____________________________________________________________________________________
CONSULTANT REPORT

Final Version
May 14, 2020
____________________________________________________________________________________

ADMINISTRATIVE RECUSAL RULES:
A TAXONOMY AND STUDY OF EXISTING RECUSAL
STANDARDS FOR AGENCY ADJUDICATORS
Louis J. Virelli, III
Professor of Law
Stetson University

This report was prepared for the Office of the Chairman of the Administrative Conference of the United
States. It does not necessarily reflect the views of the Office of the Chairman or the Conference (including
the Conference’s Council, committees, or members).

Recommended Citation
Louis J. Virelli, III, Administrative Recusal Rules: A Taxonomy and Study of Existing Recusal Standards
for Agency Adjudicators (May 14, 2020) (report to the Admin. Conf. of the U.S.), https://www.acus.gov/
report/administrative-recusal-rules-taxonomy-and-study-existing-recusal-standards-agency.

ADMINISTRATIVE RECUSAL RULES: A TAXONOMY AND STUDY
OF EXISTING RECUSAL STANDARDS FOR AGENCY ADJUDICATORS
Louis J. Virelli III*
TABLE OF CONTENTS
INTRODUCTION ................................................................................................................................ 1
I. THE PROJECT ................................................................................................................................ 4
II. ADMINISTRATIVE RECUSAL STANDARDS .................................................................................... 8
A.
Taxonomy of Substantive Recusal Standards .................................................................. 9
1.
No Substantive Recusal Standards ............................................................................... 9
2.
Impartiality and Discretionary Recusal ...................................................................... 11
3.
Financial and Other Conflicts of Interest (Family and Professional Relationships) .. 15
4.
Prior Involvement with the Case or Subject Matter ................................................... 18
5.
Personal Bias .............................................................................................................. 19
6.
Protecting the Appearance of Impartiality .................................................................. 21
7.
(Quasi-) Judicial recusal ............................................................................................. 22
B.
Recusal Procedures ........................................................................................................ 24
1.
Recusal Motions ......................................................................................................... 24
2.
Affidavits .................................................................................................................... 25
3.
Adjudicator Reporting Requirements ......................................................................... 27
4.
Intra-agency Review ................................................................................................... 31
C.
ALJs Versus Other Adjudicators ................................................................................... 34
D.
Regulations or Guidance Documents ............................................................................. 38
E.
Institutional Effects ........................................................................................................ 42
1.
Agency Heads ............................................................................................................. 42
2.
Appellate-Style Adjudicators ..................................................................................... 44
3.
Single or Multiple Adjudicators ................................................................................. 46
III. SOME THOUGHTS AND PRESCRIPTIONS .................................................................................... 50
IV. CONCLUSION ........................................................................................................................... 53
V. TABLES ..................................................................................................................................... 54
*

Professor of Law, Stetson University College of Law. This report represents the second part of a project for the
Administrative Conference of the United States (ACUS). The initial report, Louis J. Virelli III, Recusal Rules for
Administrative Adjudicators (Nov. 30, 2018) (report to the Admin. Conf. of the U.S.), https://www.acus.gov/
report/final-report-recusal-rules-administrative-adjudicators, was followed by ACUS Recommendation 2018-4.
Admin. Conf. of the U.S., Recommendation 2018-4, Recusal Rules for Administrative Adjudicators, 84 Fed. Reg.
2139 (Feb. 6, 2019) (“Recommendation 2018-4”), https://www.acus.gov/recommendation/recusal-rulesadministrative-adjudicators.

INTRODUCTION
Judicial recusal—the process of removing a judge from a case—is as old as the law itself.
Judges since Justinian’s time have been evaluating whether they are able to fairly resolve
disputes between opposing parties, and when they decide that they cannot, using recusal to give
way to another, more impartial, adjudicator. As legal systems have evolved, so too has the law of
recusal. Yet while the specific standards for when recusal is or should be required have
fluctuated, recusal’s primary purposes and goals have not.
Since its inception, recusal has sought to achieve two primary objectives: to promote
fairness to the parties by ensuring an impartial arbiter for their dispute and to create a broader
appearance of judicial impartiality for society at large. The first goal implicates due process
principles and has obvious benefits for a system designed to achieve the peaceful and orderly
resolution of disputes and enforcement of the laws. If the arbiter is not in fact impartial, the
parties themselves are unlikely to seek their assistance or abide by their decision. The second
goal is institutional. By creating the outward appearance of fairness and impartiality, recusal
encourages public confidence in the judicial system. This increased confidence is critical to
safeguarding the democratic legitimacy of our otherwise independent and politically
unaccountable courts.1
The importance of judicial recusal to the legitimacy of our judicial system is evidenced
by how quickly the first Congress adopted recusal standards for federal judges. The Judiciary
Act of 1789 included a provision codifying the English common law of recusal at the time, and
there has been a federal recusal statute continually in existence ever since.2 Model codes of
judicial ethics have also existed since the Founding.3 These codes either added context to the law
of recusal or, in some instances, inspired legislative developments.4 The attention paid to judicial
recusal has not, however, translated to other forms of adjudication, particularly federal
administrative adjudication. This is especially curious given that the goals of judicial recusal are
no less important to agency adjudicators than to federal judges, and in some instances may be
even more so.
Administrative adjudication is a critical aspect of administrative government.
Adjudications from benefits determinations to licensing decisions and enforcement actions
represent the full panoply of agency authority and touch on nearly every aspect of modern
As Justice O’Connor explained in Planned Parenthood of Southeastern Pennsylvania v. Casey, “the Court's
legitimacy depends on making legally principled decisions under circumstances in which their principled character
is sufficiently plausible to be accepted by the Nation.” 505 U.S. 833, 865-866 (1992).
2
LOUIS J. VIRELLI III, DISQUALIFYING THE HIGH COURT: SUPREME COURT RECUSAL AND THE CONSTITUTION 1-5
(2016) (outlining the history of recusal from the Roman Empire to the Founding).
3
See id. at 5-16.
4
28 U.S.C. § 455 (1974).
1

1

society. What’s more, when agencies adjudicate, they directly affect the rights and liberties of
individuals. The sheer scope and public impact of administrative adjudication are therefore
enough on their own to highlight the significance of promoting integrity and confidence in
agency adjudications. Questions of agency ethics and trustworthiness are even more important as
government bureaucracy in general and administrative agencies in particular increasingly
become targets—fairly or not—of public critique and skepticism.5 Seemingly unaccountable
agency actors are perceived as pulling the strings of power in furtherance of their own
bureaucratic ends, independent of the public good or purpose their agencies were designed to
promote.6 All three of these factors—the reach of agency adjudication, its profound impact on
individual members of the public, and a growing concern about agency motivations and
transparency—create a strong incentive for agencies to protect both the actual and perceived
integrity of their proceedings.
One way to promote the integrity of our government institutions is through a stable and
transparent system of administrative recusal—a process and set of standards by which
administrative adjudicators may withdraw themselves or be removed from cases that raise
questions about the assigned adjudicator’s actual (or even apparent) ability to remain impartial.7
Yet the law of recusal in federal agencies is often difficult to pinpoint and, once uncovered,
largely underdeveloped. That is not to say that agency adjudicators are not using recusal
frequently enough or appropriately in practice. The problem is that many agencies with statutory
adjudication authority have either no written recusal standards or standards that provide little

5

AMY E. LERMAN, GOOD ENOUGH FOR GOVERNMENT WORK: THE PUBLIC REPUTATION CRISIS IN AMERICA (AND

WHAT WE CAN DO TO FIX IT) 4 (2019) (“[T]he tendency of Americans to associate ‘public’ with ineffective,

inefficient, and low-quality services . . . is a central feature of our modern political culture.”).
6
Philip Wallach, The administrative state’s legitimacy crisis, at 1 (Brookings Inst. Apr. 2016), https://
www.brookings.edu/wp-content/uploads/2016/07/Administrative-state-legitimacy-crisis_FINAL.pdf (“People begin
to doubt not only the recent performance of their governments, but their basic legitimacy: their claim to be uniquely
representative institutions working on the public’s behalf. “); id. at 5 (“[A] kind of institutionalized antiinstitutionalism now looms larger in American politics than at any time in living memory . . . . The administrative
state—generically referred to as ‘the bureaucracy’ . . . often takes on a focal role in discussions of the American
government’s legitimacy.”) A 2017 report by the Pew Research Center found that “the overall level of trust in
government remains near historic lows; just 20% say they trust the government to do what’s right always or most of
the time.” Public Trust in Government Remains Near Historic Lows as Partisan Attitudes Shift: Democrats’
confidence in country’s future declines sharply, at 1, https://www.people-press.org/2017/05/03/public-trust-ingovernment-remains-near-historic-lows-as-partisan-attitudes-shift/. A similar survey in 2019 revealed that “[o]nly
17% of Americans today say they can trust the government in Washington to do what is right ‘just about always’
(3%) or ‘most of the time’ (14%).” Pew Research Center, Public Trust in Government: 1958-2019 (Apr. 11, 2019)
https://www.people-press.org/2019/04/11/public-trust-in-government-1958-2019/.
7
Historically, the process by which judges removed themselves from a case was called recusal, and the process by
which they were forced to withdraw was called disqualification. In modern practice, the two terms are used
interchangeably. RICHARD E. FLAMM, JUDICIAL DISQUALIFICATION: RECUSAL AND DISQUALIFICATION OF JUDGES §
1.1, at 4 (Banks & Jordan 2d ed. 2007) (“In fact, in modern practice ‘disqualification’ and ‘recusal’ are
frequently viewed as synonymous, and employed interchangeably.”). For consistency’s sake, recusal will be used
here to refer to both situations—voluntary and involuntary withdrawal of an agency adjudicator.

2

guidance to the adjudicators themselves, let alone the observing public. The result is potential
confusion among parties before agency tribunals about how to protect themselves from
potentially partial adjudicators and among the public about whether and to what degree the
agency prioritizes the integrity of its proceedings.
Why is this so? For starters, judicial recusal standards do not apply to agency
adjudicators. There are two commonly stated reasons for this phenomenon. First is that agency
adjudication is so varied that it would be too difficult—if not impossible—for judicial recusal
standards to accommodate all of its permutations.8 Second is that agency adjudicators ought not
be judged by the same standards as their judicial counterparts because of the multiple roles
played by administrative agencies.9 While the principle of judicial independence seeks to ensure
that judges are immune from issues of policy and from the influence of designated policymakers,
agency adjudicators typically have a policymaking function that necessarily combines their
adjudicative responsibilities with an obligation to the agency’s political mission. This
policymaking feature complicates questions about which real or perceived conflicts can
reasonably be avoided by agency adjudicators whose proceedings regularly involve as a party the
very agency that employs them, and whose decisions are often reviewed by executive branch
officials, including political appointees.
There is also no generalized legal standard for the recusal of agency adjudicators. This
could be for the same reason that judicial recusal standards do not include agencies—the variety
and dual function of agency adjudication. It could also be due to a perception that generalized
provisions in the Administrative Procedure Act (APA) or government ethics rules address the
issue, or that model codes and ethical canons offer sufficient guidance to empower adjudicators
to make recusal decisions that are tailored to their agency’s needs and conduct. A closer
examination, however, reveals that none of these sources are sufficient to achieve the goals of
recusal for administrative adjudicators.
The initial step in this project (the “Initial Report”) for the Administrative Conference of
the United States (ACUS or “the Conference”) outlined the existing sources of agency recusal
law and showed how, taken together, these sources failed to capture the full benefits of recusal.10

See, e.g., Withrow v. Larkin, 421 U.S. 35, 52 (1975) (noting that “[t]he incredible variety of administrative
mechanisms in this country will not yield to any single organizing principle” in the context of determining that the
combination of adjudicative and enforcement functions within agencies does not per se violate due process).
9
See id.; Phyllis E. Bernard, The Administrative Law Judge As A Bridge Between Law And Culture, 23 J. NAT'L
ASS'N ADMIN. L. JUDGES 1, 13 (2003) (“Despite intermittent expressions of caution--even of doubt and denial--we
still turn to ALJs to identify and articulate the nuances of agency policy.”); Charles H. Koch, Jr., Policymaking by
the Administrative Judiciary, 25 J. NAT’L ASSOC. ADMIN. L.J. 49 (2005) (examining the policymaking role of
administrative adjudicators).
10
Louis J. Virelli III, Recusal Rules for Administrative Adjudicators (Nov. 30, 2018) (report to the Admin. Conf. of
the U.S.) (“Initial Report”), https://www.acus.gov/report/final-report-recusal-rules-administrative-adjudicators.
8

3

The Initial Report concluded that, in order to fully realize the benefits of recusal, agencies should
adopt recusal standards specific to their mission and responsibilities.11
This study furthers the work of the Initial Report by collecting and analyzing a
“comprehensive” set of agency-specific recusal standards.12 It seeks to highlight some of the
strengths and weaknesses of those standards and to identify features of agency adjudication—
such as whether an adjudicator exercises original or appellate jurisdiction—that may affect an
agency’s approach to recusal. Finally, the present study endeavors to make at least some
preliminary recommendations as to how agencies may move forward, collectively or on their
own, to take advantage of recusal’s potential to improve the results of, and the public’s
confidence in, their adjudications.
I. THE PROJECT
The study is designed to offer a set of choices for agencies seeking to adopt or amend
their administrative recusal standards. It builds on the Initial Report by developing a taxonomy
of existing approaches to administrative recusal and providing some analysis on the relative
strengths and weaknesses of each approach. The Initial Report outlined the universe of generally
applicable standards that could affect administrative recusal and concluded that, although those
standards were somewhat well-suited to prevent actual adjudicator bias, they did not adequately
address the appearance of impartiality. More specifically, the Report explained:

11

Id. at 23.
The goal of the study was to identify every recusal standard, including regulations and published guidance
documents, adopted by agencies in connection with what Michael Asimow described in his recent ACUS study as
“Type A” and “Type B” adjudication. Asimow defined Type A adjudication as “adjudicatory systems governed by
the adjudicatory sections [§§ 554, 556, and 557] of the APA . . . [and] presided over by administrative law judges
(ALJs).” MICHAEL ASIMOW, EVIDENTIARY HEARINGS OUTSIDE THE ADMINISTRATIVE PROCEDURE ACT 2 (2016)
(“Asimow Study”). He defined Type B adjudication as “evidentiary hearings required by statute, regulation, or
executive orders, that are not governed by the adjudication provisions [§§ 554, 556, 557] of the APA” and that are
decided exclusively on the record developed during the proceeding (the “exclusive-record limitation”). See id. at 2.
A more recent ACUS study focused only on Type B proceedings that required oral, as opposed to purely written,
evidentiary hearings, but did not require that those proceedings include the “exclusive-record limitation” used in the
Asimow Study. KENT BARNETT, MALIA REDDICK, LOGAN CORNETT, & RUSSELL WHEELER, NON-ALJ
ADJUDICATORS IN FEDERAL AGENCIES: STATUS, SELECTION, OVERSIGHT, AND REMOVAL 13 (2017) (“Barnett et al.
Study”). Because this project considers a wider range of evidentiary hearings by agency adjudicators, the relatively
slight distinctions between the types of hearings examined in the Asimow and Barnett Studies is not directly relevant
to the present discussion.
The methodology used here to locate agency recusal standards for Type A and Type B adjudication is
outlined in Part II, infra. Although the research methodology aspired to identify a comprehensive set of relevant
recusal standards, and employed several redundancies in an attempt to be as thorough as possible, there remains the
inherent difficulty of isolating a truly definitive list of relevant regulations and guidance documents across the full
universe of administrative agencies. Notwithstanding the significant research challenge, the sheer number and
breadth of standards identified herein represents at minimum a useful and informative dataset from which to
evaluate the current state of, and normative issues facing, administrative recusal.
12

4

A combination of due process protections, APA impartiality requirements,
and [Office of Government Ethics] OGE ethical protections are relatively effective
at checking actual adjudicator bias and, in many cases, at preventing a reasonable
probability of such bias. . . . [A]gencies should continue to be vigilant, however, in
promulgating rules to protect parties from biased adjudicators. The Supreme Court
has made clear that “most matters relating to judicial disqualification [do] not rise
to a constitutional level,” and the APA’s impartiality requirement does not apply to
the multitude of adjudicators who fall outside the statute. Moreover, although
OGE’s ethical rules apply to non-ALJ adjudicators, they focus primarily on
financial and relational conflicts of interest; they do not directly address issues such
as personal animus or prejudgment.
***
Current legal restrictions on agency adjudication do not require that
appearances be taken into account when deciding recusal questions. Due process is
focused on the probability of actual bias in a reasonable judge. The federal recusal
statute and model codes offer a broad reasonable appearance standard, but the
statute does not apply to administrative adjudicators and the codes are not selfenforcing and have not been adopted by most agencies. Even when they do mention
appearances, government ethics provisions are narrowly tailored to financial and
relational conflicts . . . .13
Based on these gaps in the law of recusal for agencies, the Initial Report suggested that
“[a]gency-specific recusal rules could be helpful in ensuring that all of the forms of bias targeted
by both the APA and OGE are addressed for non-APA adjudicators,” and in filling “a gap in the
recusal safety net when it comes to public perception of agency adjudication.”14 It noted that
“some agencies have . . . taken it upon themselves to establish their own recusal standards,”15
and acknowledged that “[t]here is still more work to do to accurately map the landscape of
agency recusal regulations.”16 ACUS Recommendation 2018-4 incorporated many of the
suggestions in the Initial Report, recommending that “[w]hen adopting [recusal] rules, agencies
should consider the actual and perceived integrity of agency adjudications and the effectiveness
and efficiency of adjudicative proceedings,” and that those “rules should . . . provide for the
recusal of adjudicators in cases of actual adjudicator partiality.”17

13

Initial Report, supra note 10, at 17 (citations omitted).
Id. at 17, 18
15
Id. at 15.
16
Id. at 14.
17
Recommendation 2018-4, 84 Fed. Reg. 2139 (Feb. 6, 2019), https://www.acus.gov/recommendation/recusal-rulesadministrative-adjudicators.
14

5

But the search for agency-specific recusal standards necessarily begs the question: which
agencies and which proceedings? The overarching goal of this inquiry into administrative recusal
is to consider how traditional concepts of judicial recusal can be used to promote fairer and more
legitimate agency adjudication. This in turn suggests a focus on agency adjudications that more
closely approximate judicial proceedings. Because agency adjudication includes such a wide
range of agency conduct, and because executive branch recusal standards include people with no
adjudicative responsibilities whatsoever, it is important to be specific about which agency
recusal standards are of interest here. The relevant agency adjudications are the same as those in
the Initial Report: adjudications in which evidentiary hearings are required by statute, regulation,
or executive order (whether presided over by ALJs (Type A)18 or non-ALJs (Type B))19 and
appeals arising from those hearings (including appeals to agency heads).20 This definition is
likely to be inclusive of all (or the vast majority of) agency proceedings for which judicial
recusal concepts could be useful. It is also—and perhaps most importantly so—simpler and
easier to describe when collecting information about agencies’ recusal standards and practices.
Defining the category of adjudication that is of interest does not, however, identify which
agencies to include in the search for agency-specific recusal standards. The universe of relevant
agencies was drawn from a combination of sources that, taken, together, provide a holistic (if not
exhaustive) list of relevant agencies and their subunits. Those sources included the Asimow and
Barnett et al. studies for ACUS, the Stanford-ACUS adjudication database,21 the Conference’s
Sourcebook of United States Executive Agencies, which includes a table of “Agencies with
Statutory Adjudicative Authority,”22 the Office of Personnel Management’s (OPM’s) list of
agencies employing ALJs, and a contact list of agencies developed through previous ACUS

Type A adjudication is defined by Michael Asimow in his recent ACUS study as “adjudicatory systems governed
by the adjudicatory sections [§§ 554, 556, and 557] of the APA . . . [and] presided over by administrative law
judges (ALJs).” MICHAEL ASIMOW, EVIDENTIARY HEARINGS OUTSIDE THE ADMINISTRATIVE PROCEDURE ACT 2
(2016) (“Asimow Study”).
19
See supra note 12 (discussing the definition of Type B adjudication).
20
In sum, the scope of adjudicators considered in this study is the same as that in the Report but somewhat broader
than the Barnett et al. Study and at least as broad as the Asimow Study. It is broader than that used in the Barnett et
al. Study in that it—like the Asimow Study—includes non-ALJ adjudicators who preside over legally required
written and oral (as opposed to just oral) hearings. It is also technically broader than the Asimow Study’s definition
because it is not limited to hearings decided exclusively on the record developed during the proceeding, although
that may in fact be, at least with regard to required written hearings, a distinction without a difference. As the
Barnett et al. Study revealed, “we are not aware of any [oral] hearings that the agencies identified that lack an
exclusive-record limitation.” Barnett et al. Study, supra note 19, at 13.
21
Adjudication Research: Joint Project of ACUS and Stanford Law School (the “Stanford-ACUS Database”),
http://acus.law.stanford.edu/.
22
DAVID E. LEWIS & JENNIFER L. SELIN, ADMINISTRATIVE CONFERENCE OF THE UNITED STATES, SOURCEBOOK OF
UNITED STATES EXECUTIVE AGENCIES 117-18 (2d ed. 2018) (“Table 18: Agencies with Statutory Adjudicatory
Authority”) (hereinafter “SOURCEBOOK”).
18

6

research projects.23 The goal of combining and cross-checking these lists against one another was
to include all of the relevant Type A (ALJ) or Type B adjudicators.24
For each agency or subunit identified from these sources, research was done into whether
evidentiary hearings of the type described above are in fact held, the adjudicator’s classification
(ALJ, administrative judge (AJ), hearing officer, etc.), whether the proceeding involves an initial
hearing or appellate-style review of an initial hearing, whether it is presided over by a single
adjudicator or a multi-member body, the form in which recusal standards are promulgated
(regulation, guidance document, practice manual, etc.), and the content of the recusal standard,
including whether it contained any procedural guidelines, such as whether parties to a
adjudication can move for recusal and whether an adjudicator’s recusal decision is reviewable
within the agency.
In addition to conducting research into published recusal standards, a survey was
developed to gather whatever information remained from the relevant agencies. Ninety-two
agencies (including subunits) were sent surveys. The recipient list was based on an ACUS
contact list developed in connection with previous adjudication research. The ACUS contact list
was used because it combined both a thorough (if not wholly comprehensive) list of relevant
agencies with the names of contact people to whom a survey could be directed. The primary
purpose was to continue identifying agency recusal rules or standards within the different
agencies and learn as much as possible about agency enforcement practices. The survey asked
the following three questions of each agency:
1) Has your agency put in place an agency-specific policy or rule (whether substantive or
procedural) applicable to any adjudicators governing their recusal or disqualification?
Such a policy/rule may be contained in a C.F.R. regulation, guidance document, or
otherwise.
2) Does any statute—apart from the Administrative Procedure Act, see 5 U.S.C. § 556(b)—
govern adjudicators’ recusal or disqualification?
U.S. Office of Personnel Management, Administrative Law Judges: ALJs By Agency, (“OPM List”) https://
www.opm.gov/services-for-agencies/administrative-law-judges/#url=ALJs-by-Agency. In addition to the
Sourcebook’s list of adjudicating agencies, Table 18 provides information as to which of those agencies employ
ALJs. SOURCEBOOK, supra note 22, at 117-18. The OPM list was current as of June 10, 2018. The Sourcebook also
included a list of agencies that employ ALJs, but it was based on OPM data from 2017. In the interest of
thoroughness, both the Sourcebook and OPM lists of ALJs were used to ensure that all agencies that fit within the
parameters of the study were included in the recusal research. The ACUS contact list included, among others, the
eleven agencies with the largest adjudication dockets—the Board of Veterans Appeals, Department of Health and
Human Services, Department of Homeland Security, Department of Justice Executive Office for Immigration
Review, Department of Labor, Environmental Protection Agency, Equal Employment Opportunity Commission,
Federal Mine Safety and Health Review Commission, Internal Revenue Service, National Labor Relations Board,
and Social Security Administration. See Stanford-ACUS Database, supra note 21.
24
The final list included 47 agencies and 35 “subunits,” according to the Sourcebook. See SOURCEBOOK, supra note
22, at 125-32 (App. A-1: List of Agencies and Subunits—By Agency Name).
23

7

3) If you have any such policies, rules, or statutes referred to in 1) and 2) above, please
provide a citation(s) or, if no citation is available for a policy, a copy of or website link to
the policy. Finally, we would welcome any other information you wish to provide on
your agency’s authorities and procedures for enforcing either its own recusal policies or
rules, or the OGE’s Standards of Ethical Conduct for Employees of the Executive
Branch. Any information you can offer would be helpful.
Written responses were submitted on behalf of eighteen of the subunits surveyed. In
addition to the survey responses, phone interviews were requested from twenty-one of the
relevant subunits. Three interviews, covering two different agencies, were ultimately granted and
conducted.25 Interviews were designed to collect information about the actual role of recusal
standards in agency adjudication, in particular how adjudicators view their recusal obligations
and what resources they use to inform their decisions. The following section summarizes and
categorizes some of the results of the study in an attempt to better understand the strengths and
weaknesses of agency recusal practice and thus draw better-informed conclusions about how
recusal can most benefit agency adjudication.
II. ADMINISTRATIVE RECUSAL STANDARDS
The results of the study have been organized into five broad categories. The first focuses
on the content of the recusal standards. It creates a taxonomy of agency recusal standards and
evaluates the efficacy of each approach to administrative recusal. The second category looks at
which agencies with recusal standards also adopted recusal procedures and considers the
normative value of the different procedural regimes. The third category focuses on standards for
different adjudicators, especially ALJs versus other adjudicators. It looks at how, if at all,
standards differ among classes of adjudicator and whether those differences can be justified
either legally or normatively. The fourth category considers the form of recusal standards, in
particular whether they are promulgated in legally binding regulations, public guidance
documents, etc. The final category examines agency recusal standards along institutional lines. It
compares standards used in different institutional contexts—such as initial hearings versus
appellate-style review and single adjudicators versus multi-member bodies—and considers the
relative value of those choices.

