OHR Guidance, Attorney, Law Clerk, Legal Intern, and ALJ

Effective Date 11/01/2016 (Rev 10/2/2024)

Document Change History

Approved:

/s/

Jeffery Anoka
Deputy Assistant Secretary for Human Resources
Chief Human Capital Officer (Acting) 

Date: 10/2/2024

A. Purpose.

This guidance covers Attorneys, Law Clerks, Legal Interns, and Administrative Law Judge positions, consistent with HHS and Office of Personnel Management (OPM) policy, procedures and guidance, and applicable federal laws and regulations.

This guidance is used in conjunction with HHS Instruction 302-1, Employment in the Excepted Service, and HHS Instruction 362-1, Pathways Programs, where specifically noted in this guidance. 

When provisions of this guidance differ from changes in applicable law or regulation, the changes in law or regulation apply.

B. Coverage.

This guidance covers HHS-wide Attorney and Law Clerk positions (Schedule A, 5 CFR §213.3102(d) and (e)), and Pathways Programs Legal Intern NTE (Temporary) positions (Schedule D, 5 CFR §213.3402(a)) in the excepted service. This guidance also covers Administrative Law Judge (ALJ) positions (5 CFR 930, Subpart B), Appendix B , and pay setting for Administrative Appeal Judges (AAJ), Appendix C .

The Department will follow all requirements of 5 USC Chapter 71 involving bargaining conditions of employment for bargaining unit employees. To the extent that provisions of this guidance are in specific conflict with a Collective Bargaining Agreement (CBA), the provisions of the CBA govern for bargaining unit positions only.

C. References.

1. 5 U.S.C. §2108, Veteran; disabled veteran; preference eligible
2. 5 U.S.C. §2301. Merit System Principles
3. 5 U.S.C. §7511, Definition of Employee, adverse actions
4. 5 CFR §213, Excepted Service
5. 5 CFR §213.104, Special provisions for temporary, time-limited, intermittent, or seasonal appointments in Schedule A, B, C, or D
6. 5 CFR §302.101(c), Positions exempt from appointment procedures
7. 5 CFR §362, Subpart B, Pathways Programs, Internship Program
8. 5 CFR §531.212, Superior Qualifications and Special Needs Pay Setting Authority
9. 5 CFR 930, Subpart B, Administrative Law Judge Program
10. HHS Instruction 302-1, Employment in the Excepted Service
11. HHS Instruction 315-2, Probationary & Trial Periods
12. HHS Instruction 330-2, Priority Placement Programs (CTAP, ICTAP, RPL, PRL)
13. HHS Instruction 362-1, Pathways Programs
14. HHS Instruction 511-1, Position Classification
15. HHS Instruction 531-1, Setting Pay Based on Superior Qualifications and Special Needs

D. Responsibilities.

1. HHS Office of General Counsel (OGC):
   1. Provides all legal advice and services to agency officials within the Department. See HHS/OS/OGC Statement of Organization. By serving as the sole, officially designated source of legal advice to the Department, OGC ensures that all offices (including Operating and Staff Divisions (OpDivs and StaffDivs)) receive uniform advice and that OGC and the Department of Justice are able to defend the agency’s legal position.
   2. Approves the establishment of HHS-wide Attorney (GS-0905) positions at any grade level, both within and outside of OGC.
   3. Approves requests to credit certain special qualifications for Attorney candidates in lieu of one (1) year of legal experience.
2. HHS Assistant Secretary for Administration, Office of Human Resources (ASA/OHR):
   1. Establishes Department-wide human resources guidance and policy consistent with HHS and OPM policy, procedures and all applicable federal laws and regulations.
   2. Reviews OpDiv/StaffDiv requests to establish Attorney (GS-0905) positions at any grade level, then forwards to OGC for approval.
   3. (For Law Clerk and Legal Intern positions) Submits pass over and objection requests for OPM approval;
   4. Periodically reviews Operating Division and Staff Division (OpDiv/StaffDiv) procedures and actions to ensure conformance with HHS and OPM policy and guidance, and all applicable federal laws and regulations.
3. OpDiv and StaffDiv Human Resources (HR) Centers:
   1. Comply with this guidance, and applicable HHS policy, federal laws and regulations.
   2. Submit requests to OGC thru ASA/OHR for approval to establish Attorney (GS-0905) positions at any grade level, following the procedures in this guidance.
   3. Review requests to credit certain special qualifications for Attorney candidates (identified in Appendix A and footnote 5) in lieu of one (1) year of legal experience, then forwards requests to OGC for approval.
   4. (For Law Clerk and Legal Intern positions)  The Human Resources Director (HRD) approves and/or submits to ASA/OHR at employmentpolicy@hhs.gov any request for OPM approval to object/pass-over any veteran with a 30% or more compensable service-connected disability.  Pass-over and objection requests must contain the information listed in HHS Instruction 302-1, Employment in the Excepted Service.
   5. (For Law Clerk and Legal Intern positions)  Submit to ASA/OHR at employmentpolicy@hhs.gov a copy of the HRD approval for any objection/pass-over for preference eligibles with less than 30% compensable service-connected disability, or an applicant with derived preference, within 14 calendar days of HRD approval.  Such approvals must contain the information listed in HHS Instruction 302-1, Employment in the Excepted Service.
   6. Document reasons for non-selection in accordance with the notification requirements in 5 CFR §§302.101(c), 302.302(b), 302.304(a) and 362.105(c)(2), as applicable.
   7. Maintain a recruitment case file for each selection to defend agency action in case of third-party review, in accordance with Section P. of this guidance and HHS Instruction 302-1, Excepted Service, Section 302-1-140.

