I-3-6-10.Protests of a Prior Decision
Last Update: 9/27/22 (Transmittal I-3-191)
A. Protesting a Decision to the Appeals Council
1. When an Effectuating Component or Regional Commissioner's Office May Protest a Decision
When title II effectuating components (i.e., processing centers) or Regional Commissioners' offices, which handle all title XVI referrals, (collectively, “protesting components”) believe an administrative law judge (ALJ) or an Appeals Council (AC) decision cannot be effectuated, they may refer the case to the AC. The Division of Quality Review in the Office of Appellate Operations (OAO) handles these requests (see generally Program Operations Manual System (POMS) DI 42010.065, DI 42010.070, DI 42010.075, DI 42010.080, DI 80830.075, GN 03103.260, SI 04040.030, and SI 04030.060).
A protesting component may refer a claim(s) to the AC for any of the following reasons:
The decision contains a typographical or clerical error affecting the outcome of the claim(s) (see Hearings, Appeals, and Litigation Law (HALLEX) manual I-2-9-70 A.1.);
The decision is clearly contrary to the Social Security 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 or AC was clearly not considered in the decision; or
The agency received additional evidence that may affect the outcome of the claim or indicates that further action is required.
2. Authority of Appeals Council
The AC may 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 HALLEX I-3-6-1). The AC adheres strictly to the 60-day time period for own-motion review. If the last day for taking own-motion review falls on a Saturday, Sunday, legal holiday, or on any other day declared a non-workday (for any reason), the AC will not extend the deadline for taking own-motion review. 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 and I-3-9-20).
B. Initial Staff Actions
OAO staff coordinating the protest workload will check the ^DCARO OAO Protest Cases mailbox daily for protests of decisions. OAO staff will check that an email contains the information as described in HALLEX I-2-9-70 B. Staff will also check that the protest memorandum follows the format in POMS DI 42010.070, DI 42010.080, and SI 04030.060. Staff will upload the protest memorandum to section “B” of eView, if available, regardless of whether the claim(s) file is electronic. If it is a paper claim(s), staff will make sure the protest memorandum is included with the paper claim(s) file. OAO staff will respond to emails requesting additional information as needed.
Upon receipt of the request and protest memorandum, OAO staff will establish a control in the Appeals Review Processing System (ARPS). In ARPS, OAO staff will:
Identify the “Workload Type” as “Bureau Protest (BP)”;
Input as the “Request Date” the date of the most recent ALJ or AC decision, or the initial determination notice if the claim(s) is outside of the own-motion period; and
Input the “Received Date” as the date the protest memorandum was received by OAO, based on the date of the email notification or the date stamp for a paper claim(s) file received through the mail.
C. Analyst Actions
OAO staff coordinating the protest workload will immediately assign protest cases to an analyst. The analyst will review the protest memorandum, the evidence of record, and the decision, and audit any relevant hearing recording(s). The analyst will then recommend appropriate AC action. The analyst may recommend the AC take own-motion review within the regulatory 60-day time period to issue a decision or remand a case (see HALLEX I-3-6-1), reopen or revise the decision (see HALLEX I-3-9-1 B, I-3-9-20, and I-3-9-70), or decline the protest.
The analyst will complete a case analysis in ARPS and prepare all the relevant documents.
When the AC initiates own-motion review based on a protest and plans to issue a less than fully favorable decision or to dismiss the request for hearing, the AC must proffer the protest memorandum to the claimant and representative, if any (see HALLEX I-3-6-20 and I-3-7-1). However, the AC does not need to proffer the protest memorandum when it issues a fully favorable decision. Moreover, when the AC initiates own-motion review, the AC may proffer the protest memorandum with its final action when it remands a case for further proceedings or issues a decision that is favorable in part and remands the remaining issues for further proceedings.
OAO staff or analysts will ensure that the claim(s) file contains all relevant documentation including the protest memorandum, any correspondence, any notices, and any action document (e.g., any separate notice of review, declination of protest memorandum, remand order, and decision).
If there is an associated paper claim(s) file, the analyst will also create an Appeals Folder (AF). The AF must include the protest memorandum, the most recent ALJ or AC decision, and any other relevant documentation used to make the recommendation.
The analyst will also enter any “To Do Item(s)” and “Remark(s)” in ARPS and annotate eView regarding any documents that need to be proffered.
D. Adjudicator Actions
Administrative appeals judges (AAJ) adjudicate all protest cases. When an analyst recommends own-motion review or reopening, the AAJ designated as the A member adjudicator will review the analyst's recommendation and any associated document(s). If the A member agrees with the recommendation and the proposed action, the A member will forward the case to the AAJ designated as the B member for consideration. If both adjudicators agree with the action, they will sign the action document, and staff will release it. If the AC issues a separate notice of review, OAO staff will establish a 35-day diary for receipt of a response.
When own-motion review or reopening is not appropriate, one AAJ will sign the declination of protest memorandum. The declination of protest memorandum will clearly explain the reasons for declining to take own-motion review or to reopen. OAO staff will include the declination of protest memorandum in the “B” section of the electronic file or paper claim(s) file.
E. Response to the Protesting Component
OAO staff will notify the protesting component by email of the AC's decision to decline, reopen, or take own-motion review.