Last Update: 9/08/05 (Transmittal I-3-36)
A claimant or representative may allege in writing that a hearing was unfair because of misconduct or bias on the part of an ALJ. The allegation may be based on an on-the-record or an off-the-record action of the ALJ. The Administrative Procedure Act (5 USC 556(b)) provides that an agency shall make its determination on the allegation a part of the administrative record and decision in the case. However, an agency may dismiss the allegation summarily if it is insufficient upon its face. For example, the claimant may simply state that the hearing was unfair because the ALJ issued an unfavorable decision. The analyst will determine the validity of on-the-record allegations by examining the record and auditing the hearing recording. (See I-3-1-52.) Off-the-record actions of the ALJ which may result in allegations of an unfair hearing may include conduct such as alleged intimidation, innuendo, improper attitude, inappropriate facial expression, etc.
The analyst must audit the entire hearing recording(s) or obtain a transcript of the hearing, make notes relating to the allegation(s), and place the notes in the appeals file. The analyst must also prepare an analysis of the merits of the case and the allegation of an unfair hearing and make appropriate recommendations concerning these matters.
When the analyst believes that the hearing was fair and that the allegation based on an on-the-record ALJ action is not supported in the record, the analyst will do one of the following:
If there is no other basis for granting review, the analyst will recommend denial of the request for review and prepare an appropriate statement to include in the denial notice. The statement must contain the Appeals Council's findings and conclusions concerning the allegation of an unfair hearing.
When an analyst recommends that the Appeals Council grant review to remand the case for reasons unrelated to the allegation of unfair hearing, the analyst will prepare an appropriate statement to include in the remand order. The statement must contain the Appeals Council's findings and conclusions concerning the allegation of an unfair hearing.
When an analyst recommends that the Appeals Council grant review and issue a decision for reasons unrelated to the allegation of unfair hearing, the decision must contain the Appeals Council's findings and conclusions concerning the allegation of an unfair hearing.
In all of the above situations, a copy of the complaint must be referred to the Office of the Chief Administrative Law Judge (OCALJ). The analyst must prepare a memorandum from the AAJ to OCALJ through the Executive Director of the Office of Appellate Operations (OAO) and advise the branch staff to release it after the Appeals Council's action with the following attached:
copy of allegation or complaint.
copy of the signed and dated Appeals Council action.
name of the ALJ.
any other information pertinent to the referral, e.g., copy of the ALJ's decision and any audit notes or copies of the hearing transcripts which may have been obtained in order to evaluate the complaint. (See the Appeals Text Guide.)
The analyst may conclude that the hearing was fair but the ALJ's action was irregular or inappropriate. For example, if the ALJ argued with the claimant's representative during the hearing, the analyst will proceed with an appropriate recommendation for action and include a discussion of the allegation in the analysis and action document. The action document must indicate that the Appeals Council's study of the hearing testimony and other evidence of record showed that the hearing was fair and that the ALJ's action did not interfere with the claimant's right to due process. In addition, the analyst will prepare a memorandum for referral to OCALJ as explained in B.2.b. above.
If the analyst believes the allegation of unfair hearing is supported by the record, and that a fully favorable decision is warranted, the analyst should proceed with that recommendation and prepare a decision. The Appeals Council's decision must include its findings and conclusion that the unfair hearing allegation is supported. The unfair hearing allegation will then be referred to OCALJ through the Executive Director, OAO after the Appeals Council's action is completed. The analyst will prepare a memorandum from the AAJ with attachments, as described in B.2.b. above, with instructions to the OAO branch staff to release it after the Appeals Council's action.
If the analyst believes the allegation of unfair hearing is supported by the record, but a fully favorable decision is not warranted, the analyst will recommend that the Appeals Council remand the case to another ALJ for a new hearing and decision. The remand order must include the Appeals Council's findings and conclusion that the unfair hearing allegation is supported. The AAJ will provide OCALJ with information relating to the unfair hearing as described in a. above.
In other cases in which the Appeals Council does not have jurisdiction to take action, the AAJ will refer a case involving substantiated allegations of an unfair hearing to OCALJ through the Executive Director, OAO, as described in a. above.
The analyst will audit the entire hearing recording(s) or obtain a hearing transcript, make notes relating to the allegation, and place the notes in the appeals file. The analyst will also prepare an analysis of the merits of the case and the allegation(s), and make appropriate recommendations. Because these allegations involve off-the-record ALJ action, the case analysis should include a recommendation whether the case should be referred to OCALJ to conduct an examination.
If the analyst believes the hearing was fair, the allegation(s) based on an off-the-record ALJ action was unsubstantiated, and there is no other basis for recommending that the Appeals Council grant review, the analyst will recommend denial of the request for review and prepare a statement to include in the denial notice. The statement will contain the Appeals Council's findings and conclusion that the allegation is not supported.
If the analyst recommends that the Appeals Council grant review for reasons unrelated to the allegations and remands the case or issues a decision, the analyst will prepare an appropriate statement to include in the remand order or decision. The statement will contain the Appeals Council's findings and conclusion that the allegation is not supported.
In these cases, the analyst will prepare a referral to OCALJ following the procedures in B.2.b. above.
When an allegation of unfair hearing is based on an off-the-record ALJ action, and the allegation(s) is not frivolous or insufficient on its face, the analyst will proceed with an analysis of the case including a recommendation on both the merits of the case and the allegation(s).
When the record supports a recommendation for fully favorable action, the analyst should proceed with the recommendation. The analyst will prepare a referral to OCALJ which will be forwarded after the Appeals Council completes its action on the case.
When the record supports a recommendation for remand for reasons unrelated to the unfair hearing allegation, the analyst should proceed with that recommendation. The proposed remand order will include an instruction that the case must be assigned to another ALJ. If the Appeals Council agrees, the analyst will prepare a referral to OCALJ which will be forwarded after the remand order is released.
In these cases, the procedures set out in B.4.a. above should be followed in referring the case to OCALJ.
In all other circumstances, the analyst must prepare a recommendation setting forth the appropriate action on the case pending the outcome of an examination of the unfair hearing allegation. The AAJ(s) will discuss with the Executive Director, OAO the method for addressing the unfair hearing allegation.
In addition to an allegation made by a claimant or representative, an individual AAJ may ascertain from his or her review of the record that there may be evidence of misconduct or bias by an ALJ. In such cases, the AAJ will request that the analyst audit the hearing recording(s) or obtain a transcript of the hearing. As appropriate, the AAJ will refer the matter to OCALJ according to the procedures described in B. and C. above.
In rare instances, the Appeals Council is faced with the issue of alleged judicial misconduct by an ALJ with respect to the disposition of general types of cases. For example, an allegation of this nature may contend that a particular ALJ is biased against all disability claimants. When such allegations are made, or when the Appeals Council's own review suggests such misconduct by an ALJ, the Appeals Council will determine whether the issue warrants further proceedings beyond the review of the individual case as follows:
Based on issues in individual cases, whether raised by the claimant/representative or sua sponte, the AAJ determines whether Jurisdictional Group consideration is warranted.
The AAJ presents the issue to the Group which will determine whether to conduct further review within the Group. If the Group conducts a review and determines that further action is necessary, it will recommend to the Executive Director, OAO that the matter be referred to OCALJ.