Amicus Curiae Brief — Woodford v. Ngo

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FILED

6) | DEC 30 2065

OFFICE OF THE CLERK

No. 05-416 | SUPREME GQUET. US.

In the Supreme Court of the Anited States

JEANNE S. WOODFORD, ET AL., PETITIONERS

VIET MIKE NGO

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

PAUL D. CLEMENT

Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

GREGORY G. GARRE

Deputy Solicitor General

DAN HIMMELFARB

Assistant to the Solicitor

General

BARBARA L. HERWIG

ISAAC J. LIDSKY

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether a prisoner satisfies the exhaustion requirement

of the Prison Litigation Reform Act of 1995, 42 U.S.C.

1997e(a), by filing an untimely or otherwise procedurally

defective administrative appeal.

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TABLE OF CONTENTS

Page

Interest of the United States ...................200045. l

Statement ......... rs amid uiien eas keke exe means 2

ds cnc cuveeeeeueeetekeeeeesees 6

Argument:

A prisoner does not satisfy the PLRA’s exhaustion

requirement by filing an untimely or otherwise

procedurally defective administrative appeal .......... 9

A. The Ninth Circuit’s decision is inconsistent with

PES “n vcdduuusnetatescvesdevens 9

B. The Ninth Circuit’s decision is inconsistent with

lS eee 18

C. The Ninth Circuit’s decision is inconsistent with

the purposes of the PLRA .................... 20

D. The Ninth Circuit’s decision cannot be justified

by the wolicy considerations on which it relied ... 28

EE dic Wh bebe S4 tenn e enbeewebetede eters bedan 30

TABLE OF AUTHORITIES

Cases:

Alexander v. Hawk, 159 F.3d 1321 (11th Cir. 1998) ..... 23

Bejar v. Ashcroft, 324 F.3d 127 (3d Cir. 2003) .......... 12

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971) ........... 18

Blum v. Stenson, 465 U.S. 886 (1984) ..............5. 30

Booth v. Churner, 532 U.S. 731

DEE sabschwoxsdeodes scenes 2, 3, 7, 8, 9, 19, 20, 21, 29

Brewer v. Mullin, 130 Fed. Appx. 264 (10th Cir. 2005) .. 14

Coleman v. Thompson, 501 U.S. 722 (1991) ............ 12

Conroy v. Aniskoff, 507 U.S. 511 (1993) ............... 19

(IIT)

Cases——Continued: Page

Cunningham v. Railroad Ret. Bd., 392 F.3d 567 (3d

CA SED cca vcuvcesscevesnssesswancesenueeniaee ll

EEOC v. Commercial Office Prods. Co., 486 U.S. 107

CRETE one ncccccsncdsncndéspaeceneeeeeeee 6, 16, 17

Edwards v. Carpenter, 529 U.S. 446 (2000) ...... 12, 13, 29

Enriquez-Alvarado v. Ashcroft, 371 F.3d 246 (5th Cir.

DOES wkcheesccceccusuentess 64nsenes eee 1]

Evans v. United States, 504 U.S. 255 (1992) ........... 10

Flakes v. Frank, No. 04-C-189-C, 2005 WL 1276370

(W.D. Wis. May 26, 2005) ......... ccc cece eeeeees 15

Galvez Pineda v. Gonzales, 427 F.3d 833 (10th Cir.

BED cecvcnedéeunencegnécensecdeeeuseeeneee 10, 11

Gilmore v. University of Rochester Strong Mem'l

Hosp. Div., 384 F. Supp. 2d 602 (W.D.N.Y. 2005) .... 17

Gutierrez v. Railroad Ret. Bd., 918 F.2d 567 (6th Cir.

SD cou coccecwcssceedavakeenctae tie 11

Hormel v. Helvering, 312 U.S. 552 (1941) ............. 10

Johnson v. Meadows, 418 F.3d 1152 (11th Cir. 2005),

petition for cert. pending, No. 05-6336 (filed

§&) Re ee eer ee 9, 22, 23, 26

Lewis v. Casey, 518 U.S. 343 (1996) ........05. ERs 15

Mahoney v. Railroad Ret. Bd., 194 F.2d 752 (7th Cir.

DOD vv evc00enseesse0sseuuene aces 11

McCarthy v. Madigan, 503 U.S. 140

Ser rrrere rn 2, 7, 18, 19, 20, 26, 28, 29

NLRB v. Saint-Gobain Abrasives, Inc., 426 F.3d 455

1) 3} er ere ll

O'Sullivan v. Boerckel, 526 U.S. 838 (1999) .... 7, 12, 18, 25

Cases-——Continued: Page

Oscar Mayer & Co. v. Evans, 441 U.S. 750

Thi dae eteehebedbereceveoeves 6, 16, 17

Pennsylvania v. Finley, 481 U.S. 551 (1987) ........... 29

Petroleum Communications, Inc. v. FCC,

22 F.3d 1164 (D.C. Cir. 1904) ... 2. cccccccccccceee 1]

- Porter v. Nussle, 534 U.S. 516

CAs dedec awe gubntgess 1, 2, 3, 8, 9, 19, 20, 21, 22

Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir.),

cert. denied, 537 U.S. 949 (2002) .... 9, 10, 12, 21, 22, 23

Preiser v. Rodriguez, 411 U.S. 475 (1973) ...........-. 15

Procunier v. Martinez, 416 U.S. 396 (1974), overruled

in part on other grounds by Thornburg v. Abbott,

ee so ccc esespecees 8, 22

Ross v. County of Bernalillo, 365 F.3d 1181

ee sad eeeewes 9, 12, 22, 23

Schacht v. United States, 398 U.S. 58 (1970) .......... 26

Sims v. Apfel, 530 U.S. 103 (2000) ............000 eee 11

Spruill v. Gillis, 372 F.3d 218 (3d Cir.

EES LE es ae 9, 12, 22, 23, 24

Sswajje v. Ashcroft, 350 F.3d 528 (6th Cir. 2003) ....... 12

Thomas v. Woolum, 337 F.3d 720

EE ee passim

Unemployment Comp. Comm'n v. Aragon,

EIS RE re ee 10

United States v. L.A. Tucker Truck Lines, Inc.,

gO ESN 7,10

United States v. Wells, 519 U.S. 482 (1997) ........... 19

Vasquez v. Hillery, 474 U.S. 254 (1986) ............4.. 25

Cases—Continued: Page

Williams v. Comstock, 425 F.3d 175

PEE: vcnvecdbukddedudckeuseesvereteeeieen 9

Wilwording v. Swenson, 404 U.S. 249 (1971) ........... 2

Wudtke v. Davel, 128 F.3d 1057 (7th Cir.

EE dnccckwacnssananngscnoaselbeskneesoseanets 26

Statutes, regulations and rule:

Age Discrimination in Employment Act of 1967,

SPEED. - don Kcdddddndccdvdccesanenst 16

PEED. ap den vecvesdébuginbenesedas 16, 17

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e

CE, ba dnccvuntoduvdtevccscndedsodbabennnedsas 16

SE ED . ve bcn dus cxsincossswicke 16

Civil Rights of Institutionalized Persons Act,

Pub. L. No. 96-247, 94 Stat. 349 ............cceceeee 2

SR LEE caneedababesnsearndsbintiuke 2

PR DEED bidesatdonennanaaae 18, 19, 20

Prison Litigation Reform Act of 1995, 42 U.S.C.

