway.

I'm not trying to upset you further, but I get the impression from your posts and actions to date that this is like an injury that you cannot stop picking. Just my opinion so take it or leave it.

I used to participate in a lot of hiring decisions for governmental agencies and at the university level. I must tell you that if I saw a potential candidate following your course of action, I might have concluded that this person would be a pain in the rear with lots of complaints, personnel issues and possible suits even if they were hired. Institutional memory can be a frighteningly elephant-like thing on occasion.

[zero]

Thank you for that thoughtful reply. It's exactly the kind of analysis I was hoping to elicit. Just a follow-up, your suggestion is to start over with a fresh application and a clean slate rather than beat the already dead horse?

My thought on the FOIA was that I might learn why my last application didn't cut it and adjust my next application accordingly. Of course, if I earn a reputation as a wild-eyed crackpot/troublemaker by pursuing this information, any insight I receive will be overwhelmed by the bad rep. I earn. I suppose you're right. In my own organization, we take our FOIAs very seriously and are never late on any of them in spite of the fact that the requests sometimes involve thousands of pages. So I bring that baggage to the table. I hate to think OPM takes the attitude that it doesn't need to respond to FOIAs from anyone that might apply for a job with them because of an unspoken understanding that trouble-makers won't get jobs.

Thanks again.

[doctorwho]

Zero,

Here is a different take. The agency you have FOIA'd is OPM -- not an Agency that would be doing actual ALJ hiring; so, hopefully, assuming that everybody involved follows the ethical principles that government employees have sworn they will follow, you will not be penalized for asserting your rights. And, the agency that will be doing the ALJ hiring, which may or may not be SSA, will not even know that you asserted your FOIA rights at OPM.

Nonamouse's view, I must admit, rings true. However, it presents a myriad of problems to agency lawyers that later have to defend agencies against a host of unfair personnel practices and lawsuits that occur as a result of institutional memory, elephant-like or otherwise.

My advice to you is to be patient, and wait the process out. OPM will work through the appeals and it is very likely that they will be handled expeditiously. The register will probably be open again within a year or so and you will get another bite at the apple in any event. As for filing a FOIA lawsuit, I'm not sure it will progress much faster through the district court in any event. And, stop sending letters. They already know that you know they are late. One more is not going to do any good.

[chris]

OPM is not the agency doing the hiring, but they are the agency doing the scoring. So here's the question for zero: Do you think it is more likely that if you prevail with FOIA and the appeals process, that the bureaucrats at OPM will eventually (a) give you a higher score in exchange for giving them more grief, or (b) give you a lower score for giving them more grief?

And as to how SSA will respond to a history of litigation against OPM, I'm sure some folks at SSA would not be bothered and I'm sure some would see it as a red flag. If SSA does not know you, and you are not at the top of every list, why should they take a chance on a potential troublemaker? Litigation against the federal government is a major red flag.

Zero, if your sole goal in pushing an appeal and a FOIA request is to find out why you did not go forward, keep in mind two things: 1. Neither path may tell you what you want to know, and 2. There is a long history of people failing to move forward on government exams who have found better ways to evaluate their performance.

[zero]

Thanks for the good advice everyone. The consensus seems to be that pursuing the FOIA litigation will be counterproductive to my chances. I had the complaint and summons all drafted up and it's sitting in an envelope in my desk. Some part of my brain was thinking, "So they think I don't have enough experience with litigation? I can fix that!" But as a seasoned, experienced litigator, I have learned the value of waiting before you launch on something you wrote out of frustration. It feels good to write it. But don't send it. I suspect, however, that I have already distinguished my application by filing my FOIA. I am often in the reverse position of having knowledge that somebody exercised their rights. I would never hold it against somebody. But you're right. It's almost impossible to annoy somebody into giving you a job.

[workdrone]

zero said:

I suspect, however, that I have already distinguished my application by filing my FOIA.

