Patsy v. Florida Board of Regents Brief Amici Curiae

    No. 80-1874

In T he

iTUtmtu' (llmtrt nf Ibr lltuitpii Status
October Term, 1981

Geo rg ia  P a t s y ,
Petitioner, v. ’

B oard  of R e g e n t s  of t h e  S t a t e  of  F l o r id a , 
a body corporate, for and on behalf of 
F lo r id a  I n t e r n a t io n a l  U n iv e r s it y ,

Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Eleventh Circuit

BRIEF FOR NATIONAL EDUCATION ASSOCIATION 
AND LAWYERS’ COMMITTEE FOR CIVIL RIGHTS 

UNDER LAW AS AMICI CURIAE

Richard C. Dinkelspiel 
Maximilian W. Kempner 

Co-Chairmen 
William L. Robinson 
Norman J. Chachkin 

Attorneys
Lawyers’ Committee for 

Civil Rights Under Law 
733 Fifteenth Street, N.W. 
Washington, D.C. 20005 
(202) 628-6700

Michael H. Gottesman * 
Robert M. Weinberg 
Jeremiah A. Collins 

Bredhoff & Kaiser 
1000 Connecticut Ave., N.W. 
Washington, D.C. 20036 
(202) 833-9340 

David Rubin
National Education Association 
1201 Sixteenth Street, N.W. 
Washington, D.C. 20036 
(202) 833-4451

Attorneys for Amici Curiae

* Counsel of Record

W il son  - Ep e s  Pr i n t i n g  C o . .  In c . - 7 8 9 - 0 0 9 6  - W a s h i n g t o n , D .C .  2 0 0 0 1



Page
INTEREST OF THE AMICI CURIAE __________ _ 1

INTRODUCTION AND SUMMARY OF ARGU­
MENT ............................................................................ 2

ARGUMENT ............................................     4

I. The Doctrine of Stare Decisis Should Preclude 
Reexamination of This Court’s Consistent Hold­
ings That Exhaustion of State Administrative 
Remedies Is Not A Prerequisite To Suit Under
42 U.S.C. § 1983 ...............   4

II. The Congress That Enacted § 1983 Did Not
Intend That A Plaintiff Be Required To Exhaust 
State Administrative Remedies As A Prerequi­
site To Suit Under § 1983 ....................................  18

CONCLUSION ...........................   24

TABLE OF CONTENTS



TABLE OF AUTHORITIES
Cases: Page

Allee v. Medrano, 416 U.S. 802 ............... ..... -.......  5
Allen v. McCurry, 449 U.S. 9 0 ............ ..... .............  19, 21
Alyeska Pipeline Co. v. Wilderness Society, 421

U.S. 240 .................. ..... ....................... - ...............  19
Apex Hosiery Co. v. Leader, 310 U.S. 469 ............  17
Board of Regents v. Tomanio, 446 U.S. 478 .........7, 8, 20
Boys Markets v. Clerks Union, 398 U.S. 235 .......  17
Braden v. 30th Judicial Circuit Court of Kentucky,

410 U.S. 484 . .... ......... ...... ...... ........................ -  9,18
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393—. 9
Carey v. Piphus, 435 U.S. 247 ________ ________ 19
Carter v. Stanton, 405 U.S. 669  ........ ...... ......... . 5
Chardon v. Fernandez, ------  U.S. —•—, 50 L.W.

3341 ....... - ............. ........... ......... ~~~...............  .. 6,8
Cheatham v. United States, 23 Wall. (93 U.S.) 85.. 23
City of Columbus v. Leonard, 443 U.S. 905 ........... 6
City of Newport v. Fact Concerts, Inc.,------ U.S.

------ , 49 L.W. 4860 ......... ....... ............................. 19, 21
Clyde v. United States, 13 Wall. (80 U.S.) 3 8 ....... 21-23
Collector v. Hubbard, 12 Wall. (79 U.S.) 1 .......... . 22
Continental T.V., Inc. v. GTE Sylvania, Inc., 433

U.S. 3 6 ____________ ______ ___________ ______ 17
Damico v. California, 389 U.S. 416.......... ........... 4-6, 9,19
Delaware State College v. Ricks, 449 U.S. 250 ....... 6, 8
Edelman v. Jordan, 415 U.S. 651 ..........................  9
Ellis v. Dyson, 421 U.S. 426 .............. ............. .......  5
Erskine v. Hombach, 14 Wall. (81 U.S.) 613 ....... 23
Fair Assessment in Real Estate Association, Inc.

v. McNary, ------U.S. — —, 50 L.W. 4017 ........ 7, 8, 20
Flood v. Kuhn, 407 U.S. 258 .................................. 16,17
Gibson v. Berryhill, 411 U.S. 564 ........ ..................  6
Gomez v. Toledo, 446 U.S. 635 ........................... . 19-21
Helvering v. Hallock, 309 U.S. 106 ......................  17
Houghton v. Shafer, 392 U.S. 639 ..........................  5, 9
Huffman v. Pursue, Ltd., 420 U.S. 592 ............. .....  6
Illinois Brick Co. v. Illinois, 431 U.S. 720 ........... 8-9
Imbler v. Pachtman, 424 U.S. 409 ..........................  21
King v. Smith, 392 U.S. 309 ................ ................ . 5
Laird v. Nelms, 406 U.S. 797 ............ ....... ..... ........  17

ii



I l l

TABLE OF AUTHORITIES— Continued

Maine v. Thiboutot, 448 U.S. 1 ....... ........ ..... ....... . 9
McGee v. United States, 402 U.S. 479 ___________ 20
McNeese v. Board of Education, 373 U.S. 668 __ 4, 18-19
Missouri v. Ross, 299 U.S. 72 _____ _____ _______ 17
Monell v. New York City Dept, of Social Services,

436 U.S. 658 _____________ __________ ______ .2,17-19
Monroe v. Pape, 365 U.S. 167 ___ _____ ________4,17,18
Myers v. Bethlehem Shipbuilding Corp., 303 U.S.

41 .................................................. ............. ...........  20
Nicholl v. United States, 7 Wall. (74 U.S.) 122 .... 23
Northwest Airlines, Inc. v. Transport Workers 

Union,------ U.S. ------ , 49 L.W. 4383 ................. . 19
Owen v. City of Independence, 445 U.S. 622 ____2,19-21
Parratt v. Taylor, —— U.S.----- , 49 L.W. 4509.... 6
Philadelphia v. The Collector, 5 Wall. (72 U.S.)

720 .......................... ................. ...... ......................
Pierson v. Ray, 386 U.S. 547 ________ __ ________
Preiser v. Rodriguez, 411 U.S. 475 .............. .......
Runyon v. McCrary, 427 U.S. 160 ______ ________
Samuels v. Mackell, 401 U.S. 66 .................. ..........
Steffel v. Thompson, 415 U.S. 452 ...... ........... ......
Tenney v. Brandhove, 341 U.S. 367 ............. ....... .
Texas & Pacific R. Co. v. Abilene Cotton Oil Co.,

204 U.S. 426 ________ _________ ___________ __
United States v. Sing Tuck, 194 U.S. 161________
United States v. South Buffalo R. Co., 333 U.S.

