I-2-4-10.Vacating an Order of Dismissal at the Request of a Claimant

Last Update: 2/7/14 (Transmittal I-2-104)

A. General

A claimant may request that an administrative law judge (ALJ) vacate a dismissal order within 60 days of the date of receiving the dismissal notice, unless the Appeals Council (AC) has jurisdiction. The AC has jurisdiction if the claimant has requested the AC review the order of dismissal or if the AC is reviewing the dismissal on its own motion. Subject to the timeframe and jurisdiction, an ALJ may vacate a dismissal order if the claimant shows the ALJ's dismissal of the request for hearing (RH) was erroneous.

NOTE:

If the claimant files a second request for hearing on the same application within 60 days, the ALJ will treat it as a request to vacate the prior dismissal.

A claimant may not submit both a request to the ALJ to vacate the order and a request to the AC asking it to review the dismissal order. If this occurs, the ALJ must take the action most favorable to the claimant. The ALJ will either:

  • Immediately notify the AC (via email to ¦¦¦ODAR OAO) if the ALJ intends to vacate the order, or

  • Respond in writing to the claimant indicating the ALJ will not review the request because the AC is reviewing the request, and associate a copy of the writing with the record.

B. Determining Whether to Vacate an Order of Dismissal

The regulations at 20 CFR 404.960 and 416.1460 require that when requesting that an ALJ vacate an order of dismissal, the claimant must state why the dismissal of the request for hearing was erroneous. To determine whether the dismissal was erroneous, the ALJ generally considers whether the claimant establishes a “good cause” reason to vacate the dismissal order. There are no set criteria for determining what constitutes good cause to vacate a dismissal order but the concepts in HALLEX I-2-0-60 and I-2-4-25 B-C will generally apply to vacate requests.

1. Good Cause Is Not Established

If the ALJ concludes that the claimant has not established a good cause reason to vacate the dismissal order, the ALJ will:

  • Inform the claimant, in writing, of the reasons for the conclusion;

  • Advise the claimant that the ALJ's refusal to vacate the dismissal order is not subject to review by the AC; and

  • Document the file by associating the claimant's request and a copy of the ALJ's letter to the claimant.

2. Good Cause Is Established

If the ALJ concludes that the claimant established a good cause reason to vacate the dismissal order, the ALJ will vacate the dismissal order, proceed with the actions necessary to complete the record, hold a hearing (if applicable), and issue a decision.

C. Preparing a Vacate Order

The Document Generation System (DGS) does not include a template for vacating a dismissal order. To prepare a vacate order, the user will select the “Blank Order” in the DGS Findings Integrated Templates Dismissal template.