Proposed regulations implementing a 2018 executive order confirm that existing judges at federal agencies will not be subject to the change unless they transfer to another agency or leave and return to federal service, but they will no longer be eligible for a number of financial incentive programs.
The Office of Personnel Management on Friday moved to formally implement a 2018 executive order switching administrative law judges from the competitive hiring process to the excepted service, giving the president and agency heads broader latitude in appointments.
Traditionally, administrative law judge candidates have been vetted by OPM, which would then create a list of qualified applicants from which an agency could choose. But following the Supreme Court decision Lucia v. Securities and Exchange Commission, which found that administrative law judges at the SEC were inferior officers per the Appointments Clause of the Constitution and required direct agency head appointment, President Trump issued an executive order moving all ALJ hiring to the excepted service.
Democrats, administrative law judges and advocacy groups have said they fear the move will reduce protections for judges in the long run and open the door to politicization of the administrative law judge corps.
But in proposed regulations scheduled for publication in the Federal Register on Monday, OPM appears to have preserved many judges’ protections, at least for now. Procedures for discipline in particular will remain the same for ALJs even if they are hired as members of the excepted service.
“Adverse actions against ALJs are governed by . . . regulations issued by the Merit Systems Protections Board,” OPM wrote. “These provisions likewise make no distinction between competitive service and excepted service ALJs. Therefore, under the proposed rule, the MSPB procedures prescribed in [the law and MSPB regulations] will apply to an agency action to remove, suspend, reduce in level, reduce pay, or furlough for 30 days or less an ALJ in the competitive or excepted service.”
The regulations reiterate that current administrative law judges will remain in the competitive service, even if they are promoted, reassigned or relocated within a federal agency. But if ALJs transfer to a different federal agency, or if they leave federal service and are rehired, they will be moved to the excepted service.
Given that some administrative law judges are considered inferior officers, per the Lucia decision, any reassignment or promotion that constitutes a “significant position change” requires the agency to provide documentation that the agency head has approved the change.
The regulations reduce the governmentwide minimum qualifications required of an ALJ candidate to the “possession of a professional license to practice law and being authorized to practice law,” although individual agencies will have the authority to add “additional requirements . . . when appropriate,” OPM wrote.
Additionally, the prohibition on agencies’ rating the job performance of administrative law judges remains intact. But OPM said that rule also means that ALJs will no longer be eligible for cash incentives, including recruitment, relocation or retention incentives, since the regulations governing those awards requires an employee to be rated as “Fully Successful.”
“Similarly, the proposed rule further establishes that ALJs are not eligible for the student loan repayment program because . . . an employee must maintain an acceptable level of performance to receive student loan repayment benefits,” OPM wrote. “An ALJ cannot meet the requirements for these incentives and payments because an agency may not rate the job performance of an ALJ in either the competitive or excepted service.”
OPM is soliciting comments on the proposed regulations between now and Oct. 19.