25

Interviews were done with the General Counsel and Designated Agency Ethics Officer of the Occupational Safety
and Health Review Commission (OSHRC), the Chief Administrative Law Judge (ALJ) for OSHRC, and the Chief
ALJ and Chief Advisor and Deputy Ethics Counselor for the Department of Health and Human Services Office of
Medicare Hearings and Appeals (OMHA).

8

A. Taxonomy of Substantive Recusal Standards
It should come as no surprise that, in a universe as varied as agency adjudication, the
range of recusal standards impacting those proceedings is equally varied. There are, however,
some common themes that provide structure to the administrative recusal landscape.
1. No Substantive Recusal Standards
The Asimow and Barnett et al. studies concluded that many agencies have no published
recusal standards for their adjudicators, and this study confirms that conclusion.26 Some agencies
reported that they rely on internal custom or some other unwritten set of principles to guide
adjudicative judgments about recusal.27 A lack of written recusal standards raises challenges
beyond the actual fairness of the proceedings. It is certainly possible that agency adjudicators are
principled and diligent enough to avoid presiding over cases in which they either could not
remain impartial or would appear unable to do so to a reasonable observer. Yet by failing to
articulate recusal standards for those adjudicators, agencies leave the parties and the public
unclear as to how adjudicators are likely to proceed. Paired with a lack of explicit procedures for
seeking recusal, agencies hamstring the parties’ ability to use recusal to benefit themselves and
the adjudicator, and risk giving the impression that the agency is unaware of recusal’s benefits
for agency adjudication.
Other agencies have issued rules ensuring some general proposition like an impartial
hearing without specific reference to recusal or § 556(b), which has been generally interpreted to
address recusal for personal bias.28 Impartiality is certainly related to recusal, but without
specific mention of recusal as a remedy, a requirement to be impartial, without more, is not a
substitute for recusal.
Regardless of whether a lack of recusal standards exposes litigants to more adjudicator
bias, the damage is done. Parties either have no mechanism to challenge an adjudicator’s
participation (if no procedural rules exist) or no incentive to because they have no substantive
rule on which to base a recusal argument. In extreme cases this may be less of a problem. The
cost of proceeding with the current adjudicator could be so high as to leave the party with no

See, e.g., ASIMOW STUDY, supra note 12, at 23 (“Some Part B procedural regulations and manuals do not contain
explicit provisions concerning bias or explain how and when bias claims should be raised.”); BARNETT ET AL.
STUDY, supra note 12, at 49 (noting that “no disqualification requirement exists” for six of the 31 types of non-ALJs
identified in the study). A list of adjudicatory agencies, subunits, and offices that do not have explicit recusal
standards can be found infra in Table 1.
27
See BARNETT ET AL. STUDY, supra note 12, at 48 (“[M]ore than a third (11 of 31) of the non-ALJ types’ [recusal
obligations] arise, at least in part, form custom.”).
28
See Asimow Study supra note 12, at 23 (explaining how the APA’s requirement of impartiality has been
interpreted to apply to proceedings governed by §§ 556 and 557).
26

9

choice but to challenge their participation, and non-agency-specific sources like the Due Process
Clause and the APA could provide a basis for a party’s recusal argument. This still presupposes
that the party is aware of these non-agency-specific standards, and that the case presents such a
severe bias issue that due process or the APA would be relevant.
But even if severe cases would be addressed without an agency enacting its own recusal
rules, the appearance of either indifference or of a permissive approach to recusal threatens the
integrity of agency adjudications. A rule incorporating by reference another source of recusal
standards solves many of these problems, and should be easy enough for an agency to adopt.
When weighed against the cost of being silent about recusal and its effects on agency reputation,
having some official statement regarding recusal—even if only to borrow standards from
elsewhere—is a net benefit to the agency.
Finally, at least three agencies—the Commodity Futures Trading Commission (CFTC),
Occupational Safety and Health Review Commission (OSHRC), and the Securities and
Exchange Commission (SEC)—set recusal standards for their lower-level adjudicators, but do
not offer similar standards for their commissioners when the commissioners preside over
adjudicative proceedings.29 This raises the interesting question of whether, and if so how, recusal
should apply to agency heads. ACUS Recommendation 2018-4, which supports agency-specific
recusal regulations, expressly states that “[a]lthough this Recommendation does not apply to
adjudications conducted by agency heads, agencies could take into account many of the
provisions in the Recommendation when establishing rules addressing the recusal of agency
heads.”30 Agency heads’ status as final policymakers complicates features of recusal like prior
involvement, conflicts of interest, and the appearance of impartiality. Since it is an important
aspect of agency heads’ job to take public positions on the issues within their agency’s purview,
many of the traditional grounds of recusal must be balanced against considerations that do not
apply to other agency adjudicators. For example, an ALJ may be expected to avoid interacting
with agency rule makers during their formulation of new regulatory proposals both for fear of the
effect of the ALJ’s prior involvement on the integrity of a later decision applying the rule and of
the public’s perception of that involvement. The same cannot and should not be true, however,
for agency heads, who are expected to advance the agency’s mission in every aspect of its
conduct, including rulemaking and adjudication. When judging agencies’ recusal standards, it is
important to distinguish between those that omit standards altogether and those that exclude only
agency heads, as the latter may represent a strength, rather than a weakness, in the agency’s
approach to recusal.
See 17 C.F.R. § 10.10 (CFTC) (providing “scope of review” for Commission proceedings without mention of
recusal, in contrast to § 10.8, which mentions recusal with respect to CFTC ALJs); 29 C.F.R. § 2200.92 (OSHRC)
(describing review by the Commission without mentioning recusal, whereas § 2200.68 sets recusal requirements for
ALJs); 17 C.F.R. § 201.112 (setting recusal requirements for “hearing officers,” which are contrasted with
commissioners in § 201.110).
30
Recommendation 2018-4, supra note *, at 2.
29

10

2. Impartiality and Discretionary Recusal
Two very common themes—of admittedly limited value in thinking normatively about
recusal—are instructions to adjudicators to conduct “impartial”31 hearings or to make purely
discretionary recusal decisions.32 These approaches to recusal are inadequate from a normative
perspective because, in the case of the impartiality requirement, it is redundant and overbroad.
An impartiality requirement is redundant because it overlaps directly with the Due Process
Clause’s requirement that all adjudication be conducted without a “probability of actual bias.”33
At its core, the concept of impartiality requires a lack of actual (as opposed to apparent)
adjudicator bias, so the narrowest reading of an impartiality requirement is indistinguishable
from due process. In the case of ALJs, an impartiality standard is also redundant with § 556(b) of
the APA, which requires that the “functions of [ALJs] . . . be conducted in an impartial
manner.”34
In its broadest form, an impartiality standard is unhelpful in understanding the normative
benefits of recusal because it threatens to subsume recusal altogether. If impartiality is read to be
synonymous with general ideas of fairness, then it could include issues like an adjudicator’s
political preferences, hobbies, and casual friends, let alone the fact that agency adjudicators
frequently hear disputes in which their agency employer is a party. While it is not wholly
unreasonable to take a broad view of administrative recusal, the analysis is too complex and
involves too many factors to be accurately characterized with a simple reference to impartiality.
Effectiveness aside, it is also possible that a generalized standard like impartiality is useful not
for substantive purposes, but as a messaging tool to notify the public that the agency and its
adjudicators are committed to principles of fairness and equal treatment in their adjudications.
However, messaging at this level may do more harm than good, particularly if the results under
the standard do not match public expectations of impartiality.
Discretionary standards—provisions empowering adjudicators to recuse whenever they
“deem it necessary”—are similarly unhelpful because they serve only as a recognition of

31

See 15 C.F.R. § 766.13 (Department of Commerce); 12 C.F.R. § 308.5(b)(9) (FDIC); 26 C.F.R. § 6001.106(a)
(IRS appeals practice); 12 C.F.R. § 109.5(b)(9) (Office of Comptroller of Currency); 39 C.F.R. § 958.9 (USPS); 19
C.F.R. § 210.36(d) (USITC); Department of Defense Directive No. 5220.6, Defense Industrial Personnel Security
Clearance Review Program 4, 6 (Jan. 2, 1992) (requiring that “[a]ll proceedings provided for by this Directive shall
be conducted in a fair and impartial manner,” and that “Administrative Judges and Appeal Board members have the
requisite independence to render fair and impartial decisions”), https://www.esd.whs.mil/Portals/54/Documents/
DD/issuances/dodd/522006p.pdf; Office of General Counsel, National Labor Relations Board, Guide for Hearing
Officers in NLRB Representation and Section 10(k) Proceedings 1, 141 (2003) (NLRB), https://www.nlrb.gov/
sites/default/files/attachments/basic-page/node-1727/hearing_officers_guide.pdf. These impartiality provisions are
presented in tabular form in Table 2, infra.
32
These discretionary standards use language granting adjudicators authority to recuse themselves whenever they
“deem it necessary,” or “in [the adjudicator’s] opinion it is improper for him/her to preside,” etc. See, e.g., 21 C.F.R.
§ 12.75 (FDA); 16 C.F.R. § 3.42(g) (FTC); 24 C.F.R. §§ 26.5, 26.35; 24 C.F.R. § 180.210 (HUD); 8 C.F.R. § 246.4

11

adjudicators’ power, rather than a guiding principle that can protect litigants and promote public
confidence. Although such purely discretionary standards obviously cannot displace
constitutional, statutory, or other regulatory recusal standards, they offer little to no additional
guidance for adjudicators as to when they should recuse, and in fact may prove confusing to
adjudicators seeking to reconcile their obligations under discretionary regulatory standards and
other recusal obligations.
In some cases, discretionary standards are accompanied by provisions permitting parties
to file a motion to recuse on more concrete grounds, such as personal bias,35 or by guidance
documents that provide more detailed suggestions.36 One view of these provisions is that they
(DHS IJs); 49 C.F.R. § 511.42(e) (National Highway Transportation Authority (NHTSA))). A full account of these
discretionary recusal provisions is included in Table 3, infra.
33
Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 877 (2009) (citing Withrow v. Larkin, 421 U.S. 35, 47 (1975)).
34
5 U.S.C. § 556(b).
35
See 36 C.F.R. § 1150.53 (Architectural and Transportation Barriers Compliance Board); 17 C.F.R. § 10.8(b)
(CFTC); 16 C.F.R. § 1025.42(e) (CPSC); 47 C.F.R. § 1.245 (FCC); 18 C.F.R. § 385.504 (FERC) (motion to
Commission on review); 46 C.F.R. § 502.25(g) (FMC); 29 C.F.R. § 2700.81 (FMSHRC); 4 C.F.R. § 28.23 (GAO);
29 C.F.R. §§ 18.16, 22.16 (DOL; ALJs and ARB); 43 C.F.R. § 4.1016 (Interior acknowledgment of American
Indian Tribes); 28 C.F.R. § 68.30 (DOJ-EOIR immigration employment claims); 45 C.F.R. § 1149.31 (NEA
program fraud civil remedies act); 29 C.F.R. §§ 101.10, 102.36 (NLRB unfair labor practice proceedings); 49 C.F.R.
§§ 821.15, 821.35 (NTSB air safety proceedings) 39 C.F.R. § 3001.23 (Postal Regulatory Commission) 17 C.F.R. §
201.112 (SEC); 14 C.F.R. § 302.17(b) (DOT aviation proceedings); 46 C.F.R. § 201.89 (DOT Maritime
Administration); 27 C.F.R. § 71.96 (Alcohol and Tobacco Tax and Trade Bureau). A full list of agencies, subunits,
and offices that employ discretionary and/or bias standards are available infra at Tables 3 and 5, respectively. If a
single provision contains both a discretionary standard and a bias standard, those standards are tabulated separately
in the corresponding table, such that a single provision can be included in multiple tables, along with the language of
the relevant standard for that table. For example, 17 C.F.R. § 10.8 (CFTC) is included in Tables 3 and 5 because it
contains a discretionary standard and a separate bias standard.
36
In an example of the importance of guidance documents to agency recusal, consider the National Labor Relations
Board Division of Judges Bench Book (“NLRB Bench Book”), which supplements the regulatory requirement that
an ALJ “may withdraw . . . because of personal bias or for some other disqualifying reasons,” 29 C.F.R. § 102.36,
with citations to previous Board decisions requiring that “even the appearance of a partial tribunal” must be avoided
and with statements that judges should recuse where they had some previous involvement with the proceeding or
made statements that reveal an opinion about the case that “derives from an extrajudicial source” and “reveals a high
degree of favoritism and antagonism.” NLRB Bench Book § 2-410 (2019), https://www.nlrb.gov/sites/default/files/
attachments/basic-page/node-1727/alj_bench_book_2019.pdf. The Atomic Safety and Licensing Board (ASLB) of
the Nuclear Regulatory Commission is also subject to a highly discretionary regulatory standard and a far more
detailed and nuanced guidance document. See 10 C.F.R. § 10.2.313(b) (allowing for discretionary recusal to be
achieved sua sponte or on motion from a party in Atomic Safety and Licensing Board (ASLB) proceedings); U.S
Nuclear Regulatory Commission Staff Practice and Procedure Digest: Commission, Appeal Board and Licensing
Decisions § 2.9, 3.1.4, 5.13 (suggesting standards similar to those applied to federal judicial recusal for ASLB
proceedings), https://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr0386/d16/sr0386d16.pdf. The Merit
Systems Protection Board is in a similar situation. Compare 5 C.F.R. § 1201.42 (allowing for recusal “if a judge
considers himself or herself disqualified” or if a party submits a motion alleging “personal bias or other
disqualification”), with U.S. Merit Systems Protection Board, Judges Handbook 13 (2017) (“MSPB Judges
Handbook”) (describing as bases for disqualification a close personal or familial relationship between the judge and
a “party, witness or representative” in the case or the judge’s “personal bias or prejudice”), https://www.mspb.gov/
mspbsearch/viewdocs.aspx?docnumber=241913&version=242182&application=ACROBAT. As are immigration

12

simply mirror the APA standard, which states that an adjudicator “may at any time disqualify
himself,” but that “[o]n the filing in good faith of a timely and sufficient affidavit of personal
bias or other disqualification of [an adjudicator], the agency shall determine the matter as a part
of the record and decision in the case.”37
While it may be understandable for agencies to mirror the APA in their own recusal rules,
there are at least two reasons why this answer is not sufficient. First is that the phrase “deems it
necessary” connotes greater discretion for adjudicators facing a recusal issue than a statement
that an adjudicator “may” recuse themselves “at any time.” The former suggests a discretionary,
threshold determination of necessity before an adjudicator should recuse. Setting a threshold of
necessity for recusal shifts the adjudicator’s perspective toward remaining in the case absent a
determination that to remain would be untenable. Read this way, an adjudicator facing traditional
grounds for recusal could still decide not to recuse based on their determination that doing so is
not necessary for whatever reason. By contrast, the APA language is permissive. Rather than
creating a threshold to recusal, it can be read to offer adjudicators the opportunity to recuse
precisely when it may not be necessary. Consider a situation where an adjudicator may be
personally familiar with one of the parties to a proceeding and is concerned about the perception
that their participation in the adjudication might create. While this may not require recusal under
common law or other statutory standards, the adjudicator may feel like, for whatever reason, the
balance of considerations—such as public perception, institutional considerations, and fairness to
the parties—may weigh in favor of recusal. Under the APA’s “may [recuse] . . . at any time”
standard, an adjudicator would feel empowered to recuse out of prudence, even if they did not
feel it was absolutely necessary.
There is also a way to read the “deems it necessary” standard and the APA language
more harmoniously. Yet even if the APA standard is effectively indistinguishable from the
discretionary provisions cited above, it suffers from similar challenges. Conditioning mandatory
recusal standards on the parties’ decision to file a motion does not require the adjudicator to
recuse on their own accord, even in the most obvious cases. It instead relies on the parties to
initiate a recusal analysis. This is an important tool for parties in administrative adjudications,
but is a weak constraint on adjudicators who are not already inclined to recuse because it requires
parties to take an adversarial position against the adjudicator who is presiding over their cases
with full knowledge that the adjudicator has already declined to recuse on their own. While still
an important check on recalcitrant adjudicators—especially those subject to intra-agency review
of their recusal decision—it places a significant burden on the parties. Something as fundamental
judges. Compare 8 C.F.R. § 1240.1(b) (“The immigration judge assigned to conduct the hearing shall at any time
withdraw if he or she deems himself or herself disqualified.”), with Office of the Chief Immigration Judge,
Operating Policies and procedures Memorandum 05-02: Procedures for Issuing Recusal Orders in Immigration
Proceedings (U.S. Dep’t of Justice Exec. Office for Immigration Review Mar. 21, 2005) (outlining detailed recusal
standards).
37
5 U.S.C. § 556(b).

13

as the adjudicator’s personal bias should be mandatory grounds for recusal regardless of whether
the parties are aware of it or raise it in a motion.38
In terms of its messaging, a purely discretionary standard could create the sense that
recusal is never objectively necessary. When recusal is left wholly to the adjudicator’s discretion,
it portrays recusal as a prudential, rather than a legal decision. Prudential considerations may be
necessary in the most difficult recusal cases, but are not, and have historically not been treated
as, relevant in clear cases like those involving personal bias, even though some instances of bias
are not covered by constitutional or statutory recusal standards.39 Most importantly, discretionary
recusal standards encourage public skepticism about the integrity of agency adjudicators because
they appear to allow for seemingly arbitrary recusals. This is not to suggest that adjudicators
themselves are incapable of understanding or applying those standards in a principled, consistent
way; concerns about perception surrounding recusal are important regardless of whether
individual adjudicators are making sound recusal decisions. Such concerns could be controlled in
part by allowing for appellate-style review of recusal, but not all agencies have such a system,
and to depend on appellate review to address the problem could be costly and inefficient.
Moreover, review of recusal decisions traditionally includes only decisions not to recuse, leaving
agencies with the choice to review all recusal determinations (a far more significant
administrative commitment) or to leave open the possibility of arbitrary decisions to recuse
under a discretionary standard.40
Discretionary standards are of course far less problematic when they are part of a larger
recusal standard that includes mandatory requirements and relies on the discretionary recusal
clause as a catch-all in case something unforeseen should occur that merits recusal. While using
discretionary standards as a catch-all does have intuitive appeal and could be helpful in focusing
adjudicators on the contextual nature of recusal decisions, the same pitfalls attach. Discretionary
38

See supra note 35 (collecting citations). Presumably, a mandatory bias requirement would be enforceable on
review of the adjudicator’s final decision, whereas a bias standard that is only triggered by a party’s motion to the
adjudicator in question could be waived on review.
39
Due process addresses extreme financial and personal conflicts, but the Supreme Court has made clear that “most
matters relating to judicial disqualification [do] not rise to a constitutional level” and that “’matters of kinship,
personal bias, state policy, [and] remoteness of interest, would seem generally to be matters merely of legislative
discretion.” Caperton, 556 U.S. at 876. The Office of Government Ethics (OGE) standards govern some financial
and personal conflicts, but only in specific situations, and the APA applies only to ALJs. See 5 U.S.C. § 556(b)
(APA); 5 C.F.R. § 2635.502 (OGE). One important caveat about the relevance of prudential considerations pertains
to courts of last resort, such as the United States Supreme Court, that do not allow for replacement judges or justices
in instances of recusal. See Louis J. Virelli III, The (Un)Constitutionality of Supreme Court Recusal Standards, 2011
WIS. L. REV. 1181 (arguing that institutional concerns about the number of justices participating in a case must be
part of the recusal analysis at the Supreme Court, and arguing that recusal standards that limit those considerations
by the justices are unconstitutional). Since the overwhelming majority of adjudicators covered by the recusal
standards in this study are not adjudicators of last resort and are replaceable when recused, the issues raised by
Supreme Court recusal are not significant here.
40
For further discussion of whether decisions to recuse should be reviewable, see infra Part III.B.4.

14

standards still empower adjudicators without guiding them, leading to the potential for actual and
perceived arbitrariness. For recusal standards that include both mandatory and discretionary
provisions, the threat of arbitrariness or the perception thereof in recusals under a discretionary
standard is in direct proportion to the depth and clarity of the mandatory standards. When
mandatory standards are clear and comprehensive, the likelihood of relying on a discretionary
provision decreases, and the problems created by a discretionary provision are curtailed. Public
accountability for a discretionary recusal decision is in turn magnified because the choice to rely
on a discretionary provision necessarily indicates that the mandatory grounds for recusal did not
apply, thereby offering insight into the basis for the exercise of discretion regardless of whether
the adjudicator chooses (or is required) to publicly explain their decision.
3. Financial and Other Conflicts of Interest (Family and Professional Relationships)
The situation most closely associated with recusal is the conflict of interest. From
Justinian to Blackstone, legal systems sought to protect litigants from judges who are financially
invested in the outcome of their case or who have a personal relationship with one of the
principles—a party, witness, or lawyer—in the proceeding. The Office of Government Ethics
(OGE) takes a similar approach to regulating the conduct of all government employees,
including agency adjudicators.41 It comes as little surprise, then, that several agencies follow the
same approach in their own recusal standards. The Patent Trial and Appeal Board’s (PTAB’s)
Standard Operating Procedures42 defines prohibited “conflicts of interest” for its adjudicators by
reference to the Patent and Trademark Office Summary of Ethics Rules, which in turn relies on
the OGE rules for all government employees.43
Among agencies with their own conflicts-based recusal standards, some of the clearest
examples come from the Department of Agriculture. Although specific subunits within the
Department have slightly varying standards, taken together they show a clear theme of conflictsbased recusal regulation.44 For example, the Department of Agriculture regulation covering
enforcement by the Secretary of thirty-eight different statutes forbids assignment of an ALJ to

41

See 18 U.S.C. § 208; 5 C.F.R. § 2635.502.
Patent Trial and Appeal Board, Standard Operating Procedure 1 (Revision 15): Assignment of Judges to Panels 34 (Sept. 20, 2018), https://www.uspto.gov/sites/default/files/documents/SOP%201%20R15%20FINAL.pdf.
43
See U.S. Patent and Trademark Office, Summary of Ethics Rules 3-4 (Apr. 22, 2019), https://www.uspto.gov/
sites/default/files/documents/SOP%201%20R15%20FINAL.pdf
44
Compare 7 C.F.R. § 1.144 (precluding ALJs in the Department of Agriculture for participating in cases where
they have a pecuniary interest, are related to any party, or have any other conflict), with 7 C.F.R. § 47.11 (precluding
participation of potential examiners in proceedings of the Agricultural Marketing Service if they have a pecuniary
interest in the proceeding or are related to any person involved in that proceeding). Like the Department of
Agriculture, HHS also has relatively consistent conflicts standards across different agency adjudicators. See 42
C.F.R. §§ 423.1026, 423.2026 (disqualifying ALJs from participating in initial hearings or appeals related to the
voluntary Medicare prescription drug benefit for personal bias or conflicts of interest); 42 C.F.R. § 405.1817 (same
for contract hearing officers presiding over provider reimbursement determinations).
42

15

any case where the ALJ “(1) has any pecuniary interest in any matter or business involved in the
proceeding, (2) is related within the third degree by blood or marriage to any party to the
proceeding, or (3) has any conflict of interest which might impair the Judge's objectivity in the
proceeding.”45 The Agricultural Marketing Service regulation covering proceedings under the
Perishable Agricultural Commodities Act46 states that “[n]o person who (1) has any pecuniary
interest in any matter of business involved in the proceeding, or (2) is related within the third
degree by blood or marriage to any of the persons involved in the proceeding shall serve as
examiner in such proceeding.”47
Other agencies or subunits use conflicts standards in similar ways,48 and still others
combine conflict of interest standards with other provisions, most commonly prohibitions against
personal bias.49 Although personal bias and conflicts are sometimes used interchangeably, they
are conceptually distinct for recusal purposes. Conflicts of interest do not connote any specific
45

7 C.F.R. § 1.144. This regulatory language articulates the grounds on which an ALJ may not be assigned, rather
than when recusal is required. The recusal provision of the rule instead focuses on procedure and includes the “for
any reason deemed by the Judge to be disqualifying” catch-all. There are at least two explanations for why some of
the conflicts-based rules describe the standard as an ex ante assignment rule and others as an ex post recusal
standard. The first is a matter of style. There is little practical difference in terms of the protections offered to
litigants and the message sent to the regulated public by a standard that prohibits assignment versus one that requires
recusal, especially if the regulation focusing on assignment includes a mechanism for seeking recusal when an
inappropriate assignment has been made. The second is that the OGE rules governing federal employees address
virtually identical conflict of interest situations as the recusal provisions, but the OGE rules’ contemplated remedies
include assignment and discipline; they do not mention recusal. See, e.g., 5 C.F.R. § 2635.502 (stating that an
employee “should not participate” in a matter where the employee knows either that they have a direct financial
interest in the matter or that a person with whom the employee “has a covered relationship is or represents a party”
and the “circumstances would cause a reasonable person . . . to question his impartiality in the matter”). To the
extent a recusal rule drafter is looking to the OGE standards as a reference for a recusal regulation, it is
understandable why they may choose to describe the prohibition on conflicts of interest as the OGE rules do; as an
ex ante assignment constraint, rather than an ex post recusal requirement. Regardless of the precise reason, the
difference between assignment and recusal provisions is largely irrelevant for present purposes. As mentioned
above, the normative issues surrounding prohibitions on conflicts of interest for agency adjudicators are effectively
identical whether they are framed as questions of assignment or recusal.
46
7 U.S.C § 499m(c).
47
7 C.F.R. § 47.11(a).
48
See , e.g., 20 C.F.R. § 725.352 (Department of Labor) (“No adjudication officer shall conduct any proceedings in
a claim in which he or she is prejudiced or partial, or where he or she has any interest in the matter pending for
decision.”); 20 C.F.R. § 260.3(e ) (Railroad Retirement Board) (“The [hearing] shall be conducted by a person who
shall not have any interest in the parties or in the outcome of the proceedings, shall not have directly participated in
the initial decision which has been requested to be reconsidered and shall not have any other interest in the matter
which might prevent a fair and impartial decision.”). A complete accounting of recusal provisions based on conflicts
of interest is provided in Table 4, infra.
49
See, e.g., 13 C.F.R. § 134.218(c) (SBA) (“[A] Judge will promptly recuse himself or herself from further
participation in a case whenever disqualification is appropriate due to conflict of interest, bias, or some other
significant reason.”); MSPB Judges Handbook, supra note 36, at 14 (describing as a basis for disqualification of an
administrative judge (AJ) the situation where “(a) A party, witness, or representative is a friend or relative of, or has
had a close professional relationship with the AJ; or (b) Personal bias or prejudice of the AJ.”). A collection of
recusal provisions based on personal bias or prejudice is provided in Table 5, infra.

