I-1-1-52.Hearing on the Charges

Last Update: 3/29/13 (Transmittal I-1-63)

Citations:

A. In General

A hearing on charges seeking the suspension or disqualification of a representative is an adversarial action conducted under the rules and procedures set forth in the regulations. The Office of the General Counsel (OGC) may request that a hearing be scheduled if OGC does not take action to withdraw charges within 15 days after the date the representative files an answer. 20 CFR 404.1765(a) and 416.1565(a). The parties to the hearing are OGC on behalf of SSA and the representative against whom charges were made.

The hearing officer will make every possible attempt to hold a hearing and issue a decision within 120 days of receipt of a request for a hearing.

B. Hearing Officer

1. Designating a Hearing Officer

Upon receipt of a request for a hearing, the Office of the Chief Administrative Law Judge (OCALJ) will assign an administrative law judge (ALJ) to act as a hearing officer and conduct the hearing proceedings. Whenever possible, OCALJ will assign a hearing officer who is located outside the Office of Disability Adjudication and Review (ODAR) region where the representative practices.

OCALJ will send the assignment in writing to the hearing officer, but will not copy either party. The hearing officer must recuse himself or herself at that time if he or she is prejudiced or partial about any party, or has any interest in the matter. 20 CFR 404.1765(b)(2) and 416.1565(b)(2). If the hearing officer recuses himself or herself, OCALJ will designate another hearing officer to conduct the proceedings.

2. Notifying Parties of the Designation

Once designated, the hearing officer will:

  • Serve a copy of the formal designation as hearing officer on OGC and the representative against whom charges were made via certified mail to their last known addresses or by personal service.

  • Contact the ODAR regional office (RO) where the representational activities occurred. The RO will designate a hearing office (HO) management team to assist with obtaining space for the hearing, retaining a court reporter, and making any other necessary arrangements. The hearing officer may conduct all or any part of the hearing by video teleconferencing or telephone.

  • Avoid possible ex parte communications. An ex parte communication is direct communication by the hearing officer with either party outside the presence of the other party. An uninvolved staff member must handle any communication with either party that occurs outside the presence of the other party.

3. Objections to the Designated Hearing Officer by Either Party

Either party may object to the hearing officer named to hold the hearing and must notify the hearing officer of any objection at the earliest opportunity. The hearing officer will consider the objection and decide whether to proceed with the hearing or withdraw. If the hearing officer withdraws, he or she must notify both parties and OCALJ. OCALJ will then assign a different ALJ to act as a hearing officer. If the hearing officer does not withdraw, the person objecting may later present the objection to the Appeals Council (AC) if he or she is dissatisfied with the hearing officer's decision. 20 CFR 404.1765(b) and 416.1565(b).

C. Prior to Hearing

1. Right to Representation

The person charged may be represented by an attorney or other representative. 20 CFR 404.1765(l) and 416.1565(l). The hearing officer will recognize the appointment if the record clearly indicates that both the charged person and the identified representative agree to the appointment. Generally, the appointment should be in the form of a writing that is associated with the official record.

One or more attorneys from OGC may represent SSA at the hearing. 20 CFR 404.1765(l) and 416.1565(l).

2. Setting the Time and Place of the Hearing

The hearing officer sets the time and place of the hearing and will mail the parties and the appointed representative, if any, a written notice of the hearing at least 20 days before the date set for the hearing. 20 CFR 404.1765(c) and 416.1565(c). The notice of hearing will be served on both parties via certified mail at their last known addresses or by personal service. The notice will inform both parties of the date, time, manner, and location of the hearing and will include requirements and instructions for filing motions, requesting witnesses, and entering exhibits.

The hearing officer may change the time and place of the hearing on his or her own initiative or at the request of either party, but must give both parties reasonable notice of the change. 20 CFR 404.1765(d) and 416.1565(d).

Only the parties and any persons the hearing officer or the parties consider necessary or proper may attend the hearing. The hearing is not open to the public. 20 CFR 404.1765(g) and 416.1565(g).

3. Issuing Subpoenas

Either party may ask the hearing officer to issue subpoenas for the attendance and testimony of witnesses and for the production of books, records, correspondence, papers, or other documents that are material to any matter being considered at the hearing. The hearing officer may also issue subpoenas on his or her own initiative, when necessary for the full presentation of the facts.

