Etelson v. Office of Personnel Management

• Decision Date: 29 June 1982
• Docket Number: No. 81-1259,81-1259
• Citation: 221 U.S. App. D.C. 396,684 F.2d 918
• Parties: Jesse I. ETELSON, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 918

684 F.2d 918

221 U.S.App.D.C. 396

Jesse I. ETELSON, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, et al., Appellees.

No. 81-1259.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 11, 1982.

Decided June 29, 1982.

Appeal from the United States District Court for the District of columbia.

Jesse I. Etelson, pro se.

Patricia J. Kenney, Asst. U. S. Atty., with whom Charles F. C. Ruff, U. S. Atty. at the time the brief was filed, Royce C. Lamberth and Kenneth M. Raisler, Asst. U. S. Attys., Washington, D. C., were on the brief for appellees. Michael J. Ryan, Asst. U. S. Atty., Washington, D. C., also entered an appearance for appellees.

David Colangelo, President, National Labor Relations Board Professional Ass'n, Washington, D. C., entered an appearance on the docket, and filed a brief for amicus curiae, National Labor Relations Board Professional Ass'n.

Before MacKINNON, Circuit Judge, McGOWAN, Senior Circuit Judge, and NORTHROP ^*, United States Senior District Judge for the District of Maryland.

Opinion for the Court filed by Senior Circuit Judge McGOWAN.

Opinion concurring in part and concurring in the result filed by Circuit Judge MacKINNON.

McGOWAN, Senior Circuit Judge:

This appeal from the District Court presents a challenge to the method used by the Office of Personnel Management (OPM), formerly the Civil Service Commission (CSC), in evaluating candidates for administrative law judge (ALJ) positions. Appellant Jesse Etelson brought this action after applying unsuccessfully for certification as eligible for a GS-16 ALJ position. He challenged (1) OPM's system of assigning "quality points" to government lawyers solely on the basis of their grade level while evaluating the actual litigating experience of private attorneys, and (2) certain "factor ratings" assigned to his application, based on confidential evaluations of his abilities. The District Court granted summary judgment for OPM, finding that (a) Mr. Etelson had not raised his first issue during the administrative proceedings, and (b) his second issue lacked merit.

We affirm the District Court's decision that the second issue, the alleged arbitrariness of the "factor ratings," should be resolved in favor of OPM. We determine, however, that Mr. Etelson did not inexcusably fail to raise before the agency the issue of discrimination between private practitioners and government attorneys. We further find that the record before us demonstrates such discrimination, and that nothing in the record could support a conclusion that the discrimination was rational.

Mr. Etelson, however, has not shown that, at this time, he should be adjudged eligible for an ALJ position. He has, however, amply demonstrated that his application should be evaluated on the basis of criteria analogous to those applied to private practitioners. Accordingly, we return the case to the District Court for remand by it to OPM with directions to allow Mr. Etelson to update his application, and thereafter to evaluate his application in a way that does not arbitrarily discriminate between public and private attorneys.

I. Background

In 1970 Etelson, then a GS-13 attorney with the National Labor Relations Board (NLRB), applied to the CSC for certification as eligible to become an ALJ ¹ at a GS-15 grade level or higher. CSC Announcement No. 318 at the time required a government attorney applicant to show that he had experience at "a level of difficulty, complexity, responsibility, and importance characteristic of at least the next lower grade in the Federal service." App. 138-39. ² Etelson had no experience as a GS-14 when he applied, but he argued that his experience had been "characteristic" of that level. He added:

I would submit, furthermore, that judging the level of experience by the GS level at which it was performed would be the equivalent of judging the level of experience of a private attorney by his salary or income. If this method were used in applications evaluations of private attorneys I should point out that in my capacity of attorney in the Appellate Court Branch, the private attorneys representing the other side in my cases, doing work comparable to mine, probably averaged twice my income. If, on the other hand, the level of qualifying experience of a private attorney is judged through evaluation of the intrinsic importance and quality of his work, fairness and parity require that the same be done in the case of a government attorney.