16

feelings or point of view about the parties or participants in the suit, whereas personal bias is
based on those same feelings or points of view. For example, an adjudicator could be presiding
over a case in which she has a longstanding feud with one of the parties but has a financial
interest in that party prevailing. Both issues have ramifications for the fairness and public
perception of the proceeding, but they do not perfectly overlap. It therefore makes sense for
agencies to include both factors in a recusal regulation, and for a normative analysis of that
regulation to treat each factor separately.
Conflicts-based provisions are certainly useful recusal measures. They go directly to the
issue of fairness for litigants, as they protect against adjudicators being tempted to make
decisions on a basis other than the appropriate sources: the facts, law, and policy decisions
relevant to the parties and the agency. They also meet the public’s expectations for impartial
adjudicators—objective, even-handed, and (ideally) independent—which promotes confidence in
agency adjudication. Conflicts provisions additionally tend to be clear and easy to apply.
Financial conflicts should be a simple matter of fact that is easily discoverable by requiring
annual financial disclosures (as many government entities do), which could also include
information about business relationships and employment arrangements.
Familial and personal conflicts may be harder to discover, and they create drafting
challenges as to how close a relationship is permissible between an adjudicator and a participant
in the proceeding. The challenge of learning about an adjudicator’s relationships can be
alleviated somewhat by clear line-drawing regarding which relationships are acceptable. If
acceptable levels of sanguinity are included in the provision, as many of the agencies with
conflicts-based recusal standards have done,50 then requiring adjudicators to disclose their family
tree to that level of relation could preempt any confusion in a specific proceeding. The Selective
Service System, for instance, prohibits adjudicators from participating “in the case of a registrant
who is the [adjudicator’s] first cousin or closer relation either by blood, marriage, or adoption.”51
This is a relatively straightforward and objective test that sends a clear signal about the agency’s
interest in protecting against adjudicators who could have difficulty remaining impartial. Nonfamilial relationships are harder to characterize and identify, but that may just counsel in favor of
a conservative approach to “friendship” recusal. Historically we have not required judges to
recuse based on close friendships with participants in a case (although some judges choose to do
so anyway in an abundance of caution). To the extent administrative recusal regulations only

See, e.g., 9 C.F.R. § 202.118(d) (USDA Agricultural Marketing Service Rule requiring recusal of a “presiding
officer” who “is related within the third degree, by blood or marriage, to any party in the proceeding”); 32 C.F.R. §§
1605.6, 1605.25, 1605.55 (Selective Service rules requiring recusal of official “who is the member's first cousin or
closer relation either by blood, marriage, or adoption”); U.S. Equal Employment Opportunity Commission,
Handbook for Administrative Judges (July 1, 2002) (on file with author) (requiring recusal of administrative judge
when “a party is a member of his/her household, [or] a close relative”).
51
32 C.F.R. §§ 1605.25(a), 1605.55(a), 1605.6(e).
50

17

address recusal in the closest of relationships, they remain in line with judicial standards while
remaining less intrusive and easier to administer.
The most significant problem with conflicts-based recusal provisions is that they are
under-inclusive. As mentioned above, conflicts and personal bias are distinct concepts, so an
agency that stops at a conflicts standard is necessarily leaving itself vulnerable to both biased
proceedings and, more likely and perhaps more troubling, to the perception that the agency has
not sought to protect its litigants against biased adjudicators. This perception problem is
particularly important for an agency that is under close public scrutiny.
Conflicts-based recusal standards are often closely aligned with the OGE rules for
government employees.52 This is not inherently problematic, as recusal rules focus on a
remedy—removal of an adjudicator from a specific case—that OGE rules may not offer. Recusal
rules offer the benefit of being applied and interpreted with adjudication in mind, whereas OGE
rules apply to all federal employees and thus may be interpreted and applied in ways that would
not be best suited to fostering fair and legitimate agency adjudication. The difficulty arises when
agencies simply cross-reference or incorporate OGE rules into recusal standards, as in the
PTAB’s Standard Operating Procedures.53 If done conscientiously, agencies can use crossreferences and incorporation for drafting convenience and still preserve the distinct features of
administrative recusal. They should be vigilant, however, about avoiding conflation and public
confusion.
4. Prior Involvement with the Case or Subject Matter
Concerns about adjudicators with a prior involvement in the case before them is generally
reserved to activity performed within the agency prior to becoming an adjudicator, or as an
attorney practicing before the agency. Hearing officers presiding over investigations and
disciplinary proceedings for the PTO “shall not be an individual who has participated in any
manner in the decision to initiate the proceedings, and shall not have been employed under the
immediate supervision of the [subject of the disciplinary proceeding].”54 The Department of
Health and Human Services (HHS) and the Railroad Retirement Board (RRB) have similar
provisions prohibiting an initial adjudicator from participating in the review of a contract
reimbursement in which he or she directly participated (HHS) and in the review of an initial
determination of benefits under the Railroad Retirement Act (RRB) for which he or she had any
direct responsibility.55 These examples, however, are relatively few and far between; they do not
52

See 29 C.F.R. § 4003.2 (PBGC).
Patent Trial and Appeal Board, Standard Operating Procedure 1 (Revision 15): Assignment of Judges to Panels
(Sept. 20, 2018), https://www.uspto.gov/sites/default/files/documents/SOP%201%20R15%20FINAL.pdf.
54
37 C.F.R. § 11.39(b)(3).
55
20 C.F.R. § 260.3 (RRB) (“The reconsideration of the initial [benefits determination] shall be conducted by a
person who shall not have . . . directly participated in the initial decision which has been requested to be
53

18

reflect a widespread commitment among recusal regulators to protect against prior involvement
in a case. It is certainly possible, given the nature of agency adjudication, that most agency
adjudicators did not have any previous involvement in a case before them. While this is a
rational basis for not including a provision addressing prior involvement in a recusal regulation,
it overlooks two issues.
First, prior involvement clauses are not difficult to draft (see the above examples) and are
easy to understand and apply. To the extent they prove to be a solution without a problem, little
is lost from the perspective of agency time and resources. To the extent a prior involvement issue
arises, a recusal provision designed to address the problem could be extremely valuable, as it
would put both the presiding adjudicator and any potential reviewers of the adjudicator’s recusal
decision on notice that the agency takes such situations seriously and expects the adjudicator to
address them. The fact that OGE rules contemplate prior involvement can help mitigate the
potential downside of leaving the provision out of a recusal rule, but OGE rules do not, in and of
themselves, remedy the problem. Even if government employees, including agency adjudicators,
are prohibited from participating in cases in which they have some prior involvement, the lack of
a recusal remedy leaves adjudicators in the awkward position of being disciplined for something
that could have been easily remedied via recusal.
Second, prior involvement provisions not only benefit litigants, who are protected from
adjudicators who have an extrajudicial perspective on their case, but also serve recusal’s public
perception goal. Including a prior involvement provision in a recusal rule strengthens the public
perception that agencies are expressly seeking to preempt concerns about agency adjudicators
with prior exposure to, or involvement in, the case. This approach could be particularly valuable
in the administrative (as opposed to judicial) recusal context because much of the skepticism
around agency adjudication is based on the relationship between the agency and its adjudicator
employee,56 and the existence and applicability of OGE rules is not likely to be as readily
apparent to the general public.
5. Personal Bias
Personal bias is a core feature of modern recusal doctrine.57 The APA addresses recusal
in adjudications covered by §§ 554, 556, and 557 of the Act by requiring recusal “[o]n the filing
reconsidered. . . .”); 42 C.F.R. § 405.1817 (CMS) (“The hearing officer or officers shall not have had any direct
responsibility for the program reimbursement determination with respect to which a request for hearing is filed. . .
.”). Recusal standards incorporating the prior involvement approach are included in Table 4, infra.
56
See, e.g., Greenberg v. Board of Governors of Federal Reserve System, 968 F.2d 164, 167 (1992) (explaining that
recusal cannot be applied in the same way to federal judges and ALJs due at least in part to ALJ’s employment
relationship with the agency); Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REV.
1231, 1248 (1994) (describing the close relationship between agency adjudicators and agency heads).
57
For centuries of English common law, judicial recusal was only required in cases of financial interest. See
FLAMM, supra note 7, at 7 (“Under early English law a judge could be disqualified from presiding over a matter only

19

in good faith of a timely and sufficient affidavit of personal bias or other disqualification.”58 It is
thus no surprise that bias is a recurring feature in a large percentage of agency recusal rules.59 As
with discretionary recusal provisions, issues of bias appear most often in situations where bias is
the basis for a party’s recusal motion or affidavit; the adjudicator is often not bound to recuse
themselves based on their own, known biases.60 That raises some potential challenges in terms of
both efficacy and perception. The cost of linking personal bias and mandatory recusal is small,
but the benefits could be significant. Even if we do not trust adjudicators to recuse themselves on
bias grounds,61 setting mandatory recusal standards based on personal bias would give parties
more traction on review to have biased adjudicators removed and fairness restored to their
proceeding.
The obvious importance of protecting against personal bias in adjudication gives rise to at
least two arguments against including bias-based recusal provisions in agency rules. One is that
the Due Process Clause already addresses actual bias and that any attempt to regulate in the same
area would be at best meaningless and at worst potentially confusing. It is true that due process
guarantees a degree of impartiality in agency adjudication, but it does not go nearly as far as
courts and agencies have and should to properly protect litigants. The Supreme Court has
consistently held that “most matters relating to judicial disqualification [do] not rise to a
constitutional level,”62 and that “’matters of kinship, personal bias, state policy, [and] remoteness
of interest, would seem generally to be matters merely of legislative discretion.’”63 This serves as
a reminder that constitutional protection in recusal standards operates as a floor, leaving to
lawmakers the broader universe of situations that could raise concerns about the impartiality and
legitimacy of an adjudicator’s decision.
The other argument relies on the fact that Congress has already dealt with the issue of
personal bias in agency adjudication through the APA’s impartiality requirement.64 There are
when he could be shown to possess a disqualifying pecuniary interest . . . .” (citing John P. Frank, Disqualification of
Judges, 56 YALE L.J. 605, 609 (1947)).
58
5 U.S.C. § 556(b).
59
42 C.F.R. §§ 405.1817, 405.1847, 405.1026, 423.1026., 498.45 (HHS—CMS, DBA, PRB, OMHA); 13 C.F.R. §
134.218 (SBA); CG ALJ Guidelines, supra note 49, at 2; MSPB Judges Handbook, supra note 35, at 13.
60
See supra note 35 (collecting citations).
61
There is an ongoing debate over whether bias is a problem that is overlooked because individuals have difficulty
finding bias in themselves or whether judges are simply good at overlooking potential bias in their decisions. It is
worth clarifying that enthusiasm for bias-based recusal provisions should not be construed as concern that agency
adjudicators struggle with impartiality. There is currently no evidence of an impartiality crisis is agency
proceedings. That is why issues of perception are so critical to the analysis. We cannot confuse what we know and
take for granted about the integrity of our adjudicators with public confidence in the system. That is where agency
recusal is likely to make the greatest contribution at minimal cost to agency efficacy and efficiency.
62
Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876 (2009) (quoting FTC v. Cement Inst., 333 U.S. 683, 702
(1948)).
63
Id. (quoting Tumey v. State of Ohio, 273 U.S. 510, 523 (1927)).
64
5 U.S.C. § 556(b).

20

two responses to this point, beyond acknowledging that it is of course correct. The first is that
many of the proceedings that fit within this study’s definition of legally required evidentiary
hearings are not presided over by ALJs and thus are not covered by the APA’s impartiality
language. For that reason alone, agencies should adopt bias provisions for agency adjudicators
not covered by the APA.
The second argument is that public perception benefits less from the implicit
incorporation of the APA into ALJ proceedings than it would from the express prohibition of
biased adjudicators in an agency rule. At worst a bias-based recusal provision could be seen as
redundant and thus ineffective. At best, however, a bias provision portrays the agency as
concerned with one of the core drivers of our principle of due process—an impartial
decisionmaker. The upside of including a bias provision thus likely outweighs the potential
downside of being viewed as redundant.
6. Protecting the Appearance of Impartiality
Some agencies have come close to adopting judicial recusal standards without actually
doing so.65 The Equal Employment Opportunity Commission’s (EEOC’s) Handbook for
Administrative Judges states that the “Administrative Judge should recuse himself/herself from
both real and perceived conflicts of interest,” but goes on to say that recusal is not required
where “no reasonable person knowing all the facts would question [the AJ’s] impartiality.”66 The
Provider Reimbursement Review Board (PRRB), a subunit of the Center for Medicare and
Medicaid Services (CMS), requires recusal of a board member who “is prejudiced or partial with
respect to any party or . . . has any interest in the matter pending for decision,” and Rule 45 of
the PRRB Rules explains that a “Board member may recuse him or herself if there are reasons
that might give the appearance of an inability to render a fair and impartial decision.”67 As
discussed in greater detail above, this focus on appearances is an important part of recusal
theory, but it is somewhat fraught in the agency context due to adjudicators’ policymaking
obligations and the inevitable inter-connectedness between those adjudicators and the agency
that not only employs them, but also regularly appears before them as a party. Still, with
See, e.g., HALLEX I-3-1-40 (SSA) (“An administrative appeals judge (AAJ) or appeals officer (AO) must
disqualify or recuse himself or herself from adjudicating a case and request reassignment if . . . The AAJ or AO
believes his or her participation in the case would create an appearance of impropriety . . . .”); U.S Parole
Commission Rules and Procedures Manual, at M-03 (June 30, 2010) (“A hearing examiner or Commissioner shall
disqualify himself when it reasonably appears that he may have a conflict of interest or that his participation in the
hearing might place the Commission in an adverse situation.”) (on file with author). For efficiency purposes, recusal
provisions incorporating appearance standards have been included alongside truly quasi-judicial standards in Table
6, infra.
66
U.S. Equal Employment Opportunity Commission, Handbook for Administrative Judges, at III.A.1. (July 1,
2002), https://permanent.access.gpo.gov/LPS105796/LPS105796/archive.eeoc.gov/federal/ajhandbook.html.
67
Provider Reimbursement Review Board Rules 58 (Aug. 29, 2018) (“PRRB Rules”), https://www.cms.gov/
Regulations-and-Guidance/Review-Boards/PRRBReview/Downloads/PRRB-Rules-August-29-2018.pdf.
65

21

thoughtful implementation, the agency should be able to maintain the necessary balance between
public perception and administrative efficacy and efficiency. Regulating the appearance of
impartiality must be done explicitly in order to gain the public perception benefits, but it cannot
be done to the detriment of the agency’s ability to fully and finally adjudicate.
It is also worth noting that the appearance standard adopted by the EEOC and PRRB both
appeared in guidance documents, rather than regulations.68 This may be a coincidence, but it may
also reflect the difficult problem of balancing public perception with functionality; even if
appearance standards appear only in guidance documents, they can still send the desired message
that the agency values impartial adjudication while also allowing for some flexibility among
adjudicators to weigh the appearance of their participation against the realities of staffing
concerns and policymaking. A shortcoming of the EEOC model is that the Handbook only
addresses personal conflicts and the appearance of partiality that can accompany them. It does
not explicitly mention any of the other grounds for recusal—personal bias, financial conflicts,
and prior involvement—that can be harmful to litigants and weaken the public’s confidence in
administrative adjudication. The PRRB standard includes conflicts and bias, but it still does not
cover the full panoply of reasons to recuse. Recusal rules that are concerned with public
perception advance their ability to promote public confidence in administrative adjudication, but
must be careful not to do so at the expense of fairness to litigants.
7. (Quasi-) Judicial recusal
The most comprehensive agency recusal standards are those that approximate judicial
standards, whether by incorporating the federal judicial recusal statute directly, referring to
model codes or canons of judicial ethics, or explicitly including all the features of judicial
recusal.69 The common features of modern judicial recusal are those already discussed above—
conflicts of interest, prior involvement, personal bias, and the appearance of impartiality. A small
group of agency rules include all of these features, almost exclusively by incorporating judicial
recusal sources into their administrative recusal standards. One clear example is the Department
of the Interior, which has two separate regulations requiring adjudicators to recuse themselves
“from a case if circumstances exist that would disqualify a judge in such circumstances under the
recognized canons of judicial ethics.”70 Another is a recently adopted regulation from the
Occupational Safety & Health Review Commission (OSHRC), which states that “[a] Judge shall
recuse himself or herself under circumstances that would require disqualification of a federal
judge under Canon 3(C) of the Code of Conduct for United States Judges.”71 Canon 3(C) is
The PRRB’s conflicts and bias provisions are in a recusal rule, but the appearance standard is not. Compare 42
C.F.R. § 405.1847, with PRRB Rules, supra note 66, at 58.
69
For list of quasi-judicial standards, see Table 7, infra.
70
43 C.F.R. § 4.27(c); 50 C.F.R. § 18.76 (Fish and Wildlife Service).
71
29 C.F.R. § 2200.68. Canon 3(C) reads, in pertinent part, as follows:
(C) Disqualification.
68

22

virtually indistinguishable from the federal recusal statute.72 Others have followed suit to varying
degrees of specificity, but agencies with recusal rules that mirror federal judicial standards are a
distinct and small minority. They do include, however, by far the most active agency adjudicator
in the study, the Social Security Administration (SSA), as well as the DOJ’s Executive Office of
Immigration Review (DOJ EOIR) and the Nuclear Regulatory Commission (NRC).73 None of
the three have adopted binding regulations governing recusal, but all have issued guidance
documents that explicitly include features like protections for conflicts, prior involvement,
personal bias, and the appearance of impartiality.74 A 2005 DOJ EOIR memorandum from the
Chief Immigration Judge stated that the federal recusal statute, while it “does not specifically
mention immigration judges . . . offers strong guidance on the recusal issue,”75 and the NRC’s
Staff Practice and Procedure Guide specifically refers to the federal statute in describing its
desired approach to recusal.76 Explicitly incorporating judicial standards, including protection for
(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might
reasonably be questioned, including but not limited to instances in which:
(a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of
disputed evidentiary facts concerning the proceeding;
(b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge
previously practiced law served during such association as a lawyer concerning the matter, or
the judge or lawyer has been a material witness;
(c) the judge knows that the judge, individually or as a fiduciary, or the judge’s spouse or
minor child residing in the judge’s household, has a financial interest in the subject matter in
controversy or in a party to the proceeding, or any other interest that could be affected
substantially by the outcome of the proceeding;
(d) the judge or the judge’s spouse, or a person related to either within the third degree of
relationship, or the spouse of such a person is:
(i) a party to the proceeding, or an officer, director, or trustee of a party;
(ii) acting as a lawyer in the proceeding;
(iii) known by the judge to have an interest that could be substantially affected by the
outcome of the proceeding; or
(iv) to the judge’s knowledge likely to be a material witness in the proceeding;
(e) the judge has served in governmental employment and in that capacity participated as a
judge (in a previous judicial position), counsel, advisor, or material witness concerning the
proceeding or has expressed an opinion concerning the merits of the particular case in
controversy.
https://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges.
72
28 U.S.C. § 455.
73
As of July 10, 2018, SSA employed over 85 percent of all federal ALJs (1655 out of 1931). OPM List, supra note
23.
74
See, e.g., HALLEX I-2-1-60 (SSA) (““ALJ may withdraw from the case if . . . [t]he ALJ believes his or her
participation in the case would give an appearance of impropriety.”).
75
Department of Justice Executive Office for Immigration Review, Memorandum from The Office of the Chief
Immigration Judge to All Immigration Judges et al., at 2 n.2 (March 21, 2005), https://www.justice.gov/sites/default/
files/eoir/legacy/2005/03/22/05-02.pdf.
76
U.S. Nuclear Regulatory Commission Staff Practice and Procedure Digest 3.1.4.2 (June 2011) (“Although the
disqualification standard for federal judges in 28 U.S.C. § 455 does not by its terms apply to administrative judges,
the Commission and its adjudicatory boards have applied it in dispositioning motions for disqualification under 10
C.F.R. § 2.313.”), https://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr0386/d16/sr0386d16.pdf.

23

the appearance of impartiality, comes closer to fulfilling the dual promises of recusal theory than
any other administrative recusal standards.
The remaining issues are whether smaller organizations with specific policy missions are
able to apply broad judicial recusal standards without infringing on the agency’s ability to fulfill
its mission, both with regard to the parties in its adjudications and its broader constituents. The
remaining categorizations of agency recusal regulations will take a closer look at those issues.
B. Recusal Procedures
Among agencies that have set their own substantive recusal standards, most have also
adopted some procedural regime to facilitate enforcement of those substantive standards.77
Setting procedural standards for recusal is important because it increases the likelihood that
recusal will be utilized effectively. Procedural standards establish consistent mechanisms for
resolving recusal issues, which ideally will make the process better informed, easier to
administer, and more transparent, all of which inure to the benefit of the parties and the
observing public. The following represents some of the features of recusal procedure adopted by
adjudicating agencies. Although each feature represents a positive contribution to the overall
recusal process, they may work best in combination.
1. Recusal Motions
The majority of agency recusal regimes allow for parties to file motions requesting their
adjudicator’s recusal. In practice, the existence of agency-specific procedural rules generally
does not depend on the level of sophistication of the substantive standards the procedural
standards seek to facilitate. Some agencies allow for parties to file a recusal motion despite not
setting any substantive standards at all. The Federal Housing Finance Agency (FHFA), for
example, allows an adjudicator to “[r]ecuse himself upon his own motion or upon motion made
by a party,” without any explicit guidance about the factors an adjudicator should consider in
deciding whether that motion should be granted.78 Other agencies set vague, highly discretionary
standards for adjudicators, yet allow for recusal motions only on more concrete grounds, like
personal bias.79 The Federal Communications Commission (FCC) allows an adjudicator to
recuse whenever he “deems himself disqualified,” but also allows parties to file motions to
recuse “based upon personal bias or other grounds.”80

77

Of the total of approximately 100 agencies, subunits, and offices that have adopted some type of recusal standard,
over half (approximately 63) have adopted some form of recusal procedure.
78
12 C.F.R. § 1209.11(b)(13).
79
See supra note 35 (collecting citations).
80
47 C.F.R. § 1.245.

