I-1-1-55.Request for Review Before the Appeals Council

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

Citations:

A. In General

Within 30 days of the date the hearing officer mailed the decision, one of the parties may ask the Appeals Council (AC) to review the decision. The party requesting review must certify that a copy of the request and any submitted documentation was mailed to the opposing party.

Immediate action by the AC is required since a representative may continue to represent claimants until a final decision is issued. Absent unusual circumstances, the AC processing goal in representative sanction cases is 150 days or less.

Since the proceedings are adversarial in nature, direct communication between either party and the AC outside the presence of the other party is not appropriate. To avoid ex parte communication, any necessary communication between either party and the AC is handled through the Executive Director's Office (EDO) in the Office of Appellate Operations (OAO). Likewise, any necessary AC communication with the hearing officer who issued the decision is sent through the EDO.

When the AC issues a decision, any period of suspension or disqualification the AC may impose is effective from the date of the AC's decision.

B. Receipt of a Request for Review

The EDO receives and tracks requests for review of representative sanction actions. However, requests may be misdirected if a sanctioned or disqualified individual requests review on a Form HA-520 (Request for Review of Hearing Decision/Order) or other writing and does not include any supporting documentation that indicates the request for review involves a representative sanction action. If a request for review is erroneously directed to an OAO branch, the branch will immediately redirect the request to the EDO. Representative sanction cases do not appear in the Appeals Review Processing System.

The EDO will immediately assign a three-member panel from the AC, with a Division Chief Administrative Appeals Judge (DCAAJ) serving as the A member of the panel. When necessary for timely processing, and to avoid the appearance of ex parte communication, the EDO may enlist the assistance of designated individuals in OAO branches to assist with processing representative sanction actions.

C. Dismissing a Request for Review

The AC may dismiss a request for review in a representative sanction action in the following circumstances:

  • the party who filed the request for review asks the AC, in writing, to dismiss the request, and the other party does not object;

  • the party against whom charges were brought dies; or

  • the party requesting review failed to file the request within 30 days, and the AC does not find good cause for extending the filing period.

All three panel members are required to sign a dismissal action. 20 CFR 404.1776 and 416.1576.

D. Granting a Request for Review

The AC grants review by notifying both parties in writing that review has been granted. Only the A member (or designee if the A member is unavailable) need sign the grant review letter, but it must:

  • Cite the regulatory authority for granting review.

  • Instruct that all material should be submitted to the attention of the EDO and must be served on the opposing party.

  • Provide the appellant 30 days to submit a brief or other written statement as to the facts and law.

  • Provide the appellee the opportunity to submit a brief or other written statement within 30 days of the date of service of the appellant's brief or 60 days from the date of the letter granting review, whichever is less.

  • Provide the appellant an additional 20 days to reply if the appellant timely submitted a brief or other written statement and the appellee responded with a brief or written statement.

  • Notify the appellant that, within 30 days of the date of the letter, he or she may request an appearance before the AC to present oral argument.

  • Inform both parties that extensions of time to file briefs or other written statements will generally not be considered, but when necessary, must be submitted within 14 days of the letter granting review.

NOTE:

If the party requesting review failed to file the request within 30 days, the AC considers whether there was good cause for extending the filing period. When good cause is established, the AC will follow the procedures in this section. While not prohibited, it is not necessary to specifically address a good cause finding for an untimely filing in the grant review letter.

E. Standard of Review

The AC will affirm the hearing officer's decision if the action, findings, or conclusions are supported by substantial evidence. If the hearing officer's decision is not supported by substantial evidence, the AC will either:

  • reverse or modify the hearing officer's decision; or

  • return the case to the hearing officer for further proceedings.

F. Additional Evidence

Generally, the AC will not consider evidence in addition to that introduced at the hearing. However, the AC may permit additional evidence if it is material to an issue before the AC and the individual charged filed an answer to the charges. The burden is on the party to produce the evidence. If the representative did not submit an answer to the charges, the AC will not permit the introduction of evidence not considered at the hearing.

Before additional evidence is considered, the AC will mail a notice to the parties to inform them that additional evidence has been submitted. The AC must provide a reasonable opportunity for the parties to comment on the evidence and present any other evidence that is material to an issue it is considering. The AC will consider the additional evidence with the entirety of the record using the substantial evidence standard.

G. Oral Argument Proceeding

Either party may ask to appear before the AC to present oral argument. The designated AC panel may not deny a request for oral argument unless the request is not submitted within the time frame designated by the AC to request oral argument. The oral argument may be conducted in person, via video teleconferencing, or by telephone. The A member of the panel is designated as the chair to conduct the proceeding.

