Petitioner filed an action in Federal District Court under 42
U.S.C. § 1983 for declaratory or injunctive relief or damages,
alleging that respondent employer had denied her employment
opportunities solely on the basis of her race and sex. The District
Court granted respondent's motion to dismiss because petitioner had
not exhausted available state administrative remedies. The Court of
Appeals vacated, holding that a § 1983 plaintiff could be required
to exhaust administrative remedies if certain specified conditions
were met, and remanded the case to the District Court to determine
whether exhaustion would be appropriate in the instant case.
Held: Exhaustion of state administrative remedies is
not a prerequisite to an action under § 1983. Pp.
457 U. S.
500-516.
(a) This conclusion is supported by the legislative histories of
both § 1983 and 42 U.S.C. § 1997e (1976 ed., Supp. IV), which
carves out a narrow exception to the general no-exhaustion rule
established in this Court's prior decisions by creating a specific,
limited exhaustion requirement for adult prisoners bringing actions
pursuant to § 1983. A judicially imposed exhaustion requirement in
cases other than adult prisoners' cases would be inconsistent with
Congress' decision to adopt § 1997e, would usurp policy judgments
that Congress has reserved for itself, and would also be
inconsistent with the detailed exhaustion scheme embodied in §
1997e. Pp.
457 U. S.
502-512.
(b) Even if, as respondent argues, an exhaustion requirement
would lessen the burden that § 1983 actions impose on federal
courts, would further the goal of comity and improve federal-state
relations, and would enable the state agency to enlighten the
federal court's ultimate decision, these are policy considerations
that alone cannot justify judicially imposed exhaustion unless
exhaustion is consistent with congressional intent. Moreover,
difficult questions concerning the design and scope of an
exhaustion requirement, which might be answered swiftly and surely
by legislation, would create costly, remedy-delaying and
court-burdening litigation if answered by the judiciary in the
context of diverse constitutional claims relating to thousands of
different state agencies. Pp.
457 U. S.
512-515.
634 F.2d 900, reversed and remanded.
Page 457 U. S. 497
MARSHALL, J., delivered the opinion of the Court, in which
BRENNAN, BLACKMUN, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined,
and in all but Part III-B of which WHITE, J., joined. O'CONNOR, J.,
filed a concurring opinion, in which REHNQUIST, J., joined,
post, p.
457 U. S. 516.
WHITE, J., filed an opinion concurring in part,
post, p.
457 U. S. 517.
POWELL, J., filed a dissenting opinion, in Part II of which BURGER,
C.J., joined,
post, p.
457 U. S.
519.
Page 457 U. S. 498
JUSTICE MARSHALL delivered the opinion of the Court.
This case presents the question whether exhaustion of state
administrative remedies is a prerequisite to an action under 42
U.S.C. § 1983 (1976 ed., Supp. IV). Petitioner Georgia Patsy filed
this action, alleging that her employer, Florida International
University (FIU), had denied her employment opportunities solely on
the basis of her race and sex. By a divided vote, the United States
Court of Appeals for the Fifth Circuit found that petitioner was
required to exhaust "adequate and appropriate" administrative
remedies, and remanded the case to the District Court to consider
the adequacy of the administrative procedures.
Patsy v. Florida
International University, 634 F.2d 900 (1981) (en banc). We
granted certiorari, 454 U.S. 813, and reverse the decision of the
Court of Appeals.
I
Petitioner alleges that even though she is well qualified and
has received uniformly excellent performance evaluations from her
supervisors, she has been rejected for more than 13 positions at
FIU. [
Footnote 1] She further
claims that FIU has unlawfully filled positions through intentional
discrimination on the basis of race and sex. She seeks declaratory
and injunctive relief or, in the alternative, damages. [
Footnote 2]
Page 457 U. S. 499
The United States District Court for the Southern District of
Florida granted respondent Board of Regents' motion to dismiss
because petitioner had not exhausted available administrative
remedies. On appeal, a panel of the Court of Appeals reversed, and
remanded the case for further proceedings.
Patsy v. Florida
International University, 612 F.2d 946 (1980). The full court
then granted respondent's petition for rehearing and vacated the
panel decision.
The Court of Appeals reviewed numerous opinions of this Court
holding that exhaustion of administrative remedies was not
required, and concluded that these cases did not preclude the
application of a "flexible" exhaustion rule. 634 F.2d at 908. After
canvassing the policy arguments in favor of an exhaustion
requirement, the Court of Appeals decided that a § 1983 plaintiff
could be required to exhaust administrative remedies if the
following minimum conditions are met: (1) an orderly system of
review or appeal is provided by statute or agency rule; (2) the
agency can grant relief more or less commensurate with the claim;
(3) relief is available within a reasonable period of time; (4) the
procedures are fair, are not unduly burdensome, and are not used to
harass or discourage those with legitimate claims; and (5) interim
relief is available, in appropriate cases, to prevent irreparable
injury and to preserve the plaintiff's rights during the
administrative process. Where these minimum standards are met, a
court must further consider the particular administrative scheme,
the nature of the plaintiff's interest, and the values served by
the exhaustion doctrine in order to determine whether exhaustion
should be required.
Id. at 912-913. The Court of Appeals
remanded the case to the
Page 457 U. S. 500
District Court to determine whether exhaustion would be
appropriate in this case.
II
The question whether exhaustion of administrative remedies
should ever be required in a 1983 action has prompted vigorous
debate and disagreement.
See, e.g., Turner, When Prisoners
Sue: A Study of Prisoner Section 1983 Cases in the Federal Courts,
92 Harv.L.Rev. 610 (1979); Note, 8 Ind.L.Rev. 565 (1975); Comment,
41 U.Chi.L.Rev. 537 (1974). Our resolution of this issue, however,
is made much easier because we are not writing on a clean slate.
This Court has addressed this issue, as well as related issues, on
several prior occasions.
Respondent suggests that our prior precedents do not control our
decision today, arguing that these cases can be distinguished on
their facts or that this Court did not "fully" consider the
question whether exhaustion should be required. This contention
need not detain us long. Beginning with
McNeese v. Board of
Education, 373 U. S. 668,
373 U. S.
671-673 (1963), we have on numerous occasions rejected
the argument that a § 1983 action should be dismissed where the
plaintiff has not exhausted state administrative remedies.
See
Barry v. Barchi, 443 U. S. 55,
443 U. S. 63, n.
10 (1979);
Gibson v. Berryhill, 411 U.
S. 564,
411 U. S. 574
(1973);
Carter v. Stanton, 405 U.
S. 669,
405 U. S. 671
(1972);
Wilwording v. Swenson, 404 U.
S. 249,
404 U. S. 251
(1971);
Houghton v. Shafer, 392 U.
S. 639,
392 U. S. 640
(1968);
King v. Smith, 392 U. S. 309,
392 U. S. 312,
n. 4 (1968);
Damico v. California, 389 U.
S. 416 (1967).
Cf. Steffel v. Thompson,
415 U. S. 452,
415 U. S.
472-473 (1974) ("When federal claims are premised on [§
1983] -- as they are here -- we have not required exhaustion of
state judicial or administrative remedies, recognizing the
paramount role Congress has assigned to the federal courts to
protect constitutional rights"). Respondent may be correct in
arguing that several of these decisions could have been based on
traditional exceptions to the exhaustion doctrine. Nevertheless,
this Court has stated
Page 457 U. S. 501
categorically that exhaustion is not a prerequisite to an action
under § 1983, and we have not deviated from that position in the 19
years since
McNeese. Therefore, we do not address the
question presented in this case as one of first impression.
III
Respondent argues that we should reconsider these decisions and
adopt the Court of Appeals' exhaustion rule, which was based on
McKart v. United States, 395 U. S. 185
(1969). This Court has never announced a definitive formula for
determining whether prior decisions should be overruled or
reconsidered. However, in
Monell v. New York City Dept. of
Social Services, 436 U. S. 658,
436 U. S.
695-701 (1978), we articulated four factors that should
be considered. Two of these factors -- whether the decisions in
question misconstrued the meaning of the statute as revealed in its
legislative history and whether overruling these decisions would be
inconsistent with more recent expressions of congressional intent
-- are particularly relevant to our decision today. [
Footnote 3] Both concern legislative purpose,
which is of paramount importance in the exhaustion context because
Congress is vested with the power to prescribe the basic procedural
scheme under which claims may be heard in federal courts. Of
course, courts play an important role in determining the limits of
an exhaustion requirement, and may impose such a requirement even
where Congress has not expressly so provided. However, the initial
question whether exhaustion is required should be answered by
reference to congressional intent; and a court
Page 457 U. S. 502
should not defer the exercise of jurisdiction under a federal
statute unless it is consistent with that intent. [
Footnote 4] Therefore, in deciding whether we
should reconsider our prior decisions and require exhaustion of
state administrative remedies, we look to congressional intent as
reflected in the legislative history of the predecessor to § 1983
and in recent congressional activity in this area.
A
In determining whether our prior decisions misconstrued the
meaning of § 1983, we begin with a review of the legislative
history to § 1 of the Civil Rights Act of 1871, 17 Stat. 13, the
precursor to § 1983. [
Footnote
5] Although we recognize that the 1871 Congress did not
expressly contemplate the exhaustion question, we believe that the
tenor of the debates over § 1 supports our conclusion that
exhaustion of administrative remedies in § 1983 actions should not
be judicially imposed.
Page 457 U. S. 503
The Civil Rights Act of 1871, along with the Fourteenth
Amendment it was enacted to enforce, were crucial ingredients in
the basic alteration of our federal system accomplished during the
Reconstruction Era. During that time, the Federal Government was
clearly established as a guarantor of the basic federal rights of
individuals against incursions by state power. As we recognized in
Mitchum v. Foster, 407 U. S. 225,
407 U. S. 242
(1972) (quoting
Ex parte Virginia, 100 U.
S. 339,
100 U. S. 346
(1880)),
"[t]he very purpose of § 1983 was to interpose the federal
courts between the States and the people, as guardians of the
people's federal rights -- to protect the people from
unconstitutional action under color of state law, 'whether that
action be executive, legislative, or judicial.'"
At least three recurring themes in the debates over § 1 cast
serious doubt on the suggestion that requiring exhaustion of state
administrative remedies would be consistent with the intent of the
1871 Congress. First, in passing § 1, Congress assigned to the
federal courts a paramount role in protecting constitutional
rights. Representative Dawes expressed this view as follows:
"The first remedy proposed by this bill is a resort to the
courts of the United States. Is that a proper place in which to
find redress for any such wrongs? If there be power to call into
courts of the United States an offender against these rights,
privileges, and immunities, and hold him to an account there,
either civilly or criminally, for their infringement, I submit to
the calm and candid judgment of every member of this House that
there is no tribunal so fitted, where equal and exact justice would
be more likely to be meted out in temper, in moderation, in
severity, if need be, but always according to the law and the fact,
as that great tribunal of the Constitution."
