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Ann Azdell should have been a shoo-in for a job as an administrative law judge. An experienced attorney with the Social Security Administration, she aced the qualifying exam given by the Office of Personnel Management in 1987. But after waiting nine years for an opening, Azdell suddenly saw her name drop from the top of the list of eligible candidates. Leapfrogging ahead of her were dozens of people, many with much lower raw test scores, who went on to land coveted posts as ALJs. The reason? They were military veterans, and in 1996, the OPM quietly altered the way it scored exams to all but guarantee them first dibs on jobs. Azdell was one of the lucky ones — and eventually landed a job as an ALJ. Nonetheless, she is serving as lead plaintiff in a class action filed by 1,250 aspiring administrative law judges challenging the way the government applies its veterans preference policy. The suit has frozen the hiring process for new administrative law judges, leaving agencies like the Social Security Administration, which employs 1,050 ALJs, hoping for a speedy resolution before attrition grinds the system to a halt. While it has become almost commonplace these days to challenge preferences based on race or gender, this case is different. The plaintiffs stress that they don’t object to veterans preferences per se — the question is, how much of a helping hand is fair? The plaintiffs’ main argument is that the government has gone overboard in implementing the Veterans Preference Act, which calls for giving a five- or 10-point edge in test scores to people who received medals or served in the military during times of conflict. Instead of this relatively modest boost, they argue, the OPM has adopted a convoluted formula for scoring tests that distorts the preference, making it the single most important factor in getting a job. Combined with the fact that the OPM bumps up every qualified test-taker’s score to a passing grade of 70, a veteran who scored 69 on the test but was entitled to five preference points would wind up with a score of 95.7. Such a score a means good shot at a judgeship — a permanent position, from which removal is difficult and rare. “You could not be able to write at all or just be terrible at projecting an image from the bench or have terrible references, but if you’re a veteran, you still get a 96,” says plaintiffs lawyer William Bransford of D.C.’s Shaw, Bransford, Veilleux & Roth, who himself is a veteran of the Vietnam War. Adds co-counsel Debra Roth: “We’ve never said veterans aren’t entitled to a preference. The sole question in this case is what value Congress intended to give veterans’ preference points on competitive exams.” PUTTING THE OPM TO THE TEST Currently, there are a total of 1,340 ALJs — more than half of them veterans — employed by 29 agencies. They are the federal government’s single largest corps of judges, and while the majority work for the Social Security Administration, those at other agencies rule on everything from violations of the Clean Air and Water Acts to federal aviation regulations to international patent disputes. In April of 1999, the plaintiffs won the first round of litigation when Chief Administrative Law Judge Paul Streb of the Merit Systems Protection Board ruled that OPM engaged in an invalid employment practice and ordered the agency to stop using the scoring formula. In September, he proposed a remedy, which included giving some class members priority consideration for new job openings. But the OPM counters that it has the statutory authority and institutional expertise to grade tests however it sees fit. “OPM will not accept this ruling,” said OPM Director Janice Lachance in a Nov. 1999 statement, “which dilutes veterans’ preference, an important employment benefit earned by men and women who have sacrificed part of their most productive years in service to their country.” Lachance declined to be interviewed for this article. The OPM has appealed the case to the full Merit Systems Protection Board — “full” at the moment meaning two members. The woman who would be third, Barbara Sapin, is awaiting Senate confirmation, and plaintiffs lawyers suspect that sitting members Beth Slavet, a Democratic appointee, and Susanne Marshall, a Republican, are deadlocked. Some ALJs following the case predict it will be at least a year before the board issues a decision. The case could then be appealed to U.S. Court of Appeals for the Federal Circuit. As the case languishes before the Protection Board and the year-old hiring freeze drags on, the OPM has suggested that agencies in need of ALJs bring back retirees or try to hire or borrow judges from other agencies. “It’s robbing Peter to pay Paul,” says one ALJ, who asked not to be identified by name. “The cadre of ALJs is getting more senior by the day, and we don’t have a means for replacing them.” He adds that 7 percent of Social Security ALJs retire each year. An SSA spokeswoman says that the agency “anticipates needing to hire ALJs in FY 2001 due to attrition. We’re just hopeful that the freeze imposed by the court will be lifted soon.” Another agency with ALJ vacancies tried to take matters into its own hands. The Department of the Interior needed 10 ALJs to hear Native American probate cases, and in the agency’s FY 2000 appropriations bill, a provision was inserted that would have allowed the secretary of the Interior to appoint anyone he wanted if OPM couldn’t supply candidates. Only after ALJ groups intervened was the language modified to require the appointees to be qualified as judges under the Administrative Procedure Act. So long as the lawsuit continues, such maneuvers are likely to become only more common, says Ronald Bernoski, president of the Association of Administrative Law Judges. “If the agencies, quite frankly, can get around the Administrative Procedure Act, they are not disinclined to do so,” he says. “Most ALJs I know think it would be better to settle the case rather than getting involved in an extensive appellate procedure.” Bernoski’s group backs an indirect solution — legislation slated to be introduced by Rep. George Gekas, R-Pa., who chairs the Judiciary Subcommittee on Commercial and Administrative Law. Gekas’ bill would remove the ALJ program from OPM oversight, and create an independent office overseen by a chief ALJ appointed by the president. “It’s a good piece of legislation, and it’s