Transcript

IN THE SUPREME COURT OF THE UNITED STATES

JOHN J. McCARTHY, Petitioner v. MR. MADDIGAN, et al.

No. 90-6861

December 9, 1991

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:03 a.m.

APPEARANCES:

PAUL M. SMITH, ESQ., Washington, D.C.; on behalf of the Petitioner.

MAUREEN E. MAHONEY, ESQ., Deputy Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Respondents.

PROCEEDINGS

10:03 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument now in No. 90-6861, John J. McCarthy v. Mr. Maddigan.

Mr. Smith.

ORAL ARGUMENT OF PAUL M. SMITH ON BEHALF OF THE PETITIONER

MR. SMITH: Thank you, Your Honor. Mr. Chief Justice, and may it please the Court:

This case involves a Bivens action that was dismissed on the grounds that the Federal prisoner who brought the action had not exhausted the Bureau of Prisons grievance procedure.

Now, in seeking reversal of that ruling, we are not contending that Bivens plaintiffs could never be required to exhaust an appropriate administrative procedure. Here, however, there are two key features of the existing grievance procedure that in our view make it fundamentally ill-suited to being the first stage of Bivens litigation by Federal prisoners.

First, that grievance process provides no remedy whatever to a potential plaintiff seeking compensation for a past constitutional injury. Second, the procedure contains a series of mandatory hurdles, beginning with a 15-day filing deadline, that create a very high risk of inadvertent forfeiture of constitutional claims.

Now, these features of the grievance process are not surprising in light of its origin. What we have here is a process that was created to provide an informal outlet for any and all inmate complaints. It's not limited to legal claims, it contains no standards that have to be applied, and it creates no right to anything other than a written response. It's basically an opportunity for a dialogue with prison administrators.

QUESTION: If there is an adequate administrative remedy, then is there a Bivens option at all?

MR. SMITH: Well, Your Honor, I think there could be a situation where you would have an administrative remedy that would be adequate enough to justify exhaustion, but not so comprehensive that you would want to give it --

QUESTION: Have we had a situation like that?

MR. SMITH: You haven't. But there's an analogy, certainly, under the Civil Rights for Institutionalized Persons Act, where Congress has mandated under certain circumstances exhaustion by State prisoners in 1983 actions, but still left in place the opportunity to go to court thereafter. And I think if you had a process similar to what is mandated in CRIPA you could have a process, for example, that offers $2,000 in damages and doesn't have a lot of due process, but still has some reason to exhaust it and still say people should be able to go to court thereafter.

QUESTION: Now this prisoner is no longer in Federal prison, as I understand it.

MR. SMITH: He was transferred to Federal prison temporarily and then went back to State custody. In fact, his term of imprisonment is now over. He's not in prison anywhere at this moment, Your Honor. He left Federal custody last spring.

QUESTION: Is he seeking damages?

MR. SMITH: This case entirely involves damages, Mr. Chief Justice. There was never any claim for anything else in this case.

Now, consider what happens when you take this informal process that I described, this dialogue process, and you import it into the Bivens litigation system and say it has to be pursued in every case where somebody's trying to get to court on a damages claim. Basically what you do at that point is you say, this prisoner who is trying to get compensation for his injury has to exhaust a system that doesn't provide any compensation, and has three tiers of review. And I think it's important to get a little bit concrete about how this works in practice.

Imagine a prisoner like petitioner, who is complaining about the medical care he received in prison. That prisoner might convince the warden that -- the initial level of the three levels of the process -- that he hasn't in fact been getting very good medical care. And the warden might say that in writing in response to the grievance. But the one -- the two things the warden wouldn't do at that point, he wouldn't comment in any way on the legal merits of any constitutional claim for damages, and he certainly wouldn't provide any compensation for any injury received by the prisoner.

So at that point you've got your grievance, you've gotten some kind of a response, even a somewhat favorable response, but what are you supposed to do when you're still just trying to get to court on your constitutional claim? At that point, apparently, you would have to continue exhausting because you haven't received what you're seeking. You'd have to appeal even though you in a sense won at the initial level.

QUESTION: The Government refers to the capacit of the prison to give some money under the Federal Tort Claims Act and says that presents the situation you have described, that they do have the power to give some money Now, does the cause of action of this plaintiff incorporate a Federal Tort Claims Act claim? And is that in fact available?

MR. SMITH: The complaint that was filed in this case, Your Honor, was limited to a Bivens action against the individual medical personnel in the prison. It did not include a Federal Tort Claims Act claim. It could have. The kind of claim he brought, medical malpractice, could be brought under the Federal Tort Claims Act. He would have had to exhaust the entirely separate Federal Tort Claims Act administrative procedure before he could have brought such a claim. And he didn't.

QUESTION: Did the Federal regulations explicitly note that as an exception?

