Executive Order No. 13843. Excepting Administrative Law Judges From the Competitive Service

• Published date: 13 July 2018
• FR Document: 2018-15202
• Pages: 32755-32758
• Citation: 83 FR 32755
• Executive Order No.: 13843
• Date: 10 July 2018
• Issuer: Executive Office of the President
• Section: Presidential Documents

Federal Register / Vol. 83, No. 135 / Friday, July 13, 2018 / Presidential Documents 
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Presidential Documents
Executive Order 13843 of July 10, 2018 
Excepting Administrative Law Judges From the Competitive 
Service 
By the authority vested in me as President by the Constitution and the 
laws of the United States of America, including sections 3301 and 3302 
of title 5, United States Code, it is hereby ordered as follows: 
Section 1.  Policy.  The Federal Government benefits from a professional 
cadre of administrative law judges (ALJs) appointed under section 3105 
of title 5, United States Code, who are impartial and committed to the 
rule of law. As illustrated by the Supreme Court’s recent decision in Lucia 
v.  Securities and Exchange Commission, No. 17–130 (June 21, 2018), ALJs 
are often called upon to discharge significant duties and exercise significant 
discretion in conducting proceedings under the laws of the United States. 
As part of their adjudications, ALJs interact with the public on issues of 
significance. Especially given the importance of the functions they dis-
charge—which may range from taking testimony and conducting trials to 
ruling on the admissibility of evidence and enforcing compliance with their 
orders—ALJs must display appropriate temperament, legal acumen, impar-
tiality, and sound judgment. They must also clearly communicate their 
decisions to the parties who appear before them, the agencies that oversee 
them, and the public that entrusts them with authority. 
Previously, appointments to the position of ALJ have been made through 
competitive examination and competitive service selection procedures. The 
role of ALJs, however, has increased over time and ALJ decisions have, 
with increasing frequency, become the final word of the agencies they serve. 
Given this expanding responsibility for important agency adjudications, and 
as recognized by the Supreme Court in Lucia,  at least some—and perhaps 
all—ALJs are ‘‘Officers of the United States’’ and thus subject to the Constitu-
tion’s Appointments Clause, which governs who may appoint such officials. 
As evident from recent litigation, Lucia  may also raise questions about 
the method of appointing ALJs, including whether competitive examination 
and competitive service selection procedures are compatible with the discre-
tion an agency head must possess under the Appointments Clause in selecting 
ALJs. Regardless of whether those procedures would violate the Appoint-
ments Clause as applied to certain ALJs, there are sound policy reasons 
to take steps to eliminate doubt regarding the constitutionality of the method 
of appointing officials who discharge such significant duties and exercise 
such significant discretion. 
Pursuant to my authority under section 3302(1) of title 5, United States 
Code, I find that conditions of good administration make necessary an excep-
tion to the competitive hiring rules and examinations for the position of 
ALJ. These conditions include the need to provide agency heads with addi-
tional flexibility to assess prospective appointees without the limitations 
imposed by competitive examination and competitive service selection proce-
dures. Placing the position of ALJ in the excepted service will mitigate 
concerns about undue limitations on the selection of ALJs, reduce the likeli-
hood 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 
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have before wielding the significant authority conferred on ALJs, and each 
agency should be able to assess them without proceeding through com-
plicated 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. 
Sec. 2. Excepted Service. Appointments of ALJs shall be made under Sched-
ule E of the excepted service, as established by section 3 of this order. 
Sec. 3.  Implementation.  (a) Civil Service Rule VI is amended as follows: 
(i) 5 CFR 6.2 is amended to read: 
OPM shall list positions that it excepts from the competitive service 
in Schedules A, B, C, and D, and it shall list the position of administrative 
law judge in Schedule E, which schedules shall constitute parts of this 
rule, as follows: 
Schedule A. Positions other than those of a confidential or policy- 
determining character for which it is not practicable to examine shall 
be listed in Schedule A. 
Schedule B. Positions other than those of a confidential or policy- 
determining character for which it is not practicable to hold a competitive 
examination shall be listed in Schedule B. Appointments to these positions 
shall be subject to such noncompetitive examination as may be prescribed 
by OPM. 
