Last Update: 9/08/05 (Transmittal I-3-36)
If no good cause development is received with the request for review, OAO branch staff must request the claimant to show good cause for the untimely filing before the analyst makes a recommendation to the Appeals Council.
If the claimant has a representative, send the request to the representative and the claimant.
If the claimant does not have a representative, send the request through the servicing field office (FO).
Determine whether good cause exists using the standards contained in 20 CFR 404.911 and 416.1411.
Requests for hearing which the ALJ dismissed on the basis of an untimely request for hearing under 20 CFR 404.957(c)(3) or 416.1457(c)(3) will be handled as follows:
If good cause is not established, the Appeals Council will deny the request for review.
If the claimant shows good cause such that it would be an abuse of discretion to deny the request for review, the Council will find good cause and remand for a hearing.
If the claimant submits additional information to the Appeals Council and the Council believes good cause could be found, but a contrary finding would not be an abuse of discretion, the Council will remand for the ALJ to decide good cause. If the ALJ finds good cause, a hearing will be held on the merits. If the ALJ finds good cause does not exist, the ALJ will again dismiss the request for hearing. See the Appeals Text Guide.
(See also I-2-0-50 Timely Request for Hearing — Filing Requirements and I-2-4-15 Hearing Request Not Timely Filed)
If no good cause development is received with the request for review, branch staff must request the claimant to show good cause for the failure to appear at the hearing before the analyst makes a recommendation to the Appeals Council.
If the claimant has a representative, send the request to the representative.
If the claimant does not have a representative, send the request through the FO.
In determining whether good cause exists, consider both the facts at the time of the dismissal and relevant information submitted to OHA afterward.
Requests for hearing which the ALJ dismissed on the basis of failure to appear under 20 CFR 404.957(b) or 416.1457(b) will be handled as follows:
If good cause is not established, the Appeals Council will deny the request for review.
If the claimant shows good cause such that it would be an abuse of discretion to deny the request for review, the Council will find good cause and remand for a hearing.
If the claimant submits additional information to the Appeals Council and the Council believes good cause could be found, but a contrary finding would not be an abuse of discretion, the Council will remand for the ALJ to decide good cause. If the ALJ finds good cause, a hearing will be held on the merits. If the ALJ finds good cause does not exist, the ALJ will again dismiss the request for hearing. See Appeals Text Guide.
Requests for hearing which the ALJ dismissed for failure to appear and the hearing office did not follow the requirements of 20 CFR 404.938, 416.1438, 404.957(b)(2) and 416.1457(b)(2)
Under the regulations, when the claimant or representative does not acknowledge receipt of the notice of hearing, the hearing office will attempt to contact the claimant for an explanation. See I-2-3-20 and I-2-4-25 for a discussion of the procedures that must be followed before the Administrative Law Judge can issue an order of dismissal based on the failure to appear.
If the hearing office did not follow appropriate procedures, prepare a remand order to afford the claimant another opportunity for a hearing. See the Appeals Text Guide.
NOTE:
If the representative appeared at the hearing without the claimant, the ALJ may not dismiss the request for hearing for failure to appear. See I-2-4-25D.
When an ALJ dismissed a request for hearing based on the claimant's withdrawal under 20 CFR 404.957(a) and 416.1457(a), the claimant is not entitled as a matter of right to file another request for hearing on the same application, even if the claimant files it within 60 days after the date of receipt of notice of the previous determination. However, if such a second request for hearing is filed within the prescribed period, the ALJ (or the Appeals Council) will treat it as a request to vacate the prior dismissal. A finding of good cause for vacating the dismissal will depend upon all the facts at the time of the dismissal and all subsequent facts. See Appeals Council Interpretation (ACI) II-5-1-4 for further discussion of the above issue.
When an ALJ dismissed a request for hearing based on administrative res judicata under 20 CFR 404.957(c)(1) and/or 416.1457(c)(1), the analyst must ensure that:
there has been a previous determination or decision under the same subpart with respect to the same party;
the previous determination or decision was based on the same facts and on the same issue(s); and
the previous determination or decision has become final by either administrative or judicial action.
See I-3-3-9 for a complete discussion of administrative res judicata.