E. Attorneys, Schedule A, 5 CFR §213.3101(d).

1. Definition. A legal position involved in the practice of law.  An Attorney’s duties may include rendering legal advice and services with respect to questions, regulations, practices, or other legal matters falling within the purview of a federal agency; preparing and reviewing interpretive and administrative orders, rules, or regulations to give effect to the provisions of governing status or other requirements of law; negotiating or examining contracts or other legal documents required by the agency’s activities; drafting, preparing formal comments, or otherwise making substantive recommendations with respect to proposed legislation; editing and preparing for publication statutes enacted by Congress and opinions or decisions of a court, commission, or board; and drafting and reviewing decisions for consideration and adoption by agency officials.  Attorneys also represent HHS in administrative litigation before various administrative adjudicatory agencies and assist the Department of Justice with litigation in Federal court.  See also General Attorney definition in OPM’s Position Classification Standard for General Attorney Series, GS-0905.
2. Approval Process for New Attorney Positions.
   1. OGC approval is required for the establishment of Attorney (0905) positions at any grade level, both within and outside of OGC.
   2. To request establishment of a new Attorney (0905) position:
      1. The HR Center reviews request to establish a new Attorney (0905) position within their division. The request must include a position description (PD).¹
      2. If the position meets the criteria for an Attorney (i.e., the definition of attorney as defined immediately above ), the HR Center Director approves and/or submits request for OGC approval to ASA/OHR at employmentpolicy@hhs.gov.  Requests must contain a justification that describes the need for the position and a classified PD.
   3. ASA/OHR reviews requests submitted by the servicing HR Center for concurrence then submits to OGC for approval, as required by HHS Instruction 511-1, Position Classification.
   4. OGC reviews the request and approves or denies the request with a written explanation within 30 calendar days.
   5. OGC returns the approved or denied request to ASA/OHR at employmentpolicy@hhs.gov for record keeping purposes.  ASA/OHR notifies requesting HR Center.
   6. All documentation, including OGC approval must be attached to the Attorney PD and maintained with the servicing HR Center for future reference as long as the position remains active.
   7. If an approved position is vacated and the PD and organization remains the same, the OpDiv/StaffDiv has the authority to backfill the position without additional approval.
3. HHS-wide Attorney Qualification Requirements.  See also Appendix A.
   1. Education Requirement: HHS Attorney positions have a minimum requirement of a Juris Doctorate (J.D.) or Bachelor of Laws (LL.B.) from an accredited school.
   2. Bar Membership: Consistent with OPM’s General Attorney (0905) Position Classification Standard, Attorney positions require current active bar membership. Admission to the bar of any State, territory, Commonwealth of Puerto Rico, District of Columbia, or Federal Court is acceptable.  Active bar membership is verified prior to appointment.  Employees must maintain active bar membership while employed as an attorney with HHS. 
   3. License to Practice Law. A current, valid license with eligibility to practice law in a state, the District of Columbia, or any United States territory or commonwealth is a continuing condition of employment for Federal attorneys.
4. Filling Attorney Positions.  5 CFR §302.101(c)(8) exempts Attorney positions from the 5 CFR Part 302 hiring procedures; however, 5 CFR §302.101(c) does not exempt positions from the merit system principles.  Attorney recruitment and selection is required to adhere to the merit system principles,² including the veterans’ preference and priority consideration requirements in 5 CFR §302.101(c) described below.
   1. Internal Procedures.  HR Centers must establish written procedures on their recruitment methods and assessment procedures consistent with this guidance and apply them uniformly to all Attorney candidates.  HR Centers should consult its servicing legal staff concerning any questions whether its recruitment practices uphold the merit system principles (5 U.S.C. §2301).
   2. Recruitment Methods.  An OpDiv/StaffDiv’s recruitment method(s) must be designed to recruit qualified individuals consistent with the merit system principle of fair and open competition.³
      1. Notification options:
         1. A notice on the HHS or division’s public facing career page; third-party online job board(s); or a traditional job opportunity announcement (JOA) on USAJOBS.
         2. A notice on the OpDiv/StaffDiv intranet career page may be considered in cases where a sufficient number of qualified internal candidates are available for the vacant Attorney position(s).
         3. Strategic outreach that includes job fairs, universities, and/or legal-related publications and organizations may be considered in addition to 1) and 2) immediately above.
      2. Job notices/vacancy announcements must include information about the vacancy including salary; duties; geographic location; qualification requirements; promotion potential (career ladder), if applicable; and information on how to apply.  Strategic outreach should provide the same job information or a link to the vacancy notice on the career page, job board, etc. 
      3. Excepted service job notices/vacancy announcements cannot be restricted to ‘status’ candidates because employees generally acquire competitive status when they hold or previously held a permanent competitive service position.
   3. Veterans’ Preference as far as administratively feasible, 5 CFR §302.101(c); Patterson v. Department of Interior, 424 F.3d 1151 (Fed. Cir. 2005); Pope v. U.S. Department of Transportation, 421 F.3d 480, 482 (7th Cir. 2005; Jarrard v. Social Security Administration, 115 M.S.P.R. 397, 407 (Oct. 28, 2010);  and OPM Vet Guide/Excepted Service Employment. 
      
