Properly Preserving Claims Of Bias Against The ALJ

The highly publicized recent claims of bias raised against certain Coast Guard administrative law judges (ALJs), and against the Coast Guard administrative law judge system as a whole, have brought to light the express statutory requirements which must be met in order to assert or to preserve any claim of bias against an ALJ.

The Administrative Procedure Act (“APA”) under which Coast Guard administrative law license suspension and revocation proceedings are currently conducted, requires that an affidavit, setting forth the exact facts and reasons justifying any charge of bias against an ALJ, must be filed with the agency, and that the agency shall determine the matter as part of the record and decision of the case.  5 USC §556(b).

It is extremely important that a charge of bias or prejudice be raised at once, and as soon as a party concludes in good faith that the decisionmaker should be disqualified from the hearing of the case for reasons of bias or prejudice.  Failure to raise the issue of bias in a timely fashion will be deemed a waiver of the right to assert bias at a later stage in the proceeding, especially at the appellate level.  See Marcus v. Director, Office of Workers Compensation Programs, US Department of Labor, 548 F.2d 1044, 1050 (D.C. App. 1976).