Amicus Curiae Brief — Woodford v. Ngo

WY , FILED

No. 05-416 FFB 1 ~- 2609

= CLERK

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In The

Supreme Court of the Anited States

+

JEANNE S. WOODFORD, WARDEN, A.P. KANE

Petitioners,

v.

VIET MIKE NGO

bg Respondent. i

.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

¢

BRIEF FOR AMICI CURIAE LAW PROFESSORS

IN SUPPORT OF RESPONDENT

[Law Professors Listed On Inside Cover]

o

KERMIT ROOSEVELT III

University of Pennsylvania

Law School

3400 Chestnut St.

Philadelphia, PA 19104

215.746.8775

Counsel for Amici Curiae

-_-

-_——

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

LIST OF AMICI AND COUNSEL*

ERWIN CHEMERINSKY

Alston & Bird

Professor of Law and

Political Science

Duke University

DavipD L. FRANKLIN

Assistant Professor

DePaul University

College of Law

AMANDA FROST

Assistant Professor of Law

American University

Washington College of Law

ALAN HYDE

Professor and

Sidney Reitman Scholar

Rutgers University

School of Law

Visiting Professor,

Cornell Law School

SETH KREIMER

KENNETH W. GEMMILL

Professor of Law

University of Pennsylvania

Law School

DANIEL MANVILLE

Clinical State Attorney

Wayne State University

School of Law

TREVOR MORRISON

Assistant Professor of Law

Cornell Law School

JOHN OAKLEY

Professor of Law and

Associate in the

Department of Philosophy

University of California

at Davis Vice-Chair,

Academic Senate of the

University of California

Faculty Representative,

Board of Regents of the

University of California

MALLA POLLOCK

Professor, American Justice

School of Law

Visiting Professor,

University of Idaho,

College of Law

JON ROMBERG

Associate Professor

Seton Hall University

School of Law

KERMIT ROOSEVELT III

Assistant Professor

University of Pennsylvania

Law School

DAVID RUDOVSKY

Senior Fellow

University of Pennsylvania

Law School

ANDREW M. SIEGEL

Assistant Professor of Law

University of South

Carolina School of Law

* Institutional affiliations are provided for identification purposes only.

CATHERINE STRUVE

Professor of Law

University of Pennsylvania

Law School

STEPHEN I. VLADECK

Associate Professor

University of Miami

School of Law

TABLE OF CONTENTS

Page

i al lee cn cipiiasiehiongenmenonenens ii

te rE CII sn iininsindsiendinenccaantunieadidenditobebe 1

SN II os cainscestscntnandnodenniinnnsinognenmiiiadinins 1

TR ccdseniiniicnnssieniimineass ciadiailadiactininbinamenpabinbegincenns 2

I. Original Proceedings Differ from Review

STII chshicnintiihcheanncdeendpinieensinedienbedainbanase 2

II. Inmate Section 1983 Suits Are Original

I tic ci csse hidainendecseinrinccaaanpiinnandibianbioes 5

Ill. Procedural Errors Bar Review Proceedings,

Not Original Proceedings .......................:0000008 6

IV. The Text of the PLRA’s Exhaustion Require-

ment Does Not Support a Procedural Default

tli ihcnisectincdinsinauniisniehedtindnniienetenesiadnininonnnetageosetne ae

V. Policy Considerations Do Not Support the

Addition of a Procedural Default Rule............ 14

EERIE GRA L SE APT NSE CATO TO VOR OO PE RI 22

‘i

TABLE OF AUTHORITIES

Page

CASES:

Abbruzzese v. Railroad Ret. Bd., 63 F.3d 972 (10th

TEE BUTI scitcrssnccsctnianiiesniiacioccnteteiaianehanebekinmamaiaiaanmininniaan 9

Booth v. Churner, 532 U.S. 731 (2001) ....... ccc eee ee 14

Brown v. Allen, 344 U.S. 443 (1953) oo0..cccccccccececeeeeeceeeeeeee 12

Burnett v. Grattan, 468 U.S. 42 (1984)....0.0...0... eee 16, 19

Castille v. Peoples, 489 U.S. 346 (1989) 00.0.0... eeeeeeee 12

Cleavinger v. Saxner, 474 U.S. 193 (1985)..............0..e 18

Coleman v. Thompson, 501 U.S. 722 (1991)................. 6, 12

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

AR: THD nsiccrcdcinvnseibincdstintiinasiindatinipniedsianinliiaieaediamealiaaanall 8,9

EEOC v. Commercial Office Products Co., 486 U.S.

BT (EEG) «2-ncsnerccconcesssoscoveestonssotascosenssepnnnniasennnnniietit 4,15

Engle v. Isaac, 456 U.S. 107 (1982)............ cc ceceeseeeeeeeeeeeees 12

Fay v. Noia, 372 U.S. 391 (1963)... ceseeseeeeeeees 2, 7,12

Gray v. Netherland, 518 U.S. 152 (1997).................. 6, 7, 12

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

GR FIND ccccncnssessccrsscsiniisnsindsaniedinicsiindeiaiaanmidaiamedla 8

Hameetman v. City of Chicago, 776 F.2d 636 (7th

Cle: TIED ncorscscnccsovininssiecnteocietninatijainiinniiabiiieieaaiaiaaam 5

Harris v. Railroad Ret. Bd., 198 F.3d 139 (4th Cir.

