August 1, 2019 / 7:48 PM / 13 days ago

Senators Collins, Cantwell introduce bill to undo Trump order on ALJ hiring

(Reuters) - Senators Susan Collins, a Maine Republican, and Maria Cantwell, a Democrat from Washington, introduced a bill Wednesday that would require executive agencies to pick administrative law judges who have been pre-approved by the federal Office of Personnel Management. The proposed law, dubbed the ALJ Competitive Service Restoration Act, mirrors a bipartisan bill introduced in May in the House of Representatives. If enacted, the bills would effectively override an executive order President Trump issued in July 2018, removing OPM from the ALJ hiring process and granting hiring discretion to executive branch department heads.

As I reported at the time, the executive order prompted administrative law experts to raise concerns about politicization of the corps of administrative law judges – about 1,800 judicial officers who preside every year over millions of administrative proceedings, from small Social Security claims to multimillion-dollar enforcement cases. The OPM’s process of evaluating ALJ candidates was bureaucratic and nonpartisan. Critics feared that giving ALJ hiring discretion to political appointees atop an executive agency would put a partisan taint on the process.

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In the press release announcing the new Senate bill, Cantwell and Collins both emphasized that their proposed legislation would assure that ALJs remain independent from political influence. The senators said that the Office of Personnel Management has a rigorous vetting process for ALJ candidates. Reinstituting OPM screening, Senator Collins said, “would ensure that administrative law judges remain well qualified and impartial so that this crucial process remains nonpartisan and fair.”

The Justice Department declined to comment on the legislation proposing to override the president’s executive order. The order on ALJ hiring followed the U.S. Supreme Court’s 2018 ruling in Lucia v. Securities and Exchange Commission, in which the court held that the SEC’s bureaucratic hiring process for ALJs did not comply with the Appointments Clause because ALJs were not appointed by officials directly accountable to the president.

The vast majority of ALJs – about 1,600 of 1,900 – work at the Social Security Administration, according to a March 2019 report citing OPM statistics from 2017. Many of the other federal agencies that employ ALJs hire judges who have already worked at the SSA. ALJ Melissa McIntosh, who is president of one of the unions representing Social Security judges, the Association of Administrative Law Judges, told me she welcomes the House and Senate bills. (McIntosh was speaking in her role as the union president.) “They assure that judges are hired on merit, not based on who you know.”

McIntosh said the most recent class of judges hired by the Social Security Administration was vetted by OPM, but that it’s not clear how SSA intends in the future to implement the president’s executive order. In negotiations with her union, she said, SSA officials have said they want to exercise more discretion in the hiring process.

In a March report for the Administrative Office of the U.S. Courts, law professors Jack Beermann of Boston University and Jennifer Mascott of George Mason (now at DOJ’s Office of Legal Counsel) surveyed most of the executive agencies that employ ALJs to find out how they were implementing the new hiring protocols. They found that in the main, agencies intended to continue vetting candidates based on their credentials, although some officials said they welcomed the opportunity to evaluate prospective judges’ based on different criteria than OPM’s metrics, including writing ability and subject matter expertise.

“While all agencies appear to welcome the flexibility provided by the (executive order) concerning their ALJ hiring, some interviewees expressed the concern that ALJ hiring might become more politicized,” the professors wrote. “However, numerous interviewees expressed confidence that ALJ hiring in their agencies would continue to be merit-based and that the new system would provide a better ability to select ALJs based on their agency’s needs.”

Nevertheless, two administrative law professors, Kent Barnett of Georgia and Adam Zimmerman of Loyola, told me they welcome legislation to restore OPM’s role in ALJ vetting. “It does much to assure the ALJ hiring process is merit-based (and that) there is no back-door politicization,” said Barnett of the Senate bill. Zimmerman called the bill “a step in the right direction.”

The new Senate bill appears to address the Appointments Clause issue by vesting authority in top officials of executive branch departments. “What our proposed language in the bill does is correct an unconstitutional hierarchy at Social Security,” said ALJ Gabrielle Vitellio, speaking as an official of one of the ALJ unions. (Barnett said there could be constitutional complications because the proposed law conflates agency heads and department heads, but that’s a wrinkle that only a law professor could love.)   

The process by which ALJs can be removed from their positions is a controversial question that may eventually reach the Supreme Court. The proposed new bill would reaffirm that the judges cannot be removed from office without a finding of good cause by the Merit Systems Protection Board.

(NOTE: This story has been updated to include comment from Judge Vitellio, to clarify the source of data on the number of ALJs and to clarify that the proposed bill would maintain good-cause protection for the judges.)

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