I-3-1-25.Allegations of Unfairness, Prejudice, Partiality, Bias, Misconduct, or Discrimination by Administrative Law Judges (ALJ)

Last Update: 6/17/14 (Transmittal I-3-67)

A. General

If, in conjunction with a request for review, the Appeals Council (AC) receives an allegation of unfairness, prejudice, partiality, bias, misconduct, discrimination, or its equivalent (allegations) about an ALJ, the AC reviews the allegation under the abuse of discretion standard in Hearings, Appeals and Litigation Law (HALLEX) manual I-3-3-2. See also 20 CFR 404.970 and 416.1470, and Social Security Ruling (SSR) 13-1p.

As explained in I-3-1-25 B below, while the AC evaluates all allegations under this standard of review and addresses certain allegations in the action documents, it also may refer certain allegations to the Division of Quality Service (DQS) for handling.

Additionally, the AC may independently identify ALJ conduct that warrants referral to DQS, even when no allegation or request for review is submitted. These procedures are outlined in HALLEX I-3-1-25 C.

B. Processing Allegations

1. Identifying an Allegation

a. Responsibility to Identify Allegations

The first Office of Appellate Operations (OAO) employee to identify an allegation is responsible for referring it as follows:

  • AC staff preparing a case for an analyst will refer the case to the branch chief (BC) immediately, regardless of whether the case is ready to be worked. The BC will confirm the presence of the allegation and follow the procedures in HALLEX I-3-1-25 B.2.

  • An analyst will notify the OAO Executive Director's Office (EDO) of the allegation when the case is placed in “final complete” status and the action document has been drafted.

  • An appeals officer (AO) or administrative appeals judge (AAJ) will notify the EDO or return the case to the assigned analyst to make the notification.

b. Determining if Statement is an Allegation

Many allegations are easily identified in a request for review or in other correspondence submitted in the record. For example, common allegations against ALJs include statements such as:

  • “The ALJ is biased against me [individually].”

  • “The ALJ is prejudiced because she did not find me disabled.”

  • “The ALJ is biased against claimants who receive workers compensation benefits or unemployment benefits.”

  • “The ALJ shows prejudice toward women.”

Some allegations do not use the specific terminology set forth in SSR 13-1p. If a statement in the record suggests that an ALJ's conduct is improper or unethical, the procedures in this section apply. When the statement is unclear and an analyst is uncertain whether a particular allegation needs to be referred, he or she should consult with an AAJ.

NOTE:

When an analyst observes possible non-compliance with a policy or procedure that may warrant feedback to the hearing operation, but does not warrant a referral to DQS under these provisions, see HALLEX I-3-1-13.

2. Procedures to Refer an Allegation

a. Notify EDO

Send an email notification to the EDO at ¦¦¦ODAR OAO with the subject line: “Allegation of Unfairness, Prejudice, Partiality, Bias, Misconduct, or Discrimination.” Format the email as follows:

Claimant's First and Last Names [John Q. Public], SSN: xxx-xx-xxxx – [insert the location of the allegation – for example, Exhibit 10B, page 3 or dated January 24, 2013]. The claimant (or representative) alleges, [insert a direct quote of the allegation – for example, “The ALJ was prejudiced against me because of my prior drug use.”]. (Insert ALJ Name).

NOTE:

The email should only contain the information listed above. It should not include any language suggesting the ALJ's conduct was unfair, prejudiced, partial, biased, constituted misconduct or discrimination, or the equivalent. If it was necessary to audit the hearing recording, identify where in the hearing recording the alleged conduct appears. If the case involves a paper file and the analyst identifies the allegation, the analyst will attach to the notification email an electronic copy of the draft AC action document and certify the date the analyst sent the other paper documents relating to the allegation to the EDO.

