Administrative Conference of the United States

RECUSAL RULES FOR ADMINISTRATIVE ADJUDICATORS

Final Report: November 30, 2018

LOUIS J. VIRELLI III
Stetson University College of Law

This report was prepared for the consideration of the Administrative Conference of the United States. The opinions, views and
recommendations expressed are those of the author and do not necessarily reflect those of the members of the Conference or its
committees, except where formal recommendations of the Conference are cited.

TABLE OF CONTENTS
EXECUTIVE SUMMARY ..................................................................................................................... 1
I. PROJECT DESCRIPTION ................................................................................................................. 2
II. SCOPE OF THE PROJECT............................................................................................................... 4
III. THE “LAW” OF RECUSAL FOR ADMINISTRATIVE ADJUDICATORS .............................................. 7
A. Due Process .......................................................................................................................... 7
B. Federal Recusal Statute ........................................................................................................ 9
C. Model Codes of Conduct ..................................................................................................... 9
D. Government Ethics Provisions........................................................................................... 12
1.

Ethics Statutes ................................................................................................................ 12

2.

Ethics Regulations .......................................................................................................... 12

3.

General Principles .......................................................................................................... 13

E. Administrative Recusal Statutes and Regulations ............................................................. 14
1.

The APA ......................................................................................................................... 14

2.

Agency-Specific Regulations ......................................................................................... 15

IV. THE VALUE OF AGENCY-SPECIFIC RECUSAL STANDARDS ...................................................... 16
A. Dealing with Actual or Probable Bias ............................................................................... 17
B. The Appearance of Impartiality ......................................................................................... 17
1.

Additional Factors to Consider ...................................................................................... 18

V. RECUSAL PROCEDURES ............................................................................................................ 20
VI. RECOMMENDED BEST PRACTICES ........................................................................................... 23

EXECUTIVE SUMMARY
The integrity of agency action is critically important for the efficacy and legitimacy of
administrative government. This is especially true for agency adjudication, as it is the form of
agency action that most directly impacts individuals. Recusal—the process by which an
adjudicator is removed, voluntarily or involuntarily, from a specific proceeding—is a timehonored way of protecting the integrity of all manner of quasi-judicial activity, including agency
adjudication. The current landscape of agency recusal standards, which consists of government
ethics rules, constitutional protections, statutory and regulatory requirements, and model codes,
exhibits gaps in coverage that are best filled by agency-specific recusal regulations. This report
discusses the need for such regulations and best practices for their promulgation and
implementation. One of the principal issues it will address is whether agencies should adopt
recusal rules that are distinct from ethics rules that apply to all federal employees.
Adjudication is a broad and amorphous category of agency action. Studying adjudication,
therefore, requires some difficult choices. This project focuses on a subset of agency
adjudication—administrative proceedings in which evidentiary hearings are legally required—
for two reasons. First is that the category is easy to define. It has few required features that are
relatively simple to identify. Second is that this category of agency adjudication is comparable to
traditional judicial proceedings, so we can use what we know about the integrity of judicial
decisions as a starting point for examining the integrity of agency adjudication.
With respect to this type of adjudication, there are several tools that agencies can use to
protect the integrity of their proceedings. Among the oldest and most well-known is recusal.
Recusal serves two important purposes. The first is that it protects litigants from partial or biased
decision makers. The second is that it promotes public confidence in the fairness and reliability
of government adjudication.
Unlike courts, which can rely on a long tradition of recusal law, agencies’ recusal
requirements are less clear. This project addresses the question of whether agencies should enact
their own, agency-specific recusal regulations and, if so, what sources of law and procedural
requirements they should consider in doing so.
The existing legal framework for administrative recusal consists of several parts, each of
which exhibits strengths and weaknesses for promoting the integrity of agency adjudications.
The Due Process Clause of the Constitution protects litigants against adjudicators who present a
probability of actual bias against a party, but does far less to promote public confidence in the
adjudicative system because it does not directly address the outward appearance of agency bias.
The federal recusal statute is an example of how to achieve both of recusal’s ultimate goals, but
it applies only to courts, not agencies, and may in any event be too broad for agency adjudicators
1

that must decide cases in which their employer, the agency itself, is a party. The American Bar
Association model codes are also useful examples of how to use recusal aggressively to achieve
both of its goals, but they are not legally binding and may be too broad for the same reasons as
the federal recusal statute. Government ethics rules seem like a natural source of recusal
standards for agency adjudicators, but they are designed for a much wider range of actors (all
executive branch employees, rather than just adjudicators), and are limited to financial and
relationship-based conflicts of interest, which do not protect against all forms of actual or
apparent bias. The Administrative Procedure Act (APA) and existing agency recusal regulations
are useful, but the APA applies to a smaller set of adjudicators than this study seeks to capture
and is limited to specific instances of actual or potential (as opposed to apparent) bias. Agency
regulations vary widely, but they generally do not focus on problems of public perception and
appearance. When they do, they are often limited in other areas. Taken together, the existing
recusal framework for agency adjudicators leaves gaps that must be filled in order for agencies to
protect fully the integrity of their adjudications.
This study concludes that the best way to fill those gaps is for agencies to promulgate
regulations governing recusal for their own adjudicators. Agencies should consider the specific
nature and demands of their own adjudicative system to design a set of recusal standards that will
protect parties against actual bias as well as project the appearance of impartiality to a watchful
public. In addition to recusal standards, agencies’ regulations should also include procedures for
resolving recusal questions, including a way for parties to present recusal issues to the presiding
adjudicator and a process to appeal an adjudicator’s initial recusal decision both in and outside of
the agency. In sum, agencies must consider the nature of their proceedings and of their
adjudicators, as well as institutional needs and limitations in order to promulgate regulations that
best balance adjudicative integrity with the agency’s need for timely and effective adjudications.
I. PROJECT DESCRIPTION
Administrative adjudication is a powerful and wide-ranging tool for implementing
agencies’ statutory missions. Adjudication’s more specific, individualized determinations
implicate litigants’ rights to fair and impartial treatment more directly than other agency conduct,
like rulemaking. As a result, basic notions of administrative legitimacy1 and due process make
the independence and integrity of agency adjudicators critically important to both the
effectiveness of, and public confidence in, administrative government. Recusal2—the process by

1

See, e.g., Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State,
78 N.Y.U. L. REV. 461, 462 (2003) (“From the birth of the administrative state, we have struggled to describe our
regulatory government as the legitimate child of a constitutional democracy.”).
2
Historically, the process by which judges voluntarily 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’