MR. SMITH: The point I would make in response to the Government's argument about how you should file a grievance, because it might give you a settlement under the Tort Claims Act, is you've got two different procedures here; a grievance procedure that says it's not for tort claims, and the procedure for tort claims, which is an entirely different part of the CFR. And what they're saying in kind of a Rube Goldberg thing, is you should go over to this procedure because although it's not for tort claims, we might nevertheless consider it as a tort claim, and on our own initiative offer you a settlement under this other authority over here that you haven't pursued.

And I think there are several problems with that kind of a theory if you're going to make that the basis for justifying exhaustion of the grievance procedure. First of all, the petitioner had no way of knowing that he had this golden opportunity to get a settlement offer for damages by filing under the grievance process, which expressly says it's not for tort claims and it doesn't have any damages in it. So there's kind of a notice problem to begin with.

I also think basically the whole scenario is a little bit implausible. The idea that these Federal prison officials are sitting around taking these grievances that come in and plucking out those that look meritorious and making on their own initiative settlement offers to people that haven't even made any indication that they want to pursue a legal claim for damages, either under the Tort Claims Act or in court, strikes me as unlikely. And if it doesn't happen in any significant number of cases, then it certainly doesn't justify putting everybody through this three-level process.

QUESTION: Why didn't you bring your action under the Tort Claims Act? You didn't think you could win, I suppose.

MR. SMITH: Well, Your Honor, I think the decision was certainly made by a pro se inmate at the time, and I actually don't know the answer to that question.

QUESTION: What would you think now about the Torts Claim Act?

MR. SMITH: Well, there are differences between the two in terms of the relief that's available and --

QUESTION: Yes. What's the standard -- what would you have to prove to win under the Tort Claims Act?

MR. SMITH: In this kind of case you would have to -- in some sense the standard of proof would be less. It would be more of a negligence case than the deliberate indifference standard that you'd have to meet under Estelle v. Gamble in a medical constitutional case under Bivens.

QUESTION: Well, what would the -- you think if you just proved negligence in this case you could win on your Tort Claims Act?

MR. SMITH: If he had brought a Tort Claims Act -- as I understand it, the Government has waived sovereign immunity and therefore, if there was a tort -- State law tort committed by these Federal prison --

QUESTION: Well, why should -- if there's this alternative route to go, why would we put up with a Bivens action?

MR. SMITH: Well that's the -- that whole issue was discussed at length in Carlson v. Green 11 years ago. And the Court indicated in that case that there are differences between the two causes of action, that Bivens claims give you greater deterrence because you can sue the individual wrongdoer, that they don't depend on the vagaries of State law. And sometimes there is no State analog, and you have no claim at all under the Tort Claims Act, or there are exceptions to the Tort Claims Act. There's also no jury trial under the Tort Claims Act, and there's no potential for punitive damages. So those are the four reasons --

QUESTION: That hasn't been regarded as dispositive in other cases where we've had, held -- Bivens claims have been preempted.

MR. SMITH: More recently, Mr. Chief Justice --

QUESTION: This is a suit against Federal prison officials, isn't it?

MR. SMITH: Yes, they were medical officials at Leavenworth Prison in Kansas.

QUESTION: So the Federal Tort Claims Act is available?

MR. SMITH: It's available, sure, but this is not the route that was pursued. And there will be -- many case that could be brought under Bivens that are not overlapping with the Tort Claims Act, although I think this one does. And so one of the things that one would have to do if you're going to eliminate Bivens cases is make sure that you don't eliminate them in situations where the Tort Claims Act --

QUESTION: You think the standard of deliberate indifference would be close enough to intentional conduct to be barred by the Tort Claims Act?

MR. SMITH: Well, the -- as I read the Tort Claims Act it doesn't say we bar all intentional torts, it just bars specific intentional torts like assault and battery and things like that. There probably is room in there for some medical malpractice cases to meet the deliberate indifference test and also still be State law torts that would qualify for the Tort Claims Act. There probably is some overlap, bit it gets very messy trying to figure out how to separate these two sets of claims and make sure that they're covered by both.

The other point I would make about this opportunity that the petitioner allegedly had to get a Tort Claims Act settlement is if that's what we're going to justify exhaustion on the basis of, why don't we just have exhaustion of a procedure that directly addresses the issue of damages? I mean, the only reason we're talking about this grievance procedure is because it's the thing that happens to by lying around in the CFR. But if exhaustion is going to be justified on the basis that somebody ought to have an opportunity to seek damages and this opportunity exists, why not have a procedure that says you can ask for damages administratively and get an answer to your request for damages administratively rather than going into this grievance process, where you don't even know whether the issue of damages was considered or not considered. It depends on the initiative of whatever prison official was responding to a grievance.

QUESTION: But there still may be some benefits though, I suppose, by having a prompt administrative look at the facts.