771 ____________________ _____________ _____
Wilwording v. Swenson, 404 U.S. 249 __________
Wood v. Strickland, 420 U.S. 308 ............... ...........
Wooley v. Maynard, 430 U.S. 705 ______ _______
Younger v. Harris, 401 U.S. 37 ... ....... ...................

23
21

5
6 
7

7, 19 
19,21

20
20

16, 17 
5,9 

19, 21 
6

6,7
Statutes

Civil Rights Act of 1866, 42 U.S.C. § 1981 _______ 8
Civil Rights Act of 1871, 42 U.S.C. § 1983 ....... .passim
Civil Rights Act of 1964:

Title II, 42 U.S.C. § 2000a....... ........... ...... . 16
Title VII, 42 U.S.C. § 2000e _______ ______ _ 16

Civil Rights of Institutionalized Persons Act of
1980, 42 U.S.C. § 1997e ______________________  10-16

Fair Housing Act of 1968, 42 U.S.C. § 3610 .........  16



IV

Legislative Materials Page
Congressional Record ______________     11-14
H. Conf. Rep. No. 96-897, 96th Cong., 2d Sess.

(1980) __________      ....13,15,16
H. Rep. No. 96-80, 96th Cong., 1st Sess. (1979)___ 14-16
Hearings on H.R. 10 before the House Subcomm. 

on Courts, Civil Liberties, and the Administra­
tion of Justice, 96th Cong., 1st Sess. (1979) ____ 11-14

Hearings on H.R. 2439 and H.R. 5791 before the 
House Subcomm. on Courts, Civil Liberties, and 
the Administration of Justice, 95th Cong., 1st
Sess. (1977) ____       12,14

S. Rep. No. 96-416, 96th Cong., 1st Sess. (1979).— 14-16

Miscellaneous
Wyman, The Principles of Administrative Law 

Governing the Relation of Public Officers 
(1903) .........        23

TABLE OF AUTHORITIES— Continued



In T he

(Emtrt uf th? Inttpb BtaUz
O cto ber  T e r m , 1981

No. 80-1874

Geo rg ia  P a t s y ,
Petitioner, v. ’

B oard  of R e g e n t s  of t h e  St a t e  of F l o r id a , 
a body corporate, for and on behalf of 
F lo r id a  I n t e r n a t io n a l  U n iv e r s it y ,

Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Eleventh Circuit

BRIEF FOR NATIONAL EDUCATION ASSOCIATION 
AND LAWYERS’ COMMITTEE FOR CIYIL RIGHTS 

UNDER LAW AS AMICI CURIAE

INTEREST OF THE AMICI CURIAE 1

The National Education Association (NEA) is the 
largest teacher organization in the United States, with 
a membership of approximately 1.7 million educators, 
virtually all of whom are employed by public educa­
tional institutions. One of NEA’s purposes is to safe­

1 The parties have consented to the filing of this brief.



2

guard the constitutional rights of teachers and other pub­
lic educators.

The Lawyers’ Committee for Civil Rights Under Law 
was organized in 1963 at the request of the President 
of the United States to involve private attorneys through­
out the country in the national effort to assure civil 
rights to all Americans. The Committee has over the 
past eighteen years enlisted the services of thousands 
of members of the private bar in addressing the legal 
problems of minorities and the poor in voting, education, 
employment, housing, municipal services, the administra­
tion of justice, and law enforcement.

Amici have a vital interest in the availability of 
prompt and complete relief in federal courts for those 
who are injured by the unconstitutional actions of public 
officials and entities. In pursuit of that interest, these 
amici have filed joint briefs in this Court in prior cases 
involving issues affecting the scope of 42 U.S.C. § 1983, 
Monell v. New York City Dept, of Social Services, 436 
U.S. 658, Owen v. City of Independence, 445 U.S. 622. 
The issue in the instant case— whether state administra­
tive remedies must be exhausted before instituting a 
§ 1983 action— is another that will profoundly affect the 
availability of prompt relief under § 1983. Accordingly, 
amici have a vital interest in its sound resolution.

INTRODUCTION AND SUMMARY OF ARGUMENT

This case presents the question whether, in an action 
brought pursuant to 42 U.S.C. § 1983, a district court 
may decline to hear a plaintiff’s constitutional claim on 
the ground that the plaintiff did not exhaust administra­
tive remedies provided by the state. For two reasons, 
we believe that the answer must be “ no” .

First, the outcome of this case should be governed by 
the doctrine of stare decisis. In a series of decisions 
spanning two decades, this Court has construed § 1983



8

as not containing any requirement that state remedies 
be exhausted, and, indeed, has decided other issues as to 
the application of § 1983 from the predicate that such 
exhaustion is never required. Congress, fully informed 
of these decisions, has chosen to legislate selectively—- 
creating a carefully limited exhaustion requirement in 
one category of cases that it believed presented a special 
need for exhaustion, but otherwise refraining from over­
ruling the no-exhaustion holdings of this Court. In the 
light of this congressional response, the question whether 
exhaustion may be required under § 1983 beyond the 
scope of Congress’ recent dictates must be regarded as 
settled in the negative.

Second, even if the question were to be reexamined by 
this Court free of the restraint of stare decisis, the result 
would be the same. The question then would be one of 
statutory construction: whether the Congress that en­
acted § 1983 intended that victims of constitutional vio­
lations would have to exhaust state administrative reme­
dies before invoking the protection of the federal courts. 
Section 1983 does not by its terms create an exhaustion 
requirement, and there is nothing in the legislative his­
tory from which such an intention could be inferred. Nor 
was a “ tradition”  of requiring exhaustion so well rooted 
in the law as of 1871 that Congress could be expected 
to have specifically so provided had it wished that tradi­
tion not to be applicable to § 1983. On the contrary, the 
“ tradition” as of 1871— announced in contemporaneous 
Supreme Court decisions— was that exhaustion of ad­
ministrative remedies was not required as a prerequisite 
to suit under a federal statute unless the statute ex­
pressly called for such exhaustion.



4

ARGUMENT
I. THE DOCTRINE OF STARE DECISIS SHOULD 

PRECLUDE REEXAMINATION OF THIS COURT’S 
CONSISTENT HOLDINGS THAT EXHAUSTION 
OF STATE ADMINISTRATIVE REMEDIES IS 
NOT A PREREQUISITE TO SUIT UNDER 42 U.S.C. 
§ 1983.

A.
This Court first confronted the question whether state 

remedies must be exhausted before suing under § 1983 
in Monroe v. Pape, 365 U.S. 167. Recognizing the ques­
tion to be one of statutory construction, the Court sur­
veyed in detail the relevant legislative history {id. at 
172-183) and concluded as follows {id. at 183) :

It is no answer that the State has a law which if 
enforced would give relief. The federal remedy is 
supplementary to the state remedy, and the latter 
need not be first sought and refused before the fed­
eral one is invoked.

