Does “Exhaustion” Imply Exhaustion Proper, or Exhaustion Simpliciter?

Woodford v. Ngo

The Prison Litigation Reform Act prohibits prisoners from challenging the conditions of confinement “until such administrative remedies as are available are exhausted,” even where the relief sought cannot be granted by those processes. In California an inmate may follow a process staged from discussions with prison guards, to a written and reviewed request, to review by the Warden, and finally review by the State. Additional restrictions were placed on Respondent after being released from administrative segregation, and his subsequent grievance was denied as untimely, filed more than 15 days after the action being challenged. The question here is what is required by “exhaustion.”

Exhaustion, in jurisprudence, serves to protect administrative authority as well as efficiency. Exhaustion law is therefore directed at those who would rather not do so on their own. The Court describes this issue in terms of Habeas Corpus, where if a prisoner does not “properly” exhaust her remedies (eg. she fails to comply with timeliness requirements) she defaults and those particular claims are no longer available for argument. This type of exhaustion scheme, the Court argues, fits with the PLRA generally and that the contrary would create a toothless scheme where prisoners could thwart process by deliberately violating procedural rules.

Respondent advances three theories for exhaustion. First, that of a period of habeas review where procedural default only occurred upon deliberate attempts to bypass remedies. The Court rejects this because the PLRA bears no indication that it should be read in that time period, especially since it was passed with the AEDPA which itself altered the habeas scheme. Second, Respondent argues that this exhaustion scheme should mirror that of Title VII, though neither require exhaustion, but rather require commencement of proceedings.

The Court goes on to reject the argument that the word “until,” and the Boolean nature of the exhaustion of administrative remedies, imply a question of “when,” not “if;” and that the tolling provisions of the AEDPA should be carried over. Neither is the Court moved by the lack of the word “properly” in the PLRA, as it appears in the AEDPA. Also, although the PLRA provides for circumstances under which a District court could dismiss claims without requiring exhaustion Congress may have meant to provide an escape from extremely long processes, or to indicate that the exhaustion issue is not jurisdictional. Finally, the Court does not accept that the PLRA should incorporate the technical sense of exhaustion found in the AEDPA because the suggestion does not make any sense structurally.

Justice Breyer writes separately to emphasize that just as habeas exhaustion requirements are not absolute, the lower courts on remand should consider implicit exceptions to this one.

The dissent argues that the absence of the requirement that exhaustion be “proper” exhaustion, along with the absence of any provision for procedural default indicates Congress’ intent to leave those requirements out. According to the dissent, procedural default was a judge-made rule deriving from considerations of comity specific to habeas issues, and this contemporary analogy is rejected by the majority for the common law description, though without the recognition that the common law description itself embodies the same procedural scheme.

Justice Stevens argues that it is equally wrong to draw the conclusion that the majority does as it would be to infer the “waiver requirement” that courts should not overturn “topple over administrative decisions unless the administrative body has not only erred, but has erred against objection made at the appropriate time under its practice.”, as that requirement has always been a creature of statute.

The dissent also points to an exception which allows individuals to raise constitutional issues even if they were not raised earlier and accuses the majority of relying largely on policy arguments. I have to admit, the footnote that the dissent points to here, where the majority reassures that what is at issue is what the law is, not what it should be, was well placed to relieve growing concerns as I read the opinion. As I try to give policy arguments a relatively short shrift in these write-ups I will be sure to do so on both sides. The dissent suggests that whatever rule is instated the agency’s prior jurisdiction remains unquestioned. Next, it suggest that the interest in reducing litigation has been demonstrably effected without this limitation, thought the majority calls this reasoning correlative rather than causal. In any case, the dissent continues, “no legislation pursues its purposes at all costs. While arguing that prisoners (who are without access to assistance on administrative matters) lack the incentive and capacity to purposefully evade process, the dissent suggests that it would be equally effective to simply require good faith on their behalf. Finally, the dissent argues that the question of whether a “prisoner’s failure to comply with procedural requirements that do not provide a meaningful for prisoners to raise meritorious grievances” would bar a later federal suit and suggest that an affirmative answer could raise constitutional right-of-access-to-court issues.