But on rare occasions, the subtle strategy of letting the tribunal come up with its own remedy works like a charm. As it does here.
Petitioner wants more attorney's fees than the ALJ granted her, so files an appeal. The Ninth Circuit decides that, yes, the ALJ made a couple of legal errors in reducing the fee award, so remands the case.
Nothing especially unusual about that.
Normally, the case would then go back to the same ALJ. And Petitioner didn't request otherwise.
But the Ninth Circuit's having none of it. Judge Tashima and the panel decide, sua sponte, to order reassignment to a new ALJ on remand. On the theory that the history of the litigation establishes that the current ALJ "may not
be able to provide [Petitioner] with a fair and impartial
hearing on remand."
Reassignment is an extraordinary remedy. Reassignment sua sponte adds yet another exceptional act as well.
Mind you, there may be a reason why the Ninth Circuit reaches out the way it does. The panel seems to be more than a little bit miffed that the ALJ didn't take kindly to being reversed by the Ninth Circuit in an earlier stage of the litigation, and thus entered a series of orders that the Ninth Circuit thought questioned the decision on appeal. The panel was having none of that. Hence the reassignment.
Basically a little slapdown of the ALJ to remind her who's boss.