DD sidetutehivnbvsbecenwnsbant 1, 3, 5, 9, 10, 22

Pe ED Wivi-dusdencnke'ed ted séncdeeenoenaa 1]

PD MEE Sis voccndcticccuecavugeusasetiadaen 20

SEED oi cade endkdn sceneusssuusueeneien 5

SED - cnvcnciuvccecaecddscanaent 5, 12

Se vncdwinutadcesseekioeswiapoonel 6, 14

GO GEE: Siidbantcovkdecbdcbiaevedissesecis 2,4,14

FP ED eo hep dccvecénddvccsssoncddeseantes 1]

Vil

Regulations and rule—Continued: Page

28 C.F.R.: -

ccc cdecnsncdncweuwtesasaunke 1

PT isc cidas docdasdovebsdbeesensenneke 1

I oka a inte et abenuabendanseeante 29

os ee ecakeneaeel 27

I es os i a eee wi bees 1

I ae 27, 29

Cal. Code Regs. tit. 15 (2002): :

EE TERE een nD Pen MLE aa PRET Ps 4, 27

DIED dic ced Gesne kaduehensckweneniel 5

ie ed ae 15

DE Uncdéel waded sluceiehudsddensbnanaKee 4

Md. Regs. Code tit. 12, § 12.07.01.06(F) (2004) ........ 27

Ohio Admin. Code (2002):

I i i a ee adions 27

I a es oe oe oe ; 27

Wis. Admin. Code DOC (2005):

ITT ARS Feat IR Ee ae a ae IRM ES eR 27

I te lee Cte sav Sntvbslenwehene vanes 27

I hs he eet Jkt ee eS a 17

Miscellaneous:

141 Cong. Rec. (1995) :

IS EE ee ee ae Et 3

EE RE Dec AES is 28

a 2, 28

i Se bebcividandidntehsdibeasieaadbibewsens 24

Vill

Miscellaneous—Continued: Page

Sy, ST <n 4u cdi sedends Gevkseucseenaens 24

iy ST aiheddn ewstuned cbene head madddeaseceaer 19

hE Shh cd ces avndasdnéchcckencéesseneeudea 3

Felix Frankfurter, Some Reflections on the Reading

of Statutes, 47 Colum. L. Rev. 527 (1947) ........... 10

H.R. Rep. No. 21, 104th Cong., lst Sess. (1995) ........ 3

Prison Reform: Enhancing the Effectiveness of

Incarceration: Hearing Before the Senate Comm.

on the Judiciary, 104th Cong., Ist Sess. (1995) ...... 10

Susan P. Sturm, The Legacy and Future of

Corrections Litigation, 142 U. Pa. L. Rev.

DPE cc cunddddaawsgaduneabheseednsndeuecess 2

Webster’s Third New International Dictionary

In the Supreme Court of the Gnited States

No. 05-416

JEANNE S. WOODFORD, ET AL., PETITIONERS

Vv. :

VIET MIKE NGO

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

This case presents the question whether a prisoner satis-

fies the exhaustion requirement of the Prison Litigation Re-

form Act of 1995 (PLRA), 42 U.S.C. 1997e(a), by filing an

untimely or otherwise procedurally defective administrative

appeal. The United States has a substantial interest in the

resolution of that question. Pursuant to its authority to man-

age federal prisons, the Bureau of Prisons (BOP) has adopted

an administrative remedy program through which inmates

may seek review of issues relating to their confinement. See

28 C.F.R. 542.10 et seg. That program imposes time limita-

tions and other procedural requirements on the filing of ad—

ministrative claims. See 28 C.F.R. 542.14, 542.15. Inmates

frequently name BOP officials as defendants in actions aris-

ing from conditions of confinement in federal correctional

institutions, and the PLRA’s exhaustion requirement applies

to those suits. See Porter v. Nussle, 534 U.S. 516, 524 (2002).

The Court’s decision in this case will therefore affect both the

efficacy of the BOP’s administrative remedy program and the

(1)

conduct of litigation against BOP officials. The United States

participated as an amicus curiae in each of this Court’s prior

cases addressing the proper interpretation of the PLRA’s

exhaustion provision. Porter, supra; Booth v. Churner, 532

U.S. 731 (2001).

STATEMENT

1. “Litigation challenging the conditions and practices in

prisons * * * isarelatively recent phenomenon. Until the

1960s, courts adopted a ‘hands-off’ approach to prison cases.”

Susan P. Sturm, The Legacy and Future of Corrections Liti-

gation, 142 U. Pa. L. Rev. 639, 659 (1993). When prisoner

litigation first began to proliferate, state prisoners alleging

constitutional violations were not required to exhaust admin-

istrative remedies before filing suit in federal court. See Wil-

wording v. Swenson, 404 U.S. 249, 251 (1971) (per curiam).

That rule was changed in 1980, when Congress enacted the

Civil Rights of Institutionalized Persons Act (CRIPA), Pub.

L. No. 96-247, 94 Stat. 349, which included a “limited exhaus-

tion requirement” for prisoner suits, McCarthy v. Madigan,

503 U.S. 140, 150 (1992). The CRIPA authorized a district

court to stay an action under 42 U.S.C. 1983 for a specified

period while the prisoner exhausted “such plain, speedy, and

effective administrative remedies as are available,” but only

if the administrative remedies met certain federal standards

and the court believed that exhaustion was “appropriate and

in the interests of justice.” CRIPA § 7(a), 94 Stat. 352. The

rule was changed again in 1996, when Congress enacted the

PLRA, which “address|ed| the alarming explosion in the

number of frivolous lawsuits filed by State and Federal pri-

soners.” 141 Cong. Rec. 26,548 (1995) (statement of Sen.

Dole). The PLRA addressed that problem in a number of

ways, including by “invigorat{ing] the exhaustion prescrip-

tion.” Porter v. Nussle, 534 U.S. 516, 524 (2002).'

The PLRA provides that “[njo action shall be brought

with respect to prison conditions under section 1983 of this

title, or any other Federal law, by a prisoner confined in any

jail, prison, or other correctional facility until such admini-

strative remedies as are available are exhausted.” 42 U.S.C.

1997e(a). That exhaustion provision “differs markedly” from

the CRIPA’s. Porter, 534 U.S. at 524. Exhaustion is now

mandatory rather than discretionary; a prisoner must now

exhaust all available remedies, not just those that meet fed-

eral standards and are “plain, speedy, and effective”; and the

requirement now applies to federal as well as state prisoners.

See ibid. This Court has interpreted the PLRA’s exhaustion

provision in two recent cases, unanimously rejecting, on both

‘occasions, narrow interpretations of that provision as incon-

sistent with Congress’s intent. See Booth v. Churner, 532

U.S. 731 (2001) (prisoner seeking only money damages must

exhaust administrative remedies that provide some form of

relief, even if they do not provide monetary relief); Porter,

supra (exhaustion requirement applies to all suits about.

prison life, whether they involve general circumstances or

particular episodes, and whether they allege excessive force

or some other wrong).

2. Respondent is a California prisoner who is serving a

life sentence. In October 2000, while incarcerated at San

Quentin State Prison, he was placed in administrative segre-

' See H.R. Rep. No. 21, 104th Cong., Ist Sess. 7 (1995) (bill “addresses the

problem of frivolous [prisoner] lawsuits” by, inter alia, “requir|ing| that all

administrative remedies be exhausted prior to a prisoner initiating a civil rights

action in court”); 141 Cong. Ree. at 4275 (statement of Rep. Canady) (bill

“significantly curtail|s| the ability of prisoners to bring frivolous and malicious

lawsuits by forcing prisoners to exhaust all administrative remedies before

bringing suit in Federal court”); id. at 35,624 (statement of Rep. LoBiondo)

(“{aln exhaustion requirement * * * would aid in deterring frivolous claims”)

(quoting letter from former Attorney General Richard Thornburgh).

gation for engaging in “inappropriate activity” with volunteer

priests. In December 2000, he was returned to the general

population, but, as a consequence of the “inappropriate activ-

ity,” his participation in certain programs was limited and he

was prohibited from corresponding with a former San

Quentin Catholic Chapel volunteer. Approximately six

months later, in June 2001, respondent appealed that disci-

plinary action to prison officials. The prison’s appeals coordi-

nator rejected the appeal as untimely, because respondent

had not filed it within 15 working days of the action being

challenged, as the applicable California regulations require.

Approximately one week later, respondent filed a second ap-

peal, which was also rejected as untimely. Pet. App. 2-3, 23.°

3. Respondent then sued petitioners and other prison of-

ficials under 42 U.S.C. 1983 in the United States District

Court for the Northern District of California, challenging the

same disciplinary action that was the subject of his untimely

administrative grievance. Pet. App. 3, 22-23. Respondent

alleged violations of his free-speech, free-exercise, and due-

process rights, and also asserted « claim of defamation under

state law. /bid. The district court granted the defendants’

motion to dismiss. /d. at 22-26. It held that respondent had

not “fully exhausted his administrative remedies,” as the

PLRA requires, because there are “several levels of appeal”

within the California prison system and respondent had not

proceeded beyond the first level. /d. at 24-25."

The regulations provide that a prisoner “must submit [an] appeal within

15 working davs of the event or decision being appealed,” and that “lajn appeal!

may be rejected” when the “|tlime limits for submitting the appeal are

exceeded” and the prisoner “had the opportunity to file within the prescribed

time constraints.” Cal. Code Regs. tit. 15, $8 3084.6(c), 3084.3¢¢)(6) (2002).

