Effective Dates: 02/23/2015 - Present Previous | Next

Last Update: 2/23/2015 (Transmittal I-3-98)

HA 01320.025 Allegations of Unfairness, Prejudice, Partiality, Bias, Misconduct, or Discrimination by Administrative Law Judges

Renumbered from HALLEX section I-3-2-25

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 about an Administrative Law Judge (ALJ), the AC reviews the allegation under the abuse of discretion standard in Hearings, Appeals and Litigation Law (HALLEX) manual HA 01330.002. See also 20 CFR 404.970 and 416.1470, and Social Security Ruling (SSR) 13-1p, Titles II and XVI: Agency Processes for Addressing Allegations of Unfairness, Prejudice, Partiality, Bias, Misconduct or Discrimination by Administrative Law Judges (ALJs).

As explained in subsection B, 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 egregious ALJ conduct that warrants referral to DQS, even when no allegation or request for review is submitted. These procedures are outlined in subsection 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:

  • •

    OAO staff preparing a case for workup will enter a remark or case note in the applicable case processing system(s) to alert the analyst of the allegation.

  • •

    An analyst will identify the allegation and notify the OAO Executive Director's Office (EDO) of the allegation based on instructions in subsections B.2 and B.3.

  • •

    An appeals officer (AO) or administrative appeals judge (AAJ) will ensure that allegations are processed in accordance with these procedures. If the applicable case processing system does not document notification to the EDO, the AO or AAJ may either notify the EDO or return the case to the assigned analyst to follow the instructions in subsections B.2. and B.3.

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 the ALJ 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 processed under these instructions, the analyst should consult with an AAJ.

NOTE 1: 

General statements that there was an abuse of discretion, without an accompanying allegation of unfairness, prejudice, partiality, bias, misconduct, or discrimination, or without a statement suggesting that the ALJ's conduct was improper or unethical, are not processed under these instructions.

NOTE 2: 

Information regarding another person who is not a party to the proceeding that is submitted to support an allegation should not be associated with the claim(s) file (see HALLEX HA 01320.024).

NOTE 3: 

Analyst observations of possible non-compliance with policy or procedure that may warrant feedback to the hearing operation, are also not processed under these instructions (see HALLEX HA 01320.035).

2. Analyst's Workup of the Case

The analyst must analyze the case, prepare a draft of the action document, and submit the case to an adjudicator before notifying the EDO of the allegation under subsection B.3.

a. Case Analysis

The analyst will follow usual procedures in making a recommendation to the AC, using the applicable procedures in HALLEX HA 01320. 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 making a recommendation to the AC, 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 HA 01330.002. 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 case analysis, the analyst will make a recommendation about whether there was an abuse of discretion, or whether the allegation supports another basis for review. However, the analyst must not include findings on 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.

EXAMPLE 1: 

It would be appropriate to state, “The claimant alleges the ALJ was biased, but the record does not support an abuse of discretion.” However, it would not be appropriate to state, “The ALJ showed bias against the claimant, and the record supports an abuse of discretion.”

EXAMPLE 2: 

It would be appropriate to state, “The claimant alleges the hearing was unfair because the ALJ did not advise of the right to representation.” However, it would not be appropriate to state, “The hearing was unfair.”

b. Case Processing System Entries

In every case involving an allegation, the analyst will check the contention of “Unfair Hearing Allegation” in the case analysis section.

NOTE: 

The entry in the applicable case processing system 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” as a basis for review in the applicable case processing system(s) and discuss any other related issue(s) in the case analysis.

c. Action Documents

All action documents involving an allegation will:

  • •

    acknowledge the allegation(s) (by direct quotation when possible);

  • •

    state that the AC considered the allegation(s) under the abuse of discretion standard; and

  • •

    address whether the AC found an abuse of discretion, using the applicable language below.

NOTE: 

The document will not state whether the AC agrees or disagrees with the allegation(s) or whether the AC referred the allegation to another component.

  1. i.  