The state remedy involved in Monroe was judicial 
rather than administrative. But shortly thereafter in 
McNeese v. Board of Education, 373 U.S. 668, the Court 
held that the Monroe analysis was equally applicable to 
state administrative remedies. The Court stated that 
“ relief under the Civil Rights Act may not be defeated 
because relief was not first sought under state law which 
provided a remedy,” and that the statutory purpose was 
“ to provide a remedy in the federal courts supplementary 
to any remedy any state might have.” Id. at 672 (em­
phasis added).

In McNeese the Court went on to observe that the 
state remedy at issue in that case may have been inade­
quate in any event {id. at 674-675), but the Court soon 
made clear that the holding in McNeese had not turned 
on the possible inadequacy of the state administrative 
remedy, and that exhaustion is not required irrespective 
of the “ adequacy” of state administrative remedies, 
Damico v. California, 389 U.S. 416:



5

The three-judge District Court dismissed the com­
plaint solely because ‘it appear [ed] to the Court that 
all of the plaintiffs [had] failed to exhaust adequate 
administrative remedies.’ This was error. In 
McNeese . . ., noting that one of the purposes under­
lying the Civil Rights Act was ‘to provide a remedy 
in the federal courts supplementary to any remedy 
any State might have’ . . ., we held that ‘relief under 
the Civil Rights Act may not be defeated because re­
lief was not first sought under state law which pro­
vided [an adequate] remedy’ . . . See Monroe v. Pape 
. . . [Id. at 416-417 (brackets in original) (em­
phasis added).] 2

The holding of Damico— that exhaustion of state ad­
ministrative remedies is never required under § 1983—  
has been reaffirmed by the Court on numerous occasions. 
In Wilwording v. Swenson, 404 U.S. 249, as well as in 
Houghton v. Shafer, 392 U.S. 639, “ [although the prob­
able futility of [the] administrative appeals [available 
in those cases] was noted, [the Court] held that in ‘any 
event, resort to these remedies is unnecessary.’ ”  Wil­
wording, supra, 404 U.S. at 252. Similarly, in Ellis v. 
Dyson, 421 U.S. 426, 432-433, the Court declared: “ [ e x ­
haustion of state judicial or administrative remedies . . . 
[is] not . . . necessary, for we have long held that an 
action under § 1983 is free of that requirement.” See also 
Carter v. Stanton, 405 U.S. 669; Allee v. Medrano, 416 
U.S. 802, 814; Preiser v. Rodriguez, 411 U.S. 475, 477, 
492-493 n. 10, 494; King v. Smith, 392 U.S. 309, 312 
n. 4.3 * * * * 8

2 Justice Harlan dissented in Damico precisely because he dis­
agreed with the Court’s holding “that there can be no requirement
that a person dealing with an administrative agency . . . [must
exhaust his administrative remedy], no matter how adequate his
remedy [may be].” Id. at 418 n. (Harlan, J., dissenting) (emphasis
added).

8 Even those members of the Court who, over the years, have 
expressed doubts as to whether the cases in question were rightly 
decided have acknowledged that the cases do indeed establish the



6

Indeed, so well-settled is the principle that there is no 
exhaustion requirement under § 1983 that this Court has 
decided four cases involving other issues concerning the

proposition just stated. See Damico, supra, 389 U.S. at 418 n. 
(Harlan, J., dissenting); Runyon v. McCrary, 427 U.S. 160, 186 n.
(Powell, J., concurring); Parratt v. Taylor, ------  U.S. -------, 49
L.W. 4509, 4516 n. 13 (Powell, J., concurring in the result) (sug­
gesting legislative action) ; City of Columbus v. Leonard, 443 U.S. 
905 (Rehnquist, J., dissenting from denial of certiorari).

The court below thought that the clarity of this Court’s repeated 
no-exhaustion rulings was clouded by Gibson v. Berryhill, 411 U.S. 
564, and Huffman v. Pursue, Ltd., 420 U.S. 592. The court below 
was mistaken.

In Gibson, a plaintiff obtained a judgment in a § 1983 action 
enjoining a state licensing board from conducting a hearing that 
had been scheduled by the Board. Id. at 569-570. In those circum­
stances the Court, after first noting that it “has expressly held in 
recent years that state administrative remedies need not be ex­
hausted where the federal court plaintiff states an otherwise good 
cause of action under 42 U.S.C. § 1983,” added: “ [wjhether this 
is invariably the case even where, as here, a license revocation pro­
ceeding has been brought by the State and is pending before one 
of its own agencies and where the individual charged is to be 
deprived of nothing until the completion o f that proceeding, is a 
question we need not now decide.” Id. at 574-575. That narrow 
question is not presented here, for petitioner claims already to' have 
suffered a deprivation, and no state administrative proceeding is 
pending. Moreover, even were the exception discussed in Gibson 
to be recognized, this Court’ s subsequent decisions in Delaware
State College v. Ricks, 449 U.S. 250, and Chardon v. Fernandez,------
U.S. —— , 50 L.W. 3341, discussed infra, p. 8, make clear that 
it could not be extended to cases in which a decision to deprive has 
been made albeit that decision is subject to review before any 
actual deprivation is to be suffered.

In Huffman, the Court created no exhaustion requirement for 
instituting § 1983 actions; rather, the Court there held only that 
the doctrine of Younger v. Harris, 401 U.S. 37, precludes the issu­
ance of an injunction against “ a state judicial proceeding as to 
which the losing party has not exhausted his state appellate reme­
dies,” 420 U.S. at 609. As the Court later emphasized in Wooley v. 
Maynard, 430 U.S. 705, 710-711, Huffman has no application out­
side the Younger context (i.e. in the absence of pending state court 
proceedings whose interruption is the object of the § 1983 action). 
Younger, of course, has no application to the instant case. As the 
Court observed earlier this Term, the Younger doctrine has been



7

application of § 1983 from the starting-point that § 1983 
contains no exhaustion requirement, and has reached re­
sults that might not have been reached but for that predi­
cate. In Steffel v. Thom pson415 U.S. 452, this Court 
held that the principles of Younger v. Harris, 401 U.S. 
37 and Samuels v. Mackell, 401 U.S. 66, are inapplicable 
to suits for declaratory relief where criminal prosecution 
is threatened but not yet instituted, explaining:

When federal claims are premised on 42 U.S.C. § 1983 
and 28 U.S.C. § 1343(3)— as they are here— we have 
not required exhaustion of state judicial or admin­
istrative remedies, recognizing the paramount role 
Congress has assigned to the federal courts to pro­
tect constitutional rights. See, e.g., McNeese v. Board 
of Education, 373 U.S. 668 (1963) ; Monroe v. Pape, 
365 U.S. 167 (1961). But exhaustion of state rem­
edies is precisely what would be required if both fed­
eral injunctive and declaratory relief were unavail­
able in a case where no state prosecution has been 
commmenced. [415 U.S. at 472-473].

