-
TO DETERMINE IF EXHAUSTION IS REQUIRED
-
First examine the federal statute that provides the right sought
to be enforced for explicit or implicit exhaustion requirements
-
If exhaustion is required, determine whether one of the recognized
exceptions to exhaustion of remedies applies to the circumstances of the case.
- 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.
-
Nevertheless, consider whether to pursue, available local
or state administrativ e remedies.
Patsy v. Board of Regents, 457 U.S. 496, 501 (1 982).
-
THIS ENTAILS
- 1. Assessment of the needs of the client.
- 2. The certainty and speed of such relief,
- 3. Opportunities to obtain useful information
for a subsequent judicial appeal, and
- 4. The expense of litigation of a case through
trial in federal court.
- 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. 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.
- 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).
-
(Prison Litigation Reform Act’s
exhaustion requirement is not satisfied
by filing an untimely or procedurally
defective administrative grievance or appeal).
- 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)
- The interpretive question in cases with an
explicit exhaustion requirement is the breadth
of the statutory exhaustion provision.
-
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.
-
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).
- 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).
- 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).
- 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.
- 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.
- 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).
- 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).
- 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).
- 42 U.S.C. § 405(g), which governs
judicial review of Department of Health
and Human Services benefit determinations.
- 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).
- 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).
- 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).
- JUDGE CAN DO
WHATEVER HE WANTS.
CONTROL THE JUDGE.
- 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).
- 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).
- Common-Law Duty
of Exhaustion
JUDICIAL RULE IS
COMMON LAW
-
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).
-
SOUND JUDICIAL DISCRETION
-
The Supreme Court in McCarthy v. Madigan
identified three circumstances which, if present,
would weigh against requiring exhaustion.
-
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).
- 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:”
-
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).
- Moreover, exhaustion is not required
when the challenge is to the agency
procedures themselves.
Gibson v. Berryhill, 411 U.S. 564,
575 (1973).
- 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).
- 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).
-
Third, the Court found a waiver of
exhaustion appropriate when
agency bias is shown.
McCarthy, 503 U.S. at 148-49.
- 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).
-
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.
- 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.”
- 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.
- 3.4 Exhaustion and Preclusion
Civil Resource Manual For Legal Aid Attorneys
Updated 2012
http://federalpracticemanual.org/node/22
-
3.4 EXHAUSTION & PRECLUSION
CIVIL RESOURCE MANUAL FOR LEGAL AID ATTORNEYS
STUDY GUIDE #1
-
By The Angry Jeweler; The Hennalady; Lisa Stinocher O'Hanlon
http://angryjeweler.wix.com/write
- WARNING; MAY CONTAIN OFFENSIVE LANGUAGE
-
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
-
CIRCUMSTANCES REQUIRING EXHAUSTION
- JUDICIAL REMEDIES
- ADMINISTRATIVE REMEDIES
-
preclusion implications of having such remedies available or
pursuing such remedies when they are not statutorily mandated.
- PRECLUSION IMPLICATIONS;
SEE STUDY GUIDE #2