Cong.Globe, 42d Cong., 1st Sess., 476 (1871) (hereinafter
Globe).
Page 457 U. S. 504
See also id. at 332 (remarks of Rep. Hoar);
id. at 375 (remarks of Rep. Lowe);
id. at 448-449
(remarks of Rep. Butler);
id. at 459 (remarks of Rep.
Coburn). [
Footnote 6]
The 1871 Congress intended § 1 to "throw open the doors of the
United States courts" to individuals who were threatened with, or
who had suffered, the deprivation of constitutional rights,
id. at 376 (remarks of Rep. Lowe), and to provide these
individuals immediate access to the federal courts notwithstanding
any provision of state law to the contrary. For example, Senator
Edmunds, who introduced the bill in the Senate, stated in his
closing remarks that the bill was similar in principle to an
earlier act upheld by this Court in
Prigg v.
Pennsylvania, 16 Pet. 539 (1842):
"[T]he Supreme Court decided . . . that it was the solemn duty
of Congress under the Constitution to secure to the individual, in
spite of the State, or with its aid, as the case might be,
precisely the rights that the Constitution gave him, and that
there should be no intermediate authority to arrest or oppose
the direct performance of this duty by Congress."
Globe 692 (emphasis added). Similarly, Representative Elliott
viewed the issue as whether
"the Government of the United States [has] the right, under the
Constitution, to protect a citizen in the exercise of his vested
rights as an American citizen by . . .
the assertion of
immediate jurisdiction through its courts, without the appeal
or agency of the State in which the citizen is domiciled. "
Page 457 U. S. 505
Id. at 389 (emphasis added).
See, e.g., id. at
459 (remarks of Rep. Coburn);
id. at 807 (remarks of Rep.
Garfield);
id. at 609 (remarks of Sen. Pool); Globe App.
141 (remarks of Rep. Shanks). [
Footnote 7]
A second theme in the debates further suggests that the 1871
Congress would not have wanted to impose an exhaustion requirement.
A major factor motivating the expansion of federal jurisdiction
through §§ 1 and 2 of the bill was the belief of the 1871 Congress
that the state authorities had been unable or unwilling to protect
the constitutional rights of individuals or to punish those who
violated these rights.
See, e.g., Globe 321 (remarks of
Rep. Stoughton) ("The State authorities and local courts are unable
or unwilling to check the evil or punish the criminals");
id. at 374 (remarks of Rep. Lowe) ("the local
administrations have been found inadequate or unwilling to apply
the proper corrective");
id. at 459 (remarks of Rep.
Coburn);
id. at 609 (remarks of Sen. Pool);
id.
at 687 (remarks of Sen. Shurz);
id. at 691 (remarks of
Sen. Edmunds); Globe App. 185 (remarks of Rep. Platt). [
Footnote 8]
Page 457 U. S. 506
Of primary importance to the exhaustion question was the
mistrust that the 1871 Congress held for the factfinding processes
of state institutions.
See, e.g., Globe 320 (testimony of
Hon. Thomas Settle, Justice of the North Carolina Supreme Court,
before the House Judiciary Committee) ("The defect lies not so much
with the courts as with the juries");
id. at 394 (remarks
of Rep. Rainey); Globe App. 311 (remarks of Rep. Maynard). This
Congress believed that federal courts would be less susceptible to
local prejudice and to the existing defects in the factfinding
processes of the state courts.
See, e.g., Globe 322
(remarks of Rep. Stoughton);
id. at 459 (remarks of Rep.
Coburn). [
Footnote 9] This
perceived defect in the States' factfinding processes is
particularly relevant to the question of exhaustion of
administrative remedies: exhaustion rules are often applied in
deference to the superior factfinding ability of the relevant
administrative agency.
See, e.g., McKart v. United States,
395 U.S. at
395 U. S.
192-196.
A third feature of the debates relevant to the exhaustion
question is the fact that many legislators interpreted the bill to
provide dual or concurrent forums in the state and federal system,
enabling the plaintiff to choose the forum in which to seek relief.
Cf. Monroe v. Pape, 365 U. S. 167,
365 U. S. 183
(1961) ("The federal remedy is supplementary to the state remedy,
and the latter need not be first sought and refused before the
federal one is invoked"). For example, Senator Thurman noted:
"I object to [§ 1], first, because of the centralizing tendency
of transferring all mere private suits, as well as
Page 457 U. S. 507
the punishment of offenses, from the State into the Federal
courts. I do not say that this section gives to the Federal courts
exclusive jurisdiction. I do not suppose that it is so understood.
It leaves it, I presume, in the option of the person who imagines
himself to be injured to sue in the State court or in the Federal
court, an option that he who has been the least injured, but who
has some malice to gratify, will be the most likely to avail
himself of."
Globe App. 216.
See also Globe 578, 694-695 (remarks of
Sen. Edmunds);
id. at 334 (remarks of Rep. Hoar);
id. at 514 (remarks of Rep. Farnsworth); Globe App. 85
(remarks of Rep. Bingham) ("Admitting that the States have
concurrent power to enforce the Constitution of the United States
within their respective limits, must we wait for their
action?").
This legislative history supports the conclusion that our prior
decisions, holding that exhaustion of state administrative remedies
is not a prerequisite to an action under § 1983, did not
misperceive the statutory intent: it seems fair to infer that the
1871 Congress did not intend that an individual be compelled in
every case to exhaust state administrative remedies before filing
an action under § 1 of the Civil Rights Act. We recognize, however,
that drawing such a conclusion from this history alone is somewhat
precarious: the 1871 Congress was not presented with the question
of exhaustion of administrative remedies, nor was it aware of the
potential role of state administrative agencies. Therefore, we do
not rely exclusively on this legislative history in deciding the
question presented here. Congress addressed the question of
exhaustion under § 1983 when it recently enacted 42 U.S.C. § 1997e
(1976 ed., Supp. IV). The legislative history of § 1997e provides
strong evidence of congressional intent on this issue.
B
The Civil Rights of Institutionalized Persons Act, 42 U.S.C. §
1997
et seq. (1976 ed., Supp. IV), was enacted
primarily
Page 457 U. S. 508
to ensure that the United States Attorney General has "legal
standing to enforce existing constitutional rights and Federal
statutory rights of institutionalized persons." H.R.Conf.Rep. No.
96-897, p. 9 (1980) (Conf. Rep.). In § 1997e, Congress also created
a specific, limited exhaustion requirement for adult prisoners
bringing actions pursuant to § 1983. Section 1997e and its
legislative history demonstrate that Congress understood that
exhaustion is not generally required in § 1983 actions, and that it
decided to carve out only a narrow exception to this rule. A
judicially imposed exhaustion requirement would be inconsistent
with Congress' decision to adopt § 1997e, and would usurp policy
judgments that Congress has reserved for itself.
In considering whether an exhaustion requirement should be
incorporated into the bill, Congress clearly expressed its belief
that a decision to require exhaustion for certain § 1983 actions
would work a change in the law. Witnesses testifying before the
Subcommittee that drafted the bill discussed the decisions of this
Court holding that exhaustion was not required.
See, e.g.,
Hearings on H.R. 2439 and H.R. 5791 before the Subcommittee on
Courts, Civil Liberties, and the Administration of Justice of the
House Committee on the Judiciary, 95th Cong., 1st Sess., 20 (1977)
(1977 Hearings);
id. at 47, 69, 77, 323; Hearings on H.R.
10 before the Subcommittee on Courts, Civil Liberties, and the
Administration of Justice of the House Committee on the Judiciary,
96th Cong., 1st Sess., 48 (1979) (1979 Hearings). During these
hearings, Representative Kastenmeier, Chairman of this
Subcommittee, stated:
"Another thing that I think requires some discussion within the
committee, and is a point of argument, . . . is whether there ought
to be an exhaustion of remedies requirement."
". . . In fact, I think it has been pointed out that, if [we]
were to require it, particularly in 1983, that would constitute
regression from the current state of the law. It would set the law
back, because presently it is clearly
Page 457 U. S. 509
held, that is, the Supreme Court has held, that, in 1983 civil
rights suits, the litigant need not necessarily fully exhaust State
remedies."
1977 Hearings 57-58.
See also id. at 272 (remarks of
Rep. Drinan) (Representative Railsback "grounds his bill on doing
something which the Supreme Court has consistently refused to do,
namely require exhaustion of remedies"); 1979 Hearings 26 (remarks
of Rep. Kastenmeier) (adopting § 1997e "was resisted as a possible
encroachment on civil liberties; that is to say, in the free,
unimpeded resort to 1983").
The debates over adopting an exhaustion requirement also reflect
this understanding.
See, e.g., 124 Cong.Rec. 11988 (1978)
(remarks of Rep. Volkmer and Rep. Kastenmeier);
id. at
15445 (remarks of Rep. Ertel);
id. at 23180 (remarks of
Rep. Wiggins) ("it is settled law that an exhaustion of
administrative remedies is not required as a precondition of
maintaining a 1983 action"); 125 Cong.Rec. 12496 (1979) (remarks of
Rep. Butler) ("Under existing law, there is no requirement that a
complainant first ask the State prison system to help him"). With
the understanding that exhaustion generally is not required,
Congress decided to adopt the limited exhaustion requirement of §
1997e in order to relieve the burden on the federal courts by
diverting certain prisoner petitions back through state and local
institutions, and also to encourage the States to develop
appropriate grievance procedures.
See, e.g., Conf.Rep. 9;
124 Cong.Rec. 11976 (1978) (remarks of Rep. Kastenmeier);
id. at 11976, 11983 (remarks of Rep. Railsback);
id. at 15442 (remarks of Rep. Kastenmeier);
id.
at 15445 (remarks of Rep. Ertel);
id. at 23176 (remarks of
Rep. Kastenmeier);
id. at 23179-23180 (remarks of Rep.
Butler);
id. at 23180 (remarks of Rep. Ertel). Implicit in
this decision is Congress' conclusion that the no-exhaustion rule
should be left standing with respect to other § 1983 suits.