ITED vcntencanesinsineansniguiiaptiiideintpieebaieniiaieiemabansals Disendatianiledin 9

Harris v. Reed, 489 U.S. 255 (1985).............ccccccccccsssssccsseees 7

Love v. Pullman Co., 404 U.S. 522 (1972)... 15

McCarthy v. Madigan, 503 U.S. 140 (1992)... 19

iii

TABLE OF AUTHORITIES — Continued

Page

McDonnell Douglas Corp. v. Green, 411 U.S. 792

alii teth clei nitintsit nr aia tena nseneneemanntanenen 4

Muhammad v. Close, 540 U.S. 749 (2004).............cccccceeeee 19

O'Sullivan v. Boerckel, 526 U.S. 838 (1999) ............... 12, 13

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

STE SEE 4, 14, 15, 16,17

Porter v. Nussle, 534 U.S. 516 (2002).............ccccccceeeseeeeeees 14

Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir. 2002).......... 21

Preiser v. Rodriguez, 411 U.S. 475 (1973)..............:ceeee 19

Rivera v. Railroad Ret. Bd., 262 F.3d 1005 (9th Cir.

ETE STEELE SSS a 9

Sones v. Railroad Ret. Bd., 933 F.2d 636 (8th Cir.

STE eee an 9

Sswajje v. Ashcroft, 350 F.3d 528 (6th Cir. 2003)......... 9, 10

Steebe v. U.S. Railroad Ret. Bd., 708 F.2d 250 (7th

EEE ee 4

Strong v. David, 297 F.3d 646 (7th Cir. 2002.................... 16

Szostak v. Railroad Ret. Bd., 370 F.2d 253 (2d Cir.

1960) ......ssssersssessesssssessssessnensnresesnssnesnsanensenssnssnssesensneensanes 9

Thomas v. Woolum, 337 F.3d 720 (6th Cir. 2003)............. 15

United Siates v. L.A. Tucker Truck Lines, Inc., 344

ES ee a 8, 10

United States v. Wells, 519 U.S. 482 (1997) .............00cc00 12

Wainwright v. Sykes, 433 U.S. 72 (1977) ...............00000. 7,18

Wendell v. Asher, 162 F.3d 887 (5th Cir. 1998) ................. 21

iv

TABLE OF AUTHORITIES — Continued

Page

Wilkinson v. Dotson, 125 S.C%. 1242 (2005) ..............ccc00 19

Wolff v. McDonnell, 418 U.S. 539 (1974)...........cccccccceceeeees 18

FEDERAL STATUTES AND REGULATIONS:

Sh A ie accersiceentistnenetnintipinnidneniembbeiteteatiiitesn dabined 4

ee inacicrcieeniesinnicsnntstaidineedinimabtinindmuiniaiadestbiasine 4,8,9

ary it TIITITTEDcisenierniesieeisintindaiesssieiseatanncaniaeaiveitinicitaaaiebintaiiates 20

Ns i ice eaecees innings tient lintel 3,7

8 ESS TNT mere ome TE Foe 13

I, I tanita rhaliaetch initial deahcela 4

re ee i ictiiescneretisinticiiimsindiititiniicratinaiinitininiomaniiial passim

a I wiccannnsithistriiceticitiaiiaiiiininasinia tanita’ 5, 11, 13, 20

I a ie ee

I See icksciditcarstiiincihasetiicesinieiiciiaenieisataaseniaiaiitactiliiiataieid 8

STATE STATUTES AND REGULATIONS:

I i i aoe 17

ff 8 EERE reer cee ean et wae

Wisc. Admin. Code § DOC 310.09(6) ...........ccccccecceeeeeees 17

Wisc. Admin. Code § DOC 310.13(2)............cccccccecccce eee ees 17

OTHER AUTHORITIES:

142 Cong. Rec. S2219-03 (daily ed. Mar. 18, 1996)........... 20

141 Cong. Rec. $14,627 (daily ed. Sept. 29, 19995)............ 20

SE GR GERD, TI CD wecencccrcsecesnnemnesenecncssommsncsesnstens 15

TABLE OF AUTHORITIES - Continued

Page

Kermit Roosevelt III, Exhaustion Under the Prison

Litigation Reform Act: The Consequence of Proce-

dural Error, 52 Emory L. J. 1771 (2003) ...... 7, 13, 15, 21

1

INTEREST OF AMICI CURIAE’

Amici Curiae are law professors who teach and write

in the areas of federal jurisdiction, constitutional law, and

civil rights. They believe that this case presents a question

of great importance regarding the availability of federal

judicial relief for violations of inmates’ constitutional

rights. They seek to bring to the Court’s attention an

analytic point outside the parties’ main focus, which they

believe offers substantial guidance in deciding this case.

Amici have no financial interest in the outcome of this

case. ;

+

SUMMARY OF THE ARGUMENT

Neither petitioners nor the Solicitor General acknow]-

edge the key distinction between original proceedings,

which seek judicial review of out-of-court conduct, and

review proceedings, which seek review of the decision of

some other adjudicator. In the context of review proceed-

ings, procedural errors in the course of exhaustion natu-

rally create bars because the decision under review will

rest on a procedural ground. In such circumstances, both

when applying the procedural default doctrine in habeas

jurisprudence and when applying waiver or forfeiture

rules in administrative law cases, federal courts will

typically not reach the merits of the litigant’s claims. But

" The parties have consented to the filing of this amicus brief.