I think you're on the right track now. Patience is sometimes the best course of action. As for the FOIA request, I wouldn't worry about it since I'm sure OPM gets quite a few of them every month. Good luck and hang in there!

[captjack]

Zero - I think everyone is wrong! Those individuals that filed the initial litigation against OPM which eventually led to the closure of the register - they are all now ALJs!!! How do I know - I know them personally.

So, I would go forward with your lawsuit regarding the FOIA - you will be a judge before you know it. Those that are telling you not too - they are not ALJs now are they - no they aren't.
Also - they are assuming that OPM and this process is rational - it is not. For example, read all the posts and confusion regarding the scoring process.

OPM or the employees at OPM who are responsible for this process are not rational or logical - so file your suit. It didn't hurt Anne Azdell who was the named plaintiff of the lawsuit and is currently serving as an ALJ for SSA.

So, file your suit!

[zero]

Just an update: Still no response to the FOIAs.

[Pixie]

Attacking a poster is not good manners. CaptJack was merely expressing his opinion in a non aggressive manner. Granted he took a shot at OPM, but maybe deservedly so. Diplomacy is the best tact. Pix.

[chris]

I'm with notajudge on this one. Captjack's post started out "everyone is wrong" in reference to the prior posts on this board and concluded with the conclusion that OPM employees are "not rational or logical". The captjack post is something I would expect on the old board.

[zero]

Just an update: OPM is now 120 days late in responding to the FOIA. Any day now, right?

[barkley]

I too filed a detailed FOIA request, as well as a substantive appeal, with no response to either. I don't think OPM has any intention of responding to either. Great way for the government to work, eh.

Others may soft sell the impact of this, but it is possible that some of the folks who appealed should not have been passed over. Had OPM acted in a timely manner, successful appellants could have been interviewed and tested. It is just difficult to come to grips with the randomness of the process and the lack of effective recourse.

[tricia]

Barkley, I agree. We have been randomly eliminated. But as far as I can tell, there's not a thing we can do about it. Tricia

[yogibear]

I feel for you, because we all know the govt does make mistakes. But just remember that it's not one person or a huge institutional conspiracy, but lots of individuals working hard, taking direction and trying to do their best. It seems that OPM is not going to get back timely and you will not likely be able to complete an appeal process before this round of hiring. SO the question for you to ponder is what is the best result you can get out of this? Remember everyone went through the same hoops and some faired well and some not. There is no clear explanation, either. I know some superbly qualified individuals who didn't make the initial cut.

SO my suggestion is to consider that whether or not you ever prove OPM was wrong (regardless of whether OPM was wrong or right), your reputation and professionalism is everything at this point. NO matter what error was made in your individual case, conduct yourself as a well-respected professional, and that in and of itself will make an important point. Hopefully, you'll be able to gain some insight into what happened. But even if you don't get the answers you seek, on the next go around you'll be that much more respected for your diplomacy and professionalism under difficult circumstances. Hang in there.

[yogibear]

I also wanted to add that I don't think litigation is the way to go. The Azdell litigation (that closed the old register for so long) dealt with interest groups (veterans) and other issues of fairness. THink of what you have to gain and what you have to lose by filing the suit. I do agree with you, though, that putting it all in writing helps to diffuse the anger and feels good. Ultimately it's your decision. I stand by my original post, though. Pursue all the rights you have, but do it with professionalism and respect and with the attitude that it's not personal. Good Luck. Don't give up.

[hooligan]

captjack said:

Zero - I think everyone is wrong! Those individuals that filed the initial litigation against OPM which eventually led to the closure of the register - they are all now ALJs!!! How do I know - I know them personally.

The Azdell litigation did a terrible disservice to all the candidates who were on the register when the hiring freeze was imposed. It had a chilling effect even prior to the actual freeze. SSA hired in August 1997 and then did not get another group hired until October 2001. The named petitioners were hired long before the litigation had any direct impact. I believe OPM actually likes litigation because it allows them to do nothing until it all ends. I would strongly counsel against a quick fix expectation using litigation.