‘

The levels of appeal established by the regulations are (1) the “inturma!

level,” at which the prisoner and staff involved in the action “attempt to resolve

the grievance informally”; (2) the “first formal level,” at which the decision is

made by other staff: (3) the “second formai level.” at which the decision is made

by the head of the institution or the regional parole administrator, and (4) the

4. The court of appeals reversed. Pet. App. 1-21.

* + The court first held that “{t}he PLRA requires prisoners

to exhaust all available remedies” and that respondent satis-

fied that requirement, because “he could go no further in the

prison’s administrative system” and thus “no remedies re-

mained available to him.” Pet. App. 9. The court then turned

to petitioners’ argument that respondent’s failure to comply

with the administrative filing deadlines constituted a failure

to exhaust. The court rejected that argument, on the ground

that it “confuses the doctrines of exhaustion and procedural

default,” 7bid., and held, instead, that “an untimely adminis-

trative appeal satisfies the PLRA’s exhaustion requirement,”

id. at 11.

The court of appeals acknowledged that, under 28 U.S.C.

2254/b)(1)(A), a state prisoner petitioning for a writ of habeas

corpus must exhaust available state-court remedies, and that

this Court has interpreted that exhaustion requirement to

encompass a procedural-default element that bars a state

prisoner from filing a habeas corpus petition “even though he

has technically exhausted his claims with an untimely habeas

petition filed in state court.” Pet. App. 14. The court of ap-

peals concluded, however, that the PLRA’s exhaustion provi-

sion should be interpreted differently. The court reasoned

that a State’s sovereignty is “less threatened” when a federal

court reviews an action taken by a state prison than when it

reviews a state court’s criminal judgment. /bid. The court

also relied (id. at 15) on the fact that, whereas a state pris-

oner may not file a habeas corpus petition “unless” state-

court remedies have been exhausted, 28 U.S.C. 2254(b)(1), a

state prisoner may not file a Section 1983 action “until” ad-

ministrative remedies have been exhausted, 42 U.S.C.

1997e(a). Finally, the court observed that, unlike the habeas

corpus statute, which provides a standard for reviewing “state

“third formal level,” at which the decision is made by the Director of the

Department of Corrections. Cal. Code Regs. tit. 15, § 3084.5(a)-(e) (2002).

court rulings on issues of fact and law,” the PLRA “has no

language instructing courts how to treat administrative find-

ings.” Pet. App. 15 (citing 28 U.S.C. 2254(d)).

The court of appeals rejected the contention that allowing

a lawsuit to proceed despite the failure to make a timely re-

quest for administrative relief would remove the incentive for

prisoners to file timely administrative claims, and thereby

defeat the PLRA’s objective of giving prison officials the first

opportunity to resolve inmate grievances. The court believed

that prisoners would continue to file timely claims, because

administrative claims provide them with “an additional at-

tempt to win a favorable ruling” and “the fastest route to a

remedy.” Pet. App. 16-17. The court also believed that, even

if prisoners did not file timely claims, prison officials would

still have the opportunity to resolve inmate grievances if they

chose to consider the untimely claims.

Instead of construing the PLRA in the same manner that

this Court has construed the habeas corpus statute, the court

of appeals looked to cases involving claims in the employment

context. See Pet. App. 18 (discussing Oscar Mayer & Co. v.

Evans, 441 U.S. 750 (1979) (Age Discrimination in Employ-

ment Act of 1967), and EEOC v. Commercial Office Prods.

Co., 486 U.S. 107 (1988) (Title VII of the Civil Rights Act of

1964)). The court believed that those cases stand for the

proposition that “administrative exhaustion does not include

a procedural default component.” Pet. App. 18. The court

also believed that requiring timely exhaustion of administra-

tive remedies would “penalize the less sophisticated and less

informed” (id. at 19) and give prison administrators “an in-

centive to fashion grievance procedures which prevent or

even defeat prisoners’ meritorious claims” (id. at 21).

SUMMARY OF ARGUMENT

A prisoner does not satisfy the PLRA’s exhaustion re-

quirement by filing an untimely or otherwise procedurally

defective administrative appeal.

The Ninth Circuit’s contrary decision is inconsistent with

the PLRA’s text. In the contexts in which the term “exhaus-

tion” is most commonly employed—administrative law and

habeas corpus—it is well-settled that the exhaustion of reme-

dies means the proper exhaustion of remedies, including com-

pliance with applicable filing deadlines. For example, this

Court has made clear that an administrative decision should

not be overturned unless the agency “erred against objection

made at the time appropriate under its practice.” United

Statesv. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952).

The Court has likewise made clear that, to “protect the integ-

rity of the federal exhaustion rule” in habeas corpus cases, a

court asks “not only whether a prisoner has exhausted his

state remedies, but also whether he has properly exhausted

those remedies, 2.e., whether he has fairly presented his

claims to the state courts.” O'Sullivan v. Boerckel, 526 U.S.

838, 848 (1999) (internal quotation marks and citation omit-

ted). The settled meaning of “exhaustion” in the contexts

most analogous to the one here is therefore proper exhaus-

tion, and under established principles of statutory construc-

tion, that is the meaning that Congress should be presumed

to have intended when it used the term in the PLRA.

The Ninth Circuit’s decision is also inconsistent with the

PLRA’s history. In McCarthy v. Madigan. 503 U.S. 140

(1992), a pre-PLRA case, this Court declined to adopt an ex-

haustion requirement for suits by federal prisoners. The

exhaustion rule in effect at the time was “limited,” 7d. at 150,

and applied only to state prisoners. In declining to adopt a

requirement that was both stricter and applicable to federal

as well as state prisoners, the Court in McCarthy assumed

that, if either Congress or the Court were to adopt such a

requirement (as Congress subsequently did in enacting the

PLRA), it would not be satisfied if an inmate’s administrative

claim was denied as untimely. See id. at 150, 152-153. As this

Court has recognized, the PLRA’s exhaustion provision must

be read in light of McCarthy, see Booth v. Churner, 532 U.S.

731, 739-741 (2001), and Congress should therefore be under-

stood to have enacted the exhaustion requirement that this

Court identified, but declined to adopt, in that case, ef. id. at

740.

Finally, the Ninth Circuit’s decision is inconsistent with

the PLRA’s purposes. As this Court has recognized, Con-

gress had three principal objectives in mind when it enacted

the exhaustion requirement: enabling prisoners to obtain

relief in the administrative process, thereby obviating the

need for litigation; filtering out frivolous claims; and creating

an administrative record. Porter v. Nussle, 534 U.S. 516, 525

(2002). The Ninth Circuit’s rule frustrates each of those ob-

jectives. Cf. id. at 528. If the untimely filing of an adminis-

trative claim is not a bar to suit, prisoners will have little in-

centive to comply with limitation periods, the number of un-

timely claims will increase, and fewer administrative claims

will be decided on the merits. In addition, allowing claims to

reach federal court without having been timely presented to

prison officials will increase the number of cases in which

courts are acting as “the front-line agencies” for the resolu-

tion of prisoner complaints, a task for which they are “ill —

suited,” Procunier v. Martinez, 416 U.S. 396, 405 n.9 (1974),

overruled in part on other grounds by Thornburgh v. Abbott,

490 U.S. 401 (1989); it will reduce inmates’ incentive to bring

dangerous conditions and abusive practices to the immediate

attention of prison authorities; it will result in prisoners’ nam-

ing their guards as defendants in more lawsuits, thereby

exacerbating the tension that already exists in prisons; and it

will damage the integrity of prison administration by allowing

prisoners to ignore the requirements of grievance systems.

ARGUMENT

A PRISONER DOES NOT SATISFY THE PLRA’S EX-

HAUSTION REQUIREMENT BY FILING AN UNTIMELY

OR OTHERWISE PROCEDURALLY DEFECTIVE AD-

MINISTRATIVE APPEAL

The PLRA prohibits an inmate from bringing an action

that challenges prison conditions “until such administrative

remedies as are available are exhausted.” 42 U.S.C. 1997e(a).

In two recent decisions, this Court has recognized the

breadth of that provision. See Porter v. Nussle, 534 U.S. 516

(2002); Booth v. Churner, 532 U.S. 731 (2001). The question

presented in this case is whether a prisoner satisfies the

PLRA’s exhaustion requirement by filing an untimely or oth-

erwise procedurally defective administrative appeal. As the

majority of the courts of appeals to consider the question

have held, the answer is no. The Ninth Circuit’s contrary

conclusion is inconsistent with the PLRA’s text, history, and

purposes, and the policy considerations on which the Ninth

Circuit relied cannot justify its decision.

