1. TO DETERMINE IF EXHAUSTION IS REQUIRED
   1. First examine the federal statute that provides the right sought to be enforced for explicit or implicit exhaustion requirements
      1. If exhaustion is required, determine whether one of the recognized exceptions to exhaustion of remedies applies to the circumstances of the case.
         1. When exhaustion of remedies is not required, as in Section 1983 actions, For further discussion of exhaustion in the Section 1983 context, see Chapter 5.1 .A.4 of this MANUAL.
2. Nevertheless, consider whether to pursue, available local or state administrativ e remedies. Patsy v. Board of Regents, 457 U.S. 496, 501 (1 982).
   1. THIS ENTAILS
      1. 1. Assessment of the needs of the client.
      2. 2. The certainty and speed of such relief,
      3. 3. Opportunities to obtain useful information for a subsequent judicial appeal, and
      4. 4. The expense of litigation of a case through trial in federal court.
      5. 5. Furthermore, and of particular importance, assess the possibility that pursuing such remedies will have claim or issue preclusive effect in any subsequent federal action.
      6. 6. The prospect of litigating multiple federal claims or combining federal and state law claims, which have different exhaustion requirements, adds another layer of complexity to the assessment.
3. Exhaustion of federal or state administrative remedies is required when Congress explicitly requires exhaustion as a prerequisite to bringing an action in federal court. Such an expression must be specific and clear. McCarthy v. Madigan, 503 U.S. 140, 144 (1991).
4. (Prison Litigation Reform Act’s exhaustion requirement is not satisfied by filing an untimely or procedurally defective administrative grievance or appeal).
   1. 42 U.S.C. § 1 997 e(a), part of the Prison Litigation Reform Act, provides: “No action shall be brought with respect to prison conditions … until such administrative remedies are ex hausted.” The Supreme Court has held that this language reflected Congress’ intent to require exhaustion in all cases and to eliminate any discretion to permit exceptions. See Jones v. Bock, 549 U.S. 199, 212-14 (2007) (failure to exhaust is an affirmative defense; inmates need not plead exhaustion in their complaints); Porter v. Nussle, 534 U.S. 51 6 (2002); Booth v. Churner, 532 U.S. 7 31 (2001 ). See also Woodford v. Ngo, 548 U.S. 81 (2006)
5. The interpretive question in cases with an explicit exhaustion requirement is the breadth of the statutory exhaustion provision.
6. Equal Employment Opportunity Commission v. Lutheran Social Services, 186 F.3d 959 (D.C. Cir. 1999), the D.C. Circuit wrestled with the question whether a Civil Rights Act provision providing that a recipient of a subpoena “may petition” the agency to revoke the subpoena required the recipient to so petition. In a 2-to-1 decision, the Court concluded that it did not.
   1. Individuals with Disabilities Education Act provides that, “before the filing of a civil action ... seeking relief that is also available under [the Act], the procedures ... of this section shall be exhausted.” Individuals with Disabilities Education Act, 20 U.S.C. §§141 5(i)(2)A), (l).
      1. Combining claims from a federal statute that does not require exhaustion with one that does have an exhaustion requirement can result in enforcement of an exhaustion requirement for both statutory claims. Cave v. East Meadow Union Free School District, 514 F.3d 240 (2d Cir. 2009) (student with Rehabilitation Act, ADA and § 1983 claims must exhaust IDEA remedies); Babicz v. School Board of Broward County, 135 F.3d 1420 (11th Cir.), cert. denied, 525 U.S. 81 6 (1998) (student filing claims under Rehabilitation Act, ADA and IDEA must exhaust IDEA remedies when IDEA relief is available).
7. When Congress has required exhaustion, the next inquiry is whether the requirement is jurisdictional or non-jurisdictional. Avocados Plus, Incorporated v. Veneman, 370 F.3d 1243, 1247 (D.C. Cir. 2004).
8. When the exhaustion requirement is framed in jurisdictional terms, the court lacks jurisdiction unless the plaintiff has exhausted its remedies. It is presumed that the exhaustion requirement is not jurisdictional, but the presumption may be overcome if the statute otherwise provides in "sweeping and direct" terms.
