Appointment, Pay, and Removal of Administrative Law Judges

Federal RegisterFeb 23, 1998

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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 930

RIN 3206-AI08

Appointment, Pay, and Removal of Administrative Law Judges

AGENCY: Office of Personnel Management.

ACTION: Proposed rule.

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SUMMARY: The Office of Personnel Management (OPM) proposes to revise

the regulations governing the appointment, pay, and removal of

administrative law judges appointed under 5 U.S.C. 3105. Among the

major revisions, these regulations would permit an above-the-minimum

pay rate for reinstatement eligibles with superior qualifications;

permit promotion of a judge to an AL-1 position after 52 weeks in an

AL-3 or AL-2 position; permit details from other agencies when an

agency has insufficient work to employ a full-time administrative law

judge; place a limit of 1 year on details from other agencies with a

possible extension of up to 1 year; and give agencies the option of

filling a vacancy by selecting a current administrative law judge

employed within the agency or selecting one from OPM's priority

referral list.

DATES: Written comments will be considered if received on or before

April 24, 1998.

ADDRESSES: Send or deliver written comments to Mary Lou Lindholm,

Associate Director for Employment, Office of Personnel Management, Room

6F08, 1900 E Street NW., Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT: Juanita Love on 202-606-4890, FAX 202-

606-0584, or TDD 202-606-0023.

SUPPLEMENTARY INFORMATION: The administrative law judge function was

established by the Administrative Procedure Act (APA) of 1946.

Administrative law judges preside at formal hearings, which agencies

are required by statute to hold, and make or recommend decisions on the

basis of the record. The APA requires that this function be carried out

in an impartial manner. To assure the objectivity of judges and

insulate them from improper pressure, the APA made them independent of

their employing agencies in matters of tenure and compensation.

Further, the Office of Personnel Management (OPM) is charged with

administering merit selection and pay systems for judges, and

regulations covering these matters are in 5 CFR part 930, subpart B.

OPM proposes to revise the regulations to make a number of substantive

and editorial changes, as follows.

Section 930.203 Examination

The current regulation contains a detailed description of the

components and scoring of the examination. We propose to delete this

description as unnecessary because the examination announcement

contains a more detailed description, and OPM makes the announcement

readily available. The regulation also contains numerous references to

``OPM Examination Announcement No. 318,'' the announcement for

administrative law judge positions. We believe these references also

are unnecessary in regulation and plan to delete them as other

examination announcement numbers and descriptions of examination

components and scoring are not routinely published in regulation.

Section 930.204 Appointment (Formerly Sec. 930.203a)

We are renumbering section 203a and subsequent sections in subpart

B to conform with publication numbering requirements.

Paragraph (c)(3) of this section addresses appointment of employees

whose positions are classified as administrative law judge positions by

legislation, Executive order, or court decision. An agency has six

months after such classification to recommend to OPM that the incumbent

be appointed as an administrative law judge. We propose to delete this

requirement and instead rely on the terms of the legislation, Executive

order, or court decision for any time frames for appointment.

Paragraph (c)(4) of this section provides that in an emergency

situation OPM may authorize a conditional appointment of an

administrative law judge pending final decision on the individual's

appointment eligibility. We propose to delete this provision as

inconsistent with the intent of the APA that administrative law judges

serve without condition.

Section 930.205 Promotion (Formerly Sec. 930.204)

We propose to transfer the one-year service requirement for

promotion from Sec. 930.210 to this section and change the period to 52

weeks to be consistent with the waiting period for pay increases for

judges at level AL-3 and before transfer to a different agency. We also

propose to grant agencies the discretion to require 52 weeks of service

at either the AL-2 or AL-3 level when filling a position at AL-1. This

change will enable an agency to consider its own administrative law

judges when filling a chief judge position at AL-1.

In addition, we clarify that an agency has the authority to promote

a current administrative law judge when an existing managerial position

at AL-1 or AL-2 is vacated or a new managerial position is established.

Section 930.211 Pay (Formerly Sec. 930.210)

An agency may pay, with OPM approval, an above-the-minimum rate to

a candidate with superior qualifications who is appointed from a

certificate of eligibles to a position at level AL-3. We propose to

expand this authority in paragraph (g)(2) to include reinstatement

eligibles with superior qualifications.