In Board of Regents v. Tomanio, 446 U.S. 478, the 
Court held that the applicable statute of limitations for 
a suit under § 1983 is not tolled during the pendency of 
state proceedings invoked by the plaintiff. The Court 
reasoned that the statute of limitations governing a fed­
eral remedy should not be tolled during the pendency of 
state proceedings “ unless that remedy is structured to 
require previous resort to state proceedings, so that the 
claim may not even be maintained in federal court unless 
such resort be had . . . ,”  id. at 490; and the Court rec­
ognized that § 1983 is not so structured: “ [T]he District 
Court’s conclusion that state remedies should be utilized 
before resort to the federal courts . . . does not square

“ limited in [its] application to federal cases which seek to enjoin 
state judicial proceeding’s.”  Fair Assessment in Real Estate Associ­
ation, Inc. v. McNary, ------  U.S. -------, 50 L.W. 4017, 4020. The
plaintiff in the instant case does not seek to enjoin any state pro­
ceedings, let alone state judicial proceedings.



8

with what must be presumed to be congressional intent 
in creating an independent federal remedy.”  Ibid.

In Delaware State College v. Ricks, 449 U.S. 250, the 
Court ruled that the time limit for filing a § 1981 action 
challenging an employment decision as unconstitutional 
runs from the date of the allegedly discriminatory deci­
sion, and not from the later date, following the pursuit 
of administrative appeals, upon which the decision be­
comes effective to interrupt employment. This Term, in
Chardon v. Fernandez, ------- U.S. -------, 50 L.W. 3441,
the Court applied the holding of Ricks to a similar ac­
tion brought under § 1983. In light of Tomanio, supra, 
only the Court’s implicit assumption that exhaustion of 
administrative remedies is not required in § 1981 and 
§ 1983 actions can account for the Court’s rulings in 
these cases.

Finally, this Term, in Fair Assessment in Real Estate
Association, Inc. v. McNary, ------- U.S. ____ , 50 L.W.
4017, the Court held that the principle of comity bars 
damage actions under § 1983 to redress the allegedly 
unconstitutional administration of a state tax system, 
reasoning in part that

[T]he intrusiveness of such § 1983 actions would be 
exacerbated by the nonexhaustion doctrine of Mon­
roe v. Pape, supra. Taxpayers such as petitioners 
would be able to invoke federal judgments without 
first permitting the State to rectify any alleged im­
propriety. [50 L.W. at 4021, see also id. at 4018.]

B.

In light of the repeated holdings of this Court over 
two decades that exhaustion of state administrative reme­
dies is not required under § 1983, the doctrine of stare 
decisis strongly counsels against reexamination of that 
question. As stated in Illinois Brick Co. v. Illinois 431 
U.S. 720, 736-737:

[Considerations of stare decisis weigh heavily in the 
area of statutory construction, where Congress is free



9

to change this Court’s interpretation of its legisla­
tion. See Edelman v. Jordan, 415 U.S. 651, 671 
(1974) ; Burnet v. Coronado Oil & Gas Co., 285 U.S. 
393,406-408 (1932) (Brandeis, J., dissenting). This 
presumption of adherence to . . . prior decisions con­
struing legislative enactments would support . . .  re­
affirmance of [those decisions] . . . even if the Court 
were persuaded that [a contrary decision] is more 
consistent with the policies underlying the [statute] 
than is the [existing] rule.4 * 6

Accordingly, even if  Congress had merely “ remained 
quiet in the face of [the Court’s] many pronouncements 
on the scope of § 1983” , Maine v. Thiboutot, 448 U.S. 1, 
8, it would not be appropriate for the Court now to undo 
the well-settled rule that exhaustion of state administra­
tive remedies is not required under § 1983.®

4 See also Edelman v. Jordan, 415 U.S. 651, 671 n. 14, quoting 
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-408 (Brandeis, 
J., dissenting) :

Stare decisis is usually the wise policy, because in most matters 
it is more important that the applicable rule of law be settled 
than that it be settled right . . . This is commonly true even 
where the error is a matter of serious concern, provided cor­
rection can be had by legislation.

And see Braden v. 80th Judicial Circuit Court of Kentucky, 410 U.S. 
484, 510-511 (Rehnquist, J., dissenting).

6 The court below, while recognizing “ the numerous instances in 
which the Court has stated in opinions, apparently quite cate­
gorically, that exhaustion is not required in section 1983 cases,”  
undertook to demonstrate that in each instance “ the state remedies 
were sufficiently inadequate that exhaustion would not have been 
appropriate in any event.”  634 F.2d at 906. Whether or not the 
cases could have been decided on such a ground, the fact remains 
that they were not so decided. To the contrary, in Damico, and 
again in Houghton and Wilwording, the Court took care to em­
phasize that exhaustion is not required regardless of the adequacy 
or inadequacy of particular administrative remedies. The deter­
minative question for stare decisis purposes is whether Congress 
could have misunderstood this Court’ s prior rulings ; those rulings 
did not leave room for misundertanding, and in any event we know 
that Congress did not misunderstand them (see pp. 10-12, infra).



10

But here the constraints of precedent are far more 
compelling, for Congress has not remained silent, but by 
its words and actions has expressed its recognition and 
acceptance of the no-exhaustion rule established in this 
Court’s decisions. In Section 7 of the Civil Rights of 
Institutionalized Persons Act, P.L. 96-247, 94 Stat. 349 
(1980), Congress adopted an exhaustion requirement for 
§ 1983 suits brought by “ adult [s] convicted of a crime 
confined in any jail, prison, or other correctional facility 
. . . 42 U.S.C. § 1997e(a) (1) (Supp. 1980). Under
the statute, such persons can be required to exhaust 
“ plain, speedy, and effective administrative remedies” 
that “ are in substantial compliance with . . . minimum 
acceptable standards” promulgated by the Attorney Gen­
eral. § 1997e(a) (2 ).6 If an adult prisoner has failed to 
exhaust such a remedy, the court may “ continue [his 
§ 1983] case for a period of not to exceed ninety days in 
order to require exhaustion” if the court finds “ that such 
a requirement would be appropriate and in the interests 
of justice,”  § 1997e(a) (1).

From the hearings and debates leading up to the 
passage of this Act, several points that bear directly on 
the question presented by this case can be stated with 
certainty.

First, Congress fully understood that as it stands, 
§ 1983 does not require exhaustion of administrative 
remedies. Representative Butler, a member of the sub­
committee that first drafted the provision that became 
§ 7, explained:

[Section 7] provides that in certain cases a Federal 
judge may require a State prisoner, who has filed a 
1983 petition, to go back and exhaust his State griev­
ance procedure.

*  *  *  *

’6 The Act specifies detailed safeguards that are to be included in 
the Attorney General’s standards, see p. 15, infra.



11

Under existing law there is no requirement that a 
complainant first ask the State prison system to help 
him. He can file his grievance directly in the federal 
court and his case has to he investigated by that 
court . . . .  [125 Cong Rec. H 3641 (daily ed. May 
23, 1979).]