A judicially imposed exhaustion requirement would also be
inconsistent with the extraordinarily detailed exhaustion
Page 457 U. S. 510
scheme embodied in § 1997e. Section 1997e carves out a narrow
exception to the general no-exhaustion rule to govern certain
prisoner claims, and establishes a procedure to ensure that the
administrative remedies are adequate and effective. The exhaustion
requirement is expressly limited to § 1983 actions brought by an
adult convicted of a crime. 42 U.S.C. § 1997e(a)(1) (1976 ed.,
Supp. IV). [
Footnote 10]
Section 1997e(b)(1) instructs the Attorney General to "promulgate
minimum standards for the development and implementation of a
plain, speedy, and effective system" of administrative remedies,
and § 1997e(b)(2) specifies certain minimum standards that must be
included. [
Footnote 11] A
court may require exhaustion of administrative remedies only if
"the Attorney General has certified or the court has determined
that such administrative
Page 457 U. S. 511
remedies are in substantial compliance with the minimum
acceptable standards promulgated under subsection (b)."
§ 1997e(a)(2). Before exhaustion may be required, the court must
further conclude that it "would be appropriate and in the interests
of justice." § 1997e(a)(1). [
Footnote 12] Finally, in those § 1983 actions meeting all
the statutory requirements for exhaustion, the district court may
not dismiss the case, but may only "continue such case for a period
of not to exceed ninety days in order to require exhaustion."
Ibid. This detailed scheme is inconsistent with discretion
to impose, on an
ad hoc basis, a judicially developed
exhaustion rule in other cases.
Congress hoped that § 1997e would improve prison conditions by
stimulating the development of successful grievance mechanisms.
See, e.g., Conf. Rep. 9; H.R.Rep. No. 9 80, p. 4 (1979);
1979 Hearings 4 (remarks of Rep. Railsback); 124 Cong.Rec. 11976
(1978) (remarks of Rep. Railsback); 125 Cong.Rec. 12492 (1979)
(remarks of Rep. Drinan); 126 Cong.Rec. 10780 (1980) (remarks of
Rep. Kastenmeier). To further this purpose, Congress provided for
the deferral of the exercise of federal jurisdiction over certain §
1983 claims only on the condition that the state prisons develop
adequate procedures. This purpose would be frustrated by judicial
discretion to impose exhaustion generally: the States would have no
incentive to adopt grievance
Page 457 U. S. 512
procedures capable of certification, because prisoner 1983 cases
could be diverted to state administrative remedies in any
event.
In sum, the exhaustion provisions of the Act make sense, and are
not superfluous, only if exhaustion could not be required before
its enactment and if Congress intended to carve out a narrow
exception to this no-exhaustion rule. The legislative history of §
1997e demonstrates that Congress has taken the approach of carving
out specific exceptions to the general rule that federal courts
cannot require exhaustion under § 1983. It is not our province to
alter the balance struck by Congress in establishing the procedural
framework for bringing actions under § 1983.
C
Respondent and the Court of Appeals argue that exhaustion of
administrative remedies should be required because it would further
various policies. They argue that an exhaustion requirement would
lessen the perceived burden that § 1983 actions impose on federal
courts; [
Footnote 13] would
further the goal of comity and improve federal-state relations by
postponing federal court review until after the state
administrative agency had passed on the issue; [
Footnote 14] and would enable the agency,
which presumably has expertise in the area at issue, to enlighten
the federal court's ultimate decision.
Page 457 U. S. 513
As we noted earlier, policy considerations alone cannot justify
judicially imposed exhaustion unless exhaustion is consistent with
congressional intent.
See supra at
457 U. S.
501-502, and n. 4. Furthermore, as the debates over
incorporating the exhaustion requirement in § 1997e demonstrate,
the relevant policy considerations do not invariably point in one
direction, and there is vehement disagreement over the validity of
the assumptions underlying many of them. [
Footnote 15] The very difficulty of these policy
considerations, and Congress' superior institutional competence to
pursue this debate, suggest that legislative not judicial solutions
are preferable.
Cf. Diamond v. Chakrabarty, 447 U.
S. 303,
447 U. S. 317
(1980);
Steelworkers v. Bouligny, Inc., 382 U.
S. 145,
382 U. S. 150,
153 (1965).
Beyond the policy issues that must be resolved in deciding
whether to require exhaustion, there are equally difficult
questions concerning the design and scope of an exhaustion
requirement. These questions include how to define those categories
of § 1983 claims in which exhaustion might be desirable;
Page 457 U. S. 514
how to unify and centralize the standards for judging the kinds
of administrative procedures that should be exhausted; [
Footnote 16] what tolling
requirements and time limitations should be adopted; [
Footnote 17] what is the
res
judicata and collateral estoppel effect of particular
administrative determinations; what consequences should attach to
the failure to comply with procedural requirements of
administrative proceedings; and whether federal courts could grant
necessary interim injunctive relief and hold the action pending
exhaustion, or proceed to judgment without requiring exhaustion
even though exhaustion might otherwise be required, where the
relevant administrative agency is either powerless or not inclined
to grant such interim relief. These and similar questions might be
answered swiftly and surely by legislation, but would create
costly, remedy-delaying, and court-burdening litigation if answered
incrementally by the judiciary in the context of diverse
constitutional claims relating to thousands of different state
agencies. [
Footnote 18]
Page 457 U. S. 515
The very variety of claims, claimants, and state agencies
involved in § 1983 cases argues for congressional consideration of
the myriad of policy considerations, and may explain why Congress,
in deciding whether to require exhaustion in certain § 1983 actions
brought by adult prisoners, carved out such a narrow, detailed
exception to the no-exhaustion rule. After full debate and
consideration of the various policy arguments, Congress adopted §
1997e, taking the largest class of § 1983 actions and constructing
an exhaustion requirement that differs substantially from the
McKart-type standard urged by respondent and adopted by
the Court of Appeals.
See n 18,
supra. It is not for us to say whether
Congress will or should create a similar scheme for other
categories of § 1983 claims or whether Congress will or should
adopt an altogether different exhaustion requirement for
nonprisoner § 1983 claims. [
Footnote 19]
Page 457 U. S. 516
IV
Based on the legislative histories of both § 1983 and § 1997e,
we conclude that exhaustion of state administrative remedies should
not be required as a prerequisite to bringing an action pursuant to
§ 1983. We decline to overturn our prior decisions holding that
such exhaustion is not required. The decision of the Court of
Appeals is reversed, and the case is remanded for proceedings
consistent with this opinion.
It is so ordered.
[
Footnote 1]
Because this case is here on a motion to dismiss, we accept as
true the factual allegations in petitioner's amended complaint. In
her initial complaint, petitioner named FIU as the defendant.
Relying on
Byron v. University of Florida, 403 F. Supp.
49 (ND Fla.1975), the District Court granted FIU's motion to
dismiss, holding that the Board of Regents, and not the individual
university, had the capacity to sue and be sued under Florida law.
The District Court granted petitioner leave to amend, and she
amended her complaint to name the Board of Regents "on behalf of"
FIU.
[
Footnote 2]
Petitioner requested the District Court to
"[r]equire Defendants to remedy the discrimination practiced
upon Plaintiff by promoting her to the next available position
consistent with those previously applied for and for which she is
qualified or in the alternative, to require the Defendants to pay
to the Plaintiff the sum of $500,000 as actual and exemplary
damages."
Record 47. Petitioner also requested that the District Court
"order further equitable and injunctive relief as it deems
appropriate and necessary to correct the conditions of
discrimination complained of herein."
Id. at 48.
[
Footnote 3]
The other factors discussed in
Monell -- whether the
decisions in question constituted a departure from prior decisions
and whether overruling these decisions would frustrate legitimate
reliance on their holdings -- do not support overruling these
decisions.
McNeese was not a departure from prior
decisions -- this Court had not previously addressed the
application of the exhaustion rule to § 1983 actions. Overruling
these decisions might injure those § 1983 plaintiffs who had
forgone or waived their state administrative remedies in reliance
on these decisions.
[
Footnote 4]
Congressional intent is important in determining the application
of the exhaustion doctrine to cases in which federal administrative
remedies are available, as well as to those in which state remedies
are available. Of course, exhaustion is required where Congress
provides that certain administrative remedies shall be exclusive.
See Myers v. Bethlehem Shipbuilding Corp., 303 U. S.
41 (1938). Even where the statutory requirement of
exhaustion is not explicit, courts are guided by congressional
intent in determining whether application of the doctrine would be
consistent with the statutory scheme. In determining whether
exhaustion of federal administrative remedies is required, courts
generally focus on the role Congress has assigned to the relevant
federal agency, and tailor the exhaustion rule to fit the
particular administrative scheme created by Congress.
See
McKart v. United States, 395 U. S. 185,
395 U. S.
193-195 (1969). With state administrative remedies, the
focus is not so much on the role assigned to the state agency, but
the role of the state agency becomes important once a court finds
that deferring its exercise of jurisdiction is consistent with
statutory intent.
[
Footnote 5]
Some of the debates relating to § 2, which created certain
federal crimes in addition to those defined in § 2 of the 1866
Civil Rights Act, 14 Stat. 27, aimed primarily at the Ku Klux Klan,
are also relevant to our discussion of § 1.
[
Footnote 6]
Opponents of the bill also recognized this purpose, and
complained that the bill would usurp the States' power, centralize
the government, and perhaps ultimately destroy the States.
See,
e.g., Globe 337, 338 (remarks of Rep. Whitthorne);
id. at 352 (remarks of Rep. Beck);
id. at 361
(remarks of Rep. Swann);
id. at 365 (remarks of Rep.
Arthur);
id. at 385 (remarks of Rep. Lewis);
id.
at 429, 431 (remarks of Rep. McHenry);
id. at 454 (remarks
of Rep. Cox);
id. at 510, 511 (remarks of Rep. Eldridge);
Cong.Globe, 42d Cong., 1st Sess., App. 46 (1871) (remarks of Rep.
Kerr) (hereinafter Globe App.);
id. at 216 (remarks of
Sen. Thurman),
id. at 243 (remarks of Sen. Bayard).
[
Footnote 7]
Opponents criticized this provision on this very ground. For
example, Representative Storm lamented:
"[Section one] does not even give the State courts a chance to
try questions, or to show whether they will try the questions that
might come before them under the first section of the fourteenth
amendment, fairly or not. It takes the whole question away from
them in the beginning."
Id. at 86. See also Globe 416 (remarks of Rep. Biggs)
("for the violation of the rights, privileges, and immunities of
the citizen a civil remedy is to be had by proceedings in the
Federal courts, State authorization in the premises to the contrary
notwithstanding");
id. at 337 (remarks of Rep.