      When considering more than one (1) Attorney candidate and one (1) or more candidates is a preference eligible:
      1. At a minimum, military service must be considered a positive factor when assessing Attorney candidates. Applicant lists will annotate which applicants are veterans.
      2. Alternatively, OpDivs/StaffDivs may elect to apply veteran’s preference as a tiebreaker when comparing candidates with similar levels of knowledge, skills, and abilities, thus offering the vacant position to the preference eligible candidate.  If electing this option, the servicing HR Center’s Attorney recruitment procedures must include this practice and apply it consistently to all Attorney applicants. 
      3. When a non-preference eligible applicant is selected over a preference eligible applicant, the pass over procedures under 5 U.S.C. §3318 are not required to be followed for Attorney positions (Jarrad vs. DOJ, 669 F.3d 1320 (9th Cir. 2012)).
      4. Qualified Attorney applicants who are preference eligibles must be provided the reason(s) for non-selection upon request, as required by 5 CFR §302.101(c).
      5. The Indian Health Service shall give selection priority in accordance with 25 U.S.C. §5117 prior to applying veterans’ preference provisions.
   4. HHS Priority Reemployment List (PRL). Selection priority must be provided to former HHS Attorney employees who are registered on HHS Priority Reemployment List (PRL) before referring the names of other qualified Attorney candidates, in accordance with 5 CFR §302.101(c) and HHS Instruction 330-2, Priority Placement Programs. Sufficient documentation must be retained to demonstrate PRL clearance for each vacancy.  (Note: The Career Transition Assistance Plan (CTAP), Interagency Career Transition Assistance Plan (ICTAP) and the Reemployment Priority List (RPL) do not apply to excepted service vacancies (5 CFR §§ 330.211(i); 330.609(i); and 330.707(g)).