A. The Ninth Circuit’s Decision Is Inconsistent With The

Text Of The PLRA

The legal contexts in which the term “exhaustion” of rem-

edies is most commonly employed, and which are closest to

the context of prison litigation, are (1) administrative law and

(2) habeas corpus. As explained below, the term in those con-

texts refers to the proper exhaustion of remedies. That is

* See Williams v. Comstock, 425 F.3d 175 (2d Cir. 2005) (per curiam); John-

son v. Meadows, 418 F.3d 1152 (11th Cir. 2005), petition for cert. pending, No.

05-6336 (filed Sept. 8, 2005); Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004)

(Becker, J.); Ross v. County of Bernalillo, 365 F.3d 1181 (10th Cir. 2004); Pozo

v. McCaughtry, 286 F.3d 1022 (7th Cir.) (Easterbrook, J.), cert. denied, 537

U.S. 949 (2002). Only the Ninth Circuit, in this case, and the Sixth Circuit, in

Thomas v. Woolum, 337 F.3d 720 (2003), have reached a contrary conclusion,

and the Sixth Circuit did so over a forceful dissent, id. at 737-757 (opinion of

Rosen, J.).

therefore the meaning that Congress should be presumed to

have intended when it enacted the PLRA. “|I}f a word is

obviously transplanted from another legal source, whether

the common law or other legislation, it brings the old soil with

it.” Evans v. United States, 504 U.S. 255, 260 n.3 (1992)

(quoting Felix Frankfurter, Some Reflections on the Reading

of Statutes, 47 Colum. L. Rev. 527, 537 (1947)).

1. The PLRA provision at issue requires the exhaustion

of “administrative remedies.” 42 U.S.C. 1997e(a). As the

court of appeals recognized (Pet. App. 6), Congress enacted

the provision to bring the exhaustion requirement for pris-

oner suits “into line with administrative exhaustion rules that

apply in other contexts.” Prison Reform: Enhancing the

Effectiveness of Incarceration: Hearing Before the Senate

Comm. on the Judiciary, 104th Cong., Ist Sess. 20 (1995)

(statement of John R. Schmidt, Associate Attorney General).

In “a variety” of other contexts analogous to this one, “un-

timely filings with administrative agencies do not constitute

exhaustion of administrative remedies.” Galvez Pineda v.

Gonzales, 427 F.3d 833, 838 (10th Cir. 2005). As Judge

Easterbrook has explained, the concept of “exhaustion” in

administrative law “means using all steps that the agency

holds out, and doing so properiy (so that the agency ad-

dresses the issues on the merits).” Pozo v. McCaughtry, 286

F.3d 1022, 1024 (7th Cir.), cert. denied, 537 U.S. 949 (2002).

That description of the law is consistent with decisions of

this Court going back more than half a century. In United

States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33 (1952),

for example, the Court stated a “general rule” of administra-

tive procedure that has been frequently quoted since.

“(CJourts should not topple over administrative decisions,”

this Court said, “unless the administrative body not only has

erred but has erred against objection made at the time ap-

propriate under its practice.” Id. at 37 (emphasis added).

See also Unemployment Comp. Comm’n v. Aragon, 329 U.S.

143, 155 (1946); Hormel v. Helvering, 312 U.S. 552, 556 (1941).

That “waiver principle”—the “ordinary principle| | of adminis-

trative law” that “a reviewing court will not consider argu-

ments that a party failed to raise in timely fashion before an

administrative agency”—has been described as an “ordinary

‘exhaustion’ or ‘waiver’ rule” and as one of “the basic ‘exhaus-

tion of remedies’ rules.” Sims v. Apfel, 530 U.S. 103, 114, 115,

118 (2000) (Breyer, J., joined by Rehnquist, C.J., and Scalia

and Kennedy, JJ., dissenting).’ Indeed, the language in L.A.

Tucker Lines quoted above has been described as a statement

of the exhaustion requirement itself. See, e.g., NLRB v.

Saint-Gobain Abrasives, Inc., 426 F.3d 455, 458-459 (1st Cir.

2005); Petroleum Communications, Inc. v. FCC, 22 F.3d

1164, 1169 (D.C. Cir. 1994).

Consistent with that principle, statutes that require “ad-

ministrative remedies” to be “exhausted” have been inter-

preted to require the timely presentation of claims to the

agency. For example, 45 U.S.C. 355(f) provides that a bene-

fits claimant may obtain judicial review of a final decision of

the Railroad Retirement Board “only after all administrative

remedies within the Board will have been availed of and ex-

hausted,” and the courts of appeals have uniformly concluded

that that requirement is not satisfied if an administrative

claim is rejected as untimely, see Cunningham v. Railroad

Ret. Bd., 392 F.3d 567, 572 (3d Cir. 2004); Gutierrez v. Rail-

road Ret. Bd., 918 F.2d 567, 570 (6th Cir. 1990); Mahoney v.

Railroad Ret. Bd., 194 F.2d 752, 754-755 (7th Cir. 1952).

Likewise, 8 U.S.C. 1252(d)(1) provides that a court may re-

view a final order of removal “only if * * * the alien has

exhausted all administrative remedies available to the alien

as of right,” and the courts of appeals have uniformly con-

cluded that that requirement is not satisfied if an administra-

tive claim is rejected as untimely, see, e.g., Galvez Pineda,

427 F.3d at 838; Enriquez-Alvarado v. Ashcroft, 371 F.3d 246,

* While the quoted language appeared in the dissenting opinion in Sims,

“the Court |was] unanimous” on that “principle of administrative law.” 530

U.S. at 112 (O’Connor, J., concurring in part and concurring in the judgment).

248 (Sth Cir. 2004); Sswajje v. Ashcroft, 350 F.3d 528, 532 (6th

Cir. 2003); Bejar v. Ashcroft, 324 F.3d 127, 132 (3d Cir. 2003).

2. a. The habeas corpus statute also has an exhaustion

provision. It states, in relevant part, that “|aJn application for

a writ of habeas corpus on behalf of a person in custody pur-

suant to the judgment of a State court shall not be granted

unless it appears that * * * the applicant has exhausted the

remedies available in the courts of the State.” 28 U.S.C.

2254(b)(1)(A). As the court of appeals recognized, while “the

habeas exhaustion requirement under § 2254 does not specifi-

cally mention procedural default,” this Court has “grafted

procedural default onto § 2254’s exhaustion requirement”;

there has, in effect, been a “merger of exhaustion with proce-

dural default.” Pet. App. 14. Accord Spruill v. Gillis, 372

F.3d 218, 228-229 (3d Cir. 2004); Ross v. County of Bernalillo,

365 F.3d 1185-1186 (10th Cir. 2004); Thomas v. Woolum, 337

F.3d 720, 745-751 (6th Cir. 2003) (Rosen, J., dissenting in

part); Pozo, 286 F.3d at 1024.

As this Court has explained, the exhaustion requirement

for habeas corpus cases “is designed to give the state courts

a full and fair opportunity to resolve federal constitutional

claims before those claims are presented to the federal

courts.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). The

Court has made clear that that purpose would be “utterly

defeated” if a state prisoner could obtain federal habeas cor-

pus review either by “‘letting the time run’ so that state rem-

edies were no longer available” or by “present/ing/ his claim

to the state court, but in such a manner that the state court

could not, consistent with its own procedural rules, have en-

tertained it.” Edwards v. Carpenter, 529 U.S. 446, 453 (2000)

(quoting Boerckel, 526 U.S. at 848). In either circumstance,

“habeas petitioners would be able to avoid the exhaustion

requirement by defaulting their federal claims.” Coleman v.

Thompson, 501 U.S. 722, 732 (1991). “To avoid this result,

and thus protect the integrity of the federal exhaustion rule,”

this Court “ask|s} not only whether a prisoner has exhausted

his state remedies, but also whether he has properly ex-

hausted those remedies, 7.e., whether he has fairly presented

his claims to the state courts.” Boerckel, 526 U.S. at 848 (in-

ternal quotation marks and citation omitted). In requiring

the proper exhaustion of state-court remedies, the Court has

made clear that the procedural-default rule “accompanies”

the habeas corpus statute’s exhaustion requirement, and that

the two are “inseparab|le}.” Carpenter, 529 U.S. at 452.

b. Except insofar as one requires exhaustion of adminis-

trative remedies, while the other requires exhaustion of state-

court remedies, the PLRA’s exhaustion provision is essen-

tially identical to that of the habeas corpus statute. The

Ninth Circuit nevertheless believed that the two provisions

should be interpreted differently. That was error.