Similarly, Representative Sawyer expressed the view that 
§ 7 would “ go a long way to diminish section 1983 law­
suits, under which . . . State prisoners can go directly 
into Federal court with an action . . . .”  Id. at H 3643. 
And in the prior Congress, where the House had passed 
a bill containing a provision virtually identical to § 7,7 
Representative Wiggins had stated:

Mr. Chairman, it is settled law that an exhaustion of 
administrative remedies is not required as a precon­
dition of maintaining a 1983 action. For many years, 
some of us have felt that the requirement of ex­
haustion of remedies would be desirable in the case 
of 1983 actions, but for various reasons it has been 
impossible to implement this requirement. The bill, 
however, makes a modest approach at an exhaustion 
of remedies requirement [124 Cong. Rec. H 7481 
(daily ed. July 28, 1978)].

Similarly, Representative Ertel said:
At the present time under 1983 a State prisoner can 
come directly into Federal court, file his petition with 
no notification to the State whatsoever, and the 
Federal court must take jurisdiction of that action 
under 1983. * * * #
What section [7] does is require a prisoner to go to 
the State system before he goes into Federal court. 

* * * *

7 In the 95th Congress the proposed legislation died in the Senate 
without a vote, due to a lack of time in the closing sessions. See 
Hearings on H.R. 10 before the House Subcomm. on Courts, Civil 
Liberties, and the Administration of Justice, 96th Cong., 1st Sess. 
(hereinafter “ 1979 Hearings” ) at 1 (1979) (remarks of Rep. 
Kastenmeier).



12

This has been one of the biggest controversies that 
has existed in 1983 that I know of, which is the fact 
that they can move directly into Federal court . . . . 
[Id. at H 4624 (daily ed. May 25, 1978)] 8

Congress therefore enacted section 7— which was 
“ strongly endorsed by the states” — in order to permit”

8 In . the hearings that preceded the enactment of the statute, 
numerous witnesses stated flatly that § 1983 does not require ex­
haustion of administrative remedies, and no witness suggested 
anything to the contrary. Thus, Assistant Attorney General Drew 
Days testified:

. . .  I think it is important to understand something about 
the background of exhaustion requirements insofar as section 
1983 . . .  is concerned. The Supreme Court has repeatedly 
declined to require that a plaintiff in a section 1983 action 
exhaust State remedies, either judicial or administrative. The 
basis for that position taken by the Supreme Court is articu­
lated in a case called the McNeese case . . . .

Hearings on H.R. 2439 and H.R. 5791 before the House Subcomm. 
on Courts, Civil Liberties, and the Administration of Justice, 95th 
Cong., 1st Sess. (hereinafter “ 1977 Hearings” ) at 20 (1977). Mr. 
Days added that any exhaustion requirement adopted by Congress 
“would in fact be novel in light of the long and consistent history 
of case law in the 1983 area.”  Id. at 33. See also Id. at 323. Simi­
larly, a spokesman for the American Bar Association advised the 
subcommittee that the ABA opposed the adoption of any exhaustion 
requirement for prisoner cases, because no other § 1983 plaintiffs 
are required to exhaust administrative remedies: “ [C]-renting an 
exhaustion requirement applicable to prisoners would make them 
in essence second class citizens, since other Americans face no 
similar obstacles to bringing Federal suits to secure federally 
protected rights.”  Id. at 47. Similar accounts of existing law were 
given by other witnesses throughout the 1977 hearings. See id. 
at 49, 52 (statement of Hon. Sylvia Bacon on behalf of the ABA) ; 
id. at 69, 77 (testimony of Jay Lichtman on behalf of National 
Legal Aid and Defender Association); id. at 253 (testimony of 
Stephen Berzon on behalf o f the Children’s Defense Fund); id. at 
267 (statement of Michael Lottman on behalf o f the Education Law 
Center) ; id. at 513-514 (letter of Prof. Richard Singer). In the 
1979 hearings, the same point was made by the American Civil 
Liberties Union (see 1979 Hearings, supra, at 48), the ABA (id. 
at 340-341), and the NAACP Legal Defense and Educational Fund 
(id. at 349).



a federal court to order a continuance for the purpose 
of exhausting administrative remedies in the narrow cir­
cumstances specified in the legislation. Id. at H 3358 
(daily ed. May 1, 1978) (remarks of Rep. Kastenmeier, 
Chairman of the House Subcommittee on Courts, and 
principal sponsor of the legislation) (emphasis added). 
See also H. Conf. Rep. No. 96-897, 96th Cong., 2d Sess. 
9 (1980) (§ 7 will “allow a court to continue a case for 
a limited period of time” ) (emphasis added).

Second, in making what it knew to be the first in­
cursion upon the no-exhaustion principle of § 1983, Con­
gress was extremely selective. It did not, of course, im­
pose an exhaustion requirement for all § 1983 actions; 
and, even more revealing, it did not impose an exhaus­
tion requirement even as to all persons covered by the 
bill it was enacting. The Institutionalized Persons Act 
applied generally to a much broader category of persons 
in “ institutions,” § 1997(1), but the section of the Act 
creating an exhaustion requirement was limited to con­
victed adult prisoners (thus imposing no exhaustion re­
quirement upon those in institutions other than correc­
tional facilities, nor upon youth and non-convicted adults 
in correctional facilities, all of whom were covered by 
the Act’s other provisions).

As the legislative history makes clear, Congress was 
not hostile to this Court’s general “ no exhaustion”  con­
struction of § 1983. On the contrary, aware that any 
legislative move toward exhaustion might be “ resisted 
as a possible encroachment on civil liberties; that is to 
say, in the free, unimpeded resort to 1983; because it 
does deflect 1983 petitions . . .— temporarily in any 
event— back into the State system,”  1979 Hearings, 
supra at 26 (remarks of Rep. Kastenmeier),® Congress 8 *

13

8 Several organizations did in fact oppose the measure for that 
reason. See the testimony cited in note 8, supra, on behalf of
the American Bar Association, American Civil Liberties Union, 
NAACP Legal Defense and Educational Fund, National Legal Aid 
and Defender Association, Children’s Defense Fund, and Education 
Law Center.



14

acted only because it concluded that prisoner suits pre­
sented a unique problem warranting a unique solution 
{i.e. an exhaustion requirement). A recurring theme 
sounded by the legislators was that prisoner suits require 
special treatment because, as the Senate Report put it, 
“ [t]he almost 10,000 prisoner suits brought to court in 
1978 are swamping our judges. Many of these complaints 
are pro se and often poorly drafted in terms of present­
ing the problem in a legal context.”  S. Rep. No. 96-416, 
96th Cong., 1st Sess. 34 (1979).10 Congress also believed 
that development of meaningful grievance procedures 
would be particularly desirable in the prison context, be­
cause such procedures could boost morale, settle disputes 
before they escalated, and generally improve the func­
tioning of prisons.11 Concluding that these objectives 
would be served by the development and compelled utili­
zation of prison grievance procedures, Congress enacted 
§ 7, which “ has application only to the prison problem.” 
125 Cong. Rec. H 3648 (daily ed. May 23, 1979) (re­
marks of Rep. Gudger).

