Executive Order: Excepting ALJs from the Competitive Service

[acttwo]

Oct 21, 2018 8:34:08 GMT -5 gary said:

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

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.

So that's why I'm confused! Lol!

[SPN Lifer]

Rear-view mirrors: Look but don’t stare.

[Burt Macklin]

www.americanbar.org/advocacy/governmental_legislative_work/publications/washingtonletter/october2018/adminlawjudges/

Congress included language emphasizing the
importance of the independence of administrative law judges (ALJs) in the
conference report on H.R. 4167, a fiscal year 2019 appropriations bill signed
into law Sept. 28 as P.L. 115-245.

The language, which the ABA urged be
included, states that is it vital that ALJs be “independent, impartial, and
selected based on their qualifications.” The conferees expressed the
expectation that the Social Security Administration (SSA) will maintain a high
standard for the appointment of ALJs, including the requirement that ALJs “have
demonstrated experience as a licensed attorney and pass an ALJ examination
administered by the Office of Personnel Management (OPM).”  

[acttwo]

Nov 1, 2018 12:24:12 GMT -5 Burt Macklin said:

www.americanbar.org/advocacy/governmental_legislative_work/publications/washingtonletter/october2018/adminlawjudges/

Congress included language emphasizing the
importance of the independence of administrative law judges (ALJs) in the
conference report on H.R. 4167, a fiscal year 2019 appropriations bill signed
into law Sept. 28 as P.L. 115-245.

The language, which the ABA urged be
included, states that is it vital that ALJs be “independent, impartial, and
selected based on their qualifications.” The conferees expressed the
expectation that the Social Security Administration (SSA) will maintain a high
standard for the appointment of ALJs, including the requirement that ALJs “have
demonstrated experience as a licensed attorney and pass an ALJ examination
administered by the Office of Personnel Management (OPM).”  

Well, that counts me out.

[neufenland]

Are there any recent rumors on this front? It's been pretty quiet around these parts.

[sta]

Nov 1, 2018 22:41:11 GMT -5 neufenland said:

Are there any recent rumors on this front? It's been pretty quiet around these parts.

From: Recent Developments in Constitutional Law and Separation of Powers by William Funk
At page 7 of Developments in Administrative Law CLE Print Materials Nov 1-2 2018 put out by the American Bar Association.

“In July, President Trump issued Executive Order 13843, Excepting Administrative Law Judges from the Competitive Service. n. 31. That order removed future ALJs from the competitive service, allowing them to be hired directly by the agency appointing them without regard to OPM or any examination process. It left to each agency to decide what methods and standards it would use to hire new ALJS. It cited for part of its justification that Lucia had raised questions about the method of appointing ALJs, “including whether competitive examination and competitive service selection procedures are compatible with the discretion an agency head must possess under the Appointments Clause in selecting ALJs.” n. 32. This issue was not discussed at all in Lucia, but it was raised and not decided by the Tenth Circuit in its Bandimere decision, holding that SEC ALJs were officers. n. 33. While the President’s order might solve that problem, if it exists, for ALJs hired in the future, it does nothing with respect to current ALJs.”

31 83 Fed. Reg. 32755 (Jul. 10, 2018). 32 Id. 33 See Bandimere, 844 F.3d at 1181.

So with this lack of clarity as described above, my question is whether there is any ongoing litigation over Executive Order 13843 itself. If anyone is aware of same, please post a citation.

[neufenland]

You guys remember this thread? After yet again being passed over for an interview at VA (or so I assume), I was feeling nostalgic for when ALJ hiring was a competitive, merit-based process that actually resulted in people getting positions. And then this happened and it's apparently still going to be a thing....

You guys remember when there was consistency in federal administrative law? I 'member. It was about a seven-decade run. Those were good times.

Pepperidge Farm remembers, too, I bet...

[roymcavoy]

May 13, 2021 15:00:47 GMT -5 neufenland said:

You guys remember this thread? After yet again being passed over for an interview at VA (or so I assume), I was feeling nostalgic for when ALJ hiring was a competitive, merit-based process that actually resulted in people getting positions. And then this happened and it's apparently still going to be a thing....

You guys remember when there was consistency in federal administrative law? I 'member. It was about a seven-decade run. Those were good times.

Pepperidge Farm remembers, too, I bet...

The 2019 round of Lucy moving the football after *another* trip to DC on my own dime taught me the high levels of unfairness in this process.