24

The overwhelming majority of procedural standards leaves the initial recusal
determination to the adjudicator whose participation is being questioned and empowers parties to
the adjudication to file a motion requesting the adjudicator to recuse themselves.81 This approach
is legitimizing for administrative recusal both because it tracks well-known and accepted judicial
recusal procedures and because it adds to the integrity of the recusal decision by allowing parties
to offer grounds for recusal that the presiding adjudicator either was unaware of or refused to
acknowledge. The parties’ ability to seek recusal decreases the likelihood that genuine reasons to
recuse will go unnoticed and incentivizes adjudicators to come forward early with information
that may lead to their recusal, which creates a more efficient and transparent process.
Adjudicators deciding their own recusal status also discourages parties from using recusal
as a means of judge shopping to avoid unsympathetic adjudicators. Despite taking recusal
seriously, agencies also encourage adjudicators not to recuse without sufficient grounds.
Maintaining as a default position that adjudicators will resolve the cases assigned to them
discourages adjudicators from succumbing to judge shopping in its most blatant form. It also
provides cover for adjudicators to deny recusal motions attacking their competency without
appearing defensive or obstinate; an initial adjudicator may be reluctant to deny an overly
aggressive recusal motion, especially if it contains allegations that directly implicate the
adjudicator’s integrity. Internal agency review of recusal decisions is helpful in this regard—it
protects the parties from misguided denials of recusal motions and protects adjudicators from
appearing to be self-serving when denying overly aggressive recusal requests.
2. Affidavits
Several of the provisions permitting recusal motions also require an affidavit from the
movant asserting the factual grounds for recusal. The adjudicator is then tasked with evaluating
81

One exception to this practice of adjudicators making their own initial recusal decisions is in Department of
Agriculture (USDA) proceedings under the Packers and Stockyards Act. Rule 18 of the USDA Rules of Practice for
those proceedings allows a party to file a motion with the “judicial officer” seeking recusal of the “presiding
officer.” The “presiding officer” is “any attorney who is employed in the Office of the General Counsel of the
[USDA] and is assigned so to act in a reparation proceeding.” 9 C.F.R. § 202.102. The “judicial officer” is the “final
deciding officer in adjudicatory proceedings subject to 5 U.S.C. 556 and 557.” 9 C.F.R. §§ 202.102, 2.35. In this
instance, the judicial officer reviews decisions of the presiding officer, yet is also the person responsible for the
initial resolution of motions to recuse the presiding officer.
Several other agencies have similar provisions placing the initial recusal decision in an official other than
the adjudicator being challenged. See, e.g., 18 C.F.R. § 385.504(c)(2) (FERC rule allowing for motion to
Commission to request “removal of any presiding officer from a proceeding”); 45 C.F.R. § 16.5 (HHS Departmental
Board of Appeals rule stating that the “Chair will assure that no Board or staff member will participate in a case
where his or her impartiality could reasonably be questioned”); 49 C.F.R. § 511.42 (NHTSA rule allowing for
parties to request disqualification of “the presiding Officer” by “fil[ing] with the Chief Administrative Law Judge
motion to disqualify”); 49 C.F.R. § 821.15 (NTSB rule requiring recusal motions pertaining to an individual Board
Member be filed with “the Board”); POMS DI 33015.045 (stating that the decision to disqualify a SSA Disability
Hearing Officer must be made by the SHO [Supervisory Hearing Officer]”).

25

the affidavit to determine if recusal is warranted.82 Like allowing the adjudicator to resolve their
own recusal issues in the first instance, affidavits have been part of federal judicial recusal for
over a century. The value of affidavits to the recusal process has, however, been a bit
controversial. As early as 1911, affidavits were used as grounds for peremptory recusals of
federal judges; if a party filed an affidavit asserting facts that met the recusal standard, the judge
was required to recuse as a matter of law.83 Only ten years later, the Supreme Court severely
limited the scope of peremptory recusals under the statute.84 In Berger v. United States, the Court
held that, in the face of a peremptory recusal under § 144, a judge must accept the veracity of the
facts alleged in the affidavit, but could determine for him or herself whether those facts met the
prevailing recusal standard. This empowered judges to prevent parties from judge shopping
through unfounded recusal motions, yet still held the judge responsible for applying the party’s
account of the facts to the governing legal standard. Although the Court’s holding only applies to
§ 144, and there is no case law explicitly applying this approach in the administrative context,
the Berger Court’s application of § 144 is instructive as to the use of affidavits in administrative
recusal.
The use of an affidavit strengthens the recusal process in several ways. Most importantly,
it prevents the adjudicator from being both the source of factual information and the ultimate fact
finder for their own recusal. Judges have a long history of being their own fact finders in recusal
decisions,85 and that fact has generated significant public skepticism about the integrity of the
process. Providing for a party’s affidavit is an improvement on a purely judge-driven process
because it incentivizes parties to file recusal motions by protecting them against self-interested
adjudicators. It also protects against baseless recusal motions by both constraining movants and
empowering adjudicators. The use of affidavits constrains movants by requiring them to make
their factual assertions under oath. Affidavits empower adjudicators by giving them freedom to
deny recusal requests that are unsupported by the facts, especially in cases where an adjudicator
is not required to recuse themselves under the applicable standard yet is wary about appearing
self-serving by denying a motion for their own recusal. If the party’s version of the relevant facts

See, e.g., 14 C.F.R. § 302.7 (DOT) (“If . . . there is filed with the administrative law judge . . . an affidavit of . . .
disqualification . . . the DOT decisionmaker shall determine the matter . . . as a part of the record . . . in the case.”);
29 C.F.R. § 2700.81(b) (FMSHRC) (“A party may request a Commissioner or a Judge to withdraw . . . by promptly
filing an affidavit setting forth in detail the matters alleged to constitute . . . grounds for disqualification.”); 34
C.F.R. § 81.5(d)(2) (DoEd) (“A party may file a motion to disqualify an ALJ under the standards in paragraph (c) of
this section. A motion to disqualify must be accompanied by an affidavit that meets the requirements of 5 U.S.C. §
556(b). Upon the filing of such a motion and affidavit, the ALJ decides the disqualification matter before proceeding
further with the case.”).
83
28 U.S.C. § 144.
84
Berger v. United States, 41 U.S. 230 (1921).
85
See Virelli, The (Un)Constitutionality of Supreme Court Recusal Standards, supra note 39, at 1195 (“In fact, at
English common law and throughout the history of American federal recusal law, judges have been empowered
to make the initial (and in the case of United States Supreme Court Justices, the final) ruling as to their own
recusal.”).
82

26

does not justify recusal, it is hard to perceive the adjudicator’s denial of a recusal motion as selfserving.
The potential drawback of allowing affidavits, of course, is the risk of a fact-finder's
reliance on unsupported, selective, or exaggerated facts. A clever party should have little trouble
fashioning an account of the grounds for recusal that meets the standard and is not facially
untenable.86 The danger of affidavits leading to unwarranted recusals can be limited on review of
the initial recusal decision, but that adds administrative costs and resources that could have been
avoided with a more robust fact-finding process at the outset. Other methods of discouraging
over-zealous use of affidavits would be to allow the opposing party to file an affidavit in
opposition to the motion, or to adjust the initial adjudicator’s standard of review from
peremptory recusal to a rebuttable presumption in favor of recusal. The presumption could be
rebutted by the adjudicator on the record, thereby deterring parties from unduly elaborating in
their affidavit and providing a reviewing entity additional information upon which to evaluate
the propriety of the initial decision. The difficulty with such an approach is the inherent tradeoff
between the benefits of adjudicators policing parties’ assertions and the costs of potentially
chilling the candor of those assertions.
In general, affidavits seem to be a generally sound way to communicate facts relevant to
administrative recusal. As with many issues in the recusal process, the challenge lies in
maintaining a workable, efficient process that does not overwhelm the agency’s adjudication
system while protecting against real and perceived self-dealing by either the parties or the
adjudicator.
3. Adjudicator Reporting Requirements
A potentially crucial feature of recusal procedure—as with all administrative procedure—
is the adjudicator’s explanation of their recusal decision. A few agencies require that adjudicators
explain their recusal decisions on the record, but the large majority are silent on the matter.87 The
APA states that for adjudications governed by §§ 554, 556, and 557, “the agency shall determine
[whether to recuse an adjudicator] as a part of the record and decision in the case.”88 Yet it is not
86

This risk may be less in the context of a sworn affidavit than in a recusal motion, but is still quite real; an affiant
can attest to certain facts that they know to be true and exclude others without necessarily violating their oath.
87
See, e.g., 24 C.F.R. § 26.5 (HUD) (“If a hearing officer does not withdraw, a written statement of his or her
reasons shall be incorporated in the record”); 47.C.F.R. § 1.245 (FCC) (“(1) The person seeking disqualification
shall file with the presiding officer an affidavit setting forth in detail the facts alleged to constitute grounds for
disqualification. . . . (6) The affidavit, response, testimony or argument thereon, and the Commission's decision shall
be part of the record in the case.”); 50 C.F.R. § 18.76 (DOI) (“If there is filed by a party in good faith a timely and
sufficient affidavit alleging [grounds for disqualification], the hearing shall recess. The Director of the Office of
Hearings and Appeals shall immediately determine the matter as a part of the record and decision in the proceeding .
. . .”).
88
5 U.S.C. § 556(b).

27

typical in practice for adjudicators—even those that adopt by rule the APA’s substantive
standard for recusal based on an “affidavit of personal or other disqualification”—to require, or
otherwise provide, a written explanation of their recusal decisions.89 This alone supports
establishing agency regulations that require ALJs to explain their recusal decisions, both as a
matter of compliance with the statute and to avoid the appearance of impropriety created by a
failure to comply.
It may be that more generalized rules regarding motions practice at the agency address
the issue, but that only highlights the value of an explicit cross-reference in the recusal
standards.90 Busy adjudicators have lots of valid reasons not to employ precious time and
resources explaining (at least in detail) their recusal decisions. Especially in cases where the
substantive recusal standard is highly discretionary or flexible, a stringent reporting requirement
could deter sua sponte recusal decisions. That is not to disparage adjudicators’ good faith in the
recusal process, but to highlight the importance of including specific reporting requirements that
serve the dual purpose of signaling the agency’s commitment to public dialogue about recusal
and considering the resource challenges that additional requirements inevitably create.
There are several specific benefits to adjudicators publicly explaining their recusal
decisions. First is that the increased transparency encourages adjudicators to be more thoughtful
about their reasons for recusal, including their reasons for taking themselves off of a particular
case. Because the adjudicator is often the primary source of the relevant facts regarding their
recusal as well as the official finder of fact for the initial recusal decision, increased transparency
encourages adjudicators to develop a complete record in support of their decision, rather than
merely relying on their own knowledge of the circumstances without articulating which facts are
most relevant and why. Increased transparency also operates as a check against unnecessary
recusals. The decision to leave can appear to be the “safer” position, especially in cases where
reassignment is relatively easy for the agency and its adjudicators. But too much risk aversion in
recusal can be damaging to an agency as well. If adjudicators are encouraged, or take it upon
themselves, to recuse in every case where a motion is filed, for instance, just to be abundantly
certain that no appearance of impropriety is attached to the case, then the value of substantive
recusal standards is diminished and parties may feel emboldened to use recusal to engage in
judge shopping. Requiring adjudicators to explain their recusal decisions publicly makes it more
difficult for them to exercise caution for caution’s sake, and pushes adjudicators to develop
norms and interpretive approaches to recusal that can help refine the standards and send a clearer
message to the affected public as to when and how recusal will be used by adjudicators in that
89

In fact, in at least one instance in which an agency utilizes ALJs for its adjudication under § 556(b) of the APA, it
explicitly states that the “judge . . . is not required to state the[ir] reason for recusal.” 43 C.F.R. § 30.130 (stating that
a judge presiding over Indian probate hearings for the Department of the Interior “must immediately file a certificate
of recusal in the case and notify the Chief ALJ . . . [but] is not required to state the reason for recusal”).
90
The present study did not include a broader review of generalized adjudication procedures that could affect
recusal—it is limited to regulations and agency guidance directly addressing recusal.

28

agency. Adjudicators’ explanations can also serve as guidelines for their colleagues to use in
future cases, thereby making recusal practices within the agency more uniform and, therefore,
easier to apply and evaluate for effectiveness going forward.91
A second reason for requiring explanations of recusal decisions is to facilitate more
insightful review of those decisions. As mentioned in the next subsection, many agencies with
recusal procedures include intra-agency review of those decisions. A written record of why a
recusal decision was made, although perhaps not limiting the scope of the reviewers’ inquiry,92
can both inform and guide the reviewers’ understanding of the issue. This is especially important
in light of the fact that initial adjudicators, who decide only their own recusal motions, may not
be as experienced in recusal matters as their reviewers, who will have access to recusal issues
from a wider body of initial adjudicators. Providing reviewers with an explanation of an
adjudicator’s reasoning allows reviewers to reach more informed outcomes in individual cases,
create a more coherent recusal regime for the agency, and educate less experienced initial
reviewers about recusal. This coherent view of recusal also helps maintain consistency within an
agency in the face of initial adjudicators being transferred from other agencies. An experienced
SSA ALJ, for example, may have a different, SSA-specific view of recusal than the agency that
they have been transferred to. A system of written recusal decisions allows for coordination both
horizontally (among initial adjudicators) and vertically (between initial adjudicators and
reviewers) that can make the entire recusal regime more effective by making it clearer and easier
to use as well as rendering it more accessible to prospective parties and the public at large.
A third reason is that written recusal decisions comport with our general understanding of
administrative law in adjudications. Courts review agency decisions for rationality, based both
on whether reasons were provided and the adequacy of those reasons. This rationality

91

The justices of the Supreme Court have rejected this argument for requiring them to explain their own recusal
decisions. Justice Kennedy testified before Congress that the justices’ recusal decisions “should never be discussed,”
even with one another, because “[t]hat’s almost like lobbying.” Supreme Court Budget: Hearings Before the Fin.
Servs. and Gen. Gov’t Subcomm. of the H. Appropriations Comm., 114th Cong., at 14 (2015) [hereinafter Hearing
on the Supreme Court Budget]. Although Justice Kennedy’s position may appear transferrable to agency
adjudicators, it is in fact easily distinguishable. The Court’s reluctance to engage in public discourse about recusal
turns, at least in part, on the fact that a justice’s recusal decision is unreviewable and because a recused justice
cannot be replaced in a given case. See Ruth Bader Ginsburg, An Open Discussion with Ruth Bader Ginsburg, 36
CONN. L. REV. 1033, 1039 (2004) (“[T]here’s no substitute for a Supreme Court Justice.”). Recusal at the Court
thus impacts the composition of the Court in a way that recusal in other adjudicative contexts does not. See CHIEF
JUSTICE JOHN G. ROBERTS, JR., 2011 YEAR-END REPORT ON THE FEDERAL JUDICIARY 8-9 (2011) (explaining that
the Justices’ recusal decisions are materially different from those of lower-court judges), available at http://
www.supremecourt.gov/publicinfo/year-end/2011year-endreport.pdf. The institutional impact is not present in
agency adjudication, at least outside of agency heads, because recused administrative adjudicators are by-and-large
replaceable and reviewable. Moreover, the fact that administrative recusal decisions are reviewable supports recordbuilding.
92
See 5 U.S.C. § 557(b) (“On appeal from or review of the initial decision, the agency has all the powers which it
would have in making the initial decision” in adjudications covered by APA §§ 554, 556, and 557).

29

requirement promotes the legitimacy of agency action; we feel more confident in the power of
agencies to impact our lives when we know they are being made to act rationally. Providing
written recusal explanations comports with this legitimizing expectation that agencies will
provide reasons for their choices.
Finally, agency reporting requirements allow for the collection of recusal data that can
better inform agency policy and provide the public with a better understanding of how recusal is
functioning to ensure that parties are interacting with impartial adjudicators. It is possible to
collect such data without the adjudicator’s rationale for their decision, but the presence of a
written rationale draws additional attention to the decision, making it easier for the agency to
account for it. It also makes it easier for outside observers to follow agency recusal practices,
increasing transparency and further promoting public confidence in the process.
Reporting requirements are not, however, without costs. As mentioned above, the
administrative burden of explaining recusal decisions could be a deterrent to an adjudicator
withdrawing from a proceeding. Moreover, as discussed in Recommendation 2018-4, there are
potential privacy concerns implicated by offering reasons for recusal.93 The details of an
adjudicator’s relationship with a party to the proceeding, a party’s financial or professional
information, or facts pertaining to agency conduct that may create a real or apparent conflict with
the adjudicator could all be worth protecting from disclosure on privacy or other grounds
unrelated to recusal. It will be important for adjudicators to have the flexibility to determine how
best to explain their decision to recuse while taking into account the broader impact of that
explanation.
The APA appears to require some degree of explanation when a party asks an adjudicator
to recuse themselves.94 Although this set of circumstances does not include the full range of
agency adjudication considered by this study, it is emblematic of how the basic premise in
administrative law that agencies must justify their decisions also applies to administrative
recusal. Agencies should consider using explanation requirements to promote the efficacy and
public perception of recusal decisions, while seeking to minimize administrative and privacy
burdens that could steer adjudicators away from recusal.

See Recommendation 2018-4, supra note *, at 6 (“In addition, agencies should publish their recusal decisions to
the extent practicable and consistent with appropriate safeguards to protect relevant privacy interests implicated by
the disclosure of information related to adjudications and adjudicative personnel.”).
94
5 U.S.C. § 556(b) (explaining that an agency’s decision to recuse an adjudicator “shall” be made “as a part of the
record . . . in the case.”).
93

30

4. Intra-agency Review
Procedural recusal standards can also allow for intra-agency review of an adjudicator’s
decision not to recuse.95 The benefits of this approach are obvious, in that it both protects against
adjudicators’ un-willingness to accept that they should be removed from the case, and creates the
perception that the recusal decision has been fully vetted. The use of an affidavit to set the
factual record has similar benefits at this stage as at the initial determination. Deference to an
adjudicator’s fact finding about their own recusal status could perpetuate an already tainted
outcome, such that allowing the party requesting recusal to set the factual record protects against
adjudicator self-dealing. For adjudications governed by § 557 of the APA, the question arises
whether any deference to the facts in the affidavit is required.96 In cases where the factual record
is derived directly, if not solely, from the affidavit, even a de novo review of the factual record
should adhere relatively closely to the affidavit, absent some glaring inconsistencies or
fabrications.
The costs of intra-agency review fall mostly on the agency itself, rather than the parties.
Intra-agency review of a recusal decision is not dispositive of the adjudication, such that
resources spent deciding recusal questions, especially on appeal, may seem better directed
toward the merits of the parties’ claims. This problem is amplified in cases of interlocutory
review because interlocutory review slows down the proceeding on the merits without any
possibility of resolving it.97 In addition to cost, the additional time spent to review a recusal
decision creates potentially perverse incentives for parties in adversarial proceedings. Recusal
See, e.g., 12 C.F.R. § 1081.105(c)(2) (CFPB) (“If the hearing officer does not disqualify himself or herself within
ten days, he or she shall certify the motion to the Director . . . .”); 16 C.F.R. § 3.42(g)(2) (FTC) (“If the
Administrative Law Judge does not disqualify himself . . ., he shall certify the motion to the Commission . . . . The
Commission shall promptly determine the validity of the grounds alleged . . . .”); 21 C.F.R. § 12.75(a) (FDA) (“The
ruling on any [presiding officer recusal] request may be appealed in accordance with § 12.97(b).”); 27 C.F.R. §
71.96 (TTB) (“[T]he Administrator shall upon appeal as provided in § 71.115, if the administrative law judge fails to
disqualify himself, determine the matter as a part of the record and decision in the proceeding.”) 40 C.F.R. §
22.4(d)(1) (EPA) (“If such a motion to disqualify the Regional Administrator, Regional Judicial Officer or
Administrative Law Judge is denied, a party may appeal that ruling to the Environmental Appeals Board. If a motion
to disqualify a member of the Environmental Appeals Board is denied, a party may appeal that ruling to the
Administrator.”); 45 C.F.R. § 1149.31(c) (NEA) (“if the ALJ denies a motion to disqualify, the matter will be
determined by the authority head only during his/her review of the initial decision on appeal.”); 47 C.F.R. §
1.245(b)(3) (FCC) (“The person seeking disqualification may appeal a ruling of disqualification, and, in that event,
shall do so at the time the ruling is made.”).
96
But see HALLEX 1-3-2-25, at 1 (“If, in conjunction with a request for review, the [SSA] Appeals Council (AC)
receives an allegation of unfairness, prejudice, partiality, bias, misconduct, discrimination, or its equivalent
(allegations) about an [SSA] ALJ, the AC reviews the allegation under the abuse of discretion standard in
[HALLEX] I-3-3-2.”).
97
In cases where a denial of a recusal motion is overturned, the added expense of interlocutory review is
unquestionably worth it because it prevents the possibility of having to completely redo an otherwise final
adjudication. There is no reason to believe, however, and no quantitative data to confirm or deny, that interlocutory
appeals are likely to result in reversals even half of the time, let alone often enough to make the process efficient.
95

31

motions eligible for interlocutory review could be tools for delay for parties with deeper pockets
than their opponents or who stand to benefit from the status quo.
Intra-agency review of recusal decisions could also encourage reviewers to use recusal as
a political tool, particularly when the reviewers are agency heads. This is mostly a concern in
cases where agency heads have strong feelings about the issue being adjudicated but for
whatever reasons do not want to be accountable for their position. If they are willing to be
accountable, they can simply use their significant review authority to achieve the desired result
through a ruling on the merits. If they would prefer not to be associated with the desired
outcome, however, they could use recusal to maneuver the adjudication to an official who is
sympathetic to their view. Assuming the sympathetic adjudicator issued a ruling consistent with
the agency heads’ preference, the agency heads could then deny review and preserve the ruling
without having to take a public position themselves. By contrast, if the agency heads could not
review an adjudicator’s recusal decision, they would be forced to address the issue on the merits,
thus making them more fully accountable. This accountability issue is admittedly not as
prominent in recusal decisions as questions of cost and delay, but it is nonetheless another factor
in understanding which procedures stand to improve agency recusal.
Recusal of a member of a multi-person board or commission raises slightly different
issues. If the multi-person entity is the head of the agency, then any intra-agency review of one
member’s decision would have to be performed by the other members of the entity. Time and
resource allocation may be slightly less burdensome when review can be performed by one’s
peers rather than an entirely different segment of the agency. For one, the other members of the
entity are likely to be familiar with the details of the proceeding. In addition, peer review is
likely to be more efficient when recusal practice is viewed over time. To the extent recusal is
about the relationships and experiences of a board member or commissioner, that member’s
peers may develop a more thorough understanding of the member’s experiences and
relationships than a relative stranger elsewhere in the agency. This of course depends on the
length of time the members serve together and the level of familiarity they develop with one
another, but it still represents an opportunity for efficiencies in the recusal process. More
frequent recusal motions could also create greater familiarity.
98

Problems also arise when some of the agency’s leaders review a recusal decision by one
of their own.99 Members may be reluctant to second-guess a colleague for reasons of collegiality
98

As evident from Table 7, infra, many multi-member agencies—such as the CFTC, Consumer Products Safety
Commission (CPSC), EEOC, FCC, Federal Deposit Insurance Corporation (FDIC), FMSHRC, FTC, MSPB, NLRB,
NRC, and SEC—have promulgated recusal standards.
99
Chief Justice Roberts explained that the Supreme Court would not undertake review of its members’ recusal
decisions because “[a]s in the case of the lower courts, the Supreme Court does not sit in judgment of one of its own
Members’ decision whether to recuse in the course of deciding a case. Indeed, if the Supreme Court reviewed those
decisions, it would create an undesirable situation in which the Court could affect the outcome of a case by selecting

32

or simply to avoid creating a precedent they themselves may have to follow.100 Second, members
may be reluctant to vote to force a colleague to recuse because of the message it sends about the
ethics of the group’s decision. This is true for any number of votes to force recusal short of a
majority; if one or more reviewing members vote in favor of their peer’s recusal but do not carry
the vote, they have succeeded only in tainting the public’s perception of the outcome. This fact
could create a sense of risk aversion among members and lead them to vote against recusal as a
bloc for fear of the costs of a split vote on recusal of an agency head.
In addition, the structure and function of a multi-member body can be changed drastically
through recusal, such that members of that body will not want to be seen as having ulterior
motives when reviewing their peers’ recusal decisions. A vote for recusal of an adjudicator who
holds opposing views projects a concern with the outcome, not just the ethics, of the
adjudication. This of course is not always true, but the perception could be quite costly.
Furthermore, most multi-member bodies consist of an odd number of members.101 Review of a
peer’s recusal decision by the remaining members could thus create the possibility of a tie vote.
Even if the members decide in advance what result will accompany a tie vote, a group that is
evenly split on recusal creates concern about the legitimacy and integrity of that body’s decision
in the case.
Lastly, most of the discussion of intra-agency review of recusal decisions focuses on
review of an adjudicator’s refusal to recuse themselves. This of course makes sense because the
fairness to the parties and the public confidence in the process is generally advanced by
removing an unfit (or apparently unfit) adjudicator from a case. But it is not true that fairness and
public confidence can only be advanced by reviewing recusal denials. Overly conservative
decisions to recuse could harm the parties as well by subjecting them to a less qualified, or less
fair, decisionmaker. Moreover, all of the benefits of prudent recusal apply equally to decisions
for and against recusal. The fairness and public perception benefits that attend review of recusal
denials are just as prevalent in grants. So are the costs. Limited resources and the corrupting
effects of political motivations could influence reviews of recusals just as they could denials.
Perhaps even more so in the sense that the most efficient and logical remedy for review of a
decision to recuse is reinstatement. Unlike ruling that a failure to recuse is incorrect and must be
remedied by recusal, the remedy for wrongfully recusing oneself in the first place is to be put

who among its Members may participate.” John G. Roberts, Jr., 2011 Year-End Report on the Federal Judiciary 9
(2011), http://www.supremecourt.gov/publicinfo/year-end/2011year-endreport.pdf.
100
Both of these concerns have been expressed by Justice Kennedy when asked about the prospect of intra-Court
review of a justice’s recusal decision. See Hearing on the Supreme Court Budget, supra note 91, at 14.
101
A notable exception is the Federal Election Commission, which consists of six members. See 52 U.S.C. § 30106.
Many multi-member bodies do not operate at full capacity, and therefore may in fact have an even number of
members at a given time, notwithstanding the statutory design. For purposes of understanding how recusal should be
viewed in a multi-member body, it is most important to note that recusal changes the numerical makeup of the body,
resulting in potentially unforeseen challenges such as tie votes or a lack of quorum.

