Tomorrow’s Argument in Woodford v. Ngo

By Amy Howe
on Mar 21, 2006 at 11:53 pm

Note: This post was authored by Angie Cha, a second-year student at Stanford Law School.

The second argument on Wednesday is Woodford et al. v. Ngo, No. 05-416. This case presents the question whether the Prison Litigation Reform Act’s exhaustion requirement – a provision that prevents a prisoner from challenging the conditions of his confinement in court until he has exhausted administrative remedies — is satisfied when a prisoner files an untimely or otherwise procedurally defective administrative grievance. This technical question has enormous implications since it may bar prisoners, who are often ill-educated and navigate the prison grievance system unaided by lawyers, from ever filing suit if they file a procedurally defective claim.

Jennifer Perkell, Deputy Attorney General of California, will argue for petitioners Jeanne Woodford and Anthony Kane, who are California prison officials. She will split her time with Dan Himmelfarb, Assistant to the Solicitor General, who will argue on behalf of the United States as amicus curiae. Meir Feder of Jones Day will argue for respondent Ngo. The parties’ briefs are available here; the U.S.’s amicus brief is available here.

In October 2000, respondent Viet Mike Ngo, a California prisoner serving a life sentence, was placed in administrative segregation for engaging in “inappropriate activity” with volunteer priests. When he rejoined the general prison population in December 2000, he was enjoined from participating in “special programs” like Bible study sessions and from communicating with a former volunteer in the prison’s church. On June 18, 2001, Ngo formally appealed the disciplinary action. His appeal was rejected as time-barred because California regulations require a prisoner to file an appeal within fifteen working days of the “event or decision being appealed.” Ngo filed a second grievance six days later, claiming that his appeal is timely because the contested administrative action is ongoing. That appeal was also denied as time-barred.

Respondent then filed suit in district court, claiming, inter alia, that restrictions on participation in “special programs” violate his First Amendment rights to free speech and free exercise of religion. That court dismissed his complaint on the ground that he had failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act (“PLRA”).

The Ninth Circuit reversed, holding that the PLRA “requires prisoners to exhaust all available administrative remedies” before filing suit – which, in its view, respondent had satisfied since “no remedies remained available to him.” In reaching this conclusion, the court held that the reason for the “merger” of the two distinct doctrines of procedural default and exhaustion in habeas — i.e., federal-state comity — does not apply to the PLRA since state sovereignty “is less threatened” when a federal court reviews prison grievance proceedings. Instead, the court reasoned that the PLRA exhaustion requirement is more like the administrative exhaustion requirement in the Age Discrimination in Employment Act (“ADEA”) or Title VII, in which the Court has held that there is no procedural default rule.

The court also rejected the argument that the PLRA’s purpose is thwarted without a procedural default rule, reasoning that prisoners, who are “unrepresented, unschooled in litigation, and often ill-equipped to negotiate an administrative system far harsher in its procedural requirements than state or federal courts,” still “have every incentive” to seek administrative review – i.e., it is the fastest route to a remedy. Even if prisoners deliberately seek to avoid administrative review, the court reasoned that they still are required to file an untimely appeal that the prison administrator has the discretion to hear on the merits.

Petitioners appealed, arguing that the exhaustion requirement necessarily contains a procedural default bar. Petitioners argue that Congress, which sought to reduce frivolous prisoner suits, enacted the PLRA to eliminate the trial court’s discretion to require exhaustion. Not only would congressional intent be thwarted if prisoners could bypass administrative review by filing procedurally deficient claims, it would also jeopardize the PLRA’s success — a 50% decrease in the rate of suits per prisoners from 1995-2000 — thereby re-imposing a burden on the federal judiciary. Petitioners argue that this Court has respected Congress’s intent in its two previous PLRA decisions – Booth v. Churner and Porter v. Nussle – when it “foreclose[d] an inmate’s ability to circumvent available administrative processes” and should continue that trend in this case.

Petitioners also dispute the Ninth Circuit’s contention that the PLRA exhaustion differs from habeas exhaustion. According to petitioners, the same comity concerns underlying habeas exhaustion apply in prisons, where “internal problems … involve issues so peculiarly within state authority and expertise.” Furthermore, they argue that the lower court improperly analogized to Title VII and ADEA, which do not have an exhaustion requirement, but instead an altogether different provision that requires “only the bare initiation of state proceedings.”

The United States reiterates petitioners’ arguments, albeit more forcefully. The U.S. argues that the policy concerns that the Ninth Circuit raised – e.g., that ill-educated prisoners will be barred from raising meritorious claims — should be directed to Congress rather than the Court.

Respondent raises many of the same arguments as the Ninth Circuit. In an unusual twist, however, respondent agrees with the U.S. that the statutory language of the PLRA exhaustion requirement is “essentially identical” to its counterpart in the habeas statute, but further argues that the Court held that the habeas statutory language does not include a procedural default bar. Although the Court later fashioned a procedural default bar in habeas cases, Ngo argues that it did so as an equitable rule that is a separate adjunct to the statutory exhaustion requirement. Ngo argues that the Court should not create such a rule in this case because it does not have the authority to do so. Ngo further argues that the purpose of the habeas procedural default bar – to keep the state action as the “main event” — does not apply here where the prison grievance system is not the “main event” as evidenced by the federal court’s de novo review of prisoner suits.

Respondent uses this same argument – i.e. that the prison grievance proceeding is not the main event – to distinguishes PLRA exhaustion from administrative exhaustion cases which require a “proper presentation” to the agency. In those cases, the procedural default bar follows not from the exhaustion requirement but from a waiver principle that applies when the agency is the primary decisionmaker. That waiver rationale doesn’t apply here, because the prison grievance system is not the primary decisionmaker.

Perhaps one of the most striking Ninth Circuit arguments that respondent re-emphasizes is the policy concerns concerning the state’s ability to set “unfair deadlines and procedural traps” against an “unpopular and politically powerless group.” Noting that in Felder v. Casey, the Court invalidated a statute that required citizens to give notice within 120 days to bring a § 1983 claim against state officials, respondent highlights that here the disputed regulation shortens the statute of limitations from two years to fifteen days; in some states, the period is only two or three days.