[Federal Register Volume 78, Number 231 (Monday, December 2, 2013)]
[Rules and Regulations]
[Pages 71987-71989]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-28289]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 78, No. 231 / Monday, December 2, 2013 /
Rules and Regulations
[[Page 71987]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR PART 930
RIN 3206-AL67
Programs for Specific Positions and Examinations (Miscellaneous)
AGENCY: U. S. Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The U. S. Office of Personnel Management (OPM) is issuing a
final rule to eliminate the licensure requirement for incumbent
administrative law judges.
DATES: This rule is effective January 2, 2014.
FOR FURTHER INFORMATION CONTACT: Mike Gilmore by telephone at (202)
606-2429; by fax at (202) 606-2329; by TTY at (202) 418-3134; or by
email at [email protected].
SUPPLEMENTARY INFORMATION:
Background
On March 20, 2007, OPM published a final rule in the Federal
Register at 72 FR 12947, codified in subpart B of part 930 of title 5,
Code of Federal Regulations (CFR), to revise the Administrative Law
Judge Program. These revisions included a requirement for incumbent
administrative law judges (ALJs) to ``. . . 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. Judicial status is acceptable in lieu of `active' status
in States that prohibit sitting judges from maintaining `active' status
to practice law. Being in `good standing' is also acceptable in lieu of
`active' status in States where the licensing authority considers `good
standing' as having a current license to practice law.'' (5 CFR
930.204(b)(1).) Under the Administrative Procedure Act (specifically,
sections 556 and 557 of title 5, United States Code (U.S.C.), ALJs
preside over formal proceedings requiring a decision on the record
after an opportunity for a hearing. The licensure requirement was
intended to ensure that ALJs, like attorneys, remain subject to a code
of professional responsibility.
On July 18, 2008, OPM published an interim rule with request for
comments in the Federal Register at 73 FR 41235 suspending the
requirement in 5 CFR 930.204(b)(1) that incumbent ALJs must ``possess a
professional license to practice law and be authorized to practice law.
. . .'' OPM took this suspension action based on reconsideration of the
comments received during the notice and comment period for the March
20, 2007, final rule. In response to the interim rule, OPM received
written comments from three individuals and three professional
organizations. These comments along with the comments received for the
October 7, 2010, proposed rule, described below, are addressed in this
final rule.
On October 7, 2010, OPM published a proposed rule in the Federal
Register at 75 FR 61998 to eliminate the licensure requirement for
incumbent ALJs. This final rule implements the proposed rule published
on October 7, 2010.
During the comment period from October 7, 2010, through December 6,
2010, OPM received written comments from twelve individuals, two
professional organizations, and a union. A total of 21 written comments
were received in response to the issue of licensure requirements for
incumbent ALJs. Of the written comments received, fourteen supported
the elimination of the licensure requirement for incumbent ALJs and
five opposed elimination. Two remaining comments addressed issues other
than the topic of the proposed rule and are, therefore, outside the
scope of the rulemaking.
With respect to the combined group of commenters, the majority
supported the elimination of the licensure requirement for incumbent
ALJs. Of the commenters in the majority, four identified existing
mechanisms for regulating conduct, such as the Standards of Ethical
Conduct for Employees of the Executive Branch promulgated by the Office
of Government Ethics and codified at 5 CFR part 2635, agency-prescribed
ethics standards, and the adverse action procedures for ALJs in 5
U.S.C. 7521, as sufficient to ensure that ALJs are held to a high
standard of professional conduct. However, three of the commenters
expressed a concern that even if a licensure requirement for incumbents
is inappropriate, the other mechanisms for regulating conduct described
above are inadequate to preserve the integrity and independence of the
administrative judiciary. These commenters suggested that ALJs should
be required to adhere to a code of judicial conduct such as the Code of
Conduct for United States Judges (CCUSJ). The CCUSJ applies to Article
I and Article III judges, and not, by its terms, to the Federal
administrative judiciary. OPM did not adopt this recommendation because
the commenters did not identify the authority under which OPM could
make this code applicable to incumbent ALJs Governmentwide.
