Just to help you be aware of the NEW Rules:
CENTRAL OFFICE ISSUANCES
Hearings, Appeals and Litigation Law (HALLEX) Manual
HALLEX I-3-1 Allegations of Unfairness, Prejudice, Partiality, Bias, Misconduct, or Discrimination by Administrative Law Judges (ALJ)
Audience: ODAR HQ and ODAR Field Users
Program: All Programs
Summary: This transmittal amends section I-3-1-25 of the Hearings, Appeals and Litigation Law (HALLEX) manual to update and clarify procedures for referring allegations of administrative law judge bias to the Office of Appellate Operations Executive Director’s Office. This issuance explains that analysts and adjudicators should not refer incidents of possible non-compliance with agency policy under the bias referral process; specific instructions for those referrals exist in other HALLEX sections. The issuance also clarifies instructions for how to refer bias allegations in cases with a paper claim(s) file and updates the language to acknowledge a bias allegation in Appeals Council notices.
policynet.ba.ssa.gov/reference.nsf/lnx/06172014010353PMI-3-1-25.Allegations of Unfairness, Prejudice, Partiality, Bias, Misconduct, or Discrimination by Administrative Law Judges (ALJ)
Last Update: 6/17/14 (Transmittal I-3-67)
A. General
If, in conjunction with a request for review, the Appeals Council (AC) receives an allegation of unfairness, prejudice, partiality, bias, misconduct, discrimination, or its equivalent (allegations) about an ALJ, the AC reviews the allegation under the abuse of discretion standard in Hearings, Appeals and Litigation Law Manual (HALLEX) manual I-3-3-2. See also 20 CFR 404.970 and 416.1470, and Social Security Ruling (SSR) 13-1p.
As explained in I-3-1-25 B below, while the AC evaluates all allegations under this standard of review and addresses certain allegations in the action documents, it also may refer certain allegations to the Division of Quality Service (DQS) for handling.
Additionally, the AC may independently identify ALJ conduct that warrants referral to DQS, even when no allegation or request for review is submitted. These procedures are outlined in HALLEX I-3-1-25 C.
B. Processing Allegations
1. Identifying an Allegation
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-3-1-25 B.2.
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 she 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, he or she should consult with an AAJ.
NOTE:
When an analyst observes possible non-compliance with a policy or procedure that may warrant feedback to the hearing operation, but does not warrant a referral to DQS under these provisions, see HALLEX I-3-1-13.
2. Procedures to Refer an Allegation
a. Notify EDO
Send an email notification to the EDO at |||ODAR 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).
NOTE:
The email should only contain the information listed above. It should not include any language suggesting the ALJ's conduct was unfair, prejudiced, partial, biased, constituted misconduct or discrimination, or the equivalent. If it was necessary to audit the hearing recording, identify where in the hearing recording the alleged conduct appears. If the case involves a paper file and the analyst identifies the allegation, the analyst will attach to the notification email an electronic copy of the draft AC action document and certify the date the analyst sent the other paper documents relating to the allegation to the EDO.
When necessary, send copies of documents related to the allegation to the EDO. If the case is fully electronic and the document(s) containing the allegation is in the electronic file, no documents need to be copied or sent to the EDO. If the case is a paper file, place a tab by the allegation of unfairness, prejudice, partiality, bias, misconduct, discrimination, or the equivalent, by the ALJ and send copies of the following to the EDO:
the hearing decision(s) or dismissal(s);
the document(s) containing the allegation (HA-520, letter, representative's brief, etc.);
any other document(s) the AC believes warrants consideration;
the hearing recording(s) burned to a compact disc (CD); and
if available, a written transcript of the hearing.
Create a standard routing sheet addressed to:
OAO Executive Director's Office
Attn: Bias Officer
5107 Leesburg Pike, Suite 1400
Falls Church, VA 22041
For employees in Falls Church, Virginia, deliver the copied materials by hand to the EDO.
For employees at duty stations other than Falls Church, consult with your supervisor to hand deliver the copied materials to your duty station's designated collection location.
b. Document the Allegation in the Appeals Review Processing System (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.”
NOTE:
Do not hold the case after notifying the Executive Director's Office of the allegation. The case should continue to be processed under normal appeals procedures.
3. Analyst's Workup of the Case
The analyst must first ensure all the procedures in HALLEX I-3-1-25 B.2. are completed before analyzing a case.
a. Case Analysis
The analyst will follow usual procedures in making a recommendation to the AC, using the applicable procedures in HALLEX I-3-1-0. 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 ARPS analysis, the analyst will make a recommendation about whether the ALJ abused his or her 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”).
NOTE:
The ARPS entry merely documents the allegation. It does not signify that the analyst, AO, or AAJ agrees with the allegation.
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).
However, the analyst will NOT:
check the box for “Unfair hearing” (found in the “Case Analysis – Procedural” section, under the heading “Procedural Issues”); nor
cite the reason for remand as “ALJ Misconduct/Unfair Hearing” (found in the “Case Analysis – Analysis Outcome” section, under the heading “Remand reasons,” under “Miscellaneous”).
These boxes are obsolete and should never be used in any case.
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.
NOTE:
The document will not say that the AC referred the allegation to another component.
d. No Abuse of Discretion - Denial or Dismissal
If the AC determines that the ALJ did not abuse his or her 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