Presidential Executive Order 13843 (Donald Trump, 2018)
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Executive Order 13843: Excepting Administrative Law Judges from the Competitive Service is a presidential executive order removing administrative law judges (ALJs) from the hiring requirements of the competitive civil service and reclassifying them as part of the excepted service. It was issued by President Donald Trump (R) in July 2018.
The reclassification of ALJs as members of the excepted service allows agency heads to directly appoint ALJs and select candidates who meet specific agency qualifications.
The order was issued in light of the United States Supreme Court's June 2018 decision in Lucia v. SEC, which held that ALJs are officers of the United States who must be appointed by the president, the courts, or agency heads rather than hired by agency staff.[1]
Background[edit]
- See also: Lucia v. SEC, administrative law judge, and civil service
Prior to the executive order, ALJs were required to undergo a recruitment and examination process administered by the U.S. Office of Personnel Management (OPM) as part of the competitive civil service. After candidates had been vetted by the OPM, agencies could hire ALJs from the OPM's list of top-three candidates.[2][3][4]
The executive order removed ALJs from the competitive civil service and reclassified them as members of the excepted service. The excepted service provides agencies with an avenue "to fill special jobs or to fill any job in unusual or special circumstances" outside of the competitive hiring process, according to the OPM. Examples of positions in the excepted service include federal attorneys, chaplains, intelligence agents, and other specialized agency employees. The new hiring procedures under the executive order also grant agencies the discretion to hire ALJs with specific qualifications that suit their respective areas of expertise, rather than one of the top-three generalist candidates vetted by the OPM.[4][5][6]
Provisions[edit]
Excepted service[edit]
- See also: Excepted service
The order requires that ALJs be appointed under the newly created Schedule E of the excepted service. The order makes an exception for incumbent ALJs, who can remain in the competitive civil service until their retirement.[1]
| “ | 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.[7] | ” |
Requirements[edit]
The order amended 5 CFR 6.3(b), which describes the process for the hiring of individuals to positions in the excepted service, to stipulate minimum professional requirements for ALJs. Candidates, other than incumbent ALJs, must possess a professional license to practice law pursuant to the standards of their licensing government entity. Agencies may require additional qualifications when appropriate.[1][8]
Response[edit]
Marilyn Zahm, president of the Association of Administrative Law Judges, issued a press release on July 12, 2018, expressing concern that E.O. 13843 would politicize the role of ALJs and threaten impartiality in agency adjudication proceedings:[9]
|
OPM Administrator Jeff Pon dismissed concerns that E.O. 13843 would politicize ALJs in a July 12, 2018, Bloomberg interview, calling them "Washington theater." Pon argued that the executive order implemented changes required by the United States Supreme Court's decision in Lucia v. SEC.[10]
Legislation to restore ALJs to the competitive service[edit]
- See also: Competitive service
116th Congress[edit]
A bipartisan group of congressmen introduced the ALJ Competitive Service Restoration Act on May 1, 2019, which aims to restore ALJs to the competitive service. The legislators argued that returning ALJs to the competitive service would ensure their independence and impartial decision-making.[11]
"Lives would be disrupted if independent adjudicators were replaced by partisan judges whose appointments were based on politics," wrote the congressmen in a statement. "Congress would not be fulfilling its constitutional duty of oversight if it allowed the politicization of the corps of independent adjudicators who are responsible for protecting the due process rights of the American people."[11]
The group of congressmen includes Elijah E. Cummings (D-Md.), Brian Fitzpatrick (R-Pa.), Richard Neal (D-Mass), Rodney Davis (R-Ill.), Gerry Connolly (D-Va.), Danny Davis (D-Ill.), Bobby Scott (D-Va.), John Larson (D-Conn.), and Tom Cole (R-Okla.).[11]
115th Congress[edit]
U.S. Senators Maria Cantwell (D-Wash.) and Susan Collins (R-Maine) introduced legislation on August 23, 2018, aimed at restoring ALJs to the competitive service. The proposal aimed to both reinstate OPM's role in the ALJ vetting process and accommodate the U.S. Supreme Court's ruling in Lucia v. SEC by allowing agency heads to appoint ALJs from OPM's candidate pool.[12][13]
Cantwell and Collins argued that OPM's competitive examination and vetting process for ALJs, which was eliminated under E.O. 13843, functioned to ensure that ALJ candidates were qualified and impartial. The senators claimed that E.O. 13843 threatened ALJ impartiality by allowing partisan agency heads to appoint ALJs based on their own standards.[13]
"Administrative law judges make decisions every day that affect people’s lives like Social Security and Medicare benefits, workers’ compensation claims, and even licenses for radio stations and nuclear power plants," stated Cantwell. "We must ensure these judges are fair, impartial, and qualified."[13]
The legislation failed to advance before the end of the 115th Congress.[11]
Noteworthy events[edit]
OPM issues proposed rule to move ALJs from competitive service to excepted service (2020)[edit]
The Office of Personnel Management (OPM) on September 21, 2020, issued a proposed rule that would implement E.O. 13843 by moving ALJs from the competitive service to the excepted service.[14]
The proposed rule from OPM requires that agency heads appoint new ALJs to positions within the excepted service. The proposed rule also clarifies that certain protections aimed at ensuring the independence of ALJs remain intact, such as the prohibition against agencies subjecting ALJs to performance reviews and the role of the Merit Systems Protection Board (MSPB) in overseeing ALJ discipline.[15]
See also[edit]
External links[edit]
- Executive Order 13843: Excepting Administrative Law Judges from the Competitive Service (2018)
- RegInfo.gov
- Regulations.gov
- Search Google News for this topic
Footnotes[edit]
- ↑ 1.0 1.1 1.2 White House, "Executive Order Excepting Administrative Law Judges from the Competitive Service," July 10, 2018
- ↑ Congressional Research Service, "Administrative Law Judges: An Overview," April 13, 2010
- ↑ Bloomberg, "Trump Gives Agency Heads Power to Hire In-House Judges," July 10, 2018
- ↑ 4.0 4.1 The Washington Post, "Trump moves to shield administrative law judge decisions in wake of high court ruling," July 10, 2018
- ↑ U.S. Office of Personnel Management, "EXCEPTED SERVICE," accessed July 11, 2018
- ↑ FedSmith.com, "Federal Job Classifications: Competitive vs. Excepted Service," November 28, 2010
- ↑ 7.0 7.1 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ Legal Information Institute, "5 CFR 6.3 - Method of filling excepted positions and status of incumbents," accessed July 11, 2018
- ↑ Association of Administrative Law Judges, "Statement by Hon. Marilyn Zahm President of the Association of Administrative Law Judges (AALJ) on White House Executive Order on Administrative Law Judges," July 12, 2018
- ↑ Bloomberg News, "Trump Order Won’t Politicize Agency Judges, Federal HR Chief Says," July 12, 2018
- ↑ 11.0 11.1 11.2 11.3 Federal Times, "Lawmakers push back on the partisan selection of administrative judges," May 2, 2019
- ↑ GovTrack, "S. 3387: A bill to restore administrative law judges to the competitive service," accessed August 30, 2018
- ↑ 13.0 13.1 13.2 Government Executive, "Bipartisan Bill Would Reverse Trump's Order on Executive Branch Judges," August 28, 2018
- ↑ FedSmith, "Proposed Changes for Federal Administrative Law Judges," September 21, 2020
- ↑ Government Executive, "OPM Moves to Formally Shift Administrative Law Judges Out of Competitive Service," September 18, 2020
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