Amicus Curiae Brief — Booth v. Churner

Supreme Comt, 0.3.

Cok FILED

Vec 1}, ty) ,

(H) : DEC 14 2000

No. 99-1964

| QEEIGE OF THE CLERK

In The “nag :

Supreme Court of the United States

TIMOTHY BOOTH,

Petitioner,

V.

C.0. CHURNER, et ai.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF OF THE BRENNAN CENTER FOR JUSTICE,

ACTION ALLIANCE OF SENIOR CITIZENS, AND

THE EDUCATION LAW CENTER,

AMICI CURIAE IN SUPPORT OF PETITIONER

Robert J. Lukens*

Richard P. Weishaupt

Jonathan M. Stein

Counsel for Amici Curiae

*Counsel of Record

COMMUNITY LEGAL SERVICE, INC.

1424 Chestnut Street

Philadelphia, PA 19102

(215) 981-3700

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..........2.2-ceceeceseees ii

INTEREST OF AMICI CURIAE ..........-.0ee0se0eees

INTRODUCTION AND SUMMARY OF ARGUMENT .... 1

RINGUBOIET .. «ons cick esxa30dnceee ieee 6

A DECISION TO REQUIRE PRISONERS TO EXHAUST

ADMINISTRATIVE REMEDIES WOULD BE CONTRARY

TO EXISTING PRECEDENT, WHICH RECOGNIZES THE

VALUE OF JUDICIAL DISCRETION IN WAIVING

EXHAUSTION IN APPROPRIATE CASES

I. Courts Must Have the Power to Waive Exhaustion in Order

to Further the Goals of an Efficient Judiciary and to Protect

Meritorious Claims That May Otherwise Go Without |

NE on cdvvoe scale ndunsduese ceusannbenmanes 6

A. Courts Must Retain An Exception to Exhaus-

tion Where Administrative Procedures Cannot

Provide the ReliefSought .................. 8

B. Courts Must Retain An Exception to Ex-

haustion Where An Agency Applies Its

Rules Inappropriately or Illegally ............. 11

C. Courts Must Retain An Exception to Exhaus-

tion Where Issues Are at Stake That Are Be-

yond the Power of the Adjudicator to Resolve

II. Requiring Exhaustion in This Case Where the Relief

Sought Is Not Available Will Create Inconsistencies in

This Court’s Waiver of Exhaustion Jurisprudence ... 14

III. The Court Waives Administrative Exhaustion in Social

Security Claims When Exhaustion Would Be Futile, and

Similar Equitable and Prudential Judicial Principles

Commend the Court to Extend the Exception to 42

U.S.C. § 1997e(a) Where Exhaustion Is Futile Because

the Relief Sought Is Not Available ............... 16

A. The Court Should Apply the Futility Exception to

This Case Because the Agency Has No Power To

Provide the Remedy Sought .................. 19

IV. This Court Waives Administrative Exhaustion in Claims

Under the Individuals with Disabilities Education Act

When Exhaustion Would Be Futile, and Similar Equitable

and Prudential Principles Commend the Court to Extend

the Exception to 42 U.S.C. § 1997e(a) Where Exhaustion

Is Futile Because the Relief Sought Is Not Available .. 19

A. The Court Should Apply the Futility Exception to

This Case Because the Agency Has No Power To

Provide the Remoetly SOWGM on ccs cccsccccences 20

CONCLUSION .. «0s 0avki pies eee es oe eee 22

TABLE OF AUTHORITIES

CASES

Page(s)

Booth v. Churner, 206 F.3d 289 (3d Cir. 2000) ......... 5

Bowen v. City of New York, 476 U.S. 467

a See rel sail aiineg Siueeh 11, 12, 16, 18

Bowen v. Yuckert, 482 U.S. 137 (1987) ................ 17

Burlington School Committee v. Massachusetts Department

of Education, 471 U.S. 359 (1983)... ww eee e ees 21

Califano v. Sanders, 430 U.S. 99 (1977) .............. 13

Coit Independence Joint Venture v. FSLIC, 489 U.S. 561

UE ee Cher el Leta Cais Cl yh 6 sande ee ehh s 7

Heckler v. Ringer, 466 U.S. 602 (1984) .......... bi, ta, 07

Heldman v. Sobol, 962 F.2d 148 (2nd Cir. 1992) ......... 20

Honig v. Doe, 484 U.S. 305 (1988) .......... 3, 8, 9, 20-21

Komninos v. Upper Saddle River Board of Education, 13 F.3d

rr er rer err re 21

- Mathews v. Diaz, 426 U.S. 67 (1976) ........0.200 eee 12

Mathews v. Eldridge, 424 U.S. 319 (1976) ......... 6, 8, 12,

McCarthy v. Madigan, 503 U.S. 140 (1992) ............ 9

McNary v. Haitian Refugee Center, 498 U.S. 479 (1991) ... 9

Nyhuis v. Reno, 204 F.3d 65 (3d Cir. 2000) .............. 5

Pihl v. Massachusetts Department of Education, 9 F.3d 184

COUR Sie. i viicks whee eee 21

eter v. Commer, Sot US. Boe CFG oc nec sesecsuvess 9

Shalala y. Illinois Council on Long Term Care, 529 U.S. 1

SEE ss ks aan neaiess cen ee kan sh ee cee Reuee aa 14

Traynor v. Turnage, 485 U.S. 535 (1988) .............. 14

even! Jefferson County School District, 89 F.3d 720

FRCS vine ceauuds Varese nae Cen enene ake 20

W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995) .......... 20-21

Weinberger v. Salfi, 422 U.S. 748 (1975) ........... passim

Williamson County Regional Planning Commission v.

