[Federal Register Volume 63, Number 35 (Monday, February 23, 1998)]
[Proposed Rules]
[Pages 8874-8879]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4498]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 63, No. 35 / Monday, February 23, 1998 / 
Proposed Rules  

[[Page 8874]]


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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 930

RIN 3206-AI08


Appointment, Pay, and Removal of Administrative Law Judges

AGENCY: Office of Personnel Management.

ACTION: Proposed rule.

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SUMMARY: The Office of Personnel Management (OPM) proposes to revise 
the regulations governing the appointment, pay, and removal of 
administrative law judges appointed under 5 U.S.C. 3105. Among the 
major revisions, these regulations would permit an above-the-minimum 
pay rate for reinstatement eligibles with superior qualifications; 
permit promotion of a judge to an AL-1 position after 52 weeks in an 
AL-3 or AL-2 position; permit details from other agencies when an 
agency has insufficient work to employ a full-time administrative law 
judge; place a limit of 1 year on details from other agencies with a 
possible extension of up to 1 year; and give agencies the option of 
filling a vacancy by selecting a current administrative law judge 
employed within the agency or selecting one from OPM's priority 
referral list.

DATES: Written comments will be considered if received on or before 
April 24, 1998.

ADDRESSES: Send or deliver written comments to Mary Lou Lindholm, 
Associate Director for Employment, Office of Personnel Management, Room 
6F08, 1900 E Street NW., Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT: Juanita Love on 202-606-4890, FAX 202-
606-0584, or TDD 202-606-0023.

SUPPLEMENTARY INFORMATION: The administrative law judge function was 
established by the Administrative Procedure Act (APA) of 1946. 
Administrative law judges preside at formal hearings, which agencies 
are required by statute to hold, and make or recommend decisions on the 
basis of the record. The APA requires that this function be carried out 
in an impartial manner. To assure the objectivity of judges and 
insulate them from improper pressure, the APA made them independent of 
their employing agencies in matters of tenure and compensation. 
Further, the Office of Personnel Management (OPM) is charged with 
administering merit selection and pay systems for judges, and 
regulations covering these matters are in 5 CFR part 930, subpart B. 
OPM proposes to revise the regulations to make a number of substantive 
and editorial changes, as follows.

Section 930.203  Examination

    The current regulation contains a detailed description of the 
components and scoring of the examination. We propose to delete this 
description as unnecessary because the examination announcement 
contains a more detailed description, and OPM makes the announcement 
readily available. The regulation also contains numerous references to 
``OPM Examination Announcement No. 318,'' the announcement for 
administrative law judge positions. We believe these references also 
are unnecessary in regulation and plan to delete them as other 
examination announcement numbers and descriptions of examination 
components and scoring are not routinely published in regulation.

Section 930.204  Appointment (Formerly Sec. 930.203a)

    We are renumbering section 203a and subsequent sections in subpart 
B to conform with publication numbering requirements.
    Paragraph (c)(3) of this section addresses appointment of employees 
whose positions are classified as administrative law judge positions by 
legislation, Executive order, or court decision. An agency has six 
months after such classification to recommend to OPM that the incumbent 
be appointed as an administrative law judge. We propose to delete this 
requirement and instead rely on the terms of the legislation, Executive 
order, or court decision for any time frames for appointment.
    Paragraph (c)(4) of this section provides that in an emergency 
situation OPM may authorize a conditional appointment of an 
administrative law judge pending final decision on the individual's 
appointment eligibility. We propose to delete this provision as 
inconsistent with the intent of the APA that administrative law judges 
serve without condition.

Section 930.205  Promotion (Formerly Sec. 930.204)

    We propose to transfer the one-year service requirement for 
promotion from Sec. 930.210 to this section and change the period to 52 
weeks to be consistent with the waiting period for pay increases for 
judges at level AL-3 and before transfer to a different agency. We also 
propose to grant agencies the discretion to require 52 weeks of service 
at either the AL-2 or AL-3 level when filling a position at AL-1. This 
change will enable an agency to consider its own administrative law 
judges when filling a chief judge position at AL-1.
    In addition, we clarify that an agency has the authority to promote 
a current administrative law judge when an existing managerial position 
at AL-1 or AL-2 is vacated or a new managerial position is established.

