Instructions relating to filing requirements at the hearing level are set forth in Hearings, Appeals, and Litigation Law (HALLEX) manual HA 01205.040 and HA 01240.015. When an ALJ dismisses a request for hearing because the claimant did not timely file the request for hearing, an Office of Appellate Operations (OAO) analyst will determine whether:

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  The claimant had an opportunity to establish good cause for the untimely filing;

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  The ALJ considered any submitted information;

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  The ALJ adequately explained why good cause was not established; and

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  There is a basis for granting review.

If the claimant submits additional information to the Appeals Council (AC) that the ALJ did not have the opportunity to consider, the OAO analyst will usually take one of the following actions:

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  When the analyst finds the information clearly establishes a good cause reason for the untimely filing and other circumstances warrant granting review, the analyst will recommend the AC remand the case to the ALJ.

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  When the analyst finds the information may establish a good cause reason for the untimely filing, and other circumstances warrant granting review, the analyst will recommend the AC remand the case to the ALJ to determine whether the claimant has a good cause reason for the untimely filing. In the remand order, the AC will instruct the ALJ to hold a hearing on the merits of the case if good cause is established or, if appropriate, dismiss the request for hearing if good cause is not established.

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  When the analyst finds the information would not change the outcome of the ALJ dismissal, or that other circumstances suggest a remand is not appropriate, the analyst will recommend the AC deny review.

Detailed instructions regarding when an ALJ can dismiss a request for hearing based on failure to appear are set forth in HALLEX HA 01240.025. When an ALJ dismisses a request for hearing because the claimant and representative, if any, fail to appear at hearing, the OAO analyst will evaluate whether the ALJ complied with the applicable procedures before dismissing the request for hearing.

If the claimant submits additional information to the AC that the ALJ did not have the opportunity to consider, the OAO analyst will usually take one of the following actions:

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  When the analyst finds the information clearly establishes a good cause reason for failure to appear, and other circumstances warrant granting review, the analyst will recommend the AC remand the case to the ALJ.

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  When the analyst finds the information may establish a good cause reason for failure to appear, and other circumstances warrant granting review, the analyst will recommend the AC remand the case to the ALJ to determine whether the claimant has a good cause reason for failing to appear. In the remand order, the AC will instruct the ALJ to hold a hearing on the merits of the case if good cause is established or, if appropriate, dismiss the request for hearing if good cause is not established.

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  When the analyst finds the information would not change the outcome of the ALJ dismissal, or that other circumstances suggest a remand is not appropriate, the analyst will recommend the AC deny review.

When an ALJ dismissed a request for hearing at the claimant's request under 20 CFR 404.957(a) and 416.1457(a), the claimant is not entitled to file another request for hearing on the same application. However, the claimant or party to the hearing may request that the ALJ or AC vacate the dismissal within 60 days of the date of receiving the dismissal by stating why the dismissal of the request for hearing was erroneous. For authority, see 20 CFR 404.960 and 416.1460.

An ALJ's action on a vacate request is not subject to further review. See HALLEX HA 01240.005 C and HA 01240.010. Additionally, a claimant may not submit a request to the ALJ to vacate the dismissal order and a request to the AC asking it to review the dismissal order. When this occurs, see HALLEX HA 01240.010.

If the claimant submits the request to vacate an ALJ's dismissal order to the AC or the AC reviews the dismissal on its own motion, the AC will:

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  Determine whether the request was submitted within 60 days of the date the claimant received the notice of dismissal, and, if not, dismiss the request; and

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  Evaluate whether the claimant submitted information that shows why the dismissal of the request for hearing was erroneous. A finding that the dismissal was erroneous will depend upon all the facts at the time of the dismissal and all subsequent facts. A change of mind alone does not constitute a good cause reason to vacate a dismissal order. See Appeals Council Interpretation HA 02510.004.

When an ALJ dismissed a request for hearing based on administrative res judicata under 20 CFR 404.957(c)(1) or 416.1457(c)(1), the AC will use the instructions in HALLEX HA 01330.009.