ACUS Publishes New Report on Recusal Rules for Agency Adjudicators

ACUS is pleased to release a new report, Administrative Recusal Rules: A Taxonomy and Study of Existing Recusal Standards for Agency Adjudicators. The report, prepared by Stetson University College of Law Professor Louis J. Virelli, III, collects and analyzes a wide-ranging set of recusal standards and practices employed by more than 60 agencies across the federal government.

Recusal, the voluntary or involuntary withdrawal of an adjudicator from a particular proceeding, is an important tool for maintaining the integrity of adjudication. In Recommendation 2018-4, Recusal Rules for Administrative Adjudicators, ACUS recognized the importance of this feature to agency adjudications. Among its potential benefits, agency recusal rules help to ensure that parties to an adjudicative proceeding have their claims resolved by an impartial decisionmaker and inspire public confidence in the adjudication.

Prof. Virelli’s new report develops a taxonomy of substantive recusal standards and documents the procedural requirements agencies have adopted for recusal. It finds, for example, that a large majority of the agencies surveyed do not have rules which instruct adjudicators to explain their recusal decisions on the record even though there may be numerous benefits to be gained from such a requirement. Prof. Virelli also explores how recusal standards might vary according to certain institutional features and examines issues surrounding the form in which agencies choose to publish their standards (i.e., by legislative rule or in a guidance document).

Already the source of an ACUS Information Interchange Bulletin, Prof. Virelli’s new report offers a wealth of data and factors that agencies will want to consider when tailoring or revisiting recusal standards and procedures for use in their own evidentiary proceedings. A resource that agencies may find particularly valuable is a series of tables that classify dozens of recusal policies according to the report’s taxonomy of substantive standards.

This report follows a prior report by Prof. Virelli which surveyed the existing legal framework for administrative recusal and explored how agencies have adopted supplemental recusal rules to better preserve the appearance of impartiality among adjudicators. ACUS relied on this report when it issued Recommendation 2018-4.