To use the EAP, all of the following requirements must be met:

1. a. 

   SSA has made a reconsideration determination, a hearing decision, or AC review has been requested, but the AC has not issued a final action.

2. b. 

   The claimant is a party to the reconsideration determination or the hearing decision.

3. c. 

   The claimant submits an EAP request in writing. If the claimant is not the only party, all parties to the determination or decision agree to request the EAP.

4. d. 

   The claimant timely filed the written EAP request, that is:

   • •

     Within 60 days after receiving notice of the reconsideration determination or notice of the administrative law judge's (ALJ) decision or dismissal, unless good cause for late filing is found. For more information on good cause for extending the time limit to file an appeal, see GN 03101.020. SSA presumes that the claimant receives the notice five days after SSA mails it; or

   • •

     Any time after filing a timely request for hearing or request for AC review, but prior to a decision being issued.

5. e. 

   The claimant claims, and SSA agrees, that the only factor preventing a favorable determination or decision is a provision in the law that the claimant believes is unconstitutional.

6. f. 

   Other than the claimant’s belief that a provision of the Act is unconstitutional, the claimant agrees with SSA’s interpretation of the law.

A claimant may submit a written EAP request to any SSA office.

The servicing Regional Office (RO) is responsible for preparing the EAP agreement when an EAP request is submitted after the reconsideration determination but before a request for hearing. If all of the requirements in SI 04060.010C.1 are met, the RO must prepare the EAP agreement per GN 03107.250B.1.

Once the RO has prepared the EAP agreement, the RO will forward the agreement to the Office of the General Counsel (OGC) at ^OGC OPL Controls for review. After OGC is satisfied that the claim meets the criteria for the EAP and returns the agreement, the RO will forward the agreement to the servicing field office (FO). The FO will obtain the claimant’s signature on two copies of the agreement. If the claimant signs the agreement, the FO will mail both copies of the signed agreement to the RO. Upon receipt, the RO will forward one of the original signed agreements and other pertinent documents to the Office of Analytics, Review, and Oversight (OARO) pursuant to instructions in GN 03107.250B.5.a. The Deputy Commissioner of OARO (DCARO) will sign the EAP agreement on behalf of the Commissioner.

If a request for hearing has been filed and an ALJ decision has not been issued, the Office of Hearings Operations (OHO) has jurisdiction to handle the EAP request pursuant to Hearings, Appeals, and Litigation Law Manual (HALLEX) I-2-2-25. If an ALJ decision has already been issued or a request for AC review is pending, the Office of Appellate Operations (OAO) has jurisdiction to handle the EAP request pursuant to HALLEX I-3-0-65. For guidance on when the FO receives an EAP request after a hearing request, see GN 03107.150C.

For more information on FO EAP agreement responsibilities, see GN 03107.150D.1. For more information on RO EAP agreement responsibilities, see GN 03107.250B.1.

Once the agreement is signed by all parties, there is no provision for withdrawal from the agreement.

The effect of an EAP request depends on the status of the request:

a. All parties signed the EAP agreement

After the EAP agreement is signed, the claimant does not need to complete the remaining steps of the administrative review process. Instead, the claimant may file an action in a federal district court within 60 days after the date the claimant receives notice that the agreement has been signed by the DCARO. A signed copy of the EAP agreement will be mailed to the claimant and will constitute notice.

b. SSA denies an EAP request

If the EAP request is denied, the request will be treated as a request for hearing. For more information on denial of an EAP request, see GN 03107.150B.2.b.

c. Claimant no longer wishes to pursue EAP request

If the claimant no longer wishes to pursue the EAP and all parties have not yet signed the agreement, the FO will mail a cancellation notice to the claimant. The cancellation notice will inform the claimant that 30 days after receiving the notice, the claimant will have no further appeal rights within the administrative appeals process or in federal court. SSA presumes that the claimant receives the notice five days after SSA mails it. The cancellation notice will explain that if the claimant wishes to pursue further administrative review, the claimant must request a hearing before the 30-day period expires. The period will be extended if the claimant shows good cause for missing the deadline. For more information on FO and RO responsibilities when a claimant does not wish to pursue the EAP further, see GN 03107.150D.3 and GN 03107.250B.4.

d. Claimant's failure to respond, or refusal to sign the EAP agreement

If the claimant fails to respond, or refuses to sign the EAP agreement, the RO will mail a closeout notice to the claimant. The closeout notice will inform the claimant that 30 days after receiving the notice, the claimant will have no further appeal rights within the administrative appeals process or in federal court. SSA presumes that the claimant receives the notice five days after SSA mails it. The closeout notice will explain that if the claimant wishes to pursue the claim further, the claimant must either sign the EAP agreement or request a hearing before the 30-day period expires. The period will be extended if the claimant shows good cause for missing the deadline. For more information on FO and RO responsibilities when a claimant fails to respond, or refuses to sign the EAP agreement, see GN 03107.150D.5 and GN 03107.250B.5.b.

If the claimant does not file an EAP request within the required time limit and SSA does not find good cause for the delay, the EAP request will be denied. For more information on denial of an EAP request, see GN 03107.150B.2.b.

If the claimant later files a new application but does not present new facts or evidence, SSA will process the new application using the doctrine of res judicata. For more information on res judicata, see GN 03101.160 and GN 04040.010.

Follow the FO procedures in GN 03107.150.

Follow the RO procedures in GN 03107.250.