Hamilton Bank, 473 U.S. 172 (1985) ............... 6

STATUTES

ee reer pee ey ere 4,19

ik ee eer eT reer eee Tere ey 17

Oe SA. SID Khoo S.ccae etre cesineuebe 13, 16, 17-19

Ee Rhein BRE ON, ined deeewes cukecdees) 654346 17

Ge Wie S CPE 6k sd oy ee ceee eunasececee passim

2 itil ae

Pub. L. No. 101-471, 104 Stat. 1141 (1990) ............ 20

Pub. L. No. 105-17, 111 Stat. 37,88 (1997) ........... 20

Pub. L. No. 106-25, 113 Stat. 49 (1999) .............. 20

REGULATIONS

JOC ER. § AOA SOMR) or. cc cee v ence scctcscunwiess 17

20 CER. § 416. 140Q@) ccc ccc ccscncsvetesewenes 17

INTERESTS OF AMICI CURIAE'

Amicus the Brennan Center for Justice at New York Univer-

sity School of Law, founded to honor the legacy of the late U.S.

Supreme Court Justice William J. Brennan, Jr., unites thinkers

and advocates in pursuit of a vision of inclusive and effective

democracy. The Brennan Center’s mission is to develop and

implement an innovative non-partisan agenda that promotes

equality and human dignity while safeguarding human freedoms.

To that end, the Brennan Center has created the Poverty Program

which, among its many activities, works to eliminate unnecessary

obstacles that prevent low income individuals and communities

from obtaining access to the courts for the purpose of securing

their legal rights. The Brennan Center objects to requirements of

administrative exhaustion in circumstances where, as in this case,

exhaustion is a futile exercise.

Amicus Action Alliance of Senior Citizens is a non-profit

organization that educates, organizes, and empowers senior

citizens on issues related to health care and economic security

through a network of clubs, retiree groups, and residence

councils in Southeastern Pennsylvania. Action Alliance particu-

larly is interested in preserving and improving the Social Security

programs because of their importance in a changing landscape of

economic benefits relied upon by all citizens. Action Alliance has

participated in litigation to challenge various unfair provisions of

the Social Security Act.

' This brief was authored in its entirety by counsel for the

amici. No person or entity, other than the named amici and their

counsel, made any monetary contribution to the preparation or

submission of this brief. Letters of consent from all parties have

been filed separately with the Clerk of the Court.

Amicus the Education Law Center (“ELC”) is a non-profit

advocacy organization, founded in 1975, that seeks to promote

quality and equity in Pennsylvania’s public education system. As

part of its work, ELC has helped thousands of families to

understand and assert their children’s rights under the federal

Individuals with Disabilities Education Act (“IDEA”), and also

has engaged in systemic litigation and advocacy around special

education issues.

INTRODUCTION AND SUMMARY OF ARGUMENT

The central issue in this case is whether Congress intended to

require exhaustion of administrative procedures under 42 U.S.C.

§ 1997e(a) without exception even when the remedy sought is

unavailable. The lower court held that § 1997e(a) did not allow

for any exceptions. However, this Court long has recognized

exceptions to the doctrine of administrative exhaustion under a

number of narrow circumstances, especially in situations like

those presented here, in which the remedy sought by Mr. Booth

was not available.

This Court repeatedly has held that exhaustion of administra-

tive remedies can be waived in a narrowly circumscribed set of

circumstances. This line of cases mitigates the potential unjust

results of an absolute exhaustion requirement and recognizes the

need for exceptions for futile and purposeless administrative

reviews, reviews prolonged by unreasonable delays, or where the _

relief sought is unavailable.

There is an essential need for there to be exceptions to

administrative exhaustion. The impoverished, the elderly, the

disabled — indeed, under certain circumstances, probably every

citizen who relies upon a government agency for benefits or

services — must contend with extensive administrative delays

before resolution of a dispute. Often, the hardships experienced

by many of this nation’s citizens are exacerbated by agency

determinations predicated on erroneous application of rules and

regulations by overburdened decisionmakers who must make

their determinations under less than ideal conditions. Although

exhaustion of remedies may be tedious for many, it is particularly

hard on those for whom exhaustion would be futile.

There is a grave risk — presented squarely by this case — that

denying any exception to administrative exhaustion under

§ 1997e(a) will shift the weight of case law in an undesirable

direction. Never in our knowledge has this Court found that

exhaustion is necessary when the relief sought is unavailable. To

so hold would be to tell those who are most in need of judicial

protection that they will be denied access to the courts in the hour

of their greatest vulnerability. For example, challenges based on

laws that adjudicative officers are unable to enforce will be

delayed for months or even years — cases alleging illegal discrimi-

nation, or violations of the Equal Protection Clause, or transgres-

sions of state or federal laws guaranteeing civil rights will be

subject to unnecessary delays while they are presented to

tribunals incapable of offering relief. Ifthe available administra-

tive remedies cannot provide adequate relief, then it is an exercise

in futility to require their exhaustion, and this Court consistently

has held that exhaustion should not be required. See Honig v.

