I-4-3-50.Court Remands to Locate or Reconstruct the Administrative Record
Last Update: 7/30/13 (Transmittal I-4-28)
A. When to Remand
If a Federal court remands a case to locate or reconstruct the file, the Court Case Preparation and Review Branch (CCPRB) analyst will make all possible attempts to locate the file. If the CCPRB analyst cannot locate the file after exhausting all possibilities, the analyst will prepare a remand order. The remand order will explain that:
the Appeals Council (AC) was unable to prepare a certified administrative record (CAR) for court review when extensive efforts to locate the record proved unsuccessful, and
the administrative law judge (ALJ) must reconstruct the record, hold a new hearing, and issue a new decision.
The routing sheet used to transmit the remand order to the hearing office (HO) will state: “Appeals Council Lost Folder Court Remand — Please Initiate Folder Reconstruction Process.”
B. File Is Located Before Remand Issued
If the file is located before the AC's remand to the HO, further administrative action may be unnecessary. The analyst must review the file for completeness and send the hearing recording for transcription using the procedures in Hearings, Appeals and Litigation Law manual (HALLEX) I-4-1-14. Once the file is determined to be complete and the hearing recording is adequately transcribed, the analyst will:
prepare a memorandum to the Assistant United States Attorney (AUSA) advising the AUSA that the record is now complete and the AC is preparing a CAR for filing with the court, and
associate a copy of the memorandum with the file.
Support staff will release the memorandum to the Office of the General Counsel. The case will then be assigned to a court records technician to prepare a CAR.
C. File Is Located After Remand Issued
If the file is located after the AC's remand to the HO, an ALJ may request clarification of the AC remand order using the procedures in HALLEX I-2-1-87. However, when the remand order is based on a court order for a missing claim file or hearing recording, the ALJ may not request clarification unless he or she obtains a written statement of agreement from the attorney who represented the claimant in Federal court, or from the claimant if he or she was unrepresented, and associates the writing with the record. The written agreement will:
confirm that the attorney or claimant was notified that the missing claim file, hearing recording, or both have been located, and
include a statement that the attorney or claimant agrees to the AC vacating the remand order.
If the attorney or claimant does not agree to vacating the remand order, the ALJ must hold a new hearing.