GovernmentExecutive.com

The procedure that the Office of Personnel Management uses to evaluate candidates for administrative judge positions is lawful, despite criticism that the system favors veterans, according to a recent decision by the Court of Appeals for the Federal Circuit.

OPM, which administers tests to evaluate candidates for administrative law positions, changed its exam in 1996. Before 1996, OPM gave the test only to lawyers who met minimum requirements for experience. Applicants who met these requirements were assigned a score based on their relevant legal experience, a criterion that was not required. The test also included a written section and a panel interview, along with a personal reference inquiry.

Applicants were then assigned a score between 0 and 100, with 70 required to pass. Disabled veterans who passed the test received a 10-point boost on their score and other veterans received five extra points.

In 1996, OPM changed the test so that all applicants meeting the minimum experience requirements automatically receive a base score of 70 and passed the test. Applicants are then assigned a score on the actual examination ranging from 1 to 30. The overall score is used to rank candidates.

Veterans received the same point preferences in the new system, but since every veteran with the required work experience "passed," veterans' scores on the examination portion carried even more weight than before.

A group of nonveterans challenged the new scoring system before the Merit Systems Protection Board in 1997, claiming that the system violates Title 5, Section 300.103 of the Code of Federal Regulations, which says that OPM must follow nondiscriminatory hiring procedures. Under that chapter, OPM must design civil servant position qualification exams with questions that are "professional" and "rationally related to the duties of the position."

In addition, the nonveterans claimed that the 1996 scoring system grants veterans a bigger advantage than Congress had intended to give them under the 1944 Veteran's Preference Act.

MSPB decided that OPM's 1996 qualification test violated the Veterans Preference Act because it increased the effective weight of veterans' scores and was not based on how an applicant did on the "job analysis" part of the exam. The board also said that it violated federal regulations because OPM had failed to show a "rational relationship" between the scoring formula and performance on the actual examination.

In a Feb. 20 decision, the Court of Appeals ruled that the new scoring system does not violate federal regulations because the OPM director holds the authority to grant a variation from "strict adherence" to the federal regulations and that the scoring system therefore did not violate these regulations. The appeals court ruled that MSPB did not have the authority to make a decision about whether the new scoring procedure violates the Veterans Preference Act.

Murray M. Meeker, F. William Roggeveen, Jay E. Levine, William S. Colwell and Kay Coles James v. Merit Systems Protection Board, Ann S. Azdell and Donald Fishman, U.S. Court of Appeals for the Federal Circuit (01-3057, 02-3042), Feb. 20, 2003

Survivor Benefits

The former spouse of a federal employee is eligible to receive a government pension, even though the civil servant did not sign the right papers before he died, a federal appeals court ruled.

Paul Hairston retired from the Long Beach Naval Shipyard in April 1980 after 35 years of service there. On his Civil Service Retirement System benefits application, he granted his wife Ruth a full survivor annuity. Three years later, his wife filed for divorce, ending 41 years of marriage. The divorce settlement, reached in 1987, granted Ruth Hairston half of her former husband's civil service pension each month.

Under the 1985 Civil Service Retirement Spouse Equity Act, a divorced spouse can receive a survivor annuity if the benefit recipient elects to provide this annuity within two years of the divorce. The act requires the Office of Personnel Management to send retirees annual notices that they are entitled to change their survivor annuity selections if they are divorced.

Hairston received these annual notices from OPM beginning in 1986, four months before his divorce settlement was finalized and continued receiving the notices until 1994, but did not respond to them.

But after his settlement, OPM also notified Hairston that he could receive benefits at the full level without making any deductions for the survivor annuity, and he did not request the full benefits. He never informed OPM that he had any problems with continuing to receive reduced benefits.

In addition, the lawyer representing Hairston's former wife sent a formal request to OPM in 1987 asking that her survivor annuity benefits continue despite the divorce. OPM responded saying that it would honor her request, and did not mention that Hairston needed to "affirmatively elect" to continue giving his former wife payments before the agreement would be official.

Ruth Hairston continued to receive her half of the benefits until 1995, when her former husband died. At this point, OPM determined that she was not eligible for any survivor benefits because Hairston had never re-designated her as a beneficiary after the divorce.

Ruth Hairston filed a complaint with the Merit Systems Protection Board in 1995, and the board upheld OPM's decision to deny her benefits, based on the fact that her former husband had never opted to give her the benefits following the divorce.

On Jan. 29, the Court of Appeals for the Federal Circuit reversed the board's decision, reasoning that there was "sufficient evidence" to prove that Paul Hairston had intended to provide Ruth with a former spouse survivor annuity and that since OPM first notified Paul about the option to give Ruth former spouse benefits in 1986 - before the couple's divorce settlement was finalized - the notice was "ineffective."

Ruth T. Hairston v. Office of Personnel Management, U.S. Court of Appeals for the Federal Circuit (02-3093), Jan. 29