2

which an adjudicator is removed, voluntarily or involuntarily, from a specific proceeding—is a
powerful tool in protecting the integrity of agency adjudicators. Agency recusal is currently
governed by government ethics rules, various statutory provisions, and the Due Process Clause.
Taken together, these sources of recusal standards leave potentially important features of agency
integrity unprotected. This project seeks to identify areas left unaccounted for by existing sources
of agency recusal standards, and proposes that agencies adopt agency-specific recusal regulations
to fill those gaps in the current landscape of administrative recusal.
There are several issues that influence the independence and integrity of agency
adjudicators. For example, appointment and removal, congressional oversight, ex parte contacts,3
and adjudicator compensation all affect adjudicators’ independence and, in turn, the integrity of
the proceedings they preside over. The same is true for recusal.
In the judicial context, recusal is as old as courts themselves. Since Justinian’s time,
judges have either removed themselves or been forced to withdraw from cases for a variety of
(mostly ethical) reasons.4 Recusal fulfills two primary purposes. First, it protects individuals
against biased or conflicted adjudicators to ensure a fair and objective resolution of their claims.
Second, it protects the integrity of the adjudicatory system by promoting public confidence in the
impartiality and fairness of the adjudicative process. In modern American jurisprudence, federal
judicial recusal is governed by at least two sources of law; the Due Process Clause and widerreaching recusal statutes.5
Recusal has a role in administrative adjudication that is at least analogous to its role in
judicial proceedings. Administrative adjudicators remove themselves—either voluntarily or
pursuant to some mandatory legal standard—from proceedings over which they would otherwise
preside in order to protect both the rights of the parties to an impartial hearing and the public’s
confidence in the adjudicative system. Unlike with judicial recusal, however, administrative
adjudicators do not have the benefit of a generally-applicable recusal statute to help guide their
decisions.6 The law of administrative recusal comes from multiple sources, many of which are
either not binding on agency adjudicators or were not specifically designed for agency actors
responsible for presiding over evidentiary hearings.
The current reality of administrative recusal thus begs several questions. First, would
more targeted, agency-specific recusal rules bring more clarity, consistency, and integrity to
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.
3
Although prohibitions on ex parte contacts may sometimes rely on recusal as a remedy, they are conceptually
distinct; at minimum, recusal is much broader in scope and applicability and is more explicitly concerned with bias.
4
See LOUIS J. VIRELLI III, DISQUALIFYING THE HIGH COURT: SUPREME COURT RECUSAL AND THE CONSTITUTION 15 (Univ. Press of Kansas 2016).
5
U.S. CONST. amend. V; 28 U.S.C. § 455 (federal judicial recusal statute).
6
See 28 U.S.C. § 455.

3

administrative adjudication? If so, to what sources of law should agencies look before fashioning
such rules and how should those rules be promulgated? Finally, what procedures should agencies
employ to enforce recusal rules, and should those rules treat different adjudicators within an
agency—hearing officers versus appellate adjudicators, for instance—differently? This project
seeks to address these questions by building on two recent Administrative Conference of the
United States (ACUS) studies of administrative adjudication to examine the various laws and
standards affecting recusal for a defined subset of agency adjudicators and to evaluate whether
more tailored recusal regulations would further the goals of impartiality and public confidence
that are necessary to good government.
II. SCOPE OF THE PROJECT
The term adjudication covers a vast array of agency conduct. The difficulty in accurately
defining and organizing all of the agency conduct that fits under the umbrella of agency
adjudication requires some line drawing. In general, one distinct category of adjudication—
referred to here as “Type A” adjudication—consists of evidentiary hearings prescribed by certain
provisions of the Administrative Procedure Act (APA) and presided over by administrative law
judges (ALJs).7 A second category is comprised of evidentiary hearings that are required by law
but are not governed by the same APA sections and do not involve ALJs (in general, “Type B”
adjudication).8 Finally, the largest (and most widely varied) category of agency adjudication is
that which does not require—yet may permit—an evidentiary hearing.9
Two recent ACUS studies have focused on the second category of adjudication described
above: legally required evidentiary hearings that are not presided over by ALJs. Both studies
built on a collection of previous ACUS studies that examined various aspects of non-ALJ agency
adjudication.10
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”).
8
Although referring to this category of adjudication as Type B adjudication is useful and adequate for present
purposes, it is not completely accurate. The Asimow Study 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 et al. Studies is not directly relevant to the present discussion.
9
This category is described in the Asimow Study as “Type C” adjudication. See Asimow Study, supra note 7, at 2.
10
The first study of non-ALJ adjudication was a 1989 ACUS-sponsored survey by John Frye, who had served as
both an ALJ and a non-ALJ (“the Frye Study”). The Frye Study cataloged the use of non-ALJs in oral evidentiary
7

4

In connection with the Evidentiary Hearings Outside the Administrative Procedure Act
project, Administrative Conference attorneys, working with Professor Michael Asimow (the
project consultant), created a database containing “information about all of the schemes of Type
A and Type B federal agency adjudication.”11 Relying on this information, Professor Asimow
conducted additional research to “formulate . . . best practices for Type B adjudication” (“the
Asimow Study”).12 Drawing on Professor Asimow’s work, the ACUS Assembly adopted
Recommendation 2016-4, which recommended that agencies promulgate regulations addressing
three distinct categories of adjudicator bias: bias resulting from “(i) a financial or other personal
interest in the decision; (ii) personal animus against [a party or agency attorney]; [or] (iii)
prejudgment of the adjudicative facts at issue in the proceeding.”13
In 2018, Kent Barnett, Malia Reddick, Logan Cornett, and Russell Wheeler submitted
Non-ALJ Adjudicators and Federal Agencies: Status, Selection, Oversight, and Removal (“the
Barnett et al. Study”). The Barnett et al. Study addressed issues related to selection, oversight,
evaluation, discipline, and removal of non-ALJ adjudicators. It also supplemented and updated
information from prior ACUS studies, as well as suggesting best practices for Type B
adjudication.14 Of particular interest to this project is the study’s treatment of “non-ALJ . . .
oversight, and independence,” which included recusal standards.15 Like Asimow, the Barnett et
al. Study suggested that agencies promulgate standards for non-ALJs that “clearly state the
grounds for disqualification” and that outline procedures for enforcing and reviewing the
application of those standards.16 The proposed recommendation associated with the Barnett et al.
Study suggested that agencies consider pursuing “supplemental regulations pertaining to the
disqualification of administrative judges from particular hearings that augment [the Office of
Government Ethics’s (OGE’s)] standards . . . govern[ing] the disqualification of federal

hearings, and the results were published in a 1992 law review article. See John H. Frye III, Survey of Non-ALJ
Hearing Programs in the Federal Government, 44 ADMIN. L. REV. 261 (1992). Next was a comprehensive 1992
study by Paul Verkuil, Daniel Gifford, Charles Koch, Richard Pierce, and Jeffrey Lubbers (“the 1992 Study”). PAUL
R. VERKUIL ET AL., THE FEDERAL ADMINISTRATIVE JUDICIARY (1992). The 1992 Study built on the Frye Study and
included information on the history and variety of administrative adjudications; the attitudes, selection, and
independence of agency adjudicators; the effect of adjudicators’ decisions; and standards for when agencies should
rely on ALJs for their adjudications. See id. The third study was a survey by Raymond Limon, who primarily
updated the Frye Study’s data on non-ALJs. RAYMOND LIMON, OFFICE OF ADMIN. L. JUDGES, THE FEDERAL
ADMINISTRATIVE JUDICIARY THEN AND NOW—A DECADE OF CHANGE 1992–2002, at 2 (1992).
11
See Asimow Study, supra note 7, at 2.
12
Id. at 4.
13
See Recommendation 2016-4, at ¶ 5, adopted Dec. 13, 2016,
https://www.acus.gov/sites/default/files/documents/informal-agency-adjudication-recommendation-final.pdf.
14
See Barnett et al. Study, supra note 8, at 11-12. As mentioned supra in note 8, the category of adjudication
considered in the Barnett et al. Study was not precisely the same as what the Asimow Study defined as Type B
adjudication, but the differences between the two remain immaterial for present purposes.
15
Id. at 2.
16
Id. at 64.

