Excepting Administrative Law Judges From the Competitive Service

This executive order moves Administrative Law Judges (ALJs) from the competitive service to a new Schedule E of the excepted service, allowing agency heads to hire ALJs without competitive examination requirements. The change responds to the Supreme Court's Lucia v. SEC decision and aims to address Appointments Clause concerns while giving agencies more discretion in selecting ALJ candidates.

Federal Register Open PDF 83 FR 32755

Impact dates

Date TBD
OPM to adopt regulations and provide transition guidance
Jul 10, 2018
Schedule E effective date; ALJ position moved to excepted service

Key directives

Place ALJ position in Schedule E of excepted service effective July 10, 2018
Require bar membership as minimum qualification for new ALJ applicants
Maintain veteran preference 'as far as administratively feasible'
Exempt Schedule E removals from Civil Service Rules and Regulations
OPM to adopt implementing regulations and provide transition guidance

Who is ordered

Director of OPM · OPM
Agency Head · Various

Timeline

Immediate

Schedule E established effective July 10, 2018
All new ALJ appointments to be made under excepted service
Incumbent ALJs remain in competitive service while in current positions

Near term (90d)

OPM adoption of implementing regulations
Transition guidance from OPM on moving to Schedule E process

Long term

Shift in ALJ selection criteria across federal government
Potential changes to ALJ independence and impartiality norms
Possible reduction in Appointments Clause litigation

Risks & tensions

Potential tension between agency discretion and ALJ independence/impartiality
Veteran preference weakened by 'as far as administratively feasible' qualifier
Removal protections eliminated for new ALJ appointments may affect decisional independence
Lucia decision scope unclear—EO text says 'at least some—and perhaps all' ALJs are officers
No explicit deadline for OPM implementation guidance