What is the burden of proving failure to exhaust administrative remedies?
MultiRegion, United States of America
The following excerpt is from Ureno v. Astrue, 1:10cv2163 SKO (E.D. Cal. 2011):
Although Plaintiff asserts that Defendant has the burden to prove the defense of failure to exhaust administrative remedies, it is in fact the plaintiff's burden to establish that subject matter jurisdiction is proper. Kokkonen, 511 U.S. at 377. Further, "lack of subject matter jurisdiction cannot be waived, and the court is under a continuing duty to dismiss an action whenever it appears that the court lacks jurisdiction." Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983).
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