OPM backs off active status reg.

[aljsouth]

OFFICE OF PERSONNEL MANAGEMENT

5 CFR PART 930

RIN 3206-AL67

EXAMINING SYSTEM AND

PROGRAMS FOR SPECIFIC POSITIONS AND EXAMINATIONS
(MISCELLANEOUS)

AGENCY: U. S. Office of Personnel Management.

ACTION: Interim rule with request for comments.

SUMMARY: The U. S. Office of Personnel Management is issuing an interim rule
suspending the requirement set forth in 5 CFR § 930.204(b) that requires incumbent
administrative law judges (“ALJs”) to “possess a professional license to practice law and
be authorized to practice law.”

DATES: Comments must be received on or before [INSERT DATE 60 DAYS AFTER
DATE OF PUBLICATION IN THE FEDERAL REGISTER].

ADDRESSES: Send, deliver, or fax written comments to: Ms. Angela Bailey, Deputy
Associate Director for Talent and Capacity Policy, U.S. Office of Personnel
Management, Room 6551, 1900 E Street NW., Washington, DC 20415-9700; email:
[e-mail]; fax: [phone].

Comments may also be sent through the Federal eRulemaking Portal at:
www.regulations.gov. All submissions received through the Portal must include


the agency name and docket number or Regulation Identifier Number (RIN) for this
rulemaking.

FOR FURTHER INFORMATION CONTACT: Ms. Linda Watson by telephone at

[phone]; by fax at [phone]; by TTY at [phone]; or by e-mail at
[e-mail].

SUPPLEMENTARY INFORMATION: The U. S. Office of Personnel Management is
issuing an interim rule suspending the requirement set forth in 5 CFR § 930.204(b) that
requires incumbent administrative law judges (“ALJs”) to “possess a professional license
to practice law and be authorized to practice law.” This provision requires ALJs to
maintain “active status,” ( or “judicial status” in States that prohibit sitting judges from
maintaining “active status” to practice law), or to be in “good standing” where the
licensing authority considers “good standing” as having a current license to practice law.
This licensure requirement set forth in section 930.204(b) henceforth will not apply to
incumbent administrative law judges.

ALJ applicants are unaffected by this suspension, and the requirement that
applicants possess a professional license to practice law and be authorized to practice law
continues to apply. We remain convinced that active licensure at the time of application
and appointment is vital as an indicator that the applicant presenting him or herself for
assessment and possible appointment has been subject to rigorous ethical requirements
right up to the point of appointment. We have reconsidered comments received during
the notice and comment period, however, about the burdens imposed by the active
licensure requirement, as it applies to incumbents, the potential differences between the
ethical requirements that pertain to an advocate and those requirements that pertain to


someone asked to adjudicate cases impartially, and the variations in what States require
as to lawyers serving as ALJs. We intend once again to solicit comments on this point in
a new rulemaking. In the interim, we seek to prevent any adverse impact on incumbents
while we engage in this process by suspending the current requirement as to incumbents.

Waiver Of Notice Of Proposed Rulemaking And Delay In Effective Date

Pursuant to 5 U.S.C. § 553 (d)(1), we deem it appropriate to waive the 30-day
waiting period and make this regulation effective immediately because this is “a
substantive rule which grants or recognizes an exemption or relieves a restriction” set
forth in the regulation that is being revised. Further, pursuant to 5 U.S.C. 553(b)(B) and
(d)(3), we find that good cause exists to waive the general notice of proposed rulemaking.
Because we understand that some incumbents have raised concerns that coming into
compliance with bar requirements in section 930.204(b) or continuing legal education
requirements of bar membership will impose a burden or hardship on them, we are
suspending the requirement in order to alleviate those concerns while we consider its
efficacy, as well as comments addressing whether active bar status is necessary to ensure
good conduct among incumbent administrative law judges.

Executive Order 12866, Regulatory Review



This interim rule has been reviewed by the Office of Management and Budget in
accordance with Executive Order 12866.

Regulatory Flexibility Act



I certify that these regulations would not have a significant economic impact on a
substantial number of small entities (including small businesses, small organizational


units, and small governmental jurisdictions) because they would affect only some Federal
agencies and employees.

List of Subjects in 5 CFR part 930



Administrative practice and procedure, Computer technology, Government
employees, Motor vehicles.



U.S. Office of Personnel Management.





_______________________________

Linda M. Springer,

Director.



Accordingly, OPM is amending 5 CFR part 930 as follows:



PART 930 – PROGRAMS FOR SPECIFIC POSITIONS AND EXAMINATIONS
(MISCELLANEOUS)

1. The authority for subpart B of 930 continues to read as follows:

Authority: 5 U.S.C. 1104(a), 1302(a), 1305, 3105, 3301, 3304, 3323(b), 3344,
4301(2)(D), 5372, 7521, and E.O. 10577, 3 CFR, 1954-1958 Comp., p. 219

2. Revise paragraph (b) of §930.204 to read as follows:

* * * * *

(b) Licensure. (1) At the time of application and any new appointment and while
serving as an administrative law judge, the individual must possess a professional license
to practice law and be authorized to practice law under the laws of a State, the District of
Columbia, the Commonwealth of Puerto Rico, or any territorial court established under
the United States Constitution. Judicial status is acceptable in lieu of “active” status in
States that prohibit sitting judges from maintaining “active” status to practice law. Being


in “good standing” is also acceptable in lieu of “active” status in States where the
licensing authority considers “good standing” as having a current license to practice law.