needed,” says Bernoski, a Milwaukee-based SSA judge. “OPM has just not regulated the system.” Two other members of Congress have also jumped into the fray. Veterans’ Affairs Committee members Bob Filner, D-Calif., and Lane Evans, D-Ill., both wrote letters to the Protection Board, urging them to overturn Streb’s decision. “My chief concern,” wrote Evans on Dec. 9, 1999, “is with the errors of the Chief ALJ’s, due to an obvious lack of understanding about what Congress intended in enacting the Veterans Preference Act. Veterans preference was and is intended, as OPM explains, as an exception authorized by Congress to the merit system. It is, certainly, a reward and a compensation for service in time of war, and for the losses such service inflicts.” The roots of the class action go back to 1996, when a scandal in the OPM’s Office of Administrative Law Judges resulted in adoption of the new scoring formula. The head of the ALJ office was found to have forged exam documents several years earlier — actions that “cast doubt on the entire ALJ evaluation and selection process, and tarnished the reputation of the agency,” wrote the agency’s inspector general. The ALJ exam has four parts: a supplemental qualifications statement, which describes the applicant’s qualifications; a five-hour writing exercise, in which the applicant is given a case to analyze; a panel interview with an ALJ, a private-sector lawyer, and a person from the OPM; and a personal reference inquiry. The OPM’s old method of grading tests, according to Streb’s April 1999 decision, was to add 10.9 points to everyone’s score, and then tack on five or 10 preference points (disabled vets get 10 points) to veterans’ scores. But when the new head of the ALJ office, Sherry Turpenoff, ordered rescoring of the tainted exams, the old formula didn’t work — the scores were too widely distributed and too many people failed. With no opportunity for public comment, the OPM created a complicated new scoring method, the one at issue in the class action. If an applicant met the minimum qualifications — seven years of administrative law and/or trial experience involving formal administrative proceedings, plus two years at the equivalent of GS 13 or one year at GS 14 — the person got a passing grade of 70 just for completing the exam. The actual test score was then multiplied by .3 and added to 70, transmuting the range of possible scores to a 70 to 100 point scale. Veterans points were added last. The result? In this new 30-point universe, those 5 or 10 points went a lot further than they used to. Instead of a 5 percent or 10 percent lift, scores went up 17 percent or 33 percent. “The formula gave preference eligibles a greater advantage in the ALJ examination than Congress intended,” Streb concluded, ruling that legislators meant for the points to be applied to a 100-point scale, not a 30-point scale. Or as plaintiffs lawyer Bransford puts it, “When they came up with this new system, it was like, ‘Whoa! Veterans are being appointed to ALJ positions in phenomenally disproportionate numbers than was previously the case.’” Of the 256 ALJ openings from June 1996 to the end of 1997, 182 of them were filled by veterans. The only reason that civilians, including lead plaintiff Azdell, eventually got hired, says co-counsel Roth, is because the OPM started running out of veterans. In addition, Streb also faulted the OPM’s policy of automatically passing every test-taker. He cites legislative history of 1953 amendments to the Veterans Preference Act that specifically states veterans must get a passing grade on the test before preference points can be added. FIGHTING FOR VETS In court papers, the OPM counters that the formula complied with the Veterans Preference Act, and its interpretation of the act is entitled to deference. “Under the pretense that Congress specifically addressed the minutia of test scoring, [Streb] concluded that OPM violated the Veterans Preference Act, and thus imposed his inexpert and uninformed views on these detailed and technical matters,” wrote General Counsel Suzanne Seiden in the OPM’s petition for review to the Protection Board, dated Nov. 16, 1999. “OPM’s authority to grant preferences to veterans is part and parcel of the broad authority that Congress and the President gave OPM to govern and regulate the competitive service and admission to it.” Besides that, Seiden continued, the Protection Board had no jurisdiction over the matter because the scoring formula is not an employment practice. “It is a procedural mathematical equation,” she wrote. “There are no basic duties and responsibilities of a scoring formula. The scoring formula cannot identify the knowledge, skills, and abilities required to perform the duties and responsibilities.” The judge disagreed, noting that the formula “is a method of measuring candidates’ relative qualifications. … [T]his change has caused preference-eligibles to rank higher on the register.” In his Sept. 23, 1999, decision awarding relief to class members, Streb ordered the OPM to cancel all scores assigned under the formula, and to refrain from using the formula in the future. He also said class members who would have had a good shot at getting hired if the OPM had been using a proper formula are entitled to priority consideration for new ALJ job openings. Removing veterans who got jobs as ALJs as a result of the formula was neither requested nor considered. The judge also proposed a way to re-score the exams to figure out where the class members ought to have been ranked — just use the actual score. He also ruled the people who scored below 70 could not be included. Straightforward as it sounds, the judge’s proposal raised the ire of both plaintiffs, who wanted all class members to get priority consideration, and defendants, who saw it as a direct challenge to OPM authority and an unacceptable precedent. “By unilaterally assigning himself — and in effect the [Protection Board] the complex and onerous task of administering and scoring the ALJ examination (and, by implication, all competitive examinations) the [judge] has virtually extinguished OPM’s authority,” wrote Seiden. If the decision stands, she warns apocalyptically, “It will dramatically alter the landscape of preferences for our nation’s veterans and examinations of future federal employees. … The effects will reverberate throughout the federal sector.”

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