"Manifest" Destiny?: How Some Courts Have Fallaciously Come To Require a Greater Showing of Congressional Intent for Jurisdictional Exhaustion Than They Require for Preemption

Colin Miller: Assistant Professor of Law, The John Marshall Law School.

What 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."1

But, under well established principles, a statute or other congressional enactment creates an independent duty to exhaust only when it contains "'sweeping and direct' statutory language indicating that there is no federal jurisdiction prior to exhaustion, or the exhaustion requirement is treated as an element of the underlying claim."2

I. Introduction

Congress engages in preemption pursuant to the Constitution's Supremacy Clause when it enacts federal legislation that supersedes existing state and local laws in a particular field and proscribes any future state and local regulation of that field. Because preemption repeals state and local legislative authority over areas of the law traditionally reserved to the states, courts have understandably required that potentially preemptive legislation evince "clear and manifest" congressional intent to supersede state and local legislation.3

Conversely, when Congress, pursuant to its Article III powers, includes a jurisdictional exhaustion requirement in a statute, it merely defers rather than supersedes 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.4 Because this requirement is prudential, federal courts can still, in certain circumstances, hear claims brought before a litigant exhausts her administrative remedies, such as when she can prove agency bias.

By statute, however, Congress can include a jurisdictional or statutory exhaustion requirement. Such a requirement makes the exhaustion of administrative remedies a jurisdictional prerequisite to bringing suit in federal court. When a congressional statute mandates jurisdictional exhaustion, federal courts are completely without jurisdiction to hear cases covered by the statute until potential litigants first exhaust all available administrative remedies.

This being the case, Justice Scalia's "sweeping and direct" requirement is intuitive.5 The Supreme Court rightfully requires a clearer expression of congressional intent in the preemption context than it requires in the jurisdictional exhaustion context; preemption abrogates state and local regulation of a field, while jurisdictional exhaustion merely delays federal court jurisdiction.

Thus, to the extent that Justice Scalia is correct, courts applying his analysis are placing too heavy a burden on Congress in the jurisdictional exhaustion context, unless "sweeping and direct" language would not satisfy the "clear and manifest" purpose test for preemption. This Article addresses recent decisions which hold that exhaustion requirements are jurisdictional only when Congress includes "sweeping and direct" language in statutory enactments. It argues that these courts are improperly citing Supreme Court precedent, and, to an extent, applying the preemption test to jurisdictional exhaustion. Furthermore, these courts are actually requiring a greater showing of congressional intent in the jurisdictional exhaustion context than in the preemption context. While courts have allowed Congress to displace state and local authority through both express and implied preemption, some courts are applying the "sweeping and direct" language test to allow only "express" jurisdictional exhaustion.

These decisions are troubling for a few reasons. First, through imposing this new test, these courts have created an environment where Congress is unsure what degree of congressional intent it must express in a statute to make it jurisdictionally exhaustive. Second, the circuit splits that have been created by these decisions are confusing to potential litigants and constitute a strain on judicial economy.

Parts II and III consider the differences between the exhaustion and preemption doctrines and argue that the excerpted portion of Justice Scalia's concurring opinion is correct: courts should be less demanding of Congress in the jurisdictional exhaustion context than they are in the preemption context.

Part IV analyzes Weinberger v. Salfi, 6 the Supreme Court case that explicitly created the prudential/jurisdictional exhaustion dichotomy and introduced the phrase "sweeping and direct" language into the judicial lexicon. Part V explains that although the Supreme Court and other federal courts have consistently ignored this phrase since Salfi , courts began applying it again in the wa...

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