We added a new paragraph to clarify that an agency may reduce the

level or pay of an administrative law judge for good cause only after

the Merit Systems Protection Board has specified such action.

In addition, we deleted paragraphs (j) through (m). These

paragraphs provided instructions for implementing the current pay

system authorized by the Federal Employees Pay Comparability Act of

1990. Since all administrative law judges have been converted to the

current pay system, these paragraphs are no longer needed.

[[Page 8875]]

Section 930.214 Use of Administrative Law Judges on Detail From Other

Agencies (Formerly Sec. 930.213)

This section provides for the detail of judges from one agency to

another one that is occasionally or temporarily insufficiently staffed

with judges. We propose to clarify this authority to include agencies

with insufficient work to detail an administrative law judge to conduct

and complete the hearing of one or more specified cases and issue

decisions. We also propose a one-year limit on all interagency details,

with the possibility of an extension of up to one additional year. This

maximum limit should be sufficient to satisfy agency needs.

Section 930.216 Reduction in Force (Formerly Sec. 930.215)

We propose permitting an additional flexibility to agencies when

administrative law judges affected by reductions in force are on OPM's

priority referral list for geographic locations where agencies wish to

fill vacant positions. This change would give agencies the option of

filling the vacant positions either from OPM's priority referral list

or by selection of administrative law judges currently employed by the

hiring agency. At the present time, agencies are allowed to fill the

vacant positions only through the priority referral list. OPM would

still retain the authority to grant exceptions to this order of

selection. This change will allow agencies to better manage their

administrative law judge workforce by giving them the flexibility to

make intra-agency reassignments when vacancies arise.

Miscellaneous

We made the following additional changes:

Moved the provision specifying the proper title for

administrative law judges to Sec. 930.201 from Sec. 930.203b, which is

abolished. A statement that administrative law judge positions are in

the competitive service is added to Sec. 930.201.

Moved the prohibition against awards from Sec. 930.210(b)

to Sec. 930.212.

Made revisions throughout the subpart to clarify in

certain situations that an applicant must meet the minimum

qualification requirements for administrative law judge positions

rather than take the examination.

Clarified throughout the subpart that administrative law

judges are given ``career absolute'' appointments.

Deleted reference in Sec. 930.215(c)(4) to Standard Form

171, Application for Federal Employment, which was abolished in 1994.

Application may be by resume, the Optional Form 612-Optional

Application for Federal Employment, or other written format.

Made various editorial changes.

Regulatory Flexibility Act

I certify that this regulation will not have a significant economic

impact on a substantial number of small entities because it pertains

only to Federal agencies.

Executive Order 12866, Regulatory Review

This rule has been reviewed by the Office of Management and Budget

in accordance with Executive Order 12866.

List of Subjects in 5 CFR Part 930

Administrative practice and procedure, Computer technology,

Government employees, Motor vehicles.

U.S. Office of Personnel Management.

Janice R. Lachance,

Director.

Accordingly, OPM proposes to amend 5 CFR part 930 as follows:

PART 930--PROGRAMS FOR SPECIFIC POSITIONS AND EXAMINATIONS

(MISCELLANEOUS)

Subpart B--Appointment, Pay, and Removal of Administrative Law

Judges

1. Subpart B is revised to read as follows:

Subpart B--Appointment, Pay, and Removal of Administrative Law Judges

Sec.

930.201 Coverage.

930.202 Definitions.

930.203 Examination.

930.204 Appointment.

930.205 Promotion.

930.206 Reassignment.

930.207 Transfer.

930.208 Reinstatement.

930.209 Restoration.

930.210 Detail and assignment to other duties within the same

agency.

930.211 Pay.

930.212 Performance rating and awards.

930.213 Rotation of administrative law judges.

930.214 Use of administrative law judges on detail from other

agencies.

930.215 Actions against administrative law judges.

930.216 Reduction in force.

930.217 Temporary employment: senior administrative law judges.

Authority: 5 U.S.C. 1104(a)(2), 1305, 3105, 3323(b), 3344,

4301(2)(D), 5372, 7521.

Subpart B--Appointment, Pay, and Removal of Administrative Law

Judges

Sec. 930.201 Coverage.

(a) This subpart applies to employment of administrative law judges

appointed under 5 U.S.C. 3105 for proceedings required to be conducted

in accordance with 5 U.S.C. 556 and 557.