    No Abuse of Discretion - Denial or Dismissal

    If the AC determines there was no abuse of 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, applies:

    With your request for review, you alleged that the Administrative Law Judge [quote the specific allegation]. Under our rules described below, we considered your allegations solely as they relate to your case for abuse of discretion. After reviewing the entire record, [including the hearing recording,] we determined that the Administrative Law Judge did not abuse their discretion and none of the other reasons in our rules existed to review your case. We have completed our action on your request for review.

    NOTE: 

    If the AC issues a dismissal based on standing only (see HALLEX HA 01340.004 and HA 01340.005B.3.), then the dismissal order should not contain the language noted above.

  2. ii.  

    No Abuse of Discretion - Remand or Decision

    If the AC determines there was no abuse of discretion but another basis exists to grant review, the applicable language below must be in the action document.

    For remands and decisions, the following language applies:

    Additionally, the claimant alleged that the Administrative Law Judge [quote the specific allegation]. The Appeals Council considered the allegations solely as they relate to abuse of discretion. After reviewing the entire record, [including the hearing recording,] the Appeals Council determined that the Administrative Law Judge did not abuse their discretion in this case. The Council found, however, another reason to grant review.

    For interim actions, the following language applies:

    With your request for review, you also alleged that the Administrative Law Judge [quote the specific allegation]. Under the rules explained above, we considered your allegations solely as they relate to your case for abuse of discretion. After reviewing the entire record, [including the hearing recording,] we have determined that the Administrative Law Judge did not abuse their discretion in your case. We found, however, another reason to review your case.

    NOTE: 

    Except in unusual circumstances, if the AC does not find an abuse of discretion, a remand order need not direct that a different ALJ handle the case. When the AC does direct the case to a different ALJ based on an allegation, the order should specifically identify the conduct or language that justifies the reassignment.

  3. iii.  

    Abuse of Discretion - Remand or Decision

    If the AC determines there was an abuse of discretion, the action document should cite the abuse of discretion standard as well as any other applicable standard of review (e.g., substantial evidence).

    For remands and decisions, the following language applies:

    Additionally, the claimant alleged that the Administrative Law Judge [quote the specific allegation]. The Appeals Council considered the allegations solely as they relate to the abuse of discretion. After reviewing the entire record, [including the hearing recording,] the Appeals Council has determined that the Administrative Law Judge abused their discretion because [cite specific reasons for the determination].

    For interim actions, the following language applies:

    With your request for review, you also alleged that the Administrative Law Judge [quote the specific allegation]. Under our rules explained above, we considered your allegations solely as they relate to your case for abuse of discretion. After reviewing the entire record, [including the hearing recording,] we determined that the Administrative Law Judge abused their discretion because [cite specific reasons for the determination].

    NOTE: 

    Ordinarily, the AC will direct that a different ALJ handle the case on remand when it finds an abuse of discretion, regardless of whether the claimant specifically requested such a reassignment. However, this is not required. There may be circumstances in which an AAJ determines that it is unnecessary to direct the case to a different ALJ on remand.

3. Procedures to Document and Submit the Notification to the EDO

a. Document in Applicable Case Processing System(s)

Staff will document the notification in the “Remarks” section of the applicable case processing system(s) by creating a “Special Attention” remark. The “Remarks” annotation will read, “Bias referral submitted in OAOCPS on XX/XX/XXXX.”

b. Complete the Notification in OAOCPS

Staff will complete the notification using the “Create Referral” tool contained in the “Referral” section of the Office of Appellate Operations Case Processing System (OAOCPS). Staff will select “Bias Allegation/AC Referral” as the referral type and then select “Non-AC Member Referral”.

If the notification is made by an analyst, the analyst should complete the referral only after completing the action document(s) and submitting the case to the adjudicator. Do not hold the case after notifying the EDO of the allegation. Continue to process the case using normal procedures.

