GovernmentExecutive.com

A Social Security Administration attorney lacks solid evidence that the Office of Personnel Management is biased against administrative law judge candidates from his agency, the Merit Systems Protection Board ruled recently.

Cotty P. O'Leary, a staff attorney at SSA's Office of Hearings and Appeals in Mobile, Ala., alleged that a section of the four-part test OPM administers to applicants for administrative law judge positions discriminates against SSA candidates. The section, called the Supplemental Qualifications Statement, asks applicants to list relevant work experience.

OPM graders arrive at a score for the qualifications statement portion by assessing a candidate's experience in six areas. Graders can refer to a list of "benchmark" examples if they have trouble deciding how to rate an applicant in any of the areas. The qualifications portion score helps OPM decide whether to let the candidate take the other three sections of the exam, and ultimately counts for half of the overall test grade.

O'Leary scored at the low end of the spectrum on the qualifications portion, and OPM consequently put him toward the end of the line to take the rest of the exam. He appealed to the Merit Systems Protection Board, claiming that in general SSA Office of Hearings and Appeals regional attorneys, supervisory attorneys and GS-13 qualified attorneys earn low scores on the qualifications portion of the test because the grading system is biased against them.

In particular, O'Leary said that the test systematically gives less credit for SSA experience than is deserved. The benchmark examples used in grading are biased against the types of experience SSA attorneys are likely to offer, he added. As a result the qualifications portion of the test violates a Code of Federal Regulations requirement that agencies' employment practices "may not discriminate on the basis of a nonmerit factor."

But in a July 26 decision, MSPB sided with OPM. The personnel agency clearly "intended the benchmarks to serve only as illustrations or examples of work the test developers regarded as warranting the assignment of the number of points provided in the corresponding proficiency level definition," the board concluded.

A scoring system that "favors some kinds of experience over other kinds" isn't necessarily biased, MSPB noted. Testimony from an OPM official responsible for designing the test indicated that SSA attorneys do tend to receive low scores on the qualifications portion, particularly in comparison with attorneys possessing strong litigation and trial experience.

The exam is designed to recruit attorneys "who could handle themselves well and who had demonstrated themselves well in a hearing room or in a court," the OPM official told MSPB. Such requirements help ensure sound hiring decisions, which are especially important given that "these are virtually lifetime positions [with] no annual performance rating," the official said.

Historically, SSA legal work often has involved writing standardized paragraphs, with "just minor changes for a particular case," the OPM witness explained. That might factor in to lower scores, the board said, but rightly so. "It is obvious that experience writing relatively standardized documents would not be as valuable as less standardized legal writing experience," MSPB wrote in rejecting O'Leary's appeal.

Further the board found that evidence O'Leary offered indicating SSA employees receive lower scores "regardless of their actual current or prior experience" is "weak, consisting largely of anecdotal evidence that some SSA attorneys with litigation or other favored experience received low [qualifications section] scores despite that experience."

Cotty P. O'Leary v. Office of Personnel Management, Merit Systems Protection Board (AT-300A-98-0635-B-4), July 26, 2004

Compelling Disclosure

The Electronic Privacy Information Center filed a lawsuit last month in federal District Court to compel the Defense Department to publicly release records about a data-mining program.

EPIC is seeking records related to Verity K2 Enterprise, a program that reportedly mines information from databases and the Internet to identify potential foreign terrorists and U.S. citizens connected to terrorist activities.

In May 2004, a report from the Government Accountability Office stated the Defense Intelligence Agency operates the program to analyze intelligence and detect terrorist activities. EPIC submitted a Freedom of Information Act request to DIA on May 21 but has gotten no response, according to the organization.

"To date, the DIA has not responded to plaintiff's request for expedited processing of its FOIA request. Plaintiff has exhausted the applicable administrative remedies," EPIC argued in a legal brief filed with the U.S. District Court for the District of Columbia. "The DIA, a component of the DoD, has wrongfully withheld the requested records from plaintiff."

EPIC asked the court to order DoD to immediately process and disclose the requested records. DIA did not respond for comment on Thursday.