33

back in charge of the proceeding. This means review of decisions to recuse come with greater
certainty as to who will be in power after the recusal issue is settled, especially if the recused
adjudicator’s replacement is known at the time of review. By contrast, review of a failure to
recuse leads only to forced recusal, with little certainty as to who will preside over the
adjudication going forward. This uncertainty could deter reviewers seeking to manipulate the
assignment process for their own advantage.
* * *
Procedural guidelines for administrative recusal can be significant factors in the
perceived and actual success of an agency’s recusal regime. Empowering parties to be part of the
solution by filing recusal motions and offering affidavits promotes more thorough investigation
of an adjudicator’s impartiality and, in turn, the public’s perception of that impartiality. The
same is true of public records of recusal decisions and internal review of those decisions. While
many agencies employ one or more of these techniques, few if any employ them all, and none do
so explicitly via regulation. At minimum, casting procedural recusal rules as tools for promoting
more consistent, transparent, and reliable recusal practices reveals their legitimizing potential for
administrative adjudication.
C. ALJs Versus Other Adjudicators
In addition to focusing on the content of agency recusal regulations, it may be
informative to consider how the status of the adjudicator affects recusal decisions. The primary
distinction among agency adjudicators who preside over required evidentiary hearings is the
distinction between ALJs and non-ALJ adjudicators. This is because ALJ practice and procedure
is addressed (in part) by the APA, and ALJs hiring and removal is at least somewhat consistent
across agencies.102 Not so for non-ALJ adjudicators. Wide variation and a relative lack of
understanding about how non-ALJ adjudication operates prompted the recent Asimow and
Barnett et al. studies.103 Both studies looked holistically at non-ALJ adjudication and touched on
recusal issues, but neither sought to do a comprehensive treatment of agency recusal standards or
practice. This project’s combining of ALJ and non-ALJ recusal standards offers an opportunity
to see if and how agencies treat the two types of adjudicators differently.

102

The longstanding process for ALJ hiring was recently modified significantly by Executive Order 13,843, which
was ostensibly promulgated in response to the Supreme Court’s decision in Lucia v. SEC, 138 S. Ct. 2044 (2018),
that ALJs are “inferior officers” subject to the Appointments Clause of the Constitution. U.S. CONST. art. II, § 2, cl
2. The Executive Order moved the position of ALJ from the competitive service to the excepted service, meaning
the civil service exam is no longer required for appointment. ALJ appointments may be made directly by, and at the
discretion of, agency heads. The limiting feature of the Order is that ALJ candidates must either already be a judge
or have a current license to practice law in the United States or one of its territories. Exec. Order 13,843, at §
3(a)(ii).
103
For further details about these studies, see supra note 12.

34

As a theoretical matter, there are at least three reasons why treating ALJs and non-ALJs
differently makes sense with regard to recusal. The first is that ALJs are statutorily required by §
556(b) of the APA to act impartially, which Recommendation 2016-4 explained means requiring
ALJs to recuse themselves from proceedings in which they have a financial interest, personal
animus, or prejudged adjudicative facts.104 To the extent the APA prohibits conflicts and bias for
ALJs, it stands to reason that agency recusal regulations that cover ALJs would either exclude
these terms or expressly incorporate § 556(b) by reference.105
A second distinction between ALJs and non-ALJs that could be influential for recusal
rules is adjudicator independence. ALJs are statutorily protected from undue influence by their
employing agency; they can only be removed for cause as determined by a neutral third-party
arbiter, the Merit Systems Protection Board (MSPB).106 Non-ALJs often do not enjoy the same
protections.107 ALJs’ greater independence could counsel against including appearance standards
in ALJ recusal provisions because their independence necessarily creates an appearance of
impartiality, at least with regard to conflicts of interest. This may be true, but the few examples
of agencies adopting recusal rules do not corroborate the theory. The PRRB and EEOC, both of
which include an appearance standard in guidance documents, do not use ALJs, but most of the

104

See Recommendation 2016-4, adopted Dec. 13, 2016, https://www.acus.gov/recommendation/evidentiaryhearings-not-required-administrative-procedure-act. Recommendation 2016-4 adopted the Asimow Study’s
suggestion. See Asimow Study, supra note 18, at 23.
105
In reality, however, a review of existing recusal regulations shows that the presence of an ALJ does not make it
less likely that a recusal rule will explicitly mention conflicts of interest or personal bias.105 This does not mean that
agency regulators are indifferent to the APA standard, only that the present evidence does not suggest that the
applicability of the APA’s impartiality requirement directly impacts the content of agency recusal rules. It could,
however, indicate that the agencies are not focusing on the APA standard when thinking about recusal, and therefore
that the distinction between ALJs and non-ALJs is not an agency priority.
106
5 U.S.C. § 7521(a) (“An action may be taken against an administrative law judge . . . by the agency in which the
administrative law judge is employed only for good cause established and determined by the Merit Systems
Protection Board on the record after opportunity for hearing before the Board.”). “For cause” removal is currently
constitutionally permissible for ALJs. But as some commentators have observed, the Supreme Court’s recent
decision in Lucia v. SEC that ALJs are inferior officers under Article II, coupled with its earlier decision in Free
Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010), that “double-for-cause”
removal is unconstitutional, may draw the constitutionality of ALJ removal protections into question. See Jeffrey S.
Lubbers, SG’s Brief in Lucia Could Portend the End of the ALJ Program as We Have Known It, YALE J. REG.
NOTICE AND COMMENT BLOG (Apr. 10, 2018), https://www.yalejreg.com/nc/if-the-supreme-court-agrees-the-sgsbrief-in-lucia-could-portend-the-end-of-the-alj-program-as-we-have-known-it-by-jeffrey-s-lubbers/; Gillian
Metzger, Symposium: Minimalism with radical potential, SCOTUSBLOG (Jun. 22, 2018) (“[N]ow that ALJs are
deemed inferior officers, the strong removal protection enjoyed by ALJs at independent agencies becomes ripe for
challenge as a form of the double-for-cause removal protection held unconstitutional in Free Enterprise Fund v.
PCAOB.”), https://www.scotusblog.com/2018/06/symposium-minimalism-with-radical-potential/.
107
See Barnett et al. Study, supra note 12, at 61 (“Of the 36 non-ALJ types for which we received responses, only
three have reported protections from at-will removal . . . .”). Some federal employees or officials with adjudicative
responsibilities—such as independent agency heads, for instance—also have protections against undue influence,
but in general, non-ALJ adjudicators with responsibilities similar to those of their ALJ counterparts do not.

35

agencies that incorporate an appearance standard do. The DOJ EOIR, EEOC, OSHRC, and SSA
have all adopted quasi-judicial or, at minimum, appearance-based recusal standards despite
relying on ALJs for their adjudication.108 The NRC is the only agency with a quasi-judicial
approach to recusal that does not employ ALJs.109 This suggests that ALJ independence is not
viewed by agencies as a substitute for appearance-based recusal rules.
In short, none of the theoretical reasons to treat ALJ recusal differently from non-ALJ
recusal are reflected in the applicable standards. Shifting from the theoretical to the descriptive,
however, reveals that the one area where ALJs seem to be treated differently is with respect to
discretionary recusal standards.110 The overwhelming majority of adjudicators given the
regulatory power to recuse whenever they “deem it necessary” or something similar are ALJs.
The interesting question is why. There are a few possibilities worth mentioning. The most
obvious is the language of the APA, which states that an ALJ may “at any time disqualify
himself.”111 This explanation is not entirely satisfactory, for the reasons given in the above
discussion of discretionary standards. Allowing recusal whenever an adjudicator “deems it
necessary” is substantively different from permitting the adjudicator to recuse themselves “at any
time.” The former relies on the subjective determination of the adjudicator. The latter reads most
clearly as a timing or other procedural provision instructing ALJs that they need not wait for the
parties to effectuate their recusal, but not suggesting that the decision is entirely up to their
personal view of when their own recusal is “necessary.” Reliance on the APA language also falls
short in light of the fact that the other APA recusal provision, the impartiality requirement, does
not appear to influence disproportionately recusal rules in agencies that employ ALJs. Therefore,
while it may not be purely coincidental that agencies employing ALJs rely more heavily on
discretionary recusal standards, there is no evidence that this phenomenon can be explained by
reference to the APA alone.
Agencies may be inclined to use discretionary provisions as a catch-all in case an ALJ
believes recusal is prudent but not necessarily required. Another reason could be a nod to ALJ
independence. Granting additional discretion within mandatory agency recusal rules makes the
ALJ one step farther removed from agency control, and therefore enhances their independence
and the appearance thereof. There is also the possibility that agencies used existing recusal rules
to design their own and the discretionary provision became part of an industry standard without
much history or explanation.

108

For details about each provision, see Table 6, infra.
See id.
110
For a more detailed discussion of discretionary standards, see supra Part III.A.2.
111
5 U.S.C. § 556(b).
109

36

Finally, at least at the time most of the existing recusal rules were adopted,112 the way in
which ALJs were hired may have allowed agencies to feel more comfortable empowering ALJs
to make discretionary recusal decisions. Because ALJs were hired in a more structured,
transparent vetting process than non-ALJs,113 ALJs may have benefitted from greater agency
confidence about their judicial skills and temperament, thereby making it easier to grant them
discretion over a quintessentially judicial issue like recusal. It remains to be seen how new
approaches to ALJ hiring under Executive Order 13,843 will compare to those for non-ALJs. If
agencies tend to adopt higher minimum hiring standards for ALJs, due to concerns about ALJ
independence for instance, distinctions in hiring practices may continue to explain the greater
prevalence of discretionary standards for ALJs versus non-ALJs.
On the other hand, it may be reading too much into discretionary provisions to suggest
that they are connected to some grand theory of administrative recusal that intentionally entrusts
ALJs with more recusal discretion than non-ALJs. After all, the existence of a recusal provision
in one agency’s regulations does not necessarily mean that the lack of that same provision in a
different agency’s regulatory portfolio indicates a difference of opinion between the two
agencies; silence does not have to indicate a rejection. In reality, a non-ALJ without the benefit
of a discretionary recusal rule may find it just as easy to recuse for his or her own reasons than an
ALJ citing a discretionary provision. For present purposes, it is enough to acknowledge that
discretionary recusal provisions do appear to be used more often in connection with ALJs than
with non-ALJs, and to keep in mind some ideas as to why that may be case. The analysis at
minimum shines light on some of the relevant variables in administrative recusal and how
focusing on the differences between agency adjudicators may impact those variables.

112

After Executive Order 13,843, Excepting Administrative Law Judges from the Competitive Service (July 10,
2018), https://www.federalregister.gov/documents/2018/07/13/2018-15202/excepting-administrative-law-judgesfrom-the-competitive-service, which removed many of the distinguishing features of ALJ hiring, this descriptive
claim may not be accurate. Since the overwhelming majority of recusal rules and standards predate the Executive
Order, however, distinctions between hiring practices for ALJs and non-ALJs still have descriptive force with
respect to those provisions. OSHRC promulgated a new recusal rule after Executive Order 13,843, but the OSHRC
rule explicitly tracks Canon 3(C) of the Code of Conduct for United States Judges, which does not include the type
of discretionary recusal provision currently under discussion. See 29 C.F.R. § 2200.68 (effective date June 10,
2019).
113
See Jack M. Beermann and Jennifer L. Mascott, Research Report on Federal Agency ALJ Hiring after Lucia and
EO 13843, at 1 (May 31, 2019) (report to the Admin. Conf. of the U.S.) (“Beyond providing that ALJs are to be
appointed by “[e]ach agency,” [as stated in 5 U.S.C. § 1305,] no provision of the APA itself specifies the precise
procedure for appointing ALJs. However, because ALJs at the time were part of the competitive service, agencies by
law were required to hire new ALJs from lists of eligible candidates provided by the Office of Personnel
Management through a rating process it administered.”), https://www.acus.gov/sites/default/files/documents/
Submitted%20final%20draft%20JB.pdf.

37

D. Regulations or Guidance Documents
An agency’s chosen vehicle for establishing recusal standards also has consequences for
the standards’ effectiveness. Although the majority of administrative recusal standards take the
form of regulations, at least five agencies rely exclusively on guidance documents for their
recusal standards,114 and another five use a combination of regulations and guidance
documents.115
Moreover, many of the more complex recusal regimes are developed in guidance
documents. The SSA, for example, is the largest agency adjudicator and has promulgated a set of
recusal standards that closely approximate federal judicial recusal. It has chosen to do so,
however, in guidance documents.116 The same is true of the EEOC.117 Other agencies with
complex recusal standards have used a combination of regulations and guidance documents. DOJ
EOIR, NRC, and PRRB all address recusal at least superficially via regulation, but add much of
the substantive content and nuance of their recusal regimes in related, publicly available
memoranda, manuals, handbooks, letters, and directives.118
How should we interpret an agency’s decision to rely on guidance documents to set
recusal parameters? One potential benefit is that guidance documents are more efficient;
agencies can promulgate guidance documents without complying with the APA’s rulemaking

114

See U.S. Equal Employment Opportunity Commission Handbook for Administrative Judges (July 1, 2002) (on
file with author); Patent Trial and Appeal Board, Standard Operating Procedure 1 (Revision 15) Assignment of
Judges to Panels (Sept. 20, 2018)) (USPTO), https://www.uspto.gov/sites/default/files/documents/
SOP%201%20R15%20FINAL.pdf; U.S Parole Commission Rules and Procedures Manual (June 30, 2010) (DOJ),
https://www.justice.gov/sites/default/files/uspc/legacy/2010/08/27/uspc-manual111507.pdf; IPS 1-12 Procedures for
Handling Complaints of Volunteer/Trainee Sexual Misconduct (July 1, 2013) (Peace Corps), https://
files.peacecorps.gov/documents/IPS-1-12-Interim-Procedures.pdf; HALLEX I-2-1-60; I-3-1-40; I-3-2-25 (SSA).
115
See Office of the Chief Immigration Judge, Operating Policies and Procedures Memorandum 05-02: Procedures
for Issuing Recusal Orders In Immigration Proceedings (DOJ EOIR March 21, 2015), https://www.justice.gov/sites/
default/files/eoir/legacy/2005/03/22/05-02.pdf.; U.S. Nuclear Regulatory Commission Staff Practice and Procedure
Digest (June 2011), https://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr0386/d16/sr0386d16.pdf;
Provider Reimbursement Review Board Rules (Aug. 29, 2018) (Rule 45), https://www.cms.gov/Regulations-andGuidance/Review-Boards/PRRBReview/Downloads/PRRB-Rules-August-29-2018.pdf. See also U.S. Coast Guard,
Commandant Instruction 6200.5B (Sept. 23, 2013), https://media.defense.gov/2017/Mar/15/2001717001/-1/-1/0/
CI_16200_5B.PDF; U.S. Merit Systems Protection Board Judges Handbook (Mar. 2017), https://www.mspb.gov/
mspbsearch/viewdocs.aspx?docnumber=241913&version=242182&application=ACROBAT; Office of General
Counsel, National Labor Relations Board, Guide for Hearing Officers in NLRB Representation and Section 10(k)
Proceedings (2003), https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-1727/
hearing_officers_guide.pdf.
116
See, e.g., HALLEX I-2-1-60; I-3-2-25.
117
See U.S. Equal Employment Opportunity Commission Handbook for Administrative Judges 14 (July 1, 2002)
(on file with author).
118
See supra note 115 (citing relevant agencies’ guidance documents).

38

requirements.119 There are two reasons, however, why this benefit does not necessarily attach to
recusal standards. First is that recusal standards may meet the procedural rule exception to notice
and comment under APA § 553(b).120 If recusal rules are indeed statutorily exempt from the
notice-and-comment process, there is little if any efficiency benefit to characterizing a recusal
standard as agency guidance or as a procedural rule. Second is that many agencies that publish
guidance documents, and in particular those that offer detailed instructions about, and insight
into, agency conduct, collect public feedback about their position before publication.121 If
agencies seek public comments about their recusal standards anyway, the efficiency argument
for guidance documents is diminished. There are still advantages to avoiding the full slate of
requirements accompanying notice-and-comment rulemaking under § 553(c)—such as
requirements to respond to material issues raised in the comments and to submit to review by the

5 U.S.C. § 553(b) (“Except when notice and hearing is required by statute, this subsection does not apply—(A) to
interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice . . . .”).
120
There is a good argument that recusal rules do not reflect the type of “substantive value judgment” that the courts
have used to distinguish procedural from substantive rules under the APA. See Public Citizen v. Department of
State, 276 F.3d 634 (D.C. Cir. 2002); American Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1047 (D.C. Cir. 1978)
(describing the procedural rule exception to notice and comment as “cover[ing] agency actions that do not
themselves alter the rights or interests of parties, although [they] may alter the manner in which parties present
themselves or their viewpoints to the agency”). Recusal rules, especially those that may be focused on promoting the
appearance of impartiality, seem a good fit with the court’s description of procedural rules in Bowen. Recusal based
on the appearance of impartiality affects the identity of the adjudicator, but is not being used to prevent any harm to
the actual parties. Even in cases where recusal is based on personal bias, the recusal standard itself does not express
any preference for the subject matter of the parties’ claims; it simply precludes an adjudicator from resolving those
claims based on the adjudicator’s relationship with either the party or the circumstances surrounding their claims.
Recusal for actual bias is prohibited, in other words, without consideration of the relevant party’s position in the
proceeding, and therefore does not reflect an ex ante value judgement by the agency.
One response might be that recusal rules contain a substantive value judgement because they depend for
their application on the specific facts and circumstances of the proceeding. That alone, however, is not enough to
trigger the APA’s notice-and-comment requirement. See JEM Broad. Co. v. FCC, 22 F.2d 320 (D.C. Cir. 1994)
(holding that FCC hard look rules for licenses fit within APA’s exception for procedural rules despite the fact that
they depended on the content of specific applications). It may be enough, however, when we think of recusal as
protecting rights to a fair and impartial hearing. To the extent recusal rules adjust the scope of that right, they could
be seen as substantive rules requiring notice and comment under § 553. For present purposes, the point is that a
viable argument exists for excepting recusal rules from notice and comment, and to the extent that argument prevails
it will significantly reduce any efficiency benefits for agencies deciding between recusal guidance and recusal
regulations.
121
OSHRC’s recently adopted recusal rules went through full the notice-and-comment process. See 29 C.F.R. §
2200.68. To the extent agencies choose to promulgate recusal standards as guidance, relying neither on notice and
comment nor the APA exemption for “rules of agency organization, procedure, or practice,” a recent executive order
suggests that public participation may still be necessary. On October 9, 2019, President Trump issued an executive
order requiring “a period of public notice and comment of at least 30 days before issuance of a final guidance
document” among other procedural requirements for issuance of agency guidance documents. Exec. Order 13,891,
Promoting the Rule of Law Through Improved Agency Guidance Documents, 84 Fed. Reg. 55235, 55237 (Oct. 15,
2019). See also Admin. Conf. of the U.S., Recommendation 2019-1, Agency Guidance Through Interpretive Rules,
84 Fed. Reg. 38927, 38929 (Aug. 8, 2019) (“An agency should afford members of the public a fair opportunity to
argue for modification, rescission, or waiver of an interpretive rule. In determining whether to modify, rescind, or
waive an interpretive rule, an agency should give due regard to any reasonable reliance interests.”).
119

39

Office of Information and Regulatory Affairs122—but it stands to reason that a request for public
input would also include review of that input and an attempt to at least consider it in forming the
agency’s guidance. This additional investment of time and resources at minimum narrows the
efficiency gap between guidance documents and legislative rules under the APA.
A subtler advantage of recusal guidance arises from the fact that legislative rules are
more likely to be issued by the agency head, whereas agency adjudicative bodies or other lowerlevel officials may have authority to issue their own guidance documents. Recusal guidance can
thus avoid competing with other agency regulatory priorities for resources and from being
delayed by lengthy internal and external rulemaking processes. In some cases, guidance may be
the only realistic vehicle for the agency to express publicly its views on administrative recusal.
Finally, due to its promulgation by individuals more immediately involved in the adjudicative
process than the agency head, recusal guidance may also be more responsive to the agency’s
specific needs.
Guidance documents are also beneficial because they can generally be applied more
flexibly and amended more easily than legislative rules.123 Flexibility is a benefit due to the
contextual nature of recusal decisions and the corresponding advantages of more generalized
standards—especially when it comes to protecting the appearance of impartiality. Amendment is
similarly advantageous, both in terms of maintaining optimal standards for the agency and in
demonstrating to the public that recusal is an ongoing priority to agency decisionmakers. These
benefits only magnify when the recusal standards—like those mentioned above—are
complicated. As the agency’s recusal standards become more inclusive and far-reaching, the
advantages of flexible application and easy amendment increase.