Section 930.211  Pay (Formerly Sec. 930.210)

    An agency may pay, with OPM approval, an above-the-minimum rate to 
a candidate with superior qualifications who is appointed from a 
certificate of eligibles to a position at level AL-3. We propose to 
expand this authority in paragraph (g)(2) to include reinstatement 
eligibles with superior qualifications.
    We added a new paragraph to clarify that an agency may reduce the 
level or pay of an administrative law judge for good cause only after 
the Merit Systems Protection Board has specified such action.
    In addition, we deleted paragraphs (j) through (m). These 
paragraphs provided instructions for implementing the current pay 
system authorized by the Federal Employees Pay Comparability Act of 
1990. Since all administrative law judges have been converted to the 
current pay system, these paragraphs are no longer needed.

[[Page 8875]]

Section 930.214  Use of Administrative Law Judges on Detail From Other 
Agencies (Formerly Sec. 930.213)

    This section provides for the detail of judges from one agency to 
another one that is occasionally or temporarily insufficiently staffed 
with judges. We propose to clarify this authority to include agencies 
with insufficient work to detail an administrative law judge to conduct 
and complete the hearing of one or more specified cases and issue 
decisions. We also propose a one-year limit on all interagency details, 
with the possibility of an extension of up to one additional year. This 
maximum limit should be sufficient to satisfy agency needs.

Section 930.216  Reduction in Force (Formerly Sec. 930.215)

    We propose permitting an additional flexibility to agencies when 
administrative law judges affected by reductions in force are on OPM's 
priority referral list for geographic locations where agencies wish to 
fill vacant positions. This change would give agencies the option of 
filling the vacant positions either from OPM's priority referral list 
or by selection of administrative law judges currently employed by the 
hiring agency. At the present time, agencies are allowed to fill the 
vacant positions only through the priority referral list. OPM would 
still retain the authority to grant exceptions to this order of 
selection. This change will allow agencies to better manage their 
administrative law judge workforce by giving them the flexibility to 
make intra-agency reassignments when vacancies arise.

Miscellaneous

    We made the following additional changes:

     Moved the provision specifying the proper title for 
administrative law judges to Sec. 930.201 from Sec. 930.203b, which is 
abolished. A statement that administrative law judge positions are in 
the competitive service is added to Sec. 930.201.
     Moved the prohibition against awards from Sec. 930.210(b) 
to Sec. 930.212.
     Made revisions throughout the subpart to clarify in 
certain situations that an applicant must meet the minimum 
qualification requirements for administrative law judge positions 
rather than take the examination.
     Clarified throughout the subpart that administrative law 
judges are given ``career absolute'' appointments.
     Deleted reference in Sec. 930.215(c)(4) to Standard Form 
171, Application for Federal Employment, which was abolished in 1994. 
Application may be by resume, the Optional Form 612-Optional 
Application for Federal Employment, or other written format.
     Made various editorial changes.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities because it pertains 
only to Federal agencies.

Executive Order 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with Executive Order 12866.

List of Subjects in 5 CFR Part 930

    Administrative practice and procedure, Computer technology, 
Government employees, Motor vehicles.

U.S. Office of Personnel Management.
Janice R. Lachance,
Director.

    Accordingly, OPM proposes to amend 5 CFR part 930 as follows:

PART 930--PROGRAMS FOR SPECIFIC POSITIONS AND EXAMINATIONS 
(MISCELLANEOUS)

Subpart B--Appointment, Pay, and Removal of Administrative Law 
Judges

    1. Subpart B is revised to read as follows:

Subpart B--Appointment, Pay, and Removal of Administrative Law Judges

Sec.
930.201  Coverage.
930.202  Definitions.
930.203  Examination.
930.204  Appointment.
930.205  Promotion.
930.206  Reassignment.
930.207  Transfer.
930.208  Reinstatement.
930.209  Restoration.
930.210  Detail and assignment to other duties within the same 
agency.
930.211  Pay.
930.212  Performance rating and awards.
930.213  Rotation of administrative law judges.
930.214  Use of administrative law judges on detail from other 
agencies.
930.215  Actions against administrative law judges.
930.216  Reduction in force.
930.217  Temporary employment: senior administrative law judges.

