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Classification & Qualifications Appeal Decisions

Washington, DC

U.S. Office of Personnel Management
Classification Appeal Decision
Under section 5112 of title 5, United States Code

[Appellant]
Attorney-Advisor
GS-905-14
U.S. Environmental Protection Agency
Chicago, Illinois
Attorney-Advisor
GS-905-14
C-0905-14-04

Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance

04/09/2014


Date

As provided in section 511.612 of title 5, Code of Federal Regulations (CFR), this decision constitutes a certificate which is mandatory and binding on all administrative, certifying, payroll, disbursing, and accounting officials of the Government.  The agency is responsible for reviewing its classification decisions for identical, similar, or related positions to ensure consistency with this decision.  There is no right of further appeal.  This decision is subject to discretionary review only under conditions and time limits specified in the Introduction to the Position Classification Standards (Introduction), appendix 4, Section G (address provided in appendix 4, section H).

Introduction

On January 17, 2013, the U.S. Office of Personnel Management’s (OPM) Chicago Oversight office received a position classification appeal from [appellant].  The appeal was transferred to the OPM’s Atlanta Oversight office for adjudication on December 10, 2013.  OPM received the initial agency appeal administrative report on March 20, 2013 and additional recent work samples and other information from the appellant from January 24 to February 12, 2014.  The appellant occupies a position currently classified as General Attorney, GS-905-14.  She requested classification as General Attorney, GS-905-15.  She works in [organization], U.S. Environmental Protection Agency (EPA), in Chicago, Illinois.  We have accepted and decided an initial agency appeal under section 5112(b) of title 5, United States Code (U.S.C.).      

Background

The appellant submitted a request for an accretion-of-duties promotion from a General Attorney, GS-905-14 to a General Attorney, GS-905-15, on June 15, 2010.  The request was denied by the EPA Regional Counsel on October 27, 2010, who referred her to EPA Human Resources to request a desk audit if she chose.

On April 14, 2011, the appellant submitted another request for a desk audit to be considered for an accretion-of-duties promotion to the Principal Deputy Administrator for the Office of Enforcement and Compliance Assurance (OECA).  The request was forwarded to an EPA classifier who conducted an interview with the appellant on May 3, 2011.  On November 29, 2011, the Principal Deputy Administrator for OECA informed the appellant that her request for an accretion-of-duties promotion was denied, and she remained a General Attorney, GS-905-14.

On November 30, 2011, the appellant submitted another request for a desk audit to be considered for an accretion-of-duties promotion to the Director of the OECA Office of Administrative Policy, Administrative Management Division.  The request was forwarded to  another EPA classifier who conducted an interview with the appellant on January 4, 2012.  On September 19, 2012, the new Principal Deputy Assistant Administrator for OECA, informed the appellant the classification determination of her position was a General Attorney, GS-905-14.  The appellant subsequently filed a classification appeal with OPM. 

General Issues

The appellant disputes the two EPA classification determinations on her position.  The first EPA classification audit decision in question, which was not implemented by EPA management, credited the appellant’s position as Type II, Level D, which by application of the General Attorney Series, GS-905, position classification standard (PCS) equates to the GS-13 level.  The final determination was Attorney-Adviser (General), GS-905-13.  Although management did not act on this determination, the evaluation statement was submitted to us, and is part of our record.  The appellant has seen the evaluation statement, and has sent us general comments on it, stating that the grade determination is incorrect.

The second EPA classification audit decision credited the appellant’s position as Type II, Level E, which equates to the GS-14 level.  The final determination was General Attorney, GS-905-14.  The appellant provided extensive comments disputing the Type II designation of Factor 1, Nature of the case or legal problem.  She also commented that her position description (PD) states that she is performing Type III-level work (the highest level for this Factor).  In actuality, the appellant is referring to an EPA form entitled, “Position Questionnaire for Nonsupervisory Regional Attorney Position”.  This form, attached to the PD, has synopses of Type I, Type II, and Type III-level work for Factor 1.  Type III is checked.  However, since the most recent EPA classification decision credited her work under Factor 1 as Type II, this supersedes the previous Type III designation and reflects the official EPA determination on this factor.