Doe, 484 U.S. 305 (1988); Weinberger v. Salfi, 422 U.S. 748

(1975).

Several constituencies are intensely concerned about the

unyielding application of exhaustion requirements even when

administrative review would be futile because the relief sought is

unavailable. Among these concerned constituencies are Social _

Security claimants, welfare recipients, children attending public

schools, especially those who need protection under the Individu-

als with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400

et seq., residents of public housing, unemployment compensation

beneficiaries, and employees exposed to workplace discrimina-

tion. Many of these individuals encounter violations of their

rights by administrative agencies and they are relying on this

Court to ensure that they are only required to exhaust administra-

tive remedies when their efforts will not be futile.

For instance, special education impacts millions of our

nation’s children who have disabilities. There are extensive

protections provided by law to insure children a free appropriate

public education. Although most of the disputes that arise are

resolved through the administrative process, there are occasions

when the families of these children rely on the courts to resolve

disputes and where it would be futile to exhaust administrative

remedies. This Court’s decisions in other contexts suggest how

any case should be resolved where the relief sought is outside the

powers of the administrative agency’s procedures. Certainly in

the context of special education, this Court has recognized that

requiring exhaustion when it is futile would only frustrate parents,

delay the educational process for students, and waste valuable

administrative and judicial resources. Similarly, the Court’s

decisions have created an exception to the exhaustion rule in

Social Security challenges to the Act and agency regulations and

procedures. It just makes good sense, and would be consistent

with the Court’s precedents, to extend the exception for futility

to this case where the relief sought was not available through the

prison procedures.

Thus, Amici submit this brief to place before the Court

significant concerns about what upholding the lower court’s

decision in this case might mean to people of low income who

must regularly contend with administrative actions adverse to

their livelihoods. Should this Court affirm the interpretation of

the language “such administrative remedies as are available” from

42 U.S.C. § 1997e(a) to require exhaustion in all cases without

exception this will have a negative impact on low income

individuals in other contexts. If the Court in this case retreats

from its longstanding futility exception to administrative exhaus-

tion requirements, then the procedures applicable to the protec-

tion of the rights of Social Security, welfare, special education,

and other public benefit recipients will be imperiled

The Court of Appeals recognized that the Petitioner could not

get the remedy he sought, but nevertheless held that § 1997e(a)

brooks no exception to the exhaustion requirement. The court

applied the standard from Nyhuis v. Reno, 204 F.3d 65, 67 (3d

Cir. 2000), and concluded that § 1997e(a) makes “exhaustion of

all administrative remedies mandatory — whether or not they

provide the inmate-plaintiff with the relief he says he desires.”

This standard leads to the inapposite result that because he failed

to “‘exhaust his available administrative remedies (rather than

- those he believed would be effective)’ before filing his § 1983

claim,” Mr. Booth’s claim was dismissed properly by the district

court. App. to Cert. Petition at 24a; Booth v. Churner, 206 F.3d

289, 300 (3d Cir. 2000) (quoting Nyhuis, 204 F.3d at 78

(emphasis added)). Should the Court uphold this misapplication

of the plain meaning of § 1997e(a)’s “such administrative

remedies as are available” language, and thus vitiate the well-

established exception to administrative exhaustion when the relief

sought is unavailable, then the availability of a waiver for futility

will be on questionable ground for all who appear before

administrative agencies. ;

ARGUMENT

A DECISION TO REQUIRE PRISONERS TO EXHAUST

ADMINISTRATIVE REMEDIES WOULD BE CON-

TRARY TO EXISTING PRECEDENT, WHICH RECOG-

NIZES THE VALUE OF JUDICIAL DISCRETION IN

WAIVING EXHAUSTION IN APPROPRIATE CASES

I. Courts Must Have the Power to Waive Exhaustion in

Order to Further the Goals of an Efficient Judiciary

and to Protect Meritorious Claims That May Other-

wise Go Without Redress

The Court long has recognized that exhaustion generally refers

to “administrative and judicial procedures by which an injured

party may seek review of an adverse decision and obtain a

remedy if the decision is found to be unlawful or otherwise

inappropriate.” Williamson County Regional Planning Comm'n

v. Hamilton Bank, 473 U.S. 172, 193 (1985) (emphasis added).

In Mathews v. Eldridge, 424 U.S. 319, 331 n.11 (1976), this

Court announced the “core principle that statutorily created

finality requirements should, if possible, be construed so as not to

cause crucial collateral claims to be lost and potentially irrepara-

ble injures to be suffered.” This principle mitigates against

exhaustion requirements that refuse to recognize an exception

where administrative review would be futile, and it counsels

especially that exhaustion should be excused where the remedies

sought are not available through the ordinary administrative

procedures.

Notwithstanding the legitimate purposes exhaustion serves,

courts and legislatures traditionally have recognized narrow but

important exceptions to the general rule requiring exhaustion. A

substantial body of this Court’s prior decisions has upheld waiver

of administrative exhaustion under limited circumstances where

sound prudential and equitable principles compel it, and this

Court consistentiy has held that “[a]dministrative remedies that

are inadequate need not be exhausted.” Coit Independence Joint

Venture v. FSLIC, 489 U.S. 561, 587 (1989).

