Joined: 11 Jun 2004 Posts: 166 Location: Montpelier, Vermont
Posted: Tue Oct 07, 2008 03:57 pm Post subject: How to force a precedent opinion?
I am handling a survivor benefits claim for two children adopted in Liberia whose adopting father died ten days after the adoption occurred in Liberia but before they immigrated to the US. POMS GN 00306.155 instructs what to do in these cases to establish the valitidy of the adoption. Becasue of the odd circumstances of this case, the family does not have and cannot get the paperwork that would satisfy the criteria of that POMS section. Without the paperwork the POMS requires that the case be submitted to the Regional Chief Counsel for a precedent opinion.
The case is at reconsideration now. It was clearly not submitted to RCC for a precendent opinion when originally filed. The only precedent opinion I can find as to Liberia is PR 01325.208 which does not address the situation of these particular children, and in fact does no more than restate the policy in GN 00306.155 before that section was adopted in its present form. The claim has been languishing now at a payment center for approaching to a year without any indication that it will be or has been submitted for a precedent opinion.
How would one press the issue to get the precedent opinion? I have considered a writ of mandamus, but it seems that there should be some easier way than this. I am having no luck trying to talk to anyone beyond the field office, who is also having difficulty getting any responses about the status.
If anyone knows someone to contact to move this along, you can respond privately to my e-mail at jarvis[at]bfslaw.com.
Posted: Tue Oct 07, 2008 10:59 pm Post subject: Re: How to force a precedent opinion?
Craig Jarvis wrote:
I am handling a survivor benefits claim for two children adopted in Liberia whose adopting father died ten days after the adoption occurred in Liberia but before they immigrated to the US. POMS GN 00306.155 instructs what to do in these cases to establish the valitidy of the adoption. Becasue of the odd circumstances of this case, the family does not have and cannot get the paperwork that would satisfy the criteria of that POMS section. Without the paperwork the POMS requires that the case be submitted to the Regional Chief Counsel for a precedent opinion.
The case is at reconsideration now. It was clearly not submitted to RCC for a precendent opinion when originally filed. The only precedent opinion I can find as to Liberia is PR 01325.208 which does not address the situation of these particular children, and in fact does no more than restate the policy in GN 00306.155 before that section was adopted in its present form. The claim has been languishing now at a payment center for approaching to a year without any indication that it will be or has been submitted for a precedent opinion.
How would one press the issue to get the precedent opinion? I have considered a writ of mandamus, but it seems that there should be some easier way than this. I am having no luck trying to talk to anyone beyond the field office, who is also having difficulty getting any responses about the status.
If anyone knows someone to contact to move this along, you can respond privately to my e-mail at jarvis[at]bfslaw.com.
I am in the Boston Region.
First, keep in mind that just because there isn't a LPO posted to the public POMS doesn't mean that there wasn't one made at the initial level. It can take over a year for the agency to finally get around to posting a LPO decision even to its own intranet. And, the agency generally won't release them or make them a part of the file, either (it considers them sensitive information, if you can believe that) -- the earliest point you might actually see it is when they finally get around to posting it.
I'm not surprised that the PSC isn't responding. After the reconsideration reviewer position was eliminated, non-disability issue recons have tended to gravitate to the absolute bottom of the workload stack. And, if they are having to request an LPO, there isn't any telling what kind of turf hoops they will have to jump through to actually get it.
The quickest way to try to light a fire under their asses is to request your Congressional reps (from both Senate and House - the more, the merrier) to make formal inquires as to status. That gets the PSC management weenies on your side, 'cause for some reason they don't like to have to write responses defending their lack of action to a Congressman. They'll push somebody to take some action, or maybe will refer it for special handling. It might still result in a denial, but at least that gets you to a point where you can get your client in line to have a hearing before the ALJ.
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