(b) Administrative law judge positions are in the competitive

service. Except as otherwise provided in this subpart, the rules and

regulations applicable to positions in the competitive service apply to

administrative law judge positions.

competitive examinations for administrative law judge positions, and

agencies employing administrative law judges shall reimburse OPM for

the cost of developing and administering such examinations. Each

employing agency's share of reimbursement shall be based on its

relative number of administrative law judges as of March 31 of the

preceding fiscal year. OPM will work with employing agencies to review

the examination program for effectiveness and efficiency and identify

needed improvements, consistent with statutory requirements.

Subsequently, OPM will annually compute the cost of the examination

program and notify each agency of its share, along with a full

accounting of the costs, and payment procedures.

(d) The title ``administrative law judge'' is the official class

title for an administrative law judge position. Each agency will use

only this official class title for personnel, budget, and fiscal

purposes.

Sec. 930.202 Definitions.

In this subpart--

(a) Agency has the same meaning as given in 5 U.S.C. 551.

(b) Detail means the temporary assignment of an employee from one

position to another position without change in civil service or pay

status.

portion of the duties requires the appointment of an administrative law

judge under 5 U.S.C. 3105.

(d) Promotion means a change from a lower to a higher level

position.

(e) Reinstatement means reemployment authorized on the basis of the

appointee's absolute status as administrative law judge after an

earlier separation from an administrative law judge position.

(f) Removal means discharge of an administrative law judge from the

[[Page 8876]]

position of administrative law judge or involuntary reassignment,

demotion, or promotion to a position other than that of administrative

law judge.

Sec. 930.203 Examination.

(a) Periodic open competition. Applicants for administrative law

judge positions will be examined periodically in open competition as

announced by OPM. Applicants who demonstrate in their written

applications and supporting materials that they meet the minimum

qualifying experience requirements specified in the OPM examination

announcement will be eligible to compete in further examination

procedures.

(b) Preparation of certificates. When agencies request certificates

of eligibles to consider in filling vacant administrative law judge

positions, OPM will certify candidates from the top of the register.

Candidates are ranked on the basis of assigned final ratings, augmented

by veterans' preference points, if applicable. At least three eligible

applicants, if available, will be certified to the employing agency for

consideration for each vacancy.

applicants who are dissatisfied with their final rating may appeal the

rating to the Administrative Law Judge Rating Appeals Panel, Office of

Personnel Management, Washington, DC 20415, within 30 days after the

date of final action by the Office of Administrative Law Judges or such

later time as may be allowed by the Panel.

Sec. 930.204 Appointment.

(a) Prior approval. An agency may make an appointment to an

administrative law judge position only with the prior approval of OPM,

except when it makes its selection from a certificate of eligibles

furnished by OPM. When requesting OPM approval of an appointment to an

administrative law judge position or the issuance of a certificate of

eligibles, the requesting agency must demonstrate that its hearing

workload requires the appointment of an additional administrative law

judge(s) to get necessary work done. An appointment is subject to

suitability investigation in accordance with subparts B and C of part

731 of this chapter and subject to conflict of interest and security

clearance requirements by the appointing agency.

(b) Probationary and career-conditional periods. Administrative law

judges are given career appointments (commonly called career absolute

appointments) and placed in tenure group I. The requirements for

probationary and career-conditional periods do not apply to an

appointment to an administrative law judge position.

law judge positions. An agency may give a career absolute appointment

as an administrative law judge to an employee who is serving in a

position at the time it is classified as an administrative law judge

position on the basis of legislation, Executive order, or decision of a

court, if--

(1) The employee is serving under a career or career-conditional

appointment or an excepted appointment without time limit;

(2) The employee is serving in the position on the date of the

legislation, Executive order, or decision of the court, on which the

classification of the position is based;

(3) OPM receives a recommendation for the employee's appointment

from the agency concerned; and

(4) OPM finds that the employee meets the minimum qualification

requirements for the position.

(d) Appointment of incumbents of nonadministrative law judge

positions. Except as provided in paragraph (c) of this section, an

agency may not appoint an employee who is serving in a position other

than an administrative law judge position to an administrative law

judge position other than by selection from a certificate of eligibles

furnished by OPM from the open competitive register.

