Administrative Law

Justice Department memo gives more power to agency chiefs to remove administrative law judges

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Mark Van Scyoc/

A confidential U.S. Department of Justice memo says the Merit Systems Protection Board must be “suitably deferential” to agency chiefs who want to fire administrative law judges for inadequate performance.

The memo, sent to top lawyers at federal agencies, says the DOJ will defend the good-cause requirement for removal of administrative law judges if it is properly construed. Reuters has a story and posts the memo it obtained.

The Administrative Procedure Act allows removal of administrative law judges “for good cause established and determined by the Merit Systems Protection Board.” The memo said the Justice Department would defend the constitutionality of the APA if it is construed to give the president and agency chiefs a “constitutionally adequate degree of control” over the judges.

The memo cited a June Supreme Court decision, Lucia v. Securities and Exchange Commission, that had found administrative law judges at the SEC were officers of the United States under the appointments clause, and they must be appointed by the president, courts or the heads of federal agencies.

Many litigants have already argued that administrative law judges are impermissibly shielded from agency removal, and more challenges are expected in the wake of Lucia, the memo said.

The memo was issued as President Donald Trump eliminated the competitive hiring process for administrative law judges. Trump gave hiring power to agency chiefs, based on their agency’s own hiring standards. ABA President Hilarie Bass has called the executive order “ill-considered and legally vulnerable.” Bass says the order could politicize the appointment process.

The confidential DOJ memo had said Lucia could apply to many administrative law judges, and agency heads should ratify the appointments of all administrative law judges currently in the executive branch. The memo also advised agencies to reassign proceedings to a different, properly appointed judge for a new hearing after any challenges under the appointments clause.

Reuters spoke with legal experts who said the Justice Department had made a similar argument about the power to fire administrative law judges in Lucia. The department had argued that the APA is constitutional only if the president and his appointees have the ability to determine when there is good cause to fire judges. The role of the Merit Systems Protection Board is to decide whether there is sufficient evidence supporting the agency determination, the Justice Department had argued.

Updated at 8:40 a.m. to include information on ABA position.

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