TN 25 (01-18)

A. Background of res judicata

Res judicata is a rule in civil law that provides that once we have made a determination on an issue, we do not need to decide it again based on the same facts, same issue(s), same parties, and same period. If the overpaid individual files multiple waiver requests for the same overpayment, raises no new issues and provides no new and material facts or evidence, we will apply res judicata.

B. When to apply res judicata

Res judicata in a waiver is derived from the fact that we base findings of fault on an overpaid individual’s circumstances prior to the original overpayment determination. Those circumstances remain constant.

Consequently, a new waiver determination is not necessary if:

• The “at fault” determination in the previously denied waiver is correct;

• The individual does not present any new and material facts or evidence that would lead us to reopen and revise the prior determination; or

• Reopening is not possible based on the rules of administrative finality.

NOTE: For more information regarding administrative finality, see GN 04001.010 through GN 04001.130.

C. Receipt of a subsequent (new) waiver request

When an overpaid individual files a new request for waiver, take the following initial actions to stop collection activity in the month we receive the waiver request:

• Input protest reason 3 (initial waiver) using the Protest/ Stop Recovery Request (FO) (DRPF) screen in DMS for the FO, or use the Protest/ Stop Recovery Request (PC) (DRPR) for the Processing Center (PC) (see MS DMS 006.019 or MS DMS 006.003);

• Fax the documents into the Certified Electronic Folder (CEF), Non-Disability Repository for Evidentiary Documents (NDRed) or Paperless, as applicable; and

• Process the request by following the instructions in GN 02250.303D and GN 02250.303E in this section, as applicable.

D. FO processing instructions

A technician who was not involved in the previous waiver determination must review the new waiver request.

1. Res judicata applies

Review the Recovery of Overpayments, Accounting, and Reporting (ROAR) record and the prior waiver determination (form SSA-635). If the prior waiver determination or ROAR record shows we denied the prior waiver request based on fault (ROAR transaction code (TC) 55 and denial category (DCAT) of D1 for not without fault) and reopening is not possible, take the following actions:

• Input the protest reason 5 (waiver and recon fact/amt) using the DRPF screen in DMS if applicable;

• Fax the waiver request and documentation into NDRed or into the CEF as applicable;

• Send the waiver request and documentation to the PC of jurisdiction via Paperless for their action;

• Transfer the jurisdiction to the PC via DMS using the Workload Management System (WMS) Debt Management Function Selection (DMFS) screen; and

• Annotate DMS Remarks to document your actions.

2. Res judicata does not apply

Review the ROAR record. If ROAR shows that we denied a prior waiver request (TC 55) and reopening is possible because the overpaid individual provides new and material evidence, res judicata does not apply. Make a determination on the new waiver request adhering to the rules for reopening final determinations following the instructions in GN 02250.385 and GN 04001.010 through GN 04001.130.

NOTE: When you determine that you may reopen the prior waiver request, you must make your affirmation in writing per GN 04001.050.

E. PC processing instructions

Review the information from the FO or the new waiver request (if the individual sent the request directly to the PC) along with the ROAR record and determine whether res judicata applies. Take the following actions based upon your determination.

1. Res judicata applies

If a new determination is not necessary, take the following actions:

• Input the waiver denial using the Fact/Amount Appeal Disposition (DRAD) screen in DMS (See MS DMS 006.011);

  NOTE: Input the denial via the reconsideration (appeal) screen because this is not a true waiver denial and is not subject to a personal conference. For more information regarding personal conferences, see GN 02270.000.

• Send the individual a dictated notice, using the OPT188 paragraph or the equivalent, stating that the denial determination on the prior waiver request still applies based on res judicata; and

• Annotate DMS Remarks to document the waiver dismissal based on res judicata (see MS DMS 009.003).

2. Res judicata does not apply

Review the ROAR record and if it shows that we denied a prior waiver request (TC 55) and reopening is possible because the overpaid individual provides new and material facts or evidence, res judicata does not apply. If the overpayment amount is $1,000 or less, make a determination on the new waiver request adhering to the rules for reopening final determinations following the instructions in GN 02250.385, GN 04001.010 through GN 04001.130 and GN 02250.350.

If the overpayment amount is more than $1,000, take the following actions:

• Send a Modernized Development Worksheet (MDW) request to the servicing FO and state that res judicata does not apply and to process the new waiver request adhering to the rules for reopening final determinations following the instructions in GN 02250.385 and GN 04001.010 through GN 04001.130;

• Clear the waiver and recon fact/amt protest on ROAR by inputting a denial via the DRAD screen in DMS;

• Input the waiver request via the Protest/Stop recovery Request (PC) (DRPR) screen in DMS;

• Fax the waiver request and documentation into the CEF or NDRed;

• Transfer the jurisdiction to the FO for processing; and

• Annotate DMS Remarks with your actions.
  EXAMPLE: Harley Smith HA requested waiver of her $5,000 overpayment on 01/18/17. We previously denied her prior waiver request. Ms. Smith presented new and material facts or evidence and it appears res judicata does not apply. Request sent to the FO to process the waiver request. – Leo Jones, Mod 55

F. Appeal of a res judicata determination

After we have issued a res judicata determination on a subsequent overpayment waiver request, the individual may request an appeal up to the Appeals Council level. The appeal determination is limited to whether the issue is the same as that previously determined. For instructions regarding the reconsideration (appeal) request, see GN 02250.380.

G. Examples for when res judicata applies and does not apply

1. Res judicata applies

a. Subsequent waiver request without new or material evidence

In January 2015, Pam Wayne requested waiver of recovery for her $2,500.00 overpayment. We denied the waiver request in March 2015 because we determined that Pam was at fault in causing the overpayment. In October 2015, instead of filing an appeal, Pam files a subsequent waiver request on the same overpayment without providing new fact(s) or evidence. Since Pam did not submit any new material evidence, we dismiss the request based on res judicata. Pam retains the right to appeal only whether the issues and facts are the same as those in the previous waiver request. Pam cannot appeal the original waiver determination, unless we grant good cause, because she is outside of the statutory 60-day appeal period.

b. Subsequent waiver request with new non-material evidence

Using the example in GN 02250.303G.1.a, Pam submits new material evidence when filing a subsequent waiver request; however, the material evidence has no bearing on the previous at fault determination. Since the new non-material evidence would not change the previous determination, we would dismiss the request based on res judicata.

2. Res judicata does not apply

Using the example in GN 02250.303G.1, Pam submits new and material evidence when filing a subsequent waiver request. Because Pam submitted new evidence, res judicata does not apply. Instead, we would review the request and determine if we may reopen the previous waiver determination in accordance with GN 02250.385 and GN 04001.010.

H. References

• GN 02201.021 Field Office (FO) Actions Title II Overpayment Waiver Request

• GN 02201.023 Program Service Center (PSC) Actions Title II Overpayment Waiver Request

• GN 02250.305 When a Waiver Determination Will Not Be Made

• GN 03101.160 Res Judicata

• GN 04010.030 Reopenings – New and Material Evidence

• GN 04001.000 Reopening (Title II Only) – Table of Contents

• GN 04040.010 Res Judicata