Issue Exhaustion in Preenforcement Judicial Review of Administrative Rulemaking

Statement # 19 – Issue Exhaustion in Preenforcement Judicial Review of Administrative Rulemaking examines judicial application of an issue exhaustion requirement in preenforcement review of administrative rulemaking.  

Citation: 80 Fed. Reg. 60,611, 60,611 (Oct. 7, 2015)

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Committee: 

Final Recommendation

  • Recommendation number: Statement #19
  • Adopted on: September 25, 2015
  • Committees: Judicial Review

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]...

Project Documents

Name Committee Type Date
April 27, 2015 Meeting Agenda Judicial Review Agenda April 21, 2015 Download
April 17, 2015 COJR Agenda Agenda April 10, 2015 Download
Proposed Draft Statement - Issue Exhaustion - Kouzoukas Comments Judicial Review Member Comment August 10, 2015 Download
Siciliano et al Amendments - Issue Exhaustion Proposed Recommendation Judicial Review Member Comment May 28, 2015 Download
Siciliano et al Letter - Issue Exhaustion Proposed Recommendation Member Comment May 28, 2015 Download
Williams Amendment - Issue Exhaustion Proposed Recommendation Judicial Review Member Comment May 28, 2015 Download
4/13 draft recommendation Morrison comments Judicial Review Member Comment April 16, 2015 Download
Apr. 21 revised draft recommendation Bangser (EPA) comments Public Comment April 27, 2015 Download
4/13 draft recommendation Wehling (EPA) comments Judicial Review Public Comment April 16, 2015 Download
Fail to Comment at Your Own Risk: Does Issue Exhaustion Have a Place in Judicial Review of Rules? Judicial Review Publication May 5, 2015 Download
Statement # 19: Issue Exhaustion in Preenforcement Judicial Review of Administrative Rulemaking Judicial Review Recommendation September 25, 2015 Download
Proposed Statement - Issue Exhaustion Judicial Review Recommendation September 16, 2015 Download
Proposed Statement - Issue Exhaustion REDLINE Judicial Review Recommendation September 16, 2015 Download
Proposed Draft Statement - Issue Exhaustion Judicial Review Recommendation August 10, 2015 Download
Proposed Draft Statement - Issue Exhaustion - Fuchs Comments Recommendation August 10, 2015 Download
Proposed Draft Statement - Issue Exhaustion - Morrison Comments Judicial Review Recommendation August 10, 2015 Download
Proposed Draft Statement - Issue Exhaustion - Siciliano Comments Judicial Review Recommendation August 10, 2015 Download
Proposed Draft Statement - Issue Exhaustion - Starr Comments Judicial Review Recommendation August 10, 2015 Download
Issue Exhaustion Proposed Recommendation redline Recommendation June 1, 2015 Download
Proposed Recommendation Issue Exhaustion in Preenforcement Judicial Review of Administrative Rulemaking Judicial Review Recommendation April 29, 2015 Download
Apr. 21, 2015 Revised Draft Recommendation Recommendation April 21, 2015 Download
Apr. 13 Draft to Apr. 21 Revised Draft Recommendation Redline Judicial Review Recommendation April 21, 2015 Download
Apr. 13 Issue Exhaustion Draft Recommendation Judicial Review Recommendation April 14, 2015 Download
Issue Exhaustion on Judicial Review of Administrative Rulemaking Draft Report Judicial Review Report April 10, 2015 Download

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