See 5 U.S.C. § 553(c) (requiring agencies to provide a “concise general statement of . . . basis and purpose” in
support of notice-and-comment regulations); Exec. Order 12,866 (Sept. 30, 1993) (requiring review of “significant
regulatory actions” by the White House Office of Management and Budget Office of Information and Regulatory
Affairs)
123
This may be less true for future guidance documents in light of President Trump’s recent executive order
regarding White House review of guidance documents. Executive Order 13,891: Promoting the Rule of Law
Through Improved Agency Guidance Documents (Oct. 9, 2019), https://www.whitehouse.gov/presidentialactions/executive-order-promoting-rule-law-improved-agency-guidance-documents/. The Executive Order may not
affect recusal standards because it does not include “rules of agency organization, procedure, or practice” within the
meaning of the Executive Order. See id. at § 2(b)(iii). The OMB implementation memorandum for Executive Order
13,891 indicated that a guidance document would to qualify a rule of procedure if it “is designed to shape the
behavior of regulated parties.” Dominic J. Mancini, Acting Administrator, Office of Information and Regulatory
Affairs, Memorandum For Regulatory Policy Officers at Executive Departments and Agencies and Managing and
Executive Directors of Certain Agencies and Commissions, at 2 (Oct. 31, 2019), https://www.whitehouse.gov/wpcontent/uploads/2019/10/M-20-02-Guidance-Memo.pdf. Although admittedly an argument in the negative, recusal
rules are designed to guide the behavior of adjudicators, not parties, and would therefore seem outside the scope of
guidance documents covered by Executive Order 13,891. For a more thorough discussion of whether recusal rules
meet the APA exception to notice and comment for procedural rules, see supra note 120.
122

40

A potential drawback to reliance on guidance documents is the greater potential for
guidance documents to lack transparency. Although guidance documents published in the
Federal Register are effectively as “public” as binding regulations, not all guidance documents
are made so publicly available.124 As long as agencies are aware that transparency is important in
empowering parties to use recusal standards and in generating public confidence in the integrity
of agency proceedings, however, agencies should be able to make their guidance documents
sufficiently public to eliminate any transparency costs.125
Another potential drawback could be the public relations aspect of guidance documents
over regulations. If the public perceives guidance documents as less impactful (as they
technically are), or as representing less of a commitment by the agency to the cause of recusal,
the recusal standards’ ability to promote public confidence in agency adjudication could be
diminished. That is not to say that guidance documents will necessarily have less of a positive
impact than regulations, only that they could create that impression. Several agency-specific
factors could contribute to this phenomenon. The frequency with which the agency relies on
guidance for important announcements and positions could be directly proportional to the public
confidence inspired by recusal standards issued as guidance. The more common it is for an
agency to use guidance, the more likely the regulated public will view that guidance as a serious
commitment by the agency. A related but slightly different factor is how comfortable the public
is with the agency’s use of guidance documents. This is not just a point about frequency, but
about the agency’s past success in using guidance documents to effect change and to
communicate with the public about that change. The agency’s successful use of guidance
documents could thus depend on the process by which the documents are formed (i.e. the level of
participation by interested parties outside the agency), their clarity, and the success of their
implementation within the agency; how quickly and thoroughly were the standards employed?
The most important point about the use of guidance is that it is a multi-variable calculus.
Agencies have pro-guidance incentives and reasons to favor regulations. This is true as a
theoretical matter and is supported by agencies’ use of guidance documents in some situations
and their apparent preference for regulations in others. One feature that emerges rather clearly is
that guidance documents (like regulations) are more likely to be effective when they are public.
124

See, e.g., Louis J. Virelli III & Ellen S. Podgor, Secret Policies, 2019 ILL. L. REV. 463 (offering several examples
of, and outlining incentives for, agencies to keep certain policy documents confidential).
125
See Admin. Conf. of the U.S., Recommendation 2019-3, Public Availability of Agency Guidance Documents, 84
Fed. Reg. 38,931 (Aug. 8, 2019) (urging agencies “to develop and disseminate internal policies for publishing,
tracking, and obtaining input on guidance documents; post guidance documents online in a manner that facilitates
public access; and undertake affirmative outreach to notify members of the public of new or updated guidance
documents”); Admin. Conf. of the U.S., Recommendation 2018-5, Public Availability of Adjudication Rules, 84
Fed. Reg. 2142 (Feb. 6, 2019) (encouraging agencies “to make procedural rules for adjudications and related
guidance documents available on their websites and to organize those materials in a way that allows both parties
appearing before the agencies and members of the public to easily access the documents and understand their legal
significance”).

41

If recusal standards are publicly accessible, guidance documents can provide efficiency and
flexibility without sacrificing much in the way of promoting public confidence. Agencies can
then consider for themselves how using guidance documents to set recusal standards is likely to
affect the efficacy of those standards and the public’s perception of them, and to factor that
information into the agency’s ultimate decision.
E. Institutional Effects
Another dimension within which to consider agency recusal standards is their
institutional features—circumstances that are driven by institutional structure rather than the
standards’ substance, procedure, or legal form.
1. Agency Heads
Perhaps the most obvious institutional feature is the possibility that reviewers could also
be agency heads. As mentioned above, the applicability of recusal standards to agency heads has
intuitive appeal when they are reviewing specific adjudications, for the same reasons that recusal
is appropriate for traditional judges. Unlike judges, however, agency heads also function as chief
policymakers for the agency.126 Their policymaking role makes recusal of agency heads more
complex than recusal of more easily replaceable, less powerful initial adjudicators. Policymaking
is an inherently value-laden enterprise; it requires policymakers to employ their own normative
viewpoints in a way that that traditional adjudication—especially in the courts—seeks to
avoid.127 Conversely, the higher public profile of agency heads makes the substantive and
procedural recusal standards discussed earlier potentially more important to their conduct than
that of less visible intermediate or initial adjudicators. Because agency heads’ decisions are more
likely to be publicly scrutinized than those of individual adjudicators, the public confidence
engendered by clear and transparent recusal standards may be even more valuable at the top of
the agency hierarchy.
This complexity of designing a recusal regime for agency heads is reflected in agencies’
varied approaches to it. Some agencies have decided to exclude agency heads from the agency’s
recusal standards altogether. The SEC and OSHRC, for instance, both have recusal standards for
ALJs but none for their appointed commissioners.128 Other agencies apply the same recusal
standards to initial adjudicators and final agency decisionmakers. The EPA applies the same
126

For additional discussion of how recusal considerations apply to agency heads, see Parts II.A.1 and II.B.4, supra.
A famous, although certainly not the only or even the most compelling, account of judges’ relationship with, and
necessary distance from, policymaking was made by Chief Justice Roberts in his opening statement at his Supreme
Court confirmation hearing before the Senate Judiciary Committee. See Chris Cillizza, John Roberts, umpire.,
WASH. POST, June 28, 2012 (“Judges are like umpires. Umpires don’t make the rules; they apply them.”),
https://www.washingtonpost.com/blogs/the-fix/post/john-roberts-umpire/2012/06/28/gJQAx5ZM9V_blog.html.
128
See, e.g., 17 C.F.R. § 201.112 (SEC ALJs); 29 C.F.R. § 2200.68 (OSHRC ALJs).
127

42

recusal standard to members of the Environmental Appeals Board (EAB), its final decisionmaker
on administrative appeals, and the ALJs who render the decisions that the EAB reviews.129 The
Federal Mine Safety and Health Review Commission (FMSHRC), the Federal Trade
Commission (FTC), and the MSPB likewise apply the same recusal standard to their ALJs and
commissioners.130 These examples reflect the individual agencies’ perspectives on the
differences between initial adjudicators and agency heads, and reinforce the need to be
thoughtful about how recusal should apply to both.
One important feature of the agencies that have taken different views regarding recusal of
their agency heads is that the distinction cannot be explained by focusing on whether the agency
is solely an adjudicative agency—like OSHRC and FMSHRC—or whether it also has regulatory
responsibilities, like the SEC and FTC. It would be easier to understand why an agency that is
solely adjudicatory would be more likely to adopt quasi-judicial recusal standards all the way to
the top of its organizational chart, but that is not categorically the case. Conversely, it may be
easy to posit that dual-function agencies would treat their heads less like traditional judges and
have less stringent recusal requirements. That is also not true. Without insight into each agency’s
specific motivations for adopting its recusal standards, one general conclusion is that recusal
standards for agency heads are not simply a function of whether those agency heads are part of a
separate, wholly adjudicative entity. So how should we think of the recusal of agency heads
along institutional lines?
One fault line could be internal agency culture and history. Another could be the fact that
some agency heads (presidential, Senate-confirmed appointees) are already more accountable
than other adjudicators, both politically and under the OGE ethics rules.131 Seemingly the most
significant factor, however, is how much the agency thinks its recusal standards would constrain
the agency heads’ ability to fulfill their organizational mission, whether that be solely
adjudication or some combination of administrative functions. This “duty to mission” is most
vulnerable at the top of the agency structure. Unlike initial adjudicators, who are generally
replaceable either by in-house personnel or through “borrowing” adjudicators from a different
agency, agency heads cannot be replaced as easily or at all once recused. Recusal thus threatens
to change the nature of adjudication among agency heads by changing the number and,
potentially, the collective ideology of the decisionmakers. Changing the number could cause the
agency to lose a quorum, thereby rendering it totally ineffective, or deprive the group of an
adjudicator who may have been an influential part of the agency’s ultimate decision. That does
129

40 C.F.R. § 22.4(d)(1) (EAB).
5 C.F.R. § 1201.42 (MSPB); 16 C.F.R. § 3.42(g) (FTC); 29 C.F.R. § 2700.81 (FMSHRC).
131
Senate-confirmed presidential appointees take an ethics pledge and have their own additional financial disclosure
obligations. See Exec. Order 13,770, at § 1 (Jan. 28, 2017), https://www.govinfo.gov/content/pkg/FR-2017-0203/pdf/2017-02450.pdf.; OGE Form 201: Request to Inspect or Receive Copies of OGE Form 278s or Other
Covered Records (Nov. 1, 2014), https://www.oge.gov/Web/OGE.nsf/Resources/OGE+Form+201:+Request+to+
Inspect+or+Receive+Copies+of+OGE+Form+278,+SF+278s+or+Other+Covered+Records.
130

43

not mean that recusal of agency heads should be avoided for those reasons, but rather to point out
that decision to include agency heads in recusal provisions should consider the stakes involved in
removing an agency head from the process. This is clearly not enough to sway some agencies to
treat initial and final adjudicators differently, but is theoretically important as a framework for
evaluating what is the best way for each agency to balance its duty to fulfill its institutional
obligations with its commitment to impartiality and promoting public confidence in what it does.
2. Appellate-Style Adjudicators
A related institutional effect is the application of recusal standards to an initial, as
opposed to an appellate-style, adjudicator.132 In general, the same concerns about fairness to
litigants and public perception apply to both groups; it is just as important to protect parties from
biased decisionmakers in their initial presentation of evidence as it is on review of that decision.
A closer look, however, suggests that there may be some notable differences between the two.
For one, appellate-style adjudicators are subject to less searching review than initial
adjudicators. Agency heads and adjudicators that have been delegated final decision-making
authority by the agency head are the clearest example of this; they are likely to be entirely free
from intra-agency review and subject only to (often deferential) judicial review of their final
determinations for the agency.133 More interesting cases are those in which an appellate-style
administrative body that consists neither of agency heads nor adjudicators with delegated final
decision-making authority serves in an intermediate position between an initial adjudicator and
an agency head. Despite the fact that these intermediate adjudicators are not expressly identified
as final decisionmakers for the agency, with all of the scrutiny and public accountability that
attaches to that status, review of these intermediate policymakers by the agency head is very
often discretionary and, for practical reasons, rare. This may suggest that more stringent recusal
standards are necessary to ensure that intermediate reviewers remain (and appear) unbiased in
the absence of intra-agency review.
On the other hand, to the extent appellate-style reviewers are effectively final
decisionmakers for the agency, their influence on agency policy may, as with agency heads,
support subjecting them to less probing recusal standards than initial adjudicators due to the

The use of the term “appellate-style” adjudicator is designed to acknowledge the inherent differences between
intra-agency review and traditional judicial appellate review. For present purposes, however, any such differences
are immaterial; the current relationship of interest is between initial hearing adjudicators and those presiding over
proceedings designed to review those initial hearings.
133
Not only will courts defer to the agency heads and delegated final decisionmakers on the merits of their
conclusions, but they will also likely owe Kisor (or at least Skidmore) deference to those adjudicator’s recusal
decisions. See infra notes 150-153 and accompanying text (discussing the interplay of judicial deference doctrines
and administrative recusal).
132

44

political, as well as adjudicative, qualities of their decision.134 Moreover, if appellate-style
reviewers’ discretion is constrained by standards of review that require deference to the initial
adjudicator’s decision, those constraints can mitigate recusal-related concerns and further
support more forgiving recusal requirements.
Consider as a case study the many variables that influence recusal of appellate-style
administrative adjudicators at the DOJ’s Board of Immigration Appeals (BIA). BIA decisions are
reviewable by the Attorney General at his or her discretion,135 suggesting that the BIA does not
exercise the policymaking responsibilities of an agency head. As a practical matter, however, the
sheer number of BIA decisions makes the Board’s full body of work unreviewable by the AG as
a practical matter, meaning that the overwhelming majority of its decisions go unreviewed and
therefore that its work has significant policy implications.136 The scope of its policy making
authority is tempered, however, by the fact that BIA review of immigration judges (IJs), the
initial adjudicators, is limited by regulatory standards of review. The BIA may review legal
determinations by IJs de novo, but may only review IJ factual determinations for clear error.137
Taken as a whole, the BIA’s example stresses the importance of considering recusal standards in
context. The policy impact of the Board’s decisions suggests a more relaxed standard in
recognition of its extra-adjudicative function, yet the facts that a politically accountable actor like
the AG may review its decisions on command and that it owes deference to the IJ’s factual
determinations make it look more like a traditional appellate court, suggesting that more
stringent, quasi-judicial recusal standards may be most appropriate.
The reality is somewhere in between, and is reflected in the recusal standards applicable
to both the Board and the IJs it is responsible for reviewing. The Board follows the OGE
Guidelines for recusal, which are limited to financial and personal conflicts of interest, whereas
IJs have been instructed by the DOJ EOIR to follow the federal judicial recusal statute.138
Although perhaps not the only factor explaining this difference, institutional distinctions between
appellate-style reviewers and initial adjudicators are undoubtedly relevant to the development of
recusal standards for both groups.
134

A more through discussion of how policymaking responsibilities affect recusal norms is included supra at Part
II.E.1, infra at notes and accompanying text.
135
See 8 C.F.R. § 1003.1(h)(1)(i) (“The Board shall refer to the Attorney General for review of its decision all cases
that: (i) The Attorney General directs the Board to refer to him.”).
136
Hon. Alberto R. Gonzales & Patrick Glen, Advancing Executive Branch Immigration Policy Through the
Attorney General’s Review Authority, 101 IOWA L. REV. 1, (2016) (“[T]he exercise of the [AG’s] referral authority .
. . is used less frequently at present than at any other time in the past . . . .”).
137
See 8 C.F.R. § 1003.1(d)(3)(i)-(ii) (“Facts determined by the immigration judge . . . shall be reviewed only to
determine whether the findings . . . are clearly erroneous. . . . The Board may review questions of law, discretion,
and judgment and all other issues in appeals . . . de novo.”).
138
Compare ETHICS AND PROFESSIONALISM GUIDE FOR MEMBERS OF THE BOARD OF IMMIGRATION APPEALS (May
4, 2011), https://www.justice.gov/eoir/page/file/992726/download with MEMORANDUM FROM DOJ EOIR OFFICE OF
THE CHIEF IMMIGRATION JUDGE TO ALL IMMIGRATION JUDGES (Mar. 21, 2005), https://www.justice.gov/sites/
default/files/eoir/legacy/2005/03/22/05-02.pdf.

45

3. Single or Multiple Adjudicators
Another institutional fault line in adjudicator recusal is the distinction between single
adjudicators and multi-member bodies. Because the agency heads in the examples immediately
above are all multi-member bodies, many of the idiosyncrasies surrounding recusal within a
multi-member adjudicative body have already been discussed.139 It is important to remember,
though, that not all multi-member bodies are necessarily agency heads, and vice-versa. The SSA
Appeals Council, for instance, generally sits in two- or three-member panels to review ALJ
decisions. Although Council decisions represent the agency’s final determination, that authority
comes by a delegation from the SSA Commissioner; Council members are not agency heads.140
The differences between recusal of an individual and a group member therefore could be relevant
independent of whether the group is also the agency head.
Recusal of a single adjudicator more often leads to uncertainty regarding who will be left
to adjudicate the case. That is because the remedy for recusal of a single adjudicator is to replace
the recused adjudicator, whereas the remedy for recusal of a group member is often (especially in
the case of multi-member agency heads) to leave the group short-handed. In addition to problems
already discussed like tie votes and failure to achieve a quorum, the benefit of recusing one
group member is that the remaining decisionmakers are still familiar to the parties. This reduces
the possibility of multiple rounds of recusal and allows the parties to work more confidently on
their merits presentations during the recusal process.
Somewhere in between are multi-member bodies that conduct hearings using a subset of
the total membership of that body—think again of the BIA.141 The BIA’s three-member panels
139

See supra Part II.E.1.
See HALLEX I-3-0-1 B (“Under a direct delegation of authority from the Commissioner of the Social Security
Administration, the [Appeals Council] is the final level of administrative review for claims filed under titles II and
XVI of the Social Security Act.”). The Patent and Trademark Appeals Board (PTAB) is similarly situated. It
consists of conducts proceedings in panels of three or more adjudicators, but is not the agency head; it describes
itself as a “tribunal within the United States Patent and Trademark Office.” United States Patent and Trademark
Office, New to PTAB: What is PTAB?, https://www.uspto.gov/patents-application-process/patent-trial-and-appealboard/ptab-inventors. Like with the SSA Appeals Council, a PTAB decision represents the final agency
determination on the matter. The PTAB’s finality is granted by a statutory provision that also distinguishes between
the PTAB and the agency head, the Patent and Trademark Office. See, e.g., 35 U.S.C. § 35(d) (“The final decision of
the Patent Trial and Appeal Board, if adverse to claims in an application for patent, shall constitute the final refusal
by the Office on those claims.” (emphasis added)).
141
The BIA consists of twenty-one members. Although the majority of its cases are presided over by a single Board
Member, there are six categories of cases that must be decided by three-member panels. They are cases involving
the need to (1) “settle inconsistencies among the rulings of different immigration judges”; (2) “establish a precedent
construing the meaning of laws, regulations, or procedures”; (3) “review a decision by an Immigration Judge or
DHS that is not in conformity with the law or with applicable precedents”; (4) “resolve a case or controversy of
major national import”; (5) “review a clearly erroneous factual determination by an Immigration Judge”; and (6)
“reverse the decision of an Immigration Judge or DHS in a final order, other than nondiscretionary dispositions.”
140

46

represent a small fraction of the Board’s full membership, such that recusal of a Board member
will reflect features of both individual adjudicator recusal and recusal within a multi-member
body.142 Like individual adjudicator recusals, a recused panel member can be replaced by
another member of the Board that is not already assigned to that panel.143 Replacement of the
recused panel member will create uncertainty as to one-third of the adjudicators presiding over
the case, and could certainly impact the substantive position of the panel, but this degree of
uncertainty is still less likely to be disruptive to the parties than replacing a lone adjudicator.
Assuming only one recusal, a majority of the original panel remains; the situation more closely
resembles recusal of a multi-member adjudicator with a fixed membership. Although replacing
one of three adjudicators is of course different from not replacing them, overall concerns about
continuity and predictability of the body are less than for recusal of an individual adjudicator. As
more panelists are recused—especially if a majority of original adjudicators are replaced—the
impact grows and could ultimately be indistinguishable from recusal of an individual. In short,
recusal of members from a replaceable multi-member body represents a spectrum of uncertainty
for the parties. Recusal of one or a minority of the members is closer to the relatively minor
effects of recusing an irreplaceable member of a fixed multi-member body, while recusal of a
majority or all of the deciders approximates recusal of an individual.
Recusal of one member of a multi-member adjudicative body creates the potential for
pressure from other members of the group about the recusal decision. In addition to the base (and
I think largely nonexistent) issue of members using recusal to affect the composition of the group
and advance their own view of the case, there could be pressure to remain in the case in order to
address issues that the group feels merit consideration by all of its members. This phenomenon
occurs at the Supreme Court,144 and could just as easily be present in any entity with final
decision-making authority. Although agency adjudicators are never as final as the Supreme
Court, their role as the agency’s final word in a case is significant in terms of fulfilling the
agency’s duty.
The notion of pressure to participate in important cases is less prominent for a replaceable
individual adjudicator, but it could still be present in cases where the likely replacement for a
recused hearing officer would be from another agency, and thus not as experienced in
U.S DEPARTMENT OF JUSTICE, BOARD OF IMMIGRATION APPEALS PRACTICE MANUAL § 1.3 (Feb. 20, 2020) (“BIA
Practice Manual”), https://www.justice.gov/eoir/page/file/1250701/download.
142
The BIA will occasionally sit en banc, which by regulation requires a “majority of the permanent Board
members” to constitute a quorum. 8 C.F.R. § 1003.1(a)(5). If an en banc proceeding involved all of the permanent
Board members, recusal could result in the Board being short-handed in that case, like in other multi-member bodies
that do not sit in subsets of their full membership. En banc hearings for BIA are, however, “not favored” by rule. Id.
143
“A vacancy, absence, or unavailability of a Board Member does not impair the right of the remaining members to
exercise all the powers of the Board. . . . [IJs], retired Board Members, retired [IJs], [ALJs], and senior EOIR
attorneys . . . may be designated as Temporary Board Members.” BIA Practice Manual, supra note 141, at § 1.3(c)
(citing 8 C.F.R. § 1003.1(a)(4)).
144
See VIRELLI, DISQUALIFYING THE HIGH COURT, supra note 2 (discussing generally how institutional concerns can
impact Supreme Court justices’ recusal decisions).

47

adjudicating cases within the relevant program.145 Concerns about agency expertise and
consistent administration of its programs could council against recusal in those circumstances,
even where the prevailing recusal standards were clearly met for the lone adjudicator. For multimember bodies with available replacements for recused members, any pressure to participate for
institutional reasons should be no more, and often less, than for individual adjudicators. Even if
replacement adjudicators came from another agency, they would still likely comprise only a
minority of the presiding panel, thereby minimizing any concerns about their participation. In the
unlikely event a majority of the panel needed replacement due to recusal, the disruption would be
no more than for an individual adjudicator.
Finally, recusal of a single adjudicator may be distinct from recusal of a group member in
that an individual adjudicator’s recusal could be more easily decided by a fellow adjudicator.146
Judicial recusals have historically been decided in the first instance by the judge facing recusal,
and the same is true for administrative recusal. Despite its pedigree, this process of selfevaluation by adjudicators facing recusal is controversial.147 For those concerned about the
integrity of adjudicators deciding their own recusal status, the difference between recusal of an
individual adjudicator and a member of a group is significant. Put simply, it is easier and more
effective to have one adjudicator review the recusal decision of another if they are not members
of the same group.148
Multi-member bodies face a litany of conflicts of interest in reviewing a member’s
recusal decision. If the review consists of one member of the body reviewing the recusal decision
on another member, both the reviewing member and the member facing recusal have an interest
in the case. If the two interests align, the incentive will be for the reviewer to deny recusal. If the
two adjudicators have opposing views, the reviewer’s incentive would be to recuse and eliminate
an opposing vote. A similar conflict exists in terms of recusal’s effect on the number of
adjudicators available to participate. If recusal could affect the group’s ability to reach a quorum,
See 5 C.F.R. § 930.208 (outlining OMB’s Administrative Law Judge Loan Program, under which OPM
“coordinates the loan/detail of an administrative law judge from one agency to another”).
146
The concept of adjudicators reviewing one another’s recusal decisions is also discussed in the context of intraagency review in Part II.B.4, supra.
147
See, e.g., MATTHEW MENENDEZ AND DOROTHY SAMUELS, JUDICIAL RECUSAL REFORM: TOWARD INDEPENDENT
CONSIDERATION OF DISQUALIFICATION 4 (Brennan Center for Justice 2016). (“[A]nother judge personally removed
from the situation is in a better position to more accurately assess whether a request for another judge’s recusal is
warranted.”).
148
The FTC has adopted a recusal rule that allows for one ALJ to review the recusal decision of another. See 16
C.F.R. § 3.42(g) (“The Commission shall promptly determine the validity of the grounds alleged [for recusal of the
presiding ALJ], either directly or on the report of another Administrative Law Judge appointed to conduct a hearing
for that purpose.”). There is of course another possible configuration in this analysis—the recusal status of a group
member could be reviewed by a single adjudicator outside of the group. This would alleviate many of the conflicts
inherent in group members reviewing one another’s recusal status. It would also be effectively indistinguishable
from the situation of a single adjudicator reviewing another single adjudicator’s recusal decision, which is discussed
above.
145

48

or makes a tie vote more likely, then a conflict arises over not just the outcome of the
proceeding, but the group’s ability to reach a resolution at all.
These conflicts are the same or greater when the review is performed collectively by all
of the other members of the body. The other members may be influenced by the effect of recusal
on the ideological and numerical balance of the body. Moreover, when working together to
review a fellow member’s recusal, the entire group becomes actively involved in every recusal
decision the group faces. Although different groups could react differently to this responsibility,
at least one plausible approach would be to effectively refuse to opine on a fellow group
member’s recusal decision by affirming in every instance. This is the position taken by members
of the United States Supreme Court when asked whether they would consider reviewing one
another’s recusal decisions—decisions which are otherwise entirely unreviewable and final.149
The recusal calculus is a bit different when the multi-member body sits in smaller groups,
i.e. when the full membership does not participate in a single proceeding. The impact of having
members of the body review their peers’ recusal decisions depends on whether the reviewer is
participating in the same proceeding as the adjudicator facing recusal. If the reviewer is part of
the same proceeding, the same conflicts arise as those mentioned above in regard to multimember bodies. If not, those conflicts can largely be avoided.
For the most part, employing reviewers from outside of the relevant proceeding is similar
to the situation (discussed below) of individual adjudicators reviewing one another’s recusal
decisions. One additional consideration, however, is that reviewers from the same multi-member
adjudicative body may be more invested in that body’s overall decision making—especially if
those decisions have precedential authority—than reviewers whose own decisions are not
directly influenced by the recusal. Put another way, members of a multi-member adjudicative
body may care more about one another’s recusal decisions than an individual adjudicator would
about that of another individual adjudicator. The reason is the collective interest in the multimember body’s policy making mission and the possibility that a decision in one proceeding
could influence the reviewer’s ability to decide a similar case in the future. Individual
149

The Supreme Court is a multi-member adjudicative body that faces similar ideological and numerical challenges
in recusal as a multi-member administrative body. Justice Kennedy explained that the justices were loath to get
involved in one another’s recusal decisions because they would not want to appear to be “lobbying” for their
colleague’s participation or withdrawal, or to be creating precedents that the other members of the Court would have
to reckon with in future recusal decisions. See Hearing on the Supreme Court Budget, supra note 91, at 14; Steven
Lubet, Stonewalling, Leaks, and Counter-Leaks: SCOTUS Ethics in the Wake of NFIB v. Sebelius, 47 VAL. U. L.
REV. 883, 893 (2013). Supreme Court recusal is somewhat distinct from other forms of judicial and adjudicative
recusal because the Court is both final and unreviewable, making its recusal decisions fraught with potentially
greater and more lasting consequences than those of adjudicative entities whose recused members can be replaced or
that are subject to higher-level review. See VIRELLI, DISQUALIFYING THE HIGH COURT, supra note 2 at 78-85.
Nevertheless, the core challenges faced by reviewing a fellow group member’s recusal decision are effectively the
same for multi-member administrative entities as for multi-member courts.

