Saturday, December 20, 2014


5 U.S.C. § 3326: appointments of retired members of the armed forces to positions in the dept.s of Defense

(a) For the purpose of this section, “member” and “Secretary concerned” have the meanings
given them by section 101 of title 37.

(b) A retired member of the armed forces may be appointed to a position in the civil service
in or under the Department of Defense (including a nonappropriated fund instrumentality
under the jurisdiction of the armed forces) during the period of 180 days immediately after his
retirement only if—

(1) the proposed appointment is authorized by the Secretary concerned or his designee
for the purpose, and, if the position is in the competitive service, after approval by the
Office of Personnel Management;

(2) the minimum rate of basic pay for the position has been increased under section 5305
of this title; or

(3) a state of national emergency exists.

(c) A request by appropriate authority for the authorization, or the authorization and approval,
as the case may be, required by subsection (b)(1) of this section shall be accompanied by a
statement which shows the actions taken to assure that—

(1) full consideration, in accordance with placement and promotion procedures of the
department concerned, was given to eligible career employees;

(2) when selection is by other than certification from an established civil service register,
the vacancy has been publicized to give interested candidates an opportunity to apply;

(3) qualification requirements for the position have not been written in a manner designed
to give advantage to the retired member; and

(4) the position has not been held open pending the retirement of the retired member.

what is "agency" in veteran preference, Federal government

May 9, 2014, Dept. of Defense's response to MSPB


























http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=1072040&version=1076346&application=ACROBAT

angry oral disputes about organs or policies/laws?

angry male A yelling: you don't have guts to get it done
angry male B yelling: yes, I don't have guts
angry A and B yelling: what is C's opinions?
female C whispering: As far as I know, G just had her kidneys removed....................

Friday, December 19, 2014

dump & oral defense

during oral defense, 5 male committee members plus her

male committee member K: I thought M is her mentor. How come she has another advisor?
male committee member M: she dumped me..................   :(   :(  :(  :(  :(
female C: yes, that is true, I understand it hurts........

how to lose a research assistant job quickly?

M: Here is a research project. You will get paid hourly, Your work is to observe how surgical teams work, the structure and dynamic, during cardiovascular surgery.
C: from the beginning to the end?
M: yes
C: I am afraid that I can't accomplish the work.
M: why?
C: If I faint during the surgery when I see the whole process......then.............
M: I am sorry to let you know that you are fired.
C: It is unfair. It is a discrimination against my physical disability.
M: what? why?
C: It is a discrimination against my lack of nerve.
M:?????

Preserving the Integrity of the Federal Merit Systems:Understanding and Addressing Perceptions of Favoritism

2013 December
http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=945850&version=949626&application=ACROBAT

hopeless books


pug


Ursula K. Le Guin on Aging and What Beauty Really Means

http://www.brainpickings.org/2014/10/21/ursula-le-guin-dogs-cats-dancers-beauty/

Ursula K. Le Guin on Being a Man

http://www.brainpickings.org/2014/10/17/ursula-k-le-guin-gender/


The Best Cuban Restaurants in Los Angeles

http://www.kcet.org/living/food/the-nosh/best-cuban-restaurants-in-los-angeles.html?utm_source=facebook&utm_medium=social&utm_content=cuban-restaurants&utm_campaign=kcet

The Best New Restaurants In Los Angeles In 2014

http://laist.com/2014/12/17/the_best_new_restaurants_of_2014.php


Thursday, December 18, 2014

reading online


PXT-864 
Alzheimer's disease

SES, OPM

OPM must approve an individual’s entry into the SES, so there will be some external assurances
that such an individual is qualified for employment at the executive level.

All SES candidates must have their qualifications certified by a Qualifications Review Board (QRB) before being appointed as career members of the SES.
 www.opm.gov/policy-data-oversight/senior-executive-service/selection-process/#url=Qualifications-Review-Board.

However, because such recruitment actions are managed by the agency, opportunities for perceived or actual manipulation of the recruitment process may remain.
 U.S. Office of Personnel Management, Guide to Senior Executive Service Qualifications, at 6, available at http://www.opm.gov/policy-data-oversight/senior-executive-service/reference-materials/guidetosesquals_2012.pdf
(explaining that the hiring agency chooses the selection method, advertises the position, evaluates each candidate’s qualification, and selects a candidate. The agency then “forwards the candidate’s application” to OPM for consideration by an OPM-administered QRB).

http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=1072040&version=1076346&application=ACROBAT

Wednesday, December 17, 2014


PXT-3003
mini-doses of three approved drugs - baclofen, naltrexone and sorbitol

Social Entrepreneurship: The Case for Definition

http://www.ssireview.org/articles/entry/social_entrepreneurship_the_case_for_definition

Ten Nonprofit Funding Models

http://www.ssireview.org/articles/entry/ten_nonprofit_funding_models

For-profit executives use business models—such as "low-cost provider" or "the razor and the razor blade"—as a shorthand way to describe and understand the way companies are built and sustained. Nonprofit executives, to their detriment, are not as explicit about their funding models and have not had an equivalent lexicon—until now.

