I-3-2-35.Analyst Referrals of Possible Policy or Procedure Issues
Last Update: 2/23/15 (Transmittal I-3-98)
A. Referrals for Novel or Unusual Situations
Occasionally, an analyst may observe a novel or unusual situation in which policy or procedural advice is needed to fully evaluate the issue. In these situations, the analyst will consult with an administrative appeals judge (AAJ) regarding the issue. The procedures in Hearings, Appeals, and Litigation Law (HALLEX) manual I-3-3-20 A will apply if the adjudicator is unable to resolve the issue.
B. Referrals for Non-Compliance With Policy or Procedures
When reviewing a file, analysts may observe possible non-compliance with policy or procedure at the hearing level. In some cases, the issue may be resolved with a grant review action. However, in other instances, feedback to the hearing operation may be appropriate. For example, feedback may be appropriate if a hearing decision is supported by substantial evidence, but the administrative law judge (ALJ) includes a lengthy discussion about whether it was correct for the agency to acquiesce to a particular Federal court decision.
Analysts must be careful not to confuse referrals made under this provision with referrals made to the Division of Quality Service. If an allegation of unfairness, prejudice, partiality, bias, misconduct, or discrimination is made against an ALJ, or the AAJ finds the ALJ's conduct egregious, a referral should not be made under this provision. Rather, the procedures in HALLEX I-3-2-25 apply.
When the analyst observes non-compliance with policy or procedure that he or she believes warrants feedback to the hearing operation, the analyst will discuss the matter with an AAJ. If the AAJ feels a referral is appropriate, the instructions in HALLEX I-3-3-20 B apply.