Jul 10, 2018

Brave New World For ALJs

Executive Order Excepting Administrative Law Judges from the Competitive Service Issued on: July 10, 2018 

By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301 and 3302 of title 5, United States Code, it is hereby ordered as follows:
 Section 1. Policy. The Federal Government benefits from a professional cadre of administrative law judges (ALJs) appointed under section 3105 of title 5, United States Code, who are impartial and committed to the rule of law. As illustrated by the Supreme Court’s recent decision in Lucia v. Securities and Exchange Commission, No. 17-130 (June 21, 2018), ALJs are often called upon to discharge significant duties and exercise significant discretion in conducting proceedings under the laws of the United States. As part of their adjudications, ALJs interact with the public on issues of significance. Especially given the importance of the functions they discharge ‑‑ which may range from taking testimony and conducting trials to ruling on the admissibility of evidence and enforcing compliance with their orders ‑‑ ALJs must display appropriate temperament, legal acumen, impartiality, and sound judgment. They must also clearly communicate their decisions to the parties who appear before them, the agencies that oversee them, and the public that entrusts them with authority.
Previously, appointments to the position of ALJ have been made through competitive examination and competitive service selection procedures. The role of ALJs, however, has increased over time and ALJ decisions have, with increasing frequency, become the final word of the agencies they serve. Given this expanding responsibility for important agency adjudications, and as recognized by the Supreme Court in Lucia, at least some ‑‑ and perhaps all ‑‑ ALJs are “Officers of the United States” and thus subject to the Constitution’s Appointments Clause, which governs who may appoint such officials.
As evident from recent litigation, Lucia may also raise questions about the method of appointing ALJs, including whether competitive examination and competitive service selection procedures are compatible with the discretion an agency head must possess under the Appointments Clause in selecting ALJs. Regardless of whether those procedures would violate the Appointments Clause as applied to certain ALJs, there are sound policy reasons to take steps to eliminate doubt regarding the constitutionality of the method of appointing officials who discharge such significant duties and exercise such significant discretion.
Pursuant to my authority under section 3302(1) of title 5, United States Code, I find that conditions of good administration make necessary an exception to the competitive hiring rules and examinations for the position of ALJ. These conditions include the need to provide agency heads with additional flexibility to assess prospective appointees without the limitations imposed by competitive examination and competitive service selection procedures. Placing the position of ALJ in the excepted service will mitigate concerns about undue limitations on the selection of ALJs, reduce the likelihood of successful Appointments Clause challenges, and forestall litigation in which such concerns have been or might be raised. This action will also give agencies greater ability and discretion to assess critical qualities in ALJ candidates, such as work ethic, judgment, and ability to meet the particular needs of the agency. These are all qualities individuals should have before wielding the significant authority conferred on ALJs, and each agency should be able to assess them without proceeding through complicated and elaborate examination processes or rating procedures that do not necessarily reflect the agency’s particular needs. This change will also promote confidence in, and the durability of, agency adjudication
Sec. 2. Excepted Service. Appointments of ALJs shall be made under Schedule E of the excepted service, as established by section 3 of this order.
Sec. 3. Implementation. (a) Civil Service Rule VI is amended as follows:
(i) 5 CFR 6.2 is amended to read:
OPM shall list positions that it excepts from the competitive service in Schedules A, B, C, and D, and it shall list the position of administrative law judge in Schedule E, which schedules shall constitute parts of this rule, as follows:
Schedule A. Positions other than those of a confidential or policy-determining character for which it is not practicable to examine shall be listed in Schedule A.
Schedule B. Positions other than those of a confidential or policy-determining character for which it is not practicable to hold a competitive examination shall be listed in Schedule B. Appointments to these positions shall be subject to such noncompetitive examination as may be prescribed by OPM.
 Schedule C. Positions of a confidential or policy-determining character shall be listed in Schedule C.
 Schedule D. Positions other than those of a confidential or policy-determining character for which the competitive service requirements make impracticable the adequate recruitment of sufficient numbers of students attending qualifying educational institutions or individuals who have recently completed qualifying educational programs. These positions, which are temporarily placed in the excepted service to enable more effective recruitment from all segments of society by using means of recruiting and assessing candidates that diverge from the rules generally applicable to the competitive service, shall be listed in Schedule D.
 Schedule E. Position of administrative law judge appointed under 5 U.S.C. 3105. Conditions of good administration warrant that the position of administrative law judge be placed in the excepted service and that appointment to this position not be subject to the requirements of 5 CFR, part 302, including examination and rating requirements, though each agency shall follow the principle of veteran preference as far as administratively feasible.
 (ii) 5 CFR 6.3(b) is amended to read:
 (b) To the extent permitted by law and the provisions of this part, and subject to the suitability and fitness requirements of the applicable Civil Service Rules and Regulations, appointments and position changes in the excepted service shall be made in accordance with such regulations and practices as the head of the agency concerned finds necessary. These shall include, for the position of administrative law judge appointed under 5 U.S.C. 3105, the requirement that, at the time of application and any new appointment, the individual, other than an incumbent administrative law judge, must possess a professional license to practice law and be authorized to practice law under the laws of a State, the District of Columbia, the Commonwealth of Puerto Rico, or any territorial court established under the United States Constitution. For purposes of this requirement, judicial status is acceptable in lieu of “active” status in States that prohibit sitting judges from maintaining “active” status to practice law, and being in “good standing” is also acceptable in lieu of “active” status in States where the licensing authority considers “good standing” as having a current license to practice law. This requirement shall constitute a minimum standard for appointment to the position of administrative law judge, and such appointments may be subject to additional agency requirements where appropriate.
(iii) 5 CFR 6.4 is amended to read:
Except as required by statute, the Civil Service Rules and Regulations shall not apply to removals from positions listed in Schedules A, C, D, or E, or from positions excepted from the competitive service by statute. The Civil Service Rules and Regulations shall apply to removals from positions listed in Schedule B of persons who have competitive status.
 (iv) 5 CFR 6.8 is amended to add after subsection (c):(d) Effective on July 10, 2018, the position of administrative law judge appointed under 5 U.S.C. 3105 shall be listed in Schedule E for all levels of basic pay under 5 U.S.C. 5372(b). Incumbents of this position who are, on July 10, 2018, in the competitive service shall remain in the competitive service as long as they remain in their current positions.
 (b) The Director of the Office of Personnel Management (Director) shall:
 (i) adopt such regulations as the Director determines may be necessary to implement this order, including, as appropriate, amendments to or rescissions of regulations that are inconsistent with, or that would impede the implementation of, this order, giving particular attention to 5 CFR, part 212, subpart D; 5 CFR, part 213, subparts A and C; 5 CFR 302.101; and 5 CFR, part 930, subpart B; and
 (ii) provide guidance on conducting a swift, orderly transition from the existing appointment process for ALJs to the Schedule E process established by this order.
 Sec. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
 (i) the authority granted by law to an executive department or agency, or the head thereof; or
 (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
 (b) This order shall be implemented in a manner consistent with applicable law and subject to the availability of appropriations.
 (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
 DONALD J. TRUMP THE WHITE HOUSE, July 10, 2018. 