Money is a constant topic of conversation among nonprofit leaders: How much do we need? Where can we find it? Why isn’t there more of it? In tough economic times, these types of questions become more frequent and pressing. Unfortunately, the answers are not readily available. That’s becausenonprofit leaders are much more sophisticated about creating programs than they are about funding their organizations, and philanthropists often struggle to understand the impact (and limitations) of their donations.
There are consequences to this financial fuzziness. When nonprofits and funding sources are not well matched, money doesn’t flow to the areas where it will do the greatest good. Too often, the result is that promising programs are cut, curtailed, or never launched. And when dollars become tight, a chaoticfundraising scramble is all the more likely to ensue.1
In the for-profit world, by contrast, there is a much higher degree of clarity on financial issues. This is particularly true when it comes to understanding how different businesses operate, which can be encapsulated in a set of principles known as business models. Although there is no definitive list of corporate business models,2 there is enough agreement about what they mean that investors and executives alike can engage in sophisticated conversations about any given company’s strategy. When a person says that a company is a “low-cost provider” or a “fast follower,” the main outlines of how that company operates are pretty clear. Similarly, stating that a company is using “the razor and the razor blade” model describes a type of ongoing customer relationship that applies far beyond shaving products.
The value of such shorthand is that it allows business leaders to articulate quickly and clearly how they will succeed in the marketplace, and it allows investors to quiz executives more easily about how they intend to make money. This back-and-forth increases the odds that businesses will succeed, investors will make money, and everyone will learn more from their experiences.
The nonprofit world rarely engages in equally clear and succinct conversations about an organization’s long- term funding strategy. That is because the different types of funding that fuel nonprofits have never been clearly defined.3 More than a poverty of language, this represents—and results in—a poverty of understanding and clear thinking.
Through our research, we have identified 10 nonprofit models that are commonly used by the largest nonprofits in the United States. (See “Funding Models” on page 37.) Our intent is not to prescribe a single approach for a given nonprofit to pursue. Instead, we hope to help nonprofit leaders articulate more clearly the models that they believe could support the growth of their organizations, and use that insight to examine the potential and constraints associated with those models.
BENEFICIARIES ARE NOT CUSTOMERS One reason why the nonprofit sector has not developed its own lexicon of funding models is that running a nonprofit is generally more complicated than running a comparable size for-profit business. When a for-profit business finds a way to create value for a customer, it has generally found its source of revenue; the customer pays for the value. With rare exceptions, that is not true in the nonprofit sector. When a nonprofit finds a way to create value for a beneficiary (for example, integrating a prisoner back into society or saving an endangered species), it has not identified its economic engine. That is a separate step.
Duke University business professor J. Gregory Dees, in his work on social entrepreneurship, describes the need to understand both the donor value proposition and the recipient value proposition. Clara Miller, CEO of the Nonprofit Finance Fund, who has also written wonderfully about this dilemma, talks about all nonprofits being in two “businesses”—one related to their program activities and the other related to raising charitable “subsidies.”
As a result of this distinction between beneficiary and funder, the critical aspects (and accompanying vocabulary) of nonprofit funding models need to be understood separately from those of the for-profit world. It is also why we use the term funding model rather than business model to describe the framework. A business model incorporates choices about the cost structure and value proposition to the beneficiary. A funding model, however, focuses only on the funding, not on the programs and services offered to the beneficiary.
All nonprofit executives can use our 10 funding models to improve their fundraising and management, but the usefulness of these models becomes particularly important as nonprofits get bigger. There are many ways to raise as much as $1 million a year, some of which can be improvised during the process. Once organizations try to raise $25 million to $50 million or more each year, however, there are fewer possible paths. The number of potential decision makers who can authorize spending such large amounts of money decreases (or you need to get them en masse), and the factors that motivate these decision makers to say “yes” are more established (or cannot be as thoroughly influenced by one charismatic nonprofit leader).
Our research of large nonprofi ts confi rms this. In a recent study, we identified 144 nonprofit organizations—created since 1970—that had grown to $50 million a year or more in size.4 We found that each of these organizations grew large by pursuing specific sources of funding—often concentrated in one particular source of funds—that were a good match to support their particular types of work. Each had also built up highly professional internal fundraising capabilities targeted at those sources. In other words, each of the largest nonprofits had a well-developed funding model.
The larger the amount of funding needed, the more important it is to follow preexisting funding markets where there are particular decision makers with established motivations. Large groups of individual donors, for example, are already joined by common concerns about various issues, such as breast cancer research. And major government funding pools, to cite another example, already have specific objectives, such as foster care. Although a nonprofit that needs a few million dollars annually may convince a handful of foundations or wealthy individuals to support an issue that they had not previously prioritized, a nonprofit trying to raise tens of millions of dollars per year can rarely do so.
This is not to say that funding markets are static; they aren’t. The first Earth Day in 1970 coincided with a major expansion in giving to environmental causes; the Ethiopian famine of 1984-85 led to a dramatic increase in support for international relief; and awareness of the U.S. educational crisis in the late 1980s laid the groundwork for charter school funding. Changes cannot be foreseen, however, and, hence, can not be depended on as a source of funding. In addition, these changes were the product or culmination of complex national and international events, not the result of a single nonprofit’s work.
Earl Martin Phalen, cofounder of BELL, an after-school and summer educational organization, captured the benefits of such intentionality well, summing up his experience for a group of nonprofit leaders in 2007. “Our fundraising strategy used to be ‘let’s raise more money this year than last’ and we always were unsure of where we’d be. Then we got serious in thinking about our model and identified an ongoing type of government funding that was a good match for our work. While it required some program changes to work, we now predictably cover 70 percent of our costs in any locality through this approach.”
TEN FUNDING MODELS Devising a framework for nonprofit funding presents challenges. To be useful, the models cannot be too general or too specific. For example, a community health clinic serving patients covered by Medicaid and a nonprofit doing development work supported by the U.S. Agency for International Development are both government funded, yet the type of funding they get, and the decision makers controlling the funding, are very different. Lumping the two together in the same model would not be useful. At the same time, designating a separate model for nonprofits that receive Title I SES funds, for example, is too narrow to be useful.
In the end, we settled on three parameters to define our funding models—the source of funds, the types of decision makers, and the motivations of the decision makers. (See “Identifying the Models” below.) This allowed us to identify 10 distinct funding models at level that is broadly relevant yet defi nes real choices.
It is interesting to note that there were several funding models we thought we might fi nd, but didn’t. One possible model was nonprofits supported by earned-income ventures distinct and separate from their core mission-related activities. Another possible model was nonprofits that operated on a strictly fee-for-service model in either a business-tobusiness or direct-to-consumer fashion, without important supplementary fundraising (from members or prior beneficiaries) or underlying government support. Although there are some nonprofits supporting themselves with such funding approaches, they were not present among the large nonprofits that we studied. It is our belief that these types of approaches do not lend themselves to large-scale, sustained nonprofit advantage over for-profit entities.
What follows are descriptions of the 10 funding models, along with profiles of representative nonprofits for each model. The models are ordered by the dominant type of funder. The first three models (Heartfelt Connector, Beneficiary Builder, and Member Motivator) are funded largely by many individual donations. The next model (Big Bettor) is funded largely by a single person or by a few individuals or foundations. The next three models (Public Provider, Policy Innovator, and Beneficiary Broker) are funded largely by the government. The next model (Resource Recycler) is supported largely by corporate funding. And the last two models (Market Maker and Local Nationalizer) have a mix of funders.
  1. HEARTFELT CONNECTOR Some nonprofits, such as the Make-a-Wish Foundation, grow large by focusing on causes that resonate with the existing concerns of large numbers of people at all income levels, and by creating a structured way for these people to connect where none had previously existed. Nonprofits that take this approach use a funding model we call theHeartfelt Connector. Some of the more popular causes are in the environmental, international, and medical research areas. They are different from nonprofits that tap individuals with particular religious beliefs, political leanings, or sporting interests, who come together to form organizations in the course of expressing their interests. Heartfelt Connectors often try to build explicit connections between volunteers through special fundraising events. The Susan G. Komen Foundation is an example of a nonprofit that uses the Heartfelt Connector model. Established in 1982, the Komen Foundation works through a network of 125 affiliates to eradicate breast cancer as a life-threatening disease by funding research grants, by supporting education, screening, and treatment projects in communities around the world, and by educating women about the importance of early detection. The foundation’s mission has a deep resonance with many women, even though its work may never benefi t them directly. Between 1997 and 2007 the Komen Foundation’s annual fundraising grew from $47 million to $334 million. The average individual donation is small, about $33, but the foundation’s fundraising efforts have been driven by its ability to reach out to an ever-widening base of support. Its major fundraising vehicle is the Susan G. Komen Race for the Cure. The foundation and its affiliates hold about 120 running races each year that draw more than 1 million participants. These events not only allow individuals to give money; they also engage volunteers to put together teams, solicit funds, and participate in the race day experience. Nonprofit leaders considering the Heartfelt Connector funding model should ask themselves the following questions:
    • Have a large cross section of people already shown that they will fund causes in this domain?
    • Can we communicate what is compelling about our nonprofit in a simple and concise way?
    • Does a natural avenue exist to attract and involve large numbers of volunteers?
    • Do we have, or can we develop, the in-house capabilities to attempt broad outreach in even one geographic area?