The individual requesting a subpoena must submit a written request at least five days before the date set for the hearing. The request must state the name of the individual(s) or the document(s) to be produced and describe the address or location in sufficient detail to find the witness(es) or document(s). The request should also include what material fact(s) the individual expects to establish by the witness(es) or document(s) and why the fact(s) cannot be established with other evidence. The fee and mileage costs of any subpoenaed witness(es) are reimbursable. 20 CFR 404.1765(f) and 416.1565(f).

4. Filings and Motions

The hearing officer rules on all prehearing filings or motions. On receipt of any filing or motion, the hearing officer should ensure that the filing or motion includes a certificate of service showing the filing was sent to the opposing party. Filings or motions may be submitted by mail or facsimile.

The date of filing is the date the filing or motion is mailed or the date the facsimile is received.

D. Hearing Procedures

1. Record of Hearing

The hearing officer must ensure that there is a complete record of the hearing proceedings. The hearing officer will engage the services of a reliable court reporting service that can produce written transcripts and use HO digital recording equipment. For more information about the digital recording process, see Hearings, Appeals and Litigation Law (HALLEX) manual I-2-6-40.

Following the hearing, the hearing officer will obtain one original certified transcript of the oral proceedings for the record. On request, the hearing officer will also send copies to the parties, upon payment for the cost of the transcript, unless payment is waived for good cause. 20 CFR 404.1765(o) and 416.1565(o).

2. Opening Statement

The hearing officer will open the hearing with a brief statement introducing himself or herself and explaining how the hearing will be conducted, the procedural history of the case, and the issues involved. While the content and format of the statement are discretionary, the following information must be included in an opening statement:

  • State the charged individual's name, docket number, and the time and place of the hearing.

  • Explain that the proceedings are being recorded.

  • Cite the regulatory authority for conducting the proceedings.

  • Introduce anyone in the room who will be assisting during the hearing.

  • Identify any other person present, including the parties. If necessary, explain the person's reason for attending.

  • Explain if there are any limitations on the evidence being considered.

  • Note that any testimony will be taken under oath or affirmation.

  • Read into the record the procedural history of the case.

  • State the issue(s) to be decided.

3. Oath or Affirmation

All witness testimony will be made under oath or affirmation and refusal to do so must be noted on the record. To administer an oath or affirmation, the hearing officer will ask all witnesses to raise the right hand and ask:

Do you solemnly swear (or affirm) that the testimony you are about to give at this proceeding shall be the truth, and nothing but the truth, under penalty of perjury?

4. Evidence

The hearing officer will regulate the conduct of the hearing and decide the order in which the parties will present evidence. The hearing officer will inquire fully into the matter(s) at issue, and hear testimony and argument.

Unless the representative did not file a response to the charges, the hearing officer will accept into evidence any documentary items that are relevant, material, and not repetitious.

If the charged representative did not file an answer to the charges, he or she has no right to present evidence at the hearing. In that case, the hearing officer may make or recommend a decision based on the existing record, or permit the charged representative to submit a statement about the sufficiency of the evidence or the validity of the proceedings. 20 CFR 404.1765(g) and 416.1565(g).

The hearing officer may accept evidence even though it may not be admissible under the rules of evidence that apply in the federal courts.

5. Witnesses

Witnesses who testify must do so under oath or affirmation. Both parties may question the witnesses. The hearing officer may also ask questions, when necessary, and shall rule on any objection raised by either party about whether a question is proper. 20 CFR 404.1765(i) and 416.1565(i).

When appropriate, the hearing officer may decide not to allow witnesses to attend or listen to other testimony given at the hearing and may require that a witness be present in the hearing room only when giving his or her testimony.

6. Oral and Written Summation

The hearing officer must give the parties a reasonable time to present oral summation. The hearing officer must also provide reasonable time to file briefs or other written statements about proposed findings of fact and conclusions of law when either party requests it. 20 CFR 404.1765(j) and 416.1565(j).

7. Closed Record and Reopening the Hearing for Receipt of Additional Evidence

Unless additional time is provided to submit written summation, the hearing officer closes the record at the end of the hearing.

However, the hearing officer may reopen the hearing to accept additional evidence any time before mailing the decision, unless the party who wishes to present the evidence is a charged representative who did not file an answer to the charges. 20 CFR 404.1765(g) and 416.1565(g). The hearing officer will only reopen if the evidence is material to an issue before the hearing officer and the evidence was not available for presentation at the time of the hearing.

E. Failure to Appear at the Hearing

If, after due notice, one of the parties does not appear at the scheduled hearing, the hearing officer may continue with the hearing so that the party present may offer evidence to sustain or rebut the charges.