5

employees from participating in particular matters due to the appearance of loss of
impartiality.”17
This project approaches the issue of administrative recusal from the foundation laid by
Asimow and Barnett et al. It takes a broader and more detailed look at the relevant legal and
other sources of administrative recusal standards, and asks whether there is a need within this
landscape for agency-specific recusal regulations.
The answer depends on the category of agency adjudication being examined. In order to
make the focus of this study as clear as possible, it focused on the recusal of Type A and B
adjudicators (rather than simply all government employees). It therefore includes ALJs, which
were part of the adjudication database created by Administrative Conference attorneys and
Professor Asimow in connection with Evidentiary Hearings Outside the Administrative
Procedure Act, but were not included in either the Asimow Study or the Barnett et al. Study. The
current study also includes Type B adjudicators, but defines the relevant universe of these nonALJ adjudicators slightly differently than previous studies. The Type B adjudicators included
here are those who preside over evidentiary hearings required by statute, regulation, or executive
order, and who decide appeals of decisions arising from those hearings. This definition 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.18 In
sum, the scope of adjudicators considered in this study is broader than the Barnett et al. Study
and at least as broad as the Asimow Study. It is also—and perhaps most importantly so—simpler
and easier to describe when requesting information about agencies’ recusal standards and
practices. This combination of breadth and simplicity is designed to maximize the range and
depth of information obtained about recusal in agency adjudications.
Due to the wide range of adjudicators targeted by this study, this report examines a
similarly broad scope of recusal-related sources to identify any gaps in existing standards and
practices that may indicate a need for agency-specific recusal regulations. It is important to note
that references to the substantive limitations of certain legal or ethical frameworks with regard to
recusal are not intended as criticisms of those provisions. The purpose of the following section is
to explore the existing landscape of legal and other provisions that could potentially affect
administrative recusal. Many of those provisions are not targeted at agencies or adjudication, and
as such should not be expected to provide comprehensive recusal standards. It is nevertheless
17

Proposed Recommendation, ADMINISTRATIVE JUDGES, June 14, 2018, at 6-7,
https://www.acus.gov/sites/default/files/documents/Proposed%20Recommendation%20for%20Plenary_0.pdf.
18
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 8, at 13.

6

necessary to examine the full range of potentially relevant sources in order to evaluate the
potential utility of agency-specific recusal rules.
As seen in the following section, there does appear to be a range of adjudicator conduct
that could merit recusal yet is not currently regulated.
III. THE “LAW” OF RECUSAL FOR ADMINISTRATIVE ADJUDICATORS
A. Due Process
Due process has two related, but conceptually distinct, applications. Due process ensures
that parties will receive adequate notice and an opportunity to be heard in connection with the
resolution of their claims or defenses before an impartial adjudicator.19 A party’s opportunity to
be heard depends, in turn, on both the literal availability of a forum to hear their claims and the
ability of that forum to resolve them fairly.
The scope of the required notice and hearing depends at least in part on the parties’ level
of personal interest in the outcome of the proceeding.20 Proceedings for which due process
requires more formalized, rigorous procedures can be understood to recognize a greater personal
interest in the outcome of those proceedings.
The fairness of the resolution is premised on the notion that all parties to an adjudication
are entitled to a neutral, unbiased arbiter.21 This includes a range of requirements relating to an
adjudicator’s impartiality, from “an absence of actual bias”22 against the parties to the
admonitions that “no man shall be a judge in his own case”23 and that the “possible temptation to
the average man as a judge . . . not to hold the balance nice, clear, and true between the [parties]
denies [them] due process of law.”24
Just like judicial proceedings, administrative adjudication must satisfy all of these criteria
in order to pass constitutional muster.25 Recusal can be a powerful tool to remedy due process
violations, especially in cases where the adjudicator exhibits actual or probable bias against a
party or has a personal conflict of interest. The Supreme Court has confirmed recusal’s role in
these cases, but has been reluctant to apply due process protections too broadly. The Court has
19

Mathews v. Eldridge, 424 U.S. 319 (1976).
Id. at 334-35.
21
Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 877 (2009) (“It is axiomatic that ‘[a] fair trial in a fair tribunal is
a basic requirement of due process.’” (quoting In re Murchison, 349 U.S. 133, 136 (1955))).
22
Williams v. Pennsylvania, 136 S. Ct. 1899, 1905 (2016) (quoting Murchison, 349 U.S. at 136).
23
Caperton, 556 U.S. at 886 (“[N]o man is allowed to be a judge in his own cause . . . .”).
24
Murchison, 349 U.S. at 136 (quoting Tumey v. State of Ohio, 273 U.S. 510, 532 (1927)).
25
See Londoner v. City and County of Denver, 210 U.S. 373 (1908). Due process of course applies to all forms of
adjudication, including adjudicative decisions that do not involve evidentiary hearings.
20

7

applied the Due Process Clause most readily in cases where the adjudicator had a financial
interest in the outcome of a case or where some other conflict of interest exists, such as when a
judge that charged a party with contempt presided over that party’s contempt hearing.26 The
Court’s two most recent cases on the issue both involved state supreme court justices. The Court
found due process violations in those cases where a state supreme court justice participated in a
case in which his largest judicial campaign donor was a party, and where a state supreme court
justice took part in the review of a defendant’s death sentence that the justice had personally
approved while serving as the district attorney responsible for the case.27 In each instance, the
Court cited the “probability of actual bias” on the justice’s part as grounds for recusal. This is the
Court’s current standard for recusal under the Due Process Clause.28
Despite its willingness to find due process violations in these cases, the Supreme Court
has consistently reaffirmed that most recusal cases do not implicate the Due Process Clause. In
the process of ruling that a Federal Trade Commissioner’s previous public comments about a
legal issue did not require his recusal from a case involving that issue, that Court made clear that
“most matters relating to judicial disqualification [do] not rise to a constitutional level,”29 and
that “’matters of kinship, personal bias, state policy, [and] remoteness of interest, would seem
generally to be matters merely of legislative discretion.’”30 This qualification is a consistent
theme in the Court’s recusal jurisprudence, and serves as a demarcation of the boundary between
the narrow range of due process recusals—recusals based on whether a reasonable judge would
likely be biased in a given case and that often involve what Justice Kennedy called “extreme
facts”31—and the broader universe of situations that could raise concerns about the impartiality
and legitimacy of an adjudicator’s decision.

26

See, e.g., Tumey, 273 U.S. at 310 (financial interest); Murchison, 349 U.S. at 133 (contempt).
Caperton, 556 U.S. at 868 (campaign donation); Williams v. Pennsylvania, 136 S. Ct. 1899 (2018) (district
attorney).
28
The Court has noted that “justice must satisfy the appearance of justice” under the Due Process Clause, Aetna Life
Ins. Co. v. Lavoie, 475 U.S. 813, 825 (1986) (quoting Murchison, 349 U.S. at 136), but its holdings and other
statements about the limits of due process recusal make clear that this statement is not meant to conflate
constitutional recusal requirements with the broader “impartiality might reasonably be questioned” standard in the
federal recusal statute. 28 U.S.C. § 455. The lower courts have also applied due process principles to administrative
recusal, most notably in Cinderella Career & Finishing Schools, Inc. v. FTC, in which the court held that
prejudgment of adjudicative facts by an agency head violated the Due Process Clause. 425 F.2d 583 (D.C. Cir.
1970). The court in Cinderella explained that “[t]he test for disqualification has been succinctly stated as being
whether ‘a disinterested observer may conclude that (the agency) has in some measure adjudged the facts as well as
the law of a particular case in advance of hearing it.’” 425 F.2d at 591 (quoting Gilligan, Will & Co. v. SEC, 267 F.
2d 461, 469 (2d Cir. 1959)). The prejudgment standard applied in Cinderella is analogous to the impartiality
requirement for ALJs under § 556 of the APA (and the definition of actual bias adopted in ACUS Recommendation
2016-4), and is often used interchangeably. In any event, it, like the Supreme Court’s probability of actual bias test,
represents a narrower view of recusal than those expressed in statutory and other standards.
29
Caperton, 556 U.S. at 876 (quoting FTC v. Cement Inst., 333 U.S. 683, 702 (1948)).
30
Id. (quoting Tumey, 273 U.S. at 523).
31
Id. at 887 (“Our decision today addresses an extraordinary situation where the Constitution requires recusal. . . .
The facts now before us are extreme by any measure.”).
27

