Disqualification or Substitution of Administrative Law Judges

The Administrative Procedure Act requires an Administrative Law Judge (ALJ) to be impartial.[i] An administrative hearing must be attended with every element of fairness and with the very appearance of complete fairness.[ii] The denial of a fair hearing violates the basic requirement of due process [iii]

ALJs can be disqualified on the grounds of bias, prejudice or interest.  When an ALJ prejudges a case or labors under a personal ill will towards a party, s/he can be disqualified for bias.  Since the role of the ALJ is similar to that of a trial judge, common-law rules of disqualification for conflict of interest that apply to judges also applies to administrative tribunals.  So long as the ALJs’ actions do not encroach on the prosecutorial function to an extent that the prohibition on commingling of powers is violated, the ALJs’ action is not biased.

A party challenging the constitutionality of an administrative adjudication on the ground of bias or prejudice of the decision maker must overcome the strong presumption of honesty and integrity.  A party challenging an administrative action must present convincing evidence that the combination of functions in the same individuals poses a risk of actual and substantial bias or prejudgment.  As such, the practice must be forbidden for the guarantee of due process to be preserved.[iv]

Also, an ALJ may withdraw from a proceeding whenever s/he deems him/herself disqualified.  Any party may request an ALJ, at any time following the ALJ’s designation and before his/her decision, to withdraw on ground of personal bias or disqualification.  A party concerned may, promptly upon discovery of the alleged facts, file with the ALJ an affidavit setting forth in detail the matters alleged to constitute grounds for disqualification.  If the ALJ believes that the affidavit is filed with due diligence and is sufficient on its face, s/he shall forthwith disqualify himself/herself and withdraw from the proceeding.  If the ALJ does not disqualify himself/herself and withdraw from the proceeding, s/he shall so rule upon the record, stating the grounds for his/her ruling and proceed with the hearing.  If the hearing has closed, s/he shall proceed with issuance of his/her decision.

When an ALJ is disqualified or otherwise becomes unavailable, the governor may appoint a substitute.[v] Although the Administrative Procedure Act is silent on substituted ALJs, the Act speaks to the situation of an ALJ becoming unavailable or disqualified.[vi] Under the Administrative Procedures Act, a hearing examiner who has retired before making a recommended decision is deemed to have become unavailable.[vii] Accordingly, every action taken by the substituted ALJ is as effective as if taken by the disqualified ALJ.

On substitution, the agency shall decide on further proceedings.  In certain cases a party may demand a de novo hearing.  A de novo hearing is required in cases where the agency decision depends mainly on credibility of a witness.[viii] Usually parties will not be prejudiced by allowing a de novo hearing on substitution of hearing officers.  However, due process is violated when the replacement is after his/her rendering a final decision.  The Administrative Procedure Act allows substitution of ALJs without a de novo proceeding only where the original examiner is unavailable and either (1) the case is not one in which the resolution of conflicting testimony requires a determination of the credibility of the witnesses or (2) if it is a case in which credibility is involved, and the parties agree to proceed without a de novo administrative proceeding.  Credibility is the worthiness of belief; that quality in a witness which renders his/her evidence worthy of belief.[ix]

[i]5 USC. § 556(b)

[ii]Cinderella Career and Finishing Sch., Inc. v. FTC, 425 F.2d 583, 591 (D.C. Cir. 1970).

[iii]Amos Treat & Co. v. SEC, 306 F.2d 260,267 (D.C. Cir. 1962)).

[iv]Butler v. Department of Public Safety & Corrections, 609 So. 2d 790 (La. 1992)

[v]The 1981 Model State Administrative Procedure Act

[vi]5 USCS § 556(b)

[vii]5 U.S.C.S. § 554 (d)

[viii]Stevens Chevrolet, Inc. v. Commission on Human Rights, 498 A.2d 546 (D.C. 1985)

[ix]Citizens for Rewastico Creek v. Commissioners of Hebron, 67 Md. App. 466 (Md. Ct. Spec. App. 1986)


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