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Post by valkyrie on Dec 9, 2008 14:33:40 GMT -5
5 CFR 332.404 An appointing officer, with sole regard
to merit and fitness, shall select
an eligible for...
Is there somewhere between "merit" and "fitness" that OPM score was mentioned?
5 USC 2301
(1) Recruitment should be from qualified individuals from
appropriate sources in an endeavor to achieve a work force from all
segments of society, and selection and advancement should be
determined solely on the basis of relative ability, knowledge, and
skills, after fair and open competition which assures that all
receive equal opportunity.
You aren't really trying to say that this statute is talking about anything other than a non-discrmination policy are you? I can assure you that the ranks of ODAR are representative of "all segments of society."
As for 5 USC 2302, I'm really not sure where you're going with that one.
I'm really not trying to aggravate you all, but I just fail to see where you find so much value in your OPM score. The only value that the regulations assign to your score is for purposes of achieving eligibility and the order in which you are considered. The score, no matter how high, is no entitlement to success. I am enjoying this debate, so if you can show me the law, regulation, or rule that gives the OPM score some additional value than what I have mentioned, please enlighten me.
As for the "spirit" of the selection process, I think you are mistaking questions of age, race, religion, sex, and political affiliation with a simple matter of specialized work experience. Represent some SSA claimants, join ODAR, or find yourself a state workers comp alj gig. It'll boost your chances.
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Post by valkyrie on Dec 9, 2008 16:12:29 GMT -5
"Oh, SURE you are.
Otherwise you would not misstate my observations in the way that you do and use denigrating language. But, what the hey. Makes no difference to me. Just for clarification, I am not taking issue with the OPM score, ...I will leave THAT to AALJ."
No, I'm not. I'm still just trying to figure out your theory of agency favoritism.
1. OPM gave SSA a certificate of eligibles in an order from which they are to be considered, not chosen.
2. SSA, has determined that certain qualifications are indicative of a better candidate for their program, and aggressively worked through the list, in the proper order, to reach the candidates with what they considered to be the best qualifications.
3. Some candidates were likely found to be poor fits and were passed over three times. Other candidates became "collateral damage" and were passed over three times in order to reach the best qualified candidates on the cert.
Where's your violation? Yes, the locations and scores can be manipulated to create match ups that will eliminate some candidates with high scores and allow for candidates with lower scores, but better qualifications to be reached. Do the rules or regs say somewhere that the selecting officials must go in some particular order of available locations? No, and from there the agency may choose whomever they consider best qualified from those high scoring applicants available for that location. You may just have the highest score, and lost out to the next three high scoring candidates, for the first three locations that were chosen to be filled. At that point the agency can legally ignore you.
I think your problem is with the regulations themselves, or SSA's opinion of what the best qualifications are for an SSA ALJ. I never suggested that you had a problem with your score, but rather the the way your score is used in the selection process. As for the AALJ, those clowns needed a mulligan to file a proper complaint, and they deserve a lot more "denigrating language" than a circus reference.
"I've been a Title VII trial attorney for 25 years; it is unlikely I mistake anything when it comes to discrimination and the Hatch Act."
That's super.
Good luck everybody! For what its worth, I am under the impression that the budget particulars will be through in March, with a new certificate to follow, and probable selections in late April to early May.
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Post by deaddisco on Dec 9, 2008 16:23:35 GMT -5
I currently work with 2 new ALJ's from the last hire. Both had relatively low scores and neither had any connection to SSA or any background in SS law. Read into that what you will in the context to this thread. NOBODY has suggested any selectee is not qualified, nor that they will not succeed and succeed well in their position as an ALJ. This isn't about the selectees. You are suggesting that those with high scores and no ssa connection are being unfairly passed over. I'm saying that may not be the case. Multiple new alj's with lower scores and no ssa experience WERE hired. So far all you have really shown is that SSA used the regulations to get the applicants(agency and non agency connected) that they wanted. |
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Post by valkyrie on Dec 9, 2008 16:41:35 GMT -5
"All I said was that SSA eliminated some people with the Three Strike Rule and gave others up to 13 shots in the barrel."
Where does it say you can't pass someone 3, or even 13 times?
