I-1-8-13.Division of Quality Service Determines an Investigation is Necessary
Last Update: 4/12/13 (Transmittal I-1-64)
After a review pursuant to HALLEX I-1-8-7, the Division of Quality Service (DQS) in the Office of Disability Adjudication and Review (ODAR) may determine an investigation of an allegation(s) of unfairness, prejudice, partiality, bias, or its equivalent (“allegation(s)”) about an administrative law judge (ALJ) is necessary. If DQS determines an investigation is necessary, DQS, or its designee, will conduct an investigation. See Social Security Ruling (SSR) 13-1p: Titles II and XVI: Agency Processes for Addressing Allegations of Unfairness, Prejudice, Partiality, Bias, Misconduct, or Discrimination by Administrative Law Judges (ALJs).
DQS will work with other Social Security Administration (SSA) components, as necessary, to determine whether ODAR should take any administrative or disciplinary action.
B. ODAR Investigation Process
1. DQS Provides Referral
If DQS determines an investigation of the allegation is necessary, DQS will refer the complaint to the appropriate ODAR Regional Office or National Hearing Center (NHC) Central Office for further investigation and update the ALJ Public Alleged Misconduct Complaints System database (“database”). See HALLEX I-1-8-7 A. If the ALJ who is the subject of the complaint is assigned to a hearing office, DQS will refer the complaint to the Regional Chief Administrative Law Judge (RCALJ) or the designee. If the ALJ who is the subject of the complaint is assigned to a NHC, DQS will refer the complaint the Associate Chief ALJ of the NHC (ACALJ) or the designee.
For cases in which a complaint involves the Deputy Chief Judge, an RCALJ, or an ACALJ, DQS will conduct the investigation and work with the Office of the Chief Administrative Law Judge (OCALJ) to determine the appropriate course of action, if necessary.
DQS will contact the RCALJ or ACALJ where the ALJ is currently assigned, regardless of where the ALJ was assigned when the alleged conduct occurred.
When DQS refers a complaint to the RCALJ or ACALJ, DQS will prepare a memorandum requesting that the Regional Office or the NHC Central Office conduct an investigation. DQS will provide a copy of the complaint and notify the RCALJ or ACALJ of the location of any relevant information in the electronic folder, or if the case is a paper file or information is not available electronically, DQS will mail the information to the RCALJ or ACALJ.
2. ODAR Regional Offices and the NHC Central Office Responsibilities
Upon receipt of a memorandum from DQS to perform an investigation, the Regional Office or NHC Central Office will:
Promptly notify the ALJ of the complaint by giving him or her a copy of the complaint and provide any relevant documentation or hearing recording(s) that are not available electronically,
Generally give the ALJ 60 days to respond to the complaint,
The Regional Office or NHC Central Office will give ALJs 60 days to respond to the complaint unless DQS indicates that a reduced response period is necessary. A reduced response period is only necessary when DQS is required to timely respond about the investigation to a source outside of ODAR, including but not limited to the Office of the Inspector General (OIG) and Members of Congress. In these situations, DQS will notify the Regional Office or NHC Central Office that the ALJ response period will be less than 60 days and the reason for it. The Regional Office or NHC Central Office will provide that information to the ALJ.
Consider whether to grant an extension if the ALJ requests an extension,
Investigate specific matters alleged in the complaint (including a review of the complaint and any relevant documentation, audit of the hearing recording(s), and contact with witnesses, if appropriate), and
Perform any additional investigation, if necessary. This includes working with DQS to address complaints about an ALJ that involve a pattern or practice of misconduct or bias toward a particular group of individuals.
The RCALJ or ACALJ will also prepare an investigative report that summarizes the findings of the investigation and contains a recommendation as to appropriate action regarding the ALJ. Such action could include counseling, training, mentoring, or disciplinary action, up to and including removal. The investigative report could also recommend that no action be taken against the ALJ. The RCALJ or ACALJ will submit his or her report to DQS.
