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September 01, 2016

Draft legislation threatens independence of ALJs

The ABA is opposing draft legislation prepared by the Office of Personnel Management (OPM) and Office of Management and Budget (OMB) that would authorize agencies to appoint administrative law judges (ALJs) to term appointments from one to four years to deal with workload surges – an idea that the ABA maintains poses a threat to ALJ decisional independence from agency influence.

“The independent adjudicative function performed by ALJs and the relationship they must maintain with their employing agencies distinguish ALJs from the rest of the federal workforce,” ABA Governmental Affairs Director Thomas M. Susman wrote Sept. 23 to OMB Director Shaun Donovan and OPM Acting Director Beth F. Cobert. “The primary mechanism preserving this unique relationship is a coordinated regulatory framework that protects ALJ decisional independence by limiting the authority of an agency to interfere with the job status of its ALJs,” he said.

The regulations prohibit an agency from rating the performance of its ALJs, granting monetary or honorary awards for superior adjudicative performance, hiring ALJs for a probationary period, and removing ALJS from office absent good cause established by the Merit System Protection Board on the record after an opportunity for a hearing before the board.

The draft legislation would give an agency the option of selecting from a list of applicants on the ALJ register prepared by OPM (following the same procedure used for permanent appointments) or from former ALJs eligible for reinstatement. Those who receive term appointments from the register would remain eligible for consideration under governing regulations for a future permanent appointment.

Susman noted that these provisions create significant opportunities for agencies to selectively appoint former ALJs with a history of ruling in favor of the appointing agency and in effect treat a term-limited appointment as a probationary period, and to seek extension of only those term-limited ALJs who rule in favor of the agency. At its worst, an agency could make this process its de facto method for hiring ALJs, and there is nothing in the proposal that would prevent an agency from requesting early termination of term- limited ALJs perceived as being too independent.

Susman also said the ABA is perplexed over the absence of information about a need for the legislation. There are two existing program for agencies needing assistance: the ALJ Loan Program allowing interagency assignment of ALJs; and the Senior ALJ Program permitting agencies to bring back retired ALJs for up to one year.

“The ABA has worked actively for almost three decades to protect the adjudicative independence of the administrative judiciary and promote increased efficiency and fairness in the system,” Susman said. He explained that while the ABA appreciates OPM’s focus on assuring that agencies have sufficient ALJ’s to handle the workloads at all times, “we can ill-afford to adopt a proposal that could weaken the protections in place to insulate ALJ decision-making from agency control and undermine public trust in the impartiality of the administrative judiciary.”