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HALLEX I-4-132
Office of Hearings and Appeals
Social Security Administration (S.S.A.)
Department of Health and Human Services

Volume I
Division IV: Civil Action
Subject: New Court Cases
Chapter: I-4-100

June 30, 1994

Current through June 1997

I-4-132 AFFIDAVITS--FAILURE TO EXHAUST

A. General

When a claimant fails to exhaust his or her administrative remedies before filing a civil action, there is, in most instances, no right to judicial review and the analyst will complete an affidavit using the fill-in draft in > I-4-199, Exhibit F. The "failure to exhaust" affidavit is the appropriate affidavit to complete when the Appeals Council or the ALJ has issued a dismissal order for a reason other than res judicata.

B. Using the Fill-in Draft Affidavit

The 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 affidavit.

If the claimant filed a civil action within 60 days (see > I-4-131 A.) of an ALJ decision but did not request Appeals Council review, the analyst will conclude the affidavit 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 Appeals Council'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 division awaiting the court's dismissal order. When the division clerk receives the court's order, he or she forwards the file to the proper OAO component to act on the request for review. See > I-3-156 for a discussion of OAO procedures.

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