I-4-4-12.Preliminary Consideration of Exceptions

Last Update: 9/13/05 (Transmittal I-4-15)

A. No Exceptions Received

If no exceptions have been filed within 90 days on a sentence 6 remand, CCPRB must check to see whether the HO used the correct cover notice. If the correct cover notice was not used, the CCPRB must prepare and release a correcting notice (see II-6-11-9 CCOR 30 for sample letter). If the CCPRB does not receive exceptions within 20 days after release of the correcting notice, it will prepare the CAR or supplemental CAR. If no exceptions have been filed within 90 days on a sentence 4 remand case, CCPRB must check to see whether the HO used the Schaefer cover notice, which provides: (1) 30 days for filing “exceptions” to the hearing decision, rather than 60 days for filing a request for review (see 20 CFR § 404.984(b) and § 416.1484(b)) and (2) information about filing a new civil action in those cases where exceptions will not be filed with the AC. If the Schaefer cover letter was not used, the CCPRB must (1) contact the claimant's representative to determine whether exceptions were filed and, if not, (2) prepare and release a correcting notice (see II-6-11-8 (CCOR 20)) for sample letter). These cases must be held for 9 months for notice of a new civil action.

B. Claimant Requests Additional Time to Submit Exceptions

  1. If the claimant requests no more than 30 additional days to file written exceptions and submits the request within 30 days of the date of receipt of the ALJ decision, the CCPRB technician will grant the request (see Document Generation System (DGS) letter CCOR 10 at II-6-11-1). The date of receipt is presumed to be five days after the date of the notice of the decision, unless the: (1) fifth day is a Sunday, a Federal non-workday or a day when the mail is not normally delivered or (2) the claimant can show that he or she did not receive it within the five-day period because of a natural disaster (e.g., earth­quake, flood, hurricane), state of emergency suspending mail delivery, or other cause, including delay or misrouting of the mail by the U.S. Postal Service, etc.

    NOTE:

    During all phases of processing court cases, including the above, we will use time computation methods based on the methods used by the courts. The preceding is an adaptation of the method used to determine the 65 day period for filing a timely civil action which consists of two calcula­tions. The five day period for presumed receipt is determined first. The period begins on the day after the date when the notice is mailed (as determined by the date on the notice/decision) and continues for five days. If the fifth day is a Federal non-workday (a Sunday or Federal holi­day), the period for presumed receipt ends on the first regular mail deliv­ery day thereafter (usually a Monday). Although not directly relevant here, the 60 day period for filing a civil action is similarly calculated.

  2. If the claimant timely requests more than 30 additional days to file written exceptions, the case will be assigned to a CCPRB analyst who will contact the AAJ to discuss the request.

    • If the AAJ decides to grant an extension of more than 30 days, use DGS letter CCOR 10 (see II-6-11-1).

    • If the AAJ decides not to grant an extension of more than 30 days, prepare a letter for the AAJ's signature explaining why the Council is denying the request for the addi­tional time beyond 30 days (see DGS letter CCOR 12 at II-6-11-3).

  3. If the claimant's request for additional time to submit exceptions does not appear to have been filed timely, i.e., within 30 days of the date of receipt of the ALJ decision, we will provide the claimant with the opportunity to establish that the request was actually filed within the 30 day period. If the claimant cannot establish that the request was filed timely, the AC will not assume jurisdiction based on 20 CFR § 404.984(b) or § 416.1484(b) of the regulations.

  4. If the request for additional time to submit exceptions does not appear to have been filed timely, the CCPRB staff will prepare a letter advising the claimant that he or she must establish that the request was filed within 30 days of the date of receipt of the ALJ's decision (see DGS letters, CCOR 13A or CCOR 13B at II-6-11-4 and II-6-11-5, respectively).

  5. If the response indicates that the claimant filed the request timely, i.e., within 30 days of the date of receipt of the ALJ's decision, the CCPRB technician will transfer the case to the appropriate OAO Branch for consideration of the exceptions by the AC. If the response does not establish timely filing or the claimant does not respond, the case will be assigned to a CCPRB analyst who will prepare an appropriate letter for a sentence 4 or sentence 6 remand case for the AAJ's signature (see DGS letters, CDEN 20A and CDEN 20B at II-6-8-1 and II-6-8-2, respectively). When the letter is signed by the AAJ and released, the CCPRB will prepare the CAR or supplemental CAR in a sentence 6 case. In sentence 4 cases, the CF and AF are forwarded to the OAO Mega-site for retention.

C. Claimant Submits Untimely Exceptions

If the claimant does not appear to have filed timely exceptions, i.e., within 30 days of receipt of the ALJ's decision, we will provide the claimant an opportunity to establish that the excep­tions were actually filed within the 30 day period (see the example in I-4-4-12 B.3. above and DGS letters, CCOR 13A and CCOR 13B at II-6-11-4 and II-6-11-5, respectively). The date of receipt is presumed to be five days after the date on the notice of decision unless the claimant can show that it was not received within that time period. If the claimant cannot establish that exceptions were timely filed, the AC will not assume jurisdiction based on 20 CFR § 404.984(b) or § 416.1484(b). Follow the procedures outlined above when a request for an extension of time to file exceptions is untimely (see DGS letters, CDEN 20A and CDEN 20B at II-6-8-1 and II-6-8-2, respectively).