Sec. 930.205 Promotion.

(a) When OPM places an occupied administrative law judge position

at a higher level, OPM will direct the promotion of the incumbent

administrative law judge. The promotion will be effective on the date

named by OPM.

(b) When OPM places an administrative law judge position at level

AL-1 or AL-2 on the basis of the position's managerial and

administrative responsibilities, or an agency has a vacant position at

AL-1 or AL-2, the employing agency may promote one of its

administrative law judges to the position, provided the selection and/

or promotion is in accordance with regular civil service procedures.

advancing to a higher level. In filling a position in level AL-1, an

agency has the discretion to determine whether to consider

administrative law judges who have served at least 52 weeks in level

AL-3 but not 52 weeks in AL-2. Service in an equivalent or higher grade

level in other Federal civilian positions is creditable toward the 52-

week requirement.

Sec. 930.206 Reassignment.

With the prior approval of OPM, an agency may, without competition,

reassign an administrative law judge serving under career absolute

appointment to another administrative law judge position at the same

level in the same agency, provided the assignment is for bona fide

management reasons and in accordance with regular civil service

procedures and merit system principles.

Sec. 930.207 Transfer.

(a) With the prior approval of OPM, an agency may, without

competition, appoint an administrative law judge by transfer from an

administrative law judge position in another agency in accordance with

regular civil service procedures, provided the administrative law judge

maintains a current license 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 Constitution.

(b) An agency may not transfer a person from one administrative law

judge position to another administrative law judge position under

paragraph (a) of this section sooner than 52 weeks after the person's

last appointment, unless the gaining and losing agencies agree to the

transfer.

Sec. 930.208 Reinstatement.

With the prior approval of OPM, an agency may reinstate a former

administrative law judge who has served with career absolute status

under 5 U.S.C. 3105 in accordance with regular civil service

procedures, provided the former judge maintains a current license 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 Constitution. Reinstatement is subject to investigation by OPM in

accordance with part 731 of this chapter.

Sec. 930.209 Restoration.

Parts 352 and 353 of this chapter governing reemployment rights and

restoration to duty after uniformed service or recovery from

compensable injury apply to reemployment and restoration to

administrative law judge positions.

[[Page 8877]]

Sec. 930.210 Detail and assignment to other duties within the same

agency.

(a) An agency may not detail an employee who is not an

administrative law judge to an administrative law judge position.

(b) An agency may assign an administrative law judge (by detail or

otherwise) to perform duties that are not the duties of an

administrative law judge without prior approval of OPM only when--

(1) The other duties are consistent with the duties and

responsibilities of an administrative law judge;

(2) The assignment is to last no longer than 120 days; and

(3) The administrative law judge has not had an aggregate of more

than 120 days of those assignments or details within the preceding 12

months.

do so, OPM may authorize a waiver of paragraphs (b) (2) and (3) of this

section.

(d) An agency may detail an administrative law judge from one

administrative law judge position to another in the same agency,

without the prior approval of OPM, provided the detail is in accordance

with regular civil service procedures.

Sec. 930.211 Pay.

(a) OPM will place each administrative law judge position in one of

the three grades or levels of basic pay, AL-3, AL-2 or AL-1, of the

Administrative Law Pay System established for such positions under 5

U.S.C. 5372 in accordance with this section. AL-3 will have six rates

of basic pay, A, B, C, D, E, and F, ranging respectively in 5 percent

intervals from 65 percent of level IV of the Executive Schedule (EX-IV)

to 90 percent of EX-IV. AL-2 will have one rate of basic pay equal to

95 percent of EX-IV. AL-1 will have one rate of basic pay equal to 100

percent of EX-IV.

(b) AL-3 is the basic pay level for administrative law judge

positions filled through competitive examination, as provided in

Sec. 930.204 of this part.

administrative law judge positions at pay levels AL-2 and AL-1.

Administrative law judge positions may be placed at such levels when

they involve significant administrative and managerial

responsibilities.

(d) For promotion to a higher level, see Sec. 930.205 of this part.