MR. SMITH: I don't dispute that.

QUESTION: There may be some public benefit to that kind of thing.

MR. SMITH: I don't dispute, Justice O'Connor, the possibility that there are State interests served by having exhaustion of an administrative remedy in this kind of case. The point I would make, though, is that there is no reason why we should serve those State interests without at the same time having features in the procedure that offer a remedy and at the same time don't interfere with the legitimate interests of the prisoner.

Why not -- there's no reason those couldn't be served equally well in a more adequate administrative process.

QUESTION: Well, do we have to look on a case-by-case basis at whether the remedy, the administrative remedy is adequate, or do we take a more global look at it?

MR. SMITH: I don't think it would depend on the individual case. There is no dispute here that in the grievance process there is no compensatory remedy. So if you're talking about a Bivens claim, then I think you can decide that issue and say we're going to exhaust -- we're going to require exhaustion in pure Bivens cases. Where the issue is damages, there ought to be a compensatory remedy of some magnitude available in the administrative process.

QUESTION: Swear a suit against State prison officials.

MR. SMITH: If this were a suit against State prison officials, in most States there would be no exhaustion, because in most States the standards of CRIPA have not been met and the general rule that there's no exhaustion in 1983 cases would apply.

QUESTION: Well, isn't there a Federal statute about exhaustion?

MR. SMITH: Yes, that's CRIPA, the Civil Rights for Institutionalized Persons Act. And it requires that either the Attorney General or a court certify that the State exhaustion -- the State grievance procedure meets certain standards before they will require exhaustion. And as I understand it, it's only about 10 States where that has occurred in most cases.

QUESTION: Well, what about one of those States? You have to exhaust under that statute even though there isn't a damages remedy.

MR. SMITH: As I understand it, Your Honor, that's not right. The court, first of all, has discretion about whether to require exhaustion under CRIPA. And the Attorney General in putting out the regulations in 1980 indicated if it's a pure damages case and the State does not provide compensation, the court shouldn't require exhaustion.

QUESTION: At all?

MR. SMITH: At all.

The other thing about CRIPA is you file your case in court, and then it's held for 90 days. So you don't have this other problem which I want to get to, this potential forfeiture of claims by failure to file the grievance very quickly before you get to court. And I think that is in fact maybe even a more serious problem with this argument for exhaustion in this case, is the deadlines that you have to meet and the hurdles you have to get over, and the risk of forfeiture of constitutional claims that it creates.

I mean, you look at this procedure, you have to file your grievance within 15 days of a constitutional deprivation. And in fact, I think that's an overly generous way of describing it. What the regulations actually say is you have to complete whatever informal grievance resolution procedures the prison may have in place and then file your formal grievance -- all within that 15-day period after the alleged constitutional violation occurred.

At Leavenworth what that in means in practice is you have to file two forms: file an informal form, get a response, and then file your formal form all within 15 days. And then when you lose, which is inevitable if you're seeking damages, since it doesn't provide damages, you have to appeal to the regional level and you have to appeal to the central office of the Bureau of Prisons. The first one has a 20-day deadline, the second one has a 30-day deadline. I submit it's hard to imagine a system that could be better designed to make it likely that people who aren't represented by counsel will make a foot fault and forfeit their constitutional claims.

QUESTION: Did this petitioner comply with the 15-day period, or was he given some sort of excuse or extension?

MR. SMITH: This petitioner went directly to court thinking that he didn't have to exhaust because it was a pure damages claim. It was dismissed. He then went back and tried to exhaust. And his claim actually went up to the second level, the regional level, and was a few days late and was dismissed for being untimely at the second level back in the summer of 1990.

QUESTION: And then he did -- did he then file again or --

MR. SMITH: No, we're just reviewing the initial --

QUESTION: We were talking about the first suit.

MR. SMITH: Yeah. It was dismissed for failure to exhaust. What he argued to the court in the district court was essentially what we're arguing here, that because it's a damages case, exhaustion shouldn't be required, as several circuits have held.

QUESTION: Well, suppose he had included in the complaint injunctive or declaratory relief as a prayer?

MR. SMITH: If he included that --

QUESTION: Now there it might make a difference for administrative procedure. But would you still be here arguing that the 15-day deadline makes it inadequate even if injunctive relief were sought?

MR. SMITH: I think that the consensus in the lower courts is that in an injunctive case you do have to exhaust because there's clearly a remedy. They can stop doing whatever they're doing. And the 15-day deadline is also a much less serious problem in the case involving prospective relief because if they're doing something every day, and you miss the deadline, you can just file it again. There's no forfeiture problem when -- because the clock essentially keeps running continuously for an ongoing problem as to which you're seeking prospective relief. So both the forfeiture problem and the remedy problem are quite different in an injunctive case, and that's why I think it's clear that no court has ever held that you should be able to go and seek an injunction against Federal prison conditions without trying to --

QUESTION: Mr. Smith, I'm not sure you've answered Justice O'Connor's question. What is your view about a mixed complaint?

