I-4-0-10.Role of the Office of the General Counsel

Last Update: 6/26/23 (Transmittal I-4-91)

A. Preparation of Initial Response

The Office of the General Counsel (OGC) prepares the initial response to complaints filed in district court. In most cases, the certified administrative record (CAR) serves as the answer to the complaint. However, in some jurisdictions, the initial response consists of an answer to all of the allegations raised in the complaint and a copy of the CAR.

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 they may also be used if the plaintiff failed to exhaust administrative remedies; did not file the civil action within the time period prescribed 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 situation, a Court Case Preparation and Review Branch (CCPRB) in the Office of Appellate Operations prepares a memorandum asking OGC to seek remand. In a motion for dismissal situation, a CCPRB prepares a declaration for OGC in support of dismissal.

B. Preparation of Briefs

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, and they are filed by either an OGC attorney who has also been appointed as a Special Assistant United States Attorney, or an Assistant United States Attorney for the relevant jurisdiction.

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 United States Attorney (or one of their assistants) or an attorney from OGC will present oral argument for the Commissioner.