TN 21 (01-12)

A. Vacating a hearing request

1. Who may vacate a hearing request

When the ALJ dismisses a hearing request, he or she does not decide the merits of the case. A dismissal is not subject to appeal. However, an ALJ or the appeals council (AC) may vacate a dismissal if the claimant requests it within 60 days after date he or she receives the dismissal notice. A review of a dismissal can only address the question of whether the dismissal was proper.

2. When the ALJ may dismiss a hearing request

The ALJ may dismiss a hearing request under the following conditions:

1. No right to hearing

   This situation exists where:

   • The claimants were not a party to the initial or reconsidered determination and their rights have not been and cannot be prejudiced by the determination; or

   • The matter disagreed with is not the subject of an initial or revised determination; or

   • A reconsideration of the initial determination has not occurred. In a concurrent case, the ALJ will not dismiss merely because there was no reconsideration of one of the determinations.

2. Request is not timely and no good cause exists

   For information on good cause, see GN 03101.020.

3. The claimant requests a dismissal

   For information on withdrawal, see GN 03103.210.

4. The claimant abandons the hearing

   Consider a hearing abandoned if neither the claimant nor the claimant’s appointed representative appears for the hearing. Consider good cause for such failure as established if within 10 days after the hearing the ALJ mails each a notice advising that they have ten days to establish good cause for failure to appear for the hearing. The FO may assist the person in preparing his or her statement for the ALJ.

5. Res Judicata

   For information on Res Judicata, see GN 03101.160.

6. The claimant dies before a decision is issued

   For inquiries and any changes while the case is with the ALJ, see GN 03103.190.

7. Payment Center (PC), Office of Disability and International Operations (ODIO), or Office of Central Records Operations (OCRO) will make a favorable determination

   In preparing the case for transmittal to the ALJ, the PC determines that the reconsideration determination was incorrect and notifies the ALJ that it would make a fully favorable determination. For information on case transmittals and hearing remands, see GN 03103.080D.4. and GN 03103.230.

B. Reopening after a hearing dismissal

The dismissal does not preclude reopening and revising the reconsideration determination (see GN 04001.000). If the claimant submits new evidence after a dismissed hearing, send it to the PC to see if reopening applies. Relative to the reopening, handle the case as if no hearing had ever been requested (For reopening and appeal rights, see GN 04001.090).