I-2-4-10.Vacating an Order of Dismissal
Last Update: 7/22/05 (Transmittal I-2-59)
A. Administrative Law Judge (ALJ) Authority and Jurisdiction
When a claimant requests an ALJ to vacate a dismissal order, the ALJ has the authority to consider the information and evidence, to request additional evidence, to verify the evidence, and to decide whether to grant the request and vacate the dismissal order. An ALJ may vacate a dismissal of a request for hearing (RH) if:
within 60 days after the date a claimant receives the dismissal notice, the claimant requests the ALJ to vacate the dismissal;
the claimant shows good cause why the ALJ should not have dismissed the RH; and
the Appeals Council does not have jurisdiction in the case.
The Appeals Council has jurisdiction of a case if a claimant has requested the Appeals Council to review the order of dismissal or the Appeals Council is reviewing the dismissal on its own motion.
B. Determining Good Cause to Vacate an Order of Dismissal
There are no set criteria for determining what constitutes good cause to vacate an Order of Dismissal. Each reason a claimant gives for making the request must be considered on its own merit. Generally, good cause would be shown if the claimant shows that the premise on which the ALJ based the dismissal order was erroneous.
The term “good cause” refers to a reasonable explanation for failing to comply with a requirement. When making a finding of good cause, the finding must be based on the circumstances of each individual case. Consider the person's physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) that prevented him or her from filing a timely request or from understanding and knowing about the need to file a timely request. 20 CFR §§ 404.911, 416.1411, and SSR 91-5p provide examples of good cause which may be useful to the ALJ.
C. Forms for Vacating an Order of Dismissal
When vacating an Order of Dismissal, use DGS and the “Blank Order” option from the Dismissal menu.
D. Good Cause to Vacate the Order of Dismissal Is Not Shown
If the ALJ concludes that good cause to vacate the dismissal order is not shown, the ALJ should:
advise the claimant by letter of the reasons for this conclusion;
advise the claimant that the ALJ's refusal to vacate the dismissal order is not subject to review by the Appeals Council; and
document the hearing office file by inserting the claimant's request and a copy of the ALJ's letter to the claimant, and forward copies of the correspondence for association with the claims file.
E. Good Cause to Vacate the Order of Dismissal is Shown
If the ALJ concludes that good cause to vacate the dismissal order is shown, the ALJ will vacate the dismissal order and proceed with the actions necessary to complete the record and issue a decision.