Help is Sometimes Close at Hand: The Exhaustion Problem and the Ripeness Solution

82 Pages Posted: 8 Feb 2011

See all articles by Robert C. Power

Robert C. Power

Widener University - Commonwealth Law School

Date Written: 1987

Abstract

This article examines the exhaustion of administrative remedies doctrine, which is poorly defined, justified, and applied. It identifies the central problem as inconsistency between treating the doctrine as a rule, subject to a few specific exceptions, or as a general principle subject to more discretionary application. The Supreme Court has alternated between the two approaches, mixing and matching language in numerous cases. The article argues that the dominant language has been that of a rule with exceptions and that the exceptions have rapidly expanded to the opint they now overlap to an intolerable degree. It notes, however, that there are two overriding themes in cases in which the failure to exhaust administrative remedies has been excused. The first is futility, a situation in which it is highly likely that further administrative proceedings will now provide any remedy for the plaintiff's claims. The second involves irreparable injury to the party seeking judicial review. The article argues that in application, these principles are in large part restatements of the Supreme Court's definition of the governing test for judging the ripeness of judicial review of administrative action. In Abbott Laboratories v. Gardner, the Court developed a two-fold inquiry based on 1) the fitness of the issues for judicial resolution, and 2) the relative hardship to the parties, two inquiries that closely mirror the exhaustion rule and its amorphous exceptions. Fitness largely turns on whether further administrative proceedings will be futile, often because the issues are legal questions in which the agency's position is fixed rather than factual or policy questions suitable for agency decision. For example, if the administrative decision involves primarily legal rather than factual questions and deferring review will cause severe hardship to the plaintiff, it is appropriate to deem the case ripe for review and to excuse the failure of the plaintiff to exhaust all administrative remedies. The article recommends reformulating the exhaustion requirement to reflect that it is largely this variation on ripeness.

Keywords: exhaustion of administrative remedies, McKart v. U.S., ripeness, Abbott Laboratories v. Gardner, timing of judicial review. judicial review of administrative action, irreparable injury, futility, judicial economy, agency expertise, agency autonomy, rule with exceptions, balancing test, legal questio

JEL Classification: k10

Suggested Citation

Power, Robert C., Help is Sometimes Close at Hand: The Exhaustion Problem and the Ripeness Solution (1987). University of Illinois Law Review, Vol. 1987, p. 547, 1987, Available at SSRN: https://ssrn.com/abstract=1755666

Robert C. Power (Contact Author)

Widener University - Commonwealth Law School ( email )

3800 Vartan Way
Harrisburg, PA 17110-9380
United States
717.541.3980 (Phone)

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