In Weinberger v. Salfi, 422 U.S. 748, 766 (1975), the Court

held that where administrative remedies are beyond the compe-

tence of the decisionmaker, namely, the constitutionality of a

statutory provision that limited widow’s benefits to those who

had been married for at least nine months, it would “be futile and

wasteful” to exhaust. The Court reached this conclusion

notwithstanding the strong language requiring exhaustion

contained in the Social Security Act. Jd. at 757, 766 (noting that

statutory language was more than simply a codified requirement

of administrative exhaustion). The Court noted that circum-

stances justify waiving exhaustion 1) when itis futile to complete

the administrative review process; 2) when challenges to agency

policies and procedures involve illegal practices or violations of

another federal or state law (e.g., in § 1983 claims); and 3) when

administrative decisionmakers are not empowered to grant relief

(e.g., challenges to the constitutionality of agency provisions, to

curtail ongoing acts of discrimination, requesting money damages

that the agency cannot accommodate, and other such issues

where administrative review would not provide the relief sought).

Absent either the adequate review procedures or the appropriate

remedies, requiring administrative exhaustion would be an

exercise in futility and this Court never has found exhaustion

justifiable under such circumstances. See id. at 766.

Even where Congress specifically mandates exhaustion, there

are sound reasons for a limited discretion to waive exhaustion.

In Salfi, 422 U.S. at 766-67, the Court found that it is “inconsis-

tent with the congressional scheme” of the Social Security Act to

require exhaustion of administrative review procedures where it

is futile to exhaust, or is merely to satisfy the prerequisites for

judicial review. In Mathews v. Eldridge, 424 U.S. at 331 n.11,

the Court counseled that “the nature of the claim being asserted

and the consequences of deferment of judicial review are

important factors in determining whether a statutory requirement

of finality has been satisfied.” And in Honig v. Doe, 484 U.S.

305, 326-27 (1988), the Court held that exhaustion can be

waived for claims brought under the prior version of the IDEA

when it is futile to exhaust or where the remedies available are

inadequate. Therefore, if the administrative procedures are

incapable of providing the remedy sought, or are incapable of

addressing the issues presented, then this Court never has

required exhaustion. Denying Mr Booth’s plea for waiver of

exhaustion here would disturb this Court’s long-established

principle that futile administrative procedures need not be

pursued and would not further the goals of an efficient judiciary.

A. Courts Must Retain An Exception to Exhaustion

Where Administrative Procedures Cannot Pro-

vide the Relief Sought

The Court in Sal/fi, and its progeny, has waived statutory

exhaustion requirements for constitutional challenges, in other

circumstances where important issues are at stake that are beyond

the capacity of the administrative procedures to resolve, for

challenges to agency patterns and practices that may be illegal,

and most particularly where the relief sought is not available as an

administrative remedy. Based on the plain meaning of the

language of 42 U.S.C. § 1997e(a), “such administrative remedies

as are available,” exhaustion should not be required because the

remedy sought by Mr. Booth was not an available administrative

remedy. Should the Court reject the view that the statute

requires waiver, then the Court should consider whether a limited

waiver exception is permitted by the statutory language.

Because the prison procedures did not provide for monetary

administrative remedies, exhaustion here would have been futile

and this should weigh heavily in favor of waiver. This Court

never has required exhaustion under circumstances where doing

so would only promote a futile effort by the aggrieved party, or

would result in a meaningless but inexorable outcome. See, e.g.,

Reiter v. Cooper, 507 U.S. 258, 269 (1993) (exhaustion not

required when the administrative agency has “no power to

decree” the relief sought); McCarthy v. Madigan, 503 U.S. 140,

146 (1992) (“this Court has declined to require exhaustion in

some circumstances even where administrative and judicial

interests would counsel otherwise”); Honig, 484 U.S. at 326-327

(parties “may bypass the administrative process where exhaustion

would be futile or inadequate”). See also McNary v. Haitian

Refugee Center, 498 U.S. 479, 496-97 (1991) (holding that an

alien could bring a due process challenge to INS amnesty

determination procedures because the statute did not evince

intent to preclude pattern and practices challenges, and without

waiving the exhaustion requirements there would be no means to

obtain meaningful judicial review).

Many of this nation’s neediest citizens rely for their livelihood

on public agencies which often have complicated application

procedures, periodic reviews of ongoing eligibility for benefits,

and confusing requirements about reporting changes in circum- -

stances. Certainly, the decisions of this Court suggest that these

agencies occasionally violate the law in administering their

programs. For many people, the administrative procedures

associated with maintaining their income, or the very basic

necessities of life, are so confounding that they often miss filing

deadlines, or appointments, or phone contacts which an agency

might require for ongoing eligibility. Although dueprocess rights

are applicable under some circumstances, asserting these rights

invokes other cumbersome requirements that for many impover-

ished, or elderly, or disabled individuals make it problematic even

to recognize their rights, let alone enforce them.