1,0 See also 125 Cong. Rec. H 3639 (daily ed., May 6, 1979) 
(remarks of Rep. M cClory); id. at H 3635 (remarks of Rep. 
H arris); id. at H 3641 (remarks of Rep. Butler). In the hearings, 
Representative Railsback, who was the author of § 7 (see 1979 
Hearings, supra at 3 ), explained that an exhaustion requirement 
for prisoner suits was warranted in light of the fact that “ [s]uch 
suits are . . . approximately 5 percent of the civil caseload of all 
federal district courts. A petition filed under 1983 is handwritten 
by the inmate without the assistance of a lawyer and is very diffi­
cult to process.” Id., at 4. See also 124 Cong. Rec. H 3358, 3365 
(daily ed., May 1, 1978) (remarks of Rep. Railsback).

ii See 124 Cong. Rec. H 3358-3359 (daily ed., May 1, 1978) (re­
marks of Rep. Railsback) ; 1977 Hearings, supra, at 147-148 (re­
marks of Rep. Railsback) ; H. Rep. No. 96-80, 96th Cong., 1st Sess. 
23-24 (1979). Some advocates of prisoners’ rights agreed with that 
assessment. See 1979 Hearings, supra, at 91 (testimony of the 
Office of Public Advocate for the State of New Jersey).



15

Third, even for the narrow category of persons to 
whom an exhaustion requirement was made applicable 
by the Act, Congress did not enact the “ traditional” 
exhaustion requirement with its “ traditional exceptions” 
— the standard read into § 1983 by the court below (634 
F.2d at 903-904). Instead, Congress constructed an en­
tirely novel scheme, under which the Attorney General 
is to promulgate “ minimum standards for the develop­
ment and implementation of a plain, speedy, and effective 
system for the resolution of grievances,”  containing at 
least five unique features:

(1) “ an advisory role for employees and inmates 
. . .  in the formulation, implementation, and opera­
tion of the system” [§ 1997 (e) (b) (A) ] ;

(2) “ specific maximum time limits for written 
replies to grievances with reasons thereto at each 
decision level within the system” [id., (B) ] ;

(3) “ priority processing of grievances . . .  of an 
emergency nature”  [id., (C) ] ;

(4) “ safeguards to avoid reprisals . . .”  [id. (D) ] ; 
and

(5) “ independent review of the disposition of 
grievances . . .  by a person or other entity not under 
the direct supervision or direct control of the insti­
tution”  [id., (E ) ] .12 13

Exhaustion can be required only if the institution’s pro­
cedures are “ in substantial compliance with” the Act’s 
standards, § 1997e (a) (2) ,18 and even then only if the

12 The five features are discussed in detail in H. Rep. No. 96-80, 
supra, at 23-24.

13 The Conference Committee stated: “ It is the intent of Con­
gress that the phrase ‘in substantial compliance with’ means that 
there be no omission of any essential part from compliance, that 
any omission from compliance consists only of unimportant defects 
or omissions, and that there has been a firm effort to fully comply 
with the standards.”  H. Conf. Rep. No. 96-897, supra, at 17 (1980). 
See also H. Rep. No. 96-80, supra, at 25 (1979), S. Rep. No. 96-416, 
supra, at 34 (1979).



16

court finds that such exhaustion “would be appropriate 
and in the interests of justice,”  § 1997e(a) ( l ) . 14 More­
over, institution of suit without prior exhaustion does not 
invite dismissal, but rather a continuance for at most 90 
days during which the procedures must be pursued, 
ibid.w

In sum, the legislative response to this Court’s holdings 
that exhaustion of administrative remedies is not re­
quired with respect to suits under § 1983 has been “ some­
thing other than mere congressional silence and passiv­
ity,”  Flood v. Kuhn, 407 U.S. 258, 283. Congress is fully 
aware of this Court’s decisions, and its failure to enact 
a general exhaustion requirement for § 1983 suits “has 
not been from inadvertence or failure to appreciate the 
effect of the Court’s interpretation”  of the statute. United 
States v. South Buffalo R. Co., 333 U.S. 771, 774-775. 
Rather, Congress has deliberately chosen to enact a care­
fully-defined exhaustion requirement— one that could not 
be replicated by courts attempting to import a general 
exhaustion requirement into § 1983— to fit a class of

14 The Conference Committee stated: “ It is the intent of the 
Congress that the court not find such a requirement appropriate 
in those situations in which the action brought pursuant to 42 
U.S.C. 1983 raises issues which cannot, in reasonable probability, 
be resolved by the grievance resolution system, including cases 
where imminent danger to life is alleged. Allegations unrelated 
to conditions of confinement, such as those which center on events 
outside of the institution, would not appropriately be continued for 
resolution by the grievance resolution system.”  H. Conf. Rep. No. 
96-897, supra, at 15. See also H. Rep. No. 96-80, supra at 25; 
S. Rep. No. 96-416, supra at 34.

1,5 In civil rights legislation apart from § 1983, Congress, when 
it has opted to require exhaustion of state remedies, likewise has 
departed from “ traditional” exhaustion concepts, in each instance 
adopting a precisely tailored exhaustion scheme. See, e.g., Title II 
of the Civil Rights Act of 1964 (public accommodations), 42 U.S.C. 
§§ 2000a-3 ( c ) , 3 (d ), 6 (a ) ;  Title VII of the Civil Rights Act of 
1964 (employment), 42 U.S.C. § 2000e-5(c); Fair Housing Fair Act 
of 1968, 42 U.S.C, § 3610(c), (d ).



17

§ 1983 cases in which Congress regards exhaustion as 
appropriate, leaving § 1983 otherwise unchanged. In the 
light of this Congressional response, the question is no 
longer open to reexamination by this Court; Congress 
has evidenced that it will define the occasions for requir­
ing exhaustion (and the kind of exhaustion to be re­
quired), and its failure to date to do so more broadly “ is 
persuasive evidence of the adoption by [Congress] of the 
judicial construction” that § 1983 does not require ex­
haustion of administrative remedies. Missouri v. Ross, 
299 U.S. 72, 75. See also, Apex Hosiery Co. v. Leader, 
310 U.S. 469, 487-488. Congress “has clearly evinced a 
desire not to disapprove [this Court’s decisions] legisla­
tively.”  Flood v. Kuhn, 407 U.S. 258, 283-284. The 
doctrine of stare decisis applies with its greatest force 
in such cases; indeed, in such cases the Court has de­
clined to overrule precedents even where convinced that 
the earlier cases were wrongly decided. Flood v. Kuhn, 
supra; United States v. South Buffalo R. Co., supra; 
Laird v. Nelms, 406 U.S. 797, 802.16

16 This case presents none of the circumstances in which the 
Court has found it appropriate to overrule a decision construing 
a statute notwithstanding the constraints of stare decisis. In Monell 
V. New York City Dept, of Social Services, 436 U.S. 658, the 
Court overruled its earlier holding in Monroe v. Pape that munici­
palities are not “ persons” suable under § 1983. In so doing, the 
Court emphasized that Monroe’s holding on that point had been 
“ a departure from prior practice,” 436 U.S. at 695, and was in­
consistent with cases decided by the Court both before and after 
Monroe in which school boards had been held liable under § 1983, 
id. at 695-696. Similarly, the Court has in certain cases refused 
to follow a precedent found to conflict with “ a prior doctrine more 
embracing in its scope, intrinsically sounder, and verified by experi­
ence.” Boys Markets v. Clerks Union, 398 U.S. 235, 241, quoting 
Helvering v. Hallock, 309 U.S. 106, 119. See also Continental T.V., 
Inc. v. GTE Sylvania Inc., 433 U.S. 36, 47. No such basis for de­
parting from stare decisis exists in this case.

