I-3-7-20.Remand after Appeals Council Vacates Dismissal of Request for Hearing

Last Update: 9/08/05 (Transmittal I-3-36)

A. General

When the Appeals Council vacates an ALJ's dismissal of a request for hearing under 20 CFR 404.960 and/or 416.1460, it will generally remand the case to an ALJ for necessary action on the request for hearing.

B. How Case Comes Before the Appeals Council

  1. The claimant may request review of an ALJ's dismissal action (20 CFR 404.967 and 416.1467).

  2. The Appeals Council may assume jurisdiction on its own motion, within 60 days after the notice of dismissal is mailed (20 CFR 404.969 and 416.1469).

    EXAMPLE:

    ALJ dismissed on the basis that no reconsidered determination had been made, and the Appeals Council receives information that a reconsidered determination had in fact been made.

  3. The claimant, within 60 days after the date of receipt of the dismissal notice, may request the Appeals Council (or the ALJ) to vacate the dismissal (20 CFR 404.960 and 416.1460).

C. Appeals Council Actions—General

  1. The Appeals Council must take formal action on a request for review of an ALJ's dismissal or a request that the Council vacate an ALJ's dismissal. The effect of either type of request is the same. The Council will either (1) deny the request or (2) grant the request, vacate the dismissal, and remand the case to the ALJ.

    If the claimant requested the ALJ to vacate the dismissal, and did not file a similar request or a request for review with the Council, the Appeals Council will return the case to the ALJ at the ALJ's request.

  2. The analyst will recommend vacating the ALJ's dismissal if the evidence, including any current evidence or statements submitted, shows that the dismissal action is not proper and that the claimant should receive a hearing on the basis of the original request for hearing.