(e) Except as provided in paragraph (g) of this section, upon

appointment to an administrative law judge position placed in AL-3, an

administrative law judge shall be paid at the minimum rate A of AL-3,

and shall be automatically advanced successively to rates B, C, and D

of that level upon completion of 52 weeks of service in the next lower

rate, and to rates E and F of that level upon completion of 104 weeks

of service in the next lower rate. Time in a nonpay status is generally

creditable service in the computation of a waiting period only in so

far as it does not exceed 2 weeks per year for each 52 weeks of

service. However, absence due to uniformed service or compensable

injury is fully creditable upon reemployment as provided in part 353 of

this chapter.

(f) Upon appointment to a position at AL-3, an administrative law

judge will be paid at the minimum rate A, unless the administrative law

judge is eligible for a higher rate B, C, D, E, or F because of prior

service or superior qualifications, as follows--

(1) An agency may offer an administrative law judge applicant with

prior Federal service a higher than minimum rate, without obtaining the

prior approval of OPM in order to pay the rate that is next above the

applicant's highest previous Federal rate of pay, up to the maximum

rate F.

(2) With the prior approval of OPM, an agency may offer a higher

than minimum rate to an applicant with superior qualifications who is

within reach for appointment from an administrative law judge

certificate of eligibles or is eligible for reinstatement under

Sec. 930.208. The agency may pay that rate of pay that is next above

the applicant's existing pay or earnings up to the maximum rate F.

``Superior qualifications'' for applicants includes having legal

practice before the hiring agency, having practice in another forum

with legal issues of concern to the hiring agency, or having an

outstanding reputation among others in the field. OPM will approve such

payment of higher than minimum rates for applicants with superior

qualifications only when it is clearly necessary to meet the needs of

the Government.

(g) With the prior approval of OPM, an agency may on a one-time

basis, advance an administrative law judge in a position at AL-3 with

added administrative and managerial duties and responsibilities one

rate beyond that allowed under current pay rates for AL-3, up to the

maximum rate F.

(h) Upon appointment to an administrative law judge position placed

at AL-2 or AL-1, administrative law judges will be paid at the

established rates for those levels.

(i) An employing agency may reduce the grade, level, or pay of the

administrative law judge only upon a finding of good cause for such

action as determined by the Merit Systems Protection Board pursuant to

5 U.S.C. 7521.

Sec. 930.212 Performance rating and awards.

(a) An agency shall not rate the performance of an administrative

law judge.

(b) An agency may not grant a monetary or honorary award under 5

U.S.C. 4503 for superior accomplishment by an administrative law judge.

Sec. 930.213 Rotation of administrative law judges.

Insofar as practicable, an agency shall assign its administrative

law judges in rotation to cases.

Sec. 930.214 Use of administrative law judges on detail from other

agencies.

(a) An agency that is occasionally or temporarily insufficiently

staffed with, or has insufficient work for, administrative law judges

may ask OPM to provide for the temporary use by the agency of the

services of an administrative law judge of another agency to conduct

and complete the hearing of one or more specified cases and issue

decisions therein. The agency request must:

(1) Identify and describe briefly the nature of the case(s) to be

heard (including parties and representatives when available);

(2) Specify the legal authority under which the use of an

administrative law judge is required; and

(3) Demonstrate, as appropriate, that the agency has no

administrative law judge available to hear the case(s).

(b) OPM, with the consent of the agency in which an administrative

law judge is employed, will select the administrative law judge to be

used, and will name the date or period for which the administrative law

judge is to be made available for detail to the agency in need of his

or her services. OPM will approve a detail for a period not to exceed 1

year with a possible extension not to exceed 1 additional year.

requesting the detail.

Sec. 930.215 Actions against administrative law judges.

(a) Procedures. An agency may remove, suspend, reduce in grade or

level, reduce in pay, or furlough for 30 days or less, an

administrative law judge only for good cause established and determined

by the Merit Systems Protection Board on the record and after

opportunity for a hearing before the Board as provided in 5 U.S.C. 7521

and

[[Page 8878]]

Sec. Sec. 1201.131 through 1201.136 of this title. Procedures for

adverse actions by agencies under part 752 of this chapter are not

applicable to actions against administrative law judges.