Monell also turned on the fact that continued adherence to Mon­
roe’s holding with respect to municipal immunity “would itself be 
inconsistent with recent expressions o f congressional intent.”  436



18

II. THE CONGRESS THAT ENACTED § 1983 DID NOT 
INTEND THAT A PLAINTIFF BE REQUIRED TO 
EXHAUST STATE ADMINISTRATIVE REMEDIES 
AS A PREREQUISITE TO SUIT UNDER § 1983.

We have shown that the Court should not undertake 
in this case to determine the correctness of its prior deci­
sions holding that exhaustion of state administrative 
remedies is not required under § 1983; the matter should 
be regarded as settled, subject only to any action Con­
gress might take to revise the law. But if  the Court 
were free to reconsider the matter, the same result would 
be required, for it is clear that the Congress that enacted 
§ 1983 did not intend that a plaintiff be required to 
exhaust state administrative remedies.

The question is one of statutory construction: did
Congress, in enacting § 1983, intend that resort to the 
statute could only be had after a plaintiff had exhausted 
state administrative remedies? That this issue turns 
solely on “ the construction of . . .  § 1983” was recognized 
by the Court in Monroe v. Pape, supra, 365 U.S. at 168; 
and in Monroe and subsequent cases the Court has con­
sistently based its holdings with respect to exhaustion of 
remedies in suits under § 1983 on the intent of the Con­
gress that passed the statute, as reflected in the language 
of the statute and its legislative history. See id. at 170- 
183; McNeese v. Board of Education, supra, 373 U.S. at

U.S. at 696-699. See also Braden v. 30th Judicial Circuit Court of 
Kentucky, 410 U.S. 484, 497-498 (precedent may be overruled where 
subsequent action by Congress ‘has indicated that a number of 
premises”  on which the prior decision was based were w rong). As 
we have shown, this case presents precisely the opposite circum­
stance— one in which Congress has understood and accepted this 
Court’s rulings.

And finally, as we show in Part II, infra, this case, unlike Monell, 
is not one in which “ it appear[s] beyond doubt from the legislative 
history” that the Court’s prior decisions were wrong, 436 U.S. at 
700. On the contrary, this case is one in which it is beyond doubt 
that the prior decisions were right.

tt



671-673; Damico v. California, supra, 389 U.S. at 416- 
417; Steffel v. Thompson, supra, 415 U.S. at 472-473.17

19

17 This has been the Court’s approach to resolving other questions 
as to the meaning of § 1983 as well. Just last Term, in addressing 
the question of the applicability of collateral estoppel in a § 1983 
suit brought by a plaintiff following his conviction in a state court, 
this Court emphasized: “ Our decision does not ‘fashion’ any doc­
trine of collateral estoppel at all. Rather, it construes § 198S to 
determine whether the conventional doctrine of collateral estoppel 
applies to the case at hand.”  Allen v. McCurry, 449 U.S. 90, 95 
n. 7 (emphasis added). Thus, the Court based its decision in Allen 
on “ the statute and its legislative history.”  Id. at 97.

Similarly, the Court has viewed the question of immunities from 
liability under § 1983 as “ essentially one of statutory construction.” 
Owen v. City of Independence, 445 U.S. 622, 635. See also City of
Newport v. Fact Concerts, In c .,------ U .S .--------, 49 L.W. 4860, 4862-
63; Gomez v. Toledo, 446 U.S. 635, 639-640; Monnell, supra, 436
U. S. at 664-689, Wood v. Strickland, 420 U.S. 308, 314, 316; Tenney
V. Brandhove, 341 U.S. 367, 372, 376. And see Carey v. Piphus, 435 
U.S. 247, 255, 258-259 (determining the nature of damages that may 
be awarded under § 1983 by reference to the intent of the 1871 
Congress).

The court below did not purport to find its exhaustion require­
ment in the intent of the Congress that enacted § 1983; rather, 
it proceeded as if the question whether to' impose an exhaustion 
requirement is one of federal common law to be determined by the 
judiciary (634 F.2d at 902-903). Even if that were generally true 
of exhaustion questions— and it is not, see n. 18, infra, and cf.
Northwest Airlines, Inc. v. Transport W orkers,-------U .S .-------- , 49
L.W. 4383— the courts would have no such freedom with respect to 
§ 1983. For in light of Congress’ recent actions, recounted above, 
it is clear that the choice whether (and in what instances) to 
establish exhaustion requirements under § 1983 (including the 
determination of the kind o f procedures to be exhausted) is “ a 
policy matter that Congress has reserved for itself,”  in which 
“ th[e] courts are not free to fashion . . . new rules . . .”  Alyeska 
Pipeline Co. v. Wilderness Society, 421 U.S. 240, 269. “ What Con­
gress has done . . .  is to make specific and explicit provisions,” id. 
at 260, and “ [u]nder this scheme of things, it is apparent that the 
circumstances under which [exhaustion is] to be required and the 
range of discretion of the courts in [requiring exhaustion] are 
matters for Congress to determine,”  id. at 262.



20

It follows that “ the starting point in our analysis must 
be the language of the statute itself.”  Owen v. City of 
Independence, 445 U.S. 622, 635. See also Gomez v. 
Toledo, 446 U.S. 635, 640. By its terms, § 1983 makes 
“ no mention of any requirement that state remedies be 
exhausted before resort to the federal courts could be 
had under 28 U.S.C. § 1343.” Fair Assessment, supra, 
50 L.W. at 4018. Instead, § 1983 provides unequivocally 
that “ [e] very person”  who, under color of state law, 
deprives another of federal rights “ shall be liable to the 
party injured in an action at law, suit in equity, or other 
proper proceeding for redress.”  Nor is this a statute 
that itself contains an administrative enforcement mecha­
nism, such that a requirement to exhaust the “ prescribed 
administrative remedy” can be inferred from the overall 
structure of the statute.18 Rather, § 1983 is in no way 
“ structured to require previous resort to state proceed­
ings . . . .”  Board of Regents v. Tomanio, supra, 446 
U.S. at 490. We have read the legislative history of 
§ 1983 in its entirety, and there is not a word to suggest 
that Congress meant to require exhaustion of state judi­
cial or administrative remedies as a prerequisite to suit 
under § 1983. 18

18 Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51. Cf. 
McGee v. United States, 402 U.S. 479, 484-485 n. 6 (exhaustion 
requirement may be inferred where necessary to preserve “ the 
autonomy and proper functioning- of the particular administrative 
system Congress has enacted” ). The decisions of this Court that 
gave birth to the modern doctrine of exhaustion of administrative 
remedies were based on the rationale approved in McGee. See, e.g., 
United States v. Sing Tuck, 194 U.S. 161, 167 (1904) (exhaustion 
required where a statute, while not expressly mandating exhaustion, 
“points out a mode of procedure” that the Court concluded Congress 
intended “ must be followed before there can be a resort to the 
court.” ). Cf. Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 
U.S. 426, 439-441 (1907) (ICC must be given primary jurisdiction 
over claims challenging rates it has approved, in order to effectuate 
the statutory objective that uniform rates be established by an 
expert body).



