Executive Order: Excepting ALJs from the Competitive Service

[dvsw]

Neither!
More like this:

metro.co.uk/2010/04/07/devil-horns-grandmother-now-quite-enjoying-her-horns-224674/

(-;

[catwoman333]

Speaking of EOs, today the US District Court in DC reversed Admin. effort to ...um...."expedite" the firing of federal employees.  See www.nytimes.com/2018/08/25/business/trump-federal-workers-unions.html.

I know this ruling doesn't directly address ALJs per se.  But, hey, a "smackdown" is a smackdown and thus (perhaps naively) gives me hope that the EO affecting ALJ hiring etc. will also fail. 

Of course, this could ultimately be upheld by a new, more right wing Sup. Court.  But even after the addition of 2 new Supremes (Gorsuch and Kavanaugh), it's STILL "The John Roberts Court" and I can't imagine JR wants his court to be remembered in history as the one that abolished the eons-old federal civil service system, eroded judicial independence, and made it easier to hire and fire people based on ideology.   

[Prrple]

Aug 25, 2018 14:07:50 GMT -5 catwoman333 said:

Speaking of EOs, today the US District Court in DC reversed Admin. effort to ...um...."expedite" the firing of federal employees.  See www.nytimes.com/2018/08/25/business/trump-federal-workers-unions.html.

I know this ruling doesn't directly address ALJs per se.  But, hey, a "smackdown" is a smackdown and thus (perhaps naively) gives me hope that the EO affecting ALJ hiring etc. will also fail. 

Of course, this could ultimately be upheld by a new, more right wing Sup. Court.  But even after the addition of 2 new Supremes (Gorsuch and Kavanaugh), it's STILL "The John Roberts Court" and I can't imagine JR wants his court to be remembered in history as the one that abolished the eons-old federal civil service system, eroded judicial independence, and made it easier to hire and fire people based on ideology.   

It’s a victory for separation of powers. Executive Orders still cannot override statutes

[Deleted]

Aug 25, 2018 14:07:50 GMT -5 catwoman333 said:

Speaking of EOs, today the US District Court in DC reversed Admin. effort to ...um...."expedite" the firing of federal employees.  See www.nytimes.com/2018/08/25/business/trump-federal-workers-unions.html.

I know this ruling doesn't directly address ALJs per se.  But, hey, a "smackdown" is a smackdown and thus (perhaps naively) gives me hope that the EO affecting ALJ hiring etc. will also fail. 

Of course, this could ultimately be upheld by a new, more right wing Sup. Court.  But even after the addition of 2 new Supremes (Gorsuch and Kavanaugh), it's STILL "The John Roberts Court" and I can't imagine JR wants his court to be remembered in history as the one that abolished the eons-old federal civil service system, eroded judicial independence, and made it easier to hire and fire people based on ideology.   

I can see why this gives you hope.  Just look at first page of the opinion text:  

“Because “the accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . poses an inherent threat to liberty[,]” each branch of government must stay within its proper domain. Patchak v. Zinke, 138 S. Ct. 897, 905 (2018) (plurality opinion) (internal quotations and citations omitted). When one of the three branches exceeds the scope of either its statutory or constitutional authority, it falls to the federal courts to reestablish the proper division of Federal power.”

What would be the end result if/when this legal theory is applied to the APA, which is also “an accumulation of all powers, legislative, executive, and judiciary?”

Could this be a signal of more to come?

[foghorn]

supervisory alj hiring notice for Atlanta Ga. for you ALJ's out there:
www.usajobs.gov/GetJob/ViewDetails/509001700

[sta]

It is correct that the District Court decision striking down portions of Executive Orders dealing with the Federal Labor Relations Act does not directly pertain to the more recent Executive Order making changes to the Administrative Law Judge position, in placing the ALJ within the excepted service and instating for the first time a probationary period for newly hired Administrative Law Judges.