Copies of the letters of consent have been filed with the Clerk of the

Court. This brief was not authored in whole or in part by counsel for a

party, and no person or entity other than amici curiae and their counsel

has made a monetary contribution to the preparation and submission of

this brief.

2

this rule is not the operation of an exhaustion requirement

alone; it stems from the nature of review proceedings.

In original proceedings, by contrast, procedural errors

in an unrelated proceeding do not create bars. Although

original proceedings following exhaustion requirements

are rare, courts in such cases reach the merits despite

procedural errors. Title VII and the Age Discrimination in

Employment Act are instructive examples, as is this

Court’s habeas jurisprudence under the regime of Fay v.

Noia, 372 U.S. 391 (1963).

Once the confusion between original proceedings and

review proceedings is clarified, petitioners’ position boils

down to policy arguments that the goals of the Prison

Litigation Reform Act will be defeated without some

judicially-created analogue to the procedural default

doctrine. A closer analysis of the PLRA reveals, however,

that such a rule is not necessary to protect the statute’s

aims. The PLRA has succeeded quite well in reducing

frivolous lawsuits without any procedural bar, and impos-

ing ene would preclude a substantial number of meritori-

ous claims, something the PLRA’s drafters did not intend.

+

ARGUMENT

I. Original Proceedings Differ from Review

Proceedings

The conceptual key to this case is a distinction, which

neither petitioners nor the Solicitor General address,

between two different types of legal proceedings. In the

first type, an original proceeding, the court is simply

determining the legality of out-of-court action. The plain-

tiff asserts that some actor has violated his rights and

3

asks the court to assess the legality of that actor’s conduct.

Most actions filed in federal district court are of this sort,

with habeas petitions being the most notable exception.

The second type of proceeding, a review proceeding,

asks a court to review the decision of some other adjudica-

tor. In this second type of case, the court need not make its

own decision as to the legality of the out-of-court action

that formed the basis for the claim presented to that

initial adjudicator. It need only determine whether the

other adjudicator’s decision should be sustained or over-

turned. An ordinary appeal is the most obvious example of

this type of claim. Other examples include habeas peti-

tions, which ask federal courts to review the decisions of

state courts, and suits under the Administrative Procedure

Act or agency-specific statutes, which ask them to review

agency decisionmaking.

An exhaustion requirement imposes a prerequisite to

a federal judicial hearing. It ensures that some other

decision will precede the federal hearing, and it raises the

possibility that the federal hearing will be a review pro-

ceeding determining the correctness of that decision. But

an exhaustion requirement does not, by itself, convert the

federal hearing into a review proceeding. That depends on

the statute under which the plaintiff brings suit.

That statute might direct the federal court to review

the prior decision and set out standards of review. For

instance, the habeas statute, 28 U.S.C. § 2254(d), instructs

federal district courts to decide whether a state-court

decision “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as deter-

mined by the Supreme Court of the United States.” On

factual questions, § 2254(e) prescribes that state-court

4

factual determinations “shall be presumed to be correct”

and that the habeas applicant “shall have the burden of

rebutting the presumption of correctness by clear and

convincing evidence.” The Administrative Procedure Act,

likewise, clarifies that APA suits are typically review

proceedings by instructing courts to focus on agency

decisions and setting out standards of review such as

“substantial evidence” and “arbitrary, capricious [or] an

abuse of discretion.” See 5 U.S.C. § 706. So, too, do agency-

specific statutes such as the Immigration and Nationality

Act, 8 U.S.C. § 1252(b)(4).

On the other hand, if the statute does not direct the

court to review the prior decision or set out a standard of

review, the natural conclusion is that a suit under that

statute is an original proceeding. For instance, the Age

Discrimination in Employment Act (“ADEA”) requires

would-be plaintiffs to commence available state proceed-

ings and let them continue for sixty days or to termination

before filing a federal suit. See 29 U.S.C. § 633(b); Oscar

Mayer & Co. v. Evans, 441 U.S. 750, 753 (1979). Title VII

of the Civil Rights Act of 1964 has a similar commence-

ment provision and further requires would-be plaintiffs to

file a complaint with the Equal Employment Opportuni-

ties Commission (“EEOC”) and to receive a right-to-sue

letter before initiating a federal action. See 42 U.S.C.

§ 2000(e)-5(e); EEOC v. Commercial Office Products Co.,

486 U.S. 107, 110-111 (1988). But neither statute directs

federal courts to review state decisions or those of the

EEOC, and suits under Title VII or the ADEA are conse-

quently original proceedings. See, e.g., McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 798-799 (1973) (explaining

that Title VII suits are “de novo proceedings” rather than

review of EEOC determinations).

5

II. Inmate Section 1983 Suits Are Original Pro-

ceedings

42 U.S.C. § 1983 allows individuals to seek a federal

remedy for violations of their federal rights. Section 1983

suits are original proceedings. They do not ask federal

courts to review the decisions of state courts or adminis-

trative bodies; they ask for review of out-of-court conduct

claimed to violate federal rights. See, e.g., Hameetman v.

City of Chicago, 776 F.2d 636, 640 (7th Cir. 1985) (“A suit

under 42 U.S.C. § 1983 is not a mode of judicial review of a

state administrative agencys or state court’s action.”)

(Posner, J.).

The Prison Litigation Reform Act (“PLRA”) has not

changed the nature of § 1983 suits. The PLRA’s exhaustion

requirement, 42 U.S.C. §1997e(a), provides that no

inmate may bring suit under any federal law “until such

administrative remedies as are available are exhausted.”

