OPM has proposed regulations to finalize policy changes it made two years ago regarding administrative law judges that include moving those newly hired into those positions from the competitive service to the excepted service and giving individual agencies more discretion over their hiring.

There are some 2,000 ALJs government-wide who hear disputes over how agencies carry out policies, most of them working for the SSA and deciding on disputed claims for benefits. They have a higher degree of independence from their employing agencies than do most federal employees.

In 2018, the administration ended the prior practice of OPM creating a central register of candidates from which agencies hired—a throwback to what at one time was standard practice for many occupations—and instead created a new excepted service hiring authority called Schedule E for ALJ positions.

It further removed some of the prior qualifications requirements as well as the prior examination and rating procedures—while also stating that veterans preference must be honored only “as far as administratively feasible.”

The White House carried out that change through an executive order, citing a U.S. Supreme Court decision holding that ALJs must be hired by agency heads.

However, legal associations including those representing ALJs have said that the case did not require taking ALJs out of the competitive service, only making sure that agency heads approve a hire. They also cautioned that the new process leaves the door open to more politicized hiring.

The proposal Monday (September 21) in the Federal Register to put those changes into regulation says that putting more control over ALJ hiring in the hands of individual agencies would give them the “flexibility to assess critical qualities in ALJ applicants and determine whether an ALJ applicant meets the particular needs of the hiring agency.”

Also under the rules, as under guidance OPM previously issued, ALJs who were hired under the prior policies but are reassigned or promoted within their agency remain in the competitive service as long as they remain an ALJ.

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Federal Manager’s Handbook, 5th Ed.