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Post by chinook on Dec 9, 2008 16:45:37 GMT -5
The problem and potential violation is that some candidated "became 'collateral damage'" and that some SSA official decides the concept of "best qualified candidates on the cert." The OPM process creates a listing in order of who preformed better on the application process. The offers should roughly follow the order on the register -- yes, I allow for people who score well but disqualify themselves on the interview or through references but that number should be relatively small. By allowing this nebulous concept of "best qualified" we open the process to all forms of inappropriate selection criteria -- race, gender, age, friendship, bribery and the list could go on. Everybody on the register has been determined to be qualified to be an ALJ. I think the ALJ test should be pass/fail with all those making the register having equal standing so that agencies can pick whomever the agency wants. That is not the way it works except for SSA. SSA circumvents the process that everybody else must live with, that is the problem.
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Post by deaddisco on Dec 9, 2008 16:54:38 GMT -5
jagghagg takes her ball and goes home in ...3...2...1...
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Post by pm on Dec 9, 2008 19:47:51 GMT -5
"One might question SSA’s motives when they bypass the #1 on the cert to hire the #100, which – as a matter of fact - they did." Lets look at this realistically. Do you honestly think that the agency would pass over #1 on the cert if it had not decided that it did not want the #1 on the cert? Do you really think that SSA has not considered the thought that someone might ask questions, and that they had better have a very defensible reason? "I’m simply suggesting that what might appear to be “lawful discretion” is actually unacceptable favoritism." You have yet to define the "unacceptable" or "favoritism" in any way other than an arbitrary OPM score and agency connections. As strange as it may seem, ODAR employees with lots of experience, who put out quality work in quantity, and who have also assumed and performed management responsibilities effectively, get noticed by upper level management. Upper level management has noticed that people with this background have had a consistent record of becoming the most productive ALJs. On the other hand, upper level management has also noticed that the OPM numeric scores have never consistently predicted the quality of ALJ candidates one way or another. The agency is going to pick its best and brightest first. They know that these people will perform well, and perform well immediately. This is not about you, the OPM scores, or the "spirit" of the rules and regulations. This is about Congress and SSA wanting to reduce the backlog of cases as quickly and effectively as possible to serve the claimants. Some of us have been temporarily bypassed, and some of us have been blackballed, but unless you have reason to believe that a rule of regulation was actually violated, rather than some quaint "spirit," get on with the selection process and/or your life. Very well said |
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Post by pm on Dec 9, 2008 19:57:09 GMT -5
5 CFR 332.404 An appointing officer, with sole regard to merit and fitness, shall select an eligible for... Is there somewhere between "merit" and "fitness" that OPM score was mentioned? 5 USC 2301 (1) Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity. You aren't really trying to say that this statute is talking about anything other than a non-discrmination policy are you? I can assure you that the ranks of ODAR are representative of "all segments of society." As for 5 USC 2302, I'm really not sure where you're going with that one. I'm really not trying to aggravate you all, but I just fail to see where you find so much value in your OPM score. The only value that the regulations assign to your score is for purposes of achieving eligibility and the order in which you are considered. The score, no matter how high, is no entitlement to success. I am enjoying this debate, so if you can show me the law, regulation, or rule that gives the OPM score some additional value than what I have mentioned, please enlighten me. As for the "spirit" of the selection process, I think you are mistaking questions of age, race, religion, sex, and political affiliation with a simple matter of specialized work experience. Represent some SSA claimants, join ODAR, or find yourself a state workers comp alj gig. It'll boost your chances. Valkyrie, you understand this process on both a legal and emotional level exceptionally well. Some of those who thought they should have been picked, but were not, have tried to come up with a variety of rationalizations and conspiracy theories to explain their non selection. The simple truth is that no federal agency is obligated to pick any candidate, even a veteran. There are many reasons why people are not selected. Sometimes it's experience or lack thereof. Sometimes its personality, a lack thereof, or even an unfortunate excess. Those who are arrogant with anger issues are not likely to be on the top of any agency's wish list, no matter how high they scored. |
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Post by pm on Dec 9, 2008 20:00:25 GMT -5
