I-3-0-65.Expedited Appeals Process – Constitutional Challenge to Social Security Act

Last Update: 11/18/14 (Transmittal I-3-80)

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 to the Social Security Act (Act) at any point in the administrative review process (i.e., after they receive 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 (EAP).

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 EAP are not met, SSA will deny the request and consider it a request for hearing (RH) or a request for Appeals Council review, whichever is more appropriate.

B. EAP Request Jurisdiction

When an RH has not yet been filed or an RH has been dismissed (i.e., when the initial or reconsidered determination is the final SSA action), the field office and regional office share responsibilities related to the EAP request and agreement. EAP requests processed below the hearing level are signed by the Deputy Commissioner of the Office of Analytics, Review, and Oversight (OARO). For more information, see Program Operations Manual System (POMS) GN 03107.100, GN 03107.150, GN 03107.250, and SI 04060.010.

The hearing operation has jurisdiction to approve or deny an EAP request when an RH has been filed and a hearing level decision has not been issued. The Office of the Chief Administrative Law Judge (OCALJ) handles hearing level EAP requests. For more information, see HALLEX I-2-2-25.

If a hearing level decision has already been issued, the Office of Appellate Operations (OAO) will handle the EAP request. For OAO actions after an EAP is approved, see Hearings, Appeals and Litigation Law (HALLEX) manual I-4-9-40.

C. OAO EAP Request Procedures

The Appeals Council handles EAP requests in a different manner than other administrative components because a claimant is already entitled to file a civil action if the Appeals Council denies review.

Therefore, the Appeals Council does not prepare the usual EAP agreement required under 20 CFR 404.926 and 416.1426. Instead, the OAO analyst will review the request and make an initial recommendation as to whether the conditions for EAP are met, as outlined in 20 CFR 404.924 and 416.1424.

1. EAP Criteria Not Met

If the EAP criteria are not met, the OAO analyst will treat the EAP request as a request for review and follow usual procedures.

If denying review is appropriate, the OAO analyst will advise the claimant in the denial notice that the conditions for EAP are not met but that the claimant may file a civil action.
If another action is more appropriate, the OAO analyst will note in the action document that the conditions for EAP are not met but that the request was treated as a request for review. The OAO analyst will also note in the action document that denial of the EAP request is not an initial determination subject to administrative or judicial review under 20 CFR 404.903(k) and 416.1403(a)(4), and the denial of the EAP request is final.

2. EAP Criteria Met

If the EAP criteria are met, the OAO analyst will recommend denying review and include the following language in the denial notice:

On [date], you filed a request to use the expedited appeals process under 20 CFR 404.923 and 416.1423. The final step in the administrative appeals process is consideration by the Appeals Council. Because you can file a civil action after Appeals Council review, we have treated your request filed [date] as a request for review of the Administrative Law Judge's decision.

D. Receipt of a Signed EAP Agreement from OARO or OCALJ

For EAP requests that are not processed by OAO, once approved, OARO or OCALJ will forward a copy of the signed agreement to OAO's Executive Director's Office at ^DCARO OAO with “Expedited Appeals Process (EAP) Signed Agreement” in the subject line. See POMS GN 03107.250 and HALLEX I-2-2-25 C.2.
Upon receipt, the EDO will notify the Division of Civil Actions that it has received a signed EAP agreement.

If the claimant files a civil action, the Division of Civil Actions will manually establish a case in the Appeals Review Processing System and take its usual action to prepare the certified administrative record for the court. See HALLEX I-4-1.