23 comments:

concerned alj said...

Simply a maneuver byM Mulvaney Heritage Heritage, et.al. to further the politicization of the federal ranks. If administration wanted to "protect" aljs as a result of the Lucia decision, it could simply have them appointed. What was a system designed (by the apa via congress, who recognized the potential for agency pressure and bias) to protect adjudicatory independence without political pressures, is now being transferred to just another tool to further the administration's agendas.

Anonymous said...

I guess The Secret actually works. For years, reps on this blog and elsewhere have bemoaned what they've believed to be internal agency pressure or instruction to award fewer benefits leading to the steady decline in the overall favorable rate. Well, now you might actually see an administration make such directives for any ALJ appointed after this EO. The windmills you've been tilting at might soon become dragons.

Anonymous said...

So, to become an ALJ, you will now have to get on the hiring list which will be maintained by the Heritage Foundation?

Will current ALJ's, who are not appointed by the Trump's new commissioner, lose their positions?

Anonymous said...

I’d bet President Trump never even read this executive order and that he only signed it. I’ve seen him sign his name, I certainly can’t take that away from him.

Anonymous said...

I look forward to the chaos when incoming Presidents of a different party remove all sitting Schedule E ALJs appointed by their predecessors...

This also creates the inequity of having two tiers of ALJs: civil service ALJs grandfathered in from OPM testing days, and the new patronage ALJ hires. How long before that right seeks to "fix" that under Equal Protection or First Amendment grounds?

Anonymous said...

It's war then....

Anonymous said...

Mole hill.

Anonymous said...

Can this be challenged by the ALJ unions? This is in obvious violation of the APA, which as 10:17 mentioned, was enacted by Congress. A challenge, even if lost, would delay this EO until closer to 2020, when (hopefully) a democrat will be back in the White House. Also, with no acting Commissioner, how can SSA hire new ALJs now? Who will appoint them? Will the acting Commissioner do it? I'm sure that's not what this EO has in mind. With no indication on when the nominated Commissioner will be considered by Congress, this will put a freeze on ALJ hiring and further contribute to the backlog.

What a mess. We're running the risk of an ALJ corps filled with Heritage Foundation endorsements. You thought the new ALJs were low payers now? And if/when the White House changes parties and gets to appoint a new Commissioner, there will be chaos as the new Commissioner appoints his/her favored ALJs.

David Tucker said...

ALJ's impartial??

Hahahahaha!!! Good one.

Anonymous said...

Look, this is a huge change for ALJs but y'all obviously don't know the first thing about Excepted Service hiring and how SSA currently runs it. Here's some info: SSA does extra procedures that look like Competitive Service rule following even when most all these positions could be hired without so much as posting on USAJobs. It still gives vets heavy preference when it's easy to skirt that for Excepted Service positions. It sets up structured interviews and, recently, testing (a timed, extemporaneous writing sample)! Just ask anyone who applied for one of the hundreds of recent Excepted Service attorney advisor positions how rigorous and objective that process was.