A professional organization supporting the proposed rule to
eliminate the licensure requirement for incumbent ALJs requested that
the requirement be eliminated for new appointments of Senior ALJs,
arguing that, once appointed, Senior ALJs are subject to sufficient
controls on their conduct. An individual inquired whether the licensure
requirement applied to reemployed annuitants. OPM did not propose to
amend section 930.209 governing the Senior ALJ Program, so the comments
are beyond the scope of this rulemaking. OPM notes that the specific
bar licensure requirement for appointment as a Senior ALJ has been in
place since 1985. OPM explained in the Supplementary Information of the
final rule published on April 18, 1985, that the purpose for requiring
licensure for Senior ALJs was to give ``assurance to the public that
retired ALJs . . . have maintained proficiency in their legal
knowledge, skills, and abilities.'' (50 FR 15407)
By way of clarification, OPM notes that under section
930.209(b)(2), Senior ALJs must meet the licensure requirements in
section 930.204(b). As amended by this final rulemaking, the licensure
requirements in section 930.204(b) will apply only at the time of
application (including while on the
[[Page 71988]]
Senior ALJ list pending reemployment) and at the time of appointment,
not during the Senior ALJ's incumbency as a reemployed annuitant.
One commenter recommended eliminating the licensure requirement for
new appointments. Again, because OPM did not propose to amend the
licensure requirements for applicants, the comment is outside the scope
of this rulemaking. As noted in the Supplementary Information
accompanying the proposed rule published October 7, 2010, OPM remains
convinced that active licensure at the time of application and
appointment is vital as an indicator that the applicant presenting
himself or herself for assessment and possible appointment has been
subject to rigorous ethical requirements right up to the time of
appointment. (75 FR 61998)
Another commenter recommended modifying the licensure requirement
to allow as qualifying an attorney's authorization to practice before a
Tribal court when he or she has not been authorized to practice before
a court of a State, a Territory, or the District of Columbia. Because
OPM did not propose to amend the licensure requirements for applicants,
the comment is outside the scope of the rulemaking. However, OPM
invites anyone with information concerning whether Tribal courts
authorize the practice of law by licensed attorneys who are not
authorized to practice before other courts, and whether such attorneys
are subject to a code of ethical conduct and bar discipline, to provide
such information to OPM's Employee Services so that OPM may consider it
in determining what revisions might be appropriate in the future.
Please email such information to Mike Gilmore at
[email protected].
The same commenter recommended allowing, in lieu of bar licensure,
an applicant's enrollment to represent clients before a specific
administrative agency, or an applicant's experience in a technical non-
legal discipline. OPM cannot accept this comment. Not only is it
outside the scope of the rulemaking, but it is at odds with the legal
experience and judicial competency requirements for ALJ applicants, as
well as the requirement that applicants be subject to a code of ethical
conduct.
One professional organization and one individual supported the
elimination of the license requirement for incumbent ALJs and suggested
that OPM add language to cover non-Federal judges who apply for Federal
ALJ positions and whose licensure status is something other than
``active.'' Because OPM did not propose to change the qualification
requirements for applicants, this comment is outside the scope of the
rulemaking. OPM notes that non-Federal judges who apply for a Federal
ALJ job are considered ``applicants'' and must meet the qualifications
required by regulation for all applicants, including licensure
requirements, at the time of application and appointment.
Two commenters opposing the elimination of the licensure
requirement for incumbent ALJs expressed concern about the perceived
inequity between Federal ALJs and Federal attorneys. The commenters
believe that it is not appropriate to allow incumbent ALJs to be
unlicensed when Federal attorneys must maintain an ``active'' bar
status. OPM disagrees with this analogy. Attorneys are appointed in the
excepted service, subject to qualification standards prescribed by
their employing agencies. Except for certain classes of attorneys whose
bar licensure is governed by statute, there is no uniform standard for
licensure, and agencies have the discretion to establish appropriate
standards for their incumbent attorneys. In contrast, ALJs are
appointed in the competitive service and are subject to uniform
qualification standards prescribed by OPM. OPM has determined that, in
light of their unique function and role, incumbent ALJs should not be
required to maintain an active bar license. OPM notes, however, that
this rule only concerns the qualification requirements to serve as an
incumbent ALJ in the Federal service. This rule is not intended to have
any effect on an incumbent ALJ's status or responsibilities under state
law.
In addition, one of these commenters urged that the bar licensure
requirement for incumbent ALJs be reestablished so that ALJs will be
subject to mandatory continuing legal education (MCLE) requirements.
OPM does not believe this is a compelling justification to reestablish
the licensure requirement. MCLE requirements are not uniform among
licensing jurisdictions. MCLE offerings typically concern the advocacy
and fiduciary responsibilities of lawyers rather than the adjudicative
responsibilities of judges. Agencies already have the statutory
authority--and the responsibility--to provide training tailored to the
specific needs of their ALJ workforces. See 5 U.S.C. 1402 and 4103.
Another commenter suggested that a supervising ALJ who does not
maintain an active bar license potentially could assign work that would
jeopardize the staff attorney's adherence to the rules of professional
responsibility, presumably due to the ALJ's unawareness of such rules.