Even where they are able to assert their due process rights, for

a large number of people the administrative procedures become

more daunting still because of disabilities or other impediments

to their full participation in the review process. Accompanying

the often baffling requirements for obtaining administrative

review are sometimes very lengthy delays in reaching a resolu-

tion, and frequently the remedies are incommensurate with the

original deprivation of benefits. The obstacles can seem insupera-

ble. Furthermore, while awaiting administrative review of

adverse determinations about welfare, food stamps, Social

Security, special education, or other public benefits, it is not

uncommon for additional difficulties to arise that require involve-

ment by even more agencies and more administrative review

procedures, such as in grievances with utility companies, credi-

tors, and landlords. Finally, when a plaintiff who has been

deprived of much needed benefits relies on the courts to balance

the competing interests over whether to waive exhaustion, it

often is the case that the agencies have articulate advocates

arguing against them. The impoverished, the elderly, the

disabled, and the politically unpopular have a hard time making

their legitimate grievances heard. Therefore, when this nation’s

most vulnerable people seek redress from the courts, they rely

upon the judiciary for a just and speedy resolution of their claims.

While hundreds and thousands of administrative claims are

adjudicated every day, there is a continued role for the judiciary

to play in defending minority rights and affording these minorities

an opportunity to present their claims in a timely manner without

exhausting patently futile avenues of redress.

10

)

The history of waiver of exhaustion jurisprudence counsels

that this Court has been appropriately reluctant to ascribe to

Congress an antipathy toward a reasonable waiver of exhaustion

under some circumstances. Congress, on the other hand, has

acquiesced through its silence to this Court’s approach to this

recurring issue. When it is possible for a claimant to get the relicf

sought, then the courts may require exhaustion; when there is no

potential for the claimant to get the relief sought, then requiring

exhaustion is illogical and inconsistent with this Court’s long-

standing and sound approach.

It would be illogical to require exhaustion in this case because

even after exhausting the available administrative remedies, not

having gotten the relief he sought, Mr. Booth will be compelled

to call on the courts again for relief. To require this kind of futile

exhaustion does not fulfill any legitimate purpose; it only

postpones the inevitable and wastes precious time and resources

for both the administrative agency and Mr. Booth. Where it is

futile for a plaintiffto exhaust administrative remedies, this Court

never has required exhaustion of administrative remedies and the

Court ought not in this case to start requiring futile administrative

exhaustion.

B. Courts Must Retain An Exception to Exhaustion

Where An Agency Applies Its Rules Inappropri-

ately or Illegally

In Heckler v. Ringer, 466 U.S. 602, 618 (1984), the Court

held that “in certain special cases, deference to the [agency’s]

conclusion as to the utility of pursuing the claim through adminis-

trative channels is not always appropriate.” And in Bowen v. City

of New York, 476 U.S. 467, 485 (1986), the Court held that

exhausting an illegal administrative review scheme would be futile

and therefore excused exhaustion because under such circum-

stances there is “nothing to be gained from permitting the

compilation of a detailed factual record, or from agency exper-

tise.”

In both Social Security Act claims and those arising under the

IDEA, there are elaborate administrative procedures in place that

primarily favor the respective agencies involved. For example,

aS a prerequisite to seeking judicial review of an adverse

determination, Social Security claimants must cope with several

layers of administrative procedures; only at the third level, the

administrative hearing, do they participate personally. Often, the

adverse determinations made by the agencies are incorrect or

show a disregard for the rules and the agency’s own policies.

Even in a normal Social Security case, the administrative process

may take several years, during which the procedures themselves

become increasingly sophisticated. Under these conditions,

claimants often abandon otherwise meritorious claims because

of frustration over their inability to cope with the apparent

hegemony of the agency’s authority. It would be unfair for

claimants in these situations to be unduly informed by the courts

that they will not be excused from exhausting administrative

procedures that in the end will not provide them with adequate

relief.

The Court repeatedly has instructed the lower courts to be

"especially sensitive to this kind of harm where the [agency]

seeks to require claimants to exhaust administrative remedies

merely to enable them to receive the procedure they should have

been afforded in the first place." City of New York, 476 U.S. at

484. Furthermore, where exhaustion is futile, the Court has often

found that the agency’s action constitutes a waiver of the

requirement of exhaustion. Mathews v. Diaz, 426 U.S. 67, 75-77

(1976); Eldridge, 424 U.S. at 328, 330; Salfi, 422 U.S. at 763-

65.

12

C. Courts Must Retain An Exception to Exhaustion

Where Issues Are at Stake That Are Beyond the

Power of the Adjudicator to Resolve

In Salfi, 422 U.S. at 765-66, the Court recognized circum-

stances where “further exhaustion would not merely be futile ...

but would also be a commitment of administrative resources

unsupported by any administrative or judicial interest.” In this

case, it would have been futile for Mr. Booth to exhaust adminis-

trative remedies because the relief sought was not available

through the prison’s administrative procedures. Moreover, since

the prison procedures did not permit money damages, requiring

exhaustion in this case would clearly be a “commitment of

administrative resources unsupported” by any interest because it

was beyond the power of the prison’s administrative procedures

to provide the remedy sought by Mr. Booth.

