Case 2:22-cv-00223-Z Document 137 Filed 04/07/23 Page 28 of 67 PageID 4450
to the parties of withholding court consideration”); Dawson Farms, LLC v. Farm Serv. Agency, 504 F.3d 592, 606 (5th Cir. 2007) (exhaustion may be excused when “irreparable injury will result absent immediate judicial review”); Bd. of Pub. Instruction of Taylor Cnty., Fla. v. Finch, 414 F.2d 1068, 1072 (5th Cir. 1969) (exceptional circumstances include “where injustice might otherwise result”).
Courts have also excused a claimant’s failure to exhaust administrative remedies where exhaustion “would be futile because the administrative agency will clearly reject the claim.” Gulf Restoration Network v. Salazar, 683 F.3d 158, 176 (5th Cir. 2012) (internal marks omitted); see also Oregon Nat. Desert Ass’n v. McDaniel, 751 F. Supp. 2d 1151, 1159 (D. Or. 2011) (exceptional circumstances include evidence of administrative bias). Additionally, courts will consider any issue that was “raised with sufficient clarity to allow the decision maker to understand and rule on the issue raised, whether the issue was considered sua sponte by the agency or was raised by someone other than the petitioning party.” Pac. Choice Seafood Co. v. Ross, 976 F.3d 932, 942 (9th Cir. 2020). In short, “there is no bright-line standard as to when this requirement has been met.” Nat’l Parks & Conservation Ass’n v. Bureau of Land Mgmt., 606 F.3d 1058, 1065 (9th Cir. 2010). Finally, “[a]dministrative remedies that are inadequate need not be exhausted.” Coit Indep. Joint Venture v. Fed. Sav. & Loan Ins. Corp., 489 U.S. 561, 587 (1989) (a lack of reasonable time limits in the claims procedure renders the procedure inadequate).
- a. Contrary to Public Policy
Judicial review of Plaintiffs’ unexhausted claims is appropriate for several reasons. First, Defendants’ alleged violation of the Comstock Act would be “contrary to an important public policy.” Myron, 670 F.2d at 52. As a case Defendants rely upon explains, the word “abortion” in the statute “indicates a national policy of discountenancing abortion as inimical to the national
28
