I-4-3-10.Declarations — Failure to Exhaust Administrative Remedies

Last Update: 6/26/23 (Transmittal I-4-94)

When a claimant fails to exhaust administrative remedies before filing a civil action, there is, in most instances, no right to judicial review. In such instances, the Court Case Preparation and Review Branch (CCPRB) may be asked to prepare a declaration in support of a motion to dismiss.

If a claimant timely files a civil action rather than requesting Appeals Council (AC) review, the AC will treat the civil action as a timely filed request for review following the court's dismissal. See Hearings, Appeals and Litigation Law (HALLEX) manual I-3-1-4.

NOTE 1:

Occasionally, a court may stay all actions on a premature civil action, pending receipt of the AC action. In such instances, the AC processes the request for review or request for reopening instead of waiting for a dismissal action from the court.

When preparing a declaration, a CCPRB analyst will set forth the complete case history and attach all relevant documents as exhibits to the declaration. The analyst will forward the declaration to the branch chief for attestation.

NOTE 2:

The CCPRB prepares declarations for cases within the jurisdiction of the Office of Hearings Operations or the Office of Appellate Operations. In cases that do not involve the expedited appeals process (see HALLEX I-4-9-40), and where there is neither a request for hearing nor a hearing decision, the CCPRB can only attest, to the best of their knowledge, that there is no request for a hearing in the claim(s) file and no action is currently pending with the hearings office or the AC. This information can usually be conveyed to the Office of the General Counsel (OGC) via email that provides the information and alerts OGC that, if any further information is needed, it must be provided by other sources. If OGC believes they need this information in a declaration format rather than email, a very brief declaration can be prepared.