The court of appeals relied on the fact that, unlike the

habeas corpus statute, which precludes relief “unless” other

remedies have been exhausted, the PLRA precludes suit “un-

til” other remedies have been exhausted. Pet. App. 15. But

this Court has never suggested that the “inseparability of the

exhaustion rule and the procedural-default doctrine,” Carpen-

ter, 529 U.S. at 452, is dependent on the conjunction “unless.”

Instead, the Court has relied on the fact that the purpose of

the exhaustion requirement—giving state courts “a full and

fair opportunity” to resolve federal claims, Boerckel, 526 U.S.

at 845—would be “utterly defeated,” Carpenter, 529 U.S. at

453, if exhaustion did not mean proper exhaustion.

in any event, the PLRA’s use of “until,” rather than “un-

less,” does not support the Ninth Circuit’s view that the

PLRA’s exhaustion provision merely “defers,” and cannot

“bar| |,” a federal suit. Pet. App. 15. “Until” means “before

the time that,” Webster's Third New International Dictio-

nary 2513 (1993); “unless” means “except on the condition

that,” id. at 2503. That a suit may not be filed “before the

time that” other remedies are exhausted encompasses the

possibility that the time of exhaustion will never arrive. That

is the same as saying that “the condition” of exhaustion will

not be satisfied. There is therefore no basis for concluding

that Congress meant to depart from the background rule of

exhaustion in the administrative law and habeas corpus con-

texts simply because it used “until” rather than “unless.”

The Ninth Circuit also thought it relevant that, unlike

the habeas corpus statute, which provides “a standard of re-

view for collateral re-examination of state court rulings on

issues of fact and law,” the PLRA has “no language instruct-

ing courts how to treat administrative findings.” Pet. App. 15.

But that distinction has no bearing on the issue of exhaustion.

The provision of the habeas corpus statute relied upon by

the court of appeals—28 U.S.C. 2254(d)—presumes that the

federal claim has been “adjudicated on the merits in State

court,” and requires federal courts to accord deference to that

adjudication unless the state court’s decision was unreason-

able. The habeas corpus statute contains no provision ad-

dressing the deference due to a state court’s determination

that a claim was untimely (which, in any event, will usually be

undisputed). Thus, even assuming that, in determining that

respondent’s appeal was untimely, the prison’s appeals coor-

dinator resolved a “difficult legal issue,” Pet. App. 15, the fact

that “nothing in the PLRA directs federal courts to defer to

such a legal conclusion,” 7bid., does not distinguish the PLRA

from the habeas corpus statute."

The question whether a federal court must defer to a

prison’s interpretation of its regulations, moreover, is likely

to arise even under the Ninth Circuit’s interpretation of the

PLRA. Timeliness aside, it is undisputed that al/ available

administrative remedies must be exhausted, see Pet. App. 17,

and there are likely to be cases in which an administrative

claim is denied because the prisoner skipped a step in the

process, see, e.g., Brewer v. Mullin, 130 Fed. Appx. 264, 265-

There is no reason for the PLRA to have a provision, like 28 U.S.C.

2254(d), that addresses the deference ciue to a prison administrator's decision

on the merits of a grievance claim, because, as in other Bivens and Section 1983

actions, constitutional! claims in prisoner suits are decided de novo.

266 (10th Cir. 2005); Flakes v. Frank, No. 04-C-189-C, 2005

WL 1276370, at *3 (W.D. Wis. May 26, 2005), and the federal

court must decide how much deference, if any, should be

given to the prison’s determination of what the grievance

procedure required. For example, California’s regulations

provide that an inmate need not seek relief at the “informal

level” when the matter involves a “[sJerious disciplinary in-

fraction|}” (Cal. Code Regs. tit. 15, § 3084.5(a)(3)(B)), and

prison officials may deny relief to an inmate who did not seek

relief at the informal level based on the conclusion that the

matter at issue was not a serious disciplinary infraction.

Finally, the Ninth Circuit believed that the exhaustion

provisions of the PLRA and habeas corpus statute should be

interpreted differently because “|a] state’s sovereignty” is

“less threatened” when a federal court reviews an action

taken by a state prison than when it reviews a criminal judg-

ment of a state court. Pet. App. 14. Indeed, the court of ap-

peals went so far as to say that interpreting the PLRA’s ex-

haustion provision to require the timely presentation of ad-

ministrative claims would serve “neither the interests of fed-

eralism nor comity.” /d. at 19. That view is flatly contra-

dicted by Preiser v. Rodriguez, 411 U.S. 475 (1973), where

this Court explained that it is “difficult to imagine an activity

in which a State has a stronger interest, or one that is more

intricately bound up with state laws, regulations, and proce-

dures, than the administration of its prisons.” /d. at 491-492.

For that reason, the Court stressed that States “have an im-

portant interest in not being bypassed in the correction of

[the internal] problems” of their prisons, and that “[t)Jhe

strong considerations of comity that require giving a state

court system that has convicted a defendant the first opportu-

nity to correct its ownerrors * * * also require giving the

States the first opportunity to correct the errors made in the

internal administration of their prisons.” /d. at 492. Accord,

e.g., Lewis v. Casey, 518 U.S. 343, 362 (1996).

3. In holding that the PLRA authorizes untimely exhaus-

tion, the Ninth Circuit, like the Sixth Circuit, see Thomas,

337 F.3d at 727-730, relied principally (Pet. App. 18) on this

Court’s decisions in Oscar Mayer & Co. v. Evans, 441 U.S.

750 (1979), and EEOC v. Commercial Office Products Co., 486

U.S. 107 (1988). Those cases arose in the employment context

and thus are far removed from the concerns that Congress

was addressing in the PLRA. They provide no basis for con-

cluding that Congress intended to depart from the back-

ground rule in the contexts of administrative law and habeas

corpus—i.e., that exhaustion means proper exhaustion.

Oscar Mayer involved a provision of the Age Discrimina-

tion in Employment Act of 1967 (ADEA), 29 U.S.C. 621 et

seq., that precludes the filing of suit “before the expiration of

sixty days after proceedings have been commenced under [a]

State law” prohibiting discrimination in employment. 29

U.S.C. 633(b). The Court held that a plaintiff's failure to com-

ply with the statute of limitations for the state claim does not

bar the federal suit. 441 U.S. at 758-765. Commercial Office

Products involved a provision of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. 2000e et seq., that requires the filing of

a charge with the Equal Employment Opportunity Commis-

sion (EEOC) within 180 days of the challenged employment

practice, except that, when proceedings have been instituted

with a state or local agency with authority to grant or seek

relief from an unlawful employment practice, a charge must

be filed with the EEOC within 300 days of the challenged

employment practice. 42 U.S.C. 2000e-5(e)(1). The Court

held that the 300-day period is applicable even if the state or

local proceedings were not timely commenced. 486 U.S. at

122-124.

Contrary to the Ninth Circuit’s assertion, this Court did

not state in either Oscar Mayer or Commercial Office Prod-

ucts that “administrative exhaustion does not include a proce-

dural default component.” Pet. App. 18. Nor does either case

support the view that a statute requiring that remedies be

“exhausted” should not be interpreted to require the timely

presentation of claims to the agency (or state court), because

the statutory provisions at issue in those cases do not require

exhaustion of state remedies. In Oscar Mayer, the Court

explicitly stated that the ADEA provision at issue “does not

stipulate an exhaustion requirement,” 441 U.S. at 761, and in

Commercial Office Products, which involved a provision of

Title VII that bears even less resemblance to an exhaustion-

of-state-remedies requirement, the Court largely relied on

Oscar Mayer, see 486 U.S. at 123-124.’ The decision in Oscar

Mayer rested, not on an interpretation of the term “ex-

hausted,” or even on general principles of exhaustion, but

mainly on specific features of the ADEA provision that do not

appear in the PLRA.*

‘

Insofar as the provision at issue in Commercial Office Products is an

exhaustion provision, it requires the exhaustion of federal (not state) remedies,

and, consistent with the ordinary rule, it requires their exhaustion to be t: mely.

“In general, the filing of an untimely charge (with the EEOC] will not suffice

for purposes of the exhaustion requirement.” Gilmore v. University of

Rochester Strong Mem Hosp. Div., 384 F. Supp. 2d 602, 607 (W.D.N.Y. 2005)

(citing cases).