The appellant did not dispute the second EPA classifier’s decision to credit her work under Factor 2, Level of responsibility, as Level E (the highest level for this Factor).  However, in the same EPA form attached to the PD, where Levels A through D are listed, Level D is checked (there is no option for Level E).  The appellant stated that this portion of her PD is inaccurate, but that the classification decision for this factor is correct.  However, since the most recent EPA classification decision credited her work under Factor 2 as Level E, this supersedes the previous Level D designation and reflects the official EPA determination on this factor. 

The appellant also stated that her PD is inaccurate because it does not recognize her individual stature as an expert in her field.  The GS-905 PCS contains a feature that recognizes that there are aspects of an attorney’s work that cannot always be fully evaluated in terms of the criteria spelled out in the body of the standard.  “Stature” is usually attained through accomplishments of enduring significance, i.e., the attorney’s opinions are generally recognized by other attorneys as especially authoritative and are sought after and given special weight.  This feature will not necessarily be in a PD, but we have considered it in our grade determination.

We decide the classification appeal on the basis of current duties assigned by management and performed by the employee.  An OPM appeal decision grades a real operating position and not simply thePD.  For this classification decision, we analyzed current work examples submitted by the appellant, and not each one of the cases that were classified previously by EPA.  Since comparison to published standards is the exclusive method for classifying positions, we cannot compare the appellant’s current duties to previous duties, or the agency’s evaluation of her previous work.

The appellant also referenced several EPA classification documents that can assist EPA classifiers in classifying EPA attorneys, such as the “1987 Hardy Memorandum”, the “Hardy Memo Checklist for GS-15 Promotions”, and the “2004 Harris Memorandum”.  The appellant also submitted Region 5, GS-12 through GS-15 PDs as examples of how EPA has classified these positions in the past.  However, by law, we must classify positions solely by comparing the appellant’s current duties and responsibilities to OPM position classification standards (PCS) and guidelines (5 U.S.C. 5106, 5107, and 5112), and not the classification of positions in other organizations, which may or may not be classified properly, or the compensation of positions that perform similar work.  Our decision sets aside all previous agency decisions regarding the classification of the position in question.

Position information

The appellant is responsible for providing legal advice, assistance, and policy recommendations to management.  She coordinates and directs the entire workload of her Section in assigned areas of responsibility, and is responsible for the work of other attorneys in the Section who are assigned to work on matters within such areas of responsibility.  Either directly or through her management chain, she provides the Regional Administrator and subordinate staff with general legal advice and, upon request, policy recommendations concerning those Regional programs, operations, and activities in areas assigned by the Regional Counsel, so that their major decisions are made with applicable legal considerations in mind.

The appellant researches and resolves the legal questions which arise under all regulations, lawsuits, enforcement actions, executive orders, and other administrative actions involving major Federal statutes affecting EPA’s programs, which may include such statutes as the Clean Water Act; the Clean Air Act; the Toxic Substances Control Act; the Safe Drinking Water Act; the Resource Conservation and Recovery Act; the National Environmental Policy Act;  the Comprehensive Environmental Response, Compensation, and Liability Act; and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).  She manages and coordinates defensive and enforcement litigation resulting from the Region’s activities under these statutes.  She conducts discovery, and prepares motions, briefs, and other litigation documents.  She appears before courts to conduct trials, hearings, and oral arguments.  She assists the U.S. Attorneys Office in seeking indictments and prosecutions in criminal matters.  She coordinates with state attorneys general.  She represents the Region in administrative proceedings of EPA and other agencies.

The appellant provides legal advice and assistance to EPA criminal investigatory personnel and law-enforcement agencies in the conduct of investigations into criminal matters.  She assists in developing the factual bases for enforcement actions, including field sampling, inspections, and other types of compliance activities.  She also provides legal advice and policy recommendations to managers of EPA grant programs, including the construction grants program administered under Title II of the Clean Water Act.  She assists state attorneys in interpreting statutes and regulations administered by EPA, and advises them on the handling of claims matters.

