I-3-6-10.Effectuating Component Protests Prior Decision

Last Update: 4/1/16 (Transmittal I-3-135)

A. When Effectuating Components Will Protest a Decision

When an effectuating component believes an administrative law judge (ALJ) or Appeals Council (AC) decision is contrary to the law, regulations, or rulings, it will send a protest memorandum to the AC. These requests are typically handled by the Office of Appellate Operations (OAO) division that processes non-disability cases. Additionally, an effectuating component may submit a protest memorandum to the AC if, within 60 days of the decision, it receives new evidence that it believes may change the outcome of the decision. See generally Programs Operation Manual System GN 03103.260, GN 03104.400, DI 80830.075, and SI 04040.030.

B. Analyst Actions

1. Making a Recommendation

OAO immediately assigns protest cases to an analyst so, if appropriate, the AC can take own motion review within the regulatory 60-day timeframe in 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 timeframe, it may consider whether to reopen the decision under 20 CFR 404.987 and 416.1487. See also HALLEX I-3-9-1 B, I-3-9-20, and I-3-9-70.

Upon assignment of a protest case, the analyst will review the evidence of record and the decision, audit the hearing recording (as needed), and recommend whether the AC should take own motion review. The analyst will complete a case analysis in the Appeals Review Processing System and, if applicable, prepare the own motion notice described in HALLEX I-3-6-20.

NOTE 1:

When the AC initiates own motion review based on a protest, the AC must proffer the protest memorandum to the claimant and representative, if any (unless the AC intends to issue a fully favorable decision). See HALLEX I-3-6-20 and I-3-7-1.

NOTE 2:

When a protest memorandum concerns a technical or non-judgmental error in an ALJ decision, and correction of the error will result in a decision at least as favorable to the claimant as the existing decision, the analyst will consult with the branch chief if it appears the most appropriate action may be to request that the ALJ amend the decision.

2. Preparing a Response to the Effectuating Component

If the analyst is recommending the AC take own motion review and the request was submitted by a processing center or the Office of Disability Operations, the analyst will not prepare a response to the effectuating component. However, if the analyst is not recommending the AC take own motion review, the analyst will prepare a draft response to the effectuating component for the administrative appeals judge (AAJ) to review and sign. In the response, the analyst will clearly explain the AC's reasons for declining to take own motion review.

If a Regional Commissioner's Office submitted the protest, the analyst will prepare a response regardless of the proposed action, informing that office of any action the AC has taken or intends to take. Further, if action will be delayed, OAO branch staff will be responsible to provide status updates to the Regional Commissioner's Office at least every 90 days.

C. AC Actions

AAJs adjudicate all protest cases. When own motion review is recommended, the AAJ designated as the A member adjudicator will review the analyst's recommendation and any associated documents. The A member may return the case to the analyst for further analysis, revision, or preparation of a different action. If the A member agrees with the recommendation and accompanying documentation, he or she will forward the case to the B member for consideration. If both adjudicators agree with the action, staff will release the own motion notice and establish a 35-day diary for receipt of a response.

When the AC agrees own motion review is not appropriate, the AAJ will sign the response and staff will return the case to the effectuating component for processing.