9. Jurisdictional exhaustion, which is rooted in Congressional control over the jurisdiction of the federal courts, may not be waived and is not subject to any exceptions.
10. Non-jurisdictional exhaustion, in contrast, is based on prudential considerations: "giving agencies the opportunity to correct their own errors, affording parties and courts the benefits of agencies' expertise, [and] compiling a record adequate for judicial review...." Marine Mammal Conservancy, Incorporated v. U.S. Department of Agriculture, 134 F.3d 409, 414 (D.C. Cir. 1998).
11. Exhaustion of administrative remedies is not required in cases of non-jurisdictional exhaustion when the interests in the petitioner in prompt review outweigh the government's prudential interests. Avocados Plus, 370 F.3d at 1247 (finding exhaustion non-jurisdictional) For cases wrestling with the distinction in situations where there are circuit splits, see Dawson Farms, LLC v. Farm Service Agency, 504 F.3d 592 (5th Cir. 2007) and Ace Property and Casualty Insurance Company v. Federal Crop Insurance Corporation, 440 F.3d 992 (8th Cir. 2006). See also Hettinga v. United States, 560 F.3d 498 (D.C. Cir. 2009).
12. The Supreme Court has also wrestled frequently with the scope of exhaustion when 42 U.S.C. § 405(g), which governs judicial review of Department of Health and Human Services benefit determinations. See Shalala v. Illinois Council on Long-Term Care, 529 U.S. 1 (2000); Bowen v. Michigan Academy of Family Physicians, 487 U.S. 667 (1986); Heckler v. Ringer, 466 U.S. 602 (1984); Mathews v. Eldridge, 424 U.S. 31 9 (1976); Weinberger v. Salfi, 422 U.S. 749 (1975).
13. 42 U.S.C. § 405(g), which governs judicial review of Department of Health and Human Services benefit determinations.
14. Without an explicit statutory requirement for exhaustion, “courts are guided by congressional intent in determining whether application of the doctrine would be consistent with the statutory scheme.” Patsy v. Board of Regents, 457 U.S. 496, 502, n.4 (1982).
15. Thus, implied exhaustion requirements are often determined by resort to "sound judicial discretion," based on statutory interpretation and legislative history. McCarthy v. Madigan, 503 U.S. 140, 144 (1991).
16. In these circumstances, “courts play an important role in determining the limits of an exhaustion requirement and may impose such a requirement even where Congress has not expressly so provided.” Alacare Incorporated v. Baggiano, 785 F.2d 963, 966 (11 th Cir. 1986) (quoting Patsy, 457 U.S. at 501).
17. JUDGE CAN DO WHATEVER HE WANTS. CONTROL THE JUDGE.
18. Be careful when filing claims under several statutes. Exhaustion is sometimes excused when there is a constitutional challenge to the agency 's administrative process. Barry v. Barchi, 443 U.S. 55, 63 n.10 (1979); Kreschollek v. Southern Stevedoring Company, 78 F.3d 868, 875 (3d Cir. 1996).
19. The agency may also waive a non-jurisdictional exhaustion requirement. Heckler v. Day, 467 U.S. 104, 110 n.4 (1984); Mathews v. Diaz, 426 U.S. 67, 72-73 (1970); Weinberger v. Salfi, 422 U.S. 749, 765-77 (1975).
20. Common-Law Duty of Exhaustion JUDICIAL RULE IS COMMON LAW
21. When “Congress has not clearly required exhaustion, sound judicial discretion governs.” McCarthy, 503 U.S. at 1 44. Such is the case in which there is only a regulatory exhaustion requirement. See Equal Employment Opportunity Commission v. Bashas' Incorporated, 2009 U.S. Dist. LEXIS 977 36 at *12 (D. Ariz. Sept. 30, 2009).
    1. SOUND JUDICIAL DISCRETION
       1. The Supreme Court in McCarthy v. Madigan identified three circumstances which, if present, would weigh against requiring exhaustion.
