I-4-5-15.Appeals Council Concludes that Continued Defense Is Warranted

Last Update: 8/12/16 (Transmittal I-4-54)

If the Appeals Council (AC) concludes that continued defense of a pending court case is warranted, despite the defensibility concerns raised by the Office of the General Counsel (OGC) and any additional defects noted by the analyst, the analyst will prepare a memorandum containing the AC's rationale for (1) concluding that good cause for remand does not exist and (2) continuing the defense of the case. The memorandum should be sent out over the branch chief's name, which will appear on the “From” line and below the text of the memorandum. This should be followed with a “By” line with the analyst's name, job title, and telephone number. The analyst will submit the case to the AC for final approval. If approved, the analyst will immediately release the memorandum to the appropriate OGC office in accordance with Hearings, Appeals and Litigation Law manual I-4-5-30.

If the administrative appeals judge disagrees with the analyst's conclusion to continue to defend the case, the case may be discussed with the branch chief and, if necessary, with the Division Chief Administration Appeals Judge. If the AC ultimately determines that the case will be defended, the analyst will advise OGC by telephone or e-mail of the conclusions reached and include the information in a confirming memorandum. The analyst will prepare a confirming memorandum which is responsive to all the issues raised in the memorandum from OGC.