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Fail to Comment at Your Own Risk:
Does Issue Exhaustion Have a Place in Judicial Review of Rules?
Jeffrey S. Lubbers*
The requirement that parties seeking judicial review of agency action first exhaust their
administrative remedies initially developed as a prudential judicial construct and now is also
sometimes reflected in statutes.2 The classic version of the exhaustion requirement generally
requires a party to go through all the stages of an administrative adjudication before going to court.
This ensures that the agency action being challenged is the final agency position and that the
agency has had the opportunity to bring its expertise to bear and to correct any errors it may have
made at an earlier stage. It also allows for the resolution of disputes before they come to court,
thus avoiding potentially unnecessary additions to court dockets. I will refer to this as remedy
exhaustion.
The orthodox application of the remedy exhaustion requirement involves cases where the
petitioner for judicial review has eschewed available administrative appeal opportunities. In some
cases, a court's refusal to accept review will simply clear the way for the further administrative
proceedings to take place;3 but in other situations, the foreclosure of judicial relief occurs after
the opportunity to invoke the relevant administrative processes had passed.4
* Professor of Practice in Administrative Law, Washington College of Law, American University; Research Director
of the Administrative Conference of the United States (ACUS) from 1982-1995, Special Counsel to ACUS 2011-
present, J.D., University of Chicago. I thank my research assistant Cooper Spinelli (Class of 2014) and ACUS staff
(Stephanie Tatham, Connie Vogelmann, and Seth Nadler), for very helpful research assistance. Professor Ronald
Levin, Chairman of ACUS's Committee on Judicial Review, provided some invaluable comments and insights on an
earlier draft of this article. This report represents the views of the author and not necessarily those of the
Administrative Conference of the U.S, or its members and committees.
' In 1938 the Supreme Court referred to it as the long-settled rule of judicial administration that no one is entitled to
judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.
Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 (1938) (employers challenging NLRB's jurisdiction must
complete administrative proceedings before seeking judicial intervention). Later the Supreme Court explained that:
[T]he exhaustion doctrine recognizes the notion, grounded in deference to Congress' delegation of
authority to coordinate branches of Government, that agencies, not the courts, ought to have primary
responsibility for the programs that Congress has charged them to administer. Exhaustion concerns
apply with particular force when the action under review involves exercise of the agency's
discretionary power or when the agency proceedings in question allow the agency to apply its special
expertise.
McCarthy v. Madigan, 503 U.S. 140, 145 (1992).
2 See pages 4 - 7, infra.
3 As in Myers, 303 U.S. 41, 50-51 (1938).
4 PETER L. STRAUSS, ET AL, GELLHORN AND BYSE'S ADMINISTRATIVE LAW 1241 (10th ed. 2003) [hereinafter
GELLHORN & BYSE CASEBOOK] (discussing McGee v. United States, 402 U.S. 479 (1971) (Selective Service inductee
denied opportunity to raise conscientious objector defense to criminal conviction because he had not sought personal
appearance before the local board and did not take administrative appeal to contest the denial)).](ViewImageLocal?handle=hein.usfed/flcmyowk0001&div=1&collection=&method=preview&ext=.png&size=3)