In Washington
Bill aiming to return ALJs to competitive service advances in House
What’s the story?
The U.S. House Reform and Oversight Committee on July 20 voted 24-16 along party lines to advance legislation that would redesignate administrative law judges (ALJs) as members of the competitive civil service and reestablish the U.S. Office of Personnel Management’s authority over the ALJ hiring process.
President Donald Trump in 2018 moved ALJs from the competitive civil service to the excepted service via Executive Order 13843. The order aimed to align ALJ appointment practices with the U.S. Supreme Court’s decision in Lucia v. SEC, which held that the ALJs of the U.S. Securities and Exchange Commission (SEC) are are officers of the United States who must be appointed by the president, the courts, or agency heads rather than hired by agency staff. Prior to the order, OPM screened ALJ candidates through a merit-based selection process as part of the competitive service. Agencies could only hire ALJs from OPM’s pool of vetted candidates.
Supporters of the legislation (the Administrative Law Judges Competitive Service Restoration Act) argue that E.O. 13843 threatens ALJ impartiality by allowing partisan agency heads to appoint ALJs based on their own standards.“This exposed impartial judges, who determined the outcome of disputes over labor-management relations, claims for Social Security and public health benefits, to political influence,” said the bill’s author, Representative Gerry Connolly (D-Va.).
Opponents of the legislation argue that E.O. 13843 strengthens ALJ subject matter expertise by allowing agency heads to consider qualifications beyond the scope of OPM’s generalist vetting criteria. “By placing ALJs in the excepted service, it gave federal departments and agencies greater flexibility to assess prospective ALJ candidates,” said the committee’s ranking member, Rep. James Comer (R-Ky.).
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