I-4-3-10.Declarations — Failure to Exhaust Administrative Remedies
Last Update: 1/13/17 (Transmittal I-4-63)
When a claimant fails to exhaust administrative remedies before filing a civil action, there is, in most instances, no right to judicial review. The Court Case Preparation and Review Branch (CCPRB) staff 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.
Occasionally, a court may stay all actions on a premature civil action, pending receipt of the AC action. In this instance, the AC processes the request for review or request for reopening instead of waiting for a dismissal action from the court.
See HALLEX I-4-9-40 if a civil action is based on a constitutional challenge to the Social Security Act.
The appropriate templates are available in the Document Generation System. The analyst will set forth the complete case history and attach all relevant documents as exhibits to the declaration.
B. Exception – 11th Circuit
When a claimant resides in the 11th Circuit (Alabama, Florida, or Georgia), there is an exception providing judicial review of an AC dismissal. Under Acquiescence Ruling 99-4(11), Bloodsworth v. Heckler, an AC dismissal of an untimely request for review of an administrative law judge decision is a “final decision of the Commissioner made after a hearing” under section 205(g) of the Social Security Act and is therefore subject to judicial review.
In these cases, the AC will not prepare a declaration. Rather, the CCPRB staff will prepare a certified administrative record (CAR) unless the AC intends to remand the case. When preparing the CAR in these cases, CCPRB staff must keep in mind that the Office of the General Counsel is defending the AC's dismissal action, not the merits of the hearing decision.