Last Update: 8/15/05 (Transmittal I-2-61)
The EAP allows claimants meeting certain requirements to appeal their cases directly to a Federal district court without completing the administrative review process.
A claimant may use the EAP if all of the following requirements are met:
the claimant has received an initial and reconsidered determination or hearing decision, or Appeals Council review has been requested, but a final decision has not been issued;
the claimant has submitted a written request to use the EAP within the time period for filing an appeal on the determination or decision;
a final decision of the Commissioner has not been issued on the matter;
the claimant has claimed, and the Social Security Administration (SSA) agrees, that the only factor preventing a favorable determination or decision is a provision in the law that the individual believes is unconstitutional; and
all other parties to the determination or decision agree to use the EAP.
OHA has jurisdiction to approve or deny an EAP request when a request for hearing (RH) has been filed and a final decision of the Commissioner has not been issued. Jurisdiction within OHA is as follows:
The CALJ must determine if the criteria to use the EAP are met in any case on which an RH is pending and an ALJ has not issued a decision.
The Executive Director (Deputy Chair, Appeals Council), Office of Appellate Operations (OAO) must determine if the criteria to use the EAP are met in any case on which an ALJ has issued a decision. The Office of Appellate Operations (OAO) will process the EAP request. (See I-3-5-60, Expedited Appeals Process.)
An SSA component outside OHA will have jurisdiction to determine if the criteria to use the EAP are met in any case on which an RH has not been filed.
If an HO receives an EAP request, the HO staff must send the request to the CALJ for action (if the CALJ has jurisdiction) or for forwarding to the component that has jurisdiction.
If a hearing office (HO) receives an EAP request and no Request for Hearing (RH) has been filed on that case, the HO staff will send the request to the CALJ to forward to the appropriate SSA component. The RH (form HA-501) is transmitted automatically in HOs where eDIB is operational, but in no case later should the RH be sent more than 5 days after the request is received.
If an HO receives an EAP request and an RH is pending on that case, and the RH is not automatically transferred in eDib, the HO staff will, within 5 days of receiving the request:
send the EAP request, the RH, and the claim file (CF) to the CALJ for a determination as to whether the criteria for using the EAP are met; and
while the CALJ considers the EAP request, the HO must maintain the case in the Case Processing and Management System (CPMS) and not otherwise process the case.
If the ALJ believes a reason other than the provision in the law which the claimant is contesting as unconstitutional exists for issuing an unfavorable decision, the ALJ should proceed with the hearing, issue a decision, and then send the EAP request, along with a copy of the decision and the CF, to the CALJ to forward to OAO.
The CALJ will, within 10 days of receiving an EAP request, determine if the criteria to use the EAP are met and take the following appropriate action:
If the criteria to use the EAP are not met, the CALJ will notify the claimant in writing of the reasons they are not met, and return the CF to the HO for action on the RH. Upon receipt of such a case in the HO, the HO staff and the ALJ will proceed with their actions on the RH in the usual manner.
Under the regulations, an administrative action denying an EAP request is not an initial determination subject to administrative or judicial review (See 20 CFR §§ 404.903(k) and 416.1403(a)(4)). Therefore, there is no right to appeal a denial of a request to use the EAP and the denial is final.
If the criteria to use the EAP are met, the CALJ will:
upon return of the signed agreement, also sign it and forward copies to all signatories and to the Office of Appellate Operations (OAO), and place the original in the CF and a copy in the CALJ's files;
notify the HO that the EAP request has been approved and that the RH should be dismissed; and
forward the CF to OAO to hold pending potential filing of a civil action.
When the ALJ receives notice that the CALJ has approved the request to use the EAP, the ALJ will prepare and issue an Order of Dismissal. The basis for the dismissal should be by application of party. (See I-2-4-20, Dismissal at the Claimant's Request.)
If a request to use the EAP is approved, the requestor will have 60 days from the date he or she receives the copy of the signed agreement to file an action in a Federal district court.