Yonatan Gelblum has posted The Tenth Circuit's Nuanced Approach to Administrative Exhaustion of Constitutional Claims (102(2) Denver Law Review (forthcoming, 2025)) on SSRN. Here is the abstract:
The Tenth Circuit is typically more reluctant than most other courts of appeals to treat constitutional claims differently for purposes of administrative exhaustion, and consequently less likely to exempt these claims from exhaustion mandates. It 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 Enterprises, Inc. 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 implications of the Tenth Circuit’s approach to exhaustion of constitutional claims. I identify specific aspects of Tenth Circuit jurisprudence that make the Tenth Circuit more likely to require exhaustion of constitutional claims. I explain that this approach comports with Supreme Court precedents, because despite the Court’s disparagement of constitutional adjudication by agencies in cases such as Carr, the Court has never categorically exempted constitutional claims from exhaustion mandates. I also argue that the Tenth Circuit is reasonable to presume that exhaustion of constitutional claims has similar benefits to exhaustion of other claims, absent a particularized showing to the contrary, and that the procedural, legal, and administrative background to significant cases in which the Tenth Circuit required exhaustion of such claims demonstrates the wisdom of this approach. I conclude by discussing why agencies and other litigants involved in or potentially facing litigation over exhaustion of constitutional claims in the Tenth Circuit would do well to consider how the specific characteristics of their case and the applicable administrative scheme might impact on that court’s nuanced analysis.
