I-3-3-5.Administrative Appeals Judge (AAJ) Referrals for Possible Policy or Procedure Issues
Last Update: 1/31/14 (Transmittal I-3-60)
A. Referrals for Novel or Unusual Situations
An AAJ may observe a novel or unusual situation in which policy or procedural advice is needed to fully evaluate the issue, or the issue may have been brought to the AAJ's attention by an appeals officer or analyst. For analyst instructions, see Hearings, Appeals, and Litigation Law (HALLEX) manual I-3-2-35.
AAJs will generally refer matters when:
The issue involves a broader impact on the Appeals Council (i.e., the issue appears to be new but will arise in other situations); or
The AAJ is unable to resolve the issue.
In either situation, an AAJ will discuss the issue with his or her Division Chief Administrative Appeals Judge (DCAAJ). If the DCAAJ agrees further discussion is necessary, the DCAAJ will raise the issue in discussions with other DCAAJs and the Executive Director's Office (EDO), or, when appropriate, raise the issue directly to the Executive Director or Deputy Executive Director. The appropriate course of action decided by management will depend on the particular issue and circumstance.
B. Referrals for Non-Compliance With Policy or Procedures
An AAJ may discover, or have brought to his or her attention, an issue of non-compliance with policy or procedure at the hearing level. In some cases, the issue may be resolved in a grant review action. In other instances, feedback to the hearing operation may be appropriate.
In situations where there is an allegation of unfairness, prejudice, partiality, bias, misconduct, or discrimination made against an administrative law judge (ALJ), or an AAJ believes an ALJ's behavior is egregious, the AAJ will use the procedures in HALLEX I-3-2-25 rather than the instructions in this provision.
If an AAJ believes an ALJ's behavior rises to the level of possible fraud or criminal violation, the AAJ will use the instructions in HALLEX I-1-3-9.
When the AAJ determines that feedback may be appropriate, the AAJ will discuss the issue with his or her DCAAJ. If the DCAAJ agrees a referral is appropriate, the AAJ will prepare a draft memorandum to the Executive Director for the DCAAJ's signature. The DCAAJ will electronically sign the memorandum and forward it to |||ODAR OAO with the subject line “OCALJ Referral.” The Executive Director will review the memorandum and determine whether to refer the case to the Office of the Chief Administrative Law Judge.