July 31, 2018

President announces new process for selecting ALJs

President Trump signed an executive order July 10 that replaces the current competitive selection process for administrative law judges (ALJs) at the Office of Personnel Management (OPM) with a system providing for the appointment of ALJs by the president and federal agency heads.

ALJs, who preside over administrative proceedings before federal agencies, are employed throughout the federal government and currently apply for their jobs through OPM. The process requires applicants to pass an examination to evaluate competencies, knowledge, skills, and abilities essential to performing ALJ work. Agencies then select the ALJs they hire individuals from a list of individuals that OPM has determined are qualified for the position.

In their jobs, ALJs rule on preliminary motions, conduct pre-hearing conferences, issue subpoenas, conduct hearings (which may include written and/or oral testimony and cross-examination), review briefs, and prepare and issue decisions. All but about 300 of the approximately 1,900 ALJ are at the Social Security Administration.

The president’s executive order followed the June 21 Supreme Court decision in Lucia v. Securities and Exchange Commission, 585 U.S. (2018), which determined that ALJs at the Securities and Exchange Commission (SEC) are “inferior officers” of the United States, not employees, and must be appointed under the Appointments Clause of the U.S Constitution.

The plaintiff, Raymond J. Lucia, appealed an ALJ ruling from the SEC, arguing that the ALJ had not been properly appointed. The Supreme Court decision reversed the appellate court’s decision that had rejected the plaintiff’s argument.

The White House stated in a fact sheet that, under the process outlined in the president’s executive order, “agencies will be free to select from the best candidates who embody the appropriate temperament, legal acumen, impartiality, and judgment required of an ALJ, and who meet the other needs of the agencies.”

The executive order has raised concerns about politicization of the ALJ selection process. House Ways and Means Ranking Member Richard Neal (D-Mass.) emphasized in a statement that “impartiality plays a central role in the work of ALJs” and that allowing the appointment of judges “will result in unfair, biased rulings that harm ordinary Americans.”

In response to the executive order, ABA President Hilarie Bass urged the House Rules Committee in a July 16 letter to allow consideration of an amendment proposed by Rep. Robert C. Scott (D-Va.) to H.R. 4167, the fiscal year 2019 appropriations legislation that includes OPM. The amendment would prohibit the use of funds by OPM or any other executive branch agency for the “development, promulgation, modification, or implementation” of the executive order.

“Nothing less that the integrity of the administrative judiciary is at issue here,” Bass said, “That is why it is critical that Members of Congress have an opportunity to participate in the debate and help formulate a solution.”

Back to July 2018 Washington Letter