When necessary, send copies of documents related to the allegation to the EDO. If the case is fully electronic and the document(s) containing the allegation is in the electronic file, no documents need to be copied or sent to the EDO. If the case is a paper file, place a tab by the allegation of unfairness, prejudice, partiality, bias, misconduct, discrimination, or the equivalent, by the ALJ and send copies of the following to the EDO:

  • the hearing decision(s) or dismissal(s);

  • the document(s) containing the allegation (HA-520, letter, representative's brief, etc.);

  • any other document(s) the AC believes warrants consideration;

  • the hearing recording(s) burned to a compact disc (CD); and

  • if available, a written transcript of the hearing.

Create a standard routing sheet addressed to:

OAO Executive Director's Office
Attn: Bias Officer
5107 Leesburg Pike, Suite 1400
Falls Church, VA 22041

For employees in Falls Church, Virginia, deliver the copied materials by hand to the EDO.

For employees at duty stations other than Falls Church, consult with your supervisor to hand deliver the copied materials to your duty station's designated collection location.

b. Document the Allegation in the Appeals Review Processing System (ARPS)

The employee who sends the notification to the EDO will document it in the “Remarks” section in ARPS (found in the Worksheet tab) by creating a “Special Attention” remark. The ARPS “Remarks” annotation will read, “Allegation of Unfairness, Prejudice, Partiality, Bias, Misconduct, or Discrimination sent to the Executive Director's Office by email on xx/xx/xx.”

NOTE:

Do not hold the case after notifying the Executive Director's Office of the allegation. The case should continue to be processed under normal appeals procedures.

3. Analyst's Workup of the Case

The analyst must analyze the case, prepare a draft of the action document, and place the case with the adjudicator in “final complete” before referring the allegation under HALLEX I-3-1-25 B.2.

a. Case Analysis

The analyst will follow usual procedures in making a recommendation to the AC, using the applicable procedures in HALLEX I-3-1. The analyst must evaluate the allegations, review the entire record, and, when appropriate, audit the hearing recording. An audit is always necessary when an allegation refers to specific conduct at the hearing.

In doing so, the analyst will consider whether the record establishes an abuse of discretion by the ALJ, pursuant to 20 CFR 404.970 and 416.1470. See also HALLEX I-3-3-2. The analyst must also determine whether there is a basis to remand to another ALJ under 20 CFR 404.940 and 416.1440.

In the ARPS analysis, the analyst will make a recommendation about whether the ALJ abused his or her discretion. However, the analyst must not include findings about the allegation of unfairness, prejudice, partiality, bias, misconduct, discrimination, or the equivalent. Instead, the analyst will only determine whether the record establishes an abuse of discretion by the ALJ.

For example, it would be appropriate to state, “The claimant alleges the ALJ was biased, but the record does not support an abuse of discretion.”

In contrast, it would not be appropriate to state, “The ALJ showed bias against the claimant, and the record supports an abuse of discretion.”

b. ARPS entries

In every case involving an allegation, the analyst will add the contention of “Unfair Hearing Allegation” from the drop-down menu (found in the “Case Analysis – Procedural” section, under the heading “Contentions”).

NOTE:

The ARPS entry merely documents the allegation. It does not signify that the analyst, AO, or AAJ agrees with the allegation.

If the analyst recommends that the AC grant review due to an abuse of discretion, the analyst will:

  • select Abuse of Discretion (found in the “Case Analysis – Analysis Outcome” section, under the heading “Analysis Conclusion”); and

  • use “Remarks” to discuss any other related issue(s).

c. Action Documents

All action documents involving an allegation will:

  • acknowledge the allegation(s) (by direct quotation when possible) of unfairness, prejudice, partiality, bias, misconduct, or discrimination;

  • not include any statement that the AC agrees or disagrees with the allegation(s);

  • state that the AC considered the allegation(s) under the abuse of discretion standard; and

  • address whether or not the AC found an abuse of discretion, using the applicable language below.

