Executive Order Changes Administrative Law Judge Hiring Process

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In July, President Trump issued an executive order designed to make the Administrative Law Judge (ALJ) hiring process more efficient. But will this new appointment process negatively affect morale at the SSA — or the quality of service the agency provides?

Administrative Law Judge Appointments Excepted From Competitive Service

Previously, the Office of Personnel Management (OPM) vetted each lawyer selected for an Administrative Law Judge position during the hiring process. Part of the OPM’s vetting process included each Administrative Law Judge candidate passing a thorough hiring exam. The examination process isn’t necessarily a written test, but the OPM does control it — not the agency that’s hiring ALJs. The OPM provides each agency with a list of potential Administrative Law Judge candidates to choose from when they’re hiring. Agencies still have some discretion in the hiring process, but they must use candidates vetted and listed on the OPM’s register. Each agency must go through a tedious process if it wants to remove a competitive service employee after they’re hired. After Trump’s EO, the OPM declared all recent ALJ candidate exam results void and terminated the competitive service hiring register.

Some experts fear abandoning the competitive civil service hiring process could make Administrative Law Judge appointments more vulnerable to politicization. “They are removing hiring based on merit and replacing it with a system that could lead to abuse and biased decisions,” said Marilyn Zahm, President of the Association of Administrative Law Judges. That’s because going forward, agency heads will appoint all ALJs directly and fire them at will as excepted service employees.

Potential Benefits From Making All SSA ALJs Excepted Service Employees

For the first two years, agency heads can fire any excepted service employee rather easily. In such cases, the excepted service employee has little (if any) recourse. This simplified hiring and firing process will now apply to each Administrative Law Judge hired to work at the SSA. In fact, the new excepted service appointment process may even turn out to be a positive change.

This new process achieves some of the SSA’s longstanding goals. Agency officials complained for decades about the OPM’s process for creating ALJ registers. They felt the examination process was slow and didn’t produce adequate registers when needed. They also felt the examination process had little or nothing to do with the job’s actual, non-adversarial requirements. The SSA also wanted a quicker process to get rid of bad or underperforming ALJs, which were difficult to terminate. Despite never admitting it directly, it’s always seemed like the SSA wanted ALJ positions to be part of a career track for agency attorneys. However, agency attorneys unwilling to jump through the OPM’s competitive service hoops to secure coveted ALJ positions may now benefit.
The merits of moving ALJs to the excepted service are debatable. The SSA had legitimate complaints about the OPM’s administration of Administrative Law Judge exams.

Could Ideology Influence Future SSA Administrative Law Judge Appointments?

Of course, the excepted service process may create an incestuous atmosphere in the SSA’s Office of Hearings Operations. It’s also not out of the question that agencies will select excepted service ALJ candidates based on ideological preference. The relative ease of firing excepted service employees during the first two years may make it easier to get rid of ALJs that don’t share the agency’s viewpoints. In fact, newly hired ALJs may make their decisions conform to what they think the agency wants them to do.

And newly appointed SSA ALJs may be more conservative than past new hires, but only time will tell. Most SSD lawyers believe any impact from this EO may not be felt for a couple of years, at least.

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