    Authority: 5 U.S.C. 1104(a)(2), 1305, 3105, 3323(b), 3344, 
4301(2)(D), 5372, 7521.

Subpart B--Appointment, Pay, and Removal of Administrative Law 
Judges


Sec. 930.201  Coverage.

    (a) This subpart applies to employment of administrative law judges 
appointed under 5 U.S.C. 3105 for proceedings required to be conducted 
in accordance with 5 U.S.C. 556 and 557.
    (b) Administrative law judge positions are in the competitive 
service. Except as otherwise provided in this subpart, the rules and 
regulations applicable to positions in the competitive service apply to 
administrative law judge positions.
    (c) In accordance with 5 U.S.C. 1104(a)(2), OPM shall conduct 
competitive examinations for administrative law judge positions, and 
agencies employing administrative law judges shall reimburse OPM for 
the cost of developing and administering such examinations. Each 
employing agency's share of reimbursement shall be based on its 
relative number of administrative law judges as of March 31 of the 
preceding fiscal year. OPM will work with employing agencies to review 
the examination program for effectiveness and efficiency and identify 
needed improvements, consistent with statutory requirements. 
Subsequently, OPM will annually compute the cost of the examination 
program and notify each agency of its share, along with a full 
accounting of the costs, and payment procedures.
    (d) The title ``administrative law judge'' is the official class 
title for an administrative law judge position. Each agency will use 
only this official class title for personnel, budget, and fiscal 
purposes.


Sec. 930.202  Definitions.

    In this subpart--
    (a) Agency has the same meaning as given in 5 U.S.C. 551.
    (b) Detail means the temporary assignment of an employee from one 
position to another position without change in civil service or pay 
status.
    (c) Administrative law judge position means a position in which any 
portion of the duties requires the appointment of an administrative law 
judge under 5 U.S.C. 3105.
    (d) Promotion means a change from a lower to a higher level 
position.
    (e) Reinstatement means reemployment authorized on the basis of the 
appointee's absolute status as administrative law judge after an 
earlier separation from an administrative law judge position.
    (f) Removal means discharge of an administrative law judge from the

[[Page 8876]]

position of administrative law judge or involuntary reassignment, 
demotion, or promotion to a position other than that of administrative 
law judge.


Sec. 930.203  Examination.

    (a) Periodic open competition. Applicants for administrative law 
judge positions will be examined periodically in open competition as 
announced by OPM. Applicants who demonstrate in their written 
applications and supporting materials that they meet the minimum 
qualifying experience requirements specified in the OPM examination 
announcement will be eligible to compete in further examination 
procedures.
    (b) Preparation of certificates. When agencies request certificates 
of eligibles to consider in filling vacant administrative law judge 
positions, OPM will certify candidates from the top of the register. 
Candidates are ranked on the basis of assigned final ratings, augmented 
by veterans' preference points, if applicable. At least three eligible 
applicants, if available, will be certified to the employing agency for 
consideration for each vacancy.
    (c) Appeal of rating. Applicants who obtain an ineligible rating or 
applicants who are dissatisfied with their final rating may appeal the 
rating to the Administrative Law Judge Rating Appeals Panel, Office of 
Personnel Management, Washington, DC 20415, within 30 days after the 
date of final action by the Office of Administrative Law Judges or such 
later time as may be allowed by the Panel.


Sec. 930.204  Appointment.

