I-3-2-25.Allegations of Unfairness, Prejudice, Partiality, Bias, Misconduct, or Discrimination by Administrative Law Judges

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-3-2-25 B.3.

• 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 the ALJ 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, the analyst should consult with an AAJ.

a. Case Analysis

The analyst will follow usual procedures in making a recommendation to the AC, using the applicable procedures in HALLEX I-3-2. 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 Appeals Review Processing System (ARPS) analysis, the analyst will make a recommendation about whether the ALJ abused their 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”).

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.

d. No Abuse of Discretion - Denial or Dismissal

If the AC determines that the ALJ did not abuse their 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]. Under our rules described below, we considered your allegations solely as they relate to your case for abuse of discretion. After reviewing the entire record, [including the hearing recording,] we determined that the Administrative Law Judge did not abuse their discretion and none of the other reasons in our rules existed to review your case. We have completed our action on your request for review.

e. No Abuse of Discretion - Remand or Decision

If the AC determines the ALJ did not abuse their 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:

Additionally, the claimant alleged that the Administrative Law Judge [quote the specific allegation]. The Appeals Council considered the allegations solely as they related to abuse of discretion. After reviewing the entire record, [including the hearing recording,] the Appeals Council determined that the Administrative Law Judge did not abuse their discretion in this case. The Council found, however, another reason to grant review.

For interim actions, the following language applies:

With your request for review, you also alleged that the Administrative Law Judge [quote the specific allegation]. Under the rules explained above, we considered your allegations solely as they relate to your case for abuse of discretion. After reviewing the entire record, [including the hearing recording,] we have determined that the Administrative Law Judge did not abuse their discretion in your case. We found, however, another reason to review your case.

f. Abuse of Discretion - Remand or Decision

If the AC determines the ALJ did abuse their discretion, the document should cite the abuse of discretion standard as well as any other applicable standard of review (e.g., substantial evidence).

For remands and decisions, select “Finding an abuse of discretion” in the applicable template and insert the following language:

Additionally, the claimant alleged that the Administrative Law Judge [quote the specific allegation]. The Appeals Council considered the allegations solely as they relate to the abuse of discretion. After reviewing the entire record, [including the hearing recording,] the Appeals Council has determined that the Administrative Law Judge abused their discretion because [cite specific reasons for the determination].

For interim actions, select “Finding an abuse of discretion” in the applicable template, and insert the following language:

With your request for review, you also alleged that the Administrative Law Judge [quote the specific allegation]. Under our rules explained above, we considered your allegations solely as they relate to your case for abuse of discretion. After reviewing the entire record, [including the hearing recording,] we determined that the Administrative Law Judge abused their discretion because [cite specific reasons for the determination].

a. Notify the EDO

Send an email notification to the EDO at ^DCARO 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).

If not available in an electronic claim file, the analyst will attach a copy of the draft AC action document to the notification email.

b. Document Allegation in 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.”

If the referral is made by an analyst, the analyst should send the referral only after completing the action document(s) and placing the case with the adjudicator in “final complete.” Do not hold the case after notifying the EDO of the allegation. Continue to process using normal procedures.