F. Law Clerks, Schedule A, 5 CFR §213.3102(e).

1. HHS-wide Qualification Requirements.  See also Appendix A
   1. Law Clerk positions have a minimum education requirement of a Juris Doctorate (J.D.) or Bachelor of Laws (LL.B.) from an accredited school.
   2. Law school graduates who have not yet been admitted to the bar and who have not served in a judicial clerkship may be temporarily employed as a Law Clerk at the GS-11 level, not to exceed 14 months. Law school graduates who have not yet been admitted to the bar and who have served at least one year in a judicial clerkship may be temporarily employed as a Law Clerk at the GS-12 level, not to exceed 14 months.
2. Time Limit.  Appointments may be made for periods not to exceed 14 months pending admission to the bar.  No person may be given more than one law clerk appointment; however, an appointment made for less than 14 months may be extended for not to exceed 14 months in total duration (5 CFR §213.3102 (e)).
3. Filling Positions.  Law clerk positions are under Schedule A, but unlike Attorney positions, 5 CFR 302.101(c) does not exempt Law Clerk positions from the 5 CFR 302 hiring procedures.  Law Clerk positions must be filled in accordance with the excepted service hiring procedures outlined in 5 CFR Part 302, and HHS Instruction 302-1, Employment in the Excepted Service. 

G. Legal Interns NTE (Temporary), Schedule D, 5 CFR §213.3402(a)).

1. Filling Positions.  Legal Intern NTE (Temporary) positions (0999) are filled under the Pathways Programs in accordance with 5 CFR Part 362, and HHS Instruction 362-1, Pathways Programs.
2. Qualification Requirements.  Students at accredited law schools who are candidates for Juris Doctorate (J.D.), Bachelor of Laws (LL.B.), or Master of Law (LL.M.) degrees may be appointed as Legal Interns under the Pathways Programs, up to GS-12 grade level, for a period not to exceed one (1) year.  Candidates for Legal Intern positions are evaluated against OPM's Group Coverage Qualification Standard for Schedule D, Pathways Internship Positions, for the grade level of the position being filled (5 CFR §362.203(c)).
3. Other Requirements.  See HHS Instruction 362-1, Pathways Programs, for information on program eligibility, training requirements; compensation; program extensions; breaks in program, etc., as required by 5 CFR Part 362. 
4. Non-competitive Conversion.  Legal Interns are eligible for non-competitive conversion to a term or permanent position in the competitive service after successful completion of the Pathways Programs requirements described in 5 CFR §362, Subpart B and HHS Instruction 362-1, Pathways Programs.  (The Pathways Programs does not authorize non-competitive conversion to excepted service positions (5 CFR 362.107)).  Legal Interns may alternatively compete for a Law Clerk or Attorney position if they meet the HHS qualification requirements described in this guidance. Selection for either a Law Clerk or Attorney position before completion of the Pathways Programs requirements would remove the incumbent from the Pathways Programs.

H. Advanced Rate of Pay at Initial Appointment,

5 CFR §531.212 and HHS Instruction 531-1, Setting Pay Based on Superior Qualifications and Special Needs. At the discretion of the General Counsel (or delegate), a candidate may be offered an advanced rate of pay beyond Step 1, if the General Counsel (or delegate) determines the candidate has superior qualifications or skills directly related to the position being filled or based on organizational need, as described below. Such qualifications must be significantly higher than needed to be considered minimally qualified for the position and/or be of a more specialized quality compared to other candidates, in accordance with 5 CFR §531.212(b)(1)). OpDiv/StaffDiv HR Centers are the final approving authority.

