Appointment, Pay, and Removal of Administrative Law Judges, 5 CFR Part 930, Subpart B

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United States Department of Labor
Office of Administrative Law Judges Law Library

CODE OF FEDERAL REGULATIONS
TITLE 5--ADMINISTRATIVE PERSONNEL

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

* * *

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

General Provisions

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

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

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

Source 52 FR 34203, Sept. 10, 1987, unless otherwise noted.

General Provisions

§ 930.201 Coverage.

(a) This subpart applies to people appointed under 5 U.S.C. 3105 for proceedings required to be conducted in accordance with 5 U.S.C. 556 and 557, and to administrative law judge positions.

(b) 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 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.

[52 FR 34203, Sept. 10, 1987, as amended at 61 FR 39267, July 29, 1996]

§ 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. The assignment to an administrative law judge of a case of the level of difficulty that would ordinarily be assigned to an administrative law judge of a different grade does not of itself constitute a detail within the meaning of this subpart.

(c) Administrative law judge position means a position in which any portion of the duties includes those which require 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 position of administrative law judge or involuntary reassignment, demotion, or promotion to a position other than that of administrative law judge.

[52 FR 34203, Sept. 10, 1987, as amended at 56 FR 6209, Feb. 14, 1991]

§ 930.203 Examination.

(a) Periodic open competition. Applicants for entrance into the competitive service as administrative law judges will be examined periodically in open competition as announced by OPM. Applications received by OPM during such periods of open competition will be reviewed as a group.

(b) Minimum qualifications. All applicants must demonstrate in their written applications and supporting materials that they meet the qualifying experience requirements in OPM Examination Announcement No. 318.

(c) Supplemental qualifications. Applicants who meet minimum qualification requirements will be assigned a score on the supplemental qualifications statement described in the examination announcement.

(d) Participation in examination procedures. Applicants who meet minimum qualification requirements and are assigned a score on the supplemental qualifications statement become eligible to compete for a final rating through participating in three additional examination procedures described in the examination announcement:

(1) A written demonstration;

(2) A panel interview; and

(3) A personal reference inquiry.

(e) Final rating. Applicants who complete the examination procedures described in paragraphs (c) and (d) of this section will be assigned a final numerical rating based on a weighted sum of the scores for each of the four parts, transmuted to a scale of 0 to 100, with 70 required to pass. For applicants entitled thereto, the final passing score will be augmented by 5 or 10 veteran preference points.

(f) Preparation of certificates. As agencies request certificates of applicants from registers to consider in filling vacant administrative law judge positions in various geographic areas, all applicants who are eligible and available for those positions will be ranked to identify the best qualified applicants to be certified. Eligible applicants who have completed the final rating process will be ranked on the basis of assigned final ratings, augmented by veteran preference points if applicable. At least three eligible applicants will be certified to the employing agency for consideration for each vacancy.

(g) 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.

[56 FR 6209, Feb. 14, 1991]

§ 930.203A 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 investigation in accordance with Secs. 731.201 through 731.303 of this chapter and subject to security clearance by the agency.

(b) Probationary and career-conditional periods. The requirement of a probationary and career-conditional period before absolute appointment does 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 appoint as an administrative law judge an employee who is serving in a position which is classified as an administrative law judge position on the basis of legislation, Executive order, or decision of a court, if--

(1) The employee has a competitive status or was serving in an excepted position under a permanent appointment;

(2) The employee was 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 not later than 6 months after classification of the position on the basis of the legislation, Executive order, or decision of the court; and

(4) OPM finds that the employee meets the current examination requirements for the position under OPM Examination Announcement No. 318. In an emergency situation, when the needs of an agency require it, OPM may authorize the conditional appointment of an employee to an administrative law judge position pending final decision on the employee's eligibility for absolute appointment under this paragraph.

(d) Appointment of legislative and judicial employees. An agency may appoint a former employee of the legislative or judicial branch to an administrative law judge position if OPM finds that the employee meets current examination requirements under OPM Examination Announcement No. 318 and is otherwise eligible under the provisions of 5 U.S.C. 3304(c).

(e) Appointment of incumbents of nonadministrative law judge positions. Except as provided in paragraphs (c) and (d) 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.

§ 930.203B Title of administrative law judge.

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.

§ 930.204 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 one of an agency's administrative law judge positions at a higher level on the basis of the position's managerial and administrative nature, an agency may promote one of its administrative law judges to such a position, provided the selection and/or promotion is in accordance with regular civil service procedures.

[56 FR 6209, Feb. 14, 1991]

§ 930.205 Reassignment.

An agency may reassign an administrative law judge who is serving under absolute appointment from one administrative law judge position to another administrative law judge position at the same grade in the same agency, with the prior approval of OPM on a noncompetitive basis, provided the assignment is for bona fide management reasons and in accordance with regular civil service procedures and merit system principles.

§ 930.206 Transfer.