But unlike the habeas statute and the APA, the PLRA does

not instruct federal courts hearing § 1983 suits brought by

inmates to review the decisions of prison administrators or

set out a standard of review. The statute gives no indica-

tion of an intent to transform § 1983 suits into review

proceedings. The Solicitor General concedes that an

inmate’s § 1983 suit is a “de novo” proceeding. U.S. Br. 14

n.6.

Indeed, it is quite hard to imagine how a § 1983 suit

could be a review of prison grievance proceedings. Such

proceedings may not produce any reviewable findings, and

they are not subject to the same due process constraints as

trials or most administrative hearings; they may be

inquisitorial rather than adversarial, and may restrict an

inmate’s ability to call witnesses or testify. Frequently,

6

prison administrators lack the ability to consider constitu-

tional arguments or award the relief that a § 1983 plaintiff

seeks, so overturning the denial of a grievance would not

have the same consequences as ruling in an inmate’s favor

on an original § 1983 claim. (For descriptions of some

prison grievance systems, see Brief of Jerome N. Frank

Legal Services Organization as Amicus Curiae in Support

of Respondent.)

III. Procedural Errors Bar Review Proceedings,

Not Original Proceedings

The distinction between original and review proceed-

ings is crucial for determining the consequence of a proce-

dural error. In a review proceeding, the court assesses the

decision of some other adjudicator. If that decision rests on

a valid procedural ground, the court will usually uphold it

as correct without reaching the merits of the plaintiff’s

claim. ’

It is this principle, and not exhaustion by itself, that is

at work in the contexts in which improper exhaustion has

been held to bar subsequent suit. In the habeas context, a

prisoner who fails to observe state procedural rules “meets

the technical requirements for exhaustion.” Coleman v.

Thompson, 501 U.S. 722, 732 (1991). What bars his peti-

tion is the doctrine of procedural default: federal courts

will not consider the merits of claims rejected by state

courts on procedural grounds. See, e.g., Gray v. Nether-

land, 518 U.S. 152, 161-162 (1997) (discussing procedural

default).

Procedural default, as this Court has repeatedly

explained, “has its historical and theoretical basis in the

‘adequate and independent state ground doctrine.’” Harris

7

v. Reed, 489 U.S. 255, 260 (1985). That is, procedural

default is not merely a rule created by the Court for policy

reasons; nor is it an inherent feature of exhaustion re-

quirements. It exists because habeas petitions are review

proceedings and federal courts cannot disrupt state judg-

ments that rest on state-law grounds such as state proce-

dural rules. See, eg., Gray, 518 U.S. at 162 (“the

procedural bar ... provides an independent and adequate

state-law ground for the conviction and sentence, and thus

prevents federal habeas corpus review of the defaulted

claim, unless the petitioner can demonstrate cause and

prejudice for the default”).

The operation of an exhaustion requirement by itself

is seen in this Court’s earlier habeas decisions such as Fay

v. Noia, 372 U.S. 391 (1963), which reached the merits of

habeas petitioners’ claims despite procedural errors.” The

introduction of the procedural default doctrine in Wain-

wright v. Sykes, 433 U.S. 72 (1977), resulted from a change

in the Court’s understanding of the nature of habeas — a

change from an original proceeding to a review proceeding

— which was subsequently codified in current 28 U.S.C.

§ 2254. See generally Kermit Roosevelt II, Exhaustion

Under the Prison Litigation Reform Act: The Consequence

of Procedural Error, 52 Emory L. J. 1771, 1788-1798

(2003) (hereinafter “Exhaustion”) (discussing procedural

default and adequate and independent state ground and

noting shift from original to review proceeding).

le

* Noia did note that federal courts could deny relief to inmates who

had “deliberately bypassed the orderly procedure of the state courts.”

372 U.S. at 438. Amici take no position on whether a similar rule would

be appropriate in the context of inmate § 1983 suits.

8

In the administrative law context, likewise, failure to

observe an agency’s procedural requirements will produce

an agency decision resting on a procedural ground. If the

application of the procedural requirement is correct, that

decision cannot be overturned in a review proceeding. As

this Court has explained, “courts should not topple over

administrative decisions unless the administrative body

not only has erred but has erred against objection made at

the time appropriate under its practice.” United States v.

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

The Solicitor General offers two contexts in which, he

argues, federal appellate courts have interpreted exhaus-

tion provisions to require timely presentation of claims to

administrative agencies: the Railroad Unemployment

Insurance Act, 45 U.S.C. § 355(f), and the Immigration

and Nationality Act, 8 U.S.C. § 1252(d)(1).

The Railroad Unemployment Insurance Act in fact

uses language quite different from that of the PLRA. It

permits review of “final decisions” on the condition not

simply that remedies “are exhausted” but that they “will

have been availed of and exhausted.” 45 U.S.C. § 355(f)

(emphasis added). This language might indeed be under-

stood to require that the plaintiff make timely filings in

order to “avail” himself of administrative remedies. In fact,

however, it has generally not been understood that way.

The Solicitor General’s suggestion that courts of appeals

have “uniformly” concluded that untimely claims consti-

tute a failure of exhaustion, U.S. Br. 11, is a substantial

overstatement. That is a minority position among the

circuits, held by the Third and the Sixth. See Cunningham

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

Gutierrez v. Railroad Ret. Bd., 918 F.2d 567, 5670 (6th Cir.

1990).