3. DQS's Final Investigative Report
Upon receipt of the RCALJ's or the ACALJ's investigative report, DQS staff will update the database on the status of the complaint. DQS staff will review the report and any additional documentation provided, including the ALJ's response, if any. DQS staff will then prepare a memorandum to DQS management with staff recommendation, which will incorporate the RCALJ's or ACALJ's investigative findings, and update the database on the status of the complaint. DQS management will review the recommendation and determine how to proceed. DQS management will notify the RCALJ or ACALJ in writing whether DQS agrees or disagrees with the RCALJ or ACALJ's recommended course of action, if any, including a recommendation for no action.
a. Agree with Recommendation and No Further Action is Necessary
If DQS management agrees with the RCALJ's or ACALJ's recommendation that no further action is necessary, DQS management will notify the RCALJ or ACALJ in writing that the complaint will be closed. The Regional Office or NHC Central Office will then notify the ALJ that the complaint will be closed.
b. Agree with Recommendation and Further Action is Necessary
If DQS management agrees with the RCALJ's or ACALJ's recommendation that further action is necessary, DQS management will notify the RCALJ or ACALJ in writing and direct him or her to proceed with the recommended course of action. After the action is complete, the RCALJ or ACALJ will notify DQS.
c. Disagree with Recommendation
If DQS management disagrees with the RCALJ's or ACALJ's recommended course of action, DQS management will explain in writing to the RCALJ or ACALJ the reasons it disagrees with the recommendation and suggest additional action that DQS believes is appropriate: including, but not limited to, counseling, training, mentoring, or disciplinary action, up to and including removal. After the action DQS deems appropriate is completed, the RCALJ or ACALJ will notify DQS.
If the RCALJ or ACALJ disagree with DQS regarding the recommended course of action, DQS will work with the RCALJ or ACALJ to resolve the matter.
If the resolution results in action against the ALJ, DQS staff will keep the complaint open until it receives notification from the RCALJ or ACALJ that the action is complete.
If the resolution results in no additional course of action against the ALJ, DQS management will inform the RCALJ or ACALJ that no action will be taken. The Regional Office or NHC Central Office will then notify the ALJ that the complaint will be closed.
4. Notifying the Complainant at Completion of Investigation
When the investigation is complete, DQS will send closeout letters only to the complainant(s), individuals, or entities to whom it sent an acknowledgement letter. See HALLEX I-1-8-7 A.2.b.
The Regional Office or the NHC Central Office will also only send closeout letters to the complainant(s), individuals, or entities to whom it sent an acknowledgement letter. See HALLEX I-1-8-7 B. If the Regional Office or the NHC Central Office sends a closeout letter, the office will also forward a copy of the closeout letter to DQS.
The closeout letter will indicate which office investigated the complaint. The letter will also explain that the Privacy Act prevents disclosure as to whether any action was or was not taken against the ALJ who is the subject of the complaint. See 5 U.S.C. 552a, Privacy Act of 1974.
5. Closing Out a Complaint
DQS will close out a complaint in the database when:
It receives notification from the Regional Office or NHC Central Office that it has completed the course of action, if relevant; and
It receives notification from a Regional Office or the NHC Central Office that a closeout letter has been sent to the complainant(s), if relevant.
C. Involvement of Other Agency Components
In the course of an investigation, DQS may find it necessary to make referrals to other SSA offices and seek advice on what course of action to take. Generally, this will occur when the scope of the investigation extends beyond DQS's area of responsibility or expertise.
1. Within ODAR
DQS may consult with OCALJ or the Appeals Council (AC) when issues arise regarding interpretation of ODAR policy or procedures. In these cases, DQS will send a formal request to OCALJ or the AC seeking advice or guidance on a specific issue. DQS may summarize the relevant facts and concerns at issue but should not make a determination as to whether the allegations are substantiated. OCALJ or the AC will provide a formal response to DQS as soon as practicable with an analysis of any applicable provisions.
After reviewing the formal response from OCALJ or the AC, DQS will determine whether to recommend to the RCALJ or ACALJ that the ALJ would benefit from additional training or development.
2. Outside of ODAR
a. Consultation with Other SSA Components
DQS will also consult with other SSA components, when necessary, such as the Office of the General Counsel (OGC) and the Office of Labor Management and Employee Relations (OLMER), when determining whether to recommend a particular course of action, such as counseling or disciplinary action (up to and including removal).
b. Referrals to Other SSA Components
If DQS substantiated a complaint involving the same issues that could have been raised under SSA's civil rights process, DQS will refer the case to OGC for consideration. See SSR 13-1p. If DQS refers a case for consideration under the civil rights process, DQS will follow the procedures in SSR 13-1p.
In addition, DQS will refer the case to the Office of the Inspector General (OIG) pursuant to agency policy if it discovers through its review and investigation process issues involving fraud, waste, or abuse. DQS may also consult with OIG, if DQS learns that OIG is investigating a related complaint.