Exhaustion
-Must exhaust administrative remedies (See Myers v. Bethlehem Shipbuilding (1938): NLRB charged company with unfair labor practices; need to proceed w/in agency, not in court)
-JM – could have decided on finality grounds
-Myers was easy because important factual inquiries to resolve, disputable legal claim, and no burden to company – later courts have taken more flexible, functional approach (See AMP v. Gardner: allowing court review of whether product was a drug or device because FDA drug licensing process didn’t answer question at all; distinguished from Myers by noting burden of pre-market approval procedures and fact that ? was a legal one)
-could apply retrospectively but sometimes don’t because of fairness concerns (e.g., McKart v. United States: claim is I’m exempt from draft because sole surviving son)
-not complex factual issue (Compare McGee – refusing to permit draftee convicted for failing to report to raise conscientious objector classification defense)
-idea is agency is expert
-only need to exhaust as far as statute says (See Darby v. Cisneros (1993))
-also only need to pursue far enough to determination if non-constitutional basis for resolving dispute (See Mathews v. Eldridge – didn’t need to exhaust administrative remedies b/c clear he wasn’t going to get pre-termination issue) – surely get review if you’re challenging nature of proceedings you’re supposed to exhaust
-but post Chevron does it make sense to saw law ?s are separate from administrative process? JM says we don’t know
-might be that under Mead no deference to interpretive rules
-rejected issue exhaustion in Sims v. Apfel (2000) so can (OR CANNOT) bring new claims not raised before agency