Excepting Administrative Law Judges From the Competitive Service

[Federal Register Volume 83, Number 135 (Friday, July 13, 2018)]

[Presidential Documents]

[Pages 32755-32758]

From the Federal Register Online via the Government Publishing Office [www.gpo.gov]

[FR Doc No: 2018-15202]

Presidential Documents

Federal Register / Vol. 83 , No. 135 / Friday, July 13, 2018 /

Presidential Documents

[[Page 32755]]

Executive Order 13843 of July 10, 2018

Excepting Administrative Law Judges From the

Competitive Service

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

ecially 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

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

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

[[Page 32756]]

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 adjudications.

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:

e will also promote confidence in, and

the durability of, agency adjudications.

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.

cational 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

.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''

[[Page 32757]]

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:

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.

[[Page 32758]]

n 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.

[[Page 32758]]

(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.

(Presidential Sig.)

THE WHITE HOUSE,

July 10, 2018.

[FR Doc. 2018-15202

Filed 7-12-18; 11:15 am]

Billing code 3295-F8-P