I-2-8-40.Administrative Law Judge Conducts Hearing but Is Unavailable to Issue Decision

Last Update: 3/10/16 (Transmittal I-2-167)

A. Determining Whether an Administrative Law Judge (ALJ) Is “Unavailable”

Occasionally, an ALJ may have conducted a hearing but is “unavailable” to issue a decision for any of the following reasons:

  • Death;

  • Retirement;

  • Resignation; or

  • Illness or other cause resulting in prolonged absence from work of 20 calendar days or more.

When any of these circumstances are present, the Hearing Office Chief Administrative Law Judge (HOCALJ) will first assess whether the unavailable ALJ approved a draft decision. If not, the HOCALJ will reassign the case to another ALJ and the procedures outlined in Hearings, Appeals and Litigation Law (HALLEX) manual I-2-8-40 B below apply. If the unavailable ALJ did approve a draft decision, see HALLEX I-2-8-40 C below.

NOTE:

When an ALJ is absent from work for an extended period of time (but less than 20 calendar days), and a case assigned to an ALJ is designated as critical (see HALLEX I-2-1-40), the HOCALJ has discretion to reassign the case to another ALJ.

B. HOCALJ Reassigns Case to Another ALJ

Except in the limited circumstances outlined in HALLEX I-2-8-40 C below, the HOCALJ will reassign a case, on a rotational basis, to another ALJ when the ALJ who conducted the hearing is unavailable to issue a decision. The ALJ to whom the case is reassigned will review all the evidence of record, including the audio recording of the hearing (see HALLEX I-2-6-40 for more information about hearing recordings).

If the reassigned ALJ intends to issue a fully favorable decision after reviewing the record and the audio recording, the ALJ need not conduct another hearing and will issue a decision. However, if the ALJ intends to issue a less than fully favorable decision based on the information before him or her, or the ALJ requires more information to make a decision, the ALJ will assess whether another hearing is necessary. For example, the ALJ may find another hearing is necessary if relevant expert evidence is needed but was not obtained at the hearing, or the ALJ needs additional testimony to fully evaluate a claimant's allegations of pain and other symptoms.

If the ALJ holds a new hearing, the ALJ will consider all pertinent documentary evidence admitted into the record at the prior hearing, the oral testimony at the prior hearing, and the evidence and testimony adduced at the new hearing when making a decision.

C. HOCALJ Signs a Previously Approved Decision

When an ALJ approved a final draft decision but is unavailable to sign the decision, the HOCALJ has the authority to sign the final decision and any associated orders if the ALJ gave the HOCALJ written authorization to sign the decision on the ALJ's behalf. Any such written authorization must be associated with the claim(s) file and must include the following affirmative statements:

  • The ALJ has read the decision and any associated order;

  • The ALJ concurs with the decision (and any associated order) as written or concurs with the decision (and any associated order) with specified changes previously reviewed and approved by the ALJ before authorization; and

  • “HOCALJ [NAME]” is authorized to sign the decision and any associated order on the ALJ's behalf.

The ALJ may give written authorization via email, fax, or any other writing. However, unless the authorization is provided through an official agency email, the ALJ must sign the written authorization with his or her “wet” signature (facsimile transmission is accepted). The ALJ may not use a rubber stamp or other mechanical signature. A HOCALJ may not use this procedure on his or her own initiative without specific written authorization from the ALJ.

If all of the requirements are met, the HOCALJ may sign the decision and any accompanying order.

NOTE:

Subject to agreement with his or her HOCALJ, when an ALJ anticipates that he or she will be unavailable due to absence from work (even if the absence from work is less than 20 calendar days), the ALJ may choose to use this procedure so long as all of the requirements described above are met.

If the HOCALJ determines, for any reason, that it is not appropriate to sign a decision on the ALJ's behalf, the HOCALJ is not required to do so. If the ALJ is unavailable due to death, retirement, or resignation, and the HOCALJ disagrees with the ALJ's proposed decision, the HOCALJ will discuss the case with the Regional Chief Administrative Law Judge before determining the next appropriate steps.