[fowlfinder]

May 13, 2021 15:28:56 GMT -5 roymcavoy said:

May 13, 2021 15:00:47 GMT -5 neufenland said:

You guys remember this thread? After yet again being passed over for an interview at VA (or so I assume), I was feeling nostalgic for when ALJ hiring was a competitive, merit-based process that actually resulted in people getting positions. And then this happened and it's apparently still going to be a thing....

You guys remember when there was consistency in federal administrative law? I 'member. It was about a seven-decade run. Those were good times.

Pepperidge Farm remembers, too, I bet...

The 2019 round of Lucy moving the football after *another* trip to DC on my own dime taught me the high levels of unfairness in this process.

Hear hear. Especially since that 2019 interview was the best interview I have had for a job in my entire life. Not saying I would have gotten a slot, but boy did that hiring freeze hurt. 

[hamster]

I’m going to channel my inner Pixie.

Respectfully, it would be “Hear, hear,” instead of “Here, here.”

I hope everyone gets hired soon!

Best, Hamster

(It’s just like you wouldn’t ask for a bier at a bar. Or urge your companion to “dry your tiers.” Or point out the hamster prince at the frame shop. Makes me think of sear and sere, and would and wood. Same principle, principally.)

[neufenland]

May 13, 2021 19:00:15 GMT -5 hamster said:

I hope everyone gets hired soon!

For those lucky few who do get hired, I suppose it could be considered as going to occur "soon."  

That's if you use the geologic time scale...

[gavel]

May 13, 2021 19:00:15 GMT -5 hamster said:

It’s just like you wouldn’t ask for a bier at a bar. 

I saw this and thought of when I was stationed in Germany.  "Ein bier bitte."

[Pixie]

May 13, 2021 19:00:15 GMT -5 hamster said:

I’m going to channel my inner Pixie.

Respectfully, it would be “Hear, hear,” instead of “Here, here.”

I hope everyone gets hired soon!

Best, Hamster

(It’s just like you wouldn’t ask for a bier at a bar. Or urge your companion to “dry your tiers.” Or point out the hamster prince at the frame shop. Makes me think of sear and sere, and would and wood. Same principle, principally.)

Thank you. Pixie

[fowlfinder]

May 13, 2021 19:00:15 GMT -5 hamster said:

I’m going to channel my inner Pixie.

Respectfully, it would be “Hear, hear,” instead of “Here, here.”

I hope everyone gets hired soon!

Best, Hamster

(It’s just like you wouldn’t ask for a bier at a bar. Or urge your companion to “dry your tiers.” Or point out the hamster prince at the frame shop. Makes me think of sear and sere, and would and wood. Same principle, principally.)

Dually noted (and yes that was on purpose, since I did it twice). 

[Deo Volente]

I don't know if anyone has seen this but OPM quietly moved to codify regulations to effectuate the EO:

The Office of Personnel Management (OPM) is issuing proposed regulations governing the appointment and employment of administrative law judges (ALJs). The proposed rule will implement Executive Order (E.O.) 13843 titled “Excepting Administrative Law Judges from the Competitive Service.” These proposed revisions update the rules for ALJ hiring in light of the new Schedule E of the excepted service for ALJs and update the existing ALJ employment regulations to reflect other recent changes in the law.

www.federalregister.gov/documents/2020/09/21/2020-17684/administrative-law-judges

[recoveringalj]

May 14, 2021 19:01:52 GMT -5 Deo Volente said:

I don't know if anyone has seen this but OPM quietly moved to codify regulations to effectuate the EO:

The Office of Personnel Management (OPM) is issuing proposed regulations governing the appointment and employment of administrative law judges (ALJs). The proposed rule will implement Executive Order (E.O.) 13843 titled “Excepting Administrative Law Judges from the Competitive Service.” These proposed revisions update the rules for ALJ hiring in light of the new Schedule E of the excepted service for ALJs and update the existing ALJ employment regulations to reflect other recent changes in the law.

www.federalregister.gov/documents/2020/09/21/2020-17684/administrative-law-judges

Correct me if I’m wrong, but my understanding is that comments on this regulation closed in November 2020 and, at least so far, OPM has not issued a final rule. I haven’t heard what this administration plans to do with it, and probably won’t until an OPM Director is confirmed.

[neufenland]

May 14, 2021 20:32:48 GMT -5 recoveringalj said:

May 14, 2021 19:01:52 GMT -5 Deo Volente said:

I don't know if anyone has seen this but OPM quietly moved to codify regulations to effectuate the EO:

The Office of Personnel Management (OPM) is issuing proposed regulations governing the appointment and employment of administrative law judges (ALJs). The proposed rule will implement Executive Order (E.O.) 13843 titled “Excepting Administrative Law Judges from the Competitive Service.” These proposed revisions update the rules for ALJ hiring in light of the new Schedule E of the excepted service for ALJs and update the existing ALJ employment regulations to reflect other recent changes in the law.

www.federalregister.gov/documents/2020/09/21/2020-17684/administrative-law-judges

Correct me if I’m wrong, but my understanding is that comments on this regulations closed in November 2020 and, at least so far, OPM has not issued a final rule. I haven’t heard what this administration plans to do with it, and probably won’t until an OPM Director is confirmed.

