Presidential Documents

Federal Register / Vol. 83, No. 135 / Friday, July 13, 2018 / Presidential Documents 32755 

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 discharge—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, impartiality, 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 Constitution’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 discretion an agency head must possess under the Appointments Clause in selecting 

ALJs. Regardless of whether those procedures would violate the Appointments 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 exception to the competitive hiring rules and examinations for the position of 

ALJ. These conditions include the need to provide agency heads with additional flexibility to assess prospective appointees without the limitations 

imposed by competitive examination and competitive service selection procedures. Placing the position of ALJ in the excepted service will mitigate 

concerns about undue limitations on the selection of ALJs, reduce the likelihood 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 complicated 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 Schedule 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 policydetermining 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 policydetermining 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 policydetermining 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 recently 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 established under the United States Constitution. For purposes of this requirement, 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 constitute a minimum standard for appointment to the position of administrative 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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