Curtin v. Office of Personnel Management

• Decision Date: 18 May 1988
• Docket Number: No. 87-3192,87-3192
• Citation: 846 F.2d 1373
• Parties: William F. CURTIN, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1373

846 F.2d 1373

William F. CURTIN, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

No. 87-3192.

United States Court of Appeals, Federal Circuit.

May 18, 1988.

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."

I.

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 (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 unfair, in that verification of an applicant's achievements was an important aspect of the exam's scoring and evaluation and was not performed by OPM examiners, and (f) even if it were an accurate measuring instrument, which it is not, the total examination weight attributable to the SQS portion as compared to the three remainder portions of the examination is disproportionately high and totally lacking in scientific bias [sic: basis] or justification.

The SQS is a behavioral consistency method of unassembled examining. An unassembled examination is one which does not require a written test but relies upon evaluation of education and experience or, in this case, past achievements. The board stated that the principle of behavioral consistency is based on "the well-accepted notion that human behavior tends to be consistent" and that the behavioral consistency method has "been shown to be the most valid predictor of success in a particular endeavor." It also found that the method is "professionally acceptable" and that "there is convincing expert opinion that it is most appropriate in the circumstances here." ²

The board concluded that

the employment practices under attack actually yield fairness and equality in employment selection. It is not at all unusual for employers, when considering applicants for employment, to review an applicant's training and experience in an attempt to predict the applicant's future job performance.... The use of benchmarks to measure past achievements enables the application of considered judgment by the rater because past actual experiences are being exalted over more passive criteria such [as] education.... The employment practices used by OPM have been shown to measure the probability of job success.

II.

The scope of review of decisions of the Merit Systems Protection Board is narrowly defined by statute. The board's decision must be affirmed unless it is found to be:

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(2) obtained without procedures required by law, rule or regulation having been followed; or

(3) unsupported by substantial evidence.

5 U.S.C. Sec. 7703(c) (1982); Covington v. Dep't of Health and Human Servs., 750 F.2d 937, 941 (Fed.Cir.1984).

The employment practices of the Federal Government are required to be "based on a job analysis to identify: (1) The basic duties and responsibilities; (2) The knowledge, skills and abilities required to perform the duties and responsibilities; and (3) The factors that are important in evaluating candidates." 5 C.F.R. Sec. 300.103(a) (1988). And there must be a "rational relationship between performance in the position to be filled ... and the employment practice used," including proof that "the employment practice was professionally developed." 5 C.F.R. Sec. 300.103(b) (1988). The term "employment practices" includes "the development and use of examinations, qualification standards, tests, and other measurement instruments." 5 C.F.R. Sec. 300.101 (1988).

Curtin questions OPM's compliance with these provisions stating that the SQS portion of the examination contains "obvious, significant and substantial laws [sic: flaws] both in its construction and in its implementation." In doing so, however, he concedes that "the SQS exam was based on a job analysis which identifies the basic duties and responsibilities, the knowledges, skills and abilities required to perform the duties or responsibilities, and the factors that are important in evaluating ALJ candidates." He also acknowledges that in "the construction of the SQS exam, 84 critical job tasks of the ALJ job were identified, as well as 18 types of knowledge and ability essential for the performance for the 84 critical job tasks" and that a "panel of 8 law judges then determined the five types of knowledge and ability which should be evaluated by means of the SQS exam." He also does not challenge the board's finding that the SQS exam was professionally developed.

Curtin contends that "[i]dentifying the types of knowledge and ability and the critical job tasks ... is not synonymous with the identification of certain behaviors which are purportedly measured by the SQS portion of the examination." Curtin's position seems to be that although OPM has properly identified the knowledge, skills and abilities required to perform the duties of an ALJ, an objective test, or some test other than the one used, would have been a more valid measure of the ALJ requirements. He says that OPM has not identified what behaviors are...