Thursday, December 25, 2014

Federal government attorney hiring procedures

can't use exams or numerical rating system to screen and select government attorneys

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.

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). ---it would “make impossible the application to [lawyers] of the veterans' preference provisions.

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. 

Congress clearly rejected any assessment of the “relative qualifications” of lawyers in its appropriations restrictions

OPM is barred by its appropriation legislation from imposing a rating or other examination system on the hiring of attorneys within the executive branch.


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 concluded the passover provisions cannot be applied to attorney hiring.

[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.”

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