TN 9 (05-02)
GN 03106.055 Orders Considered for Appeal
Either party to the court case has:
60 days from the date of entry of judgement in a district court case to file a notice of appeal to the circuit court; or
90 days from entry of judgment in a circuit court case to take further action. In a circuit court case either party can request that the same three-judge panel reconsider the decision (Request for Rehearing), or request that the entire court reconsider the decision (Motion for Rehearing with a Suggestion for Rehearing En Banc), or file a Petition for Writ of Certiorari (see NOTE: below) to the Supreme Court. Generally, the DOJ, with input from OGC, will seek rehearing without input from SSA. If the question on appeal involves SSA policy, OGC will contact OALC before filing an appeal to a higher court. (See http://www.law.emory.edu/FEDCTS/ for a map identifying the states with each judicial circuit.)
NOTE: A Petition for Writ of Certiorari is a request to the Supreme Court that they agree to hear the appeal. Neither party has an automatic "right" to have the Supreme Court decide their Social Security case. The Supreme Court only decides those Social Security cases that it agrees to hear.
B. POLICY - CASES IDENTIFIED FOR POSSIBLE APPEAL
OGC identifies potentially significant cases that may warrant appeal. In these cases, OGC will ask OALC for a recommendation regarding appeal. OALC will consult with the policy and operating components of SSA to obtain their recommendation. OALC will coordinate the agency's comments, resolve any conflicts between component recommendations, and then provide OGC with the agency's recommendation on further appeal. See GN 03106.050A.
The chart indicates the procedures to follow if a court reversal is under consideration for possible appeal.
|IF SSA...||THEN OALC will...||AND THEN the effectuating component should...|
Is considering appeal of a court reversal or a notice of appeal is filed before the court
Call the effectuating components to tell them to continue effectuation but defer payment
Confirm this phone call via memorandum (see GN 03106.099, Exhibit D, Halt Memorandum)
Complete all the development needed to effectuate the decision
Defer payment until it is determined if a notice of appeal is to be filed or if a notice of appeal was filed, a final court order is entered.
Decides not to recommend appeal of a case considered for appeal
Call the effectuating component to tell them to authorize and make payment under the court order
Confirm this phone call via memorandum (see GN 03106.099, Exhibit E, Resume Effectuation Memorandum.)
Take necessary action(s) to effectuate or pay the court order.
NOTE: When the OALC notifies the effectuating component that an order is being considered for appeal, the effectuating component must complete all development (including systems input forms). Failure to do so may:
Unduly delay payment to a claimant if an appeal is not taken, and
Cause further litigation due to untimely payment.
NOTE: On occasion, SSA will determine that appeal of a court order is not warranted, however the court order cannot be fully effectuated as written (e.g., the court orders SSA to pay disability insurance benefits beginning on a specific date that falls within the "waiting period" or the court order contains a typographical error that must be corrected.) The Federal Rules of Civil Procedure allow the defendant to ask the court to correct the order/judgment. See GN 03106.039C.2. When the effectuating component identifies a technical problem that prevents full effectuation of the court's order, the effectuating component must follow the procedures in GN 03106.039B. except that the memorandum explaining the technical problem that is preventing full effectuation of the court's order should be forwarded to OGC. PC7 should contact OGC, OPL. Other PCs should contact your Regional Chief Counsel's Office. FOs should contact your Regional Chief Counsel through ARC-MOS.