The appellant represents the Region in negotiating settlements, bilateral agreements, consent orders and judgments, and memoranda of understanding.  She serves as a hearing officer in hearing and deciding matters brought before EPA, and assists management in preparing formal administrative decisions.  She also represents the Region at conferences and meetings held with other Federal entities, state and local governments, and representatives of private industry.  The appellant serves as a national legal expert in at least one subject matter of interest (she is recognized as an expert in FIFRA) and serves as a consultant to other attorneys in EPA.

The appellant reports to her Section Chief, a GS-905-15 Supervisory General Attorney.  Her completed work is reviewable for consistency with EPA policy, precedential effect, and overall quality.

In reaching our decision, we carefully reviewed all the information provided by the appellant and her agency, including the PD of record.  We conducted a telephone interview with the appellant on January 29, 2014, and an interview with the appellant’s supervisor on January 31, 2014.

Series, title, and standard determination

The appellant does not dispute the series and title of her position.  We agree that the position is properly assigned to the GS-905 General Attorney series.  The functional title of General Attorney is appropriately assigned because of the combination of work the appellant performs in both the preparation for trial and/or the trial of cases, typical of Trial Attorneys, and the work rendering legal advice and services, typical of Attorney-Advisers.  The published GS-905 PCS must be used to evaluate the grade level of the appealed position.

Grade determination

The GS-905 standard uses two main factors to evaluate the grade of positions: (1) Nature of the case or legal problem; and (2) Level of responsibility.  The standard discusses the classification elements under each factor.

Factor 1, Nature of the case or legal problem

Three levels of difficulty are described in this standard for this factor:  Type 1 cases or legal problems are simple; Type II cases are difficult; and Type III cases are the most difficult.  These levels represent the full span of difficulty of importance of attorney work throughout the Federal government.  If a case or problem does not satisfy the requirements indicated for the level of one of the types, it is identified with the next lower type, because each type is described in terms of the minimum characteristics of the range of difficulty it represents.  A position must substantially exceed the next lower level before a higher level may be considered. This work must occupy     25 percent or more of the employee’s work time to control the crediting of this factor or the grade level of the position as a whole.

Type II work is characterized by one or more of the following features:

Difficult legal or factual questions are involved because of the absence of clearly applicable precedents due to the newness of the program or the novelty of the issue; or, it is highly arguable which precedents are applicable to the case at issue because of the complexity of the facts or the different possible constructions which may be placed on either the facts or the laws and precedents involved.

The impact of the case or legal problem affects, economically, socially, or politically, either directly or as a legal or administrative precedent, a significant segment of private or public interests (e.g., a large corporation, a large labor group, the residents of a large geographical region of the United States, as in a large public-works project, a large grant-in-aid program, a nationally organized professional group, the producers of a given farm commodity, the manufacturers of a given product, a class of Government contractors, i.e., suppliers of a particular service or product, or an important program of a Government agency).  Also included in this type are cases or legal problems which have an impact on relations between the United States and foreign governments (e.g., acts by servicemen or other representatives of the United States stationed abroad, questions such as whether or not to buy foreign or American products, or negotiating and drafting consular conventions) and which must be handled with great care.

Large sums of money are directly or indirectly involved (e.g., about $100,000), or there is considerable interest from a significant segment of the population (see paragraph 2 above), or the case is strongly contested in formal hearings or informal negotiations by the private individuals, corporations, or Government agencies involved.

Type III work is characterized by one or more of the following features:

Extremely complex and difficult legal questions or factual issues are involved in the drafting, interpretation, or application of legislation, regulations, contracts, orders, decisions, opinions, or other legal instruments, and require for their solution, a high order of original and creative legal endeavor in order to obtain a reasonable balance of conflicting interests (e.g., legal work involved with balancing the requirements of national security with individual liberties, determining the legality of State and local taxation of the use of Federal government property by private business firms, recommending or making policy concerning consent decrees in antitrust litigation, or legal work involved in developing material for Executive orders concerning the use of Federal troops in a domestic emergency); or complex factual or policy issues are involved requiring extensive research, analysis, and obtaining and evaluating of expert testimony or information in controversial areas of scientific, financial, corporate, medical, engineering, or other highly technical areas.

