Citations:

20 CFR 404.923-404.928.

TN 2 (07-93)

A. PREVIEW

This subchapter is divided into sections directed at field offices (FOs), processing centers (PCs) and Central Office (CO). The sections outline the duties and responsibilities of each office in the EAP process.

B. BACKGROUND

The Social Security Act (Act) does not address the EAP process. The regulations dealing with the process evolved out of
Weinberger v. Salfi, a 1974 Supreme Court decision.

C. DESCRIPTION OF EAP

EAP is an alternative to the regular administrative appeals process. A claimant can elect, with SSA approval, to enter into an agreement following a reconsideration determination which will enable him/her to go directly to court, provided, at issue is only the law which the claimant believes to be unconstitutional.

D. POLICY

1. EAP Requirements

For the EAP to apply, all of the following requirements must be met:

1. A formal decision at the reconsideration level or higher has been made.

2. The EAP request is in writing.

3. The written request was filed timely, that is:

   • Within 60 days from date of receipt of the notice of determination or decision, unless good cause for late filing is found (GN 03101.020), or

   • After filing a timely request for a hearing or Appeals Council (AC) review but prior to a decision having been issued.

4. The claimant is willing to enter into a written agreement with SSA in which he/she concedes that:

   • SSA's determination or decision was correct based on the law and the facts in the case; and

   • The law, or a specific section of the law applicable in his/her case, is unconstitutional, and

   • The adverse determination or decision is due solely to the unconstitutionality of the law which SSA followed, or

   • The constitutional issue is the sole issue precluding the individual from receiving benefits or receiving a favorable determination in a nonclaim earnings discrepancy case.

2. Multiple Claimants

If more than one individual was a party to the determination or decision, then all individuals who were a party to the determination or decision must request and sign the EAP.

3. Where to Submit an EAP Request

A written EAP request may be submitted to any of the following:

• Any SSA office,

• The Veterans Administration Regional Office in the
  Philippines,

• Any Foreign Service post, or

• Any Railroad Retirement Board office if the claimant has 10 or more years of service in the railroad industry.

4. Time Limit Expired - New Application

A claimant, having failed to timely file an EAP request may instead have filed a new application but will present no new facts or evidence. That new application will be processed using the doctrine of res judicata (GN 04040.010).

5. EAP Denied

See GN 03107.150B.1.

6. No Withdrawal Permitted

Once an agreement is signed by all the parties, there is no provision for withdrawal from the agreement.

7. Effect On The Appeals Process

Requesting EAP stops the time limit of the administrative appeals process. The time limit starts anew when the claimant receives the agreement signed by him /her and SSA, or when the request for EAP is denied or cancelled.