49

adjudicators from the same agency may feel a similar connection when reviewing one another’s
recusal decisions, but there is at least a conceptual distinction when the reviewer and the
adjudicator facing recusal are members of a single adjudicative body, rather than simply
members of the same agency.
Conflicts are minimized when an individual adjudicator reviews another individual
adjudicator’s recusal determination. A single ALJ, for instance, does not have the same ability to
affect the outcome of the case or to set precedent for herself or her peers by reviewing a recusal
decision of another ALJ. A reviewer could of course be influenced by their own view of the
proceeding and whether their view aligns with the adjudicator facing recusal. But since the
reviewer is not an active participant in the proceeding (like a fellow group member performing a
recusal review could be), and therefore has far less occasion or motivation to develop his or her
own position on the merits, an individual adjudicator is less likely to be influenced by the
substantive impacts of a recusal decision than a reviewer who is participating in the case as a
member of the same body as the adjudicator facing recusal.
Recusal review of an individual adjudicator by another individual adjudicator is attractive
because it opens up the possibility of an individual adjudicator’s decision to recuse being
reviewed in the first instance by a peer, rather than a superior. This is important because review
by an ALJ’s superior may mean review by an agency head, which is almost certainly not the
most effective use of agency resources. The same benefit of peer review rather than superior
review holds for review of one member of a multi-member body’s recusal decision by the rest of
the group, only with the added costs of the attendant conflicts of interest.
Concerns about adjudicators deciding their own recusal status, coupled with the
efficiency of peers, rather than supervisors, reviewing initial recusal decisions, suggest that peerto-peer recusal review may be advantageous, provided steps are taken to ameliorate the potential
conflicts created by recusal reviews of fellow group members.
III. SOME THOUGHTS AND PRESCRIPTIONS
The results of this study shed some interesting light on the present and future of
administrative recusal. What it does not show—or even suggest—is the presence of any ethical
issues in agency adjudication. The purpose of this study is to better understand how agencies
currently approach recusal and, most importantly, how their approach helps them to achieve
recusal’s dual purposes of ensuring fairness to litigants and promoting public confidence in the
administrative process. In terms of fairness, it is difficult to project the actual effect of explicit
recusal standards on adjudicators’ recusal decisions. Anecdotal evidence indicates that
adjudicators take their recusal obligations seriously, and that they consider roughly the same
factors traditionally associated with judicial recusal in doing so. It is nevertheless fair to assume,
50

especially in agencies where they are currently lacking, that clear and easily discernible recusal
standards, including procedural standards, would encourage an even more robust and thorough
investigation of recusal issues. Initial adjudicators and those tasked with reviewing them will
have more guidance for their recusal decisions, which in turn will contribute to a more consistent
and accessible body of law to guide future conduct and empower parties to protect themselves
against potential bias. The result is a system of adjudication that is fairer for litigants.
Explicit, effective recusal standards offer the greatest contribution, however, in
promoting public confidence in agency adjudication. Regardless of whether adjudicators are
relying on defensible standards to make consistent, principled recusal decisions, doing so without
any public-facing statement by the agency of when those decisions must or should be made does
little to convince the public of the integrity of those decisions. Yet this is precisely what is
happening across much of the administrative state. The taxonomy of substantive standards shows
a significant number of adjudicating agencies with no express recusal standards at all, and
another group with a highly discretionary approach. Even those regulations that mirror the
APA’s personal bias language do little to explain what that means and how it should be applied,
and those that address more granular factors like conflicts of interest and prior involvement often
neglect the appearance of partiality.
Procedural requirements present a similar, albeit less striking, problem. Many but not all
agencies allow for parties to request their assigned adjudicator’s recusal and for intra-agency
appeal of the adjudicator’s decision. Very few, however, require adjudicators to explain or record
their decisions, and some expressly do not require such explanations. Though established
mechanisms for seeking and processing recusal decisions should promote public faith in the
adjudication’s integrity, the absence of any requirement that adjudicators explain and document
their decisions can have the opposite effect; it not only is inconsistent with American norms of
public adjudication but also creates the impression that adjudicators are unwilling or unable to
justify their decision. When one of the parties has sought the adjudicator’s recusal, a decision
without any explanation promotes skepticism, rather than confidence, in that decision.
An agency’s choice to promulgate recusal standards in guidance documents, rather than
legislative rules, sends a mixed message to the observing public. Guidance documents may be as
good or better than regulations in communicating expectations to adjudicators and other agency
actors responsible for recusal decisions. But in terms of their communicative value to the public,
they may suggest less of a commitment to recusal standards than regulations, and are often
harder to find, and less likely to be understood, by interested third parties. Taken together, all of
these factors make guidance documents potentially less effective in promoting public confidence.
Judicial review of agency recusal decisions is also served by the promulgation of agency
recusal rules. Although not part of agency recusal standards themselves, review of administrative
51

recusal decisions by Article III courts will be part of the recusal process. Since the term recusal is
generally not included in agency enabling acts, recusal decisions will be based on regulations,
guidance documents, or for those agencies without written recusal standards, agency custom and
tradition. Adjudicators’ application of agency recusal regulations will be entitled to Auer
deference, as recently updated by the Court in Kisor v Wilkie.150 Although it is still unclear
precisely how Kisor will impact judicial review of agency regulatory interpretations, one
plausible reading is that recusal rules are more likely to exhibit the “character and context”
necessary to merit Auer deference than standards published in guidance documents or derived
from agency custom or tradition.151 Under this reading, agencies looking to take control over
their recusal standards would be better off promulgating regulations that receive greater
deference from the reviewing courts.152 This is especially true because recusal regulations likely
fall within the procedural rule exception to the APA’s notice-and-comment provision, which
would allow them—even where the agency voluntarily sought public input for the rule—to be
issued more efficiently and cheaply than traditional notice-and-comment rules.153
Based on these findings, it seems that most agencies would be served by adopting more
specific substantive and procedural recusal regulations. At minimum, a public commitment to
establishing a clear and consistent approach to recusal will have a legitimizing effect on agency
adjudication by communicating clearly to the public how the agency views its recusal
obligations. This study, by providing a taxonomy of existing substantive and procedural
approaches to administrative recusal, gives agencies a chance to consider which of these
approaches may best serve their specific institutional needs and helps them understand and
consider the attendant consequences of each choice.
From an internal agency perspective, recusal regulations offer agencies an opportunity to
reflect what their adjudicators are in large part already doing, and can help clarify for those

Auer deference is a doctrine that derives from the Supreme Court’s decisions in Bowles v. Seminole Rock & Sand
Co., 325 U.S. 410 (1945), and Auer v. Robbins, 519 U.S. 452 (1997). The doctrine was updated by the Court’s
recent decision in Kisor v. Wilkie, 139 S. Ct. 2400 (2019).
151
See Kisor, 139 S. Ct. at 2416 (“We have recognized in applying Auer that a court must make an independent
inquiry [to determine the appropriate level of deference] into whether the character and context of the agency
interpretation entitles it to controlling weight. See Christopher, 567 U.S. at 155, 132 S. Ct. 2156; see also Mead, 533
U.S. at 229–231 . . . (requiring an analogous though not identical inquiry for Chevron deference).”); Skidmore v.
Swift & Co., 323 U.S. 134 (1944).
152
A different reading, in which the form of the agency’s recusal standards is less important (or even irrelevant) to
determining the level of judicial deference they receive, is also plausible. That approach leaves recusal rules and
guidance documents in equipoise. It does not counsel against recusal regulations, except on efficiency grounds,
which are diluted by the prospect of recusal rules satisfying the APA’s procedural exception to notice and comment.
See infra. No reading of Kisor suggests, however, that a recusal rule could receive less deference than a guidance
document, assuming similar content.
153
5 U.S.C. § 553(b)(A) (“Except when notice or hearing is required by statute, this subsection does not apply —
(A) to interpretative rules, general statements of policy, or rules of agency . . . procedure . . . .”).
150

52

adjudicators how they are expected to balance their obligation to the agency’s adjudicative
mission with the need to protect the integrity of agency proceedings.
The problem of tailoring agency recusal standards to the specific needs of the agency can
be addressed by the other issues considered in the study—the nature and role of the adjudicators
themselves and the institutional features of the adjudicative regime. Issues like adjudicator
independence, the degree of decisional authority, and whether adjudicators act alone or as part of
a deliberative body can all help flesh out precisely when and how recusal can best suit the parties
before the agency and the agency’s standing in the community.
IV. CONCLUSION
Recusal is but one part of a complex and highly varied system of administrative
adjudication. It is by no means a panacea, but it does offer concrete benefits that are currently, as
the current study reveals, underdeveloped by agencies. The judicial model of recusal seeks to
protect litigants from biased judges and to give the public confidence that their judges’ decisions
will be based on a neutral, objective application of the law. The same aspirations attach to
administrative recusal. Agencies adopting public-facing recusal standards, as well as procedures
outlining how those standards are to be implemented, can protect litigants from potentially
partial adjudicators while assuring the regulated public that their administrative government
takes issues of fairness seriously.

53

V. TABLES
Table 1. Adjudicatory Agencies (and Subunits) With No Written Recusal Standards
Agency
Department of the Air Force
Department of the Army
Department of Commerce
(Patent and Trademark Office)

Subunit
Board for Correction of Military Records
Discharge Review Board
Board for Correction of Military Records

Adjudicator Title / Position
Board Members
Board Members
Board Members

Trademark Trial and Appeal Board
Office of Enrollment and Discipline

Administrative Trademark Judges
Hearing officers
Patent Examiners
Board of Contract Appeals Judges
Administrative Judges
Appeal Board Members
Claims Division
Administrative Judges
Board Members

Department of Defense

Armed Services Board of Contract Appeals
Defense Office of Hearings and Appeals

Department of Energy
Department of the Navy

Office of Hearings and Appeals
Board of the Correction of Naval Records
Office of Mission Support, Office of Grants and
Debarment
Office of Field Operations (OFO)

Environmental Protection Agency
Equal Employment Opportunity Commission
Farm Credit Administration
Federal Election Commission
Federal Maritime Commission
General Services Administration
Department of Labor
Library of Congress
National Aeronautics and Space
Administration
National Credit Union Administration
National Labor Relations Board
Department of the Navy
Postal Service
Securities and Exchange Commission
Surface Transportation Board

Bureau of Consumer Complaints and Licensing
Civilian Board of Contract Appeals
Employee Compensation Appeals Board
Copyright Royalty Board
Contracts Adjustment Board
Office of Financial Institution Adjudication
Regional Offices
Board for Correction of Military Records

54

Attorney-Examiners
Appellate Attorneys for OFO
Board Members
Commissioners
Hearing Officers
Board Members
Board Members
Copyright Royalty Judges
Board Members
Board Members and ALJs
Hearing Officers (10(k) post-election
hearings)
Board Members
ALJs and Judicial Officers
Commissioners
Hearing Officers, Board Members

Table 2. Impartiality Requirements
Agency
Department of
Commerce

Department of
Defense
Department of
Justice
Federal Deposit
Insurance
Corporation
Federal Housing
Finance Agency
Federal Labor
Relations
Authority

Subunit
Bureau of Industry and
Security Export
Administration

Office of Hearings and
Appeals
Drug Enforcement
Administration

Citation

Recusal Provision

15 C.F.R. § 766.13
Department of Defense Directive No. 5220.6,
Defense Industrial Personnel Security
Clearance Review Program (Jan. 2, 1992)
21 C.F.R. § 1316.52

12 C.F.R. § 308.5(b)(9)
12 C.F.R. § 1209.11(a)
Office of the General
Counsel

Federal Reserve

5 C.F.R. § 2423.31(a)

12 C.F.R. § 263.5

International
Trade
Commission

National Labor
Relations Board

19 C.F.R. § 210.36(d)
Office of General Counsel, National Labor
Relations Board, Guide for Hearing Officers
in NLRB Representation and Section 10(k)
Proceedings (2003)154

Postal Service

39 C.F.R. § 958.9

Selective Service
System

154

National Appeal Board

32 C.F.R. § 1605.6(e)

“Hearings will be conducted in a fair and impartial manner by
the administrative law judge . . . .”
“All proceedings provided for by this Directive shall be
conducted in a fair and impartial manner . . . [and]
Administrative Judges and Appeal Board members have the
requisite independence to render fair and impartial decisions.”
“The presiding officer shall have the duty to conduct a fair
hearing . . . .”
“The administrative law judge shall have all powers necessary
to conduct a proceeding in a fair and impartial manner . . .
including . . . [t]o recuse . . . .”
“The presiding officer shall . . . conduct a fair and impartial
hearing . . . .”
“The Administrative Law Judge shall conduct the hearing in a
fair, impartial, and judicial manner . . . .”
“The administrative law judge shall have all powers necessary
to conduct a proceeding in a fair and impartial manner . . .
including . . . [t]o recuse . . . .”
“Every hearing under this section shall be conducted in
accordance with the Administrative Procedure Act (i.e., 5
U.S.C. §§ 554 through 556). Hence, every party shall have . . .
all other rights essential to a fair hearing.”
“The hearing officer is not an advocate of any position and
must be impartial in his/her rulings and in conduct both on
and off the record.”
“The Presiding Officer shall conduct a fair and impartial
hearing . . . .”
“A member of the National Appeal Board must disqualify
himself in any matter in which we would be restricted for any
reason in making an impartial decision.”

The Guide is available at https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-1727/hearing_officers_guide.pdf.

55

Table 2, Impartiality Requirements (continued)
Agency
Department of
State
Department of
Treasury

Subunit
Foreign Service
Grievance Board
Internal Revenue
Service
Office of Comptroller
of Currency

Citation
3 FAM 4441(c), Establishment and
Composition
26 C.F.R. § 6001.106(a)

12 C.F.R. § 109.5(b)(9)

56

Recusal Provision
“All members of the Board shall act in an impartial manner
in considering grievances.”
“It shall be [the Appeals representative’s] duty to determine
the correct amount of the tax, with strict impartiality . . . .”
“The administrative law judge shall have all powers necessary
to conduct a proceeding in a fair and impartial manner . . .
including . . . [t]o recuse . . . .”

Table 3. Discretionary Recusal Standards
Agency

Access Board
Commodity Futures
Trading Commission

Subunit
Architectural and
Transportation
Barriers Compliance
Board

Adjudicators /
Subject Matter

Consumer Product
Safety Commission

Department of Energy
Environmental
Protection Agency

Citation

Recusal Provision

36 C.F.R. §
1150.53(a)
17 C.F.R. §
10.8(b)

“A judge shall disqualify himself/herself whenever in his/her
opinion it is improper for him/her to preside at the proceedings.”
“An Administrative Law Judge may withdraw from any proceeding
when he considers himself to be disqualified.”
“When a Presiding Officer considers himself/herself disqualified to
preside in any adjudicative proceedings, he/she shall withdraw by
notice on the record . . . .”

16 C.F.R. §
1025.42(e)
Federal Energy
Regulatory
Commission

16 C.F.R. §
4.17
46 C.F.R. §
502.25(g)

“A presiding officer may withdraw from a proceeding, if that
officer believes himself or herself disqualified.”
“The Administrative Law Judge may at any time withdraw from
any proceedings in which he deems himself disqualified for any
reason.”
“In the event that a presiding officer deems himself disqualified
and desires to withdraw from the case, he shall notify the
Commission of his withdrawal at least 7 days prior to the date set
for hearing.”
“When an Administrative Law Judge deems himself disqualified to
preside in a particular proceeding, he shall withdraw therefrom by
notice on the record . . . .”
Explaining that in adjudicatory proceedings involving FTC
commissioners (which include appeals from ALJ rulings governed
by 16 C.F.R. § 3.42(g), above), disqualification of commissioners
will occur “in accordance with legal standards applicable to the
proceeding in which such motion is filed.”
“Any presiding or participating officer may at any time withdraw if
he or she deems himself or herself disqualified . . . .”

29 C.F.R. §
2700.81(a)
4 C.F.R. §
28.23(a)

“A Commissioner or a Judge may recuse himself from a
proceeding whenever he deems such action appropriate.”
“In the event that an administrative judge considers himself or
herself disqualified, he or she shall withdraw from the case . . . .”

18 C.F.R. §
385.504(c)(1)
Pesticide
program
(FIFRA)

40 C.F.R. §
164.40

Federal
Communications
Commission

47 C.F.R. §
1.245(a)

Federal Trade
Commission

16 C.F.R. §
3.42(g)

Federal Maritime
Commission
Federal Mine Safety
and Health Review
Commission
Government
Accountability Office

57

Table 3, Discretionary Recusal Standards (continued)

Agency
Department of Health
and Human Services
Department of
Homeland Security

Subunit
Food and Drug
Administration
U.S. Citizenship and
Immigration Services

Adjudicators /
Subject Matter

Recusal Provision
“A presiding officer who is aware of grounds for disqualification
shall withdraw from the proceeding.”
“The immigration judge assigned to conduct a hearing shall, at any
time, withdraw if he or she deems himself or herself disqualified.”

APA hearings

Citation
21 C.F.R. §
12.75
8 C.F.R. §
246.4
33 C.F.R. §
20.204(a)
24 C.F.R. §§
26.5, 26.35,
180.210
24 C.F.R. §
26.35

Civil rights
matters
Acknowledgement
of Indian Tribes

24 C.F.R. §
180.210
43 C.F.R. §
4.1016(a)

Employment

28 C.F.R. §
68.30(a)

“If an ALJ finds that there is a basis for his/her disqualification in a
proceeding, the ALJ shall withdraw from the proceeding.”
“The ALJ may withdraw from a case at any time the ALJ deems
himself or herself disqualified.”
“When an Administrative Law Judge deems himself or herself
disqualified to preside in a particular proceeding, such judge shall
withdraw therefrom . . . .”
“The immigration judge assigned to conduct the hearing shall at
any time withdraw if he or she deems himself or herself
disqualified.”

Coast Guard
Department of Housing
and Urban
Development

Hearing officers

Office of Assistant
Secretary for Equal
Opportunity
Department of the
Interior

Department of Justice

Executive Office for
Immigration Review

Removal
proceedings

Department of Labor
Administrative
Review Board
155

Board of
Immigration
Appeals
Administrative
Law Judges
Program Fraud
Civil Remedies
Act

8 C.F.R. §
1240.1(b)
Board of
Immigration
Appeals
Practice
Manual §
1.3(c)155
29 C.F.R. §
18.16
29 C.F.R. §
22.16

“An ALJ may disqualify herself or himself at any time.”
“When a hearing officer believes there is a basis for disqualification
in a particular proceeding, the hearing officer shall withdraw by
notice on the record . . . .”
“An ALJ in a particular case may disqualify himself or herself.”

“Board Members may recuse themselves under any circumstances
considered sufficient to require such action.”
“A judge must withdraw from a proceeding whenever he or she
considers himself or herself disqualified.”
“A reviewing official or ALJ in a particular case may disqualify
himself or herself at any time.”

The Practice Manual is available at https://www.justice.gov/eoir/page/file/1250701/download.

58

Table 3, Discretionary Recusal Standards (continued)

Agency

Subunit

National Endowment
for the Arts
National Labor
Relations Board

Nuclear Regulatory
Commission
Postal Service

Citation

Recusal Provision

45 C.F.R. §
1149.31(a)

49 C.F.R. §
511.42(e)

“A reviewing official or an ALJ may disqualify himself or herself
at any time.”
“[A]ny such administrative law judge, agent, or employee may at
any time withdraw if he or she deems himself or herself
disqualified because of bias or prejudice.”
“An Administrative Law Judge may withdraw from a proceeding
because of a personal bias or for other disqualifying reasons.”
“If a designated presiding officer or a designated member of an
Atomic Safety and Licensing Board believes that he or she is
disqualified to preside or to participate as a board member in the
hearing, he or she shall withdraw by notice on the record . . . .”
“A presiding officer may withdraw from a proceeding when he/she
deems himself disqualified . . . .”
“At any time a hearing officer believes himself or herself to be
disqualified from considering a matter, the hearing officer shall
issue a notice stating that he or she is withdrawing from the matter .
. . .”
“An administrative law judge shall withdraw from the case if at any
time he or she deems himself or herself disqualified.”
“When a Presiding Officer deems himself or herself disqualified to
preside in a particular proceeding, he or she shall withdraw by
notice on the record . . . .”

49 C.F.R. §
821.35
46 C.F.R. §
201.89
27 C.F.R. §
71.96

“A law judge shall withdraw from a proceeding if, at any time, he
or she deems himself or herself disqualified.”
“Any presiding officer may at any time withdraw if he deems
himself disqualified . . . .”
“An administrative law judge shall, at any time, withdraw from any
proceeding if he deems himself disqualified . . . .”

29 C.F.R. §
101.10
29 C.F.R. §
102.36

Atomic Safety and
Licensing Board
Postal Regulatory
Commission

Securities and
Exchange Commission
Department of
Transportation

Department of Treasury

Adjudicators /
Subject Matter
Program Fraud
Civil Remedies
Act

10 C.F.R. §
2.313(b)
39 C.F.R. §
3001.23

17 C.F.R. §
201.112(a)
14 C.F.R. §
302.17(b)
National Highway
Traffic Safety
Administration
National
Transportation Safety
Board
Maritime
Administration
Alcohol and Tobacco
Tax and Trade Bureau

59

Table 4. Conflict of Interest Standards (including prior involvement and OGE)

Agency

Subunit

Adjudicators /
Subject Matter

Citation

Department
of Agriculture

Office of
Secretary

Judges

7 C.F.R. § 1.144(a)

Department
of Commerce

156

7 C.F.R. § 47.11(a)

Recusal Provision
“No Judge shall be assigned to serve in any proceeding who (1) has any
pecuniary interest in any matter or business involved in the proceeding,
(2) is related within the third degree by blood or marriage to any party
to the proceeding, or (3) has any conflict of interest which might impair
the Judge's objectivity in the proceeding.”
“No person who (1) has any pecuniary interest in any matter of business
involved in the proceeding, or (2) is related within the third degree by
blood or marriage to any of the persons involved in the proceeding shall
serve as examiner in such proceeding.”

7 C.F.R. §§ 900.6, 1200.7
(identical provisions)

“No judge who has any pecuniary interest in the outcome of a
proceeding shall serve as judge in such proceeding.”

Grain inspection

7 C.F.R. § 1.144(a)

Agricultural
Marketing
Service

Packers and
Stockyards
Administration

9 C.F.R. § 202.118(d)

Patent and
Trademark
Office

Disciplinary
hearings

(same as above)
“No person shall be assigned to act as a presiding officer in any
proceeding who (1) has any material pecuniary interest in any matter or
business involved in the proceeding; (2) is related within the third
degree by blood or marriage to any party to the proceeding; or (3) has
any conflict of interest which might impair such person's objectivity in
the proceeding.”
“A hearing officer . . . shall not be an individual who has participated in
any manner in the decision to initiate the proceedings, and shall not
have been
employed under the immediate supervision of the practitioner.”

Patent Trial
and Appeal
Board

Judges

Agricultural
Marketing
Service
Agricultural
Marketing
Service
Agricultural
Marketing
Service

Perishable
Agricultural
Commodities Act
Marketing
agreements &
orders

37 C.F.R. § 11.39(b)(3)
PTAB, Standard
Operating Procedures 1:
Assignment of Judges to
Panels, 13 (Sept. 20,
2018)156

“Judges shall recuse themselves upon becoming aware of an existing or
later arising conflict, as defined in [OGE regulations].”

The full document is available at https://www.uspto.gov/sites/default/files/documents/SOP%201%20R15%20FINAL.pdf.

60

Table 4, Conflict of Interest Standards (including prior involvement and OGE) (continued)

Agency

Subunit

Adjudicators /
Subject Matter

Citation

Department of
Education

Office of
Hearings and
Appeals

ALJs

34 C.F.R. § 81.5(c)

Assessment of
civil penalties

40 C.F.R. § 22.4(d)

Pesticide programs

40 C.F.R. § 179.75(a)

CERCLA

40 C.F.R. § 305.4(d)(1)

Environmental
Protection
Agency

Equal
Employment
Opportunity
Commission

157

Environmental
Appeals Board

40 C.F.R. § 22.4(d)

Office of Field
Programs

U.S. Equal Employment
Opportunity
Commission Handbook
for
Administrative Judges
14 (July 1, 2002)157

ALJs

On file with author.