* The first feature is the word “commenced,” which, the Court explained,

“strongly implies * * * that state limitations periods are irrelevant,” since, “by

way of analogy, under the Federal Rules of Civil Procedure even a time-barred

action may be ‘commenced’ by the filing of a complaint.” Oscar Mayer, 441

U.S. at 759 (citing Fed. R. Civ. P. 3). The second feature is the last sentence of

the provision, which states that, if any requirement for the commencement of

proceedings is imposed by a State “other than a requirement of the filing of a

written and signed statement of the facts upon which the proceeding is based.”

the proceeding shall be deemed to have been commenced at the time the

statement is mailed to the appropriate state authority. 20 U.S.C. 683(b). The

Court reasoned that a limitation period is a requirement “other than a require-

ment of the filing of a written and signed statement,” and that a state pro-

ceeding must therefore be “deemed commenced * * * as soon as the complaint

is filed,” without regard to whether the filing was timely. 441 U.S. at 760.

B. The Ninth Circuit's Decision Is Inconsistent With The

History Of The PLRA

Four years before Congress enacted the PLRA, this

( decided McCarthy v. Madigan, 503 U.S. 140 (1992),

n addressed the question whether a federal prisoner

must exhaust administrative remedies before filing suit under

Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971). The Court answered that

question no. The basis for the decision was that Congress

had not required exhaustion—the CRIPA imposed only a

“limited” exhaustion requirement, McCarthy, 503 U.S. at 150,

and did not reach Bivens suits at all—and that it would be

inappropriate for the Court to impose such a requirement.

Id. at 149-156. The Court stressed, however, that Congress

was free to do so. See id. at 156.

While the Court did not adopt an exhaustion requirement

in McCarthy, it assumed that, if there were a general exhaus-

tion requirement, it would not be satisfied if an inmate’s ad-

ministrative claim was denied as untimely. Indeed, that was

one of the grounds for the Court’s decision. The Court ex-

plained that the CRIPA required exhaustion only if it was “in

the interests of justice,” and that the CRIPA therefore gave

a court discretion to allow an inmate’s suit to proceed even if

he “failfed] to meet filing deadlines under an administrative

scheme.” 503 U.S. at 150 (quoting CRIPA § 7(a)(1), 94 Stat.

352). A more typical exhaustion rule would not allow for such

discretion, and the Court found it “difficult to see why a

stricter rule of exhaustion than Congress itself ha|d] required

in the state prison context should apply in the federal prison

context.” /d. at 150-151. Then, in evaluating “the individual

and institutional interests” implicated by a stricter rule of

exhaustion (and determining that the former outweighed the

latter), the Court observed that prison filing deadlines “create

a high risk of forfeiture of a claim for failure to comply,” and

that the deadlines “require a good deal of an inmate at the

peril of forfeiting his claim.” /d. at 152-153.

McCarthy thus assumed that a general exhaustion re-

quirement—as opposed to the CRIPA’s “limited” require-

ment, 503 U.S. at 150—would incorporate a procedural-de-

fault rule and thus bar a federal suit if the administrative

claim was denied as untimely. It is presumed that Congress

is familiar with this Court’s decisions when it legislates, see,

e.g., Conroy v. Aniskoff, 507 U.S. 511, 516 (1993), and that

Congress “expects its statutes to be read in conformity with

thle] Court’s precedents,” Porter, 534 U.S. at 528 (quoting

United States v. Wells, 519 U.S. 482, 495 (1997)). That canon

has particular force here, because the legislative history of

the PLRA confirms that Congress was familiar with McCar-

thy—and, indeed, that it was responding te that decision

when it enacted the law. See 141 Cong. Rec. 35,623 (1995)

(statement of Rep. LoBiondo). It therefore follows that,

when it passed the PLRA, which included an “invigorated”

exhaustion requirement, Porter, 534 U.S. at 529, applicable to

both federal and state prisoners, see id. at 524, Congress

intended to enact the exhaustion requirement that this Court

had identified, but declined to adopt as a matter of judicial

discretion, in McCarthy just four years earlier.

The Court drew a similar conclusion based on McCarthy

in Booth, supra, which holds that exhaustion is required un-

der the PLRA even if the inmate seeks only money damages

and the administrative procedure does not provide such a

remedy. The Court noted that the CRIPA had required ex-

haustion only of “effective” administrative remedies and that

McCarthy had indicated that “only a procedure able to pro-

vide money damages would be ‘effective’” when money dam-

ages was all that a prisoner sought. 532 U.S. at 740 (quoting

CRIPA § 7(a)(1), 94 Stat. 352). The Court then reasoned that

the PLRA required a different result than McCarthy because

Congress “removed the very term”—“effective”’—that the

Court had “previously emphasized.” /bid. So too here. The

CRIPA required exhaustion only if it was “in the interests of

justice,” CRIPA § 7(a)(1), 94 Stat. 352, and McCarthy indi-

cated that that language gave district courts discretion to

hear an inmate’s suit even if he “failled| to meet filing dead-

lines under an administrative scheme,” 503 U.S. at 150. The

PLRA then removed the very term—“interests of jus-

tice” —that the Court had previously emphasized. The “stat-

utory history,” Booth, 532 U.S. at 739, thus bolsters the con-

clusion that the PLRA requires proper exhaustion, including

compliance with applicable filing deadlines.

C. The Ninth Circuit's Decision Is Inconsistent With The

Purposes Of The PLRA

l. a. It is “[bleyond doubt” that “Congress enacted

§ 1997e(a) to reduce the quantity and improve the quality of

prisoner suits.” Porter, D34 TS. at 524. This Court has rec-

ognized that, in requiring prisoners to “afford|] corrections

officials time and opportunity to address complaints internally

before * * * the initiation of a federal case,” id. at 525, Con-

gress had three principal objectives in mind. First, exhaus-

tion might enable a prisoner to obtain relief in the administra-

tive process, “thereby obviating the need for litigation.” /bid.

Even relief that is different from (or less than) that requested

will “satisfy at least some inmates.” Booth, 532 U.S. at 737.

Second, “internal review might ‘filter out some frivolous

claims.’” Porter, 534 U.S. at 525 (quoting Booth, 532 U.S. at

737). When an administrative decisionmaker rejects a claim

and explains the reasons for doing so, the inmate may be per-

suaded that it is not worth pursuing the claim in court, partic-

ularly since the PLRA’s “three strikes” provision precludes

the filing of an in forma pauperis suit after the inmate has

had at least three prior cases dismissed on the ground that

they were “frivolous” or “malicious,” or “failjed] to state a

claim upon which relief may be granted.” 28 U.S.C. 1915(g).

Third, “for cases ultimately brought to court, adjudication

could be facilitated by an administrative record that clarifies

the contours of the controversy,” Porter, 534 U.S. at 525, and

thereby “foster|s] better-prepared litigation,” Booth, 532 U.S.

at 737. In general, complaints filed by inmates are notori-

ously difficult to decipher, and the development of an admin-

istrative record can help inmates refine them, or at least illu-

minate the nature of the claims. The administrative process

may also put the parties in a better position to move for sum-

mary judgment, and reduce the need for burdensome and

costly discovery.

If the untimely filing of an administrative claim is not a

bar to suit, as the Ninth Circuit held, the incentive of prison-

ers to comply with limitation periods will be substantially

reduced, and the number of untimely claims will inevitably

increase. When a claim is not timely filed, the administrative

decisionmaker will almost always resolve it without reaching

the merits, particularly when, as in this case, the claim is filed

long after the deadline has passed. See Pozo, 286 F.3d at

1025. And to the extent that decisionmakers resolve adminis-

trative claims without reaching the merits, the principal pur-

poses of the PLRA’s exhaustion requirement will be defeated.

The need for litigation will not be obviated (since the inmate

will not be granted relief); frivolous claims will not be filtered

out (since there will be no explanation of why the claim lacks

merit); and an administrative record will not be created (since

there is no factual development when a claim is rejected on

procedural grounds). Because those congressional objectives

will be furthered only if prison administrators routinely de-

cide inmate grievances on the merits, Congress “could not

have intended a definition of exhaustion that routinely per-

mits claims to reach the federal courts without the benefit of

any prior consideration on the merits.” Thomas, 337 F.3d at

750 n.8 (Rosen, J., dissenting in part).

In resolving the interpretive question presented in Porter,

this Court relied, in part, on “the PLRA’s dominant concern

to promote administrative redress, filter out groundless

claims, and foster better prepared litigation of claims aired in

court.” 534 U.S. at 528. As a number of courts of appeals

have recognized, the same “dominant concern” requires a

conclusion that the term “exhaustion” in Section 1997e(a)

means proper exhaustion.”

b. In addition to the three principal objectives identified

by this Court, other purposes served by the PLRA’s exhaus-

tion requirement would be undermined if a prisoner could

exhaust remedies by filing untimely administrative claims.