    (a) Prior approval. An agency may make an appointment to an 
administrative law judge position only with the prior approval of OPM, 
except when it makes its selection from a certificate of eligibles 
furnished by OPM. When requesting OPM approval of an appointment to an 
administrative law judge position or the issuance of a certificate of 
eligibles, the requesting agency must demonstrate that its hearing 
workload requires the appointment of an additional administrative law 
judge(s) to get necessary work done. An appointment is subject to 
suitability investigation in accordance with subparts B and C of part 
731 of this chapter and subject to conflict of interest and security 
clearance requirements by the appointing agency.
    (b) Probationary and career-conditional periods. Administrative law 
judges are given career appointments (commonly called career absolute 
appointments) and placed in tenure group I. The requirements for 
probationary and career-conditional periods do not apply to an 
appointment to an administrative law judge position.
    (c) Appointment of incumbents of newly classified administrative 
law judge positions. An agency may give a career absolute appointment 
as an administrative law judge to an employee who is serving in a 
position at the time it is classified as an administrative law judge 
position on the basis of legislation, Executive order, or decision of a 
court, if--
    (1) The employee is serving under a career or career-conditional 
appointment or an excepted appointment without time limit;
    (2) The employee is serving in the position on the date of the 
legislation, Executive order, or decision of the court, on which the 
classification of the position is based;
    (3) OPM receives a recommendation for the employee's appointment 
from the agency concerned; and
    (4) OPM finds that the employee meets the minimum qualification 
requirements for the position.
    (d) Appointment of incumbents of nonadministrative law judge 
positions. Except as provided in paragraph (c) of this section, an 
agency may not appoint an employee who is serving in a position other 
than an administrative law judge position to an administrative law 
judge position other than by selection from a certificate of eligibles 
furnished by OPM from the open competitive register.


Sec. 930.205  Promotion.

    (a) When OPM places an occupied administrative law judge position 
at a higher level, OPM will direct the promotion of the incumbent 
administrative law judge. The promotion will be effective on the date 
named by OPM.
    (b) When OPM places an administrative law judge position at level 
AL-1 or AL-2 on the basis of the position's managerial and 
administrative responsibilities, or an agency has a vacant position at 
AL-1 or AL-2, the employing agency may promote one of its 
administrative law judges to the position, provided the selection and/
or promotion is in accordance with regular civil service procedures.
    (c) Judges must serve at least 52 weeks in an AL level before 
advancing to a higher level. In filling a position in level AL-1, an 
agency has the discretion to determine whether to consider 
administrative law judges who have served at least 52 weeks in level 
AL-3 but not 52 weeks in AL-2. Service in an equivalent or higher grade 
level in other Federal civilian positions is creditable toward the 52-
week requirement.


Sec. 930.206  Reassignment.

    With the prior approval of OPM, an agency may, without competition, 
reassign an administrative law judge serving under career absolute 
appointment to another administrative law judge position at the same 
level in the same agency, provided the assignment is for bona fide 
management reasons and in accordance with regular civil service 
procedures and merit system principles.


Sec. 930.207  Transfer.

    (a) With the prior approval of OPM, an agency may, without 
competition, appoint an administrative law judge by transfer from an 
administrative law judge position in another agency in accordance with 
regular civil service procedures, provided the administrative law judge 
maintains a current license 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 Constitution.
    (b) An agency may not transfer a person from one administrative law 
judge position to another administrative law judge position under 
paragraph (a) of this section sooner than 52 weeks after the person's 
last appointment, unless the gaining and losing agencies agree to the 
transfer.


Sec. 930.208  Reinstatement.

    With the prior approval of OPM, an agency may reinstate a former 
administrative law judge who has served with career absolute status 
under 5 U.S.C. 3105 in accordance with regular civil service 
procedures, provided the former judge maintains a current license 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 Constitution. Reinstatement is subject to investigation by OPM in 
accordance with part 731 of this chapter.


Sec. 930.209  Restoration.

    Parts 352 and 353 of this chapter governing reemployment rights and 
restoration to duty after uniformed service or recovery from 
compensable injury apply to reemployment and restoration to 
administrative law judge positions.