          1. The first occurs when requiring exhaustion would unduly prejudice a subsequent court action, such as when the administrative process is either delayed or does not otherwise allow the plaintiff to avert irreparable harm. McCarthy, 503 U.S. At 1 46-47; Coit Independence Joint Venture v. Federal Savings and Loan Insurance Corporation, 489 U.S. 561 (1989).
             1. In Bowen v. City of New Y ork, for ex ample, the Court found that a class of social security disability insurance claimants would suffer irreparable injury if they were required to fully ex haust their administrativ e remedies with the Social Security Administration. Bowen v. City of New York, 47 6 U.S. 467 (1986). The court noted that a “severe medical setback” might result from the “trauma of having disability benefits cut off” and “the ordeal of having to go through the administrative appeal process:”
          2. Second, exhaustion is not required when the administrative remedy is shown to be inadequate or would be futile. McCarthy, 503 U.S. At 147-48; Honig v. Doe, 484 U.S. 305, 327 (1988); Durand v. Hanover Insurance Group, Incorporated, 560 F.3d 436 (6th Cir. 2008) (ERISA claim); Porter v. Board of Trustees of Manhattan Beach Unified School District, 307 F.3d 1064, 1070 (9th Cir. 2002) (IDEA claim).
             1. Moreover, exhaustion is not required when the challenge is to the agency procedures themselves. Gibson v. Berryhill, 411 U.S. 564, 575 (1973).
             2. Such might be the case when the agency is unable to grant an effective remedy or is unable to consider the issues presented. See, e.g., Taylor v. Vermont Department of Education, 313 F.3d 768, 790 (2d Cir. 2002).
             3. A number of cases, frequently in the IDEA context, hold that administrative remedies are inadequate when the plaintiffs claim systemic failures and seek system-wide relief. See McQueen v. Colorado Springs School District No. 11 , 488 F.3d 868, 874-75 (10th Cir. 2007); Handberry v. Thompson, 446 F.3d 335, 343 (2d Cir. 2006); J.S. v. Attica Central Schools, 386 F.3d 107 , 113-14 (2d Cir. 2004).
          3. Third, the Court found a waiver of exhaustion appropriate when agency bias is shown. McCarthy, 503 U.S. at 148-49.
             1. A common fourth exception is where the litigant raises a colorable constitutional claim that is collateral to her substanti e claim of entitlement. See Clarinda Home Health v Shalala, 100 F.3d 526 (8th Cir. 1996); see also Bowen v. City of New York, 476 U.S. 467 , 483, 485 (1986); Mathews v. Eldridge, 424 U.S. 319 (1976).
22. Exercise of this discretion involves balancing the interests of the plaintiff in accessing a federal forum promptly against the institutional interests advanced when exhaustion is required.
    1. Those interests were summarized in Weinberger v. Salfi, 422 U.S. 749, 765 (1975): “Exhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for review.”
23. Applying these factors, the Court in McCarthy held that a federal prisoner did not have to exhaust the FBI's administrative remedy procedure before filing a Bivens action in federal court.
24. 3.4 Exhaustion and Preclusion Civil Resource Manual For Legal Aid Attorneys Updated 2012 http://federalpracticemanual.org/node/22
25. 3.4 EXHAUSTION & PRECLUSION CIVIL RESOURCE MANUAL FOR LEGAL AID ATTORNEYS STUDY GUIDE #1
    1. By The Angry Jeweler; The Hennalady; Lisa Stinocher O'Hanlon http://angryjeweler.wix.com/write
       1. WARNING; MAY CONTAIN OFFENSIVE LANGUAGE
26. This section discusses the circumstances under which a prospective federal court plaintiff may be required to exhaust judicial or administrative remedies before filing an action in federal court and
    1. CIRCUMSTANCES REQUIRING EXHAUSTION
       1. JUDICIAL REMEDIES
       2. ADMINISTRATIVE REMEDIES
27. preclusion implications of having such remedies available or pursuing such remedies when they are not statutorily mandated.
    1. PRECLUSION IMPLICATIONS; SEE STUDY GUIDE #2