Last Update: 7/22/05 (Transmittal I-2-59)
An Administrative Law Judge (ALJ) may dismiss a request for hearing (RH) when neither the claimant who requested the hearing, nor the claimant's representative, appears at a scheduled hearing and neither shows good cause for the absence.
To establish good cause for failure to attend a scheduled hearing, a claimant must show that neither the claimant nor the claimant's representative was properly notified of the scheduled hearing, or that an unexpected event occurred that did not provide them enough time in advance of the scheduled hearing to notify the ALJ and request a postponement. (See I-2-4-10, Vacating an Order of Dismissal, which defines good cause.) Any contact with the claimant and/or representative prior to the hearing pursuant to the contact provisions of 20 CFR §§ 404.938 and 416.1438 must be documented as a record of contact and made a part of the record as an exhibit. Any such documentation should make specific note of whether the claimant and/or the representative received the Notice of Hearing. Before dismissing an RH for failure to appear, the ALJ must:
Determine if the claimant was properly notified of the time and place set for the hearing, e.g., determine whether the claimant or representative returned the acknowledgement form sent with the Notice of Hearing (See I-2-3-20 C., Acknowledgement Form Not Returned), or whether there is any other evidence which shows that they received the hearing notice. Again, documentation of actions taken by hearing office employees to comply with the contact provisions of 20 CFR §§ 404.938 and 416.1438 must be exhibited in the B section of the claims folder. Copies of letters sent to the claimant or reports of contact documenting telephone contacts must be made exhibits in the B section of the claims folder.
If the claimant or representative alleges that there was no proper notification of the scheduled hearing and there is no evidence to show that they received the hearing notice, the ALJ should find good cause for failure to appear.
If the claimant and representative indicate that they received the hearing notice, but failed to appear at the scheduled hearing because of another reason, determine whether the other reason is sufficient to establish good cause. (See I-2-0-60, Good Cause for Late Filing.)
NOTE:
If the evidence of record appears to support a fully favorable decision and thus the hearing may not be necessary, the ALJ should consider whether he or she can issue a fully favorable decision instead of dismissing the RH.
If it is necessary to develop good cause, send a form HA-L531, Notice to Show Cause for Failure to Appear, to the claimant and the claimant's representative. This Notice may be created in the Document Generation System (DGS). Give the claimant and the claimant's representative 10 days from the date of the notice to respond, and allow an additional 5 days for mailing time.
NOTE:
Before dismissing a claimant's RH for failure to appear, the ALJ must ensure that the claimant fully understood the possible consequences of his or her failure to appear. This requires documentation in the record that the claimant received the Notice of Hearing.
If neither the claimant nor the claimant's representative appears at the scheduled hearing, the ALJ may dismiss the RH without sending a show cause notice if:
the record shows that the claimant received the Notice of Hearing and was therefore notified that the RH could be dismissed without further notice if neither the claimant nor the representative appeared at the scheduled hearing (See I-2-3-90, Sample 1, Reminder to Return Acknowledgement Card.), or, the claimant has not returned the acknowledgment card and the contact procedures of 20 CFR §§ 404.938 and 416.1438 have been followed, and there is no indication of “good cause;” or
the claimant's whereabouts are unknown (e.g., the Notice of Hearing is returned to the HO as undeliverable, all attempts to contact the claimant by other means are unsuccessful, and it is concluded that the claimant cannot be located). However, before dismissing an RH because the claimant's whereabouts are unknown:
check the PCOMS system queries, including FACT for Title II cases, SSID for Title XVI cases, and the Modernized Development Worksheet for either title, for the claimant's latest address and ensure that the latest address was correctly used on the Notice of Hearing and in all other attempts to contact the claimant; and
ensure that all attempts to contact the claimant are clearly documented in the claim file. For example, document the claim file with any envelopes returned by the post office as undeliverable and reports of any statements made by individuals regarding the absence or disappearance of the claimant. Include these documents in the B section of the claims folder.
NOTE 1:
A show cause order cannot be used as an alternative to following proper notice procedures, unless there is evidence establishing that notice was actually received. (See I-2-3-15, Notice of Hearing, and I-2-3-20, Acknowledgement of Notice of Hearing.)
NOTE 2:
Even if you are unable to locate the claimant, do not dismiss the RH until after the time scheduled for the hearing. The claimant may learn of the scheduled hearing in another way and appear. If the claimant does not appear at the scheduled hearing, dismiss the RH. In the dismissal order, describe all efforts to contact the claimant.
NOTE 3:
Under the provisions of I-2-4-25.C.2., if the acknowledgment card is not returned but the procedures set forth herein have been followed, a show cause order is not required.
In addition to querying CPMS, the following systems queries can be used to determine if the claimant reported a change of address to another component of SSA.
|
Title II |
FACT |
PCOMS Main Menu—A |
#9, #2 |
|
Title XVI |
SSID |
PCOMS Main Menu—A |
#9, #10 |
|
Title II/XVI |
MDW |
PCOMS Main Menu—A |
#24 |
If a claimant's representative appears at a scheduled hearing without the claimant:
The ALJ may determine that the claimant has constructively waived the right to appear at the hearing if the representative is unable to find the claimant, the notice of hearing was mailed to the claimant's last known address, and the contact procedures of 20 CFR §§ 404.938 and 416.1438 have been followed.
If the hearing includes expert witnesses, the ALJ may choose to proceed with the hearing, accepting the testimony of the witnesses and allowing the claimant's representative to question the witnesses and make arguments regarding the claimant's application.
The ALJ should advise the claimant's representative that a Notice to Show Cause will be issued asking the claimant why he or she did not appear, and why a supplemental hearing should be held. If the claimant fails to respond to the Notice to Show Cause or fails to provide good cause for failure to appear at the scheduled hearing, the ALJ may then determine that the claimant has constructively waived his or her right to appear for a hearing, and the ALJ may issue a decision on the record.
If the claimant provides good cause for failure to appear, the ALJ will offer the claimant a supplemental hearing to provide testimony.
NOTE:
If a representative appears at a scheduled hearing without the claimant, dismissal is never appropriate.
If a claimant or representative requests the ALJ to change the time or place set for the hearing, the ALJ will consider whether the claimant or representative has good cause for requesting the change. If the ALJ finds that the person requesting the change does not have good cause, the ALJ must notify the person of his or her finding. If the ALJ notifies the person of his or her finding, and neither the claimant nor the representative appears at the time and place set for the hearing, the ALJ must determine if the claimant or representative received the notice. If so, the ALJ may dismiss the RH for failure to appear without sending a notice to show cause.
The ALJ may not dismiss an RH for failure to appear if the claimant waived the right to an oral hearing and the ALJ nevertheless scheduled a hearing. In this situation, the ALJ must decide the case on the evidence of record.
An ALJ may dismiss an RH on the basis of failure to appear if the claimant and representative fail to appear on time for the hearing, and the ALJ decides that good cause does not exist for such tardiness.