Monday, July 16, 2018
Lost in the shuffle of the latter part of the Supreme Court's term this year was Lucia v. SEC. In that case, the Court held that ALJs are "Officers of the United States" that must be appointed by the president or agency heads. In response, the Administration recently issued an executive order requiring ALJs to be hired by the respective agencies, rather than a central pool maintained by OPM. Although some fear that this will inject more politics into ALJ selection, it seems like an obvious move after Lucia.
It's unclear the extent to which this affects workplace agencies. For instance, my understanding is that the NLRB already follows a hiring procedure that would pass muster under Lucia. I believe the case is similar from safety ALJs, like those under MSHA and OSHA. Indeed, it's not a certainty that Lucia would apply to all of these ALJs, as that holding was limited to ALJs who carry out important duties with significant discretion (although my sense is that they would meet this threshold).
This all may be a nothing-burger, but it's worth keeping an eye on.