Similarly, in Califano v. Sanders, 430 U.S. 99, 109 (1977), the

Court stated that “[c]Jonstitutional questions obviously are

unsuited to resolution in administrative hearing procedures and,

therefore, access to the courts is essential to the decision of such

questions.... [WJhen constitutional questions are in issue, the

availability of judicial review is presumed, and we will not read a

statutory scheme to take the ‘extraordinary’ step of foreclosing

jurisdiction unless Congress’ intent to do so is manifested by

‘clear and convincing’ evidence (citations omitted).” Where a

claimant raises a colorable constitutional claim, the Court has

excused the failure to exhaust administrative review under the

Social Security Act, 42 U.S.C. § 405(g). In Eldridge, 424 U.S.

at 331, the Court held that 42 U.S.C. § 405(g)’s exhaustion

requirements could be waived before a final decision on Social

Security disability benefits because exhaustion requirements did

not bar federal jurisdiction over a collateral due process chal-

lenge. In Heckler v. Ringer, 466 U.S. 602, 618 (1984), the Court

13

upheld jurisdiction over claims considered collateral to the

statutory review provisions and beyond the agency’s expertise

because precluding such claims would foreclose meaningful

judicial review. See also Traynor v. Turnage, 485 U.S. 535,

544-45 (1988) (statutory prohibition of judicial review of

Veterans Administration determinations did not preclude review

of agency policy alleged to be in violation of the Rehabilitation

Act). In short, the Court consistently has recognized that

exception to waiver should apply whenever the available adminis-

trative remedies cannot adequately address the issues at stake

because they are beyond the power of the agency to resolve. So

too, here, where the agency had no power to grant monetary

relief, the exhaustion requirement should have been waived for

the money damages claim.

If. Requiring Exhaustion in This Case Where the Relief

Sought Is Not Available Will Create Inconsistencies in

This Court’s Waiver of Exhaustion Jurisprudence

Most recently, in Shalala v. Illinois Council on Long Term

Care, 529 U.S. 1 (2000), the Court re-affirmed the longstanding

principle that “[d]octrines of ‘ripeness’ and ‘exhaustion’ contain

exceptions ... which exceptions permit early review when ...

exhaustion would prove ‘futile.’” Jd. at 22-23 (citations omit-

ted). Clearly, in several different contexts this Court has recog-

nized that where exhaustion is futile, where it cannot provide the

remedy sought, where there are systemic problems within the

administrative process that cannot be rectified by the system

itself, where there are violations of law, or where exhaustion

would ultimately only be postponing an inevitable return to court

for the plaintiff, then none of the purposes of exhaustion is

satisfied and courts rightly and prudently should excuse the

exhaustion requirement. Especially where the remedy sought is

not available, as is the case here, this Court should recognize an

14

exception for futility and not require exhaustion of administrative

remedies under 42 U.S.C. § 1997e(a).

If the purposes of exhaustion are not satisfied, waiver should

be considered under the limited circumstances already cognized

by this Court. The Court’s discretion should balance the

determination of which priorities should prevail under the facts of

a particular case. Here, the Court must determine whether it is

the availability of administrative procedures or the availability of

appropriate remedies that is paramount and comports with

congressional intent. If the purpose of exhaustion of the adminis-

trative remedies is the potential for a claimant to obtain adequate

relief without judicial intervention, then the Court should read

statutes that require exhaustion as applying only when the relief

is available through the administrative procedures.

To require exhaustion would be contrary to this Court’s

longstanding principle that judicial discretion requires having the

capacity to determine whether waiver of administrative remedies

should be allowed under some limited circumstances, especially

where the relief sought is not available to a plaintiff. To be

consistent with this Court’s past waiver of exhaustion jurispru-

dence, this principle should apply regardless of whether the

plaintiff is a prisoner or a Social Security claimant or a child

protected under the IDEA. Denying Mr. Booth’s plea for waiver

of exhaustion where the remedy he sought was not available may

have an adverse effect on this Court’s well-reasoned exceptions

to waiver of administrative remedies in other contexts where

statutory exhaustion requirements apply.

15

Il. The Court Waives Administrative Exhaustion in

Social Security Claims When Exhaustion Would Be

Futile, and Similar Equitable and Prudential Judi-

cial Principles Commend the Court to Extend the

Exception to 42 U.S.C. § 1997e(a) Where Exhaus-

tion Is Futile Because the Relief Sought Is Not

Available

If the Court decides that the plain meaning of the language

“such administrative remedies as are available” from 42 U.S.C. §

1997e(a) does not provide an exception where a remedy is not

available, then the exceptions to exhaustion provided by this

Court in other contexts may be jeopardized and may lead to

inconsistencies in the application of waiver permitted in Social

Security cases. See City of New York, 4765 U.S. at 483 (recog-

nizing futility exception); Eldridge, 424 U.S. at 328; Salfi, 422

U.S. at 763-67. If the Court requires prisoners covered by

§ 1997e(a) to exhaust administrative remedies where the relief

sought is not available, then it is possible that by extension many

disabled or elderly recipients of benefits under the Social Security

Act may lose this Court’s well-considered exceptions to exhaus-

tion in the context of their Social Security claims.

