Lets keep having fun with "three strikes"

[valkyrie]

Okay, lets assume that SSA did actually manipulate the selection process because there were say 5-10 candidates that they wanted with scores below 70. Let also assume that this was in violation of OPM regs.

What's the appropriate remedy?

Most of the legal arguments that I have seen regarding such manipulation is that it will stack an agency with an unhealthy number of insiders, compromising the agency's ability to adjudicate fairly. There does not appear to be a legal basis for harm to a particular candidate, or a particular class of candidate. Who was the one harmed by the hiring of the last "insider" judge with a score of say 61? Was it one of the high score candidates? Was it a candidate with a 63 that was harmed? I mean, if 100 ALJs were hired, that means 200 candidates did NOT get hired.

[jagghagg]

...didn't realize you were having "fun."

I would guess that, if indeed it happened, it would depend on the claim - is the claim individual or by the OSC regarding the entire process ?

Preselection is the granting of some illegal advantage, and involves intentional and purposeful manipulation of the system to ensure that one person is favored, and another person is disadvantaged and must be must be accompanied by evidence of a preference not authorized by civil service law, rule, or regulation. 5 U.S.C. § 2302(b)(6). Remedies for an individual action are two-fold: (1) status quo ante: placement of the individual as nearly as possible in the position he would have been in had the prohibited personnel practice not occurred. 5 U.S.C. § 1214(g)(1). Under traditional equitable principles of the Back Pay Act, this includes payment of back pay (including overtime) and interest, as well as restoration of benefits; and (2) reasonable and foreseeable consequential damages. The Act also requires reimbursement for reasonable attorney fees, medical costs incurred, travel expenses and “any other reasonable and foreseeable consequential damages." 5 U.S.C. § 1214(g)(2). If it is found that an employee has suffered a prohibited personnel action under 5 U.S.C. § 2302(b)(8), the head of an agency may grant a preference to that employee to transfer to a position of the same status and tenure pursuant to 5 U.S.C. § 3352.

If it is not an individual right of action brought (and proven), but rather a class action or a claim against the entire process, then I'd venture to guess that SSA/ODAR would be facing an even bigger problem. Are you suggesting that - IF proven - it would be an "too-bad-so-sad" scenerio and the OSC/MSPB would simply let it go ?

[valkyrie]

I'm just talking from a practical standpoint, in what I suppose would be a mix of issues of proof and remedy.

Before we go too far, lets make some assumptions.

1. I have heard nothing to suggest that the percentage of successful candidates with an agency background was significantly higher than the percentage of agency people on the certificate. If you disagree, lets hear it.

2. The description below does not factor in geographic preference, which is obviously a huge variable that would really kill any argument for many candidates that limited themselves.

3. You can't realistically argue against the selection of a "preselected" candidate if he/she has a score around or above the average of all of the selected candidates, based upon #1 above.

4. Most importantly, we have to assume that the agency worked within the rule of three. There is no history of this that I know of, which, based upon how heavily this process has been litigated in the past, would seem incomprehensible, unless the Governor of Illinois was involved in the selection process. Also, as discussed many times before, it is easily possible to manipulate the process without breaking the rule of three.

Problem #1: How do you identify a "preselected" candidate? I think it would only be possible to identify such a candidate, on a theoretical basis, in the very lowest tiers of selected candidates, as these were the ones for which the agency had to "dig." Also, how do you identify a profile for a preselected candidate? ODAR experience? If so, how much? What about SSA OGC? They're a part of SSA, but not ODAR, and they're also Special Assistant US Attorneys. What about references? Is a reference from an ODAR management type an indication of "preselection?" If so, doesn't this create an intolerable situation where a positive reference from a supervisor becomes a liability? At what point does your profile actually improperly disadvantage insiders by requiring a higher burden of proof for why they should have been hired? I don't expect you to answer all of these questions, but I am curious as to how you would define such a profile.

Problem #2: Assuming you can provide a valid "preselected candidate" profile, how can you show how they were provided an advantage other than their actual selection itself, or a disadvantage to other candidates? Lets face it, for every selection, there was one happy ending and two unhappy endings. Where are you if some of the candidates that fit the profile were rejected? Since these were large hirings, the variables are enormous, kind of like a giant pacinko game, in that for every scenario where a preselected candidate was "advantaged," numerous other candidates, both insider and non-insider, were both advantaged and disadvantaged to get to that result.

Problem #3: Based upon #2 above, you have to prove a negative to show a disadvantaged candidate, unless you determine that every non-selected candidate in the agency's final selection result was disadvantaged. I mean, are you going to get into some bizarre mathematics to show that candidate x was not selected in the actual scenario where 6 preselected candidates were selected, but there are also 57 other scenarios where candidate x is not chosen, but neither are any of the preselected candidates? Look at it from a proximate cause argument as well. Can you argue that the only reason that a candidate with a high score was rejected three times over within the rules in selections #1 through #9, was to enable a preselected candidate to be chosen with selection #127? #9 to #127 is one hell of a stretch!

Anyway, I really am curious as to how you can successfully show the process was fixed, unless you:

1. Don't think that the agency has the right to reject candidates

2. Think that the OPM score is the only thing that should count

3. Have some sort of statistically significant evidence that a particular group was somehow over-represented

[Pixie]

If we are going to keep having fun with this topic, then let's have fun and continue to maintain our civility toward one another. A good heated discussion is healthy, but let's remember to mind our manners.

I will say that the level of civility on this board is probably better than any other board with which I have been associated. Keep up the good work. Pixie.

[Pixie]

After reading the last three or four posts on this topic, which I have deleted, I think it is time to move on to something else. This horse is ready for a rest, and this thread is closed. Pix.