The case or problem is such that it can have the effect of substantially broadening or restricting the activities of an agency (e.g., the enforcement of antitrust and trade regulations, tax laws, food and drug laws, or the laws governing securities transactions); or it has an important impact on a major industry whose economic position affects the health and stability of the general economy (e.g., a merger or reorganization involving a basic industry, or on the rates, practices, or competitive position of a major industry, for example, the position of the railroads in relation to the motor carriers based on the "reasonableness" of their respective rates, or the position of domestic airlines operating overseas in relation to restrictions on foreign airlines operations in this country).  It has an important impact on major private or public interests (e.g., a substantial broadening or restriction of benefits to veterans under the law, amounting to many millions of dollars annually, or a major extension or revision in a State and/or other grant program or a nationwide retirement system, the development of administrative regulations of such scope as the Armed Services Procurement Regulation, or a substantial question of civil rights involving the due process clause).  Also included in this type are problems of unusual delicacy, such as fraud cases, because of the serious consequence of error and the great burden of proof assumed by the Government.

Cases or problems of this type frequently involve, directly or indirectly, very large sums of money (e.g., about $1,000,000) and/or they are frequently and vigorously contested by extremely capable legal talent (e.g., a major antitrust case).  Interest in these cases is generally nationwide.

The classification of the appellant’s position is based on the work assigned and performed by the individual.  The samples discussed in our analysis includes cases representative of the typical work performed by the appellant.  The appellant devotes significantly more than 25 percent of her time handling Type II cases.  Below is a synopsis of the appellant’s recent work.

Case 1 is a case that is not completed, and where some of the information cannot be made public yet.  The appellant stated she is leading a case involving air enforcement against one of the largest power plants in the world, which includes more than 3,500 counts.  The appellant has been involved in many of the details of the case, including ensuring evidence was collected, calculating the penalty, and developing a comprehensive complaint and strategy to advance the case and move it to trial.  The case is voluminous in facts and circumstances, and involves complex and difficult legal issues.  The appellant stated her organization may use the results of this case to advance other cases against similar industries.  The case involves facts that may affect a significant segment of both private and public interests, and has been strongly contested by experienced legal counsels.  If a settlement is reached, it is expected to be a “large” sum of money, closer to $100,000, not a “very large” sum of money, of closer to $1,000,000 (The purchasing power of that amount in 1959, when the PCS was published, equates to about $8,068,000 in 2014, according to Bureau of Labor Statistics figures).

Case 2 is another case that is not completed, and where some of the information cannot be made public yet.  The appellant stated she has assisted in gathering evidence regarding an investigation of a large, big-box store that was selling unregistered pesticides.  The case would have involved more than 2,300 counts, if it were to have proceeded to trial.  After several months of settlement negotiations, the store terminated the negotiations, and the appellant began to secure expert witnesses for the trial.  However, the store worked with EPA to reopen settlement discussions, and a settlement was reached for $348,600.

Case 3 is another case that is not completed, and where some of the information cannot be made public yet.  The appellant stated she is pursuing a settlement estimated between $750,000 and $775,000 from a large paper company for distributing or selling unregistered pesticide products.  If litigated, the penalty sought will be in the millions of dollars.  Thousands of violations are expected.

These three cases are Type II cases.  All three cases involve difficult, but not extremely complex or legal questions typical of Type III cases.  All three cases may impact a significant segment of private or public interests, but none has a substantial impact on the power-plant, big-box store, or paper-company industries.  None of the cases affects the stability of the general economy, which would be typical of Type III cases.  Although these cases have been or are being strongly contested, they have not been “vigorously” contested, as would be typical in a major anti-trust case.  A “large”, but not a “very large” sum of money is involved in all three cases, which also makes these Type II cases.

We have also fully considered the appellant’s technical program legal advisory functions:

FIFRA Training Workgroup.  The appellant participates in the EPA Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) national training workgroup.  According to the appellant, she was selected to participate with a cadre of EPA headquarters-based, and “expert” attorneys because of her expertise in FIFRA national inspector training.  Assignments have included assisting with restructuring the FIFRA Inspection Manual, developing a three-day training course, and conducting the training course nationwide twice a year to EPA inspectors, EPA case developers, and EPA attorneys.  The appellant instructs EPA inspectors how to effectively inspect and detect violations, and to ensure that critical evidence is collected.  The appellant also instructs EPA case developers and EPA case attorneys on how to manage enforcement cases from development, to negotiation, to settlement or litigation.  The training impacts EPA’s credibility and expertise as an enforcement agency regarding organizations affected by FIFRA.