A. The Court Should Apply the Futility Exception to

This Case Because the Agency Has No Power To

Provide the Remedy Sought

Because the core of any exception to the final decision

exhaustion requirement under 42 U.S.C. § 405(g) implicates the

determination of the relief or remedies that are available, this

Court’s interpretation of the language from 42 U.S.C. § 1997e(a)

about “such remedies as are available” could have a profound

impact on how other courts will interpret the Court’s well-

reasoned and carefully crafted exceptions to the final decision

16

prerequisites to judicial review in Social Security claims. A

claimant who seeks to challenge any “initial determination”’ by

the Commissioner of the Social Security Administration must

exhaust several stages of administrative review prior to seeking

judicial review of the challenged decision.’ The Social Security

Act, 42 U.S.C. § 401 et seq., provides that “[a]ny individual, after

any final decision of the Commissioner of Social Security made

after a hearing to which he was a party, may obtain a review of

such decision by a civil action” in federal district court. 42

U.S.C. § 405(g). The Act does not specify when a decision

becomes the “final decision of the Commissioner.” See Salfi, 422

U.S. at 766. See generally Bowen v. Yuckert, 482 U.S. 137, 142

(1987) (describing administrative review process for Social

Security claims). The Court has held that “the exhaustion

requirement of 405(g) consists of a nonwaivable requirement that

a ‘claim for benefits shall have been presented to the Secretary,’

and a waivable requirement that the administrative remedies

prescribed by the [Commissioner] be pursued fully by the claim-

ant.” Ringer, 466 U.S. at 617 (quoting Mathews v. Eldridge,

424 US. 319, 328 (1976)).

2 “Tnitial determination” is defined as a decision about

eligibility for benefits "or about any other matter ... that gives ...

a right to further review.” 20 C.F.R. §§ 404.900(a)(1),

416.1400(a)(1).

> Title II of the Social Security Act, 42 U.S.C. § 401 et seq.,

provides for the payment of monthly benefits to disabled persons

who have contributed to the program’s insurance fund. Title

XVI of the Social Security Act, 42 U.S.C. § 1381 et seq.,

provides for the payiient of Supplemental Security Income

(“SSI”) benefits to low income persons who are aged, blind, or

disabled.

In Bowen v. City of New York, 476 U.S. 467 (1986), the Court

held that challenges to the procedures applied by the Social

Security Administration could be sustained without administrative

exhaustion under some very limited circumstances. The “final

decision” requirement for exhaustion may be waived “where a

claimant’s interest in having a particular issue resolved promptly

is SO great that deference to the agency’s judgment is inappropri-

ate.” Jd. at 483 (quoting Mathews v. Eldridge, 424 U.S. at 330).

Courts generally consider three factors in determining whether

waiver of the exhaustion requirement is appropriate in these

cases: 1) whether the issue raised is collateral to the substantive

claim; 2) whether irreparable harm is likely absent the waiver; and

3) whether the underlying purpose of exhaustion is meaningful or

whether requiring exhaustion would be futile for the claimant. /d.

at 483-85. Of these three factors, the exception for futility is

most germane Booth’s claim here.

The futility exception to exhaustion under § 405(g) requires a

determination whether the policies underlying the exhaustion

requirement would be served by exhausting the administrative

review or whether exhaustion would be futile. City of New York,

476 U.S. at 484; Salfi, 422 U.S. at 765. None of the underlying

purposes of exhaustion is justified when a plaintiff challenges an

agency policy as inconsistent with the regulations or the statute.

System-wide policies that are inconsistent with the law can not be

remedied through administrative review, since policies do not

depend on the specific facts of any particular case, nor are

hearing officers empowered to invalidate agency rules and

regulations. If the agency applies rules and regulations which

deprive a claimant of a fair assessment of his or her eligibility,

then exhausting the administrative remedies will be futile. Thus,

where exhaustion is futile, “there [is] nothing to be gained from

permitting the compilation of a detailed factual record, or from

agency expertise.” City of New York, 476 US. at 485.

18

The Court has provided a well-considered exception to the

“final decision” prerequisite for judicial review under 42 U.S.C.

§ 405(g). This exception has facilitated the judicial discretion to

determine when equitable and prudential principles call for

exhaustion and when they compel waiver. Within certain very

limited circumstances, the Court has waived exhaustion when

there is a showing that exhaustion would be futile. Because of

the exception to the exhaustion requirements, the lower courts

have retained the discretion to determine when a plaintiff's

meritorious claim would only languish interminably in exhausting

a purposeless administrative review. The Court in this case

Should not disturb these longstanding precedents, and their

consistent application in other courts, by refusing to recognize a

futility exception for prisoners covered by 42 U.S.C. § 1997e(a)

where the administrative remedies sought are not available.

IV. This Court Waives Administrative Exhaustion in

Claims Under the Individuals with Disabilities Edu-

cation Act When Exhaustion Would Be Futile, and

Similar Equitable and Prudential Principles Com-

mend the Court to Extend the Exception to 42 U.S.C.

§ 1997e(a) Where Exhaustion Is Futile Because the

Relief Sought Is Not Available

For claims brought under the Individuals with Disabilities

Education Act, 20 U.S.C. § 1400 et seq., (“IDEA”), the Court

has recognized a futility exception, just as it has in other substan-

tive areas for many years; it makes sense to extend this approach

to the present case. Should the Court decide, however, that the

plain meaning of "such administrative remedies as are available"

under 42 U.S.C. § 1997e(a) does not provide an exception where

administrative review would be futile, then it is possible that the

exception to exhaustion provided by this Court in its application

19

of jurisdiction under the IDEA will be in conflict with the Court’s

decision in the present case.

