I-3-9-95.Requests for Clarification of Remand Order

Last Update: 9/6/24 (Transmittal I-3-199)

A. General

An administrative law judge (ALJ) may seek clarification of an Appeals Council (AC) remand order when the ALJ cannot carry out the directive(s) set forth in the order, or the directive(s) appears to be moot. ALJs may not seek clarification of AC remand orders under any other circumstances.

There are two types of clarification requests: expedited clarification requests and formal clarification requests. Expedited clarification requests are used when the sole reason for remand is a missing claims folder, missing recording, or both, and the folder, recording, or both are subsequently found. Formal clarification requests apply in all other circumstances.

NOTE:

The term “missing recording” also encompasses inaudible recordings. If a case is remanded solely because the hearing recording is inaudible, but the recording is later found to be completely audible, the expedited clarification process may be used.

For more information about the clarification process at the hearing level, see Hearings, Appeals and Litigation Law (HALLEX) manual I-2-1-85. If the AC remand order is pursuant to a Federal court order, the instructions in HALLEX I-4-9-10 apply.

B. Hearing Office Actions

After an ALJ or designated hearing office (HO) staff obtains the necessary concurrences (as described in HALLEX I-2-1-86 or I-2-1-87), they will:

  • Prepare a written request to the Office of Appellate Operations (OAO) confirming that the Office of the Chief Administrative Law Judge (OCALJ) approved the request for clarification;

  • If making a formal clarification request, notify the claimant and representative, if any, of the request and associate the request with the claim(s) file;

  • Send the approved clarification request to OAO via email to ^DCARO OAO; and

  • Wait for a response from the OAO.

NOTE:

If the claim(s) file is paper, the email requesting clarification should clearly state that the case is paper and that the exhibits and hearing recording are located in the Electronic Non-Medical (ENM) application or the Evidence Portal, as applicable. The HO will hold the paper file in the HO. If the paper file is needed, OAO will provide the HO with mailing instructions.

C. Appeals Council Actions

The Executive Director's Office (EDO) in OAO is responsible for processing all requests for clarification at the AC level. After designated staff in the EDO has reviewed a request for clarification, they will add a “Remark” in OAO's case processing system(s) and provide further instruction to the OAO branch with jurisdiction over the claim(s). If it is unclear whether the EDO has evaluated a request for clarification, the jurisdictional branch may contact the EDO by sending an email to ^DCARO OAO.

OAO may either deny the request for clarification or grant the request by vacating the prior AC remand order. OAO will respond to the clarification request by email once the AC action on the clarification request is complete, and OAO will attach a copy of the final AC action in the email response.

1. Screening of Clarification Request

Upon receipt of a clarification request, designated staff in the EDO will first screen the request to ensure the request is ready to be processed, and they may request additional actions when necessary, such as when:

  • The record does not show that the ALJ notified the claimant and representative, if any, of the request; or

  • The ALJ did not receive the necessary approvals to submit a clarification request.

When additional action is needed, OAO will request the action directly from the submitting ALJ or HO.

2. Denying a Request for Clarification

OAO will deny a request for clarification if the request does not meet the criteria for a clarification. The denial memorandum will be signed by OAO's Executive Director, Deputy Executive Director, or their designee. OAO will respond to the clarification request by emailing a copy of the signed denial memorandum to the submitting ALJ or HO, with a copy to OCALJ and, if formal clarification, the Regional Chief Administrative Law Judge. As applicable, OAO will return the paper claim(s) file to the jurisdictional HO. When OAO denies the clarification request, the HO must proceed with processing the AC's remand order.

NOTE:

OAO cannot vacate the prior remand order, and will deny a request for clarification, when an ALJ has already held a new hearing based on that remand order.

3. Granting a Request for Clarification

If OAO approves the clarification request, OAO will take the following actions.

a. Vacate the Remand Order

The AC will issue an order vacating the AC remand, which will be signed by the Executive Director, Deputy Executive Director, or their designee and a Division Chief Administrative Appeals Judge. Generally, the vacate order also reinstates the AC's jurisdiction over the claim(s) (e.g., the request for review) and gives the claimant 20 days to comment on the AC action. However, the AC may combine the vacate order with the final action if doing so will be more beneficial to the claimant (e.g., if the AC is issuing a fully favorable decision after vacating the remand order, or if the AC is issuing a new remand order after vacating the prior order and the claimant already has a hearing scheduled).

OAO will associate the signed vacate order with the claim(s) file and mail the vacate order to the claimant and representative, if any.

b. Notify the HO

Once the vacate order is approved, OAO will respond to the clarification request email, notifying the submitting ALJ or HO that the AC issued a vacate order and associated it with the record. OAO will also attach a copy of the signed vacate order in the email response.

As necessary, OAO will instruct the HO to close the hearing-level record in the relevant HO case processing system(s) as soon as possible so that the OAO can establish the case. If the hearing-level case is not closed within a reasonable period, OAO will follow up with the HO and request assistance from OCALJ as necessary.

c. Notify the Branch Chief

Once the hearing-level record is closed, as appropriate, designated staff in the EDO will notify the branch chief of the OAO branch with reinstated jurisdiction over the claim(s) and request that they re-establish the case in OAO's case processing system(s). Designated staff will also document in case processing system(s) that the case has been returned to the jurisdictional branch for further processing.

D. Branch Actions

The branch chief will re-establish the case and, as applicable, establish a 20-day diary based on the vacate order.

After expiration of any applicable diary, the branch chief will assign the case, and the analyst will review the case based on the AC's reinstated jurisdiction. As applicable, the analyst will address any information submitted by the claimant or representative in response to the vacate order. The analyst will make a new recommendation and prepare new action document(s) on the case.