The problem and potential violation is that some candidated "became 'collateral damage'" and that some SSA official decides the concept of "best qualified candidates on the cert." The OPM process creates a listing in order of who preformed better on the application process. The offers should roughly follow the order on the register -- yes, I allow for people who score well but disqualify themselves on the interview or through references but that number should be relatively small. By allowing this nebulous concept of "best qualified" we open the process to all forms of inappropriate selection criteria -- race, gender, age, friendship, bribery and the list could go on. Everybody on the register has been determined to be qualified to be an ALJ. I think the ALJ test should be pass/fail with all those making the register having equal standing so that agencies can pick whomever the agency wants. That is not the way it works except for SSA. SSA circumvents the process that everybody else must live with, that is the problem. SSA follows the process. As for the comment that "The offers should roughly follow the order on the register" that concept exists nowhere in regulation or statute. SSA should pick the people they feel are best qualified while following the process. Coincidentally, that's exactly what they try to do. |
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Post by pm on Dec 9, 2008 20:05:04 GMT -5
PF made what I consider to be very valid points, in particular: "What appears to have happened to those of us "blackballed" (I'll define that term below) is that we were "in the way" of SSA's desire to hire certain favored candidates. We scored higher than the preferred candidates, and they needed to "get rid of us" to reach the desired goal of hiring candidates they wanted to hire, whether that person be an SSA insider, connected person, or whatever. In short, SSA approaches the OPM regulations as something to be avoided not followed. SSA bends the regulations and the process into a pretzel to get to the favored candidates, usually insiders or folks with SSA connections (not all but probably a small majority on the last cert). This does not mean that the folks who were ultimately selected were not qualified, and neither myself nor Jagghag nor the others are saying that they are not qualified. We are simply suggesting that all of the high scorers who were bypassed were at least equally qualified as those selected, and were equally deserving of a position even though we lacked an internal connection. And under a fair reading the OPM regualtions, we were actually MORE QUALIFIED than many of those selected. Had SSA followed the spirit and intent of the regulations, the majority of high scorers would have been selected for open ALJ positions and the lower scorers would have moved up the ranks on the register for the next certificate, putting them in a better position to be selected in the future. Few would argue that such a result is unfair." I will point out further, however, that the majority (I believe, I don't have that info - yet) of "insider" candidates were also passed over/blackballed; it appears the only insiders selected were in fact management darlings, and friends of friends (connected, as PF said), and that a significant # of extremely specifically SSA qualified individuals were not selected or "deselected" (as JH said); and that the only real criterion is whether an individual is qualified to GET the job, NOT DO the job. SSA has never expected nor required ALJ's to do the job as set out in specific detail in their various program manuals, nor held them accountable for any standard of even minimally acceptable competence, even outside the issue of judicial independence; there is no reason to expect they would this time, regardless of all their flowery and untrue announcements and statements before Congress. You might want to read Valykyrie's posts carefully. A high score does not guarantee you a position. SSA is not foaming at the mouth to hire high scorers. They want to hire the people they think are most qualified for the job. Their desire in that regard violates neither the letter nor the intent of any federal law or regulation. |
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Post by doctorwho on Dec 9, 2008 20:11:28 GMT -5
Jagghagg, just stop. The effort is simply not worth it. Just WIN. That will certainly quite these people once and for all!
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Post by flannery on Dec 9, 2008 21:26:02 GMT -5
The general propositions as far as I am concerned are:
--With a three-quarter million claims backlog, SSA has a right to select the persons it thinks can get the job done. This does not mean it is blackballing anybody. What you have seen is a selection process and like everything else in this imperfect world, it is flawed. The new ALJ's I have encountered as a result of the new hiring are a mixture of insiders and outsiders, about half and half.
--At the same time, SSA is not an incubator or training ground for other agencies. It is not obligated to take in people who are ultimately headed for FERC or FDA or DOI, etc, etc.
--The discussions on this board should be civil, as data-driven as possible, and professional in tone and substance.
--I wish everyone luck, whether you be an insider, an outsider, a crony of some highly placed person or a non-crony.
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Post by mrjones on Dec 9, 2008 21:39:12 GMT -5
maybe by "winning" we'll get a more dependably arbitrary process, like a giant pachinko game and everyone on the cert gets three lever pulls and three pulls only! or maybe by "winning" the OPM scores will hold total sway and, without even calling references and using time-limited online applications, etc. OPM will just select judges for agencies and pull the lever itself, without more! i can't wait!
