Excepting Administrative Law Judges From the Competitive Service, 32755-32758 [2018-15202]

Agencies

• Executive Office of the President

[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. 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.
                
                
                    (Presidential Sig.)

                THE WHITE HOUSE,

                    July 10, 2018.

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