First, the exhaustion requirement reflects a recognition that

prison officials are in the best position to investigate and eval-

uate complaints in the first instance and decide what correc-

tive action, if any, should be taken. If a substantial propor-

tion of prisoner claims are allowed to proceed to federal court

without having been previously addressed on the merits, the

courts, in effect, will be “actiing) as the front-line agencies for

the consideration and resolution of the infinite variety of pris-

oner complaints,” a task for which they are “ill suited.”

Procunier v. Martinez, 416 U.S. 396, 405 n.9 (1974), overruled

in part on other grounds by Thornburgh v. Abbott, 490 U.S.

401 (1989). Second, the exhaustion requirement helps to en-

sure that inmates bring dangerous conditions and abusive

practices to the attention of prison authorities as soon as pos-

sible, so they can take appropriate corrective action. Under

the Ninth Circuit’s decision, prisoners have a greatly dimin-

ished incentive to report such matters immediately, and thus

prison officials may not be promptly apprised of dangerous

* See Johnson, 418 F.3d at 1159 (“none of the aims of § 1997e(a) has been

achieved here because prison officials did not review the merits of Johnson's

complaint”); Spruill, 372 F.3d at 230 (“{a}ll three goals | of Section 1997e(a)] are

obviously served by a procedural default rule”); Ross, 365 F.3d at 1186

(“{ajllowing prisoners to proceed to federal court simply because they have filed

a time-barred grievance would frustrate the PLRA’s intent”); Pozo, 286 F.3d

at 1023-1024 (“allowling] a prisoner to ‘exhaust’ state remedies by spurning

them * * * would defeat the statutory objective”). See also Thomas, 337 F.3d

at 742 (Rosen, J., dissenting in part) (because inmate's grievance was rejected

as untimely, his complaint was not reviewed on the merits and “none of the

aims of § 1997e(a) has been achieved”).

conditions and abusive practices. Third, a prison grievance

process has the potential to be a far less adversarial and far

more cooperative means of resolving inmate complaints than

litigation in federal court. When inmates deprive themselves

of the opportunity for administrative relief by filing untimely

claims, and then name their guards as defendants in federal

lawsuits, the tensions that already exist in prison may be ex-

acerbated. Finally, the exhaustion requirement helps “avoid

the possibility that frequent * * * flouting of the adminis-

trative processes could weaken the effectiveness of an agency

by encouraging people to ignore its procedures.” Johnson v.

Meadows, 418 F.3d 1152, 1156 (11th Cir. 2005) (quoting Alex-

ander v. Hawk, 159 F.3d 1321, 1327 (11th Cir. 1998)), petition

for cert. pending, No. 05-6336 (filed Sept. 8, 2005). As Judge

Becker has observed, one of the “subtler benefits” of requir-

ing proper exhaustion is that it “enhances the integrity of

prison administration” by “ensur[ing] prisoner compliance

with the specific requirements of the grievance system.”

Spruill, 372 F.3d at 230."°

2. a. Respondent contends that “a prisoner has no strate-

gic incentive to ‘disregard(]’ the prison grievance process,

because the result of that process * * * receives no defer-

ence in and has no effect on the subsequent § 1983 suit.” Br.

in Opp. 15 (quoting Pet. 8). That contention is wrong and

ultimately misses the point. An inmate seeking to tie up

prison officials in litigation may well have incentives to bypass

the administrative process and its salutary benefits of focus-

ing the lawsuit. In addition, a failure to file a timely adminis-

trative claim may put a prisoner in federal court more quickly

than if he properly exhausts the appellate process. In any

event, the major concern is less that the Ninth Circuit’s deci-

'* When an administrative claim has been adjudicated on the merits, the

statutory purposes have been served, and the PLRA’s exhaustion requirement

has been satisfied. That is true even if the claim was untimely and could have

been rejected on that ground, but prison officials nevertheless exercised their

discretion to consider it. See Ross, 365 F.3d at 1186; Pozo, 286 F.3d at 1025.

sion creates an incentive to file untimely claims than that it

undermines the incentive to file timely claims. The rule ap-

plied by the majority of circuits, in contrast, “creates an over-

whelming incentive” to do so. Spruill, 372 F.3d at 230.

The Ninth Circuit believed that, under its approach, pris-

oners will have a strong incentive to file timely administrative

claims, because such claims provide “an additional attempt to

win a favorable ruling” and “the fastest route to a remedy.”

Pet. App. 16-17. That assertion is at odds with the record

before Congress when it enacted the PLRA, which estab-

lished that “(t]he vast majority of [prisoner] suits are com-

pletely without merit.” 141 Cong. Rec. at 26,553 (statement

of Sen. Hatch). Congress passed the PLRA because, in the

words of one of its sponsors, suing had become a “recreational

activity for [many] long-term residents of our prisons,” who

recognize that “a courtroom is * * * a more hospitable place

to spend an afternoon than a prison cell” and therefore

“churnied} out” suits “in response to almost any perceived

slight or inconvenience” and “with no regard to * * * their

legal merit.” /d. at 26,553-26,554 (statement of Sen. Kyl).

Such prisoners “would have nothing to lose in flouting prison

procedures, because they would have no legitimate expecta-

tion of obtaining any remedy through the prison’s grievance

process.” Thomas, 337 F.3d at 752 (Rosen, J., dissenting in

part). For them, “it matters only that they reach the finish

line of thle] process and secure their ticket to federal court.”

Ibid.

b. The Ninth Circuit also expressed the view that, even

if its decision had the effect of increasing the number of un-

timely administrative filings, it would “in no way obstruct the

goal of allowing prison officials first crack at resolving prison-

ers’ grievances,” because the prison “decide|s] whether to

exercise its discretion and accept or refuse the opportunity to

hear the case on the merits regardless whether the grievance

is timely filed.” Pet. App. 17. In this case, the court of ap-

peals observed, the appeals coordinator “could have consid-

ered |respondent’s] appeal; she was authorized to do so by the

grievance regulations, but elected not to.” /bid. The Ninth

Circuit thus endorsed the Sixth Circuit’s view that the pur-

poses of the PLRA’s exhaustion requirement would be de-

feated only if prison administrators were not given “any op-

portunity to review the claim.” Thomas, 337 F.3d at 727.

That view is mistaken.

The notion that prison administrators need only be given

“some opportunity” to decide a claim on the merits cannot be

reconciled with the fact, acknowledged by the Ninth Circuit,

that an inmate does not exhaust administrative remedies un-

less he “submit|s] his * * * grievance to the prison and

appeal(s| all denials of his claims completely through the pris-

ons’ administrative process.” Pet. App. 17. A prisoner who

files a timely claim at one or more but not all administrative

levels has given the prison some opportunity to address his

claim on the merits, but he has nevertheless failed to comply

with the PLRA’s exhaustion requirement. Under the Ninth

Circuit’s decision, a prisoner who makes a timely filing at

three levels but does not file any claim at the fourth has not

satisfied the exhaustion requirement, but a prisoner who

makes an untimely filing at all four levels has. The Ninth

Circuit made no effort to explain why Congress would have

intended such an anomalous result.

Congress did not intend such a result. There has been no

exhaustion in either circumstance, because it is never suffi-

cient that prison administrators be given some opportunity to

decide a claim on the merits. The exhaustion doctrine re-

quires that the decisionmaker be given a “full and fair oppor-

tunity,” Boerckel, 526 U.S. at 845, and thus a “meaningful

opportunity,” Vasquez v. Hillery, 474 U.S. 254, 257 (1986), to

decide the claim, and prison officials do not have a full, fair,

and meaningful opportunity to decide claims denied as un-

timely. Indeed, under the Ninth Circuit’s decision, an inmate

satisfies the PLRA’s exhaustion requirement as long as he

files his administrative claims, which are ordinarily due within

days or weeks of the challenged action or decision, see Br. of

Amici New York et al. in Support of Pet. 3 n.2, before the

expiration of the applicable statute of limitations for a Bivens

or 1983 suit, which is ordinarily two years, see, e.g., Johnson,

418 F.3d at 1154 (Georgia); Pet. App. 20 n.4 (California);

Thomas, 337 F.3d at 754 & n.14 (Rosen, J., dissenting in part)

(Ohio), but could be as long as six, see Wudtke v. Davel, 128

F.3d 1057, 1061 (7th Cir. 1997) (Wisconsin).

