846 F.2d 1373 (Fed. Cir. 1988), 87-3192, Curtin v. Office of Personnel Management

Docket Nº:87-3192.
Citation:846 F.2d 1373
Party Name:William F. CURTIN, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.
Case Date:May 18, 1988
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

Page 1373

846 F.2d 1373 (Fed. Cir. 1988)

William F. CURTIN, Petitioner,



No. 87-3192.

United States Court of Appeals, Federal Circuit

May 18, 1988

Page 1374

Dennis L. Friedman, Philadelphia, Pa., for petitioner.

Robert A. Reutershan, Asst. Director, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for respondent. With him on the brief were Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director and Larry R. Steffes.

Before MARKEY, Chief Judge, FRIEDMAN and ARCHER, Circuit Judges.

ARCHER, Circuit Judge.

William F. Curtin petitions for review of the decision of the Merit Systems Protection Board (MSPB or board), Docket No. PH300A8610103, upholding the employment practices of the Office of Personnel Management (OPM) related to the examination for the position of administrative law judge (ALJ) in the federal government. Curtin challenges the examination under 5 C.F.R. Sec. 300.104(a) which provides that "[a] candidate who believes that an employment practice which was applied to him or her by the Office of Personnel Management violates a basic requirement in Sec. 300.103 is entitled to appeal to the ... Board."


Curtin challenges the employment practices used by OPM to select persons for the position of ALJ, alleging that the ALJ examination violates the policies set forth in "Subpart A--Employment Practices" of 5 C.F.R. Part 300 (1988). These policies and requirements are contained in sections 300.102 and 300.103, which provide in relevant part:

Sec. 300.102 Policy.

This subpart is directed to implementation of the policy that competitive employment practices:

(a) Be practical in character and as far as possible relate to matters that fairly test the relative capacity and fitness of candidates for the jobs to be filled;

(b) Result in selection from among the best qualified candidates;

(c) Be developed and used without discrimination because of race, color, religion, sex, age, national origin, partisan political affiliation or other non-merit grounds; and

(d) Insure to the candidate opportunity for appeal or administrative review, as appropriate.

Sec. 300.103 Basic requirements.

(a) Job analysis. Each employment practice of the Federal Government generally, and of individual agencies, shall be based on a job analysis to identify:

(1) The basic duties and responsibilities;

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(2) The knowledges, skills, and abilities required to perform the duties and responsibilities; and

(3) The factors that are important in evaluating candidates....

(b) Relevance. (1) There shall be a rational relationship between performance in the position to be filled (or in the target position in the case of an entry position) and the employment practice used. The demonstration of rational relationship shall include a showing that the employment practice was professionally developed.

OPM is responsible for the recruitment and examination of ALJs. To carry out this activity, OPM has constructed and implemented a multi-step examination process. To establish minimum qualifications, applicants must demonstrate initially that they have had seven full years of administrative law or litigation experience at the federal, state or local level, part of which must be at grade or responsibility levels just below the ALJ position sought.

Applicants who possess the minimum qualifications are permitted to continue with the next portion of the examination in which applicants are ranked based on achievements described in a Supplemental Qualification Statement (SQS). According to the board, the SQS measures "achievements in five specific areas: (1) knowledge of rules of evidence and trial procedure; (2) analytical ability; (3) decision-making ability; (4) oral communications ability and judicial temperament; and (5) writing ability." Moreover, it noted that "applicants are advised to describe qualifying personal experience which will demonstrate they possess the knowledge, skills and abilities which OPM has declared essential for the successful performance of ALJ duties." Based on a rating guide, the applicants' achievements in the five areas are scored on a scale of 1 (unacceptable) to 5 (outstanding) and aggregated to establish a basic rating for successful applicants who achieve the minimum acceptable score.

Based on the SQS ratings and anticipated hiring needs, applicants are invited to participate in the final three-step examination process, consisting of a written demonstration, a personal interview, and a personal reference inquiry. Curtin concedes that this final rating process is "professionally and scientifically developed" and "content valid" as required by 5 C.F.R. Part 300. 1

In this appeal, Curtin challenges only the SQS portion of the examination. He contends that

the SQS portion (a) doesn't measure what it purports to measure, (b) is not an accurate measuring instrument in that it cannot accurately measure an applicant's knowledge and abilities in the areas of knowledge of rules of evidence and trial procedures, analytical ability, decision making ability, oral communication ability, judicial temperament and writing ability, (c) contains a bias in favor of applicants who have more varied job experiences than those who do not, (d) is unfair, in that certain applicants are self-limited by positions they previously held and cannot achieve the full score available, (e) is...

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