8

B. Federal Recusal Statute
The federal judicial recusal statute, 28 U.S.C. § 455, represents the broadest recusal
standard applicable to federal adjudicators (specifically, federal judges). In addition to requiring
recusal in instances of personal bias, previous involvement in (or knowledge of) the case at hand,
financial interest, and familial and other personal relationships, § 455 requires recusal in any case
where a judge’s “impartiality might reasonably be questioned” (the “reasonable appearance
standard”).32 This standard is a popular and relatively new development in American recusal
law.33 The reasonable appearance standard was designed to promote public confidence in the
judiciary by ensuring that cases are decided by individuals who are not only impartial in fact, but
who appear so to the people affected by, and expected to comply with, their decisions.34
Unlike the Due Process Clause, which applies to all government adjudicators, the federal
recusal statute applies to “[a]ny justice, judge, or magistrate judge of the United States.” It does
not apply to administrative adjudicators. Federal courts have interpreted the reasonable
appearance standard as too broad for adjudicators who are employed by the very agencies that
could appear before them.35 For that reason alone, § 455 cannot be understood to govern
administrative recusal. It does, however, represent a potentially useful example of why agencies
may desire to take public perception into account when seeking to protect the integrity of their
adjudications.
C. Model Codes of Conduct
Model codes of conduct are a valuable source of insight into the legal profession’s views
on recusal. The American Bar Association’s (ABA’s) National Conference of Administrative
Law Judges (NCALJ) adopted its own set of ethical guidelines for ALJs in 1989, which included
recusal standards. The Model Code of Judicial Conduct for Federal Administrative Law Judges
(Model ALJ Code) was patterned after the ABA’s Model Code of Judicial Conduct (Model
Judicial Code), especially with regard to recusal. Canon 3(C) of the Model ALJ Code adopted

32

28 U.S.C. § 455(a). The reasonable appearance standard was added to the statute in 1974 and represented a
significant departure from traditional Anglo-American recusal law. In fact, prior to the addition of the “reasonable
appearance” standard to § 455 in 1974, America recusal law had generally operated consistent with Blackstone’s
maxim that “the law will not suppose a possibility of bias or favour in a judge.” 3 BLACKSTONE, COMMENTARIES ON
THE LAWS OF ENGLAND 361.
33
FLAMM, supra note 2, at § 1.4 at 9 (“[B]ecause of the importance of assuring both litigants and the public at large
that judges are impartial . . . virtually every commentator who has critically analyzed the subject of judicial
disqualification has applauded its expansion.”).
34
LOUIS J. VIRELLI III, DISQUALIFYING THE HIGH COURT: SUPREME COURT RECUSAL AND THE CONSTITUTION xii
(2016) (“By guarding against the mere appearance of impropriety, recusal advances public confidence in the
integrity and legitimacy of an otherwise unaccountable judiciary.”).
35
See Greenberg v. Board of Governors of the Federal Reserve, 968 F.2d 164, 167 (2d Cir. 1992).

9

the objective test from the Model Judicial Code, which also is codified in the federal recusal
statute, by requiring recusal whenever an ALJ’s “impartiality might reasonably be questioned.” 36
But the Model ALJ Code is only suggestive. It is not legally binding on ALJs by its own
terms and has not been codified by Congress.37 It has also not shown the staying power of the
Model Judicial Code. The Model Judicial Code has been updated several times since 1989, while
the Model ALJ Code has not. In 2007, the Model Judicial Code was expanded to explicitly
include ALJs,38 but only to the extent that individual jurisdictions deemed it desirable.39 At least
some jurisdictions have resisted. The Ninth Circuit, for example, has held that the Model Judicial
Code did not apply to ALJs from the Social Security Administration (SSA), the agency that
employs by far the largest number of ALJs, because the SSA itself had not adopted the Code and
none of the ABA Model Codes “create[] legally enforceable duties.”40
In 2010, the National Conference of Commissioners on Uniform State Laws adopted the
Revised Model State Administrative Procedure Act (Model State APA). The Model State APA
requires “disqualification for bias, prejudice, financial interest, ex parte communications . . . or
any other factor that would cause a reasonable person to question the impartiality” of the
adjudicator and allows parties to “petition for the disqualification of a presiding officer” in their
own case.41 Despite being aligned with federal judicial recusal standards, the Model State APA is
not itself legally binding and is applicable only to state actors, including state agency
adjudicators. In 2018, the NCALJ adopted the Model Code of Judicial Conduct for State
Administrative Law Judges (Model State ALJ Code). Like the Model State APA, although the
Model State ALJ Code does not apply to federal adjudicators, it advocates for essentially the
same recusal standards as the other codes, including for recusal where a state ALJ’s “impartiality
might reasonably be questioned.”42

36

28 U.S.C. § 455(a); AMERICAN BAR ASSOCIATION, MODEL CODE OF JUDICIAL CONDUCT FOR FEDERAL
ADMINISTRATIVE LAW JUDGES Canon 3(C) (1989) (“Model ALJ Code”),
http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1521&context=naalj.
37
See Model ALJ Code, supra, at 132 (“Adaption and endorsement of the Model Code for Administrative Law
Judge[s] by NCALJ does not make that Code applicable to any administrative law judge . . . .”); Steven A. Glazer,
Toward a Model Code of Judicial Conduct for Federal Administrative Law Judges, 64 ADMIN. L. REV. 337 (2012).
38
AMERICAN BAR ASSOCIATION, MODEL CODE OF JUDICIAL CONDUCT I(B) (2007) (“A judge, within the meaning of
this Code, is anyone who is authorized to perform judicial functions, including . . . [a] member of the administrative
law judiciary.”),
http://www.americanbar.org/content/dam/aba/migrated/judicialethics/ABA_MCJC_approved.authcheckdam.pdf.
39
See id. at n.1 (“Each jurisdiction should consider the characteristics of particular positions within the
administrative law judiciary in adopting, adapting, applying, and enforcing the Code for the administrative law
judiciary.”).
40
Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003).
41
NATIONAL CONFERENCE ON COMMISSIONERS OF UNIFORM STATE LAWS, REVISED MODEL STATE
ADMINISTRATIVE PROCEDURE ACT §§ 402(c), (d) (2010),
http://www.uniformlaws.org/shared/docs/state%20administrative%20procedure/msapa_final_10.pdf.
42
AMERICAN BAR ASSOCIATION, MODEL CODE OF JUDICIAL CONDUCT FOR STATE ADMINISTRATIVE LAW JUDGES
Canon 2, Rule 2.11(A) (2018).