1. Experience in legal practice in a field related to the position for which the candidate is being considered (e.g., litigation, contracts, health care reimbursement, food and drug law, federal or state advocacy experience);
2. Significant non-legal work experience in a field related to the position for which the candidate is being considered (e.g., working with a Federal Acquisition Regulation, health care, tribal negotiations, or Equal Employment Opportunity regulations or leading complex quasi-legal investigations, or other work experience directly applicable to the work of the position for which the attorney is being hired);
3. Outstanding academic experience and achievement, to include a combination of awards, recognitions and honors bestowed by an academic institution; participation in clinical program with limited practice of law (typically in third year) or community service legal clinic; participation in moot court and/or other similar competitions (e.g., negotiation, mock trial, client counseling, appellate advocacy, writing) and/or completion of specialized Certificate/Curriculum programs designed to build and enhance critical professional legal skills (such as Pathways to Success Professionalism, Heath Law and Policy, Indian Law, Trial Advocacy);
4. Success of recent efforts to recruit candidates for the same or similar positions; recent turnover in the same or similar positions; desirability of the geographic location, duties, and/or work environment associated with the position; the importance/criticality of the position to be filled and the effect on the agency if it is not filled or if there is a delay in filling it; or other factors affecting ability to successfully recruit and/or retain candidates for the position;
5. Significant disparities between Federal and non-Federal salaries for the skills and competencies required in the position to be filled; or existing labor market conditions and employment trends, including the availability and quality of candidates for the same or similar positions; and/or
6. OGC workforce needs, as documented in OGC’s strategic human capital plan.
7. OpDivs/StaffDivs who wish to recommend a candidate for a step level above step 1, must include the recommended step in the initial written hiring recommendation to the HHS General Counsel (or delegate). The recommendation should specifically address the factors above as they relate to the candidate and the office’s recruitment efforts, and reasons why pay should be set above the minimum rate of pay (step), instead of/in addition to a recruitment incentive (5 CFR §531.212(d). If approved, the OpDiv/StaffDiv HR Centers will work with the OGC Office of Legal Resources (OLR) regarding any additional procedures required.

I. Classification,

See HHS Instruction 302-1, Excepted Service.

J. Citizenship Requirement.

The General Government Appropriations Act ban in the Federal budget prohibits compensating an individual who is not a U.S. citizen or national for any federal position.  The only HHS statutory exception to this ban are excepted service appointments via 42 U.S.C. §209(f) and 42 U.S.C. §209(g), not applicable to the positions covered in this guidance (42 U.S.C. §209(h)). 

K. Appointment Time Limits,

See HHS Instruction 302-1, Excepted Service.

L. Trial Periods.

HHS excepted service employees serve a two (2) year trial period. Rules (regulations) on initial trial periods; supervisor and manager trial periods; creditable time; failure to complete a trial period; and performance based and adverse actions taken during trial periods are covered in HHS Instruction 315-1, Probationary and Trial Periods.

M. Details; Reassignments; and Promotions,

See HHS Instruction 302-1, Excepted Service.

N. Appeals,

See HHS Instruction 302-1, Excepted Service.

O. Personnel Actions and Tenure,

See HHS Instruction 302-1, Excepted Service.  Effective dates are established consistent with OPM’s Guide to Processing Personnel Actions, Chapter 3. 

P. Documentation and Accountability,

See HHS Instruction 302-1, Excepted Service.

Q. Guidance Owned by:

ASA/Office of Human Resources, Policy and Accountability Division (PAD)
Effective Date: November 1, 2016, Rev 05/22/2024
Contact Information: employmentpolicy@hhs.gov

Appendix A – HHS-wide Attorney and Law Clerk Minimum Qualification Requirements⁴

Appendix B – Administrative Law Judges (ALJ)

General

Effective on July 10, 2018, the position of administrative law judge appointed under 5 U.S.C. 3105 shall be listed in Schedule E for all levels of basic pay under 5 U.S.C. 5372(b). " (E.O. 13843; 5 CFR 6.8(d).)

Incumbent ALJs in their position on July 10, 2018 remain in the competitive service as long as they remain in their current positions (5 CFR §6.8(d)) .  Effective on July 10, 2018, the position of administrative law judge appointed under 5 U.S.C. 3105 shall be listed in Schedule E for all levels of basic pay under 5 U.S.C. 5372(b) . Incumbents of this position who are, on July 10, 2018, in the competitive service shall remain in the competitive service as long as they remain in their current positions (5 CFR §6.8(d)) .

Recruitment

Federal regulations 5 CFR 930, Subpart B, and OPM’s guidance at Administrative Law Judges (opm.gov), including the qualification standard for Administrative Law Judge Positions at (opm.gov) and licensing requirement for Schedule E positions at 5 CFR §6.3(b) must be followed. 