Whitthorne);
id. at 373 (remarks of Rep. Archer); Globe
App. 216 (remarks of Sen. Thurman).
[
Footnote 8]
This view was expressed in the Presidential message urging the
passing of corrective legislation.
See Globe 244 ("That
the power to correct these evils is beyond the control of State
authorities I do not doubt") (message of President Grant). The
inability of state authorities to protect constitutional rights was
also expressed in the findings of the House Judiciary Committee,
which had been directed to investigate the situation.
See
id.
at 320. The resolution introduced by Senator Sherman
instructing the Senate Judiciary Committee to report a bill
expressed a similar view. See Globe App. 210 (state "courts
are rendered utterly powerless by organized perjury to punish
crime").
[
Footnote 9]
Opponents viewed the bill as a declaration of mistrust for state
tribunals.
See, e.g., Globe 361 (remarks of Rep. Swann);
id. at 397 (remarks of Rep. Rice);
id. at 454
(remarks of Rep. Cox); Globe App. 216 (remarks of Sen. Thurman).
Representative McHenry found particularly offensive the removal of
the factfinding function from the local institutions.
See
Globe 429.
[
Footnote 10]
Representative Kastenmeier explains why juveniles were not
included in § 1997e:
"I think very candidly we should admit that the first reluctance
to resort to this mechanism embodied in [§ 1997e] was resisted as a
possible encroach ment on civil liberties; that is to say, in the
free, unimpeded resort to 1983; because it does deflect 1983
petitions back into -- temporarily in any event -- back into the
State system. Therefore, to the extent that it is even so viewed,
notwithstanding the limited form of [§ 1997e], that it should also
extend to juveniles was rejected."
1979 Hearings 26.
[
Footnote 11]
Section 1997e(b)(2) states:
"The minimum standards shall provide -- "
"(A) for an advisory role for employees and inmates of any jail,
prison, or other correctional institution (at the most
decentralized level as is reasonably possible), in the formulation,
implementation, and operation of the system;"
"(B) specific maximum time limits for written replies to
grievances with reasons thereto at each decision level within the
system;"
"(C) for priority processing of grievances which are of an
emergency nature, including matters in which delay would subject
the grievant to substantial risk of personal injury or other
damages;"
"(D) for safeguards to avoid reprisals against any grievant or
participant in the resolution of a grievance; and"
"(E) for independent review of the disposition of grievances,
including alleged reprisals, by a person or other entity not under
the direct supervision or direct control of the institution."
[
Footnote 12]
The Committee Reports state that Congress did not intend that
every § 1983 action brought by an adult prisoner in institutions
with appropriate grievance procedures be delayed pending
exhaustion:
"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 [§ 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."
Conf. Rep. 15.
See also H.R.Rep. No. 96-80, p. 25
(1979); S.Rep. No. 96 116, p. 34 (1979).
[
Footnote 13]
Of course, this burden alone is not sufficient to justify a
judicial decision to alter congressionally imposed jurisdiction.
See Thermtron Products, Inc. v. Hermansdorfer,
423 U. S. 336,
423 U. S. 344
(1976);
Steelworkers v. Bouligny, Inc., 382 U.
S. 145,
382 U. S.
150-151 (1965). In any event, it is by no means clear
that judicial discretion to impose an exhaustion requirement in §
1983 actions would lessen the caseload of the federal courts, at
least in the short run.
See infra at
457 U. S.
513-514, and n. 18.
[
Footnote 14]
The application of these federalism principles to actions
brought pursuant to § 1983 has prompted criticism by several
commentators.
See, e.g., Koury, Section 1983 and Civil
Comity: Two for the Federalism Seesaw, 25 Loyola L.Rev. 659 (1979);
Note, 39 N.Y.U.L.Rev. 838 (1964).
[
Footnote 15]
For example, there is serious disagreement over whether judicial
or administrative procedures offer 1983 plaintiffs the swiftest,
least costly, and most reliable remedy.
See, e.g., 1977
Hearings 263-264;
id. at 232-233; Note, 68 Colum.L.Rev.
1201, 1207 (1968). Similarly, there is debate over whether the
specialization of federal courts in constitutional law is more
important than the specialization of administrative agencies in
their areas of expertise, and over whether the symbolic and
institutional function of federal courts in defining, legitimizing,
and enforcing constitutional claims outweighs the educational
function that state and local agencies can serve.
See,
e.g., Whitman, Constitutional Torts, 79 Mich.L.Rev. 5, 23
(1980); Note, 68 Colum.L.Rev.,
supra, at 1208. Finally, it
is uncertain whether the present "free market" system, under which
litigants are free to pursue administrative remedies if they truly
appear to be cheaper, more efficient, and more effective, is more
likely to induce the creation of adequate remedies than a
McKart-type standard under which plaintiffs have no
initial choice.
See, e.g., Note, 8 Ind.L.Rev. 565 (1975).
Cf. 1977 Hearings 21, 34, 51; Hearings on S. 1393 before
the Subcommittee on the Constitution of the Senate Committee on the
Judiciary, 95th Cong., 1st Sess., 442 (1977).
[
Footnote 16]
Section 1997e resolved this problem by directing the Attorney
General to promulgate minimum standards and to establish a
procedure by which prison administrative remedies could be reviewed
and certified. §§ 1997e(b) and (c). I f a procedure has not been
certified, the court is directed to compare the procedure with the
Attorney General's standards and to continue the case pending
exhaustion only if the procedure is in substantial compliance with
the standards of the Attorney General. § 1997e(a)(2).
[
Footnote 17]
Unless the doctrine that statutes of limitations are not tolled
pending exhaustion were overruled,
see Board of Regent v.
Tomanio, 446 U. S. 478
(1980), a judicially imposed exhaustion requirement might result in
the effective repeal of § 1983. Congress avoided this problem in §
1997e by directing the court to merely continue the case for a
period not to exceed 90 days.
[
Footnote 18]
The initial bill proposing to include an exhaustion requirement
in § 1997e provided:
"Relief shall not be granted by a district court in an action
brought pursuant to [§ 1983] by an individual involuntarily
confined in any State institution . . . unless it appears that the
individual has exhausted such plain, speedy, and efficient State
administrative remedy as is available."
H.R. 5791, 95th Cong., 1st Sess., 4 (1977). Congress declined to
adopt this
McKart-type standard after witnesses testified
that this procedure would bog down the courts in massive procedural
litigation, thereby frustrating the purpose of relieving the
caseloads of the federal courts, that state procedures are often
not effective and take too much time, and that the court would have
to judge a myriad of state procedures without much guidance.
See, e.g., 1977 Hearings 34-35, 51, 164-165, 169-170,
263-264, 323; 1979 Hearings 48-49.
[
Footnote 19]
The question was posed from the bench at oral argument whether
the Eleventh Amendment might bar this suit on the ground that the
Board of Regents is an arm of the State for purposes of the
Eleventh Amendment. Tr. of Oral Arg. 20.
Cf. Alabama v.
Pugh, 438 U. S. 781
(1978).
Compare Hopkins v. Clemson Agricultural College,
221 U. S. 636
(1911),
with Florida Dept. of Health v. Florida Nursing Home
Assn., 450 U. S. 147
(1981). The District Court dismissed this action on the pleadings,
and no Eleventh Amendment issue had been raised. The Board of
Regents first raised this issue in its brief to the original panel
on appeal, but did not argue it in its brief on rehearing en banc.
Neither the original panel nor the en banc court addressed this
issue. Although the State mentioned a possible Eleventh Amendment
defense in its response in opposition to the petition for
certiorari, it did not brief the issue or press it at oral
argument. Indeed, counsel for respondent urged that we affirm the
Court of Appeals solely on its exhaustion holding. Tr. of Oral Arg.
24, 27.
We have noted that "the Eleventh Amendment defense sufficiently
partakes of the nature of a jurisdictional bar" that it may be
raised by the State for the first time on appeal.
Edelman v.
Jordan, 415 U. S. 651,
415 U. S. 678
(1974). However, because of the importance of state law in
analyzing Eleventh Amendment questions and because the State may,
under certain circumstances, waive this defense, we have never held
that it is jurisdictional in the sense that it must be raised and
decided by this Court on its own motion.
Cf. Mt. Healthy City
Bd. of Ed. v. Doyle, 429 U. S. 274,
429 U. S. 279
(1977). Where, as here, the Board of Regents expressly requested
that we address the exhaustion question and not pass on its
potential Eleventh Amendment immunity, and, as a consequence, the
parties have not briefed the issue, we deem it appropriate to
address the issue that was raised and decided below and vigorously
pressed in this Court. Nothing in this opinion precludes the Board
of Regents from raising its Eleventh Amendment claim on remand. The
District Court is in the best position to address in the first
instance the competing questions of fact and state law necessary to
resolve the Eleventh Amendment issue, and at this stage, it has the
discretion to permit amendments to the pleadings that might cure
any potential Eleventh Amendment problems.
JUSTICE O'CONNOR, with whom JUSTICE REHNQUIST joins,
concurring.
As discussed in JUSTICE POWELL's dissenting opinion, as well as
in the opinion of the court below, considerations of sound policy
suggest that a § 1983 plaintiff should be required to exhaust
adequate state administrative remedies before filing his complaint.
At the very least, prior state administrative
Page 457 U. S. 517
proceedings would resolve many claims, thereby decreasing the
number of § 1983 actions filed in the federal courts, which are now
straining under excessive caseloads. However, for the reasons set
forth in the Court's opinion, this Court already has ruled that, in
the absence of additional congressional legislation, exhaustion of
administrative remedies is not required in § 1983 actions. Perhaps
Congress' enactment of the Civil Rights of Institutionalized
Persons Act, 42 U.S.C. § 1997
et seq. (1976 ed., Supp.
IV), which creates a limited exhaustion requirement for prisoners
bringing § 1983 suits, will prompt it to reconsider the possibility
of requiring exhaustion in the remainder of § 1983 cases.
Reluctantly, I concur.
JUSTICE WHITE, concurring in part.
I fully agree with the Court that our frequent and unequivocal
statements on exhaustion cannot be explained or distinguished away
as the Fifth Circuit attempted to do. For nearly 20 years and on at
least 10 occasions, this Court has clearly held that no exhaustion
of administrative remedies is required in a § 1983 suit.