OPM believes this risk is speculative and remote, as the rules of
professional responsibility are freely and easily accessible. Moreover,
an attorney is obligated to know and follow the applicable rules of
professional responsibility. If the attorney perceives a conflict he or
she may bring it to the supervising ALJ's attention. The same commenter
expressed concern that an unlicensed ALJ who supervises a staff
attorney thereby engages in the unauthorized practice of law. OPM does
not agree that it is an unauthorized practice of law for a sitting ALJ
to review the work of an attorney whose job is to prepare draft
judicial opinions.
A professional organization opposing the elimination of the
licensure requirement for incumbent ALJs was concerned that removing
the licensure requirement will remove an incentive for the ALJs to stay
current in relevant areas of the law, will allow a public perception
that ALJs are not qualified, and will unnecessarily expose their
employing agencies to litigation risk. OPM does not agree that lack of
licensure will result in the concerns the professional organization
raises. OPM has determined that the bar licensure requirement is not
necessary to guarantee the integrity and independence of incumbent
ALJs, so there is no basis to impose the requirement solely on the
commenter's speculative concerns. Moreover, as previously noted, OPM
believes that the existing mechanisms are sufficient to ensure the
adequacy of ALJs' training and conduct.
Another commenter's opposition to the elimination of the licensure
requirement for incumbent ALJs was based on a belief that it is
illogical to require an individual to be licensed at the time of
application and appointment but not as an incumbent. OPM disagrees with
the commenter's assertion. As noted in the Supplementary Information
accompanying the proposed rule, OPM remains convinced that active
licensure at the time of application and appointment is vital as an
indicator that the applicant presenting himself or herself for
assessment and possible appointment has been subject to rigorous
ethical requirements right up to the time of appointment. This is no
longer necessary after appointment because the ALJ employee becomes
subject to the Standards of Ethical Conduct for Employees of the
Executive Branch in 5 CFR part 2635 and adverse action procedures
pursuant to 5 U.S.C. 7521.
The same commenter expressed a concern that this final rule would
establish an inconsistent standard for
[[Page 71989]]
adjudicatory officers in the Federal service. OPM wishes to clarify
that this rule only concerns the licensure status of incumbent ALJs
(including reemployed annuitants) who, as noted above, are employed in
the competitive service subject to uniform qualification standards.
Members of the administrative judiciary who are not ALJs typically are
classified as attorneys, and as such are appointed in the excepted
service. See 5 CFR 302.101(c)(9). The excepted service by its nature
consists of positions where qualification requirements may differ based
on the requirements of each agency.
A final concern involved the integrity and objectivity of the
administrative judiciary. The commenter believes that without an
``active'' license to practice law, ALJs would abandon their integrity
and objectivity when certain parties appear before them. The commenter
did not provide evidence of a causal link between active bar licensure
and the ability to impartially and objectively adjudicate cases under
the Administrative Procedure Act. OPM believes that the risk described
by the commenter is speculative and remote.
Executive Order 13563 and Executive Order 12866
The Office of Management and Budget has reviewed this rule in
accordance with E.O. 13563 and 12866.
Regulatory Flexibility Act
I certify that these regulations would not have a significant
economic impact on a substantial number of small entities (including
small businesses, small organizational units, and small governmental
jurisdictions) because they would affect only Federal agencies and
employees.
List of Subjects in 5 CFR Part 930
Administrative practice and procedure, Computer technology,
Government employees, Motor vehicles.
U.S. Office of Personnel Management.
Katherine Archuleta,
Director.
Accordingly, OPM is revising 5 CFR part 930 as follows:
PART 930--PROGRAMS FOR SPECIFIC POSITIONS AND EXAMINATIONS
(MISCELLANEOUS)
Subpart B--Administrative Law Judge Program
0
1. The authority citation for subpart B continues to read as follows:
Authority: 5 U.S.C. 1104(a), 1302(a), 1305, 3105, 3301, 3304,
3323(b), 3344, 4301(2)(D), 5372, 7521, and E.O. 10577, 3 CFR, 1954-
1958 Comp., p. 219.
0
2. Revise Sec. 930.204(b) to read as follows:
Sec. 930.204 Appointments and conditions of employment.
* * * * *
(b) Licensure. At the time of application and any new appointment,
the individual 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. Judicial status is
acceptable in lieu of ``active'' status in States that prohibit sitting
judges from maintaining ``active'' status to practice law. Being in
``good standing'' is also acceptable in lieu of ``active'' status in
States where the licensing authority considers ``good standing'' as
having a current license to practice law.
* * * * *
[FR Doc. 2013-28289 Filed 11-29-13; 8:45 am]
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