9

The Fourth, Seventh, Ninth, and Tenth Circuits, by

contrast, have not found a failure to exhaust but rather

concluded that a Board decision dismissing an appeal as

untimely is not a “final decision” and therefore not review-

able. See Rivera v. Railroad Re: £2 262 F.3d 1005, 1010-

1011 (9th Cir. 2001) (decision mut “inal” because not “on

the merits”); Harris v. Railroad Ket. Bd., 198 F.3d 139,

141-142 (4th Cir. 1999) (decision to reopen not provided for

by statute, hence not susceptible to judicial review) Ab-

bruzzese . Railroad Ret. Bd., 63 F.3d 972, 974 (10th Cir.

1995) (decision not to reopen is “discretionary, and as such,

is nonfinal and unreviewable”); Steebe v. U.S. Railroad

Ret. Bd., 708 F.2d 250, 254 (7th Cir. 1983) (no review

because reopening decision not provided for by statute);.

Cunningham, 392 F.3d at 572 n.6 (discussing split). The

Second and the Eighth Circuits will in fact review deci-

sions not to reopen under an abuse of discretion standard.

See Sones v. Railroad Ret. Bd., 933 F.2d 636, 638 (8th Cir.

1991); Szostak v. Railroad Ret. Bd., 370 F.2d 253, 254 (2d

Cir. 1960). And some circuits will review the decisions if

they present colorable constitutional issues. See, e.g.,

Harris, 198 F.3d at 142-143 (citing cases).

The Immigration and Nationality Act cases are

similar. The statutory language, requiring that “the alien

has exhausted all administrative remedies available,”

could be read to require active utilization of remedies. 8

U.S.C. § 1252(d)(1). (As the next section of this brief

shows, however, this Court has rejected that reading of the

similar language in the habeas statute.) Some circuits

have held that an untimely appeal of an immigration

judge’s decision is a failure to exhaust. See, e.g., Sswajje v.

Ashcroft, 350 F.3d 528, 532 (6th Cir. 2003). But what they

mean by this is that because the agency decision rests on a

10

procedural ground, a reviewing court will not reach the

merits; it is the procedural ground, if anything, that is

reviewable. The Sswajje court did indeed review the

agency’s decision not to entertain the untimely appeal,

something that a true failure to exhaust should have

prevented. See ibid.

What all the circuits agree on with respect to both

statutes is that plaintiffs who have committed a proce-

dural error cannot obtain judicial review of the merits of

the agency’s handling of their claim. They are entitled, at

most, to review of the procedural decision to dismiss the

appeal or not to reopen the proceeding. That is certainly

correct, but it is not really the operation of an exhaustion

requirement — or at least, it is the operation of an exhaus-

tion requirement only in the context of a review proceed-

ing. It is, like the procedural default rule in habeas, a

recogition of the two crucial facts that (1) the plaintiffs

are attacking a prior decision and (2) a procedural ground

may shield that decision in a review proceeding.

The same reasoning underlies the L.A. Tucker princi-

ple that the Solicitor General endorses as a general state-

ment of the administrative exhaustion rule, U.S. Br. 11:

waiver limits the possible grounds of review. That reason-

ing has no application to an original proceeding such as a

§ 1983 action, because an original proceeding does not

seek review of any prior decision. The basis for the earlier

decision is thus irrelevant; a procedural disposition is no

different from a decision on the merits. Procedural errors

do not bar subsequent original proceedings.

11

IV. The Text of the PLRA’s Exhaustion Require-

ment Does Not Support a Procedural Default

Rule

The conclusion that follows from the preceding sec-

tions is there is no logical reason that an exhaustion

requirement should convert a procedural error into a bar

for a subsequent original proceeding. Such a bar does arise

in subsequent review proceedings, but that is because they

are review proceedings, not because of the exhaustion

requirement. (Indeed, the bar arises in review proceedings

even in the absence of an exhaustion requirement.) Con-

gress could, however, have written a statute that imposed

such a bar on inmates who failed to meet time limits, and

it is therefore necessary to consider the text of the PLRA.

The Solicitor General’s “textual” argument is that this

Court should substitute “properly exhausted” for “ex-

hausted” in §1997e. U.S. Br. 9-10. As the preceding

section demonstrated, that argument is supported by a

minority of the federal circuits in some administrative

contexts, resoundingly rejected by this Court’s habeas

decisions, and conceptually flawed in any event because it

relies on cases dealing with review proceedings.

Petitioners offer a different textual argument, that

whether remedies have been exhausted depends not on

whether they are available, but whether they have been

used. That is, they suggest that a prisoner must in fact use

a remedy in order to exhaust it — invoking the remedy and

having the request denied on non-merits grounds is not

enough. Pet. Br. 14-15. The argument would be more

plausible if the PLRA employed an active voice, requiring,

as does the habeas statute, that “the applicant halve]

exhausted the remedies available.” But it would still be

wrong. In the habeas context, that reading was endorsed

12

by this Court in Brown v. Allen, 344 U.S. 443, 484-487

(1953) (interpreting 1948 statute), but then rejected ten

years later by Fay v. Noia, 372 U.S. 391, 434 (1963), which

pronounced it “refuted by the language of the statute and

by its history.”

On other points, Noia has itself been overruled by

Coleman v. Thompson, 501 U.S. 722 (1991). But its inter-

pretation of “exhausted” stands. For over forty years now,

this Court’s habeas cases have repeatedly made clear that

availability of remedies is the sole criterion for exhaustion.