[[Page 8877]]

Sec. 930.210  Detail and assignment to other duties within the same 
agency.

    (a) An agency may not detail an employee who is not an 
administrative law judge to an administrative law judge position.
    (b) An agency may assign an administrative law judge (by detail or 
otherwise) to perform duties that are not the duties of an 
administrative law judge without prior approval of OPM only when--
    (1) The other duties are consistent with the duties and 
responsibilities of an administrative law judge;
    (2) The assignment is to last no longer than 120 days; and
    (3) The administrative law judge has not had an aggregate of more 
than 120 days of those assignments or details within the preceding 12 
months.
    (c) On a showing by an agency that it is in the public interest to 
do so, OPM may authorize a waiver of paragraphs (b) (2) and (3) of this 
section.
    (d) An agency may detail an administrative law judge from one 
administrative law judge position to another in the same agency, 
without the prior approval of OPM, provided the detail is in accordance 
with regular civil service procedures.


Sec. 930.211  Pay.

    (a) OPM will place each administrative law judge position in one of 
the three grades or levels of basic pay, AL-3, AL-2 or AL-1, of the 
Administrative Law Pay System established for such positions under 5 
U.S.C. 5372 in accordance with this section. AL-3 will have six rates 
of basic pay, A, B, C, D, E, and F, ranging respectively in 5 percent 
intervals from 65 percent of level IV of the Executive Schedule (EX-IV) 
to 90 percent of EX-IV. AL-2 will have one rate of basic pay equal to 
95 percent of EX-IV. AL-1 will have one rate of basic pay equal to 100 
percent of EX-IV.
    (b) AL-3 is the basic pay level for administrative law judge 
positions filled through competitive examination, as provided in 
Sec. 930.204 of this part.
    (c) Subject to the approval of OPM, agencies may establish 
administrative law judge positions at pay levels AL-2 and AL-1. 
Administrative law judge positions may be placed at such levels when 
they involve significant administrative and managerial 
responsibilities.
    (d) For promotion to a higher level, see Sec. 930.205 of this part.
    (e) Except as provided in paragraph (g) of this section, upon 
appointment to an administrative law judge position placed in AL-3, an 
administrative law judge shall be paid at the minimum rate A of AL-3, 
and shall be automatically advanced successively to rates B, C, and D 
of that level upon completion of 52 weeks of service in the next lower 
rate, and to rates E and F of that level upon completion of 104 weeks 
of service in the next lower rate. Time in a nonpay status is generally 
creditable service in the computation of a waiting period only in so 
far as it does not exceed 2 weeks per year for each 52 weeks of 
service. However, absence due to uniformed service or compensable 
injury is fully creditable upon reemployment as provided in part 353 of 
this chapter.
    (f) Upon appointment to a position at AL-3, an administrative law 
judge will be paid at the minimum rate A, unless the administrative law 
judge is eligible for a higher rate B, C, D, E, or F because of prior 
service or superior qualifications, as follows--
    (1) An agency may offer an administrative law judge applicant with 
prior Federal service a higher than minimum rate, without obtaining the 
prior approval of OPM in order to pay the rate that is next above the 
applicant's highest previous Federal rate of pay, up to the maximum 
rate F.
    (2) With the prior approval of OPM, an agency may offer a higher 
than minimum rate to an applicant with superior qualifications who is 
within reach for appointment from an administrative law judge 
certificate of eligibles or is eligible for reinstatement under 
Sec. 930.208. The agency may pay that rate of pay that is next above 
the applicant's existing pay or earnings up to the maximum rate F. 
``Superior qualifications'' for applicants includes having legal 
practice before the hiring agency, having practice in another forum 
with legal issues of concern to the hiring agency, or having an 
outstanding reputation among others in the field. OPM will approve such 
payment of higher than minimum rates for applicants with superior 
qualifications only when it is clearly necessary to meet the needs of 
the Government.
    (g) With the prior approval of OPM, an agency may on a one-time 
basis, advance an administrative law judge in a position at AL-3 with 
added administrative and managerial duties and responsibilities one 
rate beyond that allowed under current pay rates for AL-3, up to the 
maximum rate F.
    (h) Upon appointment to an administrative law judge position placed 
at AL-2 or AL-1, administrative law judges will be paid at the 
established rates for those levels.
    (i) An employing agency may reduce the grade, level, or pay of the 
administrative law judge only upon a finding of good cause for such 
action as determined by the Merit Systems Protection Board pursuant to 
5 U.S.C. 7521.