(b) Status during removal proceedings. In exceptional cases when

there are circumstances in which the retention of an administrative law

judge in his or her position, pending adjudication of the existence of

good cause for his or her removal, would be detrimental to the

interests of the Government, the agency may either:

(1) Assign the administrative law judge to duties consistent with

his or her normal duties in which these conditions would not exist;

(2) Place the administrative law judge on leave with his or her

consent;

(3) Carry the administrative law judge on appropriate leave (annual

or sick leave, leave without pay, or absence without leave) if he or

she is voluntarily absent for reasons not originating with the agency;

(4) If none of the alternatives in paragraphs (b) (1), (2) and (3)

of this section is available, agencies may consider placing the

administrative law judge in a paid, non-duty or administrative leave

status.

governing the removal, suspension, reduction in grade or level,

reduction in pay, or furlough of 30 days or less of administrative law

judges do not apply in making dismissals or taking other actions

requested by OPM under Secs. 5.2 and 5.3 of this chapter; nor to

dismissals or other actions made by agencies in the interest of

national security under 5 U.S.C. 7532; nor to reduction-in-force action

taken by agencies under 5 U.S.C. 3502; nor any action initiated by the

Special Counsel of the Merit Systems Protection Board under 5 U.S.C.

1215.

Sec. 930.216 Reduction in force.

(a) Retention preference regulations. Except as modified by this

section, the reduction-in-force regulations in part 351 of this chapter

apply to reductions in force of administrative law judges.

(b) Determination of retention standing. In determining retention

standing in a reduction in force, each agency will classify its

administrative law judges in groups and subgroups according to tenure

of employment, veteran preference, and service date in the manner

prescribed in part 351 of this chapter. However, as administrative law

judges are not given performance ratings, the provisions in part 351 of

this chapter referring to the effect of performance ratings on

retention standing are not applicable to administrative law judges.

reached by an agency reduction in force and who are notified they are

to be separated are eligible for placement assistance under--

(i) Agency reemployment priority lists established and maintained

by agencies under subpart B of part 330 of this chapter for all agency

tenure group I career employees displaced in a reduction in force;

(ii) Agency and OPM priority placement programs under subparts C,

F, and G of part 330 of this chapter for all agency tenure group I

career employees displaced in a reduction in force.

(2) On request of administrative law judges who are reached by an

agency in a reduction in force and who are notified they are to be

separated, furloughed for more than 30 days, or demoted, OPM will place

their names on OPM's priority referral list for administrative law

judges displaced in a reduction in force for the level in which they

last served and for all lower levels.

(3) An administrative law judge may file a request under paragraph

(c)(2) of this section, for placement on the OPM priority referral

list, at any time after the receipt of the specific reduction-in-force

notice but not later than 90 days after the date of separation,

furlough for more than 30 days, or demotion. Placement assistance

through the OPM priority referral list continues for 2 years from

either the effective date of the reduction-in-force action, or the date

assistance is requested if a timely request is made. Eligibility of the

displaced administrative law judge for the OPM priority referral list

is terminated earlier upon the administrative law judge's written

request, acceptance of a non-temporary, full-time administrative law

judge position, or declination of more than one offer of full-time

employment as an administrative law judge at or above the grade level

held when reached for reduction in force at geographic locations

previously indicated as acceptable.

(4) The displaced administrative law judge will file with the

request for priority referral by OPM an employment application or

resume and a copy of the reduction-in-force notice. Also, the displaced

administrative law judge may ask OPM to limit consideration for vacant

positions to any pay level for which qualified and to specific

geographic areas.

(5) When there is no administrative law judge on the agency's

reemployment priority list, but there is an administrative law judge

who has been placed on the OPM priority referral list for the location

where a vacant administrative law judge position exists, the agency may

fill the position with a candidate from outside the agency only by

selection from the OPM priority referral list, unless it obtains the

prior approval of OPM for filling the vacant position under

Sec. 930.204(a), (c), and (d); Sec. 930.205; Sec. 930.207; or

Sec. 930.208 of this subpart. OPM will grant such approval only under

the extraordinary circumstance that the proposed candidate from outside

the agency who is not on the OPM priority referral list possesses

experience and qualifications superior to the displaced administrative

law judge(s) on the list. In addition, the agency retains the option to

select from within the agency to fill the vacant position by

reassignment, as defined in Sec. 930.206.

(6) Referral, certification, and selection of administrative law

judges from OPM's priority referral list are made without regard to

selective certification or special qualification procedures which may

have been applied in the original appointment.

Sec. 930.217 Temporary reemployment: senior administrative law judges.