Proper use or invocation of remedies is not required, for

the exhaustion requirement “refers only to remedies still

available at the time of the federal petition.” Engle v.

Isaac, 456 U.S. 107, 126 n.28 (1982). Once remedies are

unavailable, for whatever reason, an exhaustion require-

ment is satisfied. This understanding of exhaustion was

clear at the time the PLRA was enacted. See, e.g., Gray v.

Netherland, 518 U.S. 152, 161 (1996) (exhaustion re-

quirement “is satisfied ‘if it is clear that [the habeas

petitioner’s) claims are now procedurally barred under

[state] law’”) (alterations in original) (quoting Castille v.

Peoples, 489 U.S. 346, 351 (1989). Given that the Court

“presume(s] that Congress expects its statutes to be read

in conformity with this Court’s precedents, United States

v. Wells, 519 U.S. 482, 495 (1997), Congress’s choice to

require only that “such administrative remedies as are

available are exhausted” should be understood to incorpo-

rate the availability test, not the distinct doctrine of

procedural default.

Petitioners and the Solicitor General seem to suggest

that the Court abandoned this understanding in

O’Sullivan v. Boerckel, 526 U.S. 838 (1999). Pet. Br. 27-28;

U.S. Br. 12-13. Even if true, the suggestion would not be

13

relevant to the interpretation of a statute enacted in 1996.

But it is not true. Boerckel explicitly distinguished be-

tween the exhaustion question (“whether a prisoner has

exhausted his state remedies,” 526 U.S. at 848) and the

procedural default question (“whether he has properly

exhausted those remedies,” ibid. (emphasis in original)).

When the Court found that the petitioner had not properly

exhausted his state remedies, it concluded not that he had

failed to exhaust them, but that he “ha[d] procedurally

defaulted his claims.” Ibid. See generally Roosevelt,

Exhaustion, 52 Emory LJ. at 1785-88 (discussing

Boerckel).

Congress could have required inmates to comply with

procedural requirements on pain of forfeiting their right to

an original § 1983 action. In Title VII, for instance, Con-

gress required would-be plaintiffs to make a timely filing

with the EEOC or suffer just such a forfeiture, even

though the Title VII suit is an original proceeding. See 42

U.S.C. § 2000e-5(e). In setting the general limitations

period for suits against the United States, Congress again

placed an explicit forfeiture condition on timely adminis-

trative filings: “A tort claim against the United States

shall be forever barred unless it is presented in writing to

the appropriate Federal agency within two years after

such claim accrues.... ” 28 U.S.C. § 2401(b) (emphasis

added).

But the PLRA does not impose such a requirement.

Instead, Congress used the standard language of exhaus-

tion, explicitly setting “availablility])” of administrative

remedies as the test for whether a federal suit can be filed.

See 42 U.S.C. § 1997e(a). And because a § 1983 suit is an

original proceeding, a bar does not arise naturally as it

does in review proceedings such as habeas petitions or

14

review of administrative decisions. To impose a bar as a

penalty for improper exhaustion would be to rewrite the

statute and add a condition that Congress omitted.

V. Policy Considerations Do Not Support the

Addition of a Procedural Default Rule

The Court’s analysis might well stop at this point. But

consideration of the policy issues at stake is worthwhile,

for it demonstrates that the statute Congress wrote is a

sensible and well-functioning one. It accommodates both

the goal of reducing the number of frivolous suits and the

goal of allowing inmates with valid claims a day in court,

and it does not require judicial augmentation.

The purpose of the PLRA exhaustion requirement is

“to reduce the quantity and improve the quality of pris-

oner suits” by affording “corrections officials time and

opportunity to address complaints internally before

allowing the initiation of a federal case.” Porter v. Nussie,

534 U.S. 516, 524-525 (2002). Some inmates may be

satisfied with the administrative remedy they receive,

thereby “obviatling] some litigation.” Booth v. Churner,

532 U.S. 731, 736 (2001). Congress hoped, that is, that at

least some complaints could be resolved to the inmate’s

satisfaction through the grievance process, without mak-

ing a federal case out of them.

These policy concerns are familiar; they are the same

ones that inspired Congress to require would-be plaintiffs

under Title VII and the ADEA to invoke state remedies

before filing a federal suit. See Oscar Mayer, 441 U.S. at

755 (noting that Congress required the commencement

of state proceedings “to screen from the federal courts

those problems of civil rights that could be settled to the

15

satisfaction of the grievant ‘in a voluntary and localized

manner”) (quoting 110 Cong. Rec. 12725 (1964) (remarks

of Sen. Humphrey); EEOC v. Commercial Office Products

Co., 486 U.S. 107, 127 (1988); Thomas v. Woolum, 337 F.3d

720 (6th Cir. 2003) (noting analogy). This Court has

already considered whether those policy concerns make it

appropriate to impose a bar on would-be plaintiffs who fail

to meet state procedural requirements. It has said that

they do not, for reasons strikingly applicable to the context

of PLRA exhaustion.”