National Bee Kill Inspection Guidance Workgroup.  The appellant participated in developing the EPA Guidance for Inspecting Alleged Cases of Pesticide-Related Bee Incidents.  The appellant stated her participation was requested because of her FIFRA expertise, her expertise in training EPA inspectors on evidence collection, as well as her legal expertise.  While the guidance is complete, the appellant is still participating with the workgroup that developed the guidance.  The guidance is a supplement to the FIFRA Inspection Manual, and is designed to assist Federal, State, and tribal inspectors determine if bee deaths are related to pesticides.  Improving the investigations of the death of bees through this guidance assists the EPA work more collaboratively with the U.S. Department of Agriculture, States, tribes, beekeepers, growers, and pesticide manufacturers to enhance pollinator protection and ensure a safe food supply.

These two cases are Type II cases.  The appellant is a participant, and not the lead on these two workgroups.  However, as a participant, the appellant’s work is related to difficult or factual questions involved in creating a new inspection manual or guidance, typical of Type II cases.  The work does not involve the extremely complex and difficult legal questions and factual issues necessary for developing these documents, and it does not require a balancing of conflicting interests between EPA, its governmental partners, and the public, which would be typical of Type III cases.  The documents, although containing complex factual issues that required extensive analysis, do not contain controversial areas of science, which would be typical of Type III cases.  The documents used by EPA and other governmental officials directly impact the livelihood of private and public organizations, typical of Type II cases.  Because the appellant is one of many who contribute to these workgroups, her individual work only indirectly impacts activities of U.S. Department of Agriculture, States, tribes, beekeepers, growers, pesticide manufacturers, and the nationwide food supply.  Although the appellant contributed knowledge and expertise to these areas, including developing and providing FIFRA-related training twice a year, this work as a whole does not meet the Type III level.

Based on our analysis of the cases presented by the appellant, we find that none of the cases fully meets Type III.  Therefore, this factor is credited with Type II.

Factor 2, Level of Responsibility

This factor includes the nature of functions performed, supervision and guidance received, personal work contacts, and the nature and scope of recommendations and decisions.  Three of the five levels under this factor are defined in the standard (Levels A, C, and E).  The other two levels (B and D) are not defined in the standard but may be assigned as appropriate.  The levels under Factor 2 are described in terms of typical characteristics.  Accordingly, the intervening Level B is appropriate when, for example, a position compares with Level A in some respects and Level C in others.  The intervening level is also appropriate when a position falls clearly between two of the levels described with respect to the majority of elements.

          Nature of functions

At Level C, incumbents conduct legal research in connection with: (1) cases pending administrative hearings, trial before courts of original jurisdiction, or argument in appellate courts; (2) legal questions referred by administrative officials of the employing agency, such as questions concerning the interpretation and application of statutes, rules, and regulations as they pertain to contracts, claims, or other legal instruments involving private business, State, local, national, or foreign governments; and (3) questions regarding the effects of provisions of proposed legislation or proposed changes in agency policies or regulations.

At Level E, incumbents conduct several examples of functions including reviewing records of suits to determine whether to recommend appeal to a higher court, drafting legislation or preparing reports on changes in basic legislation, and acting as principal attorney in charge of recommending the policies and developing the procedures and regulations implanting new or amended legislation for the agency.  One example includes acting as principal attorney in charge of the preparation and presentation of cases before administrative tribunals, or before trial or appellate courts where the cases are of such scope that they may warrant the assistance of one or more attorneys, and are of such importance, that they frequently involve matching professional skills against some of the most distinguished and highly paid legal talent in the country. 

