Excepting Administrative Law Judges From the Competitive Service

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Published

July 13, 2018

Signed

July 10, 2018

Issuing agencies

Executive Office of the President

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<title>Federal Register, Volume 83 Issue 135 (Friday, July 13, 2018)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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. 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

[[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:

(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''

[[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:

(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]]

(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.
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>

(Presidential Sig.)

THE WHITE HOUSE,

July 10, 2018.

[FR Doc. 2018-15202
Filed 7-12-18; 11:15 am]
Billing code 3295-F8-P

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