However, the reasoning by the District Court decision arguably could be applied to overturn the Executive Order relating to changing the ALJ position.

In this regard, the District Court held: "As to the merits of the Unions’ contentions, while past precedents and pertinent statutory language indicate that the President has the authority to issue executive orders that carry the force of law with respect to federal labor relations, it is undisputed that no such orders can operate to eviscerate the right to bargain collectively as envisioned in the FSLMRS. In this Court’s view, the challenged provisions of the executive orders at issue have that cumulative effect. Stated succinctly, by enacting the FSLMRS, Congress undertook to guarantee federal employees the statutory right to engage in good-faith collective bargaining with agencies and executive branch officials, and the pronouncements that the FSLMRS makes are clearly based upon Congress’s stated opinion that “the right of employees” to “bargain collectively . . . safeguards the public interest, contributes to the effective conduct of public business, and facilitates and encourages the amicable settlements of disputes” in regard to the “conditions of [federal] employment.” 5 U.S.C. § 7101(a)(1). Viewed collectively, the challenged executive orders reflect a decidedly different policy choice; namely, the President’s stated view that federal employees’ right to engage in collective bargaining over the conditions of their employment is not apropos of an “effective and efficient Government[,]” Exec. Order No. 13,836 § 1(b), and should be rendered subordinate to the agencies’ interest “in developing efficient, effective, and cost-reducing collective bargaining agreements[,]” id. (preamble); see also Exec. Order No. 13,837 (preamble); Exec. Order No. 13,839 (preamble)."

On its face, the Federal Service Labor-Management Relations Act (FSLMRS) is but one part of several provisions of the Civil Service Reform Act of 1978. The complex whole of the CSRA is described in wikipedia as follows:

"The Civil Service Reform Act of 1978 created rules and procedures for federal civilian employees. There were two parts to the reform; The Reorganization Plan and the Civil Service Reform Act. The Reorganization Plan divided the Civil Service Commission (CSC) into the Office of Personnel Management (OPM) and the Merit Systems Protection Board (MSPB). Additionally, the Federal Labor Regulations Authority (FLRA) was created.

Responsibilities are as follows:

OPM provides management guidance to agencies of the executive branch and issues regulations that control federal human resources.

The MSPB conducts studies of the federal civil service and hears appeals of federal employees who have been disciplined or otherwise separated from their positions. Personnel actions which discriminate among employees based on marital status, political activity, or political affiliation are prohibited by the CSRA. Federal employees may file complaints regarding possible violations of this rule with the Office of Special Counsel, which was created as a subunit of the MSPB.

FLRA oversees the rights of federal employees to form collective bargaining units (unions) to bargain with agencies.

The CSRA imposes standards on the officers of those unions which are enforced by the Office of Labor-Management Standards in the U.S. Department of Labor."

The Executive Order for ALJ appointment changes overturned MSPB and OPM prerogatives as to ALJ position appointments based on the following justification:

"conditions of good administration make necessary an exception to the competitive hiring rules and examinations for the position of ALJ. These conditions include the need to provide agency heads with additional flexibility to assess prospective appointees without the limitations imposed by competitive examination and competitive service selection procedures. Placing the position of ALJ in the excepted service will mitigate concerns about undue limitations on the selection of ALJs, reduce the likelihood of successful Appointments Clause challenges, and forestall litigation in which such concerns have been or might be raised. This action will also give agencies greater ability and discretion to assess critical qualities in ALJ candidates, such as work ethic, judgment, and ability to meet the particular needs of the agency. These are all qualities individuals should have before wielding the significant authority conferred on ALJs, and each agency should be able to assess them without proceeding through complicated and elaborate examination processes or rating procedures that do not necessarily reflect the agency’s particular needs. This change will also promote confidence in, and the durability of, agency adjudications."

It is respectfully submitted that this justification is insufficient, because no evidence was presented in the EO that the regulatory scheme created by the OPM and MSPB to appoint ALJs lacked "flexibility" or that it was not being faithfully executed by OPM and the MSPB.