Ante at
457 U. S. 500.
Whether or not this initially was a wise choice, these decisions
are
stare decisis, and in a statutory case, a particularly
strong showing is required that we have misread the relevant
statute and its history. I have no difficulty in concluding that on
the issue of exhaustion, unlike the question of municipal immunity
faced in
Monell v. New York City Dept. of Social Services,
436 U. S. 658
(1978), the Court has not previously misapprehended the meaning of
the 1871 debates in rejecting an exhaustion rule in
McNeese v.
Board of Education, 373 U. S. 668,
373 U. S.
671-673 (1963), and adhering to that position ever
since. Our precedents and the legislative history are sufficient to
support reversal, and I accordingly join the judgment and all but
Part III-B of the opinion of the Court.
In
457 U. S. the
Court unnecessarily and unwisely ventures further to find support
where none may be had. The wisdom of a general no-exhaustion rule
in § 1983 suits was
Page 457 U. S. 518
not at issue when Congress considered and passed the Civil
Rights of Institutionalized Persons Act, 42 U.S.C. § 1997
et
seq. (1976 ed., Supp. IV). As JUSTICE POWELL persuasively
points out in his dissenting opinion, and as reflected in the title
of the Act, congressional attention was narrowly focused on
procedures concerning the legal rights of prisoners and other
institutionalized persons. Unsurprisingly, the legislation which
emerged addressed only the specific problem under investigation; it
indicates neither approval of a no-exhaustion rule nor an intent to
preclude us from reconsidering the issue.
As the Court acknowledges,
ante at
457 U. S. 513,
the policy arguments cut in both directions. The Court concludes
that
"the very difficulty of these policy considerations, and
Congress' superior institutional competence . . . suggest that
legislative, not judicial, decisions are preferable."
To be sure, exhaustion is a statutory issue, and the dispositive
word on the matter belongs to Congress. It does not follow,
however, that, were the issue not foreclosed by earlier decisions,
we would be institutionally incompetent to formulate an exhaustion
rule. The lack of an exhaustion requirement in § 1983 actions is
itself an exception to the general rule, judicially formulated,
that exhaustion of administrative remedies is required in a civil
action.
Myers v. Bethlehem Shipbuilding Corp.,
303 U. S. 41
(1938);
McKart v. United States, 395 U.
S. 185 (1969). Unlike other statutory questions,
exhaustion is "a rule of judicial administration,"
Myers v.
Bethlehem Shipping Corp., supra, at
303 U. S. 50,
and unless Congress directs otherwise, rightfully subject to
crafting by judges. Our resolution of this case as governed by
stare decisis, reinforced by the legislative history of §
1983, should not be taken as undercutting the general exhaustion
principle of long standing. The result today is also fully
consistent with our decisions that a defendant in a civil or
administrative enforcement proceeding may not enjoin and sidetrack
that proceeding by resorting to a § 1983 action in federal court,
Huffman
Page 457 U. S. 519
v. Pursue, Ltd., 420 U. S. 592
(1975);
Juidice v. Vail, 430 U. S. 327
(1977);
Trainor v. Hernandez, 431 U.
S. 434 (1977);
Moore v. Sims, 442 U.
S. 415 (1979), and that a federal action should be
stayed pending determination of state law issues central to the
constitutional dispute.
Railroad Comm'n v. Pullman Co.,
312 U. S. 496
(1941). On this understanding, I join all but Part III-B of the
opinion of the Court.
*
* In my view, this case does not present a serious Eleventh
Amendment issue. The Florida statute authorizing suits against the
Board of Regents, Fla.Stat. § 240.205 (1981), is clear on its face.
I see no reason to read a broad waiver to sue and be sued in "all
courts of law and equity" as meaning all but federal courts. Nor am
I aware of anything in Florida law that suggests a more limited
meaning was intended than indicated by the unequivocal terms of the
statute. Certainly, none of our cases have gone so far as to hold
that federal courts must be expressly mentioned for an effective
Eleventh Amendment waiver.
The statutes at issue in cases recited by JUSTICE POWELL,
post at
457 U. S.
522-523, n. 5, presented more equivocal embodiments of
state intent. For example, in
Florida Dept. of Health v.
Florida Nursing Home Assn., 450 U. S. 147
(1981) (per curiam), the authorization to sue and be sued was
limited to contract actions and, unlike the instant provision, did
not extend to "all courts of law and equity." The same is true of
the interstate compact involved in
Petty v. Tennessee-Missouri
Bridge Comm'n, 359 U. S. 275
(1959). The decision in
Kennecott Copper Corp. v. Tax
Comm'n, 327 U. S. 573
(1946), which involved a statute providing for suit in "any court
of competent jurisdiction," turned on the incongruity of federal
courts' interpreting state tax laws and the fact that "Utah employs
explicit language to indicate, in other litigation, its consent to
suits in federal courts."
Id. at
327 U. S.
579.
Thus, while I do not object to the Court's leaving the Eleventh
Amendment issue for further consideration by the lower courts -- at
least where, as here, there is no logical priority in resolving
Eleventh Amendment immunity before exhaustion -- I find the issue
sufficiently clear to be answered here and now. The statute means
what it says.
JUSTICE POWELL, with whom THE CHIEF JUSTICE joins as to Part II,
dissenting.
The Court holds that the limitations on federal judicial power
embodied in the Eleventh Amendment and in the doctrine of sovereign
immunity are not jurisdictional. I consider
Page 457 U. S. 520
this holding to be a serious departure from established
constitutional doctrine.
I dissent also from the Court's rejection of the rule of
"flexible" exhaustion of state administrative remedies developed
and stated persuasively by the Court of Appeals for the Fifth
Circuit, sitting en banc. In disagreeing with the 17 judges of the
Court of Appeals who adopted the flexible exhaustion principle,
this Court places mistaken reliance on the Civil Rights of
Institutionalized Persons Act, 42 U.S.C. § 1997
et seq.
(1976 ed., Supp. IV). I disagree with both portions of the Court's
holding, and therefore dissent.
I
. The Eleventh Amendment. [
Footnote
2/1]
A
In this "reverse discrimination" action, petitioner, an employee
of the Florida International University, brought suit under 42
U.S.C. § 1983 against the Board of Regents of the State of Florida.
[
Footnote 2/2] She did not name the
individual Regents as defendants. She sued for $500,000 in damages,
and for injunctive and other equitable relief.
See ante at
457 U. S.
498-499, n. 2. The Board filed a motion to dismiss,
arguing that petitioner's suit was premature in light of her
failure to exhaust available administrative remedies. The District
Court agreed, and granted the motion to dismiss.
Page 457 U. S. 521
On petitioner's appeal, the Board added the bar of the Eleventh
Amendment to its defense. [
Footnote
2/3] It argued that, as an instrumentality of the State, the
Board could not be subjected to suit in federal court absent a
waiver of immunity. [
Footnote
2/4]
Page 457 U. S. 522
And it asserted that there had been no waiver. Although the
Board of Regents was created as a body corporate with power "to sue
and be sued . . . to plead and be impleaded in all courts of law
and equity," Fla.Stat. § 240.205(4)(1) (1981), it is well
established that language such as this does not operate to waive
the defense of the Eleventh Amendment. [
Footnote 2/5] In
Page 457 U. S. 523
reply, petitioner argued that whether or not the statute
creating the Board amounted to a waiver -- and petitioner believed
that it did -- the Eleventh Amendment simply was irrelevant to the
equitable claims she had lodged against the State.
See
Reply Brief for Petitioner 3-4.
Neither the Court of Appeals panel nor the Court of Appeals en
banc addressed the Board's Eleventh Amendment defense. They
directed their attention solely to the question of exhaustion of
administrative remedies. The panel held that there was no
exhaustion requirement in § 1983 suits, and remanded to the
District Court for consideration of the Board's Eleventh Amendment
argument.
Patsy v. Florida International University, 612
F.2d 946 (1980). The Court of Appeals, sitting en banc, reversed,
holding that § 1983 plaintiffs must exhaust available and
reasonable administrative remedies.
Patsy v. Florida
International University, 634 F.2d 900 (1981). Again the court
did not consider the Board's Eleventh Amendment defense.
The Eleventh Amendment question was raised before this Court, at
the first opportunity after the Court of Appeals' decision, in the
Board's response to the petition for writ of certiorari. The Board
argued, as it had on appeal, that it was an arm of the State and
that it had not waived its immunity from suit in federal court.
[
Footnote 2/6] Again petitioner
answered that,
Page 457 U. S. 524
at most, the Eleventh Amendment defense would bar her claim for
damages. And, even as to this claim, petitioner now argued that the
Amendment would not bar damages if the Board could meet the claim
out of its "own funds"
e.g., from gifts and bequests --
rather than from the state treasury. These arguments were repeated
at oral argument. [
Footnote
2/7]
B
The Court views the jurisdictional question presented by the
Eleventh Amendment as if it were of little or no importance. Its
entire discussion of the question is relegated to a conclusory note
at the end of the opinion.
See ante at
457 U. S.
515-516, n.19. The Court concedes that the Amendment and
the bar of sovereign immunity are "jurisdictional," but only in the
sense that the State may raise the claim at any point in the
proceedings. The statement is then made that the Amendment is not
jurisdictional "in the sense that it must be raised and decided by
this Court on its own motion."
Ibid. [
Footnote 2/8] The Court cites to no authority in
support of this statement, [
Footnote
2/9] and
Page 457 U. S. 525
it would be surprising if any existed. The reason that the
Eleventh Amendment question may be raised at any point in the
proceedings is precisely because it places limits on the basic
authority of federal courts to
entertain suits against a
State. The history and text of the Eleventh Amendment, the
principle of sovereign immunity exemplified by it, and the
well-established precedents of this Court make clear that today's
decision misconceives our jurisdiction and the purpose of this
Amendment.
A basic principle of our constitutional system is that the
federal courts are courts of limited jurisdiction. Their authority
extends only to those matters within the judicial power of the
United States as defined by the Constitution. In language that
could not be clearer, the Eleventh Amendment removes from the
judicial power, as set forth in Art. III, suits "commenced or
prosecuted against one of the United States." When an Amendment to
the Constitution states in plain language that "the judicial power
of the United States shall not be construed to extend" to suits
against a State, from what source does the Court today derive its
jurisdiction? The Court's "back-of-the-hand" treatment of this
threshold issue offers no answer. Questions of jurisdiction and of
the legitimate exercise of power are fundamental in our federal
constitutional system. [
Footnote
2/10]
Page 457 U. S. 526
C
The Eleventh Amendment was adopted as a response to this Court's
assumption of original jurisdiction in a suit brought against the
State of Georgia.
Chisholm v.
