Issue Exhaustion in Pre-Enforcement Judicial Review of Administrative Rulemaking

Statement #19 – Issue Exhaustion in Pre-Enforcement Judicial Review of Administrative Rulemaking examines judicial application of an issue exhaustion requirement in pre-enforcement review of administrative rulemaking.

Citation: Admin. Conf. of the U.S., Statement #19, Issue Exhaustion in Pre-Enforcement Judicial Review of Administrative Rulemaking, 80 Fed. Reg. 60611 (Oct. 7, 2015).

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Final Recommendation:

Statement # 19: Issue Exhaustion in Pre-Enforcement Judicial Review of Administrative Rulemaking

Recommendation number
Statement #19
Adoption Date
Committees

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 whe

Project Documents

Name Committee Type Date File
April 27, 2015 Meeting Agenda Judicial Review Agenda Download
April 17, 2015 COJR Agenda Judicial Review Agenda Download
Proposed Recommendation Issue Exhaustion in Preenforcement Judicial Review of Administrative Rulemaking Judicial Review Recommendation Download
Statement # 19: Issue Exhaustion in Pre-Enforcement Judicial Review of Administrative Rulemaking Judicial Review Recommendation
Apr. 13 Draft to Apr. 21 Revised Draft Recommendation Redline Judicial Review Recommendation Download
Proposed Statement - Issue Exhaustion Judicial Review Recommendation Download
Apr. 21, 2015 Revised Draft Recommendation Judicial Review Recommendation Download
Proposed Statement - Issue Exhaustion REDLINE Judicial Review Recommendation Download
Proposed Draft Statement - Issue Exhaustion Judicial Review Recommendation Download
Proposed Draft Statement - Issue Exhaustion - Fuchs Comments Judicial Review Recommendation Download
Apr. 13 Issue Exhaustion Draft Recommendation Judicial Review Recommendation Download
Proposed Draft Statement - Issue Exhaustion - Morrison Comments Judicial Review Recommendation Download
Proposed Draft Statement - Issue Exhaustion - Siciliano Comments Judicial Review Recommendation Download
Proposed Draft Statement - Issue Exhaustion - Starr Comments Judicial Review Recommendation Download
Issue Exhaustion Proposed Recommendation redline Judicial Review Recommendation Download
Issue Exhaustion on Judicial Review of Administrative Rulemaking Draft Report Judicial Review Report Download
Fail to Comment at Your Own Risk: Does Issue Exhaustion Have a Place in Judicial Review of Rules? Judicial Review Publication Download
Apr. 21 revised draft recommendation Bangser (EPA) comments Judicial Review Public Comment Download
4/13 draft recommendation Wehling (EPA) comments Judicial Review Public Comment Download
4/13 draft recommendation Morrison comments Judicial Review Member Comment Download
Proposed Draft Statement - Issue Exhaustion - Kouzoukas Comments Judicial Review Member Comment Download
Siciliano et al Amendments - Issue Exhaustion Proposed Recommendation Judicial Review Member Comment Download
Siciliano et al Letter - Issue Exhaustion Proposed Recommendation Judicial Review Member Comment Download
Williams Amendment - Issue Exhaustion Proposed Recommendation Judicial Review Member Comment Download

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