Last Update: 6/20/2016 (Transmittal I-3-144)
HA 01350.070 Recommendation to Deny Request for Review of Administrative Law
Judge Dismissal
Renumbered from HALLEX section I-3-5-70
An analyst for the Appeals Council (AC) will evaluate an
administrative law judge (ALJ) dismissal using the instructions
in Hearings, Appeals and Litigation Law (HALLEX) manual HA 01330.015.
If the analyst recommends that the AC deny the request for review,
the analyst will include the following in his or her analysis in the
case processing system:
•
A brief statement explaining the ALJ's basis for dismissal
and why the dismissal was proper;
•
A discussion of any unresolved issue in the case or with
the ALJ's order of dismissal; and
•
If the facts support a favorable action had the ALJ not
dismissed the request for hearing, a brief statement as to the merits
of the case and a recommendation as to whether the AC should assume
jurisdiction.
If the ALJ correctly
dismissed the request for hearing because the claimant had no
right to a hearing (e.g., there had been no reconsideration,
the claimant was not a proper party, or the original action
was not an initial determination as defined under 20
CFR 404.902 and 416.1402),
the analyst will not evaluate the merits of the case.
An ALJ dismissal is final and binding unless it is vacated by the
ALJ or the AC. Therefore, if the AC denies review of an ALJ's dismissal,
the AC's notice does not include the right to appeal. (See Note 2 below
for possible exceptions.) Therefore, when proposing that the AC deny
review of an ALJ dismissal, the analyst will use the DEN 20 denial
notice template so that the claimant is not mistakenly offered appeal
rights.
In the 7 Circuit (Illinois,
Indiana, or Wisconsin), the AC follows Acquiescence Ruling (AR) 16-1(7),
Boley v. Colvin, under which a claimant may file a
civil action in certain circumstances after the AC denies review of
an ALJ dismissal order. For information about AR 16-1(7), see HALLEX HA 01330.015A. If
AR 16-1(7) applies,
the analyst will add language offering appeal rights to the denial
notice.
When the AC intends to deny a request for review of an ALJ dismissal
and the claimant has submitted additional evidence that is new and
material but does not relate to the period on or before the date of the
last merits-based determination, the AC will give protective filing as
of the date of the request for review. For definitions, see HALLEX HA 01330.006. If the
additional evidence relates to the date on or before the last merits-based
determination, the AC will not give protective filing but will send the
evidence to the component that made the last merits-based determination,
as noted in HALLEX HA
01350.072.