Georgia, 2 Dall. 419 (1793). Relying upon express
language in Art. III extending the judicial power to controversies
between a State and citizens of another State, the Court found that
it had jurisdiction. The decision is said to have created a shock
throughout the country.
See Hans v. Louisiana,
134 U. S. 1,
134 U. S. 11
(1890). The Amendment was adopted shortly thereafter, and the Court
understood that it had been overruled:
"'the amendment being constitutionally adopted, there could not
be exercised any jurisdiction, in any case, past or future, in
which a State was sued by the citizens of another State, or by
citizens or subjects of any foreign state.'"
Ibid.
In light of the history and wording of the Amendment, the Court
has viewed the Amendment as placing explicit limits on the judicial
power as defined by Art. III.
See Nevada v. Hall,
440 U. S. 410,
440 U. S. 421
(1979). But more than that, and beyond the express provisions of
the Amendment, the Court has recognized that the Amendment stands
for a principle of sovereign immunity by which the grant of
authority in Art. III itself must be measured. [
Footnote 2/11] Thus, in
Hans v. Louisiana,
supra, the Court held that the federal judicial power did not
extend to a suit against a nonconsenting State by one of its own
citizens. Although the Eleventh Amendment, by its terms, does not
apply to such suits, the Court found that
Page 457 U. S. 527
the language of the Amendment was but an illustration of a
larger principle: federal jurisdiction over suits against a State,
absent consent, "was not contemplated by the Constitution when
establishing the judicial power of the United States."
Id.
at
134 U. S. 15.
[
Footnote 2/12]
See Smith v.
Reeves, 178 U. S. 436
(1900).
Similarly, in
Ex parte New York, 256 U.
S. 490 (1921), the Court found that, despite the
Eleventh Amendment's specific reference to suits in "law or
equity," the principle of sovereign immunity exemplified by the
Amendment would not permit the extension of federal admiralty
jurisdiction over a nonconsenting State. The Court applied the same
approach in
Monaco v. Mississippi, 292 U.
S. 313 (1934), in which the Court refused to take
jurisdiction over a suit against a State by a foreign state. On its
face, Art. III provided jurisdiction over suits "between a State .
. . and foreign States." Nor did the Eleventh Amendment
specifically exempt the States from suit by a foreign state.
Nevertheless, the Court concluded that the judicial power of the
United States, granted by Art. III, did not extend so far:
"We think that Madison correctly interpreted Clause one of § 2
of Article III of the Constitution as making provision for
jurisdiction of a suit against a State by a foreign State in the
event of the State's consent, but not otherwise."
Id. at
292 U. S.
330.
In this case, a resident of the State of Florida has sued a
Board exercising a major function of the State's sovereign
authority. As prior decisions have held, whether this case is
viewed only under the Eleventh Amendment -- with its
Page 457 U. S. 528
explicit limitation on federal jurisdiction -- or under Art.
III, the analysis must be the same. Absent consent, the "judicial
power of the United States," as defined by Art. III and the
Eleventh Amendment, simply does not extend to suits against one of
the States by a citizen of that State: [
Footnote 2/13]
"That a State may not be sued without its consent is a
fundamental rule of jurisprudence having so important a bearing
upon the construction of the Constitution of the United States that
it has become established by repeated decisions of this court that
the entire judicial power granted by the Constitution does not
embrace authority to entertain a suit brought by private parties
against a State without consent given: not one brought by
citizens of another State, or by citizens or subjects of a foreign
State, because of the Eleventh Amendment; and not even one brought
by its own citizens, because of the fundamental rule of which the
Amendment is but an exemplification."
Ex parte New York, supra, at
256 U. S. 497
(emphasis added).
The Court does not distinguish these unquestioned precedents.
They are wholly and inexplicably ignored. Quite
Page 457 U. S. 529
simply, the Court today disregards controlling decisions and the
explicit limitation on federal court jurisdiction in Art. III and
the Eleventh Amendment. The Court does recognize that the Eleventh
Amendment is jurisdictional "in the sense" that the State may raise
the bar of the Amendment for the first time on appeal. Yet the
Court misses the point of this statement. The reason that the bar
of the Amendment may be raised at any time -- as the Court
previously has explained -- is precisely because it
is
jurisdictional:
"The objection to petitioner's suit as a violation of the
Eleventh Amendment was first made and argued . . . in this Court.
This was in time, however. The Eleventh Amendment declares a policy
and sets forth an explicit limitation on federal judicial power of
such compelling force that this Court will consider the issue
arising under this Amendment . . . even though urged for the first
time in this Court."
Ford Motor Co. v. Department of Treasury of Indiana,
323 U. S. 459,
323 U. S. 467
(1945). [
Footnote 2/14]
Despite these precedents, and apparently because of an
unexplained anxiety to reach the exhaustion issue decided by the
Court of Appeals, this Court remands the issue of its own
jurisdiction to the courts below.
D
I believe that the Eleventh Amendment question must be
addressed, and that the answer could hardly be clearer. This is an
action under § 1983. [
Footnote
2/15] Petitioner seeks relief from the
Page 457 U. S. 530
Board of Regents of the State of Florida, a major
instrumentality or agency of the State. Petitioner's argument that
the statute incorporating the Board should be understood to waive
the Eleventh Amendment is foreclosed by numerous decisions of this
Court, and is unsupported by State law.
See, e.g., Florida
Dept. of Health v. Florida Nursing Home Assn., 450 U.
S. 147 (1981);
457
U.S. 496fn2/5|>n. 5,
supra. Similarly, petitioner's
suggestion that the Eleventh Amendment does not bar her equitable
claims against the Board must be rejected. The Amendment applies to
suits "in law
or equity." All suits against an
unconsenting State -- whether for damages or injunctive relief --
are barred.
See Cory v. White, ante p.
457 U. S. 85.
[
Footnote 2/16] Finally, the rule
in
Ex parte Young, 209 U. S. 123
(1908), permitting a federal court to order state
officials to obey federal law in the future, is simply
irrelevant to this case. [
Footnote
2/17] Petitioner did not sue the members of the Board of
Page 457 U. S. 531
Regents. She sued the Board itself, an arm of the State of
Florida.
In my view, the Eleventh Amendment -- and the principle of
sovereign immunity exemplified by the Amendment and embodied in
Art. III -- clearly bar the suit in this case. The Court's refusal
to address the question of its own jurisdiction violates
well-established precedents of this Court, as well as the basic
premise that federal courts are courts of limited jurisdiction.
Even had the parties neglected to address the Eleventh Amendment
question, it would have been our responsibility to consider it on
our own motion. In fact, the question has been fully briefed to the
Court of Appeals and
Page 457 U. S. 532
raised in this Court.
See 457
U.S. 496fn2/8|>n. 8,
supra. Cf. Sosna v.
Iowa, 419 U. S. 393,
419 U. S. 396,
n. 2 (1975). I would dismiss this suit and vacate the decision of
the Court of Appeals for lack of jurisdiction.
II
. Exhaustion of Remedies.
In view of my belief that this case should be dismissed on
jurisdictional grounds, I address the exhaustion question only
briefly. Seventeen judges joined in the Court of Appeals'
persuasive opinion adopting a rule of "flexible" exhaustion of
administrative remedies in § 1983 suits. Other Courts of Appeals
have adopted a similar rule.
See, e.g., Eisen v. Eastman,
421 F.2d 560 (CA2 1969);
Secret v. Brierton, 584 F.2d
&23 (CA7 1978). The opinion for the en banc court carefully
reviewed the exhaustion doctrine in general and as applied to §
1983 actions. It found that the prior decisions of this Court did
not clearly decide the question. [
Footnote 2/18]
See Barry v. Barchi,
443 U. S. 55,
443 U. S. 63, n.
10 (1979);
Gibson v. Berryhill, 411 U.
S. 564,
411 U. S. 575,
n. 14 (1973). And it concluded that the exhaustion of adequate and
appropriate state administrative remedies would promote the
achievement of the rights protected by § 1983.
I agree with the Court of Appeals' opinion. The requirement that
a § 1983 plaintiff exhaust adequate state administrative remedies
was the accepted rule of law until quite recently.
See Eisen v.
Eastman, supra, at
421 U. S. 567.
The rule rests on sound considerations. It does not defeat federal
court jurisdiction, it merely defers it. [
Footnote 2/19] It permits the States
Page 457 U. S. 533
to correct violations through their on procedures, and it
encourages the establishment of such procedures. It is consistent
with the principles of comity that apply whenever federal courts
are asked to review state action or supersede state proceedings.
See Younger v. Harris, 401 U. S. 37
(1971).
Moreover, and highly relevant to the effective functioning of
the overburdened federal court system, the rule conserves and
supplements scarce judicial resources. In 1961, the year that
Monroe v. Pape, 365 U. S. 167, was
decided, only 270 civil rights actions were begun in the federal
district courts. Annual Report of the Director of the
Administrative Office of the U.S. Courts, 238 (1961). In 1981, over
30,000 such suits were commenced. [
Footnote 2/20] Annual Report of the Director of the
Administrative Office of the U.S. Courts 63, 68 (1981). The result
of this unprecedented increase in civil rights litigation is a
heavy burden on the federal courts to the detriment of all federal
court litigants, including others who assert that their
constitutional rights have been infringed.
The Court argues that past decisions of the Court categorically
hold that there is no exhaustion requirement in § 1983 suits. But
as the Court of Appeals demonstrates, and as the Court recognizes,
many of these decisions can be explained as applications of
traditional exceptions to the exhaustion requirement.
See
McNeese v. Board of Education, 373 U.
S. 668 (1963). Other decisions speak to the question in
an off-hand and conclusory fashion, without full briefing and
argument.
See Wilwording v. Swenson, 404 U.
S. 249,
404 U. S. 251
(1971) (unargued per curiam);
Damico v. California,
389 U. S. 416
(1967) (unargued per curiam). Moreover, a categorical
Page 457 U. S. 534
no-exhaustion rule would seem inconsistent with the decision in
Younger v. Harris, supra, prescribing abstention when
state criminal proceedings are pending. At least where
administrative proceedings are pending,
Younger would seem
to suggest the appropriateness of exhaustion.
Cf. Gibson v.
Berryhill, supra, at
411 U. S.
574-575. Yet the Court today adopts a flat rule without
exception.
The Court seeks to support its no-exhaustion rule with
indications of congressional intent. Finding nothing directly on
point in the history of the Civil Rights Act itself, the Court
places primary reliance on the recent Civil Rights of
Institutionalized Persons Act, 42 U.S.C. § 1997
et seq.