  2. BENEFICIARY BUILDER Some nonprofits, such as the Cleveland Clinic, are reimbursed for services that they provide to specific individuals, but rely on people who have benefited in the past from these services for additional donations. We call the funding model that these organizations use the Beneficiary Builder. Two of the best examples of Beneficiary Builders are hospitals and universities. Generally, the vast majority of these nonprofits’ funding comes from fees that beneficiaries pay for the services the nonprofits provide. But the total cost of delivering the benefit is not covered by the fees. As a result, the nonprofit tries to build long-term relationships with people who have benefited from the service to provide supplemental support, hence the name Beneficiary Builder. Although these donations are often small relative to fees (averaging approximately 5 percent at hospitals and 30 percent at private universities), these funds are critical sources of income for major projects such as building, research, and endowment funds. Donors are often motivated to give money because they believe that the benefit they received changed their life. Organizations using a Beneficiary Builder model tend to obtain the majority of their charitable support from major gifts. Princeton University is an example of a nonprofit that uses the Beneficiary Builder model. The university has become very adept at tapping alumni for donations, boasting the highest alumni-giving rate among national universities—59.2 percent. In 2008, more than 33,000 undergraduate alumni donated $43.6 million to their alma mater. As a result of the school’s fundraising prowess, more than 50 percent of Princeton’s operating budget is paid for by donations and earnings from its endowment. Nonprofit leaders considering the Beneficiary Builder funding model should ask themselves the following questions:
    • Does our mission create an individual benefit that is also perceived as an important social good?
    • Do individuals develop a deep loyalty to the organization in the course of receiving their individual benefit?
    • Do we have the infrastructure to reach out to beneficiaries in a scalable fashion?
  3. MEMBER MOTIVATOR There are some nonprofits, such as Saddleback Church, that rely on individual donations and use a funding model we call Member Motivator. These individuals (who are members of the nonprofit) donate money because the issue is integral to their everyday life and is something from which they draw a collective benefit. Nonprofits using the Member Motivator funding model do not create the rationale for group activity, but instead connect with members (and donors) by offering or supporting the activities that they already seek. These organizations are often involved in religion, the environment, or arts, culture, and humanities. The National Wild Turkey Federation (NWTF), which protects and expands wild turkey habitats and promotes wild turkey hunting, is an example of a Member Motivator. It attracts turkey hunters, who collectively benefit from NWTF’s work and therefore become loyal members and fundraisers. Local NWTF members host more than 2,000 fundraising banquets each year, raising about 80 percent of the organization’s annual revenues. These banquets provide multiple donation opportunities: entry tickets (which cost about $50 each and include an annual membership); merchandise purchase (averaging more than $100 per attendee); and raffle tickets (generating about $16,000 per banquet). NWTF’s national headquarters supplies raffle prizes and merchandise to sell at these banquets. Each banquet clears an average of $10,000 after expenses. A significant portion of the money raised is dedicated to land and turkey conservation in the community from which it was donated. Nonprofit leaders considering the Member Motivator funding model should ask themselves the following questions:
    • Will our members feel that the actions of the organization are directly benefiting them, even if the benefit is shared collectively?
    • Do we have the ability to involve and manage our members in fundraising activities?
    • Can we commit to staying in tune with, and faithful to, our core membership, even if it means turning down funding opportunities and not pursuing activities that fail to resonate with our members?
  4. BIG BETTOR There are a few nonprofits, such as the Stanley Medical Research Institute, that rely on major grants from a few individuals or foundations to fund their operations. We call their funding model the Big Bettor. Often, the primary donor is also a founder, who wants to tackle an issue that is deeply personal to him or her. Although Big Bettors often launch with significant financial backing already secured, allowing them to grow large quickly, there are other instances when an existing organization gets the support of a major donor who decides to fund a new and important approach to solving a problem. The nonprofits we identified as Big Bettors are focused either on medical research or on environmental issues. The primary reasons that Big Bettors can attract sizable donations are: the problem being addressed can potentially be solved with a huge influx of money (for example, a vast sum can launch a research institute to cure a specific illness); or the organization is using a unique and compelling approach to solve the problem. Conservation International (CI), whose mission is to conserve the Earth’s biodiversity and to demonstrate that humans can live harmoniously with nature, is an example of a nonprofit that uses the Big Bettor funding model. CI’s ability to identify locations around the world where protecting an area of land can have a significant effect on preserving global biodiversity helps it attract donors who are willing to contribute large amounts of money so that they can have an important and lasting impact on protecting the Earth. The majority of CI’s contributions come from a few large donors. Nonprofit leaders considering the Big Bettor funding model should ask themselves the following questions:
    • Can we create a tangible and lasting solution to a major problem in a foreseeable time frame?
    • Can we clearly articulate how we will use large-scale funding to achieve our goals?
    • Are any of the wealthiest individuals or foundations interested in our issue and approach?
  5. PUBLIC PROVIDER Many nonprofits, such as the Success for All Foundation, work with government agencies to provide essential social services, such as housing, human services, and education, for which the government has previously defined and allocated funding. Nonprofits that provide these services use a funding model we call Public Provider. In some cases, the government outsources the service delivery function but establishes specific requirements for nonprofits to receive funding, such as reimbursement formulae or a request for proposal (RFP) process. As Public Providers grow, they often seek other funding sources to augment their funding base. TMC (formerly the Texas Migrant Council), which supports children and families in migrant and immigrant communities, is an example of an organization that uses the Public Provider funding model. At its inception in 1971, TMC tapped into the federal government’s Head Start program to fund its initial work, helping children prepare for school by focusing on the bilingual and bicultural needs of families. As TMC grew, its leaders sought to reduce its dependence on this one funding source and to identify other government funds. TMC now receives funding from a variety of federal, state, and local government sources. TMC has expanded from Texas into seven additional states and is offering new programs, such as literacy, prenatal care, and consumer education. Nonprofit leaders considering the Public Provider funding model should ask themselves the following questions:
    • Is our organization a natural match with one or more large, preexisting government programs?
    • Can we demonstrate that our organization will do a better job than our competitors?
    • Are we willing to take the time to secure contract renewals on a regular basis?
  6. POLICY INNOVATOR Some nonprofits, such as Youth Villages, rely on government money and use a funding model we call Policy Innovator. These nonprofits have developed novel methods to address social issues that are not clearly compatible with existing government funding programs. They have convinced government funders to support these alternate methods, usually by presenting their solutions as more effective and less expensive than existing programs. (By contrast, Public Providers tap into existing government programs to provide funds for the services they offer.) An example of a Policy Innovator is HELP USA. This nonprofit provides transitional housing for the homeless and develops affordable permanent housing for low-income families. Andrew Cuomo (son of former New York governor Mario Cuomo) founded HELP USA in 1986 as an alternative to New York’s approach of paying hotels to house the homeless in so-called “welfare hotels.” HELP USA’s innovative approach to the housing crisis came about in an era when homelessness was a prominent public issue and government funders were willing to try a novel approach. Cuomo gained the initial support of government decision makers by positioning his solution as both more effective and less costly, which was critical during New York’s fiscal crisis. In 2007, HELP USA’s revenues were $60 million, almost 80 percent of which came from government sources, half federal and half state and local. The organization was operating in New York City, Philadelphia, Las Vegas, Houston, and Buffalo, N.Y. Nonprofit leaders considering the Policy Innovator funding model should ask themselves the following questions:
    • Do we provide an innovative approach that surpasses the status quo (in impact and cost) and is compelling enough to attract government funders, which tend to gravitate toward traditional solutions?
    • Can we provide government funders with evidence that our program works?
    • Are we willing and able to cultivate strong relationships with government decision makers who will advocate change?
    • At this time are there sufficient pressures on government to overturn the status quo?

