[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]
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Proposed Rules
Federal Register
________________________________________________________________________
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
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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
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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.
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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
