Recusal Rules for Administrative Adjudicators

This article was authored by Louis J. Virelli III, Professor of Law at Stetson University College of Law.

This article first appeared in the Regulatory Review's series on "Guiding Agencies to Improve Transparency and Efficiency" that focuses on the ACUS Recommendations adopted at the December 2018 Plenary Session. Reposted with permission. The original may be found here, and the Regulatory Review's entire series may be found here.

Recusal—the voluntary or involuntary exclusion of an adjudicator from a given case—is a longstanding method of protecting the integrity of judicial proceedings. In particular, recusal is critical to two fundamental features of any legitimate judicial system. It first preserves fairness for the parties by ensuring that their dispute is resolved by a neutral arbiter, and, second, it promotes public confidence in the judicial system as a whole by upholding the appearance of impartiality on behalf of the judges.

The same benefits of recusal apply to administrative adjudication, albeit with some important distinctions. On the one hand, adjudicators’ exercise of authority within a largely unaccountable federal agency makes questions about their impartiality even more pressing. In our highly polarized political environment, recusal can help to counteract increasing cynicism about, and suspicion of, our public institutions. On the other, agency adjudicators’ role as policy makers changes our expectations about their objectivity.

Adjudicators are often called upon to make policy judgments through adjudication, and thus they cannot always be judged by the same standards of impartiality as politically independent judges. Recusal in the administrative context is just as important as in the judicial context, but it has been treated somewhat differently as a legal matter, especially when it comes to its ability to curb the appearance of—as opposed to actual—bias in agency adjudication.

In a report I prepared for the Administrative Conference of the United States (ACUS), I mapped the relevant sources of administrative recusal standards to better understand how well the current landscape of recusal “law” for administrative adjudicators fulfills recusal’s twin goals of protecting parties from biased officials and promoting public confidence in the administrative state. After identifying gaps in the landscape of administrative recusal, I recommended ways that agencies could improve administrative recusals.

My study was limited to adjudicative proceedings in which an evidentiary hearing—written or oral—was required by law. This approach had two benefits. First, it clearly delineated the scope of adjudicators to be studied, making it easier to identify the relevant sources of recusal standards for those adjudicators. Second, it focused the study on adjudications that most closely resemble traditional judicial proceedings. This allowed for the closest analogy between administrative and judicial recusal, which in turn permitted the study to rely on centuries old judicial recusal standards as a guide to better understanding administrative recusal.

Despite targeting this clearly defined band of administrative adjudications, the study revealed a broad range of sources—from constitutional provisions to statutes, regulations, and model codes—that could affect administrative recusal. Two themes, however, became clear.

First, parties to administrative adjudications are nearly as well-protected from biased adjudicators as are litigants in federal and state courts. A combination of the Due Process Clause, Office of Government Ethics (OGE) statutes and regulations, and the Administrative Procedure Act (APA) require recusal in most instances where bias against a party could arise. For those instances not covered by due process, OGE, or the APA, a 2016 ACUS recommendation makes clear that agencies should adopt their own rules to protect parties to agency adjudication from adjudicator bias or prejudgment.

Second, the appearance of partiality in administrative adjudication is left largely unaddressed by any of the relevant sources. The Due Process Clause deals with the probability of actual bias by an adjudicator and has been limited by the Court such that most questions of judicial disqualification are not resolved under the Constitution. Although federal judges are required to abide by an appearance standard in deciding whether to recuse, the federal judicial recusal statute does not explicitly mention, nor purport to be binding on, administrative adjudicators. Model codes of conduct for judges and administrative adjudicators often include an appearance standard but are not legally binding by their own terms, not applicable to federal administrative adjudicators, or both.

The relevant OGE statute covers administrative adjudicators but is limited to disqualification for financial conflicts of interest. The applicable OGE ethics regulation only addresses conflicts that are either financial or are based on the adjudicator’s personal relationships. Neither includes the full range of appearance-based grounds for recusal, such as those found in judicial recusal statutes, nor are they tailored to issues facing adjudicators in the same way as traditional recusal standards. Lastly, the APA assures that administrative adjudication “shall be conducted in an impartial manner,” but this language is understood to protect against actual, rather than apparent, adjudicator bias and, in any event, only applies to adjudications involving an administrative law judge, which is a much narrower subset of adjudications than that considered in the report.

In sum, my study revealed that the landscape of potentially relevant sources for understanding the “law” of administrative recusal is incomplete when compared to traditional judicial recusal norms and practices. What is more, there is good reason to believe that agencies favor an appearance-based standard in administrative recusal. In the admittedly few instances in which agencies themselves have specifically considered recusal, they have overwhelmingly included an appearance standard.

ACUS Recommendation 2018-4, Recusal Rules for Administrative Adjudicators, reflects many of the conclusions contained in my report. The preamble to the Recommendation notes that those agencies that have already adopted their own recusal rules have chosen to include appearance-based standards. That fact, combined with appearance standards’ ability to promote public confidence in administrative adjudication, suggest that all agencies should consider adopting their own, agency-specific recusal rules to combat both actual bias and the appearance thereof.

Critical to this conclusion, however, is that each agency balance its own adjudicative needs, in terms of fulfilling its statutory and regulatory mission against the benefits of promoting public confidence in its activities. The ACUS Recommendation suggests that an agency might consider certain factors in reaching this balance including the frequency with which it is a party in its own proceedings, the number of available adjudicators and their caseload, whether adjudications are presided over by multimember bodies, and whether the adjudicator is acting in an appellate capacity. Agencies should also include in their rules considerations that do not warrant recusal.

The Recommendation acknowledges that there are many factors that influence recusal decisions. Indeed the value of an appearance-based standard may be significantly diminished if and when applied to adjudications conducted by agency heads, due to their responsibilities as chief policy makers for the agency. The Recommendation explicitly excludes agency heads from its scope. Nevertheless, ACUS counsels agencies to consider both the potential benefits and limitations of adopting recusal rules for agency heads acting as adjudicators.

Finally, ACUS’s Recommendation concludes that certain procedural features may be necessary to ensure that an agency realizes the full benefits of an appearance-based recusal standard. For example, it suggests empowering the parties to petition for an adjudicator’s recusal, providing for appeal of an adjudicator’s initial decision not to recuse, and allowing at least some limited judicial review of that decision. Adjudicators would be required to provide written explanations for their recusal decisions, and encourage agencies to publish those decisions where practicable.

ACUS Recommendation 2018-4 provides agencies with a helpful road map for reducing the appearance of bias in their adjudications—and thereby for improving public confidence in the administrative process.