  7. BENEFICIARY BROKERSome nonprofits, such as the Iowa Student Loan Liquidity Corporation, compete with one another to provide government-funded or backed services to beneficiaries. Nonprofits that do this use what we call a Beneficiary Broker funding model. Among the areas where Beneficiary Brokers compete are housing, employment services, health care, and student loans. What distinguishes these nonprofits from other government-funded programs is that the beneficiaries are free to choose the nonprofit from which they will get the service. The Metropolitan Boston Housing Partnership (MBHP), a regional nonprofit administering state and federal rental assistance voucher programs in 30 Massachusetts communities, is an example of a nonprofit that uses the Beneficiary Broker funding model. Since launching the organization in 1991, MBHP has developed a reputation as a reliable provider of housing vouchers for families in need. MBHP is the largest provider of housing vouchers in the Boston area, connecting more than 7,500 families to housing at any one time. MBHP also provides related services, such as education and homelessness prevention programs. More than 90 percent of MBHP’s revenue comes from the small administrative fees the state provides as part of the voucher program. The remaining funds come from corporations and foundations. Nonprofit leaders considering the Beneficiary Broker funding model should ask themselves the following questions:
    • Can we demonstrate to the government our superior ability to connect benefit or voucher holders with benefits, such as successful placement rates and customer satisfaction feedback?
    • Can we develop supplemental services that maximize the value of the benefit?
    • Can we master the government regulations and requirements needed to be a provider of these benefits?
    • Can we fi nd ways to raise money to supplement the fees we receive from the benefits program?

  8. RESOURCE RECYCLER Some nonprofits, such as AmeriCares Foundation, have grown large by collecting in-kind donations from corporations and individuals, and then distributing these donated goods to needy recipients who could not have purchased them on the market. Nonprofits that operate these types of programs use a funding model we call Resource Recycler. Businesses are willing to donate goods because they would otherwise go to waste (for example, foods with an expiration date), or because the marginal cost of making the goods is low and they will not be distributed in markets that would compete with the producer (for example, medications in developing countries). In kind donations typically account for the majority of revenues, but Resource Recyclers must raise additional funds to support their operating costs. The vast majority of Resource Recyclers are involved in food, agriculture, medical, and nutrition programs and often are internationally focused. The Greater Boston Food Bank (TGBFB), the largest hunger relief organization in New England, is an example of a nonprofit that uses the Resource Recycler funding model. This organization distributes nearly 30 million pounds of food annually to more than 600 local organizations, including food pantries, soup kitchens, day care centers, senior centers, and homeless shelters. TGBFB acquires goods in many ways. The dominant sources of goods are retailers and manufacturers. It also receives surplus food from restaurants and hotels. In 2006, corporate in-kind support accounted for 52 percent of TGBFB’s revenues. Federal and state government programs provide TGBFB with in-kind goods and money, accounting for 23 percent of its annual budget, which TGBFB uses to purchase food for distribution. Cash donations from individuals make up the remaining 25 percent of revenues, covering overhead and capital improvements. Nonprofit leaders considering the Resource Recycler funding model should ask themselves the following questions:
    • Are the products that we distribute likely to be donated on an ongoing basis?
    • Can we develop the expertise to stay abreast of trends in the industries that donate products to us so that we can prepare for fluctuations in donations?
    • Do we have a strategy for attracting the cash we’ll need to fund operations and overhead?

  9. MARKET MAKER Some nonprofits, such as the Trust for Public Land, provide a service that straddles an altruistic donor and a pay or motivated by market forces. Even though there is money available to pay for the service, it would be unseemly or unlawful for a for-profit to do so. Nonprofits that provide these services use a funding model we call Market Maker. Organ donation is one example where Market Makers operate. There is a demand for human organs, but it is illegal to sell them. These nonprofits generate the majority of their revenues from fees or donations that are directly linked to their activities. Most Market Makers operate in the area of health and disease, but some also operate in the environmental protection area (for example, land conservation). The American Kidney Fund (AKF) is an example of a nonprofit that uses the Market Maker funding model. AKF was founded in 1971 to help low-income people with kidney failure pay for dialysis. It is now the country’s leading source of financial aid to kidney dialysis patients, providing (in 2006) $82 million in annual grants to 63,500 kidney patients (about 19 percent of all dialysis patients). Before 1996, health care providers were allowed to pay Medicare Part B and Medigap premiums (approximately 20 percent of total costs) for needy dialysis patients. In 1996, the federal government made it illegal for providers to do this because it might trap the patient into receiving dialysis from a particular provider. The new law left thousands of kidney patients unable to afford kidney treatment. AKF noticed this gap and established a program to fill it. AKF now pays these premiums, allowing patients to continue their treatment. AKF is funded primarily by health care providers and other corporations. AKF is now applying the same principles used in its kidney dialysis program for pharmaceuticals used to treat bone loss. Nonprofit leaders considering the Market Maker funding model should ask themselves the following questions:
    • Is there a group of funders with a financial interest in supporting our work?
    • Are there legal or ethical reasons why it would be more appropriate for a nonprofit to deliver the services?
    • Do we already have a trusted program and brand name?

  10. LOCAL NATIONALIZER There are a number of nonprofits, such as Big Brothers Big Sisters of America, that have grown large by creating a national network of locally based operations. These nonprofits use a funding model we call Local Nationalizers. These organizations focus on issues, such as poor schools or children in need of adult role models, that are important to local communities across the country, where government alone can’t solve the problem. Most of the money for programs is raised locally, often from individual or corporate donations and special events. Very little of the money comes from government agencies or fees. Very few local operations exceed $5 million in size, but, in totality they can be quite large. Teach for America (TFA) is an example of a nonprofit that uses a Local Nationalizer funding model. TFA recruits, trains, and places recent college graduates into teaching positions in schools across the country. TFA was founded in 1989, and by 2007 had more than $90 million in annual revenues. The organization relies on its 26 regional TFA offices to raise more than 75 percent of its funding. The reason this works is that TFA’s mission—improving the quality of K-12 education—resonates with local funders. TFA developed a culture in which fundraising is considered a critical aspect of the organization at every level, and it recruited local executive directors who would take ownership of attracting regional funding growth. Nonprofit leaders considering the Local Nationalizer funding model should ask themselves the following questions:
    • Does our cause address an issue that local leaders consider a high priority, and is this issue compelling in communities across the country?
    • Does expanding our organization into other communities fulfill our mission?
    • Can we replicate our model in other communities?
    • Are we committed to identifying and empowering high-performing leaders to run local branches of our organization in other communities?

