I-3-1-56.Civil Action Filed Prematurely

Last Update: 9/08/05 (Transmittal I-3-36)

On occasion, a claimant may file a civil action while the request for review is still pending at the Appeals Council level. In this situation, the OAO branch will send the claim file to the Court Case Program Review Branch (CCPRB). The OAO branch will continue to control the request for review as a pending case. After the court dismisses the civil action, the CCPRB will return the claim file to the OAO branch to process the request for review.

A claimant may fail to exhaust his or her administrative remedies, i.e., file a civil action instead of a request for review following an ALJ's decision. In such cases, the CCPRB will prepare a “failure to exhaust” affidavit or declaration and will retain the claim file. If the claimant filed the civil action within 65 days of the ALJ's decision, the CCPRB will forward the claim file to the OAO branch for preparation of a form HA-520 and appropriate action following the court's dismissal. The Appeals Council will treat the civil action as a timely filed request for review. If the Appeals Council denies the request for review, the denial notice to the claimant/representative must contain the standard language regarding court rights.