NOTE:

The document will not say that the AC referred the allegation to another component.

d. No Abuse of Discretion - Denial or Dismissal

If the AC determines that the ALJ did not abuse his or her discretion, and that no other basis exists to grant review, or if the AC issues a dismissal, the following language, with the exception in the NOTE below, must be included in the action document:

With your request for review, you alleged that the Administrative Law Judge [quote the specific allegation]. We considered your allegations solely as they relate to your case under the abuse of discretion standard in [20 CFR 404.970 and/or 416.1470]. After reviewing the entire record, [including the hearing recording,] we have determined that there was no abuse of discretion and that no other basis exists to grant review in this case. We have completed our action on your request for review.

NOTE:

If the AC issues a dismissal based on standing only, then the dismissal order should not contain the language noted above.

e. No Abuse of Discretion - Remand or Decision

If the AC determines the ALJ did not abuse his or her discretion but another basis exists to grant review, the applicable language below must be added in the action document.

For remands and decisions, the following language applies:

With the request for review, the claimant alleged that the Administrative Law Judge [quote the specific allegation]. We considered the allegations solely as they related to the case under the abuse of discretion standard in [20 CFR 404.970 and/or 416.1470]. After reviewing the entire record, [including the hearing recording,] we have determined that there was no abuse of discretion in this case. For the reason(s) explained above, however, we have determined that a remand [or decision] is necessary because [identify the basis for the action – e.g., the decision is not supported by substantial evidence]. We have completed our action on the request for review.

For interim actions, the following language applies:

With your request for review, you alleged that the Administrative Law Judge [quote the specific allegation]. We considered your allegations solely as they relate to your case under the abuse of discretion standard in [20 CFR 404.970 and/or 416.1470]. After reviewing the entire record, [including the hearing recording,] we have determined that there was no abuse of discretion in this case. For the reason(s) explained above, however, we have determined that a remand [or decision] is necessary because [identify the basis for the action – e.g., the decision is not supported by substantial evidence].

NOTE:

Except in unusual circumstances, if the AC does not find an abuse of discretion, a remand order need not direct that a different ALJ handle the case. When the AC does direct the case to a different ALJ based on an allegation, the order should specifically identify the conduct or language that justifies the reassignment.

f. Abuse of Discretion - Remand or Decision

If the AC determines the ALJ did abuse his or her discretion, the document should cite the abuse of discretion standard as well as any other applicable standard of review (e.g., substantial evidence). The Document Generation System (DGS) does not list “abuse of discretion” as a basis for review and does not provide appropriate language. Thus, the applicable language below must be added in the action document.

For remands and decisions, the following language applies:

With the request for review, the claimant alleged that the Administrative Law Judge [quote the specific allegation]. We considered the allegations solely as they relate to the case under the abuse of discretion standard in [20 CFR 404.970 and/or 416.1470]. After reviewing the entire record, [including the hearing recording,] we have determined that there appears to be an abuse of discretion because [cite specific reasons for the determination].

For interim actions, the following language applies:

With your request for review, you alleged that the Administrative Law Judge [quote the specific allegation]. We considered your allegations solely as they relate to your case under the abuse of discretion standard in [20 CFR 404.970 and/or 416.1470]. After reviewing the entire record, [including the hearing recording,] we have determined that there appears to be an abuse of discretion because [cite specific reasons for the determination].

NOTE:

Ordinarily, the AC will direct that a different ALJ handle the case on remand when it finds an abuse of discretion, regardless of whether the claimant specifically requested such a reassignment. However, this is not required. There may be circumstances in which an AAJ determines that it is unnecessary to direct the case to a different ALJ on remand.

C. AC Identifies ALJ Conduct that Warrants Referral to DQS

If an analyst or AO believes that an ALJ may have engaged in egregious conduct, which is defined as conduct that shows unfairness, prejudice, partiality, bias, misconduct, discrimination, or the equivalent, he or she should bring that case to the attention of an AAJ, even when no allegation is submitted. In these situations, the AAJ will determine whether a referral to the EDO is appropriate.

An AAJ will not refer allegations under this process if he or she determines that the ALJ abused his or her discretion, but did not engage in egregious conduct. If the AAJ finds the ALJ abused his or her discretion and may have engaged in egregious conduct, the AAJ will refer the allegation. The AAJ may refer the allegation by sending an email to the EDO or by returning the case to the analyst or AO to notify the EDO.

