Exhaustion of Remedies

Exhaustion of Remedies

this means that complainant has to go via all of the appeals process afforded by the agency b4 it can get a review by the ct. Is the agency finished (finality) even though you are finished (exhaustion) (difference between finality & exhaustion). Exhaustion serves to preserve agency authority- agency need to build record for review furthermore it may change its mind A challenger must exhaust remedies with the agency b4 seeking judicial review in ct.

Why would you argue that waiving it in this situation is consistent with Matthews?

(1) In the specific case, the court found that the special nature of SS mitigated against preclusion (2) Informal, and applicants seldom have counsel (3) Because in Matthews, the hearing involved the submission of medial information to determine if the person was disabled. The hearing was very informal.

Waiver

the court may waive it when there is not statutory or regulatory requirement or where the person is arguing the unconstitutionality of the statute or regulation or that the agency exceeded its authority, or where the issue was raised by someone else in the rulemaking

What are the exceptions to exhaustion of remedies?: Factual

If it would be inappropriate because of bias or prejudice

Why might you choose to go through the agency appeals process even if you could go directly to court under an exception, or because exhaustion is not required for your case?

(1) Cheaper, get to do the admin route, first, and then go to court... (2) Because you may receive a favorable agency decision, and going to court is time and resource consuming.

What does Portela-Gonzalez tell us about common law exhaustion as compared to APA exhaustion?

(1) Simply because you believe that a you are not able to receive a fair consideration in an agency action does not allow a person to go to the courts before they exhaust all of their agency appeals. (2) APA is narrower than common law exhaustion. (3) Just knowing that you are going to lose through the agency process is not enough (4) You have to show that the agency is biased or prejudiced (which is nearly impossible)

What is administrative issue exhaustion?

(1) This is where an issue has not been raised in the proceedings before the agency, however the claimant then tries to raise the issue on judicial appeal (same rules as for courts-issue must have been raised in the lower court). (2) That a person must first raise an issue before the agency before the court can conduct judicial review on the matter.

Why is failing to exhaust your remedies (if required and not within an exception) a fatal error that the court cannot correct on equitable grounds?

(1) You failed to exhaust - you LOST - you lost the administrative appeal, and foreclose judicial appeal! (Katrina stuff) (2) Because the court can only review what is in the agency record, and if there is not enough information, or the person does not ask for an agency specific remedy, the court may not be able to decide the case on that merit.

What are the exceptions to exhaustion of remedies?: Legal

1. If It would undermine the courts ability to provide effective relief (irreparable harm) 2. If the admin remedy cannot give effective relief (such as monetary damages)

There are exceptions: exhaustion of remedies?

1. When exhaustion would cause undue prejudice to the protection of the rights at issue- that is there would be unreasonable or indefinite time frame for admin action, or suffering irreparable harm in no stat judicial determination 2. The admin agency lacks the power to grant effective relief. 3. The exhaustion would be futile because the administrative body is biased.

When might the court waive it? Part 1

Court will waive it when issues mitigate against preclusion because of the informality of the process and/or lack of representation.

How do the primary jurisdiction doctrine and exhaustion doctrine differ?

Exhaustion is when the agency has primary jx'dn & the ct is recognizing it. If there is no clear reason that the agency will be final ct will hear it. In primary jx'dn both could equally hear the case but ct will defer to agency. Exhaustion is a defense that can be used by the agency to prevent judicial review- thus when exhaustion is required, the agency does not get jurisdiction of the question before the exhaustion has occurred. However, primary jurisdiction is not a defense to judicial review and cannot be raised in a judicial challenge to agency action; it is more of an abstention doctrine that is invoked when there are two non-federal parties litigating (such as a state agency and private party, etc). Thus, the court could hear the case but chooses not to based on an analysis of the three factors.

What are the standards the court should use when deciding whether to defer to an agency in a primary jurisdiction question? SUMMARY

In short, Whether the question is one that Congress expected the agency to handle, whether the agency can use its specialized expertise to unravel the problem, and whether an agency ruling will aid the court when it reviews the agency act.

What are the APA requirements for exhaustion of remedies? APA - 5 U.S.C. § 704 APA

Only required in two circumstances (overruled common law rule) (1) Expressly required by statute (2) When an agency requires it by rule and provides for in automatic stay the agency action pending appeal

Sims v. Apfel: Waiver

The court held that the general rule is that plaintiffs who are subject to exhaustion of remedies must also present the issues they want to appeal to the agency. In the specific case, the court found that the special nature of SS mitigated against preclusion: Informal, and applicants seldom have counsel.) You have to raise your legal claims to the agency that you will use before the court. You cannot raise new claims once your case is under judicial review.

What is the futility doctrine and how do you satisfy it?

The futility doctrine means that it would be futile or inutile to go through the appeals process of the agency. Means that you are arguing that there is no chance that the agency will rule for you, hence no reason to exhaust the remedies. You can show evidence of a biased ALJ (unalterably closed mind) or commissioner. You can also present evidence (factual allegations) of other similar cases where the ruling was not favorable.

When might the court waive it? Part 2

When the issue was raised by another person during the rulemaking, so that the agency had an opportunity to consider the issue. It may also waive it when agency proceedings are more informal in nature, such as SS disability cases where lawyers are not needed to assist the individual

When does the primary jurisdiction doctrine come up?

When there is an issue raised between two non-federal parties. Because this issue is not a judicial review question, it cannot be raised as a defense by the agency to avoid judicial review. It comes up when both the ct and the agency can hear the case when an agency & Ag Gen have jx'dn. It was not applied in the Nader case- even the agency had j'dn it did not preclude the ct from hearing the case as it did not call for the technical expertise of agency. It was a claim for fraudulent misrepresentation w/in the purview of the judiciary.

What are the standards the court should use when deciding whether to defer to an agency in a primary jurisdiction question? FACTORS

a. Need for uniform result b. need for expertise form agency c. the agency may resolve the issue thus obviating need for court d. Whether the agency determination lies at the heart of the task assigned the agency by congress e. Whether agency expertise is required to unravel intricate, technical facts, and f. Whether the agency determination would materially aid the court.

Jurisprudentially, how do you argue that it is OK to waive the failure to present all issues, given that exhaustion itself cannot be waived? Sims v. Apfel - exception

a. Social security disablility benefits b. In the specific case, the court found that the special nature of SS mitigated against preclusion c. Informal, and applicants seldom have counsel, Matthews.....

McCarthy v Madigan

as the wanted money damages & the prison at that time had no way of paying money damage. The ct said that exhaustion should not be done if litigants' interest outweighed the governments' interest. Seeking medical care in prison would fit. Furthermore there were short procedural deadlines increasing the chance that he would screw up.