I-2-1-60.Disqualification of an Administrative Law Judge Assigned to a Case

Last Update: 8/16/24 (Transmittal I-2-257)

A. General

Federal ethics rules require all federal employees, including administrative law judges (ALJs), to recuse themselves from an official matter due to a financial conflict of interest under 18 USC § 208, a relationship with a party or their representative under 5 CFR 2635.502, or when participation in a matter gives the appearance of a lack of impartiality, see 5 CFR 2635.101(b)(8), (b)(14), and 2635.502(a)(2). ALJs considering recusal under these ethics rules may seek fact-specific guidance from an agency ethics attorney by emailing ^OGC Ethics Questions. An ethics attorney will then advise on whether the ethics rules require recusal from the case.

Under 20 CFR 404.940 and 416.1440, an administrative law judge (ALJ) must also disqualify or recuse themself from adjudicating a case if the ALJ: (1) is prejudiced or partial with respect to any party, or (2) has any interest in the matter pending for decision. An interest in the matter pending for decision generally refers to a financial or personal interest in the outcome of the case.

Although our program rules do not require it, an ALJ may withdraw from a case if the ALJ's participation in the case would give an appearance of impropriety. An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the ALJ's honesty, integrity, objectivity, temperament, or fitness to serve as an ALJ is impaired.

However, disqualification is not a matter of personal preference or reluctance to handle a particular case and must only occur when it is necessary. An ALJ must have reasonable and proper grounds for disqualifying themself.

NOTE:

ALJs will make recusal decisions on a case-by-case basis, considering the ALJ's ability to provide a fair hearing to the claimant. ALJs may not submit blanket recusals on multiple cases, regardless of the reason.

B. ALJ Voluntarily Disqualified

1. Notice Not Required

If the ALJ disqualifies themself from a case on their own initiative, and the hearing office has not sent the notice of hearing to the claimant, the ALJ need not send notice of the disqualification to the claimant.

2. Notice Required

If the hearing office has sent the notice of hearing to the claimant and the ALJ is later disqualified, the ALJ must notify the claimant of the disqualification. This notice requirement applies regardless of whether the disqualification is before, during, or after a hearing. The ALJ is not required to provide the claimant with the specific reason(s) for the disqualification but may voluntarily choose to do so.

a. Before the Scheduled Hearing

If the ALJ knows of a reason for disqualification before the hearing, the ALJ must disqualify themself before the date of the hearing. If the ALJ disqualifies themself either because of an objection received from a claimant, or on their own initiative after the notice of hearing is sent to the claimant, the ALJ must notify the claimant of the disqualification in writing, informing the claimant that:

  • The date set for the hearing has been cancelled (if cancellation is necessary); and

  • The claimant will receive an amended notice of hearing when another ALJ is assigned to conduct the hearing.

b. At the Hearing

Under some circumstances, an ALJ may not be aware of the need to disqualify themself until the time of the hearing.

If the ALJ needs to disqualify themself at the hearing, the ALJ's oral statement on the record is sufficient notice to the claimant. After stating their need to disqualify themself on the record, the ALJ will inform the claimant that another ALJ will be assigned to the case and the hearing will be rescheduled.

c. After the Hearing

If the reason for disqualification comes to the ALJ's attention after a hearing is held, the ALJ will notify the claimant of the disqualification in writing and associate the writing with the record. The writing must inform the claimant that:

  • The ALJ is disqualifying themself;

  • Another ALJ will be assigned to decide the case;

  • The newly assigned ALJ will determine whether a supplemental hearing is necessary and will provide notice to the claimant if another hearing is needed; and

  • The newly assigned ALJ will issue the decision in the case.

NOTE:

The newly assigned ALJ must consult HALLEX I-2-1-55 F.2 when determining whether another hearing is needed.

C. Claimant Objects to the ALJ Assigned to a Case

If a claimant objects to the ALJ assigned to their case, they must do so at the earliest opportunity. The ALJ will consider the objection and timely determine whether to proceed or withdraw.

If the ALJ decides disqualification is appropriate, the above procedures in subsection B apply.

When sufficient time and facts allow an ALJ to decide before the hearing that the claimant's reasons for objecting do not warrant disqualification, the ALJ will set forth in writing the reason(s) disqualification is not warranted, send the writing to the claimant and appointed representative (if any), associate the writing with the record, and reiterate that decision in the opening statement at the hearing. If there is insufficient time before the hearing for the ALJ to respond or to obtain information necessary to decide the issue, the ALJ may obtain any needed information at the hearing and set forth the reason(s) for their decision regarding disqualification on the record during the hearing.

If the claimant objects at the hearing to the assigned ALJ and the ALJ declines at the hearing to disqualify themself, the ALJ will set forth the reason(s) for their decision on disqualification on the record during the hearing.

If the claimant objects to the assigned ALJ after the hearing but before the decision is issued and the ALJ decides that the claimant's reasons for objecting do not warrant disqualification, the ALJ will set forth the reason(s) for the decision on disqualification in the jurisdiction and procedural history section of the hearing decision.

NOTE:

If the ALJ does not withdraw and the claimant objects to the hearing decision, the claimant may use non-disqualification as a basis for appeal to the Appeals Council (AC). See 20 CFR 404.940 and 416.1440. The AC will process any allegations of bias or unfair treatment raised with the claimant's request for review pursuant to Hearings, Appeals and Litigation Law (HALLEX) manual I-3-3-2 and I-3-2-25. See also 20 CFR 404.970 and 416.1470, and Social Security Ruling 13-1p: Titles II and XVI: Agency Processes For Addressing Allegations of Unfairness, Prejudice, Partiality, Bias, Misconduct, or Discrimination by Administrative Law Judges (ALJs).

D. Special Considerations for Newly Assigned ALJ

When an ALJ is assigned to conduct a hearing in a case in which another ALJ has disqualified themself and the claimant is aware of the disqualification of the first ALJ, the newly assigned ALJ must mention the disqualification as part of the procedural history in their opening statement at the hearing. However, the ALJ need not discuss the reasons for the disqualification.