The EO is either not a priority, or worse, it's something that the Administration plans to keep because career people at the agencies like it.  Well, worse for those of us who potentially or actually benefited from the old system (including veterans like me and many others on here). It's hard for me to argue that agencies should be forced to hire people they don't want, but I did like the old system.  

[roymcavoy]

May 15, 2021 11:10:55 GMT -5 neufenland said:

May 14, 2021 20:32:48 GMT -5 recoveringalj said:

Correct me if I’m wrong, but my understanding is that comments on this regulations closed in November 2020 and, at least so far, OPM has not issued a final rule. I haven’t heard what this administration plans to do with it, and probably won’t until an OPM Director is confirmed.

The EO is either not a priority, or worse, it's something that the Administration plans to keep because career people at the agencies like it.  Well, worse for those of us who potentially or actually benefited from the old system (including veterans like me and many others on here). It's hard for me to argue that agencies should be forced to hire people they don't want, but I did like the old system.  

If the admin plans to keep this system, why did they cancel the SSA ALJ posting that was posted in 2019? There was no time frame on it and it (arguably) required both an initial OPM level interview and allowed SSA to pick and choose from that pile

[neufenland]

May 17, 2021 12:14:16 GMT -5 roymcavoy said:

May 15, 2021 11:10:55 GMT -5 neufenland said:

The EO is either not a priority, or worse, it's something that the Administration plans to keep because career people at the agencies like it.  Well, worse for those of us who potentially or actually benefited from the old system (including veterans like me and many others on here). It's hard for me to argue that agencies should be forced to hire people they don't want, but I did like the old system.  

If the admin plans to keep this system, why did they cancel the SSA ALJ posting that was posted in 2019? There was no time frame on it and it (arguably) required both an initial OPM level interview and allowed SSA to pick and choose from that pile

I'm a little confused by your question.  The Biden Admin. cancelled the 2019 SSA job announcement? 

I didn't realize that was still pending in 2021, but I don't have an answer why it was cancelled so long after the hiring freeze.  Assuming the Admin. liked the current system, I guess because SSA doesn't need people right now and it was an exercise in administrative clean-up?  

I prefer to think it's not a priority right now and that the OPM method, or some new (hopefully not awful) variant will emerge.  

I'm going to go and check my email to see if I got notified from USAJOBs that the SSA ALJ posting was cancelled.  I must have blanked that out.  

UPDATE:  I was notified on 2/1/21 that it was cancelled.  I'm not convinced of the significance other than the obvious fact that they don't plan a hire out of that notice.  Interesting it took so long to officially cancel it, though.  

[roymcavoy]

May 17, 2021 13:03:23 GMT -5 neufenland said:

May 17, 2021 12:14:16 GMT -5 roymcavoy said:

If the admin plans to keep this system, why did they cancel the SSA ALJ posting that was posted in 2019? There was no time frame on it and it (arguably) required both an initial OPM level interview and allowed SSA to pick and choose from that pile

I'm a little confused by your question.  The Biden Admin. cancelled the 2019 SSA job announcement? 

I didn't realize that was still pending in 2021, but I don't have an answer why it was cancelled so long after the hiring freeze.  Assuming the Admin. liked the current system, I guess because SSA doesn't need people right now and it was an exercise in administrative clean-up?  

I prefer to think it's not a priority right now and that the OPM method, or some new (hopefully not awful) variant will emerge.  

I'm going to go and check my email to see if I got notified from USAJOBs that the SSA ALJ posting was cancelled.  I must have blanked that out.  

UPDATE:  I was notified on 2/1/21 that it was cancelled.  I'm not convinced of the significance other than the obvious fact that they don't plan a hire out of that notice.  Interesting it took so long to officially cancel it, though.  

Yeah. I agree with all you said. Pixie noted that SSA had long wanted to hire in the manner that the EO allowed them to hire in that last opening, so who knows why they cancelled it.

Also worth noting that the register was also cancelled by an EO. While I am certain a paper copy of it is lying on top of the wooden crate that holds the Ark of the Covenant in that warehouse from “Raiders of the Lost Ark,” SSA currently has no list from which to hire ALJs.