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Post by morgullord on Dec 9, 2008 22:15:22 GMT -5
Several years ago, the AALJ pushed ffor the creation of an independent ALJ Corps. All ALJs in the federal government would have been assigned to the agency with ALJs, based upon their expertise, detailed to hold hearings for different agencies. I thought it was a good idea at the time.
Jagghagg has been much too open and sharing of information in my opinon but since many seem to disagree with what she has stated I can't help but be reminded of a cliche or two.
Anyway, no matter how you split hairs on this, the fact remains that federal officials with hiring authority are not allowed to hire their buddies or their toadies just because the toad is tight with the selecting authority. Does it happen anyway? You betcha. Should such hirings be challenged? I believe so, but I have this foolish notion that the federal government should employ the best and brightest and should strive to ensure that laws and regulations are applied uniformly. But, that's just me.
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Post by mrjones on Dec 10, 2008 8:04:38 GMT -5
It's nice to have a historical perspective. I'm just not content to watch the game get tilted again, after 2 plays, and put in the shop for another 8 years.
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Post by decadealj on Dec 10, 2008 9:44:53 GMT -5
I too received my OPM letter; I went through the process in 1993. IMHO nothing has changed much over the years but two observations: one- because of the short fuze on the last register application, there were many more SSA applicants than at any time before; two- bacause of the expanded definition of "litigation experience", more SSA folks (other than AAJs with other litigation experience outside SSA, as in 1993) qualified for the register and probably aggravated the usual machinations of the SSA draft.
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krid
New Member
Posts: 8
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Post by krid on Dec 10, 2008 11:23:01 GMT -5
Contrary to JH's statement that "it's not about the selectees," in fact it IS about just that.
What is missing from this discussion is the fact that the regulations contain a mechanism for formally identifying eligible candidates with "agency-specific experience." Several years ago, SSA attempted to avail itself of this regulatory cul-de-sac by requesting OPM provide it with a list of eligibles identified as having agency specific experience. Such a list was in fact furnished, and agency personnel took steps to schedule interviews with some of those candidates. I know this as fact, since I received a letter from SSA advising that it wished to interview me.
However, wind of this maneuver wafted over to the Veteran's lobby, who screamed bloody murder to various Congressmen, who in turn put the screws to SSA about its perceived "end run" around hiring veterans (whether fact or fiction, it didn't matter). Ultimately SSA took so much political heat that it simply shut down its efforts to target individuals who might actually bring to the table SSA-specific skills and thereby add significantly more value to its efforts at backlog reduction and process streamlining.
So, dear friends, it should now come as no surprise that SSA is trying to hire individuals with agency-specific experience the only way it can. It isn't exactly above-board, but doing it this way avoids pitched battles with special interests. I'm simply wondering what took SSA so long to finally get to this point.
And to those individuals with high scores who feel somehow wronged by their non-selection, I say this: all other things being equal, politics is a dirty business. If you choose to pay your money, then you take your chances. The folks at SSA (and believe me, I'm no fan of them) finally wised up and took matters into their own hands to get people on board who actually knew something about adjudicating SSA cases. It's a practical approach, and it makes sense. Deal with it.
As a friend of mine remarked, "it's not rocket surgery."
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Post by notherapp on Dec 10, 2008 13:45:48 GMT -5
It is with some amusement as well as consternation that I have read the various posting recently on this thread. I tend to think that the posters' outlook reflects the old adage that "If your neighbor is unemployed it is a recession; however, if you are unemployed it is a depression." For the most part, successful candidates have a more positive view of the system than unsuccessful ones (including me). Having so stated, I will put my two cents in.
Although it is true that "politics is a dirty business," the civil service is not supposed to be about politics, even at the rarefied heights of an ALJ. With more than 90% of all ALJs working for SSA; some of the remaining ALJ positions requiring specialized experience of a very unique nature (think FERC and NRC); and virtually all of the remaining positions billeted in DC, the fact is that for most aspirants to an ALJ position it is either SSA or nothing. Hence, the OPM procedure - even if unintended - creates a reasonable expectancy that a high score will translate to a better chance of appointment than a low score, regardless of SSA experience. In this situation OPM is bird dogging the applicants for SSA.
