Doctrine of Exhaustion of Administrative Remedies as an Offensive Tool
| Publication year | 2009 |
| Pages | 53 |
2009, October, Pg. 53. Doctrine of Exhaustion of Administrative Remedies as an Offensive Tool
October 2009
Vol. 38, No. 10 [Page 53]
About the Author
David E. Kreutzer is a First Assistant Attorney General with the Colorado Office of the Attorney General, Hazardous and Solid Waste and CERCLA Litigation Unit, Natural Resources and Environment Section-david.kreutzer@state.co.us. Meghan L. Morrissey is an Associate with the law firm of Klauzer & Tremaine, LLC in Steamboat Springs-megmorrissey@hotmail.com.
The Doctrine of Exhaustion of Administrative Remedies requires those in dispute with the government to exhaust any internal agency remedies prior to litigating the issue in district court. Although usually used by governments to dismiss prematurely brought claims, it also can be used by enforcement attorneys to preclude a defense where the defendant should have administratively appealed the decision the government seeks to enforce.
The Doctrine of Exhaustion of Administrative Remedies (Doctrine) mandates that "courts will not review or grant relief in regard to any aspect of administrative proceedings until the agency has taken final action."(fn1) This rule resembles the rule against interlocutory appeals in federal court and requires that parties exhaust their administrative remedies before seeking judicial review.(fn2) The Doctrine applies only to private litigants.(fn3)
In Colorado, courts strictly adhere to the Doctrine, which serves as a threshold to judicial review.(fn4) Some statutes specifically identify the procedures a party must complete to comply with the Doctrine. In addition to participating in an administrative hearing, the parties also may be required by statute to pursue administrative remedies of reconsideration.(fn5) If a statute does not list the administrative procedures a party is required to follow before challenging the action in court, the party may rely on the general provisions of the Colorado Administrative Procedure Act.(fn6)
The Doctrine is prudential and jurisdictional in Colorado. Colorado Rule of Civil Procedure (Rule) 12(b)(1) governs motions to dismiss for lack of subject matter jurisdiction, and it is the plaintiff's burden to prove jurisdiction.(fn7) In Colorado, if a party
Most exhaustion cases arise against plaintiffs but if failure to exhaust leads to a jurisdictional defect, it would apply to any party.(fn9)fails to exhaust available administrative remedies or to establish that an exception to the exhaustion requirement excuses the failure to do so, "the district court may lack subject-matter jurisdiction over the action."(fn8)
This article discusses various aspects of the Doctrine. It describes the underlying goals of the Doctrine, as well as its use by government lawyers, including a short explanation of the traditional defensive use, and a more detailed exploration of use of the Doctrine by a government plaintiff.
Purposes of the Doctrine
The Doctrine allows agencies with expertise in a particular subject matter to develop the necessary factual record on which the agency and subsequent reviewing courts can base their decisions. It promotes efficiency in the administrative process by preventing the interruption and fragmentation of the process. Allowing the administrative agency to correct its own errors in the first instance preserves the autonomy of the agency and reduces the friction between the branches of government.(fn10) Exhaustion protects against premature interference by the courts and piecemeal litigation.(fn11) The Doctrine "conserves judicial resources by insuring that courts intervene only if the administrative process fails to provide adequate remedies,"(fn12) and applies "with special force when 'frequent and deliberate flouting of administrative processes' could weaken an agency's effectiveness by encouraging disregard of its procedures."(fn13)
Exceptions to the Doctrine
The statutory exception to the Doctrine is stated in CRS § 24-4-106(8). It mandates that, for a district court to intervene before the agency's action becomes final, the agency's authority or jurisdiction must be clearly exceeded, and the party seeking to enjoin the proceedings must show that the agency action will cause irreparable injury.(fn14)
There also are common law exceptions to the Doctrine. For example, exhaustion is unnecessary when: (1) it is "clear beyond a reasonable doubt that further administrative review by the agency would be futile because the agency will not provide the relief requested";(fn15) (2) the agency lacks the authority or capacity to determine the matters in controversy; or (3) resorting to administrative channels would cause undue delay.
A court also may determine that exhaustion is unnecessary when the matter raises questions of law rather than issues that are committed to agency discretion and expertise.(fn16) Additionally, if the named member of a class properly exhausts its administrative remedies, this fulfillment of the Doctrine is imputed to unnamed class members.(fn17) Finally, the agency may waive the Doctrine as it applies to individual parties and the matter may be directly heard before a court.(fn18)
Offensive Use of Exhaustion
The most common application of the Doctrine by government attorneys is as a defensive tool to bar a party from instituting a claim in district court against an administrative agency if the party has failed to exhaust the required...
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