Sec. 930.212  Performance rating and awards.

    (a) An agency shall not rate the performance of an administrative 
law judge.
    (b) An agency may not grant a monetary or honorary award under 5 
U.S.C. 4503 for superior accomplishment by an administrative law judge.


Sec. 930.213  Rotation of administrative law judges.

    Insofar as practicable, an agency shall assign its administrative 
law judges in rotation to cases.


Sec. 930.214  Use of administrative law judges on detail from other 
agencies.

    (a) An agency that is occasionally or temporarily insufficiently 
staffed with, or has insufficient work for, administrative law judges 
may ask OPM to provide for the temporary use by the agency of the 
services of an administrative law judge of another agency to conduct 
and complete the hearing of one or more specified cases and issue 
decisions therein. The agency request must:
    (1) Identify and describe briefly the nature of the case(s) to be 
heard (including parties and representatives when available);
    (2) Specify the legal authority under which the use of an 
administrative law judge is required; and
    (3) Demonstrate, as appropriate, that the agency has no 
administrative law judge available to hear the case(s).
    (b) OPM, with the consent of the agency in which an administrative 
law judge is employed, will select the administrative law judge to be 
used, and will name the date or period for which the administrative law 
judge is to be made available for detail to the agency in need of his 
or her services. OPM will approve a detail for a period not to exceed 1 
year with a possible extension not to exceed 1 additional year.
    (c) Such details generally will be reimbursable by the agency 
requesting the detail.


Sec. 930.215  Actions against administrative law judges.

    (a) Procedures. An agency may remove, suspend, reduce in grade or 
level, reduce in pay, or furlough for 30 days or less, an 
administrative law judge only for good cause established and determined 
by the Merit Systems Protection Board on the record and after 
opportunity for a hearing before the Board as provided in 5 U.S.C. 7521 
and

[[Page 8878]]

Sec. Sec. 1201.131 through 1201.136 of this title. Procedures for 
adverse actions by agencies under part 752 of this chapter are not 
applicable to actions against administrative law judges.
    (b) Status during removal proceedings. In exceptional cases when 
there are circumstances in which the retention of an administrative law 
judge in his or her position, pending adjudication of the existence of 
good cause for his or her removal, would be detrimental to the 
interests of the Government, the agency may either:
    (1) Assign the administrative law judge to duties consistent with 
his or her normal duties in which these conditions would not exist;
    (2) Place the administrative law judge on leave with his or her 
consent;
    (3) Carry the administrative law judge on appropriate leave (annual 
or sick leave, leave without pay, or absence without leave) if he or 
she is voluntarily absent for reasons not originating with the agency; 
or
    (4) If none of the alternatives in paragraphs (b) (1), (2) and (3) 
of this section is available, agencies may consider placing the 
administrative law judge in a paid, non-duty or administrative leave 
status.
    (c) Exceptions from procedures. The procedures in this subpart 
governing the removal, suspension, reduction in grade or level, 
reduction in pay, or furlough of 30 days or less of administrative law 
judges do not apply in making dismissals or taking other actions 
requested by OPM under Secs. 5.2 and 5.3 of this chapter; nor to 
dismissals or other actions made by agencies in the interest of 
national security under 5 U.S.C. 7532; nor to reduction-in-force action 
taken by agencies under 5 U.S.C. 3502; nor any action initiated by the 
Special Counsel of the Merit Systems Protection Board under 5 U.S.C. 
1215.


Sec. 930.216  Reduction in force.

