EO Changes Procedures Regarding Appointment of ALJs

Last week, the Trump administration rolled out a new executive order (EO) modifying the process surrounding the selection and appointment of Administrative Law Judges (ALJs).

In a memo from the U.S. Office of Personnel Management Director Jeff Pon to all federal agency heads, he noted that “agencies may begin making Schedule E appointments to the position of ALJ immediately, without prior OPM approval.  The order also eliminates the need for OPM to conduct additional ALJ competitive examinations.  This guidance is intended to address several issues that may arise as agencies transition to this new appointment process for ALJs.”

The EO “places the position of ALJ in the excepted service beginning July 10, 2018” and “further states that appointments to the position of ALJ are not subject to any examination or rating requirement” under Title 5 of the U.S. code.

The EO also makes a number of other changes, terminating “the existing competitive service ALJ register,” and stating that “appointments to the position of ALJ are not subject to any examination or rating requirement.”

The public response to the EO has been mixed, with few organizations publicly supporting the measure, and with some legal experts expressing caution.

"There was a whole set of criteria that they were applying to the selection of administrative law judges," said Lauris Beyranevand, a professor of administrative law at Vermont Law School. "They had to go take a written and oral examination. They had to appear before a panel that had a former administrative law judge, members of the American Bar Association, some people from the Office of Personnel Management. Their decisions were being based on a merit system.

"And so I think the big concern now is that all of that is being eroded, and essentially someone can be appointed as an administrative law judge based on what the agency decides are the appropriate qualifications,” she concluded. “So you could see wide variation from agency to agency depending on what they would think would be the appropriate qualifications for an administrative law judge."

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