President Trump’s order to begin using excepted service hiring procedures rather than OPM’s traditional competitively-based register of applicants to fill administrative law judges has led to concerns that the result will be a more politicized ALJ cadre in hiring and discipline, and a potential erosion of their independence from agency management in their decisions.
The Federal Administrative Law Judges Conference for example said that “now, any agency that wants to hire an ALJ needs no approval from OPM and can hire any attorney regardless of skill or experience. The new appointment process will not afford members of the public the due process and fair hearings they deserve. Instead, it will give agency insiders and political loyalists a job for which they may not be qualified but for which they will feel indebted.”
However, OPM on order underscored says that while ALJ hiring is no longer “subject to any examination or rating requirement,” requirements that candidates must have an active license to practice law still apply, and “an agency may prescribe additional qualification requirements as necessary.” They further “must follow the principle of veterans’ preference as far as administratively feasible.”
“Like other excepted service appointments, ALJ appointments are generally subject to investigation, a determination of fitness, a determination of eligibility for logical and physical access to agency systems and facilities, and, where applicable, a determination of national security eligibility,” it said.
It added that current MSPB appeal rights “will apply to an agency action to remove, suspend, reduce in level, reduce pay, or furlough for 30 days or less of an ALJ in the competitive or excepted service.” Similarly, policies on matters such as reassignment, intra-agency details and RIFs will apply equally regardless of competitive service versus excepted service status.