IMPLICATIONS FOR NONPROFITS In the current economic climate it is tempting for nonprofit leaders to seek money wherever they can find it, causing some nonprofits to veer off course. That would be a mistake. During tough times it is more important than ever for nonprofit leaders to examine their funding strategy closely and to be disciplined about the way that they raise money. We hope that this article provides a framework for nonprofit leaders to do just that.
The funding paths that nonprofits take will vary, and not all will find models that support large-scale programs. The good news is that all nonprofits can benefit from greater clarity about their most effective funding model, and it is possible for some nonprofits to develop models that raise large amounts of money. As mentioned earlier, almost 150 new nonprofits (not counting universities and hospitals), surpassed $50 million in annual revenues between 1970 and 2003.
On the other side of the equation, philanthropists are becoming more disciplined about their nonprofit investing. A growing number of foundations, such as the Edna McConnell Clark Foundation and New Profit Inc., are investing in their grantees to improve both program and funding models. We hope that this article helps philanthropists become clearer about their funding strategy so that they can support their programs more effectively.
As society looks to the nonprofit sector and philanthropy to solve important problems, a realistic understanding of funding models is increasingly important to realizing those aspirations.
Notes 1 In a November 2008 Bridgespan survey of more than 1001 nonprofits, leaders were asked which of eight different and often conflicting fundraising tactics would play some role or a major role in their approach to addressing the downturn. Nearly half (48 percent) of respondents said that six or more would. 2 For example, see Thomas Malone, Peter Weill, Richard Lai, et al., “Do Some Business Models Perform Better Than Others?” MIT Sloan Research Paper No. 4615-06, May 2006. 3 For an early framework looking at “donative” vs. “commercial” nonprofits, see Henry Hansmann, “The Role of Nonprofit Enterprise,” Yale Law Journal, 89, 5, April 1980. 4 William Foster and Gail Fine, “How Nonprofits Get Really Big,” Stanford Social Innovation Review

嫉惡如仇的毛病,碰到路不平,我就拔刀除草---看不慣官員要錢

葉世文索賄 尹衍樑:我檢舉的

(中央社記者羅秀文台北17日電)今年5月爆發的桃園合宜住宅收賄弊案,時任桃園縣副縣長葉世文遭收押;潤泰集團總裁尹衍樑接受今周刊訪問表示,他有嫉惡如仇毛病,是他向廉政署具名檢舉,因看不慣官員要錢。
尹衍樑接受最新一期今周刊專訪表示,在合宜住宅弊案爆發1年半前,葉世文來拜訪他時當面問:「有好康的事,林口國宅(合宜住宅),割成四塊,你覺得哪一塊最好?要不要?」
尹衍樑表示,葉世文當時說:「我可以讓你得標,還可以更改容積率,只要付公告現值1%的現金,算起來也要好幾千萬吧!如果說定了,就會去動員那些評審委員,讓你過關。」
當時尹衍樑問葉:「你這樣做好嗎?這是犯法的」。葉世文說他做了一輩子公務員,要準備退休了,得要留個老本。
尹衍樑表示,當時他對葉世文說:「這種事我不能幹」,「我沒辦法出帳,我會犯上行賄罪,建議你不要這樣做。」「但他還是一樣,於是我就送客。」
尹衍樑說,他跟葉世文吃過幾次飯,「我們是認識的」;但這件事讓他愈想愈難過,中華民國的官員,居然能夠上門來張口就要。
他說,「我有嫉惡如仇的毛病,碰到路不平,我就拔刀除草。」隔天上午,尹衍樑打電話給廉政署,具名檢舉葉世文,當天下午廉政官立刻來找尹衍樑做筆錄。
尹衍樑向廉政署檢舉後,葉世文因此被盯上監控,雖然沒立即法辦,但葉退休後轉往桃園縣擔任副縣長,最終仍因桃園合宜住宅案,被檢調鎖定調查遭收押。
http://www.msn.com/zh-tw/news/other/%E8%91%89%E4%B8%96%E6%96%87%E7%B4%A2%E8%B3%84-%E5%B0%B9%E8%A1%8D%E6%A8%91%E6%88%91%E6%AA%A2%E8%88%89%E7%9A%84/ar-BBgU4nE

「罕見疾病防治及藥物法」修正草案

立法院社福衛環委員會10日初審通過「罕見疾病防治及藥物法」修正草案,未來法案三讀通過後,罕病藥物經中央主管機關查驗登記或專案申請核定通過,加上徵詢審議會意見,便可納入全民健保藥物給付。看似一大福音,但衛福部官員私下透露,其實解決之道還是在藥商,「希望好人做到底,能多吸收一點費用。」
根據國民健康署數據,有效領取重大傷病卡人數自99年的6293人,至103年的7974人,罕見疾病人口成長約3成,罕見疾病防治及藥物法已從起初的57種增至目前的201種,用藥需求持續成長。
社福衛環委員會通過行政院版本,增列「罕見疾病藥物經中央主管機關查驗登記或專案申請核定通過,依全民健康保險藥物給付項目及支付標準之收載程序辦理時,應徵詢審議會的意見」,換句話說,未來三讀通過後,全民健保將有條件給付罕病藥物;另外,委員會也通過修正草案第10條,增列罕見疾病相關團體為補助及獎勵的對象,獎勵及補助的項目、範圍、金額,則由中央主管機關定之。
官員對於委員會初審通過修正草案覺得很欣慰,他說只要能加快一點點腳步,就可以多舒緩或是治療罕病病友的痛苦,但事實上罕病病友的治療,花的金額高、佔用較多的資源是事實,雖然不會有人阻擋這方面的立法或修法,不過高額的花費總是讓人心生疑慮,更有立委私下對罕病藥物等研發提出質疑,「丟下去一千萬有沒有效?」官員說,疑慮多了整體作業會變慢,可資源配置的疑慮,也不能說人家錯,因此最後根源還是藥廠的定價過高。

藥商吸收罕病藥物成本 官員:這才是解決之道

http://www.ettoday.net/news/20141215/439266.htm?from=fb_et_news

Tuesday, December 16, 2014

Privacy Act, FOIA, public domain

Privacy Act and its limitations on releasing information about individuals.
“No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains,” with certain enumerated exceptions, such as situations covered by the Freedom of Information Act (FOIA).

 5 U.S.C. § 552a(b); 5 U.S.C. § 552

management must be careful to discuss what it did without going into detail about the specific history of individuals to which it applied what it did—unless the information is considered to be in the public domain or the agency first obtains permission in writing from those individuals

Tripp v. Department of Defense, 193 F. Supp. 2d 229, 236 (D.C. Dist. 2002) (holding that the names,
titles, and salaries of public employees are information generally in the public domain).

Long v. Office of Personnel Management, 692 F.3d 185, 192 (2nd Cir. 2012) (holding that when the work of an agency or position is sensitive in nature, there is a “cognizable privacy interest” that can warrant withholding employee names in the FOIA context).


The Wisdom of Crowds

 James Surowiecki, The Wisdom of Crowds: Why the Many Are Smarter than the Few and How Collective Wisdom Shapes Business, Economies, Societies and Nations, New York: Doubleday (2003) at 4-5 (describing experiments in which responses from large groups led to more accurate answers than responses from single individuals).

learning how to cook



矽谷最新創投趨勢:買塊田,跟農夫一起發動科技革命

http://www.bnext.com.tw/article/view/id/34732

小明又來了!