    (a) Retention preference regulations. Except as modified by this 
section, the reduction-in-force regulations in part 351 of this chapter 
apply to reductions in force of administrative law judges.
    (b) Determination of retention standing. In determining retention 
standing in a reduction in force, each agency will classify its 
administrative law judges in groups and subgroups according to tenure 
of employment, veteran preference, and service date in the manner 
prescribed in part 351 of this chapter. However, as administrative law 
judges are not given performance ratings, the provisions in part 351 of 
this chapter referring to the effect of performance ratings on 
retention standing are not applicable to administrative law judges.
    (c) Placement assistance. (1) Administrative law judges who are 
reached by an agency reduction in force and who are notified they are 
to be separated are eligible for placement assistance under--
    (i) Agency reemployment priority lists established and maintained 
by agencies under subpart B of part 330 of this chapter for all agency 
tenure group I career employees displaced in a reduction in force;
    (ii) Agency and OPM priority placement programs under subparts C, 
F, and G of part 330 of this chapter for all agency tenure group I 
career employees displaced in a reduction in force.
    (2) On request of administrative law judges who are reached by an 
agency in a reduction in force and who are notified they are to be 
separated, furloughed for more than 30 days, or demoted, OPM will place 
their names on OPM's priority referral list for administrative law 
judges displaced in a reduction in force for the level in which they 
last served and for all lower levels.
    (3) An administrative law judge may file a request under paragraph 
(c)(2) of this section, for placement on the OPM priority referral 
list, at any time after the receipt of the specific reduction-in-force 
notice but not later than 90 days after the date of separation, 
furlough for more than 30 days, or demotion. Placement assistance 
through the OPM priority referral list continues for 2 years from 
either the effective date of the reduction-in-force action, or the date 
assistance is requested if a timely request is made. Eligibility of the 
displaced administrative law judge for the OPM priority referral list 
is terminated earlier upon the administrative law judge's written 
request, acceptance of a non-temporary, full-time administrative law 
judge position, or declination of more than one offer of full-time 
employment as an administrative law judge at or above the grade level 
held when reached for reduction in force at geographic locations 
previously indicated as acceptable.
    (4) The displaced administrative law judge will file with the 
request for priority referral by OPM an employment application or 
resume and a copy of the reduction-in-force notice. Also, the displaced 
administrative law judge may ask OPM to limit consideration for vacant 
positions to any pay level for which qualified and to specific 
geographic areas.
    (5) When there is no administrative law judge on the agency's 
reemployment priority list, but there is an administrative law judge 
who has been placed on the OPM priority referral list for the location 
where a vacant administrative law judge position exists, the agency may 
fill the position with a candidate from outside the agency only by 
selection from the OPM priority referral list, unless it obtains the 
prior approval of OPM for filling the vacant position under 
Sec. 930.204(a), (c), and (d); Sec. 930.205; Sec. 930.207; or 
Sec. 930.208 of this subpart. OPM will grant such approval only under 
the extraordinary circumstance that the proposed candidate from outside 
the agency who is not on the OPM priority referral list possesses 
experience and qualifications superior to the displaced administrative 
law judge(s) on the list. In addition, the agency retains the option to 
select from within the agency to fill the vacant position by 
reassignment, as defined in Sec. 930.206.
    (6) Referral, certification, and selection of administrative law 
judges from OPM's priority referral list are made without regard to 
selective certification or special qualification procedures which may 
have been applied in the original appointment.


Sec. 930.217  Temporary reemployment: senior administrative law judges.