In Oscar Mayer, the Court noted that imposing a bar

to ADEA suits by plaintiffs who had failed to observe state

procedural rules would be particularly inappropriate “in a

statutory scheme in which laymen, unassisted by trained

lawyers initiate the process.” 441 U.S. at 760 (quoting

Love v. Pullman Co., 404 U.S. 522, 527 (1972). Given that

the ADEA contained its own limitations period, the Court

declined to impute to Congress an intent to “incorporate

by reference into the ADEA the various state age-

discrimination statutes of limitations . . . particularly since,

in many States ... the limitations periods are considerably

shorter” than the federal limits. Jd. at 763. The Court also

noted the concern that requiring compliance with state

* Admittedly, the Oscar Mayer Court apparently thought that there

was something different about exhaustion. See 441 U.S. at 761 (noting

that the ADEA commencement provision “does not stipulate an

exhaustion requirement”). The Court did not explain this remark any

further, but it may have stemmed from an assumption that a suit

following exhaustion is necessarily a review proceeding. If that were the

case, procedural error in the course of exhaustion would invariably

produce a bar. But as the preceding parts of this brief have demon-

strated, the assumption is false. A Section 1983 suit filed after exhaus-

tion of administrative remedies is an origina! action, and an exhaustion

requirement does not necessarily include a procedural default doctrine.

16

procedural rules would allow “localities hostile to civil

rights [to] enact sham discrimination ordinances for the

purpose of frustrating the vindication of federal rights.”

Ibid.

Each of these concerns operates with equal force in

the context of PLRA exhaustion. Inmates are extremely

unlikely to have the assistance of counsel when they are

pursuing administrative remedies. Administrative dead-

lines are far shorter than the limitations periods for § 1983

actions, generally requiring inmates to act within a few

weeks or even a few days. See Brief of Jerome N. Frank

Legal Services Organization as Amicus Curiae in Support

of Respondent (describing state grievance procedures).

Making these deadlines into de facto limitations periods

would have grave consequences for the ability of inmates

to obtain a judicial hearing, a result this Court has re-

jected before. See Burnett v. Grattan, 468 U.S. 42 (1984)

(holding state administrative filing deadline inappropriate

for incorporation as limitations period for § 1983 suit).

Worse, barring the § 1983 suits of inmates who have

failed to comply with procedural requirements gives prison

administrators an undesirable incentive to use their

grievance systems not as problem-solving devices but as

litigation defenses, erecting higher procedural hurdles and

refusing to address the merits of inmate grievances.

Indeed, evidence suggests that administrators have

responded to federal decisions imposing such a bar in just

this way. Following the Seventh Circuit’s decision in

Strong v. David, 297 F.3d 646, 649 (7th Cir. 2002), which

announced that grievances “must contain the sort of

information that the grievance system requires,” Illinois

amended its grievance procedures to require that each

grievance “contain factual details regarding each aspect of

17

the offender’s complaint including what happened, when,

where, and the name of each person who is the subject of

or who is otherwise involved in the complaint.” See 27 III.

Reg. 6214 (2003) (amending 20 Ill. ADC § 504.810).

On the other side of the balance, Oscar Mayer identi-

fied as the “strongest argument” the fear that without a

bar, plaintiffs might simply “wait[] until the state statute

of limitations has expired and then fille] federal suit, thus

frustrating the intent of Congress that federal litigation be

used as a last resort.” 441 U.S. at 764. This is the same

policy concern that petitioners invoke. See Pet. Br. 19. But

the Oscar Mayer Court went on to discount this fear,

noting that “no reason suggests itself... why an employee

would wish to forgo an available state remedy.” Jbid. The

same point holds for inmates.

Indeed, in the PLRA context, it is considerably

stronger. Because prison administrators generally have

the power to hear untimely grievances, prisoners cannot

simply wait until filing deadlines have passed: administra-

tive remedies will remain available until they have been

sought and denied. See, e.g., Wisc. Admin. Code §§ DOC

310.09(6); 310.13(2) (2005). Thus, prisoners cannot ex-

haust remedies by neglect, or skip the process; they will

still be required to file grievances and pursue them

through the entire administrative process before they can

initiate a federal suit. These filings will give administra-

tors the ability to act on the grievances or create records if

they choose. Imposing a bar on inmates who make proce-

dural errors is not necessary to protect the policy aims of

the exhaustion requirement. See generally Roosevelt,

Exhaustion, 52 Emory L. J. at 1808-1814.

18

Petitioners argue that the appropriate analogy for

policy analysis is not the commencement requirements of

Title VII and the ADEA but rather the exhaustion re-

quirement of federal habeas. See Pet. Br. 26-30. But the

policy considerations that the Court has identified as

supporting the procedural default rule in the habeas

context do not apply in the same way to PLRA exhaustion.

In the habeas context, procedural default operates to

protect the role of state courts as the preferred fora for the

determination of whether criminal defendants may be

deprived of liberty. See, e.g., Wainwright v. Sykes, 433 U.S.

72, 90 (1977) (noting that criminal trials should be “the

main event” and not a “tryout on the road” to federal

habeas). State courts are equally competent to decide

federal constitutional claims, and they have primary

responsibility for the application and enforcement of state

criminal law. The procedural default rule protects state

judgments from unwarranted disruption by federal courts.

The same arguments cannot be made with respect to

prison grievance proceedings and § 1983 suits. Prison

administrators are not equally competent to decide

federal constitutional claims; frequently they are not

even empowered to consider such claims. Nor must their

hearings comply with the due process requirements that

govern suits in federal and state court, and even prison

disciplinary proceedings resulting in the loss of good time

credits, see Wolff v. McDonnell, 418 U.S. 539 (1974). See

generally Cleavinger v. Saxner, 474 U.S. 193, 203-04

(1985) (noting differences between judicial proceedings

and prison disciplinary proceedings). Administrative

grievance proceedings cannot be the main event in a

prisoner’s civil rights suit; as this court has noted, “the

dominant characteristic of civil rights actions” is that

19

“they belong in court.” Burnett, 468 U.S. at 50. And be-

cause a § 1983 suit does not attack grievance proceedings,

they do not need, and cannot sensibly be given, the protec-

tion of a procedural default rule.”