21

While the absence in the statute and the legislative 
history of any indication that Congress intended to re­
quire exhaustion of state remedies might ordinarily end 
the matter, this Court has held that in certain instances 
limitations not stated in the language of § 1983 or in 
the legislative history may nevertheless be applied in 
suits under the Act, if  they “ were both ‘well established 
at common law’ and ‘compatible with the purposes of 
the Civil Rights Act.”  Gomez v. Toledo, supra, 446 U.S. 
at 639, quoting Owen v. City of Independence, supra, 445 
U.S. at 638. Thus, the Court has “ on several occasions, 
found that a tradition . . . was so firmly rooted in the 
common law and was supported by such strong policy 
reasons that ‘Congress would have specifically so pro­
vided had it wished to abolish the doctrine.’ ”  Owen, 
supra, 445 U.S. at 637, quoting Pierson v. Ray, 386 U.S. 
547, 555.1®

That rule of construction has no application here, how­
ever, for in 1871 there was no “ tradition”  that admin­
istrative remedies had to be exhausted before a govern­
mental body could be sued. On the contrary, the rule at 
that time was that exhaustion could not be required un­
less Congress expressly provided for exhaustion by stat­
ute.

For example, in Clyde v. United States, 13 Wall. (80 
U.S.) 38 (1871), the Court considered a “ rule of prac­
tice”  adopted by the Court of Claims, under which a 
claim against the government would not be entertained 
by that court if “ the case was such as is ordinarily set­
tled in any executive department” and the claimant had 
failed “ [to] show that [an] application for . . . allow­
ance [of the claim] had been made to that department, 
and -without success.”  The Supreme Court overturned 19

19 See also City of Newport v. Fact Concerts, Inc.,------ U.S. — —,
49 L.W. 4860, 4864; Allen v. McCurry, supra, 449 U.S. at 97-101; 
Imbler v. Pachtman, 424 U.S. 409, 417-424; Wood v. Strickland, 420 
U.S. 308; Tenney v. Brandhove, 341 U.S. 367, 376.



22

the exhaustion rule the Court of Claims had adopted, 
stating {id. at 39) :

[W ]e are of opinion that it was not competent for 
the Court of Claims to impose [such a rule] as a 
condition of presenting a claim in that court. In­
stead of being a rule of practice, it was really an 
additional restriction to the exercise of jurisdiction 
by that court. It required the claimant to do what 
the acts giving the court jurisdiction did not require 
him to do before it would assume jurisdiction of his 
case.

The act of 1855, which created the court, declares 
that it shall “hear and determine all claims founded 
upon any law of Congress, or upon any regulation 
of an executive department, or upon any contract, 
express or implied, with the government of the United 
States, which may be suggested to it by a petition 
filed therein.”  The rule adopted by the court- required 
that the claimant should not only have such a claim 
as stated in the act, but should have first gone 
through the department which might have enter­
tained it, before he would be permitted to prosecute 
in that court. This was establishing a jurisdictional 
requirement which Congress alone had the power to 
establish. [Emphasis added]

In The Collector v. Hubbard, 12 Wall. (79 U.S.) 1 
(1871), the Court discussed a statute that did expressly 
require exhaustion,20 but observed that prior to its adop­
tion no such exhaustion was required:

[I] t is quite clear that [prior to the 1866 statute] 
the tax payer, if  he was illegally assessed, might

20 The statute in question was the Act of July 2, 1866 (14 Stat. 
152), which provided that “ [n]o suit shall be maintained in any 
court for the recovery of any [federal] tax alleged to have been 
erroneously or illegally assessed or collected until appeal shall have 
been duly made to the Commissioner o f Internal Revenue.”



23

maintain an action . . .  to recover back the amount 
. . . although he ha[d] not taken any appeal to the 
Commissioner of Internal Revenue.

For that proposition the Court cited Philadelphia v. The 
Collector, 5 Wall. (72 U.S.) 720, 730 (1867), where the 
Court rejected the theory that jurisdiction over suits to 
recover tax payments could be denied “because the party 
aggrieved may appeal to the commissioner for redress” :

Suffice it to say . . . that such a theory finds no sub­
stantial support in any act of Congress upon the sub­
ject or in any decided case.

And, in Erskine v. Hombach, 14 Wall. (81 U.S.) 613, 
615-616 (1872), the Court demonstrated how narrowly 
even express statutory exhaustion requirements were con­
strued in that era: a statute requiring prior appeal to 
the Commissioner of Internal Revenue before suit could 
be filed to recover taxes was held not to require such a 
prior appeal to the Commissioner before an action in 
trespass could be instituted to recover property seized in 
the enforcement of an assessment.

The “ tradition” as it stood in 1871, and indeed as it 
continued until early in the 20th Century, was accu­
rately stated in a 1903 treatise: “ unless there is statutory 
provision” requiring exhaustion,

the law stands that although the matter may be 
brought before the administration [i.e., the agency] 
for its adjudication, it need not be so. A  suit may 
be brought against the officer in the ordinary courts 
of law at any time.

Wyman, The Principles of Administrative Law Govern­
ing the Relations of Public Officers 339 (1903) (em­
phasis added) .21

21 Of course, as the treatise noted, exhaustion of remedies could 
be required where explicitly mandated by statute. See, e.g., Cheatham 
v. United States, 23 Wall. (93 U.S.) 85 (1876); Niclioll v. United 
States, 7 Wall (74 U.S.) 122 (1869).



24

Thus, exhaustion of administrative remedies was not 
required as of 1871 except where specifically mandated 
by statute; indeed, it was error for a court to require 
exhaustion except where commanded by statute. Clyde v. 
United States, supra. Accordingly, when Congress en­
acted § 1983 with no mention whatsoever of exhaustion, 
Congress could not have intended to require (or ex­
pected the courts to infer from its silence a requirement) 
that state administrative remedies be exhausted before 
suits would be entertained under the statute.

For the reasons set forth above, this Court should hold 
that exhaustion of state administrative remedies is not 
required in actions under § 1983.

CONCLUSION

Respectfully submitted,

Richard C. Dinkelspiel 
Maximilian W. Kempner

Michael H. Gottesman * 
Robert M. Weinberg

Co-Chairmen 
W illiam L. Robinson 
Norman J. Chachkin

Jeremiah A. Collins 
Bredhoff & Kaiser 
1000 Connecticut Ave., N.W. 
Washington, D.C. 20036 
(202) 833-9340

Attorneys
Lawyers’ Committee for

Civil Rights Under Law 
733 Fifteenth Street, N.W. 
Washington, D.C. 20005 
(202) 628-6700

David Rubin
National Education Association 
1201 Sixteenth Street, N.W.
Washington, D.C. 20036 
(202) 833-4451

Attorneys for Amici Curiae

* Counsel of Record