I-4-0-10.Roles of the Office of the General Counsel and United States Attorney

Last Update: 1/13/17 (Transmittal I-4-61)

A. Preparation of Initial Response

The Office of the General Counsel (OGC) prepares the initial response to complaints filed in district court. The initial response usually consists of an answer to all of the allegations raised in the complaint and a copy of the certified administrative record (CAR).

However, an initial response may take the form of a motion to remand (pursuant to either sentence four or sentence six of section 205(g) of the Social Security Act) or a motion to dismiss the complaint. Dismissal requests are usually filed because the court lacks subject matter jurisdiction to hear the case, but may be used if the plaintiff failed to exhaust administrative remedies; untimely filed the civil action and did not obtain an extension of time to file a civil action from the Appeals Council; or res judicata applies. In a motion for remand or dismissal situation, the Court Case Preparation and Review Branch prepares a memorandum seeking remand.

In some jurisdictions, OGC forwards the suggested initial response to the U.S. Attorney in the district court's jurisdiction for filing with the court. In other jurisdictions, the Department of Justice has sworn in certain OGC attorneys to act as Special Assistant United States Attorneys (SAUSAs) and SAUSAs will file these responses under their own names and from their own offices.

B. Preparation of Briefs and Other Filings

Following the Commissioner's initial response to the complaint, the next step is usually to file a motion for summary judgment and an accompanying brief. OGC attorneys prepare these materials. Each office handles specific jurisdictions. For the jurisdictional assignments of each OGC regional office and headquarters, see Hearings, Appeals and Litigation Law manual I-4-0-20.

OGC sends its finished brief to either the appropriate U.S. Attorney's Office for filing with the court, or, if the OGC attorney is an SAUSA, directly to the court for filing under his or her own name. The U.S. Attorney will contact OGC if he or she sees any problems with the brief.

C. Oral Argument

Although most district courts decide Social Security cases solely based on the CAR, motions, and briefs, some judges and magistrate judges also hold oral arguments. In these districts, the U.S. Attorney (or one of his or her assistants) or an attorney from OGC will present oral argument for the Commissioner.