A.R. 432. His application was denied by the Office of Hearing Examiners on April 29, 1971 because he lacked GS-14 experience when he applied. Etelson appealed to the CSC's Board of Appeals and Review, which rejected his appeal on August 17, 1971, with the following explanation:

In addition, with regard to the procedures for determining qualifying experience, it is noted that Announcement No. 318 contains different bases for determining quality of experience, i.e., (1) consideration of the grade level for Federal employees and (2) quality of experience for attorneys engaged in trial practice.

In other words, Announcement No. 318 separately describes what constitutes qualifying experience for Federal employees and what constitutes such experience for those engaged in trial practice. Such discussion regarding Federal employees, as noted above, correlates qualifying experience to grade level.

....

The Board of Appeals and Review concludes that on the basis of its overall review of the application file in relation to the rating schedule established and uniformly applied, the rating of ineligibility was correct.

A.R. 421.

After the CSC amended Announcement No. 318 to provide exceptions to the "next-lower-grade" rule, Etelson updated his application in 1973. He was specifically advised that "(t)he material you previously submitted will be combined with the contents of the new application ... and our determination would be based on the total record thereof." App. 93. The CSC evaluated Etelson's updated application on a 100-point scale consisting of 60 possible "quality points" for the level of an applicant's litigating experience, and 40 possible "factor rating" points for various demonstrated abilities, gauged on the basis of confidential questionnaire responses from people familiar with the applicant's work.

At the time of his updated application, Etelson was a GS-14 legal assistant to an NLRB member. After ascertaining that Etelson had at least four years of litigating experience, the CSC assigned him 55 quality points toward certification as eligible to be a GS-15 ALJ, and 50 quality points toward a GS-16 position. App. 130. Given Etelson's litigating experience, the assignment of these point values was automatic based on his GS-14 level. App. 98, 101. Etelson's application showed, however, that he had at least a year of recent experience litigating in United States Courts of Appeals. This showing would have entitled a private practitioner to 60 points toward both GS-15 and GS-16 eligibility, see infra p. 926, although Etelson could not have known this at the time, see infra p. 924.

Etelson was awarded 28 of a possible 40 factor rating points based on the evaluation by 14 confidential "witnesses" of his abilities. ³ In three of the four groups of factors used by the CSC, he was given points in the "outstanding" range. In Group II, which deals with presentation of cases before courts and agencies, he was rated "better than adequate." Although witnesses expressing an opinion on the Group II factors rated Etelson outstanding by a two-to-one ratio, between five and eight witnesses had no opinion on each of the Group II factors. One witness, whose observations were accorded great weight by the CSC because he or she "observed the applicant at close range for the preceding several years," App. 154, rated Etelson "adequate" on all Group II factors. App. 36.

Etelson's resulting "basic rating" was 78 for a GS-16 position and 83 for a GS-15 position. The CSC's cut-off for eligibility was 80 points, so Etelson was allowed to proceed with the remaining portion of the examination ⁴ but was advised on May 8, 1974 that he was only eligible at the GS-15 level. App. 53. He appealed the denial of GS-16 eligibility to the Board of Appeals and Review, the same body that had denied his first appeal. His letter of appeal stated: "I wish to have the entire record reviewed, but ask for specific consideration of the fact that, as I have been informed, no credit has been given for my professional publications." App. 44. The agency denied the appeal in a written decision containing a lengthy discussion of Etelson's claim that his publications were not adequately considered. It also stated that the appeals board had "given thorough and careful consideration to the entire record," App. 41, and that

the present rating method was implemented on the basis of the examination procedures adopted by the Commission, and ... it is uniformly applied to all candidates for the examination. The Board is of the opinion that, when properly implemented, the procedure being used, while not perfect, is fair and equitable, and is geared to obtain the best candidates for Administrative Law Judges.

App. 42.

Unable to obtain what he sought from the executive branch, Etelson next turned to the legislative. In a July 1975 letter to Senator Jennings Randolph, Etelson renewed his comparison between public and private attorneys:

I cannot see where any interest is served, save the dubious one of relieving the Commission of the burden of making real determinations, by having Administrative Law Judges qualified on the basis of their existing positions instead of their functions and accomplishments. Were this criterion applied to private attorney applicants the inquiry presumably would be limited to the applicant's earnings and, perhaps, whether he or she is a partner.

A.R. 46. This letter was forwarded to Congressman Gilbert Gude and then to...