[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
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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.

-----------------------------------------------------------------------

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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