1. Time and Place of the Proceeding

The AC panel is ultimately responsible for setting the time and place for oral argument, and the panel will coordinate with the EDO to schedule the proceeding. However, the EDO will usually telephone both parties before scheduling the proceeding to assess availability and determine whether the parties will attend in person, via video teleconferencing, or by telephone. Once the time and place is set, the EDO will send both parties written notice of the time and place of the proceeding.

Other important information relating to the time and place of the proceeding is as follows:

  • Since the parties need not appear at the same location, objections to the manner of appearance by the other party will generally not be considered, absent unusual circumstance.

  • Travel expenses to appear for oral argument will not be reimbursed.

  • Although the proceeding is adversarial, it is not public in the usual sense. Outside observers may not be present unless both parties consent and the A member of the AC panel finds that the presence of one or more observers will not disrupt the proceeding.

2. Record of the Proceeding

The AC must make a complete record of the oral argument proceeding to obtain a verbatim recording of the entire proceeding. The verbatim record is the official record of the proceeding. A transcript is not required unless the AC panel finds it necessary to review the case.

Since this is an adversarial proceeding, discussions off the record with one party about the case are not permitted. However, in the unusual circumstance that an issue arises that must be discussed off the record in the presence of both parties, the AC panel may go off the record, but must summarize on the record the content and conclusion of any off-the-record discussion.

3. Opening Statement

The A member of the panel will open the proceeding with a brief statement that explains how the proceeding will be conducted, the procedural history of the case, and the issues under consideration. While the content and format of the statement are discretionary, the following information will be included in an opening statement:

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

  • Explain that the proceeding is being recorded.

  • Cite the regulatory authority for conducting the proceeding.

  • Introduce each member of the panel and anyone else in the room who will be assisting during the proceeding.

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

  • Explain that the AC will not be considering evidence in addition to that introduced at the hearing, or, when applicable, provide a brief explanation of the additional evidence the AC will be considering.

  • Inform each party of the time allotted for oral argument and rebuttal, and note that the argument will be taken under oath or affirmation.

  • Explain that objections are not allowed during the other party's oral argument.

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

  • State the issue(s) the AC panel will be deciding.

4. Administering an Oath or Affirmation

In most circumstances, an oath or affirmation is unnecessary during oral argument proceedings because the AC is only considering evidence already in the record. However, the AC may determine that an oath or affirmation is necessary when it considers additional evidence under the terms of Hearings, Appeals and Litigation Law (HALLEX) manual I-1-1-55 F in this section. When an oath or affirmation is necessary, the A member will ask the person being placed under oath or affirmation to raise the right hand. The oath or affirmation reads:

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?

5. Closing the Proceeding

The A member should inform the parties that a written decision will be issued as soon as possible following the proceeding. Since both parties had an opportunity to submit written argument before the proceeding, the AC panel will generally not provide additional time to submit information, and the A member will state on the record that the proceeding and record are closed.

If unusual circumstances require that additional information be submitted, the A member must clearly state what evidence will be submitted and by what date it is expected. The A member will then state on the record that the record will be closed as of that date and that the proceeding is closed.

H. AC Decision

1. Important Considerations in Making the Decision

The AC may affirm, reverse, or modify a hearing officer's decision, or return a case to the hearing officer when the AC considers it appropriate. 20 CFR 404.1790(a) and 416.1590(a). Any period of suspension or disqualification the AC affirms, modifies, or imposes is effective from the date of the AC's decision. 20 CFR 404.1790(c)-(d) and 416.1590(c)-(d).

When modifying a hearing officer's decision, the AC will consider the following regulatory requirements (20 CFR 404.1790(b) and 416.1590(b)):

  • If the hearing officer suspended a representative for a specified period and the AC decides to reduce the suspension, the AC may not reduce the period of suspension to less than one year.

  • If the hearing officer disqualified a representative and the AC decides to modify the penalty to a suspension, the AC may not impose a period of suspension of less than one year or more than five years.

The AC must disqualify the representative if 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.

See 20 CFR 404.1790(b) and 416.1590(b). See also 20 CFR 404.1770, 416.1570, and HALLEX I-1-1-40.

2. Writing the Decision

The AC will issue a decision in writing and will mail copies to both parties. The AC's decision is final and not subject to judicial review. The AC decision will include:

  • The names of the parties and the docket number;

  • A statement of the AC's jurisdiction;

  • The procedural history of the case;

  • A brief summary of the issues before the AC;

  • The background and facts of the case;

  • An evaluation of the issues, based on the evidence;

  • A decisional paragraph with a statement that the decision is final and not subject to judicial review.