The appellant is a principal attorney in charge of cases assigned, including the three addressed earlier involving air enforcement of a large power plant, and two large companies that were selling unregistered pesticides; two of the three cases involved thousands of counts.  The appellant is the attorney in charge for all three, sometimes leading a team of three to five people, including other attorneys, to ensure evidence is collected, the penalty calculated, and a comprehensive strategy developed to advance the cases and move them to trial or settlement negotiations.  The appellant also meets directly with the attorneys for these large companies, who are recognized for their specialty in environmental law.  The nature of function of the appellant’s work is comparable to Level E.

          Supervision and guidance received

At Level C, incumbents independently plan, organize, and conduct studies of the mill run of legal problems, cases, or legislative proposals encountered in their respective programs.  They are apprised of any unusual circumstances surrounding the case or the problem, any background information which must be considered, and any important policy considerations that will govern development of the case or the solution.  Beyond this, they normally work independently in investigating the facts, searching legal precedents, defining the legal and factual issues, drafting the necessary legal documents, and developing conclusions and recommendations.

At Level E, incumbents carry out any assignments within their area of responsibility without preliminary instruction.  At the time an assignment is made, the supervisor may discuss the significance of the problem and give any background information received.  From this point, the incumbent independently conducts the investigation or negotiation, plans the approach, and develops the completed decision, report, brief, opinion, contract, or other product; or represents the Government at the conference, hearing, or trial.  Where a hearing or trial is involved, the supervisor may be briefed on the overall approach to be taken and the line of argument to be pursued, especially where an important precedent effect is anticipated or there is widespread public interest in the outcome.  Completed work in the advisory or legislative and regulatory areas is reviewed before it is signed out for consistency with agency policy, for possible precedent effect, and for overall effectiveness.

The appellant carries out her duties independently.  She develops her cases, reviews and gathers the evidence to support the cases, negotiates the terms of a settlement, or develops a trial strategy.  Supervisory direction is minimal, other than to give background information for assignments.  The supervisor generally accepts the majority of the recommendations, strategies, and documents generated by the appellant. The supervisor does review completed work before it can be approved by the program clients.  The supervision and guidance of the appellant’s work is comparable to Level E.

          Personal work contacts

At Level C, incumbents must be effective in presentation, exposition, and argument in presenting cases to administrative hearings and to courts.  Attorneys participate in pretrial or prehearing conferences with industry representatives or private citizen claimants, defendants, or petitioners and their attorneys, explain points of law, charges, or qualifications of claimants, and refer suggested settlements or compromise offers to superiors with appropriate recommendations. They advise negotiating officials in legal contractual matters by recommending appropriate clauses, provisions, and general wording.  Also characteristic of this level is participation in conferences with representatives of operating programs, State and local governments, industry, private organizations (e.g., veterans organizations, professional associations), or other Government agencies in developing or evaluating proposed changes in legislation or agency policies or regulations.  Incumbents participate in negotiations concerning conflicts in State and Federal regulations with State officials.  Incumbents assist the staffs of congressional committees in technical drafting of legislation.

At Level E, incumbents are characterized by the most responsible personal contacts, examples of which include: (1) conferring or negotiating with top administrative personnel in the agency, private business, or State, local, or foreign governments on important legal and policy questions; (2) advising and assisting congressional committees and their staffs in drafting legislation or giving expert testimony before congressional hearings on legislative proposals; and (3) trying cases before courts or administrative bodies.

The appellant has regular contact with the Associate Division Director of the Waste and Chemicals Division of the headquarters-based Office of Enforcement and Compliance Assurance (OECA) on national issues relating to trial practice, motion practice, and the practice of law and policy under FIFRA.  She also briefs branch chiefs and the Regional Counsel on various legal issues.  Most of her contacts as a trainer for FIFRA-related training are with other Federal employees.  She also has regular contact with other EPA attorneys and with attorneys representing companies in settlement negotiations or trials.  These personal work contacts meet Level C.  Although she has occasional contacts with Administrative Law Judges as part of the trial work she leads, typical of Level E, they are not frequent enough to warrant fully meeting Level E.  Level D is met instead.  Other than her regular contact with the Associate Division Director of the Waste and Chemicals Division of OECA, the record does not show she regularly meets with other top administrative personnel, normally high-level management at headquarters, at EPA, other Federal agencies, or State, local, or foreign governments, typical of Level E.  Level D is met instead.  The record does not show she advises or assists with Congressional committees and their staffs, typical of Level E.   The appellant’s personal work contacts are comparable to Level D.