Oh, and I forgot to mention: SSA already has and hires independently an Excepted Service decision maker: the AAJ job at the AC. And that posting/hiring process is posted openly and is robust and not just a secret selection of favorites, though naturally folks who've hung around OAO for a while tend to get the lionshare of spots. Imagine that--subject matter experts from the unit getting its decision maker spots. The horror.

Unless the administration takes over the process, I see our top brass doing what they already do with our Excepted Service hiring: a rather rigorous process that greatly exceeds statutory requirements for Excepted Service hiring and that is generally pretty straightforward and fair.

Anonymous said...

As an old timer I never thought I'd see the day where the mighty ALJs would be brought down from their lofty perch. Now comes an end to the era of ALJs thinking they are untouchable and better than every other person in the office. M. Zahm and her bunch must be livid. Let the self-righteous out crying begin.

Anonymous said...

@4:01 PM you opened the door to some interesting questions. Will there be a new mechanism put into place for ALJs and AAJs to exchange positions since they are both now excepted service? Will GS-13s be allowed to put in for ALJ under the new excepted service hiring? As it is now you have to be a GS-14 to put in for AAJ, will it now be the same to become ALJ. And bigly important for you OAO peeps, how will the AC remain competitive for staff in this new world? Meaning, will the AC have to start better leveraging itself in order to retain its adjudicator and senior attorney staff? If I were Gerald and Pat in this brave new world Trump created, I'd be worried about a growing exodus of OAO decisionmakers seeking to join the ranks of this new ALJ core across the country. Ongoing hiring for ALJs is likely to occur a lot more often than you would for AAJs. I rarely see announcements for AAJ positions and they are usually all located in the northeast part of the country.

Anonymous said...

4:01, your glowing description of the attorney examiners who masquerade as AJs for the Appeals Council tells me that you've never actually read an AC remand. Subject matter experts? At the AC? Nah. Maybe a few, but they're rare.

Anonymous said...

Oh Yeah 4:10 that is definitely how it will work until it comes to a family member. Nepotism is job #1 at SSA, less so at OHO but not by much.

Anonymous said...

AAJs are “subject matter experts”? Seriously? No career bureaucrat without experience in the practice of Social Security law reasonably can be deemed an “expert” in Social Security law. Lack of context undermines
any such assertion.

Anonymous said...

@4:01, and what about those already on the Register or those, like me, who prepared for the examination and traveled to DC to take it and are awaiting scores? Any consideration for those individuals?

Anonymous said...

Question

Let's say a President who doesn't like Social Security appoints as Commissioner someone with an agenda for undermining the agency's mission and purpose. Would this executive order enable the President to then seed the ranks of ALJs with individuals likely to further that undermining goal? What if any safeguards exist to prevent that, other than voting out the President and then purging the poison pills?

Anonymous said...

@ 9:17

with how jealously the AC has guarded it's higher graded positions from OHO people, I sure hope we lock out their folks with ALJ spots. They already made out like bandits going to that new DC level component OARO--tons of 14s, etc. will be created if they haven't been already that will go almost entirely to AC folks. Let them stay in the kingdom they've created and we'll stay in the one they forced us into.

Anonymous said...

@ 7:17

I'm in the group who just found out our NORs, set to arrive in the coming weeks, will never come. I have to live with never even knowing if I was going to be on the register. To your question, yeah it's painful and unfortunate 1,500 people took time and spent money to go to DC and invested themselves in the process. But I'll fast forward through all the legal stuff we could talk about re: our rights for redress and just get to the part where I shrug my shoulders and say you and I both know we aren't getting anything. As a wise man once said, sometimes it bees like that.

Anonymous said...

i get people are upset, but please don't take your frustration out on the AC. the AC didn't create this chaos that's been set upon the ALJs. and I beg to differ to those who describe the AC as inexperienced with no real life experience, AC members come from all over with people from OGC, previous claimant reps, hearing office ALJs, and yes some have previous AC experience.

Tim said...

I am trying to feel sympathy for those who took the tests, etc. But, it's kind of like Cowboy fans who didn't want the Patriots to win against the Eagles. In other words, Cowboy fans who "wanted" to cheer for the Eagles, but just couldn't. After being denied by an ALJ and not able to work after 4 1/3 years, I have no sympathy for any government employees or potential ones. Sorry.

Anonymous said...

I dunno, 5:37

Every 13 or greater AC posting I've seen has multiple choice KSAs that are easy for any OHO or AC person to max out, except for the last question involving your AC-specific case processing system. In that environment, missing out on those three points or whatever will almost surely prevent you from making the BQ cutoff score, essentially limiting those job to current AC people. OHO doesn't ever require specific familiarity with CPMS in our postings to wall y'all out of our jobs...Also, by making the AAJ require 52 weeks at GS-14, you're only allowing the small handful of OHO attorney HODs, Regional Attorneys, Quality Review Officers, and RMOs (do we even have an attorney RMO yet?). Maybe a tiny handful of OHO attorneys in FC. You largely limit the universe to AC and OGC attorneys. I just think it's high time OHO returned the favor.

Anonymous said...



challenging questions @9:17. onpoint and astutely framed.