'Manifest' Destiny?: How Some Courts Have Fallaciously Come to Require a Greater Showing of Congressional Intent for Jurisdictional Exhaustion Than They Require for Preemption
41 Pages Posted: 10 Apr 2008
In his concurring opinion in Coit Independence Joint Venture v. Federal Savings and Loan Insurance Company, 489 U.S. 561, 589 (1989), Justice Scalia wrote that
[w]hat is enough to suggest a congressional intent to defer the maturing of a federal cause of action is not enough to suggest a congressional intent to override state law. We have repeatedly said that federal law pre-empts state law in traditional fields of state regulation only when 'that was the clear and manifest purpose of Congress....'
This statement makes sense. Under the doctrine of preemption, Congress enacts federal legislation that supersedes any existing state and local laws in a particular field and proscribes any future state and local regulation of that field. Conversely, when Congress includes a jurisdictional exhaustion requirement in a statute pursuant to its Article III powers, it does not supercede federal court jurisdiction.
Courts have created the doctrine of prudential or administrative exhaustion, which is the requirement that potential litigants exhaust available administrative remedies before they can bring suit in federal court. Because this requirement is prudential, federal courts can still, in their discretion, hear claims brought before a litigant exhausts her administrative remedies in certain circumstances, such as when she can prove agency bias.
By statute, however, Congress can include in a statute a jurisdictional exhaustion requirement, which makes the exhaustion of administrative remedies a jurisdictional prerequisite to bringing suit in federal court. In most cases, then, jurisdictional exhaustion merely delays federal court jurisdiction in cases where a litigant can show a justifiable reason for failure to exhaust available administrative remedies. Why, then, does it seem that some courts are actually requiring a greater showing of Congressional intent to include a jurisdictional exhaustion requirement than the showing of Congressional intent required for preemption?
Keywords: Exhaustion, Preemption
JEL Classification: K19, K23
Suggested Citation: Suggested Citation