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When should administrative judges recuse themselves?

On Behalf of | Aug 8, 2022 | Firm News

The Supreme Court and its rulings have recently claimed more than their fair share of attention. It has recently overturned landmark opinions and shrunk the powers invested in federal agencies. However, the Court and its Justices have grabbed headlines for more than their latest opinions.

The Court recoiled after someone leaked an early draft of the decision to overturn Roe vs. Wade. This was a monumental and surprising breach of long-standing protocols. In other news, Justices have ventured into the taboo realms of political statements, and Justice Clarence Thomas ignored arguments that he should recuse himself from cases related to January 6th.

While these issues raise a host of questions, the Merit Systems Protection Board (MSPB) recently addressed one of them. Of course, the MSPB couldn’t decide when Supreme Court Justices should recuse themselves. Instead, it tackled the question of when administrative judges should withdraw from cases.

Mitzi Baker vs. Social Security Administration

The MSPB reviewed the guidelines for the disqualification of judges in the case of Baker vs. Social Security Administration.

Mitzi Baker worked in Chicago’s National Hearing Center and filed a complaint with the Office of Special Counsel. She claimed that her agency had retaliated against her for her actions as a whistleblower. She took her case before an administrative judge and lost. However, her case had a twist. The administrative judge had acknowledged his ongoing relationship with another person at Baker’s agency. He said he didn’t expect it would impede his ability to rule fairly, but Baker asked for his recusal. He refused. Baker asked him to certify the issue for consideration by a higher court, and he again refused.

Accordingly, Baker appealed her case to the Board. As the Board notes, she argued that the judge:

  • Should have interpreted her case more liberally
  • Displayed improper bias against her
  • Had a conflict of interest

The Board found that most of Baker’s arguments lacked merit. However, it agreed with her on one crucial point: The judge should have recused himself. As a result, the Board revoked the judge’s decision and sent Baker’s case back for a new hearing with a different judge.

The standards for judge disqualification

The Board cited Title 5 of the Code of Federal Regulations § 1201.42 as the standard for judge disqualification. The section says a judge can withdraw from a case if that “judge considers himself or herself disqualified.”

The judge’s decision may not always satisfy the parties involved in the case, so the rules go on to list two options:

  • Either party may ask the judge to withdraw on the basis of “personal bias or other disqualification.” The party asking for the judge’s withdrawal must provide the reasons for the request in an affidavit or sworn statement.
  • If the judge denies the request, the party seeking the withdrawal may request certification of the issue. This would raise the concerns to the Board for review. Failing to request this certification is considered a “waiver” of the request to have the judge withdraw from the case.

The Board found that Baker had asked the judge to withdraw. After the judge chose not to withdraw, Baker had taken the next step, requesting certification of the issue. So, the Board recognized she had taken the steps available to her.

As for the question of “personal bias or other disqualification,” the Board said it looked to Federal procedures for guidance. Specifically, it looked at 28 U.S.C. § 455. That statute, the Board noted, says that a Federal judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

What does “reasonably” mean?

“Reasonably” is the operative term. The Board noted the term is supposed to indicate an “objective” standard. It asks what a reasonable person would think if that person had all the relevant facts. It does not account for personal beliefs or feelings about a judge’s abilities.

To further clarify the importance of objective concerns versus subjective concerns, the Board reviewed similar cases in which people had asked judges to recuse themselves:

  • The Board sided with one judge who argued that his opinion in a case about union concerns reflected only his opinion on that case, not a larger bias against unions. The Board noted the cases had involved different appellants and agencies, and the judge had not acted improperly.
  • The Board also refused to disqualify a judge simply because the appellant wrote a book that disparaged that judge. The Board noted the appellant’s arguments showed only the appellant’s bias against the judge. They didn’t suggest the judge was biased against the appellant.
  • Finally, the Board cited a case in which an appellant had sought a judge’s removal because the judge had previously worked with the agency’s representative. The Board claimed the unremarkable, professional nature of the work between the two wasn’t enough of a concern to disqualify the judge.

Against these examples, the Board cited the “ongoing personal relationship” at stake in Baker’s case. The Board noted that the judge appeared to be in a romantic relationship with one of the attorneys in Baker’s agency. Furthermore, that attorney had voiced negative opinions about Baker, and those opinions found their way into statements on the record.

As a result, the Board found that the judge’s “impartiality might reasonably be questioned.”

Justice requires the participation of imperfect people

Federal employees headed to the Board can take a couple lessons from Baker’s case.

The first is that it’s important to realize that people can make mistakes. Fortunately, the Board and the system also acknowledge this and allow for things like appeals to correct those mistakes.

The second lesson is that it’s important to do things the right way. Had Baker not filed for certification, she would have been unable to take her case to the Board and win a new hearing with a more impartial judge.


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