1.老師說:「漢字中,凡是帶三點水的,一定都有水,例如:江、河、湖、海。」小明說:「沙漠呢?」老師說:「滾!」小明說:「我滾的時候也沒看到水啊!」

2.老師上課叫小明起立回答問題,想鍛鍊他的膽子。小明懦弱的回答:「我不會。」老師說:「就不能像個男子漢一樣嗎?」小明若有所思終於,小明怒拍桌子大吼一聲:「老子不會!」

3.老師發現上課時小明總是不專心愛講話,生氣的說:「小明,你再不專心上課,我就要告訴你爸爸。」小明淡淡的說:「老師,其實我對你也不是很滿意,可是我都沒跟你爸爸說。」

4.老師:「哪個同學用四個字來形容一下一個人長得很醜?」小華說:「其貌不揚。」小英說:「奇醜無比。」小明用手指著老師說:「有點像你。」

5.上語文課時老師:「小明請你依照『如果每一滴水都能代表一份祝福,那我送你一片海洋』句型,練習造句。」小明說:「如果每一朵花都代表一份祝福,我會送你一個花圈。」

why gov attorney: in the excepted service + veterans’ preference does not apply

Jarrard v. Department of Justice, the Federal Circuit discussed at length the reasons why attorneys are in the excepted service and held that traditional veterans’ preference, such as the use of points, does not apply to such positions. The court held that, because of the nature of attorney hiring, there was no obligation for an agency to consult OPM before passing over a veteran for a non-veteran when hiring attorneys.

Jarrard v. Department of Justice, 669 F.3d 1320, 1324-26 (Fed. Cir. 2012)

http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=1072040&version=1076346&application=ACROBAT

-------------------------------------

Petitioner:  Thomas G. Jarrard
Respondents:  Department of Justice and Social Security Administration
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Numbers:  2011-3050, 2011-3051
Issuance Date:  January 13, 2012

Veterans' Rights - VEOA
 - Applicability of Passover Provisions to Attorneys

    The court reviewed two MSPB decisions in which the Board denied Jarrard's requests for corrective action under the Veterans Employment Opportunities Act (VEOA).  Jarrard is a preference eligible veteran who applied for attorney positions at the Social Security Administration and with the Department of Justice.  Both agencies selected other applicants, at least one of whom was a non-preference eligible.  Jarrard contended that 5 U.S.C. § 3320 required that the agencies follow the passover provisions of 5 U.S.C. § 3318 in excepted service hiring.  Section 3318, which applies in terms only to the competitive service, requires agencies to "file written reasons" and to receive permission from the Office of Personnel Management if they "pass over a preference eligible" who is among "the highest three eligibles available for appointment" on a certificate furnished by OPM under 5 U.S.C. § 3317(a).  The agencies concluded that section 3320 does not require the application of section 3318 to attorney positions because those positions are exempt from passover procedures under 5 C.F.R. § 302.101(c), and that Jarrard's preference eligible status was appropriately considered as only a "positive factor."  The Board agreed that section 3320 did not require application of the section 3318 passover procedures.

Holdings:  The court affirmed the Board's determination that the agencies were not required to apply the section 3318 passover procedures:

1.  When agencies hire for the competitive service, the Veterans Preference Act requires them to give advantages to certain veterans and their families, who are referred to as "preference eligibles."  Among these advantages are the passover provisions of section 3318.  As a general matter, veterans preference procedures also apply to hiring in the excepted service through section 3320, which provides that the excepted service shall be filled "in the same manner and under the same conditions required for the competitive service by sections 3308-3318."

2.  Within the excepted service, certain positions, including attorney positions, are further exempted from the usual appointment procedures by 5 C.F.R. § 302.101(c), which requires veterans' preference to be followed "as far as administratively feasible."  

3.  After reviewing the history of the relevant statutes and regulations, and their interpretation by the Department of Justice, the Civil Service Commission, and the Office of Personnel Management from the 1930's to the present, the court agreed that OPM is barred from imposing a rating or other examination system on the hiring of attorneys within the executive branch.

4.  The court then considered whether the bar against examinations and ratings makes it not administratively feasible to apply the passover provisions of section 3318 to attorney hiring, and answered this question in the affirmative.   


http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=683399&version=685476&application=HTML
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http://caselaw.findlaw.com/us-federal-circuit/1591159.html


United States Court of Appeals,Federal Circuit.

Thomas G. JARRARD, Petitioner, v. DEPARTMENT OF JUSTICE, Respondent.
Thomas G. Jarrard, Petitioner, v. Social Security Administration, Respondent.

Nos. 2011–3050, 2011–3051.