NOTE:

As explained in HALLEX I-1-1-52 C.2. in this section, due notice has been given if the hearing officer served the parties with a written notice of hearing at their last known addresses at least 20 days before the date of the scheduled hearing.

The hearing officer will give the party who failed to appear an opportunity to show good cause for not appearing at the time and place of the hearing.

  • If the party establishes good cause, the hearing officer may conduct a supplemental hearing.

  • If the party does not establish good cause, the party is deemed to have waived the right to be present at the hearing.

NOTE:

Regardless of the finding as to good cause, the hearing officer must issue a decision. A dismissal based on failure to appear is never appropriate when the issue is a possible violation of the rules of conduct or standards of responsibility for representatives.

F. Hearing Officer Decision

1. Dismissals

Dismissals are generally not appropriate. However, the hearing officer may dismiss the charges in the event of the death of the representative. 20 CFR 404.1765(n) and 416.1565(n).

2. Making the Decision

If the hearing officer determines that OGC proved the charges by a preponderance of the evidence, he or she will either:

  • suspend the representative from further practice before SSA for a specified period of not less than one year and not more than five years from the date of the decision; or

  • disqualify the representative from further practice before SSA.

Disqualification is the sole sanction available if the hearing officer finds that the representative:

  • has been, for reasons of misconduct, disbarred or suspended from any court or bar to which the representative was previously admitted to practice;

  • has been, for reasons of misconduct, disqualified from participating in or appearing before any Federal program or Federal agency; or

  • has collected or received, and retains, a fee for representational services in excess of the amount authorized.

NOTE 1:

The hearing officer must never impose a suspension when disqualification is the sole sanction available. HALLEX I-1-1-40.

NOTE 2:

If charges were brought because an individual was disbarred or suspended by a court or bar, or disqualified from participating in or appearing before any Federal program or Federal agency, the hearing officer must consider the reasons for the disbarment, suspension, or disqualification. If the action was taken solely for administrative reasons (e.g., failure to pay dues or to complete continuing legal education requirements), that reason alone will not disqualify the person from appearing as a representative before SSA. However, an administrative action taken in lieu of disciplinary proceedings (e.g., acceptance of a voluntary resignation pending disciplinary action) is subject to SSA sanction.

Although the hearing officer must consider whether the disbarment, suspension or disqualification was based on misconduct, the hearing officer must not reexamine or revise the factual or legal conclusion(s) that led to the action. 20 CFR 404.1770(a)(2) and 416.1570(a)(2).

3. Writing the Decision

The hearing officer will issue a written decision containing findings of fact and conclusions of law based on the evidence of record. The hearing officer will mail the decision to both parties with a cover letter. The letter attached to the hearing officer's decision will inform the parties of the right to appeal and direct the parties to file the request for review in writing with the Deputy Chair of the AC within 30 days from the date the hearing officer mailed the decision. The appeal address is:

Social Security Administration

Office of Appellate Operations

Office of the Executive Director

Attn: Representative Sanction Staff

DO NOT OPEN IN MAILROOM

5107 Leesburg Pike, Suite 1400

Falls Church, VA 22041-3255

While the content of the decision will generally be at the discretion of the hearing officer, the decision must include:

  • The names of the parties and the docket number.

  • A statement of the hearing officer's jurisdiction.

  • The procedural history of the case.

  • A brief summary of the issues before the hearing officer.

  • The applicable law and regulations.

  • The background and facts of the case, including the complaint and statement of the charges.

  • An evaluation of the evidence.

  • The findings of fact and conclusions of law.

  • The ultimate decision of the hearing officer.

  • The right to appeal.

  • The signature of the hearing officer.

4. Effect of Decision

The hearing officer's decision is final and binding unless, within 30 days of the date the hearing officer mailed the decision, one of the parties asks the AC to review the decision and the AC reverses or modifies the decision on review. 20 CFR 404.1770(b)(1) and 416.1570(b)(1).

NOTE:

If the AC grants review, the representative may continue to represent claimants until the AC issues a final decision on the matter.

5. Sending the File to the AC

The AC stores all hearing officer files for representative sanction actions. Since either party may appeal, hearing officer files must be available even when the representative is not sanctioned. Further, the AC reviews all requests for reinstatement, and the file is often necessary for that purpose.

After a decision is issued, the hearing officer will send the file to:

Social Security Administration
Office of Appellate Operations
Office of the Executive Director
Attn: Representative Sanction Staff
DO NOT OPEN IN MAILROOM
5107 Leesburg Pike, Suite 1400
Falls Church, VA 22041-3255