[orchid]

m.govexec.com/management/2018/08/bipartisan-bill-would-reverse-trumps-order-executive-branch-judges/150873/

[jimmyjiggles]

Aug 28, 2018 15:43:15 GMT -5 orchid said:

m.govexec.com/management/2018/08/bipartisan-bill-would-reverse-trumps-order-executive-branch-judges/150873/

“The new bill, introduced by Sens. Maria Cantwell, D-Wash, and Susan Collins, R-Maine, would restore the government’s 1,900 ALJs—most of whom work for the Social Security Administration—to the competitive service. The reversion would ensure OPM makes hiring recommendations based on “qualifications and competence,” the senators said, rather than any arbitrary justification political appointees choose.”

Hmmmmmmmmm okay. The EO didn’t take the 1900 ALJs out of the competitive service, so what does this bill actually do? Wouldn’t know since there’s no link to the bill in the article.

[jimmyjiggles]

Aug 28, 2018 16:28:13 GMT -5 @lf1 said:

If the Dems take one or other house of Congress, they can at least bargain with this issue even if the bill can't get POTUS' signature yet. It's some hope.

Honestly I just don’t see how any of it matters until the courts clarify the constitutionality of the APA’s selection and retention clauses.

[nappyloxs]

Coincidence?


Bipartisan Bill Would Reverse Trump's Order on Executive Branch Judges

m.govexec.com/management/2018/08/bipartisan-bill-would-reverse-trumps-order-executive-branch-judges/150873/?oref=m-ge-river




Edit: here is the bill

www.congress.gov/bill/115th-congress/senate-bill/3387/text?r=13

S. 3387

To restore administrative law judges to the competitive service.

IN THE SENATE OF THE UNITED STATES
August 23, 2018
Ms. Cantwell (for herself and Ms. Collins) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs

A BILL
To restore administrative law judges to the competitive service.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. APPOINTMENT OF ADMINISTRATIVE LAW JUDGES.

(a) In General.—Section 3105 of title 5, United States Code is amended to read as follows:

Ҥ 3105. Appointment of administrative law judges

“(a) Authority To Appoint.—Each agency shall appoint as many administrative law judges as are necessary for proceedings required to be conducted in accordance with sections 556 and 557.

“(b) Competitive Service.—Administrative law judge positions shall be positions in the competitive service.

“(c) Appointment.—Administrative law judges shall be appointed by the head of an agency from a list of eligible candidates provided by the Office of Personnel Management or based upon approval of the qualifications of the individual by the Office of Personnel Management.

“(d) Assignment.—Administrative law judges shall be assigned to cases in rotation as far as practicable, and may not perform duties inconsistent with their duties and responsibilities as administrative law judges.”.

(b) Conversion Of Positions.—With respect to any individual serving on the date of enactment of this Act in an excepted service position as an administrative law judge appointed under section 3105 of title 5, United States Code, as in effect on the day before the date of enactment of this Act, the head of the agency employing the administrative law judge shall convert the appointment to a permanent appointment in the competitive service in the agency.

[foghorn]

on the legislation mentioned above there is a separate thread on that

However, on the EO itself, note the folowing commentary. You can bet if someone's suggested this it will be tried. Look out--and give us a shout-out--if you see memos regarding a change in personnel policy that tracks the EO:

www.nytimes.com/2018/09/02/business/economy/trump-labor.html

[foghorn]

Here's OPM rescinding it's previous guidance:
www.fedsmith.com/2018/08/29/opm-rescinds-guidance-labor-relations-executive-orders/

[corvette1963]

WOW! Really like the Senate Bill 3387 and OPM Director's letter. Perhaps we will see a restoration of the federal register sometime down the road...after considerable litigation.

[anotherfed]

Sept 4, 2018 16:00:43 GMT -5 corvette1963 said:

WOW! Really like the Senate Bill 3387 and OPM Director's letter. Perhaps we will see a restoration of the federal register sometime down the road...after considerable litigation.

