34.

Exhaustion of Administrative Remedies

Generally, the plaintiff suing a government officer may not obtain judicial relief if he has not first exhausted his/her administrative remedies. See Allen v. Grand Central Aircraft Co., 347 U.S. 535, 553 (1954); Aircraft & Diesel Corp. v. Hirsch, 331 U.S. 752 (1947). Exhaustion is also required in Federal Tort Claims Acts suits, 28 U.S.C. § 2675(a), Privacy Act suits, 5 U.S.C. § 552a, in suits challenging adverse personnel actions, and in many other contexts. Darby v. Cisneros, 509 U.S. 137 (1993), holds that, under the Administrative Procedure Act, 5 U.S.C. 704, a person aggrieved by an agency action can seek judicial review of the action without exhausting an available administrative appeal, unless the agency's regulations provide both (1) that the administrative appeal must be taken, and (2) that during the pendency of the administrative appeal the agency action shall be inoperative. [cited in USAM 4-2.120]