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October 01, 2012

ABA recommends ethical code for ALJs

The ABA recommended to Congress last month that federal administrative law judges (ALJs) be subject to, and accountable under, appropriate standards for ethical conduct adapted from the ABA Model Code of Judicial Conduct.

Such a step would be “an excellent way to promote fairness and public trust in administrative adjudication proceedings,” ABA Governmental Affairs Director Thomas M. Susman wrote in a Sept. 28 letter to the Senate Homeland Security and Governmental Affairs Permanent Subcommittee on Investigations. The Model Code, he said, establishes standards for the ethical conduct of judges that promote the independence, integrity and impartiality of the judiciary.

The ABA letter, submitted for the record of a Sept. 13 hearing on the quality of decisionmaking in cases involving the Social Security Administration’s (SSA) disability programs, emphasized that the association has worked extensively for more than two decades to protect the adjudicative independence of the administrative judiciary and promote increased efficiency and fairness in the system.

Susman explained that the adjudicative function performed by ALJs and the relationship they must maintain with their employing agencies distinguish them from the rest of the federal workforce. Congress recognized this unique function in 1946 when it passed the Administrative Procedure Act (APA), which established the adjudicative independence of ALJs.

The SSA has been working for years to reduce the backlog of claims under the Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) programs as the number of claims has risen at an unprecedented rate over the past few years. The Senate panel called the Sept. 13 hearing to discuss the findings of a subcommittee investigation that revealed, among other things, that more than a quarter of 300 Social Security disability cases reviewed by the staff “failed to properly address insufficient, contradictory or incomplete evidence.” 

During the hearing, Debra Bice, chief ALJ for the SSA Office of Disability Adjudication and Review, emphasized that SSA has taken affirmative steps to address egregiously underperforming ALJs, but she explained that the agency’s  authority to discipline ALJs is restricted by statute.

Other chief ALJs testifying at the hearing stressed that the APA grants all ALJs “qualified decisional independence,” which means that ALJs make their decisions free from agency pressure or pressure by the parties in particular cases.

They emphasized that while they can exercise appropriate management oversight over ALJs in their offices and take a number of actions to help ALJs improve their performance, they “cannot and do not interfere with or influence the ultimate decisions in any case.”

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