Before you get too excited, the OPM letter concerned the EO about federal union negotiations.  To my knowledge, no one has challenged the EO regarding moving ALJs to excepted service.  So I don't think we can expect a US District Court judge to swoop in to the rescue, like with the federal union EO.

However, the Senate Bill is encouraging.  I agree with other commenters who suggest that this bill might be signed if paired with something else desirable to the Administration. 

I knew ALJs were about to become political pawns, but I didn't think it would be this soon and I thought it would be intra-agency...  

[floridagirl]

Any rumors about when SSA, OMHA, or any other federal agencies might start hiring ALJs?

[carrickfergus]

Today there was an internal posting for a supervisory OHO ALJ at the ABQ NHC, open only to current ALJs, and it mentioned nothing about excepted service. (It even said relo may be available!) So it would appear that reassignments do not equate to new appointments. I don't think that was a serious concern, but it should settle the matter.

[sta]

Oct 16, 2018 14:13:38 GMT -5 @lf1 said:

Oct 16, 2018 14:02:34 GMT -5 carrickfergus said:

Today there was an internal posting for a supervisory OHO ALJ at the ABQ NHC, open only to current ALJs, and it mentioned nothing about excepted service. (It even said relo may be available!) So it would appear that reassignments do not equate to new appointments. I don't think that was a serious concern, but it should settle the matter.

I think you are right, but I don't think an internal job announcement settles the question.  It will only be settled as a legal question (maybe) when a denied claimant argues that having his case assigned to an ES ALJ as opposed to a CS ALJ somehow prejudiced his claim, or when an ES ALJ suffers some kind of administrative action or collateral consequence that he or she would not have suffered as a CS ALJ.  Once those kinds of cases get through one or more courts of appeals and SCOTUS either rules or denies cert. where there is no circuit split will the issue be settled.

The controlling provision in EO 13843 says appointments and position changes to the excepted service shall be made as the head of the agency concerned finds necessary. This takes OPM's role out of the appointment and the previous status when an ALJ at one agency would be qualified based on OPM regulations to be appointed by another agency. The EO states each agency employing ALJs can create their own qualification standards for their appointed ALJs. Agencies already have created different standards from those previously administered by OPM.

It is arguable that a reassignment is a new appointment and must be made to the excepted service. Standing would depend not on whether a claimant's benefits suffer at the hands of an ES ALJ versus a CS ALJ, but on whether an applicant for an ALJ position under OPM procedures was denied competitive appointment based on the EO when it required new appointments be made only to the excepted service. Similarly, an incumbent ALJ in the competitive service precluded from applying for a competitive appointment at another Federal Agency would similarly have standing to contest EO 13843.

[roggenbier]

A man has learned the Temple of Black and White waits, waits, waits, 113 times, awaiting the signal that EO is no more. It receives no signal. It waits, waits, waits....A man thinks he gone to the Sy Fy and is in another dimension, at least for 3 years.

[Prrple]

Oct 18, 2018 18:57:08 GMT -5 roggenbier said:

A man has learned the Temple of Black and White waits, waits, waits, 113 times, awaiting the signal that EO is no more. It receives no signal. It waits, waits, waits....A man thinks he gone to the Sy Fy and is in another dimension, at least for 3 years.

And the Oracle speaks

Life can only be understood looking backwards, but must be lived looking forward

[gary]

Oct 20, 2018 23:49:29 GMT -5 Prrple said:

Oct 18, 2018 18:57:08 GMT -5 roggenbier said:

A man has learned the Temple of Black and White waits, waits, waits, 113 times, awaiting the signal that EO is no more. It receives no signal. It waits, waits, waits....A man thinks he gone to the Sy Fy and is in another dimension, at least for 3 years.

And the Oracle speaks

Life can only be understood looking backwards, but must be lived looking forward

For this reason you never know whether you’re coming or going.