ALJ appointments are not subject to the 5 CFR Part 302 hiring procedures, and veterans’ preference is applied as far as administratively feasible (E.O. 13843 and 5 CFR §6.2).  The attorney hiring procedures in E. 4. of this guidance are followed, in accordance with the above requirements and OPM’s 2021 Fact Sheet.⁶

For additional information, see OPM Memo, Executive Order – Excepting Administrative Law Judges from the Competitive Service, July 10, 2018

Pay⁷

OPM assigns each ALJ position to one of the three levels of basic pay, AL-3, AL-2 or AL-1 of the administrative law judge pay system established under 5 U.S.C. §5372 in accordance with this section. Pay level AL-3 has six rates of basic pay, A, B, C, D, E, and F.  The rate of basic pay for AL-3, rate A, may not be less than 65 percent of the rate of basic pay for level IV of the Executive Schedule. The rate of basic pay for AL-1 may not exceed the rate for level IV of the Executive Schedule.

Pay level AL-3 is the basic pay level for ALJ positions filled through a competitive examination.

Unless approved for highest previous rate or superior qualifications, upon appointment to an ALJ position and placement in level AL-3, an ALJ is paid at the minimum rate A of AL-3. They are 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 non-pay status is generally creditable service when computing the 52-or 104-week period as long 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 5 CFR Part 353.

When an applicant to an ALJ position at AL-3 has prior Federal service, the agency may set pay at a higher than minimum rate up to the lowest rate of basic pay that equals or exceeds the applicant's highest previous Federal rate of basic pay, not to exceed the maximum rate F (determination must be made prior to Entry On Duty). OpDiv/StaffDivs must establish a policy regarding use of this pay-setting authority that includes the following elements:

• These requests must be approved by the Secretary or designee;
• use of this pay-setting authority is discretionary;
• written justification must include consideration of the rate of basic pay set for other administrative law judges (based on the level, type, or quality of the appointee's skills or competencies or other qualities and experiences), and
• documentation and recordkeeping requirements sufficient to allow reconstruction of the action.

With prior OPM approval, an agency may offer a higher than minimum rate, up to the maximum rate F, to an ALJ applicant or a former ALJ with superior qualifications who is eligible for appointment to a position at AL-3. An agency request to OPM must include:

• A description of the superior qualifications (as defined in 5 CFR §930.202) of the applicant or former ALJ;
• How pay has been set for ALJs who had similar qualifications (based on the level, type, or quality of the applicant's or former ALJ's skills or competencies or other qualities and experiences) and who have been newly appointed to positions that are similar to the ALJ's position (based on the position's occupational series, organization, geographic location, or other job-relevant factors), if applicable; and
• The proposed rate of basic pay and a justification for that rate, except an agency may not consider an applicant's or former ALJ's salary history (i.e., existing salary or prior salary) or a salary from a competing job offer.

With prior OPM approval, an agency, on a one-time basis, may advance an ALJ in an AL-3 position with added administrative and managerial duties and responsibilities one rate above the ALJ's current AL-3 pay rate, up to the maximum rate F.

Upon appointment to an ALJ position placed at AL-2 or AL-1, an ALJ is paid at the established rate for the level.

An employing agency may reduce the level or rate of basic pay of an ALJ under 5 CFR §930.211.

With prior OPM approval, an employing agency may reduce the level of basic pay of an ALJ if the ALJ submits to the employing agency a written request for a voluntary reduction due to personal reasons.

Appendix C – Administrative Appeal Judges (AAJ) Pay

The head of each agency must fix the rate of basic pay for each AAJ position within the agency.

Upon initial appointment, an agency must set the rate of basic pay of an AAJ at the minimum rate AA-1 of the administrative appeals judge pay system, except in cases where highest previous rate or superior qualifications are approved. 

An agency must set the pay of an employee under the General Schedule pay system who is appointed to an AAJ position without a break in service at the lowest rate of basic pay of the administrative appeals judge pay system that equals or exceeds the rate of basic pay the employee received immediately prior to such appointment, not to exceed the rate of basic pay for AA-6. If the resulting basic pay increase is less than one-half of the dollar value of the employee's next within-grade increase, the agency must set the employee's rate of basic pay at the next higher rate of basic pay in the basic rate range of the administrative appeals judge pay system, not to exceed the rate of basic pay for AA-6.