C. AC Identifies Possible Egregious Conduct that May Warrant Referral to DQS

If an analyst or AO believes that an ALJ may have engaged in egregious conduct, which is defined as conduct that shows unfairness, prejudice, partiality, bias, misconduct, discrimination, or the equivalent, the analyst or AO should bring that case to the attention of an AAJ, even when no allegation or request for review is submitted. In these situations, the AAJ will determine whether notification to the EDO is appropriate.

These procedures do not apply if the AAJ determines that the ALJ abused their discretion, but did not engage in egregious conduct. If the AAJ finds the ALJ abused their discretion and may have engaged in egregious conduct, the AAJ will notify the EDO using these procedures. The AAJ may notify the EDO of the conduct by following the instructions in subsection C.1. or by returning the case to the analyst or AO to complete the notification. If an AAJ believes egregious conduct occurred, a denial of a request for review is not appropriate.

NOTE: 

AAJ observations of possible non-compliance with policy or procedure at the hearing level that may warrant feedback to the hearing operation are not processed under these instructions, see HALLEX HA 01330.020.

1. Procedures to Document and Submit the Notification to the EDO

a. Document in Applicable Case Processing System(s)

Staff will document the notification in the “Remarks” section by creating a “Special Attention” remark. The “Remarks” annotation will read “Bias referral submitted in OAOCPS on XX/XX/XXXX.”

b. Complete the Notification in OAOCPS

Staff will complete the referral using the “Create Referral” tool contained in the “Referral” section of the Office of Appellate Operations Case Processing System (OAOCPS). Staff will select “Bias Allegation/AC Referral” as the referral type and then select “AC Member Referral”.

If the notification is made by an analyst, the analyst should send the notification only after completing the action document(s) and submitting the case to the adjudicator. After notifying the EDO, the AC will not hold the case and will continue to process the case using normal procedures.

2. Action Documents

If the AC denies review or dismisses the request for review, the denial notice or the dismissal order should not include any language regarding the notification to the EDO.

If the AC grants review, citing the abuse of discretion standard as well as any other applicable standard of review (e.g., substantial evidence), the following language applies:

The Appeals Council determined that the Administrative Law Judge abused their discretion because [cite specific reason for the determination – for example, the ALJ did not allow the claimant to testify].

NOTE: 

It is important to remember that although the action document will explain why the AC determined there appears to be an abuse of discretion in the case, the AC will not state that the ALJ's conduct was unfair, prejudiced, partial, biased, constitutes misconduct or discrimination, or the equivalent. Additionally, the document will not say that the AC referred the conduct to another component.

D. OAO Referrals to DQS

1. General Process

Designated staff will monitor OAOCPS for notifications. Each notification will be reviewed to determine if a referral to DQS is warranted. Designated staff will prepare and send a list of referrals to DQS on a routine basis.

After sending the referral list to DQS, OAO will have no further involvement with the ALJ complaint investigation process or recommendations about counseling, training, mentoring, or disciplinary action for the ALJ.

2. When Referral to DQS is Warranted

Under SSR 13-1p, OAO will refer the following to DQS:

  • •

    ALJ's possible egregious conduct that an AAJ identified, even if the file contains no such allegation.

  • •

    Allegations that fall outside the AC's jurisdiction, such as an allegation that an ALJ violated personnel regulations or policies.

  • •

    Allegations that an ALJ shows general bias or a pattern of bias or misconduct against a group or particular category of claimants, such as “The ALJ is biased against claimants who receive workers compensation benefits or unemployment benefits,” or “The ALJ shows prejudice toward women.”

The EDO will not generally refer generalized allegations that are adjudicated under the abuse of discretion standard. For example, the following allegations would not be referred:

  • •

    “The ALJ is biased against me [individually].”

  • •

    “The ALJ is prejudiced because the ALJ did not find me disabled.”

  • •

    “I did not get a fair hearing.”

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HA 01320.025 - Allegations of Unfairness, Prejudice, Partiality, Bias, Misconduct, or Discrimination by Administrative Law Judges (I-3-2-25) - 02/23/2015
Batch run: 06/12/2025
Rev:02/23/2015