(a)(1) Subject to the requirements and limitations of this section,

OPM may authorize an agency that has temporary, irregular workload

requirements for conducting proceedings in accordance with 5 U.S.C. 556

and 557 to temporarily reemploy as administrative law judges those

annuitants, as defined by 5 U.S.C. 8331 and 8401, who are receiving an

annuity from the Civil Service Retirement and Disability Fund, and:

(i) Have served with career absolute status as administrative law

judges under 5 U.S.C. 3105; and

(ii) Maintain a current license 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 Constitution.

(2) These retired administrative law judges who are so reemployed

will be known as senior administrative law judges.

(b) Retired administrative law judges who meet the requirements of

paragraph (a) of this section and who are available for temporary

reemployment must notify OPM in writing of their availability,

providing pertinent information as requested by OPM. OPM will maintain

a master list of such retired administrative law judges for use

[[Page 8879]]

in responding to agency requests for such administrative law judges.

law judges must submit a written request to OPM. The request must--

(1) Identify the statutory authority under which the administrative

law judge is expected to conduct proceedings;

(2) Demonstrate that the agency is occasionally or temporarily

understaffed;

(3) Specify the tour of duty, location, period of time, or

particular case(s), for the requested reemployment; and

(4) Describe any special qualifications desired in the retired

administrative law judge that it wishes to reemploy, such as experience

in a particular field, agency, or substantive area of law.

(d) OPM will approve agency requests for temporary reemployment of

retired administrative law judges for a specified period or periods

provided--

(1) The requesting agency fully justifies the need for an

administrative law judge for formal proceedings and demonstrates that

it is occasionally or temporarily understaffed; and

(2) No other administrative law judge with the appropriate

qualifications is available through OPM under Sec. 930.216(c)(5) of

this subpart to perform the occasional or temporary work for which

reemployment is requested.

(e) Upon approval of an agency request to reemploy a retired

administrative law judge, OPM will select from its master list of

retired administrative law judges, in rotation to the extent

practicable, those retired judges who it determines meet agency

requirements. OPM will then provide a list of such individuals to the

requesting agency and the agency must then select from that list a

retired administrative law judge for reemployment.

(f) Reemployment of retired administrative law judges is subject to

suitability investigation in accordance with subparts B and C of part

731 of this chapter. It is also subject to conflict of interest and

security clearance requirements by the appointing agency.

(g) Reemployment as senior administrative law judges will be for

either a specified period not to exceed 1 year or such periods as may

be necessary for the reemployed administrative law judge to conduct and

complete the hearing of one or more specified cases and issue decisions

therein. Upon agency request, OPM may either reduce or extend such

period of reemployment, as necessary, to coincide with changing

staffing requirements. All reemployment is authorized for periods of 1

year or less.

(h) An agency may assign its senior administrative law judges to

either:

(1) Hear one or more specific cases; or

(2) Hear, in normal rotation to the extent practicable, a number of

cases on its docket and issue decisions therein.

(i) Hours of duty, administrative support services, and travel

reimbursement for senior administrative law judges will be determined

by the employing agency in accordance with the same rules and

procedures that are generally applicable to employees.

(j) The reemployment of a senior administrative law judge is

terminated on the date specified by OPM. Otherwise, a senior

administrative law judge serves subject to the same limitations as any

other administrative law judge employed under this subpart and 5 U.S.C.

3105. An agency will not rate the performance of a senior

administrative law judge. Reduction-in-pay or removal actions may not

be taken against senior administrative law judges during the period of

reemployment, except for good cause established and determined by the

Merit Systems Protection Board after opportunity for a hearing on the

record before the Board as provided in 5 U.S.C. 7521 and Secs. 1201.131

through 1201.136 of this title.

(k) A senior administrative law judge will be paid by the employing

agency the current rate of pay for the level at which the duties to be

performed have been placed and at the lowest rate of the level that is

nearest (when rounded up) to the highest previous pay rate attained by

the appointee as an administrative law judge before retirement. An

amount equal to the annuity allocable to the period of actual

employment will be deducted from his or her pay and deposited in the

Treasury of the United States to the credit of the Civil Service

Retirement and Disability Fund.

[FR Doc. 98-4498 Filed 2-20-98; 8:45 am]

BILLING CODE 6325-01-P

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.