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e-CFR data is current as of January 21, 2021

Title 38Chapter IPart 42 → §42.16

Title 38: Pensions, Bonuses, and Veterans' Relief

§42.16   Disqualification of reviewing official or ALJ.

(a)  A reviewing official or ALJ in a particular case may disqualify himself or herself at any time.

(b)  A party may file with the ALJ a motion for disqualification of a reviewing official or an ALJ. The motion shall be accompanied by an affidavit alleging personal bias or other reason for disqualification.

(c)  The motion and affidavit shall be filed promptly upon the party's discovery of reasons requiring disqualification, or such objections shall be deemed waived.

(d)  The affidavit shall state specific facts that support the party's belief that personal bias or other reason for disqualification exists and the time and circumstances of the party's discovery of the facts. It shall be accompanied by a certificate of the representative of record that it is made in good faith.

(e)  Upon the filing of the motion and affidavit, the ALJ shall proceed no further in the case until the ALJ resolves the matter of disqualification in accordance with paragraph (f) of this section.

(f)(1)  If the ALJ determines that a reviewing official is disqualified, the ALJ shall dismiss the complaint without prejudice.

(2)  If the ALJ disqualifies himself or herself, the case shall be reassigned promptly to another ALJ.

(3)  If the ALJ denies a motion to disqualify, the Secretary may determine the matter only as part of the review of the initial decision upon appeal, if any.

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