I-4-1-42.Expedited Appeals Process – Constitutional Challenge to Social Security Act

Last Update: 11/18/14 (Transmittal I-4-34)

A. General

Pursuant to 20 CFR 404.923-928 and 416.1423-1428, an individual may seek judicial review without completing the administrative review process under certain circumstances. A party to a determination or decision may submit a written challenge of the Social Security Act (Act) at any point in the administrative review process (i.e., after he or she receives a determination or decision at the reconsideration level or higher and before the Appeals Council issues a final action). The party must assert that the only factor preventing a favorable determination or decision is a provision in the Act that is unconstitutional. If there is more than one party to the determination or decision, all parties must agree, in writing, to the expedited appeals process.

The request can be filed at any Social Security Administration (SSA) office or other location noted in 20 CFR 404.925(b) and 416.1425(b) and must be filed within the timeframes set forth in 20 CFR 404.925(a) and 416.1425(a).

If SSA agrees that the only factor preventing a favorable determination or decision is a provision in the Act that the individual challenges as unconstitutional, and the individual meets all requirements to use the expedited appeals process, SSA will issue a written agreement, as explained in 20 CFR 404.926 and 416.1426. The document is not valid unless all parties sign the agreement, and the official date of the agreement is the date SSA signs the agreement.

NOTE:

If the requirements for the expedited appeals process are not met, SSA will deny the request and consider it a request for hearing or a request for Appeals Council review (whichever is more appropriate).

B. Expedited Appeals Process Procedures

1. Verify Civil Action Filing Is Timely

The party to a determination or decision may file a civil action in Federal court within 60 days after the date he or she receives notice that the written agreement has been signed by the agency (see subsection A above). Otherwise, staff will use the same general processing instructions in Hearings, Appeals and Litigation Law (HALLEX) manual I-4-1-2 C.

If the civil action is timely filed, Office of Appellate Operations (OAO) staff will give the file to a court records assistant (CRA) to prepare the certified administrative record (CAR) using the instructions below and the applicable instructions in HALLEX I-4-1-50.

If the civil action is not timely filed, OAO staff will give the file to a Court Case Preparation and Review Branch analyst to process under HALLEX I-4-1-31.

2. Special CAR Requirements When Expedited Appeals Process Applies

a. Certification

Certification will vary from the usual template depending on the level at which the case was expedited and the contents in the record.

b. Index

The CRA will prepare an index listing all documents associated with the CAR.

NOTE:

If the transmittal letter has the same date as the signed agreement, only one entry is needed on the index for both documents.

c. Procedural Documents

The CRA will include all procedural documents in the CAR.

For paper files, the CRA will include the application as the first procedural document if the claim(s) is expedited before it reaches the hearing level. If a paper claim(s) is expedited at the hearing or Appeals Council levels, the CRA will include the request for hearing or request for review as the first procedural document. The CRA will place the remaining procedural documents, including the request for the expedited appeals process, in the CAR in reverse chronological order (as described on the index).

d. Evidentiary Documents and Exhibits

When the claim(s) did not proceed to the hearing level, the CRA will consult with the branch chief regarding the documents to include in the CAR.

Additionally, if the claim(s) file is paper, the CRA will place all relevant evidence in reverse chronological order and describe the evidence in the index. (If there is a hearing decision and exhibit list, the construction of the record is similar to that of routine new court cases.)