§ 1091.408 - Issue exhaustion.

§ 1091.408 Issue exhaustion.

(a) Scope. This section applies to any argument to support a respondent's position, including any argument that could be a basis for setting aside Bureau action under 5 U.S.C. 706 or any other source of law.

(b) Duties to raise arguments. A respondent must raise an argument in its written response, or else it is not preserved for judicial review of a proceeding under subpart B. A respondent must raise an argument in its petition for termination, or else it is not preserved for judicial review of a proceeding under subpart C. If the Director requests supplemental briefing, and if a given argument is within the scope of the supplemental briefing requested, the respondent must raise the argument in the supplemental briefing or else it is not preserved for judicial review of a proceeding under subpart B or subpart C, as applicable.

(c) Manner of raising arguments. An argument must be raised in a manner that complies with this part and that provides a fair opportunity to consider the argument.

(d) Discretion to consider unpreserved arguments. The Director has discretion to consider an unpreserved argument, including by considering it in the alternative. If the Director considers an unpreserved argument in the alternative, the argument remains unpreserved.