Excepting Administrative Law Judges From the Competitive Service
Signed: July 10, 2018
Published: July 13, 2018
Document Number: 2018-15202
šSummary
This executive order changes how federal Administrative Law Judges (ALJs) are hired by moving ALJ positions out of the competitive civil service and into a new āSchedule Eā category of the excepted service. It affects federal agencies that appoint ALJs and people applying to become ALJs, by giving agency heads more flexibility to choose candidates without using the standard competitive exams and rating procedures. It directs the Office of Personnel Management to update civil service rules to create Schedule E for ALJs, while still applying veteransā preference as much as practical. It also sets a minimum qualification that new ALJ appointees must be licensed attorneys authorized to practice law (with certain equivalents allowed for judges or āgood standingā status), and it aims to reduce legal challenges to ALJ appointments after the Supreme Courtās Lucia decision.
š¼Business Impact
This order mainly affects businesses that regularly face federal administrative hearingsāfinancial services (SEC/CFTC), healthcare and life sciences (HHS/CMS/FDA), government contractors (labor and procurement disputes), energy/environment (EPA/FERC), transportation, telecom, and immigration/employment complianceābecause it changes how Administrative Law Judges (ALJs) are hired and may reduce Appointments Clause challenges to ALJ decisions. Compliance-wise, expect agencies to have more discretion and potentially faster or more variable adjudication practices as ALJs are moved to āSchedule Eā (excepted service) with agency-specific selection standards (still generally honoring veteransā preference), which can shift litigation strategy away from procedural appointment challenges and toward merits, record-building, and settlement posture. Opportunities include more durable agency decisions (less risk of decisions being vacated on appointment technicalities) and potentially clearer agency alignment in ALJ hiring, which may change how enforcement and appeals play out in specific agencies. Immediate actions: identify where your company is exposed to ALJ-driven proceedings, review open matters for any remaining appointment-related arguments post-*Lucia*, and update your hearing playbooks to emphasize early issue spotting, stronger evidentiary records, and forum-specific counsel who track each agencyās evolving
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