To put it another way, what if OPM were to announce, in keeping with at least some peoples' version of reality, that an applicant from Billings could go three times to DC for an OPM interview, SSA WD and SSA SI, and even though completing all three with great scores that the lack of SSA experience (govt or private) would result in three passes and then the shelving of his/her credentials? Would that Billings applicant incur some $2500 of expenses for a useless exercise? I think not.
As the last poster stated, this is not rocket science, to which I understand that unlike my FERC and NRC examples (not to mention Patent Judges), it takes fairly minimal particularized education and training to handle these cases. I don't say that out of disrespect - that is just the way it is. In my current job I TDY'd to another government agency to handle immigration matters to help reduce the backlog. After a week of training and some ponied briefs, I wrote more than 30 appellate briefs in the next year. I am not bragging -- I am just using this as an analogy. Specialized knowledge should only be a determinant if it is SO specialized that the learning curve is going to impede production of acceptable decisions, and I have never heard that SSA work is of that nature.
Which leaves the last consideration: better the candidate known (to the SSA) than the candidate unknown. Again, if that were an enunciated criterion I might begrudgingly accept that; however, that appears nowhere in the CFR or the other documents which are part of the record. As a fairly senior government attorney who is the most highly awarded 0905 in his OGC, I find it hard to understand not only that those with significantly lower scores were selected for my cities, but that I am now barred (apparently) from further consideration by the three strike rule. And what makes it even more incomprehensible is the number of ALJs in those cities who have put in for transfers -- in other words, they were placed in cities I would have been happy to serve in and they used it (apparently) only as a way to get into the system.
I think JH is right to be ticked, and I don't think that being ticked about a patently unfair system is any indication that one does not have the judicial temperament to be an ALJ. Rather, those who merely shrug and say "well, that's politics" or "if you were not selected then by definition you were not the best for the position," or "how naive - what did you expect" or "in the final outcome, an agency should have almost unrestrained leeway to determine who to hire" should reevaluate THEIR temperament for a position in the Article I judiciary which calls for NONE of the traits that those views represent. Any of us with significant litigative experience knows what it like to be before an outcome determinative jurist, and the mindset I have just described sets the stage for just that kind of decision making. Just as an SSA ALJ should not grant or deny benefits at the end of a month depending upon the number of decisions he/she has issued or his/her grant/deny ratio, an applicant has every right to believe that his/her application will be considered based upon its "four corners," and there is enough anecdotal evidence to conclude that this was not done in a number of cases.
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Post by carjack on Dec 10, 2008 16:23:27 GMT -5
I'd be more likely to believe there was a conspiracy against a candidate if that candidate had both a high score and a large number of acceptable posts. My cursory understanding is that if OPM scored you, you're qualified to be an ALJ. If you scored highest, you get referred to the agency first, which helps if there is only one opening. In a large cert like the past two, the scores are going to range from highest to further on down, but still OPM determined all referred were qualified. If the agency interviews you and determines you are toxic all they would need to do is consider you for three places where they have other less toxic candidates. A poll was done a while back about places chosen by candidates and even the bottom places (on my list) had many candidates. It wasn't as though there were only three possible candidates for any one locale. If your interviewers didn't care for you it would be easy enough to consider you for three places and have you finish other than first. Assuming you weren't toxic it may have still been a situation offered like the bar exam, all good candidates, but one is the 'best' for whatever reason. SSA might have been happy with any of the candidates, but they were just put up against candidates who they liked better. If it were only a matter of the scores, all OPM would need to do is refer the top candidate for each locale and he/she would get it. Referring three people would simply be perfunctory. While I don't doubt that somebody got an advantage because of who he/she knew, I think that if they were referred, they were qualified and it was up to the agency's discretion to choose the best of between the three qualified candidates. The Vet pref gets the Vet a higher score and therefore earlier consideration and with small certs that would have greater impact since there would be fewer candidates for the agency to consider. At the same time, assuming universal acceptance of any post, it would seem to offer more chances to the candidate referred regardless of score. The determining factor would be whether the agency considers a candidate more than three times on any cert. If it doesn't consider someone more than three times on a cert, a high score wouldn't be as big advantage as it would be otherwise.
