I-4-1-32.Declarations — Failure to Exhaust Administrative Remedies

Last Update: 9/13/05 (Transmittal I-4-15)

A. General

When a claimant fails to exhaust administrative remedies before filing a civil action, there is, in most instances, no right to judicial review and the analyst will complete a declaration using the fill-in draft in I-4-1-111. The “failure to exhaust” (FTE) declaration is the appropriate document to complete when the AC or the Administrative Law Judge (ALJ) has issued a dismissal order for a reason other than res judicata.

NOTE:

The exception to this instruction occurs when the AC dismisses a request for review of an ALJ's decision for reasons of untimeliness when the claimant lives in an 11th Circuit state (Alabama, Florida, or Georgia) at the time of the AC dismissal of the request for review. In the 11th Circuit, pursuant to Acquiescence Ruling 99-4(11), an AC dismissal of a request for review of an ALJ decision for reasons of untimeliness is a “final decision of the Commissioner made after a hearing” within the meaning of section 205(g) of the Social Security Act and subject to judicial review. Do not prepare a declaration in support of a motion to dismiss. A CAR needs to be prepared unless remand is warranted.

B. Using the Fill-in Draft Declaration

The CCPRB analyst will insert all identifying information in the appropriate blank spaces. Thereafter, the analyst will set forth the complete case history. Attach all relevant documents as exhibits to the declaration.

If the claimant filed a civil action within 60 days of receipt of an ALJ decision (see I-4-1-31 A.) but did not request AC review, the analyst concludes the declaration with the following statement:

When, as in the instant case, the plaintiff files a civil action instead of a request for review within sixty (60) days of an Administrative Law Judge's decision, it is the AC's policy to treat the civil action as a timely filed request for review following the court's dismissal.

When the claimant filed a court action within 60 days of an ALJ decision instead of filing a request for review, the file remains in the CCPRB awaiting the court's dismissal order. When the staff receives the court's order dismissing the civil action, he or she forwards the file to the proper OAO branch to act on the request for review since it is no longer a civil action. Occasionally, a court may stay all actions on a premature civil action, pending receipt of information on the AC action. See I-3-1-56 for a discussion of these procedures.