As we suggested in our preview of Tuesday’s oral argument in Ross v. Blake, a case ostensibly presenting the question of whether there is a “special circumstances” exception to the exhaustion requirement of the Prison Litigation Reform Act of 1996 (PLRA), “the real question for the Court . . . may not be the merits of the question presented, but rather the appropriate means to resolve the actual dispute between the parties.” If Tuesday’s fifty-one-minute hearing is any indication, a majority of the Justices appear inclined to agree, with the only drama involving whether they opt to dismiss certiorari as improvidently granted or send the case back to the Fourth Circuit for another hearing.

The relevant provision of the PLRA bars any federal challenge to the conditions of a prisoner’s confinement “until such administrative remedies as are available are exhausted.” In allowing respondent Shaidon Blake’s excessive force suit under 42 U.S.C. § 1983 to go forward, a divided panel of the Fourth Circuit had relied upon a “special circumstances” exception to that requirement to excuse Blake’s purported failure to exhaust. But as the argument preview explained, Blake’s principal argument – both in the court of appeals and before the Supreme Court – was not that his failure to exhaust should be excused, but that the unexhausted remedies pointed to by the state of Maryland (representing petitioner Michael Ross, a state corrections officer) were not in fact “available,” and so the actual dispute in this case bears little resemblance to the question on which the Justices granted certiorari.

That theme emerged early and often during the presentation of Maryland Assistant Attorney General Julia Doyle Bernhardt on Ross’s behalf. With Justices Elena Kagan, Sonia Sotomayor, and Ruth Bader Ginsburg leading the charge, Bernhardt faced repeated (and skeptical) questioning about whether the unexhausted remedies were actually available to prisoners in Blake’s position. As Kagan put it during one especially pointed exchange, “we took this case on the view, which was the view that [your] office represented to us at the time, that the [Administrative Review Process] was the proper place to go to receive a remedy, not the proper place to go to receive a rubber stamp saying ‘You’ve come to the wrong place,’ but the proper place to go to receive a remedy even when there was an [Internal Investigative Unit] investigation going on.” With Justices Stephen Breyer and Anthony Kennedy later also expressing skepticism about whether a prisoner in Blake’s position could have been expected to do anything differently – and with the Justices eating into all of Bernhardt’s rebuttal time – there seemed to be support across the bench for the notion that the unexhausted administrative remedies may not have been available to Blake in the first place.

The problem for the Justices, as Chief Justice John Roberts repeatedly pointed out during Tuesday’s argument, is that much of the evidence supporting the unavailability of the unexhausted remedies came in separate lodgings with the Court – and was not made part of the record below. And whereas Kennedy suggested at one point that the proper remedy, given Maryland’s representations in its briefs, was to dismiss certiorari as improvidently granted (DIG), Roberts pushed back, suggesting that a “DIG” “would be based on a judgment about what these extra record materials show,” i.e., that a DIG would require the Justices to agree with Blake’s portrayal of the extra-record evidence, and not just accept that the case doesn’t actually present the question on which certiorari was granted.

That question, in turn, became the dominant focus of the ten-minute argument by Assistant to the Solicitor General Zachary Tripp on behalf of the United States as an amicus supporting Ross and the state. Again, though, the Court seemed focused on whether the viability of the “special circumstances” exception on which the Fourth Circuit relied was even worth reaching, with Ginsburg returning to the theme from Ross’s argument – asking whether the unexhausted remedies were actually available to Blake. Tripp responded that the federal government “frankly [doesn’t] have an interest in the outcome of that question . . . and [doesn’t] think this Court would have ever granted cert on it.”

Thus, by the time Mayer Brown partner Paul Hughes rose on Blake’s behalf, the focus had shifted almost entirely to the appropriate disposition. Although Justice Samuel Alito pushed Hughes on whether he agreed with the Fourth Circuit that there is a “special circumstances” exception to the PLRA’s exhaustion requirement, Hughes pushed back, suggesting that although he believes the Fourth Circuit was correct, he also believed there was enough support in the record to affirm the court of appeals on the distinct ground that the unexhausted remedies were not in fact available to Blake. Apologizing for beating a dead horse, Roberts returned to the record issues he had raised during Bernardt’s argument, suggesting that “I don’t have any confidence that these lodgings represent the complete universe to allow me to make a judgment about the procedures under Maryland law, because this wasn’t litigated or . . . subject to discovery in the district court or court of appeals.” Hughes responded that, in the worst-case scenario, the Court could always remand the case to the Fourth Circuit. And given that the session concluded nine minutes short of the usual hour, it seemed fairly clear by the end that such a result would, indeed, be the worst the Court would do by Blake – and that an even better result, including a DIG if not an affirmance on different grounds, was a distinct possibility.

Posted in Ross v. Blake, Analysis, Featured, Merits Cases

Recommended Citation: Steve Vladeck, Argument analysis: Justices seem likely to DIG or remand prisoner-exhaustion case, SCOTUSblog (Mar. 30, 2016, 7:25 PM), http://www.scotusblog.com/2016/03/argument-analysis-justices-seem-likely-to-dig-or-remand-prisoner-exhaustion-case/