Publication Date
12-1-2024
Abstract
The Tenth Circuit is typically more reluctant than most other courts of appeals to treat constitutional claims differently from nonconstitutional claims for purposes of administrative exhaustion. Consequently, the Tenth Circuit is less likely to exempt constitutional claims from exhaustion mandates. The Tenth Circuit usually requires litigants to raise these claims before a responsible agency prior to seeking relief in court, absent a particularized showing of undue burden or futility. Notably, despite the Supreme Court’s recent disparagement of administrative exhaustion of constitutional challenges to agency structure in Axon v. FTC and Carr v. Saul, the Tenth Circuit recently reaffirmed the continuing validity of its prior jurisprudence on exhaustion of constitutional claims, reiterating its pre-Carr assertion that unexhausted “structural challenges ‘have no special entitlement to review’ on appeal from the agency.” This Article describes, defends, and discusses the strategic implications of the Tenth Circuit’s approach to exhaustion of constitutional claims. It identifies specific aspects of Tenth Circuit jurisprudence that make the Tenth Circuit more likely to require exhaustion of constitutional claims. It explains that this approach comports with Supreme Court precedents because the Court has never categorically exempted constitutional claims from exhaustion mandates, despite the Court’s disparagement of agency adjudication of constitutional claims in cases such as Axon and Carr. This Article also argues that the Tenth Circuit is reasonable to presume that administrative exhaustion of constitutional claims provides similar benefits to administrative exhaustion of other claims, absent a particularized showing to the contrary. It further argues that the procedural, legal, and administrative background of significant cases in which the Tenth Circuit required exhaustion of constitutional claims demonstrates the wisdom of this approach. The Article concludes by discussing strategic implications of the Tenth Circuit’s nuanced approach to exhaustion of constitutional claims for agencies and litigants, both at the administrative stage and when litigating the exhaustion issue.
First Page
393
Recommended Citation
Yonatan Gelblum, The Tenth Circuit's Nuanced Approach to Administrative Exhaustion of Constitutional Claims, 102 Denv. L. Rev. 393 (Winter 2025).