10

ACUS recently published revised Model Adjudication Rules (“ACUS Model Rules”).43
The ACUS Model Rules require that an agency adjudicator “conduct her/his functions in an
impartial manner.”44 They also require recusal on the grounds of “personal bias” or “basis for
other disqualification.”45 Like the model codes described above, however, the ACUS Model
Rules are only suggestive; they recommend that agencies adopt them, but provide no other legal
obligations or remedies on their own.46 They are also likely narrower than the Model ALJ Code.
The “basis for other disqualification” standard could include the reasonable appearance standard,
but is less explicit than the model codes on that point.
The model codes and rules support recusal in many more cases than due process requires.
This is important because it supports the conclusion that agency adjudicators are concerned
about more than the negative effect of a partial adjudicator on the parties to a hearing. The fact
that all three model codes require recusal where an adjudicator’s impartiality might reasonably
be questioned, i.e. regardless of whether actual bias or even a probability of actual bias would
exist in the mind of a reasonable judge, confirms that the public’s perception of the integrity of
the proceeding is important to agency adjudicators and other members of the profession. This is
further corroborated by specific canons in each model code explicitly requiring judges to
promote public confidence in their conduct.47
There are, however, some obvious limitations to relying solely on model codes and rules
as a template for adopting agency-specific recusal standards. The codes are only applicable to
ALJs, as opposed to adjudicators presiding over Type B adjudications or appellate-style review
hearings, and the model codes and rules are not directly enforceable as a matter of law.
Moreover, despite the invitation to adopt the Model Judicial Code and the ACUS Model Rules,
most agencies have declined to do so. This indicates that, although the benefits of broader
recusal standards are real, a generalized, one-size-fits-all approach to administrative recusal is
not the optimal approach to addressing recusal concerns in agency evidentiary hearings.

https://www.americanbar.org/content/dam/aba/administrative/administrative_law_judiciary/2018-model-codestatealj.authcheckdam.pdf.
43
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES, MODEL ADJUDICATION RULES 8 (Rule 112) (rev. 2018).
44
Id. at 8 (Rule 112(A)).
45
Id. at 8 (Rule 112(B)(2)(a)).
46
See id. at vi (Preface) (“[T]he Working Group encourages agencies to adopt the revised [Model Adjudication
Rules] in toto . . . .”)
47
See, e.g., AMERICAN BAR ASSOCIATION, MODEL CODE OF JUDICIAL CONDUCT FOR STATE ADMINISTRATIVE LAW
JUDGES Canon 1, Rule 1.2 (2018),
https://www.americanbar.org/content/dam/aba/administrative/administrative_law_judiciary/2018-model-codestatealj.authcheckdam.pdf; AMERICAN BAR ASSOCIATION, MODEL CODE OF JUDICIAL CONDUCT Canon 1, Rule 1.2
(2007),
http://www.americanbar.org/content/dam/aba/migrated/judicialethics/ABA_MCJC_approved.authcheckdam.pdf;
AMERICAN BAR ASSOCIATION, MODEL CODE OF JUDICIAL CONDUCT FOR FEDERAL ADMINISTRATIVE LAW JUDGES
Canon 2.A (1989), http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1521&context=naalj.

11

D. Government Ethics Provisions
Recusal is largely (although not exclusively) an ethical issue, and agency adjudicators are
executive branch employees.48 As a result, the statutes administered, and the regulations
promulgated, by the Office of Government Ethics (OGE) governing executive branch
employees’ ethical conduct are an important source for agency recusal standards.
1. Ethics Statutes
The primary criminal statute relating to the recusal of agency adjudicators is 18 U.S.C. §
208, which has been described by OGE as “the cornerstone of the executive branch ethics
program. It prohibits an employee from participating personally and substantially in any
particular matter in which he has a financial interest, or in which certain others with whom he is
associated [spouse, minor child, general partner, etc.] have a financial interest.”50 OGE has made
clear that § 208 requires disqualification from “any ‘judicial or other proceeding’ . . . even if that
financial interest is insubstantial.”51 Although it also contains some limiting provisions, the
relevant feature of the statute is that it requires disqualification of agency adjudicators in a
relatively narrow, and well-covered, set of circumstances—a direct financial interest in the
adjudication by the adjudicator or a small group of people close to the adjudicator.52
49

2. Ethics Regulations
OGE has also issued specific ethics regulations that apply to executive branch employees,
including but not limited to agency adjudicators. The OGE regulation that most directly applies
to recusal of administrative adjudicators can be found at 5 C.F.R. § 2635.502 (“section 502” or
“§ 502”). Section 502(a) states 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

Recusal’s role in promoting public confidence in the integrity of agency adjudication is more of an institutional,
rather than an ethical, benefit.
49
Sections 203 and 205 of Title 18 also outline conflicts of interest that could lead to disqualification or recusal, but
the subject matter of those sections—prohibiting “Federal employees from representing private interests before the
Government”—are less likely to affect adjudicators, who are generally in a deciding, rather than a representational
role, in agency adjudications. OFFICE OF GOVERNMENT ETHICS, REPORT TO THE PRESIDENT AND TO CONGRESSIONAL
COMMITTEES ON THE CONFLICT OF INTEREST LAWS RELATING TO EXECUTIVE BRANCH EMPLOYMENT 2 (2006) (OGE
Report),
https://www.oge.gov/web/oge.nsf/Legal%20Interpretation/2992B018CA57C5B985257E96006A91E8/$FILE/Repor
t%20to%20the%20President%20and%20Congress%20on%20Ethics.pdf.
50
Id. at 28.
51
Id. at 29.
52
The statute requires that the employee have knowledge of the disqualifying financial interest. It also permits
employees to seek waivers from the official who appointed them, and allows OGE to promulgate regulatory
exemptions for classes of financial interest deemed too remote or inconsequential to merit disqualification. Id.
(discussing 18 U.S.C. §208(a), (b)).
48

12

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.”
Section 502(a)’s standard is not designed specifically for adjudicators presiding over
evidentiary hearings, and as such does not take into account the full range of issues that can arise
in that quasi-judicial setting. The objective nature of the test in § 502(a) is analogous to the broad
appearance standard in the federal recusal statute and the model codes mentioned above, but it is
substantively limited to appearances resulting from financial interests and covered
relationships.53 Section 502(a) is further limited by its suggestive (“should not participate”),
rather than mandatory, language.
Finally, § 502(a)(2) allows for an employee to seek advice on whether he should
participate in a given matter if “circumstances other than those specifically described in this
section would raise a question regarding his impartiality.” This language could certainly be used
to trigger recusals in a wider range of cases than the language in § 502(a), but it could only do so
at the behest of the recused employee, and even then is only suggestive. The purely voluntary
nature of § 502(a)(2) makes it an inadequate substitute for mandatory, agency-specific recusal
standards because relying on an employee’s judgment to bring about his own recusal does not
instill the same measure of public confidence in the integrity of the proceeding.
In addition to § 502, OGE can work with agencies to promulgate any supplementary
regulations that the agency deems are “necessary and appropriate . . . to fulfill the purposes” of
the existing OGE regulations.54 Supplemental regulations could be a useful vehicle for adopting
agency-specific recusal standards, but an ACUS review of the current list of supplemental
regulations did not reveal any supplemental regulations pertaining specifically to agency
adjudicators, let alone to administrative recusal.55
3. General Principles
OGE has also promulgated a list of “14 General Principles” that, it explains, “apply to
every employee and may form the basis for the standards contained in this part.”56 It goes on to
explain that where a situation is not covered by a specific ethical standard, “employees shall
apply the principles . . . in determining whether their conduct is proper.”57

53

The scope of covered relationships that could trigger disqualification is limited largely to financial/employment
and familial relationships. 5 C.F.R. § 2630.502(b)(1)(i)-(v).
54
See 5 C.F.R. § 2635.05.
55
For a more detailed discussion of the reasons for and against using OGE regulations to address agency-specific
recusal questions, see Part V, infra.
56
OFFICE OF GOVERNMENT ETHICS, 14 GENERAL PRINCIPLES,
https://www.oge.gov/web/oge.nsf/0/73636c89fb0928db8525804b005605a5/$file/14%20general%20priniciples.pdf.
57
Id.