61

Recusal Provision
“An ALJ is disqualified in any case in which the ALJ has a substantial
interest, has been of counsel, is or has been a material witness, or is so
related to or connected with any party or the party's attorney as to make
it improper for the ALJ to be assigned to the case.”
“The [presiding adjudicators] may not perform functions provided for in
these Consolidated Rules of Practice regarding any matter in which they
have a financial interest or have any relationship with a party or with the
subject matter which would make it inappropriate for them to act.”
“A deciding official in a hearing under this part . . . shall not decide any
matter in connection with which he or she has a financial interest in any
of the parties, or a relationship that would make it otherwise
inappropriate for him or her to act.”
“Neither the Review Officer nor the Presiding Officer may perform
functions provided for in this part regarding any matter in which he: has
a financial interest; or has any relationship with a party or with the
subject matter that would make it inappropriate for him to act.”
(same as above)
“The Administrative Judge should recuse himself/herself from both real
and perceived conflicts of interest. The Administrative Judge generally
should not participate in a hearing where a party is a member of his/her
household, a close relative, the employer of his/her spouse, parent or
dependent child, someone with whom he/she has a business
relationship, or a former employer (within the past year). If, however,
the Administrative Judge determines that no reasonable person knowing
all the facts would question his/her impartiality, the Administrative
Judge may proceed with the hearing after disclosing the relationship and
explaining the reasons why he/she does not believe there is a conflict.”

Table 4, Conflict of Interest Standards (including prior involvement and OGE) (continued)

Agency
Department of
Health &
Human
Services

Subunit

Adjudicators /
Subject Matter

Departmental
Appeals Board
(DAB)
Departmental
Appeals Board
(DAB)

Board Member
ALJ – civil
monetary penalty
hearings

Medical
Appeals
Council
Office of
Medicare
Hearings and
Appeals

Center for
Medicare
Services
Provider
Reimbursement
Review Board
Department of
Homeland
Security
158
159

Coast Guard

ALJ/Attorney
Adjudicator
Administrative
Law
Judge/Attorney
Adjudicator
Qualified
Independent
Contractor

Contract Hearing
Officer

Board Member
Hearings for Civil
and Criminal
Penalties

Citation

42 C.F.R. § 423.2026

Recusal Provision
“The evaluator’s opinions can serve as the basis for further settlement
discussions. On occasion, a Board Member who is knowledgeable about
the subject matter area may serve as the evaluator. If the case is not
settled, the Board Member will be recused from further Board
proceedings in that case.”
“An ALJ may not conduct a hearing in a case in which he or she is
prejudiced or partial to the affected party or has any interest in the
matter pending for decision.”
Same as above
“An ALJ or attorney adjudicator may not adjudicate an appeal if he or
she is prejudiced or partial to the enrollee or has any interest in the
matter pending for decision.”

42 C.F.R. § 405.1026

“An ALJ or attorney adjudicator may not adjudicate an appeal if he or
she is prejudiced or partial to the enrollee or has any interest in the
matter pending for decision.”

HHA Appeals Manual158

42 C.F.R. § 423.1026(a)
42 C.F.R. § 498.45

42 C.F.R. § 405.968(d)

42 C.F.R. § 405.1817

42 C.F.R. § 405.1847
U.S. Coast Guard,
Commandant Instruction
6200.5B, at 8.l. (Sept.
23, 2013).159

“No physician or health care professional employed by or otherwise
working for a QIC may review determinations.”
“The hearing officer or officers shall not have had any direct
responsibility for the program reimbursement determination with
respect to which a request for hearing is filed; no hearing officer (or
officers) shall conduct a hearing in a case in which he is prejudiced or
partial with respect to any party, or where he has any interest in the
matter pending for determination before him.”
“No Board member shall join in the conduct of a hearing in a case in
which he is prejudiced or partial with respect to any party or in which
he has any interest in the matter pending for decision before him.”
"A Hearing Officer shall recuse him or herself from further participation
in a civil penalty case if he or she determines that he or she should be
disqualified because of actual bias, prejudice, or personal interest in a
matter. . . .”

The Manual is available at https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/practice-manual/index.html#41.
Available at https://media.defense.gov/2017/Mar/15/2001717001/-1/-1/0/CI_16200_5B.PDF.

62

Table 4, Conflict of Interest Standards (including prior involvement and OGE) (continued)

Agency

Subunit

Department of
Labor

Benefits
Review Board
Office of
Workers
Compensation
Programs

Merit Systems
Protection
Board

Peace Corps
Pension
Benefit
Guaranty
Corporation

160
161

Citation

Board Members

20 C.F.R. § 801.203

Federal Coal Mine
Health and Safety
Act of 1969

AJs

Office of the
General
Counsel

Appeals Board

Railroad
Retirement
Board

Selective
Service
System

Adjudicators /
Subject Matter

Selective
Service Local
Board

Hearing Panelist

20 C.F.R. § 725.352
U.S. Merit Systems
Protection Board Judges
Handbook 14 (Mar.
2017)160
IPS 1-12 Procedures for
Handling Complaints of
Volunteer/Trainee
Sexual Misconduct at
5.1(a) (July 1, 2013)161

Board Member

29 C.F.R. 4002.6

Board Member,
Director, Hearings
Officer

20 C.F.R. §§ 260.3(e),
260.4(e), 260.5(e)

Board Member

32 C.F.R. § 1605.55(a)

Recusal Provision
“Disqualification of Board Members . . . they shall be subject to the
Department's regulations governing ethics and conduct set forth at [5
C.F.R. part 2635, the OGE ethics rules].”
“No adjudication officer shall conduct any proceedings in a claim in
which he or she is prejudiced or partial, or where he or she has any
interest in the matter pending for decision.”
“Bases for the disqualification of an AJ include: (a) A party, witness, or
representative is a friend or relative of, or has had a close professional
relationship with the AJ . . . .”

“Either party may . . . object to any member of the Hearing Panel on the
basis of a conflict of interest or other good cause.”
A Board Member and the Director must notify the Board members of
disqualification in any decision or activity based on a conflict of interest
under [OGE provisions 18 U.S.C. § 208 and 5 C.F.R. § 2635.502].
“The [hearing] shall be conducted by a person who shall not have any
interest in the parties or in the outcome of the proceedings, shall not
have directly participated in the initial decision which has been
requested to be reconsidered and shall not have any other interest in the
matter which might prevent a fair and impartial decision.” § 260.3(e).
“No member of a local board shall act on the case of a registrant who is
the member's first cousin or closer relation, either by blood, marriage, or
adoption, or who is the member's employer, employee, or fellow
employee, or stands in the relationship of superior or subordinate of the
member in connection with any employment, or is a partner or close
business associate of the member, or a fellow member or employee of
the area office.”

The Judges Handbook is available at https://www.mspb.gov/mspbsearch/viewdocs.aspx?docnumber=241913&version=242182&application=ACROBAT.
The procedural guidance is available at https://files.peacecorps.gov/documents/IPS-1-12-Interim-Procedures.pdf.

63

Table 4, Conflict of Interest Standards (including prior involvement and OGE) (continued)

Agency

Subunit

Adjudicators /
Subject Matter

Citation

Selective
Service
System (cont.)

Selective
Service District
Appeal Board

Board Member

32 C.F.R. § 1605.25(a)

Board Member

32 C.F.R. § 1605.6(e)

Small
Business
Administration

National
Appeal Board
Office of
Hearings and
Appeals

ALJs

13 C.F.R. § 134.218(c)

Department of
Treasury

Alcohol and
Tobacco Tax
and Trade
Bureau

Administrator

27 C.F.R. § 71.116

Board of
Veterans
Appeals

Board Member
(including
Chairman and
Veterans Law
Judges)

38 C.F.R. § 20.107

Department of
Veterans
Affairs

64

Recusal Provision
“ No member of a district appeal board shall act on the case of a
registrant who is the member's first cousin or closer relation, either by
blood, marriage, or adoption, or who is the member's employer,
employee, or fellow employee, or stands in the relationship of superior
or subordinate of the member in connection with any employment, or is
a partner or close business associate of the member, or is a fellow
member or employee of the board.”
“No member of the National Appeal Board shall act on the case of a
registrant who is the member's first cousin or closer relation either by
blood, marriage, or adoption, or who is the member's employer,
employee or fellow employee or stands in the relationship of superior or
subordinate of the member in connection with any employment, or is a
partner or close business associate of the member, or is a fellow
member or employee of the National Appeal Board.”
“[A] Judge will promptly recuse himself or herself from further
participation in a case whenever disqualification is appropriate due to
conflict of interest, bias, or some other significant reason.”
“Appeals and petitions for review shall not be decided by the
Administrator in any proceeding in which he has engaged in
investigation or prosecution, and in such event he shall so state his
disqualification in writing and refer the record to the Under Secretary
for appropriate action.”
“A Member of the Board will disqualify himself or herself in a hearing
or decision on an appeal if that appeal involves a determination in
which he or she participated or had supervisory responsibility in the
agency of original jurisdiction prior to his or her appointment as a
Member of the Board, or where there are other circumstances which
might give the impression of bias either for or against the appellant.”

Table 5. Personal Bias Standards

Agency

Subunit

Access Board

Architectural and
Transportation
Barriers Compliance
Board

Adjudicators /
Subject Matter

36 C.F.R. §
1150.53(b)

Commodity Futures
Trading Commission
Federal
Communications
Commission

17 C.F.R. § 10.8(b)

47 C.F.R. § 1.245(b)

Federal Maritime
Commission
Federal Mine Safety
and Health Review
Commission

Government
Accountability Office
Department of Health
& Human Services

Citation

46 C.F.R. §
502.25(g)
29 C.F.R. §
2700.81(b)

Personnel Appeals
Board
Departmental
Appeals Board
(DAB)

Medical Appeals
Council
Office of Medicare
Hearings and Appeals

AJ
ALJ – civil
monetary penalty
hearings

4 C.F.R. § 28.23

ALJ/Attorney
Adjudicator
Administrative Law
Judge/Attorney
Adjudicator

42 C.F.R. §
423.2026

42 C.F.R. §
423.1026(a)
42 C.F.R. § 498.45

42 C.F.R. §
405.1026

65

Recusal Provision
“At any time following appointment of the judge and before
the filing of the decision, any party may request the judge to
withdraw on grounds of personal bias or prejudice either
against it or in favor of any adverse party, by promptly filing
with him/her an affidavit setting forth in detail the alleged
grounds for disqualification.”
“Any party or person who has been granted leave to be heard
pursuant to these rules may request an Administrative Law
Judge to disqualify himself on the grounds of personal bias,
conflict or similar bases.”
“Any party may request the presiding officer to withdraw on
the grounds of personal bias or other disqualification.”
“If a party to a proceeding, or its representative, files a
timely and sufficient affidavit of personal bias or
disqualification of a presiding or participating officer, the
Commission will determine the matter as a part of the record
and decision in the case.”
“A party may request a Commissioner or a Judge to
withdraw on grounds of personal bias or other
disqualification.”
“Any party may file a motion requesting the administrative
judge to withdraw on the basis of personal bias or other
disqualification and specifically setting forth the reasons for
the request.”
“An ALJ may not conduct a hearing in a case in which he or
she is prejudiced or partial to the affected party or has any
interest in the matter pending for decision.”
Same as above
“An ALJ or attorney adjudicator may not adjudicate an
appeal if he or she is prejudiced or partial to the enrollee or
has any interest in the matter pending for decision.”
“An ALJ or attorney adjudicator may not adjudicate an
appeal if he or she is prejudiced or partial to the enrollee or
has any interest in the matter pending for decision.”

Table 5, Personal Bias Standards (continued)

Agency

Subunit

Adjudicators /
Subject Matter

Citation

Department of Health
& Human Services
(cont.)

Center for Medicare
Services

Contract Hearing
Officer

42 C.F.R. §
405.1817

Provider
Reimbursement
Review Board

Board Member

Department of
Homeland Security
Department of the
Interior

Department of Justice

Department of Labor
162
163

Coast Guard

Executive Office for
Immigration Review

Hearings for Civil
and Criminal
Penalties
Acknowledgement
of Indian Tribes

42 C.F.R. §
405.1847
U.S. Coast Guard,
Commandant
Instruction 6200.5B,
at 8.l. (Sept. 23,
2013).162

Immigration Judge

43 C.F.R. § 4.1016
Office of the Chief
Immigration Judge,
Operating Policies
and Procedures
Memorandum 0502:
Procedures for
Issuing Recusal
Orders in
Immigration
Proceedings (DOJ
EOIR Mar. 21,
2015)163

Program Fraud Civil
Remedies Act

29 C.F.R. § 22.16(b)

Available at https://media.defense.gov/2017/Mar/15/2001717001/-1/-1/0/CI_16200_5B.PDF.
Available at https://www.justice.gov/sites/default/files/eoir/legacy/2005/03/22/05-02.pdf.

66

Recusal Provisions
“[N]o hearing officer (or officers) shall conduct a hearing in
a case in which he is prejudiced or partial with respect to any
party, or where he has any interest in the matter pending for
determination before him.”
“No Board member shall join in the conduct of a hearing in a
case in which he is prejudiced or partial with respect to any
party or in which he has any interest in the matter pending
for decision before him.”
"A Hearing Officer shall recuse him or herself from further
participation in a civil penalty case if he or she determines
that he or she should be disqualified because of actual bias,
prejudice, or personal interest in a matter. . . .”
“[A]ny party may move that the ALJ disqualify himself or
herself for personal bias or other valid cause.”

“[I]n Matter of Exame, 18 I&N Dec. 303 (BIA 1982) . . . ,
the BIA recognized . . . recusal: . . . (2) when the
immigration judge has a personal bias . . . .”
“A party may file with the ALJ a motion for disqualification
of a reviewing official or an ALJ. Such motion shall be
accompanied by an affidavit alleging personal bias or other
reason for disqualification.”

Table 5, Personal Bias Standards (continued)

Agency

Subunit

Merit Systems
Protection Board

Adjudicators /
Subject Matter

AJs

National Endowment
for the Arts
National Labor
Relations Board

Division of Judges

Postal Service

Postal Regulatory
Commission

Small Business
Administration

Office of Hearings
and Appeals

Program Fraud Civil
Remedies Act
Section 10(a)-(i) of
Unfair Labor
Practices Act

164

45 C.F.R. §
1149.31(b)
29 C.F.R. §
102.36(a)

39 C.F.R. §
3001.23(d)

ALJs

Securities and
Exchange
Commission

Department of
Transportation

Citation
U.S. Merit Systems
Protection Board
Judges Handbook
14 (Mar. 2017)164

13 C.F.R. §
134.218(c)

17 C.F.R. §
201.112(b)

Aviation
Proceedings

14 C.F.R. §
302.17(b)

Recusal Provisions
“Bases for the disqualification of an AJ include: . . . (b)
Personal bias or prejudice of the AJ.”
“The motion [for disqualification] must be supported by an
affidavit . . . establishing that personal bias or other reason
for disqualification exists . . . .”
“An Administrative Law Judge may withdraw from a
proceeding because of a personal bias or for other
disqualifying reasons.”
“A presiding officer may withdraw from a proceeding when
he/she deems himself disqualified, or may be withdrawn by
the Commission for good cause found after timely affidavits
alleging personal bias or other disqualifications have been
filed.”
“A Judge will promptly recuse himself or herself from
further participation in a case whenever disqualification is
appropriate due to conflict of interest, bias, or some other
significant reason.”
“Any party who has a reasonable, good faith basis to believe
that a hearing officer has a personal bias, or is otherwise
disqualified from hearing a case, may make a motion to the
hearing officer that the hearing officer withdraw.”
“If . . . there is filed with the administrative law judge, in
good faith, an affidavit of personal bias or disqualification
with substantiating facts and the administrative law judge
does not withdraw, the DOT decisionmaker shall determine
the matter.”

The Judges Handbook is available at https://www.mspb.gov/mspbsearch/viewdocs.aspx?docnumber=241913&version=242182&application=ACROBAT.

67

Table 5, Personal Bias Standards (continued)
Adjudicators /
Subject Matter

Agency

Subunit

Citation

Department of
Transportation (cont.)

Maritime
Administration

46 C.F.R. § 201.89

Department of the
Treasury

Alcohol and Tobacco
Tax and Trade
Bureau

27 C.F.R. § 71.96

68

Recusal Provision
“If a party to a proceeding, or his representative, files in
good faith a timely and sufficient affidavit of personal bias
or disqualification of a presiding officer, the Administration
will determine the matter as a part of the record and decision
in the case.”
“[U]pon the filing in good faith . . . of a timely and sufficient
affidavit of facts showing personal bias or otherwise
warranting the disqualification of any administrative law
judge, the Administrator shall . . . determine the matter as a
part of the record and decision in the proceeding.”

Table 6. Quasi-Judicial Standards (including appearance standards)

Agency

Subunit

Adjudicators /
Subject Matter

Equal
Employment
Opportunity
Commission
Department of
Health and
Human Services

Office of Field
Programs
Provider
Reimbursement
Review Board

Department of
Interior

Office of Hearings
and Appeals

Board Member
Hearing Divisions,
Board of Land
Appeals, Board of
Indian Appeals

Fish & Wildlife
Service

Presiding Officer

Department of
Justice

Executive Office
for Immigration
Review

Administrative Judges

Immigration Judge

Citation
U.S. Equal Employment
Opportunity Commission
Handbook for
Administrative Judges 14
(July 1, 2002)165
Provider Reimbursement
Review Board Rules (Aug.
29, 2018) (Rule 45)166

43 C.F.R. § 4.27 (c)(1)

50 C.F.R. § 18.76(e)
Office of the Chief
Immigration Judge,
Operating Policies and
Procedures Memorandum
05-02:
Procedures for Issuing
Recusal Orders in
Immigration Proceedings 4
(DOJ EOIR Mar. 21, 2015)

165

Recusal Provision
“(a) The Administrative Judge should recuse
himself/herself from both real and perceived conflicts of
interest. . . . (b) The Administrative Judge should not
participate in any conduct during the hearing that presents
the appearance of or demonstrates actual bias in favor of or
against one of the parties.”
“A Board member may recuse him or herself if there are
reasons that might give the appearance of an inability to
render a fair and impartial decision.”
“[A]n Office of Hearings and Appeals deciding official
must withdraw from a case if circumstances exist that
would disqualify a judge in such circumstances under the
recognized canons of judicial ethics.”
“The presiding officer shall withdraw . . . if he deems
himself disqualified under recognized canons of judicial
ethics. . . . If there is filed . . . a timely and sufficient
affidavit alleging the presiding officer’s personal bias,
malice, conflict of interest or other basis which might
result in prejudice to a party, the hearing shall recess.”

“[A] judge should recuse him or herself when it would
appear to a reasonable person, knowing all the relevant
facts, that a judge’s impartiality might reasonably be
questioned.”

On file with author.
The PRRB rules are available at https://www.cms.gov/Regulations-and-Guidance/Review-Boards/PRRBReview/Downloads/PRRB-Rules-August-292018.pdf.
166

69

Table 6, Quasi-Judicial Standards (including appearance standards) (continued)

Agency

Subunit

Department of
Justice (cont.)

United States
Parole Commission
Commission,
Appeal Board,
Atomic Safety and
Licensing Board

Nuclear
Regulatory
Commission

Occupational
Safety and
Health Review
Commission

Social Security
Administration

Adjudicators /
Subject Matter

Citation
U.S. Parole Commission
Rules and Procedures
Manual, at M-03 (June 30,
2010)167
U.S. Nuclear Regulatory
Commission Staff Practice
and Procedure Digest
3.1.4.1 (June 2011)168
U.S. Nuclear Regulatory
Commission Staff Practice
and Procedure Digest 2.9.1
(June 2011)169

ALJs

29 C.F.R. § 2200.68(b)

Office of
Analytics, Review,
and Oversight

AAJ, AO

HALLEX I-3-1-40

Office of Hearings
Operations

ALJs

HALLEX I-2-1-60

167

Recusal Provision
“A hearing examiner or Commissioner shall disqualify
himself when it reasonably appears that he may have a
conflict of interest or that his participation in the hearing
might place the Commission in an adverse situation.”
“The rules governing motions for disqualification or
recusal are generally the same for the [NRC] as for the
judicial branch itself.”
“10 C.F.R. § 2.313(b) is meant to ensure both the integrity
and appearance of integrity of the Commission’s formal
hearing process.”
“A Judge shall recuse himself or herself under
circumstances that would require disqualification of a
federal judge under Canon 3(C) of the Code of Conduct
for United States Judges, except that the required recusal
may be set aside under the conditions specified by Canon
3(D).”
“An administrative appeals judge (AAJ) or appeals officer
(AO) must disqualify or recuse himself or herself from
adjudicating a case and request reassignment if . . . The
AAJ or AO believes his or her participation in the case
would create an appearance of impropriety . . . .”
“ALJ may withdraw from the case if . . . [t]he ALJ
believes his or her participation in the case would give an
appearance of impropriety.”

The Manual is available at https://www.justice.gov/sites/default/files/uspc/legacy/2010/08/27/uspc-manual111507.pdf.
The Digest is available at https://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr0386/d16/sr0386d16.pdf.
169
Id.
168

70

Table 7. Taxonomy by Agency170
Agency
Civilian Board of Contract Appeals
Department of Agriculture
Department of the Air Force
Architectural and Transportation Barriers Compliance Board (Access Board)
Department of the Army
Chemical Safety and Hazard Investigation Board
Commission on Civil Rights
Department of Commerce - US Patent and Trademark Office
Department of Commerce
Commodity Futures Trading Commission
Consumer Financial Protection Bureau
Consumer Product Safety Commission
Department of Defense
Department of Education
Department of Energy
Environmental Protection Agency
Equal Employment Opportunity Commission
Farm Credit Administration
Federal Communications Commission
Federal Deposit Insurance Corporation
Federal Election Commission
Federal Energy Regulatory Commission
Federal Housing Finance Agency
Federal Labor Relations Authority
Federal Maritime Commission
Federal Mediation & Conciliation Service
Federal Mine Safety & Health Review Commission
Federal Reserve Board of Governors
Federal Trade Commission
Government Accountability Office
Department of Health & Human Services

Categories of Recusal Standard
None
Discretionary, Conflicts
None
Discretionary
None
N/A
N/A
Impartiality, Conflicts
Impartiality
Discretionary
Discretionary
Discretionary
Impartiality
Conflicts
None
Discretionary, Conflicts
Conflicts, Appearance
None
Discretionary
Impartiality
N/A
Discretionary
Impartiality
Impartiality
Discretionary
N/A
Discretionary
Impartiality
Discretionary
Discretionary
Conflicts, Bias, Appearance

170

In Table 7, recusal standards based on the appearance of impartiality are noted separately from quasi-judicial standards, even though the two categories are
treated as one in the body of the report. Quasi-judicial for purposes of the table includes incorporation into agency recusal rules of existing judicial recusal
standards, such as the Canons of Judicial Ethics or the federal judicial recusal statute, 28 U.S.C. § 455.

71

Table 7, Taxonomy by Agency (continued)
Agency
Department of Homeland Security
Department of Housing & Urban Development
Department of Interior
International Trade Commissions
Department of Justice - Executive Office for Immigration Review
Department of Justice
Department of Labor
Library of Congress
Merit System Protection Board
National Aeronautics and Space Administration
National Endowment for the Arts
National Credit Union Administration
National Labor Relations Board
National Transportation Safety Board
Department of the Navy
Nuclear Regulatory Commission
Occupational Safety & Health Review Commission
Peace Corps
Pension Benefit Guaranty Corporation
Postal Regulatory Commission
Postal Service
Railroad Retirement Board
Securities and Exchange Commission
Selective Service System
Small Business Administration
Social Security Administration
Department of State
Surface Transportation Board
Department of Transportation
Department of the Treasury
Department of Veterans Affairs

Categories of Recusal Standard
Discretionary, Conflicts, Bias
Discretionary
Discretionary, Quasi-Judicial
Impartiality
Impartiality, Discretionary, Quasi-Judicial
Appearance
Impartiality, Discretionary, Conflicts, Bias
None
Discretionary, Conflicts, Bias
None
Discretionary
None
Impartiality, Bias
Discretionary
None
Discretionary, Conflicts, Appearance, Quasi-Judicial
Quasi-Judicial
Conflicts
Conflicts
Discretionary
Impartiality
Conflicts
Discretionary
Impartiality, Conflicts
Conflicts, Bias
Conflicts, Bias, Appearance
Impartiality
None
Discretionary
Impartiality, Discretionary, Conflicts
Conflicts, Appearance

72