(1976 ed., Supp. IV). This legislation was designed to authorize
the Attorney General to initiate civil rights actions on behalf of
institutionalized persons. § 1997a. The Act also placed certain
limits on the existing authority of the Attorney General to
intervene in suits begun by institutionalized persons.
See
§ 1997c. In addition, in § 1997e, the Act sets forth an exhaustion
requirement, but only for § 1983 claims brought by prisoners.
On the basis of the exhaustion provision in § 1997e and remarks
primarily by Representative Kastenmeier, the Court contends that
Congress has endorsed a
general no-exhaustion rule. The
irony in this reasoning should be obvious. A principal concern that
prompted the Department of Justice to support, and the Congress to
adopt, § 1997e was the vast increase in § 1983 suits brought by
state prisoners in federal courts. There has been a year-by-year
increase in these suits since the mid-1960's. The increase in
fiscal 1981 over fiscal 1980 was some 26%, resulting in a total of
15,639 such suits filed in 1981, as compared with 12,397 in 1980.
The 1981 total constituted over 8.6% of the total federal district
court civil docket. Although most of these cases present frivolous
claims, many are litigated through the courts of appeals to this
Court. The burden on the system fairly can be described as
enormous, with few, if any, benefits that would not
Page 457 U. S. 535
be available in meritorious cases if exhaustion of appropriate
state administrative remedies were required prior to any federal
court litigation. It was primarily this problem that prompted
enactment of § 1997e. [
Footnote
2/21]
Moreover, it is clear from the legislative history that Congress
simply was not addressing the exhaustion problem in any general
fashion. The concern focused on the problem of prisoner petitions.
The new Act had a dual purpose in this respect. In addition to
requiring prior exhaustion of adequate state remedies, Congress
wished to authorize the Attorney General to act when necessary to
protect the constitutional rights of prisoners, but at the same
time minimize the need for federal action of any kind by requiring
prior exhaustion. Both sponsors of the Act in the Senate made this
clear. Senator Hatch explained § 1997e as follows:
"In actions relating to alleged violations of the constitutional
rights of prisoners, such persons may be required to exhaust
internal grievance procedures
before the Attorney General can
become involved pursuant to [the Act]."
126 Cong.Rec. 3716 (1980) (emphasis added). [
Footnote 2/22] Senator Bayh, the author of the
Act, described the exhaustion provision in similar terms:
Page 457 U. S. 536
"[I]n the event of a prison inmate's rights being alleged to be
violated . . . then before the Justice Department could intervene
or initiate suits, the prison inmate or class of inmates would have
to pursue all of their administrative remedies within the State law
before the Justice Department could intervene under the provisions
of [the Act]."
Id. at 3970.
In short, in enacting the Civil Rights of Institutionalized
Persons Act, Congress was focusing on the powers of the Attorney
General, and the particular question of prisoners' suits, not on
the general question of exhaustion in § 1983 actions. Also
revealing as to the limited purpose of § 1997e is Congress'
consistent refusal to adopt legislation imposing a general
no-exhaustion requirement. Thus, for example, in 1979, a bill was
introduced into the Senate providing:
"No court of the United States shall stay or dismiss any civil
action brought under this Act on the ground that the party bringing
such action failed to exhaust the remedies available in the courts
or the administrative agencies of any State."
S.1983, 96th Cong., 1st Sess., § 5 (1979). The bill was never
reported out of committee.
The requirement that plaintiffs exhaust available and adequate
administrative remedies -- subject to well-developed exceptions --
is firmly established in virtually every area of the law. This is
dictated in § 1983 actions by common sense, as well as by comity
and federalism, where adequate state administrative remedies are
available.
If the exhaustion question were properly before us, I would
affirm the Court of Appeals.
[
Footnote 2/1]
The Eleventh Amendment provides:
"The Judicial power of the United States shall not be construed
to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or
by Citizens or Subjects of any Foreign State."
[
Footnote 2/2]
As the Court notes,
see ante at
457 U. S. 498,
n. 1, petitioner originally named the Florida International
University as defendant. Because the Florida International
University lacks the capacity to sue or be sued, the District Court
found that it was not a proper defendant. Petitioner was permitted
to amend her complaint, and she simply substituted the Board of
Regents.
In addition to racial discrimination, petitioner also claimed
that she had been discriminated against on the basis of her
sex.
[
Footnote 2/3]
The Court repeatedly has held that the defense of the Eleventh
Amendment may be raised for the first time on appeal.
See
Edelman v. Jordan, 415 U. S. 651,
415 U. S. 678
(1974) ("Eleventh Amendment defense sufficiently partakes of the
nature of a jurisdictional bar, so that it need not be raised in
the trial court").
The Board's brief on appeal was divided into three parts. Part
III was devoted to the argument that "the Eleventh Amendment
precludes subject matter jurisdiction over plaintiff's complaint."
Brief for Defendant-Appellee in No. 79-2965 (CA5), p. 17. A lengthy
statutory addendum was attached in support of the arguments
advanced in this section of the brief. After the case was scheduled
for rehearing en banc, the parties filed short --
i.e., 4-
and 10-page -- supplemental briefs to be considered in addition to
the main briefs already submitted to the Court of Appeals. The
supplemental briefs did not add to the discussion of the Eleventh
Amendment issue. But the question was placed before the Court of
Appeals en banc, as it had been placed before the panel, through
the thorough discussion in the main briefs.
This Court's explanation for not addressing the Eleventh
Amendment issue is that it was not considered below.
See
ante at
457 U. S.
515-516, n.19. But contrary to the implication in the
Court's explanation, the issue -- as shown here -- was urged by the
Board and argued here.
[
Footnote 2/4]
The Board of Regents of the Division of Universities of the
Department of Education is established by the Florida Education
Code as a part of the State University System. Fla.Stat. § 240.2011
(1981). The Board consists of the Commissioner of Education and 12
citizens appointed by the Governor. § 240.207. The Board has
general supervisory authority over the State University System. §
240.209. Among its duties are the appointment of university
presidents, the review of budget requests of each university in the
state system, the preparation of an aggregated budget for the State
University System, the development of a master plan, and the
establishment of a systemwide personnel classification and pay
plan.
Ibid.
The Board is an agency of the State of Florida. § 216.011.
See Relyea v. State, 385 So. 2d 1378 (Fla.App.1980). It
may claim the defense of sovereign immunity in suits under state
law.
See ibid.
Numerous Courts of Appeals have held state universities or state
Boards of Regents immune from suit in federal court by reason of
the Eleventh Amendment.
See, e.g., Rutledge v. Arizona Board of
Regents, 660 F.2d 1345, 1349 (CA9 1981);
Brennan v.
University of Kansas, 451 F.2d 1287 (CA10 1971);
Ronwin v.
Shapiro, 657 F.2d 1071 (CA9 1981).
[
Footnote 2/5]
See, e.g., Florida Dept. of Health v. Florida Nursing Home
Assn., 450 U. S. 147,
450 U. S. 150
(1981);
Petty v. Tennessee-Missouri Bridge Comm'n,
359 U. S. 275,
359 U. S.
276-277 (1959) ("The conclusion that there has been a
waiver of immunity will not be lightly inferred. . . . And where a
public instrumentality is created with the right
to sue and be
sued,' that waiver of immunity in the particular setting may be
restricted to suits or proceedings of a special character in the
state, not the federal courts"); Kennecott Copper Corp. v.
State Tax Comm'n, 327 U. S. 573
(1946) (language in state statute providing for suit in "any court
of competent jurisdiction" will not be understood as a waiver of
the Eleventh Amendment); Ford Motor Co. v. Department of
Treasury of Indiana, 323 U. S. 459
(1945) (same); Great Northern Life Insurance Co. v. Read,
322 U. S. 47,
322 U. S. 54
(1944) ("a clear declaration of the state's intention to submit its
fiscal problems to other courts than those of its own creation must
be found"); Jagnandan v. Giles, 538 F.2d 1166, 1177 (CA5
1976). Cf. Edelman v. Jordan, supra, at 415 U. S. 673
("In deciding whether a State has waived its constitutional
protection under the Eleventh Amendment, we will find waiver only
where stated `by the most express language or by such overwhelming
implications from the text as [will] leave no room for any other
reasonable construction'"). It is difficult to reconcile the
Court's consistent requirement of an express waiver with the
approach advocated by JUSTICE WHITE. See ante at
457 U. S. 519,
n.
At oral argument here, counsel for respondent stated that the
Florida Legislature had not waived the Eleventh Amendment, and had
waived the defense of sovereign immunity "only in selected tort
cases." Tr. of Oral Arg. 26.
See Bragg v. Board of Public
Instruction, 36 So. 2d 222 (Fla.1948) ("The mere fact that the
Board of Public Instruction is created as a body corporate with
power to sue and be sued does not affect its immunity from tort");
Relyea v. State, supra, (Board of Regents retains defense
of sovereign immunity); Fla.Stat. § 111.071(1)(b)(4) (1981)
(provision for payment by the State of civil rights judgments
against state officers -- including judgments under 42 U.S.C.1983
(1976 ed., Supp. IV) -- does not waive sovereign immunity "or any
other defense or immunity" to such lawsuits).
Cf. Long v.
Richardson, 525 F.2d 74, 79 (CA6 1975) (state university's
immunity from suit under state law disposes of Eleventh Amendment
question).
[
Footnote 2/6]
See Brief in Opposition 23 ("Should this Court grant
the writ, the Board respectfully submits that review should be
limited to the jurisdictional issues discussed below ,and this
Court should vacate the Fifth Circuit's decision with instructions
to dismiss [petitioner's] suit for lack of jurisdiction").
The Court,
ante at
457 U. S. 516,
n.19, attaches importance to the statement at oral argument by
counsel for the Board that the Board wanted the exhaustion issue
decided. This must be viewed, however, in light of the Board's
unsuccessful attempt to have this Court first decide the Eleventh
Amendment issue. Moreover, a party's request -- short of a binding
waiver -- cannot relieve this Court of its duty to resolve a
jurisdictional question.
[
Footnote 2/7]
Tr. of Oral Arg. 25-28, 40-41. At oral argument, the Board's
counsel stated that the Eleventh Amendment question had not been
addressed in its main briefs to this Court "because of the grant of
certiorari."
Id. at 27.
[
Footnote 2/8]
In view of the Board's repeated efforts to raise the Eleventh
Amendment question, and its specific request that this Court vacate
the decision of the Court of Appeals for lack of jurisdiction,
see 457
U.S. 496fn2/6|>n. 6,
supra, it is hardly correct to
say that the Court must now raise the question of jurisdiction on
its own motion.
