This article was authored by Gavin Young, Counsel for Congressional Affairs at ACUS.
Of all of a federal agency’s activities, adjudication—with determinations that directly touch the lives and businesses of individual parties—is particularly deserving of scrutiny for fair and impartial treatment. Recusal, which is the withdrawal of an adjudicator from a proceeding, can serve as an important means to ensure such fair and impartial treatment in agency adjudications. The Administrative Conference will be considering proposed recommendations informed by a project on this issue at its Plenary Session this December.
There are several sources that may help inform the use of recusal in agency proceedings, including due process, model codes of conduct, and government ethics provisions. Following these sources may be helpful (and, depending on the source, required), but agency proceedings will still benefit from dedicated rules specifically designed for recusal in order to maintain both impartiality and the appearance of impartiality.
In October and November, the Committee on Adjudication met to consider and propose recommendations for the recusal of administrative adjudicators. These proposed recommendations encourage agencies to adopt rules for recusal in agency proceedings when the adjudicator has an improper financial or other interest in the decision, harbors personal animus against a party or group to which the party belongs, or has prejudged the facts at issue in the proceeding. The proposed recommendations also endorse procedural rules, including the right of petition for parties seeking recusal, the provision of a written explanation of the recusal decision to the parties, and, where it is practicable and consistent with privacy interests, the publication of recusal decisions.
These proposed recommendations would assist agencies in addressing actual and apparent bias and in promoting public confidence in agency adjudications, and if they are adopted, ACUS staff will work with agencies on implementing them.