NOTE:

If an AAJ believes egregious conduct occurred, a denial of the request for review is not appropriate. When an AAJ observes possible non-compliance with policy or procedure at the hearing level that may warrant feedback to the hearing operation but does not warrant a referral to DQS under these provisions, see HALLEX I-3-3-5.

1. Notify EDO

Send an email notification to the EDO at ¦¦¦ODAR OAO with the subject line: “AC Referral for Possible Unfairness, Prejudice, Partiality, Bias, Misconduct, or Discrimination.” Format the email as follows:

Claimant's First and Last Names [John Q. Public], SSN: xxx-xx-xxxx – [insert the location of the allegation – for example, conduct at hearing or language in decision]. AC Member referral for [insert a description of the egregious conduct – for example, the ALJ refused to allow the claimant to testify or cross-examine witnesses]. (Insert ALJ Name).

NOTE:

The email should only contain the information listed above. It should not include any language suggesting the ALJ's conduct was unfair, prejudiced, partial, biased, constituted misconduct or discrimination, or the equivalent. If it was necessary to audit the hearing recording, identify the location of the alleged conduct in the hearing recording.

The AAJ or designated staff should follow the instructions in I-3-1-25 B.2.a. for sending necessary documents to the EDO.

2. Document the Allegation in ARPS

The person sending the referral to the EDO will make the following annotation in the “Remarks” section in ARPS (found in the “Worksheet” tab):

AC Referral for Possible Unfairness, Prejudice, Partiality, Bias, Misconduct, or Discrimination sent to the Executive Director's Office by email on xx/xx/xx.

NOTE:

Cases involving an allegation referral should not be held. After all notification procedures are followed, the case should continue to be processed under normal procedures.

3. Action Documents

If the AC denies review or dismisses the request for review, the denial notice or the dismissal order should not include any language regarding the referral to the EDO.

If the AC grants review, in part based on an abuse of discretion, the document will cite the abuse of discretion standard as well as any other applicable standard of review (e.g., substantial evidence). DGS does not propagate language in the action document when “abuse of discretion” is selected as a basis for review. Therefore, the following language must be added to the action document:

We have determined that there appears to be an abuse of discretion pursuant to [20 CFR 404.970 and/or 416.1470] because [cite specific reason for the determination – for example, the ALJ did not allow him or her to testify].

NOTE:

It is important to remember that although the action document will explain why the AC determined that there appears to be an abuse of discretion in the case, the AC will not state that the ALJ's conduct was unfair, prejudiced, partial, biased, constitutes misconduct or discrimination, or the equivalent. Additionally, the document will not say that the AC referred the allegation to another component.

D. EDO Referrals to DQS

1. General Process

EDO staff will monitor the ¦¦¦ODAR OAO mailbox for email notifications regarding allegations and AC member referrals. Each notification will be reviewed to determine if a referral to DQS is warranted. EDO staff will prepare a list of referrals to DQS and will send it to DQS at least once a month.

Following the email referral to DQS, the AC will have no further involvement with the ALJ complaint investigation process or recommendations about counseling, training, mentoring, or disciplinary action for the ALJ.

2. When EDO Refers an Allegation to DQS

Under SSR 13-1p, the EDO will refer the following allegations to DQS:

  • ALJ's egregious conduct that an AAJ identified, even if the file contains no such allegation.

  • Allegations that fall outside of the AC's jurisdiction, such as an allegation that an ALJ violated personnel regulations or policies.

  • Allegations that an ALJ shows general bias or a pattern of bias or misconduct against a group or particular category of claimants, such as “The ALJ is biased against claimants who receive workers compensation benefits or unemployment benefits,” or “The ALJ shows prejudice toward women.”

The EDO will not generally refer allegations that relate solely to the ALJ's conduct and that are adjudicated under the abuse of discretion standard. For example, the following allegations would not be referred:

  • “The ALJ is biased against me [individually].”

  • “The ALJ is prejudiced because she did not find me disabled.”