Last Update: 6/26/2023 (Transmittal I-4-94)
HA 01430.010 Declarations — Failure to Exhaust Administrative Remedies
Renumbered from HALLEX section I-4-3-10
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
HA 01310.004.
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.
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
HA 01490.040), 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.