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Post by pm on Dec 10, 2008 21:11:19 GMT -5
Perhaps I can help address Valkyrie and others focus on SSA's desire to "hire its own" over other qualified candidates from a legal theory perspective. I appreciate the fact that SSA may believe that certain of its favored employees would make good SSA ALJ's. Lets assume that as a given, that is, current SSA employees on the register would all make good ALJs, and having made the register, are deemed by OPM to have the basic qualifications. The objection that I have is that the consideration of agency experience as a factor in selection is not contemplated or permitted by the APA. In fact, it would be frowned upon given the APA's clear mandate that the ALJ be independent of the agency. My position is that when an agency seeks to hire its own employees to act as ALJs, it is undermining the independence of the ALJ under the APA. In other words, it violates the intent of the APA. By rendering the scoring meaningless, and bypassing otherwise qualified individuals to hire agency connected individuals, SSA is actually directly undermining the very purpose of the appointment of ALJs under the APA, which is independence of decision making. An agency insider, particularly those who the agency appear to prefer, are clearly deemed by the agency more likely to render decisions consistent with the policy of the agency. That is, these folks are more likely to exercise an inherent bias toward existing agency policy, as demonstrated by their selection by agency officials as "favorites." Remember, many agency people were also bypassed, so if experience alone were the factor, all agency folks would be selected. What appears to have occurred is that the agency deliberately sought the placement of ALJs they believed would "toe the company line" more often than agency folks who would not, and certainly more often that the unknown non-agency persons with no agency connection. I understand that this is where the train leaves the tracks for some of you. The independence of the ALJ judiciary is paramount under the APA (read the legislative history). That independence is undermined when an agency favors agency experience, a factor not considered by the OPM regulations, in their selection of a candidate. If you cannot or do not accept the independence of the ALJ judiciary as paramount, (and if you do not I believe you do not understand the APA), then you see no problem with SSA's actions in selecting their own. However, if you understand and accept the importance of the independence of the ALJ judiciary, then you see how the influence of SSA "favorites" in the ALJ ranks will tilt the ranks more to the agency and against the claimants. That is exactly the opposite result intended by the APA, and, I would argue, is therefore inconsistent with Congress's intent in the enaction of the APA. Thus, the application of OPM's regulations by SSA to favor agency insiders violates the APA. In other words, the "legal basis" of my challenge (which to date exists only on this board, I have not appealed my rejection) is this: Congress created the APA and the impartial adjudicators (ALJs) with the express purpose that there be an administrative forum for the resolution of agency related issues within the agency, by impartial administrators not subject to agency pressures. OPM devised regulations with the delegation of Congressional authority to carry out the express purposes of the Act, namely to create a register of qualified and impartial adjudicators, ranked in preference by score, for agencies to select to serve as ALJs. When an agency ignores the plain meaning of the law and the regulations to select individuals with connections or SSA experience, rather than one of the top three scorers, it unlawfully contravenes the Congressional intent of the APA, as delegated to OPM for hiring under the APA. The SSA's interpretation of the regulations is unlawful to the extent it permits the agency to hire individuals based on prior or current agency experience, a qualification not contemplated by the APA or OPM regulations, over higher ranked individuals on the existing OPM register of eligibles. To the extent the OPM regulations would permit an agency to do so, the OPM regulations are invalid under the APA, because the regulations permits the introduction of an agency bias into what must be an impartial adjudicatory proceeding. Since we are all attorneys, that argument has some merit, no? What you do not understand is that ODAR always selects one of the top 3 scorers. This post as well as your other recent posts indicate that you simply do not understand how the system works. I'm not going to waste any more time trying to explain it to you except to tell you two things which you fail to recognize: ODAR does not have to hire anyone, no matter what their score; and ODAR can refuse to select anyone without even an explanation unless they are a veteran. The system was set up to allow federal agencies to bypass hiring self centered, egotistical, highly emotional, arrogant individuals with limited analytical abilities and no people skills. If you want to CHANGE the law to require ODAR to always hire the highest scorer, then go for it. But THAT IS NOT THE LAW NOW. |
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