Decided: January 13, 2012

Before RADER, Chief Judge, DYK and REYNA, Circuit Judges. Thomas G. Jarrard, Spokane, WA, argued. Tara K. Hogan, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Brian M. Simkin, Assistant Director, and Jill Weissman, Assistant General Counsel. Of counsel was Anuj Vohra, Trial Attorney.
In these consolidated appeals, attorney Thomas G. Jarrard (“Jarrard”) petitions for review of two decisions of the Merit Systems Protection Board (“Board”) denying his request for corrective action under the Veterans Employment Opportunities Act of 1998 (“VEOA”). See Jarrard v. Soc. Sec. Admin. (“Board SSA Decision ”), 2010 M.S.P.B. 207 (Oct. 28, 2010); Jarrard v. Dep't of Justice (“Board DOJ Decision ”), No. SF–3330–10–0815–I–1, 2010 M.S.P.B. LEXIS 6400 (Nov. 3, 2010). We affirm.
Background
Jarrard is a veteran with a service-connected disability rated at eighty percent, which makes him a “preference eligible” veteran under 5 U.S.C. § 2108(3)(C). He applied for attorney positions at the Social Security Administration (“SSA”) in 2009 and at the U.S. Attorney's Office for the Eastern District of Washington (“DOJ”) in 2009 or 2010, informing both agencies that he was a preference eligible veteran. Both agencies selected other applicants, at least one of whom was a non-preference eligible.
Jarrard filed complaints with the Department of Labor under VEOA, which allows preference eligible veterans to challenge an agency's application of the veterans' preference requirements. See id. § 3330a(a)(1)(A). Jarrard complained that 5 U.S.C. § 33201 required that the agencies follow the veterans' passover provisions of 5 U.S.C. § 3318 in excepted service attorney hiring. Section 3318, which in terms applies only to the competitive service, requires agencies to “file written reasons” and to receive permission from the Office of Personnel Management (“OPM”) if they “pass over a preference eligible” who is among “the highest three eligibles available for appointment” on a certificate furnished by OPM under section 3317(a). There is no dispute that these procedures were not followed by SSA and DOJ in this case.
The SSA concluded that section 3320 did not require the application of section 3318 to attorney positions because those positions are exempt from passover procedures under 5 C.F.R. § 302.101(c), and that Jarrard's preference eligible status was appropriately considered as only a “positive factor.” Resp't Br. SA16. The DOJ similarly stated that “Mr. Jarrard was not the most qualified person for the position, considering all factors, including veterans' preference eligibility.” Id. at SA15. After the Department of Labor found no violation, Jarrard appealed both decisions to the Board.
An initial administrative judge decision on Jarrard's claim against the SSA agreed with the SSA that section 3320 did not require the application of section 3318 to attorney positions and dismissed the appeal for failure to state a claim. Jarrard v. Soc. Sec. Admin., No. SF–3330–10–0024–I–1, slip op. at 12 (Feb. 1, 2010). The full Board vacated this decision and denied Jarrard's SSA appeal on the merits. Board SSA Decision, 2010 M.S.P.B. 207, ¶ 1. The Board agreed with the SSA that attorneys are exempt from any examination or rating requirements. Id. ¶¶ 12, 19. The Board stated that section 3320 did not require application of the 3318 passover procedures because “application of section 3318 is conditioned on the preference eligible being ‘on a certificate.’ “ Board SSA Decision, 2010 M.S.P.B. 207, ¶¶ 21. The Board held that “the agency's decision to treat the appellant's veterans' preference status as a positive factor in evaluating his application is consistent with OPM's requirement that the agency ‘follow the principle of veteran preference as far as administratively feasible.’ “ Id. ¶ 27 (quoting 5 C.F.R. § 302.101(c)).
The initial administrative judge decision on Jarrard's appeal against the DOJ was issued the following week, and it followed the full Board decision in the SSA appeal and denied Jarrard's claim on the merits. Board DOJ Decision, No. SF–3330–10–0815–I–1, slip op. at 9–17. Jarrard timely appealed both decisions to this court, and we consolidated his appeals on March 31, 2011. We have jurisdiction under 28 U.S.C. § 1295(a)(9).
We must affirm the Board's decisions unless they were “(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. § 7703(c). We review legal questions de novo. Chambers v. Dep't of Interior, 602 F.3d 1370, 1375 (Fed.Cir.2010).
Discussion
Federal agencies generally hire employees through either the “competitive service,” which generally has specific hiring requirements and examinations, or the “excepted service,” which involves more flexible hiring procedures. See 5 U.S.C. §§ 2102–2103, 3301–3305, 3307–3308; Gingery v. Dep't of Defense, 550 F.3d 1347, 1349 (Fed.Cir.2008). This case involves attorney hiring for the excepted service. See 5 C.F.R. § 213.3102(d) (placing attorneys within the excepted service). Within the excepted service, OPM has exempted certain positions from the normal appointments process, including attorney positions, and confidential or policy-making positions. 5 C.F.R. § 302.101(c).
When agencies hire for the competitive service, the Veterans Preference Act (“VPA”) requires them to give advantages to certain veterans and their families, who are referred to as “preference eligibles.” 5 U.S.C. § 2108(3) (defining “preference eligible”); id. §§ 3309–3318 (describing advantages in competitive service hiring). As a general matter, these veterans' preference procedures also apply to hiring in the excepted service through 5 U.S.C. § 3320, which provides that the excepted service shall be filled “in the same manner and under the same conditions required for the competitive service by sections 3308–3318.” The legislative history of section 3320 sheds little light on the meaning of this provision.2 Within the excepted service category, certain positions (including attorney positions) are further exempted from the usual appointment procedures by 5 C.F.R. § 302.101(c), but these regulations require veterans' preference to be followed “as far as administratively feasible.” As we confirmed in Patterson v. Department of Interior, 424 F.3d 1151 (Fed.Cir.2005), where positions are entirely exempt from the usual appointment process, it is more likely that the detailed requirements of the VPA will prove to be infeasible.
In two prior cases we have considered the meaning of section 3320, and we have essentially construed that provision as requiring that VPA procedures be applied to excepted service hiring to the extent that it is administratively feasible to do so. That is, we adopted the same construction of section 3320 that OPM adopted in its regulations with respect to attorneys and other positions exempt from the usual appointment procedures. See 5 C.F.R. § 302.101(c) (stating that for exempted positions, “each agency shall follow the principle of veteran preference as far as administratively feasible”).
In Patterson, the veteran applicant for an attorney position challenged the agency's failure to apply section 3309, which requires “[a] preference eligible who receives a passing grade in an examination” to receive “additional points above his earned rating.” 424 F.3d at 1154 (quoting 5 U.S.C. § 3309). We determined that “Congress has not spoken on the issue of how to apply the principles of veterans' preference to positions within the excepted service that are not subject to examination,” and that OPM's regulations are thus entitled to Chevron deference. Id. at 1158–59. We concluded that OPM's exemption of attorneys from excepted service veterans' preference hiring procedures at 5 C.F.R. § 302.101(c)(9) is “reasonable and consistent with the VPA” because “agencies do not use numerical scores in assessing applicants for [attorney] positions.” 424 F.3d at 1159. Instead, OPM agreed that the agency “must consider veteran status as a ‘positive factor’ in reviewing applications,” which we found to “represent[ ] a reasonable balance between the goals of the VPA and the flexible hiring standards employed by the excepted service for filling attorney vacancies.” Id.
In Gingery, the preference-eligible veteran was applying for an auditor position within the Federal Career Intern Program (“FCIP”), and he challenged the agency's failure to apply section 3318 pursuant to section 3320. 550 F.3d at 1350. FCIP auditors are in the excepted service, but unlike attorneys, they are not exempted from OPM's hiring requirements for the excepted service under 5 C.F.R. § 302.101 and are selected from certificates. See 550 F.3d at 1350. The agency applied OPM regulation 5 C.F.R. § 302.401(b), which required an agency passing over a preference-eligible candidate only to “record its reasons” and “furnish a copy” to the candidate if requested. 550 F.3d at 1350. We held this regulation invalid as inconsistent with the more stringent requirements of section 3318. 550 F.3d at 1354. We noted that unlike section 3309, at issue in Patterson, which required an examination, section 3318 did not. While section 3318 required hiring from a certificate, the auditor position was filled from a certificate, so nothing “would preclude application of § 3318 to the excepted service under § 3320.” 550 F.3d at 1353.
