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ADMINISTRATIVE CONFERFNCE OF THE UNITED STATES
Administrative Conference Statement # 19
Issue Exhaustion in Preenforcement Judicial Review of Administrative
Rulemaking
Adopted September 25, 2015
The doctrine of issue exhaustion generally bars a litigant challenging agency action from
raising issues in court that were not raised first with the agency. Although the doctrine originated
in the context of agency adjudication, it has been extended to judicial review of challenges to
agency rulemakings. Scholars have observed that issue exhaustion cases conspicuously lack
discussion of whether, when, why, or how [the issue] exhaustion doctrine developed in the
context of adjudication should be applied to rulemaking.1 The Administrative Conference has
studied the issue exhaustion doctrine in an effort to bring greater clarity to its application in the
context of preenforcement review of agency rules. The Conference believes that this Statement
may be useful by setting forth a series of factors that it invites courts to consider when examining
issue exhaustion in that context. 2
1 JEFFREY S. LUBBERS, FAIL to COMMENT AT YOUR OWN RISK: DOES ISSUE EXHAUSTION HAVE A PLACE IN JUDICIAL REVIEW OF RULES? 11
(May 5, 2015) (Report to the Administrative Conference of the U.S.) [hereinafter Lubbers Report] (citing PETER L.
STRAUSS, ETAL, GELLHORN AND BYSE'S ADMINISTRATIVE LAW 1246 (10th ed. 2003)); see also Koretoff v. Vilsack, 707 F.3d 394,
399 (D.C. Cir. 2013) (Williams, J., concurring) (joining a decision to preclude preenforcement review of new issues
but writing separately primarily to note that in the realm of judicial review of agency rules, much of the language
of our opinions on 'waiver' has been a good deal broader than the actual pattern of our holdings).
2 This Statement does not address the application of the doctrine in the context of a challenge to a rule in an agency
enforcement action, where the passage of time and new entrants may complicate the inquiry. The Conference has
previously identified issues that Congress should not ordinarily preclude courts from considering when rules are
challenged in enforcement proceedings. See Admin. Conf. of the U.S., Recommendation 82-7, Judicial Review of
Rules in Enforcement Proceedings (Dec. 17, 1982), http://www.acus.gov/82-7.](ViewImageLocal?handle=hein.usfed/isxhprefj0001&div=1&collection=&method=preview&ext=.png&size=3)