Imposing a bar on prisoners who make procedural

errors in the course of exhaustion is supported neither by

the text of the statute, nor by the policy goals behind

exhaustion. Such a bar would certainly “filter out” a large

number of civil rights suits, but it would do so on a basis

unrelated to their merits. Indeed, because recreational

litigators are likely to have more experience with the

grievance system, a procedural default rule would tend to

block meritorious claims, rather than frivolous ones. See

McCarthy v. Madigan, 503 U.S. 140, 144 (1992) (“As a

practical matter, the filing deadlines, of course, may pose

little difficulty for the knowledgeable inmate accustomed

to grievances and court actions. But they are a likely trap

for the inexperienced and unwary inmate, ordinarily

* Petitioners and the Solicitor General seek to bolster the analogy

by appeal to Preiser v. Rodriguez, 411 U.S. 475 (1973), arguing that the

Court there recognized that prison admii.stration implicates federal-

state comity to the same extent as state criminal proceedings. Pet. Br.

28-29; U.S. Br. 15. But Preiser dealt with prison disciplinary proceed-

ings, and what was at stake was whether the inmates were entitled to

immediate release. Whether an inmate is entitled to release or can be

required to forfeit good-time credits under prison regulations is a

question within the expertise of prison administrators; constitutional

questions are not. And the issue in Preiser was under what conditions

federal] courts could override the decisions of those administrators. That

is, the federal suits in Preiser were review proceedings, implicating the

states’ interest in the integrity of their official decisions and the fact or

duration of confinement. Section 1983 suits do not seek to set aside

such decisions and cannot affect an inmate’s sentence, and for those

reasons this Court has treated them differently. See, e.g., Wilkinson v.

Dotson, 125 S.Ct. 1242 (2005) (distinguishing Preiser); Muhammad v.

Close, 540 U.S. 749 (2004) (same).

20

indigent and unrepresented by counsel, with a substantial

claim.”). This is a consequence that the sponsors of the

PLRA explicitly disavowed. “Indeed, I do not want to

prevent inmates from raising legitimate claims,” said

Senator Hatch. “This legislation will not prevent those

claims from being raised.” 141 Cong. Rec. $14,627 (daily

ed. Sept. 29, 1995) (statement of Sen. Hatch); see also 142

Cong. Rec. S2219-03 (daily ed. Mar. 18, 1996) (statement

of Sen. Reid) (“If somebody has a good case, a prisoner, let

him file it.”).

Congress was, of course, concerned about frivolous

suits. Other sections of the PLRA specifically target

frivolous suits and recreational litigators. 28 U.S.C.

§ 1915(b) requires even prisoners proceeding in forma

pauperis to pay filing fees by installment; § 1915(e)(2)

instructs district courts to dismiss frivolous suits sua

sponte; §1915(g) denies in forma pauperis status to

inmates, except those in imminent danger of serious

physical injury, who have had three actions or appeals

dismissed as frivolous, malicious, or failing to state a

claim; and 42 U.S.C. § 1997e(e) prohibits suits for mental

or emotional injury unaccompanied by physical injury.

These provisions do work to filter out frivolous suits and

deter the prisoners who file them. As petitioners note, the

rate of inmate litigation has dropped dramatically since

the enactment of the PLRA. See Pet. Br. 21-22 (noting a

“roughly 50 percent decrease” in the filing rate for inmate

civil rights suits from 1995 to 2000).

Petitioners go on to suggest that this success “will

undoubtedly be reversed” if this Court upholds the deci-

sion below. Pet. Br. 22. But the reduction in inmate filings

occurred in a legal environment without a procedural

default rule. The first federal appellate decision to

21

squarely hold that a procedural error would bar a civil

rights suit came in 2002. See Pozo v. McCaughtry, 286

F.3d 1022 (7th Cir. 2002). Before that, federal courts

regularly dismissed without prejudice the suits of inmates

who had failed to properly exhaust their administrative

remedies, stating that the inmates could subsequently

exhaust those plainly time-barred remedies and return to

court. See, e.g., Wendell v. Asher, 162 F.3d 887 (5th Cir.

1998); see generally Roosevelt, Exhaustion, 52 Emory L.wJ.

at 1780-1781 (discussing pre-Pozo cases).

What this means is that the PLRA provisions that

target frivolous suits and recreational litigators work as

intended. Congress did not choose to supplement the

precise and selective operation of those provisions with the

blunt and counterproductive hammer of a procedural

default rule, and no such supplement is needed. The

exhaustion requirement simply directs prisoners into the

administrative grievance process in the hope that some of

the more trivial complaints can be adequately resolved at

that stage. It was not intended to operate as a barrier to

meritorious claims, and if applied as written, it does not do

so. Congress’s decision was eminently reasonable, and this

Court should respect it.

22

CONCLUSION

The judgment of the Ninth Circuit should be affirmed.

Respectfully submitted,

KERMIT ROOSEVELT III

Counsel for Amici Curiae

University of Pennsylvania

Law School

3400 Chestnut St.

Philadelphia, PA 19104

215.746.8775

February 1, 2006