(2) The requirements contained in paragraph (b)(1) are suspended until further notice
with respect to incumbents serving as administrative law judges.

* * * * *





[Wino]

Thank you, ALJSouth, for this welcome news. Bureaucracy moves in strange and wonderous ways.

[nylawyer]

out of curiousity- what is the logic for NOT requiring ALJ's to have active bar status? I understand that for current ALJ's, changing the rules midstream creates a problem, but assuming you grandfathered in everyone who is currently already an ALJ, what would be the problem with requiring ALJ's to maintain an active bar status?

[nylawyer]

I don't know, it would seem to me that there is as much a compelling reason to require ALJ's to maintain active bar status as there is to require anyone else.

[oldjag]

the problem come in meeting the CLE. In addition as we are prohibited from practicing law, why do we need a licience to do it? My state just requires me to stste that am not in active practice in that state. While my state is easy regarding CLEs it is a pain to do the paperwork and IMHO not necessary.

[nylawyer]

I guess my point really is, there isn't a compelling reason for anyone, other than the fact that the local bar associations want those fees. CLE is pretty much a joke, but if it has a purpose, then I would say that ALJ's would fall within that purpose. What else is there- a mechanism for punishing lawyers, by revoking licenses? Providing the public with some sense that attorneys are being policed for competence?- because, well, they aren't.
I'm just playing devil's advocate here, I really could care less about this (while I understand that for actual ALJ's this impacts their lives), I was just curious what the rationale was for not requiring active status.

[morgullord]

military lawyers assigned to Iraq or Afghanistan are required to maintain active bar status. In the case of ALJs, it is too much of a burden for them to do so.

[barkley]

I guess those attorneys are actually practising law!

I always wondered why it was so important for the staff attorneys and OGC attorneys, well, any other government attorney for that matter, to keep their status current but the ALJs do not.

[gromit]

Yeah, we should just dumb it down. No sense being an ALJ AND a professional. Who would want an ALJ to be a real lawyer?

Look, let's just cut to the chase. Eliminate the need for an ALJ to be a lawyer at all. Pay us at GS11 level and save a crap load of money.

Who would go through law school, take the bar, and then be too cheap or shortsighted to keep their bar license? Or, maybe just being an attorney in good standing is too tough for the lot of us.

Whatever.

Do what you will, but have some respect for yourself.

[EDIT} I do realize this is an active vs inactive distinction, but most states have a limit on how long you can remain inactive without having to take the bar again. Which begs the question, why not stay active in the bar? Be a professional, keep current with the law.

I must further admit that I've never researced inactive status so I don't know what it entails so I might be just spouting off without knowing what I'm talking about (not the first time, nor will it be the last) - as note by pm below.

[pm]

Jul 17, 2008 17:00:10 GMT -5 nylawyer said:

I guess my point really is, there isn't a compelling reason for anyone, other than the fact that the local bar associations want those fees. CLE is pretty much a joke, but if it has a purpose, then I would say that ALJ's would fall within that purpose. What else is there- a mechanism for punishing lawyers, by revoking licenses? Providing the public with some sense that attorneys are being policed for competence?- because, well, they aren't.
I'm just playing devil's advocate here, I really could care less about this (while I understand that for actual ALJ's this impacts their lives), I was just curious what the rationale was for not requiring active status.

There are really two issues here:

1. Why would a state bar want someone to remain active and
2. Why would an employer want someone to remain active.

The OPM issue involves the latter.

[gromit]

Jul 17, 2008 21:01:37 GMT -5 pm said:

There are really two issues here:

1. Why would a state bar want someone to remain active and
2. Why would an employer want someone to remain active.

The OPM issue involves the latter.

I agree, and see nothing against any Federal Agency "wanting" it's ALJs to be members of a bar in any State in the Union.

[pm]

Jul 17, 2008 20:50:22 GMT -5 @gromit said:

Yeah, we should just dumb it down. No sense being an ALJ AND a professional. Who would want an ALJ to be a real lawyer? ::)

Look, let's just cut to the chase. Eliminate the need for an ALJ to be a lawyer at all. Pay us at GS11 level and save a crap load of money.

Who would go through law school, take the bar, and then be too cheap or stupid to keep their bar license? Or, maybe just being an attorney in good standing is too tough for the lot of us.

Whatever.

Do what you will, but have some respect for yourself.

Atorneys who are inactive are REAL ATTORNEYS.

Attorneys who are inactive are in GOOD STANDING.

Attorneys who are inactive HAVE A LICENSE.

Remaining active or inactive while you are an ALJ is a personal decsion between you and your State Bar. It has NOTHING to do with intelligence, knowledge, professionalism etc.

