I-2-9-70.Protests of Decisions
Last Update: 12/15/17 (Transmittal I-2-216)
A. When an Effectuating Component or Regional Commissioner's Office May Protest a Decision
When an effectuating component or Regional Commissioner's office (collectively, “protesting component”) believes an administrative law judge (ALJ) or an Appeals Council (AC) decision cannot be effectuated, it may refer the case to the AC. The Division of Quality in the Office of Appellate Operations (OAO) typically handles these requests (see generally Programs Operation Manual System (POMS) GN 03103.260, GN 03104.400, DI 80830.075, SI 04040.030, and SI 04030.060). The AC can take own motion review within 60-days of any decision or dismissal that is subject to its review (see 20 CFR 404.969 and 416.1469; see also Hearings, Appeals and Litigation Law (HALLEX) manual I-3-6-1). When the AC is unable to initiate own motion review within the 60-day time period, it may consider whether to reopen the decision (see 20 CFR 404.987 and 416.1487; see also HALLEX I-3-9-1, I-3-9-20, and I-3-9-70).
1. Protests for Typographical or Clerical Errors
In the limited situation where a decision contains a typographical or clerical error affecting the outcome of the claim, the protesting component may first try to obtain an amended decision from the ALJ rather than first contacting the AC. The following are examples of typographical or clerical errors:
The wrong year is shown for the established onset date that is inconsistent with other findings in the decision;
An incorrect application date is shown; or
A mathematical error, misapplication of benefit tables, etc., that resulted in an incorrect payment of a monthly benefit or an incorrect lump-sum death payment.
If the protesting component tries to resolve the issue with the hearing office, it will not also contact the AC. Contact with the AC is only appropriate after it has been determined that the hearing office cannot resolve the issue. If the protesting component staff requests an amended decision from the hearing office, he or she will contact the Hearing Office Director (HOD) directly, rather than the ALJ, and advise the HOD whether a title XVI decision is involved. The HOD will then advise the ALJ of the error and request an amended decision. If an amended decision is not issued within 15 days, protesting component staff will contact the HOD for a status update. If the ALJ is opposed to issuing an amended decision, the protesting component will prepare a protest memorandum following the format in POMS (see SI 04030.060C and DI 42010.065) to submit to the AC (see B below).
2. Protests for Other Reasons
A protesting component must refer a claim(s) directly to the AC for any of these following reasons:
The decision is clearly contrary to the Social Security Act (Act), the regulations, or a published ruling;
The decision is vague, ambiguous, internally inconsistent, or otherwise does not resolve the issue(s) under dispute;
A material factor pertinent to the issue(s) before the ALJ was clearly not considered in the decision; or
Additional evidence is received that may affect the outcome of the claim or indicates that further action is required.
B. Procedures for Protesting a Decision with the AC
The AC has 60 days from the date that the decision was issued (not the date of the protest memorandum) to commence own motion review. Therefore, the protesting component must refer all protests of decisions as soon as possible.
The AC adheres strictly to the 60-day time period for own motion review. When the last day for taking own motion review falls on a Saturday, Sunday, legal holiday, or on any other day declared a non-work day (for any reason), the AC will not extend the deadline for taking own motion review to the next business day.
2. Protest Memorandum and Email to the AC
If the protesting component determines that it is appropriate to protest a decision to the AC, staff will prepare a protest memorandum (see also POMS DI 80830.075) and follow the format as instructed in POMS (see SI 04030.060C and DI 42010.065). The protesting component will also upload the protest memorandum to section B of eView, if available, using document type 2095-Protest Memo, regardless of whether the claim(s) file is officially a Certified Electronic Folder (CEF). If it is a paper claim(s) file, the protesting component will always add the memorandum to the paper claim(s) file. It must also email the memorandum to ^DCARO OAO Protest Cases.
Do not copy the hearing office (HO) on the email notifying OAO of the protest, because it does not have jurisdiction to issue an amended decision once the component forwards a protest to the AC. If the HO becomes aware that a protest memorandum has been sent to the AC, no action should be taken by the HO.
The email to the AC must include the protest memorandum as an attachment and must contain in the body of the email:
The name and social security number (SSN) of the claimant;
Any cross-reference number(s);
The date of the ALJ or AC decision;
A statement indicating whether the “sender is protesting the ALJ decision or an AC decision”;
The UPS tracking number of any paper claim(s) file and any relevant hearing recording sent to the AC; and
Any other relevant information (see POMS DI 80830.075).
3. Paper Claim(s) File
If the claim(s) file is paper, the protesting component will immediately forward via UPS two-day delivery the claim(s) file and any relevant hearing recording(s) to the address below:OAO QRB 1
5107 Leesburg Pike
Falls Church, VA 22041
DO NOT OPEN IN MAILROOM
The protesting component will also notify the AC by sending an email to ^DCARO OAO Protest Cases with the information noted above and attaching a copy of the protest memorandum.