I-3-5-70.Recommendation to Deny Request for Review of Administrative Law Judge Dismissal

Last Update: 6/20/16 (Transmittal I-3-144)

An Office of Appellate Operations (OAO) analyst will evaluate an administrative law judge (ALJ) dismissal using the instructions in Hearings, Appeals and Litigation Law (HALLEX) manual I-3-3-15.

If the OAO analyst recommends that the Appeals Council (AC) deny the request for review, the analyst will include the following in his or her analysis in the Appeals Review Processing System:

A brief statement explaining the ALJ's basis for dismissal and why the dismissal was proper;
A discussion of any unresolved issue in the case or with the ALJ's order of dismissal; and
If the facts support a favorable action had the ALJ not dismissed the request for hearing, a brief statement as to the merits of the case and a recommendation as to whether the AC should assume jurisdiction.

NOTE 1:

If the ALJ correctly dismissed the request for hearing because the claimant had no right to a hearing (e.g., there had been no reconsideration, the claimant was not a proper party, or the original action was not an initial determination as defined under 20 CFR 404.902 and 416.1402), the analyst will not evaluate the merits of the case.

An ALJ dismissal is final and binding unless it is vacated by the ALJ or the AC. Therefore, if the AC denies review of an ALJ's dismissal, the AC's notice does not include the right to appeal. (See Note 2 below for possible exceptions.) Therefore, when proposing that the AC deny review of an ALJ dismissal, the analyst will use the DEN 20 denial notice template in the Document Generation System so that the claimant is not mistakenly offered appeal rights.

NOTE 2:

In the 7^th Circuit (Illinois, Indiana, or Wisconsin), the AC follows Acquiescence Ruling (AR) 16-1(7), Boley v. Colvin, under which a claimant may file a civil action in certain circumstances after the AC denies review of an ALJ dismissal order. For information about AR 16-1(7), see HALLEX I-3-3-15 A. If AR 16-1(7) applies, the analyst will add language offering appeal rights to the denial notice.

When the AC intends to deny a request for review of an ALJ dismissal and the claimant has submitted additional evidence that is new and material but does not relate to the period on or before the date of the last merits-based determination, the AC will give protective filing as of the date of the request for review. For definitions, see HALLEX I-3-3-6. If the additional evidence relates to the date on or before the last merits-based determination, the AC will not give protective filing but will send the evidence to the component that made the last merits-based determination, as noted in HALLEX I-3-5-72.