A. The Court Should Apply the Futility Exception to

This Case Because the Agency Has No Power To

Provide the Remedy Sought

If the Court were to interpret the language from 42 U.S.C.

§ 1997e(a) about "such remedies as are available" as denying all

exceptions to exhaustion, this could impact how other courts will

interpret the Court’s well-reasoned exception to exhaustion of

administrative remedies under the IDEA. Should the Court

decide that exhaustion without exception is required in this case,

then the potential increases for inconsistent application of the

IDEA’s longstanding futility exception.

In Honig v, Doe, 484 U.S. 305 (1988), the Court excused

exhaustion for claims brought under the prior version of the

IDEA‘ where it is futile to exhaust or where the available

remedies are inadequate. /d. at 326-27 (“parents may bypass the

administrative process where exhaustion would be futile or

inadequate’). In the context of IDEA claims, exhaustion is futile

or inadequate where the agency violates the law or where the

harm cannot be addressed through the ordinary administrative

procedures. See, e.g., Urban v. Jefferson County Sch. Dist., 89

F.3d 720, 724 (10th Cir. 1996) (waiver permitted where adminis-

* The statute has been amended several times, including Pub.

L. No. 101-471, 104 Stat. 1141 (1990) (renaming “Education of

the Handicapped Act” as the “Individuals with Disabilities

Education Act”), more recently in Pub. L. No. 105-17, 111 Stat.

37, 88 (1997), and again in Pub. L. No. 106-25, 113 Stat. 49

(1999). See Heldman v. Sobol, 962 F.2d 148, 150 n.1 (2nd Cir.

1992) (discussing legislative history of IDEA).

20

trative remedies would be futile, fail to provide relief, or the

agency has adopted a policy or practice that is contrary to the

law); W.B. v. Matula, 67 F.3d 484, 496 (3d Cir. 1995) (finding

it “futile, perhaps even impossible, for plaintiffs to exhaust”

where relief sought is unavailable under IDEA); Pih/ v. Massa-

chusetts Dep't of Educ, , 9 F.3d 184, 190 (1st Cir. 1993) (exhaus-

tion “may not be required where the pursuit of administrative

remedies would be futile or inadequate; waste resources, and

work severe or irreparable harm on the litigant; or when the

issues raised involve purely legal questions”). Courts also have

excused exhaustion where further delay poses a risk or danger to

the child plaintiff. See Komninos v. Upper Saddle River Bd. of

Educ., 13 F.3d 775, 778 (3d Cir. 1994).

As the Court recognized in Burlington School Committee v.

Massachusetts Dept. of Education, 471 U.S. 359, 370 (1985),

the IDEA’s "review process is ponderous. A final judicial

decision on the merits of an IEP [Individualized Educational

Program] will in most instances come a year or more after the

school term covered by that IEP has passed. In the meantime,

the parents who disagree with the proposed IEP are faced with

a choice: go along with the IEP to the detriment of their child if

it turns out to be inappropriate or pay for what they consider to

be the appropriate placement." This Court prudently has

recognized that parents should not be required under all circum-

stances to exhaust IDEA administrative procedures, especially

where the relief they seek ultimately is not available except

through the courts. It is logical to extend the same principles to

this case and waive exhaustion of administrative remedies where

the relief sought was not available through the prison administra-

tive procedures.

Regardless of the context of the claim, if none of the purposes

of exhaustion is satisfied, then waiver should be allowed under

the limited circumstances already cognized by this Court. The

21

Court has recognized that where exhaustion is futile, where it

cannot provide the remedy sought, or where exhaustion would

ultimately only postpone an inevitable return to court for the

plaintiff, then none of the purposes of exhaustion is satisfied and

the Court prudently has excused exhaustion. Especially where

the remedy sought is not available, as is the case here, the Court

ought not to begin to require exhaustion of administrative

remedies.

CONCLUSION

In the context of Social Security, education for children with

disabilities, and many other forms of public benefits, individuals

who challenge the legality of administrative regulations and

policies should not be required to exhaust the normal administra-

tive review process, especially when nowhere within the review

process can any adjudicator provide the appropriate relief.

Requiring exhaustion of useless procedures would be contrary to

the purposes of administrative exhaustion principles, and would

be inconsistent with this Court’s longstanding precedents holding

that potential litigants are not required to pursue unavailable

administrative remedies. Thus, there is a compelling justification

to retain a “futility” exception to the general administrative

exhaustion requirements, whether imposed by statute or common

law principles.

For the reasons set forth in the Petitioner’s Brief and above,

this Court should hold that Congress did not intend to prohibit

waiver of the administrative exhaustion requirement in the 42

U.S.C. § 1997e(a) under all circumstances and should accord-

ingly reverse the decision of the Court of Appeals in this case.

22

—

Respectfully submitted,

Robert J. Lukens

Counsel of Record

Richard P. Weishaupt

Jonathan M. Stein

Community Legal Services, Inc.

1424 Chestnut Street

Philadelphia, PA 19102

(215) 981-3700

December 14, 2000