Executive Order Excepting Administrative Law Judges
from the Competitive Service
Nicole Schultheis, J.D. Senior ALJ Consultant, Writer and Author
July 12, 2018
Attention Administrative Law Judge candidates:
As of July 10, 2018, every federal agency that hires Administrative Law Judges must use its own process for selecting qualified candidates.
In the wake of Lucia et al. v. Securities and Exchange Commission, President Trump signed an Executive Order Tuesday which abolishes the competitive hiring of ALJs and does away with OPM’s competitive exam and register: OPM’s latest round of exams and structured interviews were completed just last month, before Lucia was decided. As far as we know, no 2017 ALJ candidates have been notified regarding the outcome of their structured interview or proctored exam.
However, as we read the Supreme Court’s opinion and Tuesday’s Executive Order, OPM no longer has the authority to screen or competitively rate these candidates or even maintain its current ALJ register.
The President’s EO is good news for those fed up with the ALJ exam, the scoring process, and the endless waiting to be put on a cert list by OPM so that they can be selected for hire. Many highly qualified candidates – including a number of sitting trial court and administrative law judges in their home states-have criticized OPM’s inability to screen their credentials properly and indeed the entire ALJ exam process. These candidates can now be evaluated directly by the hiring agency, much as attorneys are, as “Excepted Service” hires.
From now on, if you want to be an ALJ for the Department of Labor (41 ALJs as of 2017) or the Office of Medicare Hearings and Appeals (101 ALJs as of 2017), you can apply there directly, if and when there is an opening, rather than endure OPM’s onerous process that, if it leads anywhere, most likely lands you an offer to hear Social Security cases instead. (A complete listing of agencies that hire their own ALJ can be found here.)
At least one big issue remains. Per the Supreme Court, ALJs are considered “inferior officers” of the United States who can be appointed only by the President or the head hiring agency. However, in Lucia, the Court declined to accept the government’s request to decide if or how the President or agency head can remove ALJs, once appointed. Whether ALJs can now be fired or sanctioned for failing to do as they are told, in light of the Administrative Procedure Act, not to mention due process, is unclear.* Fresh constitutional challenges are already being formulated.
*Neither Lucia nor this EO affect the hiring of Immigration Judges (IJs). The Department of Justice/Executive Office for Immigration Review hires hundreds of IJs who serve at the pleasure of the Attorney General. For example, these candidates have been asked, during the interview process, how they would respond, in deciding a case before them, if the Attorney General issued an order they disagreed with. In comparison, as of March 2017, EOIR had but one ALJ. EOIR’s ALJs hear only a limited category of cases, under a statute that governs the employment of aliens.
7/12: Memorandum for Heads of Executive Departments and Agencies
Article author: Nicole Schultheis
Since 2010, Maryland attorney Nicole Schultheis has supported candidates seeking to become Administrative Law Judges, Immigration Judges, Administrative Judges, and Administrative Patent Judges. She has taught resume writing to aspiring legal candidates and others at numerous Federal agencies, successfully helping those seeking executive leadership roles at the Department of Justice and its components, as well as agencies across the Executive Branch. For more than 25 years, Nicole led her own law firm in Baltimore, Maryland before her focus shifted to teaching, writing, and professional mentorship.
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