Patsy v. Florida Board of Regents Brief Amici Curiae
Public Court Documents
January 1, 1981

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Brief Collection, LDF Court Filings. Patsy v. Florida Board of Regents Brief Amici Curiae, 1981. fb100da0-c09a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/01ed711a-7575-4e4c-a27d-d660ed20319e/patsy-v-florida-board-of-regents-brief-amici-curiae. Accessed July 09, 2025.
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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