          Nature and scope of recommendations and decisions

At Level C, recommendations of incumbents to those outside the agency or to administrative officials at higher levels are normally made through the supervisor.  Examples of recommendations characteristic of this level include: (1) whether to initiate criminal or civil suits against alleged violators of Federal laws and regulations; (2) settlement of claims against the Government brought by private citizens; (3) the organization, order of presentation, and line of argument to be used in the presentation of cases or hearings delegated to the incumbent as the trial attorney; (4) settlement of suits brought by the government against others (e.g., offers in compromise in income-tax cases); (5) replies to requests for legal advice or interpretations of law arising out of the day-to-day operations of agency programs; (6) substantive changes in legislation and agency policies or regulations to make them more equitable, responsive to needs, or easier to administer;  and (7) whether to approve a contract or other legal document in its proposed form and content.

At Level E, recommendations of incumbents are similar to those characteristic of Level C.  The major difference is that at this level, advice on the interpretation of law or on proposed changes in legislation, policy, and regulations, is often given directly to heads of programs, bureau chiefs, cabinet officers, congressmen, or representatives of State and local governments.  In some instances, recommendations are made through supervisors, as at Level C, but these recommendations are usually tantamount to final decision.  This is particularly pertinent to positions concerned with recommending whether to prosecute cases or to appeal adverse decisions in agencies responsible for litigation.  Incumbents are responsible for recognizing when the matter under discussion is of such precedent-setting nature or of such importance or delicacy, that his or her advice must be cleared with superiors before it is given out.  Attorneys at this level often deal with matters of such scope and complexity, that they require the concentrated efforts of several attorneys or other specialists.  In such circumstances, attorneys at this level are normally responsible for directing, coordinating, and reviewing the work of the team.

Most of the appellant’s recommendations, strategies, and documents generated are accepted by her supervisor.  The supervisor stated she defers a great deal to the appellant in her areas of specialty.  This is typical of Level E.  The appellant also often deals with cases that she leads, which require several other staff members and attorneys to assist her.  She coordinates and reviews the work of the team.  This is also typical of Level E.  However, the record does not show that the appellant’s interpretation of law, legislation, policy, or regulations is given directly to heads of programs, bureau chiefs, cabinet officers, Congressmen, or top officials in State or local governments, typical of Level E.  Her work with FIFRA and the National Bee Kill Inspection Guidance workgroups is more closely related to Level C, where her technical and legal advice and training regarding Federal requirements assists inspectors in applying them.  Thus, we find the nature and scope of recommendations and decisions of the appellant’s work is comparable to Level D.

Our crediting of two elements at Level E and two elements at Level D for this factor results in a borderline situation.  The standard for the adjustment of borderline situations for this factor is to consider the stature of the incumbent in the work environment.  This feature recognizes that there are aspects of an attorney’s work that cannot always be fully evaluated in terms of the criteria spelled out in the body of the standard.  Stature is usually attained through accomplishments of enduring significance, i.e., the attorney’s opinions are generally recognized by other attorneys as especially authoritative and are sought after and given special weight.

Because of the appellant’s recognized expert knowledge of FIFRA, evidence collection, and litigation matters, she is often consulted for advice and guidance by her colleagues.  In addition to general requests for information, she has given more than 40 national talks on these subjects, is a member of the National Bee Kill Guidance workgroup, and is a member of the FIFRA national training workgroup.  She also has been recognized for her work in developing and conducting agency-wide training on FIFRA to EPA staff. 

The appellant also has conducted other training sessions on behalf of the agency, including training on prehearing exchanges for administrative hearings, training to managers on inspections for their staff, and training to inspectors working on the Clean Water Act.  One of her training programs has been used as an example for other EPA training.

We find these areas of responsibility have an enduring significance, and recognize the appellant’s high level of stature in her organization.  For these reasons, we assign Level E for this factor.

Summary

By application of the Grade-Level Conversion Chart in the GS-905 PCS, a Type II, Level E position converts to grade GS-14.

Decision

The appealed position is properly classified as General Attorney, GS-905-14.

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