Schedule C. Positions of a confidential or policy-determining character 
shall be listed in Schedule C. 
Schedule D. Positions other than those of a confidential or policy- 
determining character for which the competitive service requirements make 
impracticable the adequate recruitment of sufficient numbers of students 
attending qualifying educational institutions or individuals who have re-
cently completed qualifying educational programs. These positions, which 
are temporarily placed in the excepted service to enable more effective 
recruitment from all segments of society by using means of recruiting 
and assessing candidates that diverge from the rules generally applicable 
to the competitive service, shall be listed in Schedule D. 
Schedule E. Position of administrative law judge appointed under 5 
U.S.C. 3105. Conditions of good administration warrant that the position 
of administrative law judge be placed in the excepted service and that 
appointment to this position not be subject to the requirements of 5 
CFR, part 302, including examination and rating requirements, though 
each agency shall follow the principle of veteran preference as far as 
administratively feasible. 
(ii) 5 CFR 6.3(b) is amended to read: 
(b) To the extent permitted by law and the provisions of this part, 
and subject to the suitability and fitness requirements of the applicable 
Civil Service Rules and Regulations, appointments and position changes 
in the excepted service shall be made in accordance with such regulations 
and practices as the head of the agency concerned finds necessary. These 
shall include, for the position of administrative law judge appointed under 
5 U.S.C. 3105, the requirement that, at the time of application and any 
new appointment, the individual, other than an incumbent administrative 
law judge, 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 estab-
lished under the United States Constitution. For purposes of this require-
ment, judicial status is acceptable in lieu of ‘‘active’’ status in States 
that prohibit sitting judges from maintaining ‘‘active’’ status to practice 
law, and being in ‘‘good standing’’ is also acceptable in lieu of ‘‘active’’ 
status in States where the licensing authority considers ‘‘good standing’’ 
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as having a current license to practice law. This requirement shall con-
stitute a minimum standard for appointment to the position of administra-
tive law judge, and such appointments may be subject to additional agency 
requirements where appropriate. 
(iii) 5 CFR 6.4 is amended to read: 
Except as required by statute, the Civil Service Rules and Regulations 
shall not apply to removals from positions listed in Schedules A, C, 
D, or E, or from positions excepted from the competitive service by statute. 
The Civil Service Rules and Regulations shall apply to removals from 
positions listed in Schedule B of persons who have competitive status. 
(iv) 5 CFR 6.8 is amended to add after subsection (c): 
(d) Effective on July 10, 2018, the position of administrative law judge 
appointed under 5 U.S.C. 3105 shall be listed in Schedule E for all 
levels of basic pay under 5 U.S.C. 5372(b). Incumbents of this position 
who are, on July 10, 2018, in the competitive service shall remain in 
the competitive service as long as they remain in their current positions. 
(b) The Director of the Office of Personnel Management (Director) shall: 
(i) adopt such regulations as the Director determines may be necessary 
to implement this order, including, as appropriate, amendments to or 
rescissions of regulations that are inconsistent with, or that would impede 
the implementation of, this order, giving particular attention to 5 CFR, 
part 212, subpart D; 5 CFR, part 213, subparts A and C; 5 CFR 302.101; 
and 5 CFR, part 930, subpart B; and 
(ii) provide guidance on conducting a swift, orderly transition from the 
existing appointment process for ALJs to the Schedule E process established 
by this order. 
Sec. 4.  General Provisions. (a) Nothing in this order shall be construed 
to impair or otherwise affect: 
(i) the authority granted by law to an executive department or agency, 
or the head thereof; or 
(ii) the functions of the Director of the Office of Management and Budget 
relating to budgetary, administrative, or legislative proposals. 
(b) This order shall be implemented in a manner consistent with applicable 
law and subject to the availability of appropriations. 
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(c) This order is not intended to, and does not, create any right or benefit, 
substantive or procedural, enforceable at law or in equity by any party 
against the United States, its departments, agencies, or entities, its officers, 
employees, or agents, or any other person. 
THE WHITE HOUSE, 
July 10, 2018. 
[FR Doc. 2018–15202 
Filed 7–12–18; 11:15 am] 
Billing code 3295–F8–P 
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