Cf. Sosna v. Iowa, 419 U.
S. 393,
419 U. S. 396,
n. 2 (1975). In any event, "we are obliged to inquire
sua
sponte whenever a doubt arises as to the existence of federal
jurisdiction."
Mt. Healthy City Bd. of Ed. v. Doyle,
429 U. S. 274,
429 U. S. 278
(1977).
[
Footnote 2/9]
The Court cites, with a "
compare" signal, to
Mt.
Healthy City Bd. of Ed. v. Doyle, supra, at
429 U. S. 279.
The
Mt. Healthy Court in no way suggested that the
Eleventh Amendment and the principle of sovereign immunity embodied
in Art. III were less than jurisdictional. Indeed, the Court found
it necessary to resolve the Eleventh Amendment question in that
case prior to reaching the merits.
On the contrary, the Court consistently has viewed the Amendment
as jurisdictional. In
Sosna v. Iowa, supra, at
419 U. S. 396,
n. 2, the Court raised the question of the Eleventh Amendment even
though the State had asserted the bar of the Amendment only in its
answer to the complaint, and had thereafter abandoned this defense.
Unlike the Board of Regents in this case, the State of Iowa had not
advanced the defense in this Court. Even so, the
Sosna
Court raised and addressed the question. These precedents are
ignored by the Court today.
[
Footnote 2/10]
"Because of their unusual nature, and because it would not
simply be wrong but indeed would be an unconstitutional invasion of
the powers reserved to the states if the federal courts were to
entertain cases not within their jurisdiction, the rule is well
settled that the party seeking to invoke the jurisdiction of a
federal court must demonstrate that the case is within the
competence of that court."
C. Wright & A. Miller, Federal Practice and Procedure §
3522, p. 45 (1975).
[
Footnote 2/11]
"[T]he Eleventh Amendment was introduced to clarify the intent
of the Framers concerning the reach of the federal judicial power.
. . . The Eleventh Amendment served effectively to reverse the
particular holding in
Chisholm, and, more generally, to
restore the original understanding. . . . Thus, despite the
narrowness of the language of the Amendment, its spirit has
consistently guided this Court in interpreting the reach of the
federal judicial power generally. . . ."
Employees v. Missouri Public Health Dept., 411 U.
S. 279,
411 U. S.
291-292 (1973) (MARSHALL, J., concurring in result).
[
Footnote 2/12]
The
Hans Court quoted at some length from the
constitutional debates concerning the scope of Art. III. In the
eighty-first number of the Federalist, for example, Hamilton sought
to dispel the suggestion that Art. III extended federal
jurisdiction over suits brought against one of the States:
"'It is inherent in the nature of sovereignty not to be amenable
to the suit of an individual
without it consent. This is
the general sense and the general practice of mankind; and the
exemption, as one of the attributes of sovereignty, is now enjoyed
by the government of every State in the Union.'"
As quoted in 134 U.S. at
134 U. S. 13
(emphasis in original).
[
Footnote 2/13]
Unlike other limitations on federal jurisdiction, the limitation
imposed by the Eleventh Amendment and the doctrine of sovereign
immunity may be waived by consent unequivocally expressed. This was
the understanding of the doctrine at the time the Constitution was
adopted,
see 457
U.S. 496fn2/11|>n. 11,
supra, and the Court has
interpreted the "judicial power of the United States" as used in
the Eleventh Amendment and Art. III accordingly. But the fact that
the State or the United States may consent to federal jurisdiction
does not render the Eleventh Amendment or the doctrine of sovereign
immunity embodied in Art. III "quasi" jurisdictional. Quite simply,
where there has not been consent, there is no jurisdiction.
See
United States v. Sherwood, 312 U. S. 584,
312 U. S. 586
(1941) ("The United States, as sovereign, is immune from suit save
as it consents to be sued, . . . and the terms of its consent to be
sued in any court define that court's jurisdiction to entertain the
suit");
United States v. United States Fidelity & Guaranty
Co., 309 U. S. 506,
309 U. S. 514
(1940) ("Consent alone gives jurisdiction to adjudge against a
sovereign. Absent that consent, the attempted exercise of judicial
power is void").
[
Footnote 2/14]
See Edelman v. Jordan, 415 U.S. at
415 U. S. 678;
Sosna v. Iowa, 419 U.S. at
419 U. S. 396,
n. 2;
Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. at
429 U. S. 278.
The Court has consistently viewed the Eleventh Amendment question
as jurisdictional.
See Great Northern Life Insurance Co. v.
Read, 322 U.S. at
322 U. S. 51 ("A
state's
freedom from litigation was established as a
constitutional right through the Eleventh Amendment") (emphasis
added);
Monaco v. Mississippi, 292 U.
S. 313,
292 U. S. 320
(1934) (Question is "whether this Court has jurisdiction
to
entertain a suit brought by a foreign State against a State
without her consent") (emphasis added).
[
Footnote 2/15]
The States consented to a diminution of their sovereignty by
ratifying the Fourteenth Amendment. In its exercise of the powers
granted to it by § 5 of the Fourteenth Amendment, Congress may lift
the bar of sovereign immunity.
See Fitzpatrick v. Bitzer,
427 U. S. 445
(1976). Thus, if petitioner had brought this suit under Title VII
of the Civil Rights Act of 1964, there would have been no
jurisdictional problem. But petitioner did not do so, and the Court
has held that Congress has not removed the bar of sovereign
immunity in § 1983 actions.
See Quern v. Jordan,
440 U. S. 332
(1979)
[
Footnote 2/16]
"It would be a novel proposition indeed that the Eleventh
Amendment does not bar a suit to enjoin the State itself simply
because no money judgment is sought. . . . [T]he Eleventh
Amendment, by its terms, clearly applies to a suit seeking an
injunction, a remedy available only from equity."
Cory v. White, ante at
457 U. S.
90-91.
[
Footnote 2/17]
Under the theory of
Ex parte Young, the Eleventh
Amendment does not bar suits against state officers, because, when
a state officer "comes into conflict with the superior authority of
[the] Constitution, . . . he is . . . stripped of his official or
representative character." 209 U.S. at
209 U. S.
159-160. The rationale of that decision has no
application to suits against the State or its agencies. Although an
individual official may be viewed as acting on his own and without
state authority when acting against federal law, the State -- or an
agency of the State -- cannot act other than in its official state
capacity. Similarly, an action for damages against the State, or an
arm of the State, seeks damages that must be paid from the State's
own coffers -- whether the damages come directly from the State's
general fund or from some other state fund.
See Kennecott
Copper Corp. v. State Tax Comm'n, 327 U.
S. 573 (1946) (segregated funds of the State Tax
Commission are state moneys subject to the Eleventh Amendment).
Moreover, the fact that the Board is a corporate entity under
state law does not permit application of the rule in
Ex parte
Young to the Board itself -- as if the Board were an official.
This Court repeatedly has held the Eleventh Amendment to bar suit
against such state corporate agencies.
See Florida Dept. of
Health v. Florida Nursing Home Assn., 450 U.
S. 147 (1981);
Great Northern Insurance Co. v. Read,
supra; Ford Motor Co. v. Department of Treasury of Indiana,
323 U. S. 459
(1945);
Kennecott Copper Corp. v. State Tax Comm'n,
supra.
Hopkins v. Clemson Agricultural College, 221 U.
S. 636 (1911), is not to the contrary. In that case,
suit was brought against a state college
in state court to
recover damages caused by the college's construction of a dyke.
Although the Court discussed the Eleventh Amendment in some detail,
there was simply no Eleventh Amendment question in that case. It
was clear before
Hopkins that the Eleventh Amendment did
not apply to bar review in this Court of any federal question
presented in a suit against a State in
state court.
See Chandler v. Dix, 194 U. S. 590,
194 U. S. 592
(1904).
Cf. University of California Regents v. Bakke,
438 U. S. 265
(1978). Moreover, the
Hopkins Court did not consider the
college's activities in that case to be governmental. 221 U.S. at
221 U. S. 647.
In short, no Eleventh Amendment question was presented to the
Court. The opinion in
Hopkins has never been cited by this
Court for the proposition that the Eleventh Amendment is no bar to
suit against a state corporate agency in federal court.
See
Florida Dept. of Health v. Florida Nursing Home Assn., supra;
Alabama v. Pugh, 438 U. S. 781
(1978);
Parden v. Terminal R. Co., 377 U.
S. 184 (1964).
[
Footnote 2/18]
"[I]n all the cases in which the Supreme Court has articulated
its no-exhaustion rule, the state administrative remedies were
sufficiently inadequate that exhaustion would not have been
appropriate in any event."
Developments in the Law, Section 1983 and Federalism, 90
Harv.L.Rev. 1133, 1274 (1977).
[
Footnote 2/19]
Cf. Fair Assessment in Real Estate Assn. v. McNary,
454 U. S. 100,
454 U. S. 136
(1981) (BRENNAN, J., concurring in judgment) (exhaustion
requirement in 1983 cases can be justified by "a somewhat lesser
showing . . . where . . . we are concerned not with the
displacement of the 1983 remedy, but with the deferral of federal
court consideration pending exhaustion of the state
administrative process").
[
Footnote 2/20]
Of the approximately 30,000 civil rights suits filed in fiscal
year 1981, 15,639 were filed by state prisoners under 1983. The
remainder involved a variety of civil rights suits. Annual Report
of the Director of the Administrative Office of the U.S. Courts 63,
68 (1981).
See Parratt v. Taylor, 451 U.
S. 527,
451 U. S. 554,
n. 13 (1981) (POWELL, J., concurring in result).
[
Footnote 2/21]
The exhaustion requirement in § 1997e only becomes effective if
the Attorney General or a federal district court determines that
the available prison grievance procedures comply with standards set
forth in subsection (b) of § 1997e. As of this date, the Department
of Justice has not certified the inmate grievance procedures of
even a single State.
[
Footnote 2/22]
Senator Hatch offered the same explanation on several other
occasions in the course of the debate.
See 126 Cong.Rec.
9227 (1980) ("Section 7 would establish specific procedures that
would be applicable before the Attorney General could enter into an
action in behalf of an imprisoned or incarcerated person. Such
person would first have had to fully exhaust all internal grievance
mechanisms that existed in the institution in which he was
confined");
id. at 10005 ("Section 7(D) further clarifies
that the administrative grievance procedures established in section
7 are only for the purposes of requiring prisoners to exhaust
internal grievance mechanisms before the Attorney General can
litigate on his behalf").