This case presents the question whether it is administratively feasible to apply the provisions of section 3318 to attorney hiring in the excepted service. The government contends that it is not feasible because federal statutes bar agencies from rating attorneys in government hiring. We first consider the statutes governing attorney hiring, and then consider whether the existence of these provisions renders impractical the application of the 3318 passover procedures to attorney hiring.
I
For many years, the procedures for government attorney hiring have been limited by federal statute. The background of this provision is important in understanding its scope. In 1939, President Roosevelt appointed a committee to make recommendations on how civil service procedures should apply to attorneys. Exec. Order No. 8044, 4 Fed.Reg. 497 (Jan. 31, 1939). The committee disagreed on the best approach. A few members proposed “Plan B,” under which attorney applicants would be ranked based on the results of an examination, like other civil service applicants. See Veterans Preference Act (5 U.S.C. §§ 2108, 3309–3320)—Hiring Procedures for Attorneys—Excepted Service—Preference Hiring of Eligible Veterans, 3 Op. O.L.C. 140, 143 (1979) (“1979 OLC Memo”) (citing H.R. Doc. No. 77–118 (1941)). Roosevelt instead selected “Plan A,” which did not involve numerical rankings, and in 1941 he created the Board of Legal Examiners within the Civil Service Commission (the predecessor to OPM) to develop examinations for attorney applicants and “a register or registers of eligibles from which attorney positions in the classified service shall be filled.” Exec. Order No. 8743, 6 Fed.Reg. 2117, 2117 (Apr. 23, 1941), reprinted as amended in 5 U.S.C. § 3301 notes. Congress was dissatisfied with the concept, and the Board of Legal Examiners was short-lived.
Congress first refused appropriations to the Board of Legal Examiners in the Independent Offices Appropriation Act of 1944, stating that “no part of any appropriation in this Act shall be available for the salaries and expenses of the Board of Legal Examiners.” Pub.L. No. 78–90, 57 Stat. 169, 173 (1943). Nearly identical restrictions have continued to this day. See, e.g., Consolidated Appropriations Act, 2010, Pub.L. No. 111–117, § 516, 123 Stat. 3034, 3195 (2009) (“[N]o part of this appropriation shall be available for salaries and expenses of the Legal Examining Unit of the Office of Personnel Management ․ or any successor unit of like purpose․”); Continuing Appropriations Act, 2011, Pub.L. No. 111–242, § 101, 124 Stat. 2607, 2607 (2010) (continuing the appropriations of the Consolidated Appropriations Act, 2010, unless “otherwise specifically provided for,” and making no separate appropriation for OPM or attorney hiring). The Senate floor debate on the 1944 appropriations restriction made clear that the purpose of this amendment was to “prohibit[ ] from now on any civil-service examination of lawyers” because “the idea of the Civil Service Commission reporting on lawyers and their ability and fairness and their relative qualifications ․ is something that cannot be done.” 90 Cong. Rec. 2659–60 (1944). This restriction was passed despite its effects on the veterans' preference requirements; indeed, Senator Burton opposed the bill specifically because it would “mak[e] impossible the application to [lawyers] of the veterans' preference provisions.” Id. at 2661.
In 1977, the Civil Service Commission determined that the DOJ's attorney hiring did not satisfy the VPA's requirements and proposed that a “numerical rating system” be used for attorney hiring. See Veterans Preference Act (5 U.S.C. §§ 2108, 3309–3320)—Application to Attorney Positions, 2 Op. O.L.C. 179, 179 (1978). The Office of Legal Counsel (“OLC”) wrote a memorandum in 1978 to the Assistant Attorney General to explain why “the Commission does not have such authority.” Id. The memorandum noted that “[t]he Commission's proposed rating system constitutes an attorney selection procedure because attorneys would be selected on the basis of their ratings.” Id. at 181. In 1979, OLC wrote a more detailed memorandum to explain the relevant history to OPM (which had been created from the Civil Service Commission in 1978). 1979 OLC Memo. The OLC noted that the short-lived Board of Legal Examiners examined attorneys and reported “descriptive ratings” (such as “Excellent” or “Good”) on the register from which attorney positions had to be filled, but that even the Board of Legal Examiners eschewed numerical rankings on the register. Id. at 144. Congress clearly rejected any assessment of the “relative qualifications” of lawyers in its appropriations restrictions. Id. at 145. Thus, as OLC concluded, “OPM is barred by its appropriation legislation from imposing a rating or other examination system on the hiring of attorneys within the executive branch.” Id. at 140. While we are not bound by the OLC interpretation of the statute, we think it is correct and adopt it.
II
This leads to the second question: whether a bar on attorney examinations and ratings makes it not administratively feasible to apply the passover provisions of section 3318 to attorney hiring. OPM, which is charged with implementing the provisions of section 3320 by virtue of 5 U.S.C. § 1302(c),3 has concluded that the passover provisions cannot be applied to attorney hiring. Shortly after the OLC concluded that OPM was barred from rating or examining attorneys, OPM issued this final rule to amend 5 C.F.R. § 302.101(c):
The Department of Justice has now ruled that the statutory restriction [in the appropriations acts] also prohibits [OPM] from prescribing use of a numerical rating system in the selection of attorneys. To implement this ruling, the regulations governing employment in the excepted service are amended to exempt attorney positions from the procedural requirements.
Employment in the Excepted Service, 44 Fed.Reg. 66,573, 66,573 (Nov. 20, 1979). Thus, 5 C.F.R. § 302.101(c)(9) lists “[a]ttorney positions” as a class of “[p]ositions exempt from appointment procedures” for the excepted service, for which agencies only need to “follow the principle of veteran preference as far as administratively feasible.”
A bar on examinations alone would not make application of the passover provisions impractical: although in Patterson we held that examinations were a necessary predicate with respect to the section 3309 procedures, 424 F.3d at 1158, we reached a different result in Gingery with respect to section 3318, 550 F.3d at 1353. In Gingery, we held that the passover provisions must be applied to FCIP auditor hiring, finding that the application of section 3318 was not infeasible despite the absence of examinations for auditor positions. Id. But the appropriations riders not only bar attorney examinations; they also bar attorney ratings. We think that this feature is indeed inconsistent with the passover provisions because on its face, section 3318 requires the submission of a certificate that ranks applicants, and “passing over” a preference eligible requires that he initially be among the “highest three eligibles ․ on the certificate furnished” by OPM. In contrast, there was no congressional bar with respect to ranking for the auditor position at issue in Gingery, and the applicant in Gingery was in fact ranked under “a category rating system,” which we concluded made it possible to apply the statutory passover provisions. 550 F.3d at 1350, 1353.
In view of the statutory provision barring ranking of attorneys, which has been in place since 1944, it is not possible for OPM to provide a certificate of attorney applicants that is a predicate to the passover provisions of section 3318. Therefore, the Board did not err in concluding that the agencies were exempt from the procedures of 3318 and were not required to file written reasons with OPM and seek OPM's permission before selecting candidates other than Jarrard.
AFFIRMED
Costs
No costs.
FOOTNOTES
1.  Section 3320 provides that agencies “shall select for appointment to each vacancy in the excepted service in the executive branch ․ from the qualified applicants in the same manner and under the same conditions required for the competitive service by sections 3308–3318 of this title.”
2.  The revision notes in the U.S.Code from this section's 1966 enactment state that it “continues, and does not in any way change, the requirements in former section 858 relative to the selection of applicants for positions in the excepted service.” 5 U.S.C. § 3320 (2006) revision notes; see Pub.L. No. 89–554, § 3320, 80 Stat. 378, 422 (1966). Former section 858, which was enacted with the VPA in 1944, stated that “[i]n the unclassified ․ civil service ․ [the] appointing officer ․ shall make selection from the qualified applicants in accordance with the provisions of this chapter.” 5 U.S.C. § 858 (1964); see VPA, Pub.L. No. 78–359, § 9, 58 Stat. 387, 389–90 (1944). The 1944 Senate committee report simply stated that this section “provides for the application of the provisions of the act to positions and employment in the unclassified service.” S.Rep. No. 78–907, at 3 (1944).
3.  Section 1302(c) provides: “The Office [of Personnel Management] shall prescribe regulations for the administration of the provisions of this title that implement the Congressional policy that preference shall be given to preference eligibles in certification for appointment, and in appointment ․ in the excepted service in Executive agencies․”
DYK, Circuit Judge.
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