13

Principle 14 refers to employees creating an appearance of impropriety, and on that basis
could be seen as supporting a broader approach to agency recusal than that articulated in § 502.
The text of Principle 14, however, stops short of opening the door to a wide-ranging appearance
standard by being both aspirational and tethered to existing law. It states that “employees shall
endeavor to avoid . . . creating the appearance that they are violating the law or ethical standards
set forth in this part.”58 Although the principle’s focus on appearances may be a bit broader than
§ 502, it is tethered too closely to the substantive provision of that section to meaningfully
expand recusal requirements for agency adjudicators.
E. Administrative Recusal Statutes and Regulations
Unlike the federal recusal statute and OGE regulations, there are statutory and regulatory
standards that are specifically directed at agency adjudicators.
1. The APA
Section 556(b) of the Administrative Procedure Act (APA) requires that evidentiary
hearings under the APA (what is traditionally referred to as “formal adjudication”) “shall be
conducted in an impartial manner.” The Asimow Study identifies the various forms of bias that §
556(b) is designed to prevent—financial interests, personal animus, and prejudgment of
adjudicative facts—and makes a persuasive case for why agencies should consider promulgating
recusal regulations to prevent these types of bias from affecting their adjudications.59 ACUS
recommendation 2016-4 adopts the Asimow Study’s suggestion that the three types of bias
targeted by § 556(b) should be prohibited in agency-specific procedural regulations.60
There are two reasons why § 556(b)’s bias standard does not occupy the entire field of
administrative recusal. First, it by definition only applies to adjudicators governed by §§ 556 and
557 of the APA, which represent only one portion of the adjudicators included in this study.61
Second, it does not address appearances of bias or partiality that could affect public perception,
even if those appearances do not in fact skew the outcome of the adjudication. While the
reasonable appearance standard may not be as readily applied to agency adjudication as to
federal courts, some consideration of the impact of adjudicators’ conduct on public confidence in
administrative adjudication may be not only appropriate, but also beneficial.

58

Id. at Principle 14 (emphasis added).
See Asimow Study, supra note 7, at 23.
60
See Recommendation 2016-4, adopted Dec. 13, 2016,
https://www.acus.gov/sites/default/files/documents/informal-agency-adjudication-recommendation-final.pdf.
61
It is true that recommendation 2016-4 states that those same bias standards should be applied to non-ALJ
adjudication, but this does not amount to a statutory standard for purposes of outlining the existing landscape of
administrative recusal.
59

14

2. Agency-Specific Regulations
Notwithstanding the effects of due process, the federal recusal statute, model codes,
various ethics provisions, and the APA, some agencies have still taken it upon themselves to
establish their own recusal standards. The very existence of such standards makes two important
points. First, at least some agencies believe that their adjudicators’ recusal practices are not
definitively governed by external sources of law or policy, i.e. there is a gap in administrative
recusal law that needed filling. Second, the choice by some agencies to include the reasonable
appearance standard in their recusal regulations shows that public confidence in the integrity of
their adjudications is important to the agency and worth protecting through recusal.
In terms of the specific recusal standards adopted by individual agencies, the available
evidence at this point is largely anecdotal. The Merit Systems Protection Board has promulgated
a regulation requiring recusal “on the basis of personal bias or other disqualification,”62 but has
also referred to the federal recusal statute’s reasonable appearance standard when reviewing an
adjudicator’s denial of a party’s motion to recuse.63 Other agencies have limited recusal
standards to situations involving an adjudicator’s financial interest or personal relationship with a
party;64 findings of actual or apparent adjudicator bias;65 generic determinations like an
adjudicator “should be disqualified”;66 and violations of the “Code of Judicial Conduct,” which
includes the reasonable appearance standard.67
The Social Security Administration (SSA) has among the most developed set of recusal
standards. It has adopted different standards for different adjudicators, some of which are
regulatory and some of which are contained in sub-regulatory guidance documents. The SSA’s
recusal practices for ALJs are governed by regulation. Recusal is required when an ALJ “is
prejudiced or partial with respect to any party or has any interest in the matter pending for
decision.”68 Its Program Operations Manual System (POMS) contains agency guidance requiring
recusal of Disability Hearing Officers (DHOs). The POMS requires DHOs to recuse when they
have sufficient familiarity with the participants in the proceedings that a reasonable observer
“would perceive a substantial likelihood that the DHO cannot make an impartial decision.”69
According to the agency, it is currently developing guidance on recusal of appellate-level
officers that will be at least procedurally different from its other recusal standards.
62

5 C.F.R. § 1201.42(a).
See Shoaf v. Department of Agriculture, 97 M.S.P.R. 68, 73 (2004).
64
See 40 C.F.R. § 164.40(a) (EPA); 7 C.F.R. 47.11 (Agriculture).
65
See Asimow Study, supra note 7, at 53 (citing 29 C.F.R. § 1610(h) and EEOC Handbook for Administrative
Judges, Ch. 7H).
66
10 C.F.R. § 2.313 (Nuclear Regulatory Commission).
67
See 43 C.F.R. § 4.1122 (Interior); ABA MODEL CODE OF JUDICIAL CONDUCT, Canon 2, Rule 2.11 (2011),
https://www.americanbar.org/groups/professional_responsibility/publications/model_code_of_judicial_conduct/mod
el_code_of_judicial_conduct_canon_2/rule2_11disqualification.html.
68
20 CFR §§ 404.940, 416.1440.
69
SOCIAL SECURITY ADMINISTRATION, PROGRAM OPERATIONS MANUAL SYSTEM (POMS) DI 33015.045A.
63

15

This snapshot of existing agency regulations represents only a small portion of the
agencies that employ the category of adjudicators targeted by this study. Based on the Asimow
Study and the Barnett et al. Study, both of which investigated a subset of the adjudicators
included here, it is clear that many of the agency adjudicators considered for this report either are
not required to recuse at all or do not rely on regulatory standards to do so.70 There is still more
work to do to accurately map the landscape of agency recusal regulations,71 but suffice to say
that neither the existence of recusal regulations, nor their content, demonstrate consistency of
thought or approach to the issue across different agencies.
Despite at least some agencies’ apparent interest in treating recusal independently from
other ethics provisions, and even in employing the reasonable appearance standard, their
approach is far from uniform and demonstrates that additional guidance regarding agencyspecific recusal standards could prove useful.
The remaining portions of the report are dedicated to exploring the potential benefits of
specific recusal rules, the procedures by which those rules should be adopted and enforced, and
some of the structural features that could affect an individual agency’s choices about its own
approach to recusal.
IV. THE VALUE OF AGENCY-SPECIFIC RECUSAL STANDARDS
The legal provisions and agency practice regarding recusal indicate that well-developed,
agency-specific recusal rules could benefit agency adjudication, both by protecting litigants from
biased decision makers and by advancing public confidence in the integrity of the adjudicative
process. Those rules should be published in the Federal Register and Code of Federal
Regulations to provide notice to the parties and the general public that the agency is concerned
with proceedings that are fair and impartial and that appear so to the reasonable observer.72
Publication also makes it easier for parties to enforce the recusal standards,73 which further
serves the goals of protecting the parties and promoting public confidence in the proceedings.
70

See, e.g., Barnett et al. Study, supra note 8, at 49 (finding that less than half of the non-ALJ types identified in that
study were subject to recusal regulations, according to their agencies, and that more than a third of the non-ALJs that
were required to recuse based their recusal decisions on agency custom.)
71
The ongoing study seeks, among other things, to catalog the existing landscape of adjudicative recusal standards
for use in a follow-up report regarding best practices in developing agency-specific recusal standards.
72
ACUS has an ongoing project on the Public Availability of Adjudication Rules, see
https://www.acus.gov/research-projects/public-availability-adjudication-rules, and has published a memorandum
describing the project. See Memorandum from Todd Phillips, Attorney Advisor, Administrative Conference of the
United States, to Ad Hoc Committee of the Committee on Administration and Management and the Committee on
Adjudication, at 4-5 (Sept. 28, 2018) (discussing publication of adjudication rules),
https://www.acus.gov/sites/default/files/documents/Memorandum%20%20Public%20Availability%20of%20Adjudication%20Rules.pdf.
73
See infra Part V. for a discussion of private causes of action under agency-specific recusal regulations.