    (a)(1) Subject to the requirements and limitations of this section, 
OPM may authorize an agency that has temporary, irregular workload 
requirements for conducting proceedings in accordance with 5 U.S.C. 556 
and 557 to temporarily reemploy as administrative law judges those 
annuitants, as defined by 5 U.S.C. 8331 and 8401, who are receiving an 
annuity from the Civil Service Retirement and Disability Fund, and:
    (i) Have served with career absolute status as administrative law 
judges under 5 U.S.C. 3105; and
    (ii) Maintain a current license 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 Constitution.
    (2) These retired administrative law judges who are so reemployed 
will be known as senior administrative law judges.
    (b) Retired administrative law judges who meet the requirements of 
paragraph (a) of this section and who are available for temporary 
reemployment must notify OPM in writing of their availability, 
providing pertinent information as requested by OPM. OPM will maintain 
a master list of such retired administrative law judges for use

[[Page 8879]]

in responding to agency requests for such administrative law judges.
    (c) An agency that wishes to temporarily reemploy administrative 
law judges must submit a written request to OPM. The request must--
    (1) Identify the statutory authority under which the administrative 
law judge is expected to conduct proceedings;
    (2) Demonstrate that the agency is occasionally or temporarily 
understaffed;
    (3) Specify the tour of duty, location, period of time, or 
particular case(s), for the requested reemployment; and
    (4) Describe any special qualifications desired in the retired 
administrative law judge that it wishes to reemploy, such as experience 
in a particular field, agency, or substantive area of law.
    (d) OPM will approve agency requests for temporary reemployment of 
retired administrative law judges for a specified period or periods 
provided--
    (1) The requesting agency fully justifies the need for an 
administrative law judge for formal proceedings and demonstrates that 
it is occasionally or temporarily understaffed; and
    (2) No other administrative law judge with the appropriate 
qualifications is available through OPM under Sec. 930.216(c)(5) of 
this subpart to perform the occasional or temporary work for which 
reemployment is requested.
    (e) Upon approval of an agency request to reemploy a retired 
administrative law judge, OPM will select from its master list of 
retired administrative law judges, in rotation to the extent 
practicable, those retired judges who it determines meet agency 
requirements. OPM will then provide a list of such individuals to the 
requesting agency and the agency must then select from that list a 
retired administrative law judge for reemployment.
    (f) Reemployment of retired administrative law judges is subject to 
suitability investigation in accordance with subparts B and C of part 
731 of this chapter. It is also subject to conflict of interest and 
security clearance requirements by the appointing agency.
    (g) Reemployment as senior administrative law judges will be for 
either a specified period not to exceed 1 year or such periods as may 
be necessary for the reemployed administrative law judge to conduct and 
complete the hearing of one or more specified cases and issue decisions 
therein. Upon agency request, OPM may either reduce or extend such 
period of reemployment, as necessary, to coincide with changing 
staffing requirements. All reemployment is authorized for periods of 1 
year or less.
    (h) An agency may assign its senior administrative law judges to 
either:
    (1) Hear one or more specific cases; or
    (2) Hear, in normal rotation to the extent practicable, a number of 
cases on its docket and issue decisions therein.
    (i) Hours of duty, administrative support services, and travel 
reimbursement for senior administrative law judges will be determined 
by the employing agency in accordance with the same rules and 
procedures that are generally applicable to employees.
    (j) The reemployment of a senior administrative law judge is 
terminated on the date specified by OPM. Otherwise, a senior 
administrative law judge serves subject to the same limitations as any 
other administrative law judge employed under this subpart and 5 U.S.C. 
3105. An agency will not rate the performance of a senior 
administrative law judge. Reduction-in-pay or removal actions may not 
be taken against senior administrative law judges during the period of 
reemployment, except for good cause established and determined by the 
Merit Systems Protection Board after opportunity for a hearing on the 
record before the Board as provided in 5 U.S.C. 7521 and Secs. 1201.131 
through 1201.136 of this title.
    (k) A senior administrative law judge will be paid by the employing 
agency the current rate of pay for the level at which the duties to be 
performed have been placed and at the lowest rate of the level that is 
nearest (when rounded up) to the highest previous pay rate attained by 
the appointee as an administrative law judge before retirement. An 
amount equal to the annuity allocable to the period of actual 
employment will be deducted from his or her pay and deposited in the 
Treasury of the United States to the credit of the Civil Service 
Retirement and Disability Fund.

[FR Doc. 98-4498 Filed 2-20-98; 8:45 am]
BILLING CODE 6325-01-P