Remaining active in some state bars is VERY EXPENSIVE and VERY TIME CONSUMING because of CLE requirements. Paying $500 per year rather than $75 per year does not make you intelligent, ethical or professional. In fact, a good argument could be made in the opposite direction.

[pm]

Jul 17, 2008 21:05:41 GMT -5 @gromit said:

Jul 17, 2008 21:01:37 GMT -5 pm said:

There are really two issues here:

1. Why would a state bar want someone to remain active and
2. Why would an employer want someone to remain active.

The OPM issue involves the latter.

I agree, and see nothing against any Federal Agency "wanting" it's ALJs to be members of a bar in any State in the Union.

The issue is not whether they are, or are not, members. The issue is whether they are active or inactive.

[morgullord]

I may break down and weep for the poor ALJs who are so financially strapped that they cannot pay active bar dues or CLE.

[aljhunter]

Part of the problem is that there does not exist a National standard defining "active" membership, "inactive" membership and "judicial" membership. Rather, the 50 states and the District of Columbia define "active" membership, "inactive" membership and "judicial" membership differently. In my primary State, an "active" member is someone who "practices" law, i.e. represents clients, subjecting that member to malpractice insurance requirements, mandatory CLE hours, and ethical rules governing attorneys in "the practice of law" (IOLTA, anyone?). My State reasons (rightly) that a Judge should not have to obtain malpractice insurance. . . Yet, my State has a mandatory "judicial" member category reserved for those whose positions forbid the "practice of law," recognizing that judges are bound by different ethical rules--most particularly a rule forbidding the "practice of law." In my current position--and, as I understand, under ethical standards that apply to my future position as an ALJ--I cannot "represent" a party in a proceeding in a court in my State or in the Federal system. I think OPM has to answer the fundamental question: Do ALJs "practice" law? (Most judges would say that judges do not practice law. Attorneys who represent parties practice law. Judges apply the law.) Perhaps OPM should adopt a regulation that requires simply "bar membership" for ALJs, but that sets uniform/National requirements for ethics (like the Code of Judicial Ethics); necessary continuing legal education (provided by the relevant Agency) and discipline. . .

[gromit]

Jul 17, 2008 21:11:24 GMT -5 pm said:

Remaining active in some state bars is VERY EXPENSIVE and VERY TIME CONSUMING because of CLE requirements. Paying $500 per year rather than $75 per year does not make you intelligent, ethical or professional. In fact, a good argument could be made in the opposite direction.

LMAO - good point, But I do disagree that $500 is "very expensive" in light of what ALJs make. CLE may be inconvenient, but it's not without its benefits.

[odarite]

This really is not about the money. Gromit and Morgullord are right to say that the cost is not significant in the overall scheme of things. However, some sitting ALJs, having been inactive members for years, cannot reinstate active membership without taking a bar examination and others would have to apply to the bar of a new state (and presumably take the bar) because the state of their licensure will not allow active membership for anyone not residing in their state. I am not going to list all the fact scenarios that make up the long list of problems the last regulation was going to cause, but suffice it to say they are numerous and significant. And NYLawyer's point is also well taken. In fact, when the dust settles there is no reason OPM can't just grandfather in those who are inactive now and require everyone else to maintain active status. Clearly this interim regulation is not the last word on the subject. Finally, i note the regulation is not actually published yet, so hold on to your hats. The ride could still be interesting.

[aljsouth]

One huge problem with OPM's reg was its attempt to make it retroactive. That may have been dealt with with the emergency regulation.

My biggest problem with the reg is simply why should ALJ's, who are prohibited from practicing law, be required to maintain an active license to practice law. The base issue is that OPM does not recognize ALJ's are judges not lawyers practicing law. I can see a need for a judge to remain "in good standing," by which I mean not disbarred or suspended because of conduct relating to being a lawyer or judge. I have no problem with this requirement. But OPM required the ability to walk into a court room tomorrow in some state and represent someone [unless a state forbids judges from doing so in a mandatory judicial status].

I know of one judge from Florida whom OPM would not allow to transfer simply because that bar allowed judges to claim an exemption into judicial status, instead of being required to do so. The only difference was CLE. Like another poster, I have no problem with CJE so long as the agency is required to provide it. I am licensed in two states (and pay dues) and both require continuing judicial educations for state judges and both states have mechanisms for providing that CJE to their judges. Why should the federal executive branch not do the same for their ALJ's?

I also note I once worked in a state AG's office and that office had a method of providing CLE to its lawyers and other state government lawyers--something SSA has never dreamed of doing.

[okeydokey]

I disagree. The MSPB just held that a rule prohibitting hiring someone for a state dept. position because of her age violated the VEOA. The rule was in place so that those hired would have 20 years service at age 57, the mandatory retirement age. The MSPB notedvthat there were some in the position who were over 57 and concluded that the age limit was not mandatory.

If current ALJs are not required to have an active license, how can OPM require applicants have one? If an active license is not required, can we conclude that ever having been licensed is a requirement?

Perhaps it can be done. But I am not sure how.

[pm]

Applicants have to have an active license. You cannot be hired unless you have an active license. OPM explains this reasonably well.

But once you are hired, it is not clear that OPM is going to require new judges to remain active. It would be difficult to see how they could.