16

A. Dealing with Actual or Probable Bias
A combination of due process protections, APA impartiality requirements, and OGE
ethical protections are relatively effective at checking actual adjudicator bias and, in many cases,
at preventing a reasonable probability of such bias. As the Asimow Study suggested, agencies
should continue to be vigilant, however, in promulgating rules to protect parties from biased
adjudicators.74 The Supreme Court has made clear that “most matters relating to judicial
disqualification [do] not rise to a constitutional level,”75 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. Agency-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.76
B. The Appearance of Impartiality
Agency-specific recusal regulations stand to benefit agency adjudication most clearly
through their role in promoting public confidence in the integrity of adjudicative proceedings.
There is good reason to believe that agencies already take the appearance of impartiality very
seriously when conducting adjudications, and there is likewise good reason to believe that
agency adjudication is being conducted in a fair and impartial manner. Appearances to the
contrary could jeopardize the agency’s reputation and effectiveness by conveying inaccurate
negative information about its adjudications.
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 self-enforcing 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, and the APA is limited to ALJ bias.

74

See Asimow Study, supra note 7, at 23.
Caperton, 556 U.S. at 876 (quoting FTC v. Cement Inst., 333 U.S. 683, 702 (1948)).
76
OGE’s rules also do not provide for a party’s right to petition their adjudicator to recuse; enforcement is
dependent on an agency’s ethics official being notified of the potential problem and taking action. This is notably
different from traditional recusal enforcement—and ostensibly from enforcement of agency-specific recusal
regulations—and thus should be taken into account by agencies when formulating their own policies. The reason for
favoring a right to petition for recusal is developed in more detail in Part V, infra.
75

17

There is thus a gap in the recusal safety net when it comes to public perception of agency
adjudication. Agencies have good reasons to try to fill that gap with agency-specific regulations
designed to minimize situations in which an adjudicator’s impartiality might reasonably be
questioned. First, agencies are already concerned about how their adjudications are perceived,
and often take internal, unpublicized measures to project the appearance of impartiality. Recusal
regulations would be more permanent and enforceable expressions of that concern. Second, and
related, is the idea that transparency and clarity amplify and broaden the message. In an
increasingly polarized political environment, public statements like regulations in support of
impartiality—and the appearance thereof—can be a powerful countervailing force to increasing
cynicism about, and suspicion of, public institutions. Third, promulgating recusal regulations can
help preempt concerns about integrity before they arise. Finally, a broader, appearance-focused
approach to recusal would be consistent with the prevailing view of the legal profession that its
recusal canons should apply to agency adjudicators, including ALJs.
1. Additional Factors to Consider
While there is value to agencies promulgating recusal regulations that seek to promote
public confidence in their adjudicative systems, each agency will need to consider carefully how
to do so without unduly compromising agency effectiveness. It is likely unreasonable, for
example, to apply wholesale to agencies the federal recusal statute’s reasonable appearance
standard. Unlike federal judges, agency adjudicators by definition have a relationship with a
party (the agency) that frequently appears before them. They also have—particularly in the
context of agency appellate bodies and agency heads—a policymaking function that requires
adjudicators to make value judgments that a federal judge would not be asked to make.77 Each
agency should thus evaluate its own adjudicative system and design a regulation that balances
the importance of reassuring the public about the integrity of its proceedings against the need for
effective and efficient adjudication.
Toward that end, the following variables are useful guideposts for agencies designing
recusal standards aimed at preserving their appearance of impartiality:
•

The degree of adjudicator independence. ALJs are often more carefully insulated
from agency influence than other adjudicators; does the presence of a non-ALJ create
a stronger appearance of partiality or bias? By contrast, the potential for an
appearance of impartiality is necessarily less in cases where an agency’s
adjudications are presided over by a separate agency, such as in the relationship
between OSHA and the Occupational Safety and Health Review Commission.

77

See, e.g., 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 (“Despite intermittent expressions of caution--even of doubt and denial--we still turn
to ALJs to identify and articulate the nuances of agency policy.”).

18

Consideration of these factors may better inform an agency as to precisely how to
design an appearance-based recusal standard.
•

The regularity of the agency appearing as a party. Agencies cannot adopt reasonable
appearance standards that require recusal solely due to the agency appearing as a
party in the adjudication, but agencies who regularly appear in evidentiary hearings
before their own adjudicators should balance that fact against their interest in
promoting a reasonable appearance of impartiality.

•

Nature of the adjudicative body or proceeding. Is the evidentiary hearing part of an
enforcement proceeding? Enforcement proceedings are potentially problematic from
an appearance standpoint because the agency has a clear interest in the outcome and
is appearing before one of its employees. On the other hand, a broad appearance
standard could prevent basically any agency adjudicator from presiding over an
enforcement proceeding, making it difficult to pursue enforcement at all. Agencies
with a high percentage of enforcement hearings may thus be forced to balance the
reasonable appearance issue differently than other agencies.

•

The agency’s adjudicative caseload and capacity. Agencies with large caseloads and
adjudicative staffs may find it easier to impose stricter recusal standards—like a
version of the reasonable appearance standard—due to the relative ease of replacing a
recused adjudicator. Smaller agencies or those with fewer adjudicators run the risk of
strict recusal standards hindering the agency’s ability to issue decisions due to a lack
of available adjudicators in a given case.

•

The agency’s public profile. Agencies who administer controversial or widely
popular programs may face greater public scrutiny over their activities and, in turn,
find greater cause for appearance-based recusal than less visible agencies.
(It is important to remember that this factor does not address actual bias or partiality.
Actual bias or partiality are unacceptable regardless of whether they are evident to a
reasonable, outside observer. An adjudicator who is biased against a particular
religious group, for instance, may not reveal that bias publicly and thus could be
recused for actual bias, but not the appearance thereof. The opposite is also true, say
for a member of a segregated club who is not personally biased; they could be
recused for the appearance of racial bias, but not for actual bias. When considering
recusal based on an appearance of partiality, the degree of public interest in the
agency’s activity—whether anyone is watching—could be relevant, whereas it cannot
(and should not) be part of recusal based on actual bias.)

19

•

The adjudicator is part of a multi-member body. Recusal of a single adjudicator
presents problems if replacements are not readily available, but recusal of one of
several members of an adjudicative body raises concerns about the resulting makeup
of that body. Concerns about quorum, the administrative complications of tied votes,
and preserving the deliberative nature of multi-member bodies may thus counsel in
favor of more flexible recusal standards. Agencies should be aware of that potential
consequence when setting appearance-based recusal standards.