(a) An agency may transfer an administrative law judge from another agency with the prior approval of OPM on a noncompetitive basis in accordance with regular civil service procedures, provided the administrative law judge meets all current examination requirements for appointment as an administrative law judge under OPM Examination Announcement No. 318.

(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 1 year after the person's last appointment, unless the gaining and losing agencies agree to the transfer.

[56 FR 6209, Feb. 14, 1991]

§ 930.207 Reinstatement.

An agency may reinstate former administrative law judges who have served with absolute status under 5 U.S.C. 3105 only after they have established their eligibility in accordance with all current examination requirements of OPM Examination Announcement No. 318. Reinstatement is subject to investigation by, and the prior approval of, OPM.

[56 FR 6209, Feb. 14, 1991]

§ 930.208 Restoration.

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

§ 930.209 Detail and assignment to other duties.

(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 not inconsistent 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.

§ 930.210 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 the regulations and procedures in 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) An agency may not grant a monetary and honorary award under 5 U.S.C. 4503 for superior accomplishment by an administrative law judge in the performance of adjudicatory functions.

(c) AL-3 is the basic pay level for administrative law judge positions filled through competitive examination under OPM Examination Announcement No. 318, as provided in section 930.203 of this part.

(d) 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.

(e) Judges must serve at least 1 year in each AL level, in an equivalent or higher level in positions in the Federal service, before advancing to the next higher level and may advance only one level at a time.

(f) 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, time in a nonpay status is also fully creditable if absence is due to military service, as defined in 5 U.S.C. 8331(13), or due to receipt of injury compensation under chapter 81 of title 5, United States Code.

(g) 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) An agency may offer an administrative law judge applicant with superior qualifications a higher than minimum rate if it first obtains approval from OPM to offer such a higher rate to an applicant who is within reach on a certificate of eligible administrative law judge applicants in order to 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.

(h) Subject to the approval of OPM, and on the appropriate recommendation of the employing agency, 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.

(i) 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.

(j) In making initial pay adjustments for administrative law judges from positions paid under the General Schedule to positions paid under the new pay system established under 5 U.S.C. 5372, the rate of basic pay for any such judge shall, upon conversion to the new pay system, be at least equal to the rate that was payable to that individual immediately before such conversion.

(k) Except as provided in paragraph (l) of this section, on the first day of the first applicable pay period beginning on or after February 10, 1991, administrative law judges will be converted from the General Schedule to AL-3, 2, and 1 as follows:

-----------------------------------------------------------------
 General schedule AL 
-----------------------------------------------------------------
GS-15, Steps 1-2-3-4......................  AL-3, Rate A.
GS-15, Steps 5-6..........................  AL-3, Rate B.
GS-15, Steps 7-8-9........................  AL-3, Rate C.
GS-15, Step 10............................  AL-3, Rate D.
GS-16, Steps 1-2-3........................  AL-3, Rate C.
GS-16, Steps 4-5-6........................  AL-3, Rate D.
GS-16, Steps 7-8..........................  AL-3, Rate E.
GS-16, Step 9.............................  AL-3, Rate F.
GS-17, Steps 1-5..........................  AL-2.  
GS-18.....................................  AL-1.  
-----------------------------------------------------------------

(l) In making the initial conversion from the General Schedule pay rates to the new AL pay system for administrative law judges, effective on the first day of the first applicable pay period beginning on or after February 10, 1991, those GS-15 and GS-16 administrative law judges receiving the 8 percent interim geographic adjustments authorized by Schedule 9 of Executive Order 12736 of December 12, 1990, will convert as follows:

-----------------------------------------------------------------
 General schedule AL 
-----------------------------------------------------------------

GS-15, Steps 1-2..........................  AL-3, Rate A.
GS-15, Steps 3-4-5........................  AL-3, Rate B.
GS-15, Steps 6-7..........................  AL-3, Rate C.
GS-15, Steps 8-9-10.......................  AL-3, Rate D.
GS-16, Steps 1-2..........................  AL-3, Rate C.
GS-16, Steps 3-4..........................  AL-3, Rate D.
GS-16, Steps 5-6-7........................  AL-3, Rate E.
GS-16, Steps 8-9..........................  AL-3, Rate F.
-----------------------------------------------------------------

(m) Agencies must document all pay changes made in accordance with this section by completing a Standard Form 50, or equivalent, in the usual manner and forwarding an extra copy directly to the Office of Administrative Law Judges, Career Entry Group, U.S. Office of Personnel Management, 1900 E Street, NW., Washington, DC 20415.

[56 FR 6210, Feb. 14, 1991, as amended at 57 FR 1369, Jan. 14, 1992]

§ 930.211 Performance rating.

An agency shall not rate the performance of an administrative law judge.

§ 930.212 Rotation of administrative law judges.

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

§ 930.213 Use of administrative law judges on detail from other agencies.

(a) An agency that is occasionally or temporarily insufficiently staffed with 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. The agency request should--

(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 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.

§ 930.214 Actions against administrative law judges.