I-3-9-10.Protest Cases

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

A. General

As noted in I-3-1-40, if effectuating components believe a decision is contrary to the law, regulations, or rulings, they may forward an ALJ or Appeals Council decision to the Director of Operations, Office of Appellate Operations (OAO), for further consideration. Effectuating components may also forward cases if they receive additional evidence which requires further action on a case. The Director's office controls and distributes these cases to the appropriate OAO branch.

B. Consideration of Reopening Current Decision

If after review of the record and a complete recording audit, a recommendation for reopening by the Appeals Council is appropriate, the analyst must prepare for the Appeals Council's consideration Forms HA-52 and HA-52A (Disability Case Fact Sheet and Disability Case Analysis and Recommendation) or computerized disability fact sheet and a reopening notice to the claimant/representative advising them of the reasons for reopening and of their rights.

If the Appeals Council assumes jurisdiction, the Council will proffer the protest memorandum to the claimant and representative (see I-3-1-40, Workup of Case by Analyst — Bureau Protest Cases Consideration of Own Motion Review, and I-3-6-54, Proffer of Protest Memorandum).

C. Reopening Current Decision not Warranted

If after review of the record and a complete recording audit, a recommendation for reopening by the Appeals Council is not appropriate, the analyst must prepare for the Appeals Council's consideration Forms HA-52 and HA-52A (Disability Case Fact Sheet and Disability Case Analysis and Recommendation) or computerized disability fact sheet and a draft response to the protesting component for the signature of the Administrative Appeals Judge (AAJ).

D. Protest Requests Reopening a Prior Determination or Decision

When the protest memorandum asks the Appeals Council to consider reopening a prior determination or decision, the analyst will review the case to the extent necessary to determine that reopening is permitted under the rules of administrative finality and:

  1. if the prior decision was issued by the Appeals Council, prepare an appropriate recommendation for Council action;

  2. if the prior decision was issued by an ALJ, or an initial or reconsidered determination is to be reopened, prepare an appropriate referral to the ALJ who issued the current hearing decision on the case. The referral will advise the ALJ to forward the file to the effectuating component if the ALJ reopens the prior decision or determination, or to return the file to OAO if the ALJ does not reopen.

NOTE:

POMS DI 42010.025 permits effectuating components, when effectuating ALJ or Appeals Council decisions, to reopen and revise prior unappealed initial or reconsidered determinations. Accordingly, protests in such situations should be returned to the effectuating component citing the above reference and indicating that they have jurisdiction to reopen and revise the prior determination.

E. Protest Replies

See I-3-1-40 F. for information regarding protest replies.