I-2-2-25.Expedited Appeals Process — Constitutional Challenge to Social Security Act

Last Update: 11/18/14 (Transmittal I-2-126)

A. General

Pursuant to 20 CFR 404.923-928 and 416.1423-1428, an individual may seek judicial review without completing the administrative review process under certain circumstances. A party to a determination or decision may submit a written challenge to the Social Security Act (Act) at any point in the administrative review process (i.e., after he or she receives a determination or decision at the reconsideration level or higher and before the Appeals Council issues a final action). The party must assert that the only factor preventing a favorable determination or decision is a provision in the Act that is unconstitutional. If there is more than one party to the determination or decision, all parties must agree, in writing, to the expedited appeals process (EAP).

The request can be filed at any Social Security Administration (SSA) office or other location noted in 20 CFR 404.925(b) and 416.1425(b) and must be filed within the timeframes set forth in 20 CFR 404.925(a) and 416.1425(a).

If SSA agrees that the only factor preventing a favorable determination or decision is a provision in the Act that the individual challenges as unconstitutional, and the individual meets all requirements to use the expedited appeals process, SSA will issue a written agreement, as explained in 20 CFR 404.926 and 416.1426. The document is not valid unless all parties sign the agreement, and the official date of the agreement is the date SSA signs the agreement.

NOTE:

If the requirements for the EAP are not met, SSA will deny the request and consider it a request for hearing (RH) or a request for Appeals Council review (whichever is more appropriate).

B. EAP Request Jurisdiction

A designated component handles EAP requests when an RH has not yet been filed or where an RH has been dismissed (i.e., the initial or reconsidered determination is the final SSA action). For more information, see Program Operations Manual System (POMS) GN 03107.250.

The hearing operation has jurisdiction to approve or deny an EAP request when:

  • An RH has been filed; and

  • A hearing level decision has not been issued.

If a hearing level decision has already been issued, the Office of Appellate Operations (OAO) will handle the EAP request. For OAO procedures, see Hearings, Appeals and Litigation Law (HALLEX) manual I-3-0-65.

C. Hearing Level EAP Procedures

The Office of the Chief Administrative Law Judge (OCALJ) handles hearing level EAP requests. If a hearing office (HO) receives an EAP request and OCALJ has jurisdiction, the HO will maintain the case in the Case Processing and Management System (CPMS) and will not otherwise process the case while OCALJ considers the request. HO staff will immediately send the request to OCALJ via email to ¦¦¦ODAR OCALJ DFP, or, when a paper file is involved, to:

Social Security Administration
Office of Disability Adjudication and Review
Attention: Office of the Chief Administrative Law Judge
1 Skyline Tower, Suite 1608
5107 Leesburg Pike
Falls Church, VA 22041-3255

Otherwise, the HO will send the EAP request to the proper component within 5 days of receipt.

OCALJ will, within 10 days, determine whether the EAP criteria are met. The EAP criteria are set forth in 20 CFR 404.924 and 416.1424.

1. EAP Criteria Not Met

If OCALJ determines the EAP criteria are not met, OCALJ will:

  • Notify all of the parties in writing of the reason(s) the criteria are not met, specifically noting that the denial of the EAP request is not an initial determination subject to administrative or judicial review under 20 CFR 404.903(k) and 416.1403(a)(4), and the denial is final; and

  • Return the case to the assigned administrative law judge (ALJ) to proceed with the hearing and issue a decision.

2. EAP Criteria Met

If OCALJ determines the EAP criteria are met, OCALJ will:

  • Prepare a formal agreement pursuant to 20 CFR 404.926 and 416.1426 (see also POMS GN 03107.100 D.1.d.);

  • Send the agreement to the EAP requester(s) for signature (do not obtain the Chief Administrative Law Judge's (CALJ) signature before the EAP requester(s) signs the agreement as the date of the SSA signature is the official date of the agreement);

  • After the requester(s) signs and returns the agreement, obtain the CALJ's signature and immediately forward copies of the signed agreement to all signatories (pursuant to 20 CFR 404.927 and 416.1427);

  • Associate a copy of the signed agreement with the claim(s) file;

  • Forward a copy of the signed agreement, original request, related materials, and the claim(s) file (if paper), to the Executive Director's Office in OAO; and

  • Notify the HO that the CALJ has approved the EAP request and that the ALJ must dismiss the RH.

When the assigned ALJ receives notice that OCALJ has approved the EAP request, the ALJ will prepare and issue an Order of Dismissal based on the claimant's request to withdraw the request for hearing. See HALLEX I-2-4-20.

NOTE 1:

When an EAP request is approved, the requestor(s) has 60 days from the date he or she receives the copy of the signed agreement to file an action in a Federal district court. See 20 CFR 404.927 and 416.1427.

NOTE 2:

If the EAP requester(s) refuses to sign the agreement as written, OCALJ may consider edits submitted by the requester(s) that he or she believes will make the agreement acceptable. However, if OCALJ and the EAP requester are unable to reach agreement on the written statement after reasonable consideration, OCALJ must deny the EAP request.