At bottom, the Ninth Circuit’s decision minimizes the

harm to prison officials caused by late or otherwise defective

filings, because they can always waive their deadlines or

adopt longer ones. That view ignores the fact that there are

“good reasons for establishing deadlines for the filing of griev-

ances.” Thomas, 337 F.3d at 753 (Rosen, J., dissenting in

part). They include (1) “the inherent benefit of prompt inves-

tigation, while memories are still fresh and all involved in-

mates and prison employees remain at the facility”; (2) “the

desire to bring the entire matter, including all available inter-

nal appeals, to a conclusion within a reasonable time period”;

and (3) “the greater likelihood that a prisoner might be satis-

fied by swift action against any transgressors.” /bid. Those

benefits “accrue to prisoners and prison officials alike.” /bid.

See also McCarthy, 503 U.S. at 157 (Rehnquist, C.J., concur-

ring in the judgment) (“short filing deadlines will almost al-

ways promote quick decisionmaking by an agency”).

Nor is there any reason to presume that prisons do not

ordinarily enforce their deadlines, even when, as here, prison

officials have discretion to consider untimely claims. As with

other adjudicators that are presented with an untimely claim,

see, e.g., Schacht v. United States, 398 U.S. 58, 64 (1970) (this

Court may consider untimely certiorari petition in criminal

case “when the ends of justice so require”), it should be pre-

sumed that prison administrators will consider an inmate’s

untimely administrative claim only if there is a satisfactory

excuse for the failure to meet the deadline.'' And a decision-

maker cannot be said to have had a full, fair, and meaningful

opportunity to consider claims that, under the applicable legal

regime, are considered only in unusual circumstances.

The Ninth Circuit did not deny that prisons ordinarily

enforce their filing deadlines. Instead, it effectively sought to

“shift|| * * * from inmates to prison officials,” Thomas, 337

F.3d at 742 (Rosen, J., dissenting in part), the burden of satis-

fying the PLRA’s objective that inmate grievances be adjudi-

cated on the merits in prison before arriving in federal court.

There is no basis to believe, however, that Congress wished

to put prison officials to the choice of vindicating the purposes

of the PLRA’s exhaustion requirement by ignoring their own

filing deadlines, on the one hand, or enforcing the deadlines

and thereby undermining the exhaustion requirement’s pur-

poses, on the other. Indeed, the benefits of exhaustion are

largely the benefits of txmely exhaustion, which enables de-

velopment of the factual record while memories are fresh.

The “some opportunity” theory rests on the mistaken

premise that the PLRA’s exhaustion requirement is merely

“a benefit accorded to state prisons, an opportunity to satisfy

those inmate grievances the state wishes to handle inter-

nally.” Thomas, 337 F.3d at 726. In fact, the exhaustion re-

quirement benefits not only prisons but also (1) the federal-

court system, which had been inundated with frivolous pris-

oner suits; (2) the parties in other federal cases that litigate

in good faith and suffer when scarce judicial resources are

'' Some States’ regulations explicitly provide that an untimely claim will be

considered only on a showing of “good cause,” see, ¢.g., Md. Regs. Code tit. 12,

§ 12.07.01.06(F ) (2004); Ohio Admin. Code § 5120:9-31( .J)(2) and (3) (2002); Wis.

Admin. Code DOC §§ 310.096), 310.13(2) (2005), and the BOP’s regulations

allow an extension of the deadline if the inmate demonstrates “a valid reason,”

28 C.F.R. 542.14(b), 542.15(a). California's regulations provide that an un-

timely appeal “may be rejected” if the inmate “had the opportunity to file

within the prescribed time constraints,” Cal. Code Regs. tit. 15, § 3084.3(¢)(6)

(2002), but they do not specify the showing necessary for such an appeal to be

accepted.

expended on frivolous litigation; and (3) the taxpayers who

pay for the court system and the defense of prisoner suits. As

one of the PLRA’s sponsors observed, “[f]rivolous law-

suits * * * by prisoners tie up the courts, waste valuable

legal resources, and affect the quality of justice enjoyed by

law-abiding citizens.” 141 Cong. Rec. at 26,548 (statement

of Sen. Dole). As another sponsor observed, it is precisely

“the burden that [prisoners’] cases place on the Federal

court system” that makes “la]n exhaustion require-

ment * * * appropriate.” /d. at 14,572-14,573 (statement of

Sen. Kyl). By allowing inmates to sue in federal court when

prisons enforce their filing deadlines, the Ninth Circuit’s deci-

sion ignores these other important interests that the PLRA’s

exhaustion requirement was intended to serve.

D. The Ninth Circuit’s Decision Cannot Be Justified By

The Policy Considerations On Which It Relied

The Ninth Circuit also relied on “policy concerns” that, in

its view, “cut against” interpreting the PLRA to require the

timely presentation of administrative claims. Br. in Opp. 16

(emphasis omitted). Those policy considerations cannot over-

come the text, history, and purposes of the exhaustion provi-

sion, and in any event are misguided.

The Ninth Circuit believed that petitioners’ interpretation

would penalize “the less sophisticated and less informed,”

who are unrepresented and thus “unable to satisfy complex

and demanding procedural requirements.” Pet. App. 19. In

support of that view, the court cited (ibid.) the portion of

McCarthy in which this Court expressed a similar view. See

503 U.S. at 153. But the Court expressed that view in the

context of explaining why it would not fashion an exhaustion

requirement for Bivens suits by federal prisoners. See id. at

152-156. As was made clear in that very section of the opin-

ion, the Court assumed that, if either Congress or this Court

were to create an exhaustion requirement for prisoner suits,

prisoners would be obligated to comply with administrative

filing deadlines. See id. at 152-153. Insofar as the language

on which the Ninth Circuit relied has any significance, there-

fore, it is that Congress adopted an exhaustion requirement

despite the contrary policy consideration identified by this

Court in McCarthy (and reiterated by the Ninth Circuit

here). Indeed, this Court acknowledged in Booth that Con-

gress “may well have thought” that McCarthy was “short-

sighted.” 532 U.S. at 737.

In any event, this Court has recognized “the inseparabil-

ity of the exhaustion rule and the procedural-default doc-

trine” in the habeas corpus context, Carpenter; 529 U.S. at

452, such that failure to comply with a filing deadline in state

post-conviction proceedings can bar a habeas corpus petition

in federal court. That is true even though prisoners in state

post-conviction proceedings, like prisoners in administrative

proceedings, are “almost inevitably proceeding without the

guidance of counsel,” Br. in Opp. 16, since there is no consti-

tutional right to counsel at that stage of the case, see Penn-

sylvania v. Finley, 481 U.S. 551, 555 (1987).

Like the Sixth Circuit, which believed that interpreting

the PLRA to require the timely filing of administrative claims

“would likely lead to shorter and shorter timitations periods,”

Thomas, 337 F.3d at 729 n.3, the Ninth Circuit was also con-

cerned that such an interpretation would give prison adminis-

trators “an incentive to fashion grievance procedures which

prevent or even defeat prisoners’ meritorious claims,” Pet.

App. 21. That concern has not been shown to be justified.

Most jurisdictions require the filing of administrative claims

within 14 to 30 days of the action being challenged. See Br.

of Amici New York et al. in Support of Pet. 3 n.2."° And nei-

ther the Ninth Circuit nor respondent (who makes the same

Under the BOP’s regulations, the filing deadlines are 20 calendar days for

submission of an “Administrative Remedy Request” to the Warden; 20

calendar days for appeal! of an adverse decision by the Warden to the Regional

Director; and 30 calendar days for appeal of an aciverse decision by the

Regional Director to the General Counsel. 28 C.F.R. 542.14(a), 542.15(a).

argument, Br. in Opp. 16-17) has cited any instance in which

a filing deadline was made even shorter, or in which

some other “onerous” procedural requirement was imposed

(id. at 16), in light of the court of appeals decisions that reject

the Ninth Circuit’s interpretation of the PLRA. See also

Thomas, 337 F.3d at 753 n.12 (Rosen, J., dissenting in part)

(“To my knowledge, this has not occurred.”).

In any event, “|t]he policy argument|| * * * should be

addressed to Congress rather than to this Court.” Blum v.

Stenson, 465 U.S. 886, 895-896 (1984). As explained above,

the text, history, and purposes of the PLRA all point to the

conclusion that Congress intended its exhaustion provision to

require the proper exhaustion of administrative claims.

There was no basis for the Ninth Circuit to disregard that

intent on the basis of its own policy views.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.