•

The adjudication is an appellate proceeding or an initial determination. Appellate
proceedings may raise different public perception concerns for several reasons. First,
they are likely to be of greater public interest as the proceeding rises through the
agency decision-making hierarchy. Second, and by contrast, an appellate tribunal may
be limited in terms of its standard of review or the factual record presented to it, such
that public expectations are different than they would be of an initial decision maker.
Finally, where the appellate reviewer is also the agency head, appearances may be of
greater concern due to the heightened scrutiny and responsibility of agency leaders,
yet the consequences of recusal may also be heightened because of the agency head’s
significant policy making role and the difficulty in (or impossibility of) replacing
them.
V. RECUSAL PROCEDURES

Agency-specific recusal statutes should also contain procedural requirements that meet
the agency’s particular needs and advance its goals of preventing bias and promoting public
confidence in its adjudications.
As mentioned above, agency-specific recusal regulations should be published in the Code
of Federal Regulations and the Federal Register. This will increase public awareness of the
prevailing standards and, with regard to public perception, help develop public confidence in an
agency’s integrity before the public has any reason to question it.
Agency recusal standards should include a right for parties to the adjudication to petition
for recusal. The Asimow Study argued that peremptory challenges to adjudicators (requiring
recusal without any substantive demonstration of bias or some other disqualifying feature)
“could be difficult and costly for agencies to implement” and therefore should not be part of
adjudicatory best practices.78 I agree.
A party’s petition for recusal is different from a peremptory challenge in that it would
still require a showing that the adjudicator had met the regulatory standard for recusal. It is also
78

Asimow Study, supra note 7, at 23.

20

different from current procedures under federal ethics regulations because it does not require a
third-party ethics official to initiate the recusal proceeding. A petition process under a recusal
regulation would not preclude the agency from pursuing an ethics complaint (and thus
maintaining control over the conduct of its employees), but would allow a party who is
concerned about the adjudicator’s fitness to file a petition to recuse the adjudicator in the
proceeding. Since the parties and the adjudicator are most likely to be familiar with the details of
their own adjudications, allowing a right to petition for recusal streamlines the process and puts
parties in more immediate control of their fate in instances where they are concerned about the
integrity of the proceeding.
Recusal petitions (unlike ethics complaints) should be heard in the first instance by the
adjudicator who is being asked to recuse. This would bring administrative recusal procedurally in
line with federal judicial recusal, which requires presiding judges initially to decide their own
recusal issues. The benefit of such an approach is that the judge or adjudicator in question is very
often in the best position to know the facts of the situation and to be able to remedy them by
removing him or herself from the case. Having adjudicators decide their own recusal petitions
also creates a sense of checks and balances between parties and the bench—it discourages parties
from filing frivolous or strategic recusal motions, and pressures adjudicators to demonstrate their
own commitment to the integrity of the proceedings by resolving issues thoroughly and
impartially.
Recusal decisions should be subject to appeal within the agency and then to judicial
review. Parties should have a right to appeal an initial decision not to recuse. The possibility of
appeal generally will require the adjudicator facing recusal to build a record in support of his or
her decision. The presence of a record promotes transparency and accountability, and provides a
check against self-serving recusal decisions by the presiding adjudicator. Appeal within the
agency is faster and more efficient than judicial review, and can be more searching as well, if
agencies chose to permit the same de novo review of factual and legal conclusions in recusal
decisions as the APA does for an ALJ’s initial decision.79
Agencies must determine if there should be an intermediate appellate forum for recusal
decisions or if they should be appealed directly to agency heads. Due to the potentially large
number of recusal issues in some agencies, requiring agency heads to review each recusal issue
arising anywhere within the agency’s adjudicative system would be too burdensome. Appeal to
an intermediate body is preferable, with a possibility of discretionary review of the intermediate
appellate body by agency heads. If the initial adjudicator is only reviewable by the head of an
agency, an intermediate review body could be formed from among the adjudicator’s peers (a
panel of fellow ALJs for an ALJ recusal issue, for example). For recusal issues arising for one
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.”).
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member of a multi-member adjudicative body, initial review of the adjudicator’s decision should
be performed by the remaining members of the body, especially if the multi-member body either
is the agency itself or is directly responsible to the agency head.
Adjudicators should provide, and agencies should strive to publish, written explanations
of adjudicators’ recusal decisions. Similarly, appellate reviewers of adjudicators’ recusal
decisions should provide, and agencies should attempt to publish, written explanations of the
appellate reviewers’ decisions. Agencies should also seek to include the agency official
responsible for assigning adjudicators in any intermediate appellate review of recusal matters.
This would allow agencies to retain the right to assign adjudicators to individual cases and would
ensure that the reviewing authority would understand the institutional consequences of recusal
and reassignment in a given proceeding.
Agencies will be faced with a determination as to whether recusal issues will be
appealable on an interlocutory basis. The issues raised in the recusal context are the same as any
interlocutory review issue—the cost of delaying the adjudication on the merits in order to resolve
a recusal question versus the benefit of avoiding redundant proceedings where recusal is found to
be necessary after the initial adjudication is completed. Agencies with large adjudicatory dockets
may be less inclined to permit interlocutory review for fear of overwhelming appellate reviewers
and delaying large numbers of active adjudications. Agencies with smaller dockets will likely
have fewer recusal issues to review and therefore whether they are available on an interlocutory
basis may have less of an overall impact on agency effectiveness.
Judicial review is important as a check against the appearance of self-serving behavior on
the part of the agency. For reasons of efficiency and expertise, some measure of judicial
deference to agency decisions would be advisable. If agencies promulgate specific recusal
regulations, then absent an explicit prescription in the regulation itself requiring a different
standard of review, judges would apply Auer deference to agency recusal decisions.80 If agencies
provide for internal agency appeals of recusal decisions, then judicial deference to those
appellate decisions promotes a proper balance of efficiency and respect for agency expertise with
judges’ power to correct errors. If an agency does not provide for internal appeal of an
adjudicator’s recusal determination, then agencies should consider permitting reviewing judges
to consider those decisions de novo.

See Auer v. Robbins, 519 U.S. 452, 461 (1992) (finding the Secretary of Labor’s interpretation of his own
regulation “controlling unless ‘plainly erroneous or inconsistent with the regulation’”).
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VI. RECOMMENDED BEST PRACTICES
Recusal of agency adjudicators that preside over legally required evidentiary hearings
serves two important purposes. It protects litigants from biased decision makers and it promotes
public confidence in the administrative process by demonstrating to outside observers that the
agency values impartiality.
The current legal framework around recusal of agency adjudicators is a collection of
sources—only some of which are legally binding—that either do not fully address both of
recusal’s goals or do so only for a subset of agency adjudicators.
Agencies should fill the gap in the existing framework by promulgating agency-specific
recusal regulations. Those regulations should be tailored to best accommodate the specific
features of the agency’s adjudicative proceedings and its institutional needs, particularly as they
pertain to both promoting the actual and perceived integrity of agency adjudications and
maximizing the effectiveness and efficiency of those proceedings.
Common features of agency-specific recusal regulations should include:

1. A provision requiring recusal in instances of bias, as defined in paragraph 5 of
ACUS Recommendation 2016-4 and the Asimow Study;
2. A provision requiring recusal in at least some instances where the
adjudicator’s impartiality might reasonably be questioned; and
3. Provisions outlining the procedures by which recusal issues will be resolved,
including a right of the parties to petition for recusal, an initial determination
by the presiding adjudicator, intra-agency appeal, and judicial review.

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