An agency may offer an AAJ applicant with prior Federal service a rate up to the lowest rate of basic pay of the administrative appeals judge pay system that equals or exceeds the employee's highest previous rate of basic pay in a Federal civil service position, not to exceed the rate of basic pay for AA-6 and subject to the below:

• These requests must be approved by the Secretary or designee prior to EOD;
• use of this pay-setting authority is discretionary;
• written justification must include consideration of the rate of basic pay set for other administrative appeals judges (based on the level, type, or quality of the appointee's skills or competencies or other qualities and experiences); and
• documentation and recordkeeping requirements sufficient to allow reconstruction of the action.

An agency may offer an AAJ applicant (including a former AAJ) with superior qualifications who is not a current Federal employee a higher than minimum rate up to the maximum rate AA-6 when such a rate is clearly necessary to meet the needs of the Government. Superior qualifications for applicants include, but are not limited to, 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. An agency must document all of the following:

• The superior qualifications of the applicant;
• The need of the Government for the applicant's services;
• Consideration of how pay has been set for AAJ who had similar qualifications (based on the level, type, or quality of the applicant's skills or competencies or other qualities and experiences) and who have been newly appointed to positions that are similar to the applicant's position (based on the position's occupational series, organization, geographic location, or other job-relevant factors), if applicable; and
• An explanation (in writing) of the factors which were used to justify the rate at which the employee's pay is set, except an agency may not consider the applicant's salary history (i.e., existing salary or prior salary) or a salary from a competing job offer.
• Approval must be made prior to EOD.

AAJs will advance successively to rates AA-2, 3, and 4 upon completion of 52 weeks of service in the next lower rate, and to rates 5 and 6 upon completion of 104 weeks of service in the next lower rate. Advancement to a higher rate takes effect on the first day of the first pay period beginning on or after completion of the required period of service. Time in a non-pay status is creditable service in the computation of a waiting period in so far as it does not exceed 2 weeks for each 52 weeks of service. Time in a non-pay status is fully creditable if the absence is due to military service, as defined in 5 U.S.C. §8331(13), or receipt of injury compensation under chapter 81 of title 5, United States Code.  Time under pay systems outside the administrative appeals judge pay system is not creditable service in computing the required waiting period, except that time under the ALJ pay system established under 5 U.S.C. §5372 is creditable when an individual moves from that system to the AAJ pay system without a break in service.

Endnotes:

¹ FDA’s Office of Chief Counsel reports to the OGC’s Food and Drug Division and may seek approval directly from the OGC.  However, all other FDA Centers/Offices outside the OGC’s Food and Drug Division must obtain written approval following the steps outlined in this guidance.

² 5 U.S.C. §§2301, 2302(a)(2)(B) and (b)(12); OPM Special Study, Excepted Service Hiring Authorities, July 18, 2018

³  “Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity” (5 U.S.C. §2301(b)(1)).

⁴  OPM does not issue qualification standards for Attorney (0905) and Law Clerk (0904) positions and delegates this responsibility to agencies.

⁵  For Attorneys.  At the discretion of the General Counsel, one (1) year of legal experience may be credited if an Attorney applicant possesses any one or combination of the following special qualifications:

1. One year of post-law school graduate law study (Full-time or equivalent) related to position for which the candidate is being considered (LLM, combined JD/MPH, combined JD/MBA, or equivalent);
2. One year experience serving in a legal fellowship related to the position for which the candidate is being considered;
3. One year of significant non-legal work experience in a field related to the position for which the candidate is being considered (e.g., working with a Federal Acquisition Regulation, or Equal Employment Opportunity regulations, or other work experience directly applicable to the work of the position for which the candidate is being considered);
4. One year of post-law school judicial clerkship experience (full-time or equivalent);
5. Outstanding academic experience and achievement, to include awards, recognitions and honors bestowed by an academic institution; participation in a clinical program with limited practice of law (typically in third year) or community service legal clinic; participation in moot court and/or other similar competitions (e.g., negotiation, mock trial, client counseling, appellate advocacy, writing, etc.); completion of specialized certificate/curriculum programs designed to build and enhance critical professional legal skills (such as Pathways to Success Professionalism, Health Law and Policy, Indian Law, Employment Law, Trial Advocacy).

⁶ Per OPM’s 2021 Fact Sheet, the merit system principles (5 U.S.C. §2301) apply to excepted service recruitment.

⁷  E.O. 13843 does not affect the ALJ pay system. See OPM memo, linked in Appendix B above.