MR. SMITH: Okay. A mixed complaint, I think, ought to be held as well. I think that that probably is the right way to handle it, that if you have both, you ought to go ahead and file.

Now, there could be different ways to handle it. It does get messy. For example, someone might file a damages complaint and then still seek prospective relief from the grievance process and kind of split his claim that way. And it does get messy. I think the right way to handle that, frankly, is to have a grievance process that has some compensation in it and make everybody with every kind of complaint exhaust it.

QUESTION: I know, but we don't have that now. What about a mixed -- I'm still not quite clear. What should a judge do with a mixed complaint in which damages are sought and there's been no exhaustion?

MR. SMITH: I guess my view, Justice Stevens, would be that the court ought to hold on to the damages element of the case and tell them to go exhaust on the prospective relief and come back and then litigate the case at that stage so that there's no waste of judicial resources at the same time that the case is held at the district court level.

Now, this kind of maze that you have to go through, it seems to me, is the kind of thing that this court would never tolerate in any other context. And I would point out that one thing that it does is it creates severe discrimination against Federal constitutional claims vis-a-vis State law claims. For example, a prisoner who wants to bring a common law claim under the Federal Tort Claims Act has 2 years by statute to file his initial administrative form. But if he wants to bring the same complaint under the Constitution under Bivens, he has this 15-day deadline.

And this Court has many times noted, certainly in Wilson v. Garcia and Felder v. Casey and elsewhere that in the 1983 context such discrimination against Federal claims is a severe problem in examining the kinds of statute of limitations that might or might be borrowed from State law in the 1983 context.

QUESTION: What you're comparing with here, though, is two Federal claims: one under the Federal Tort Claims Act and the other under the Constitution. The fact the Federal Tort Claims Act may subsume some State law claims doesn't make it any less a Federal remedy.

MR. SMITH: That may be. I guess -- the Federal Tort Claims Act can be viewed as a Federal remedy or as a waiver of sovereign immunity on State claims. And I guess in some sense it is a Federal remedy, certainly because it creates a different defendant, the United States, rather than the individual tort feasor. That's true. The underlying issues, though, certainly are State law tort issues.

QUESTION: Why couldn't we hold that you have to exhaust for that as well, so even though it has a 2-year statute, if you haven't -- if you rendered it impossible for you to exhaust, you're out of court?

MR. SMITH: Well, what the statute says --

QUESTION: Is that possible?

MR. SMITH: What the statute says is that you have 2 years to file your administrative claim with the agency that administers your -- that involves the torts. So I think it would be difficult for this Court to require some prior administrative filing under the Federal Tort Claims Act because the statute is quite clear that you have that 2-year period for your initial administrative filing.

QUESTION: Can you give us some examples of Bivens claims that would not have a counterpart under the Federal Tort Claims Act?

MR. SMITH: Sure. There are, for example, intentional assaults under the Tort Claim -- are not covered under the Tort Claims Act. There is an exception for law enforcement officials who do commit intentional assaults, that is covered. So the question then is what are prison guards, what are prison medical doctors? Are they law enforcement people? And that's an unsettled question.

Discretionary functions are not covered under the Tort Claims Act, and they could still give rise to constitutional claims -- if you were put into maximum security for some punitive reason related to your exertion of First Amendment rights, things like that. There are others, as well. But there certainly are some cases.

Now, I want to recognize again that first of all, there's legitimate concern in all courts about frivolous prison litigation and the number of cases that are being filed. The point I would make about that is that this maze of hurdles that you have to go through is not a legitimate response to that. First of all, who's going to be injured by it? Not the person who files 25 cases a year, who's a litigious prisoner. It's the unsophisticated prisoner who may have a very serious injury, but may not realize for a few weeks or months that he has a constitutional claim, at which time it will be too late.

QUESTION: Well, you do concede then that the Government, with a properly drawn regulation under its existing statutory authority, could require an exhaustion process for a Bivens claim?

MR. SMITH: I don't believe the Government could require. I do think the Government could create an appropriate process and ask this Court to require it as the institution that controls Bivens procedure in the absence of action by Congress.

I don't know that an executive official can put out a regulation that says, in constitutional litigation here's the route you have to follow. But I think if they create a procedure that's available that provides some compensation and gives you fair deadlines to meet and not lots of hurdles to cross over, this Court, I think, could reasonably at that point, even without action by Congress, require exhaustion.

QUESTION: Well, would there be statutory authority for such a properly drawn regulation?

MR. SMITH: Certainly there would be no problem with them creating a procedure that doesn't have a 15-day deadline and three levels of review. Whether they have statutory authority to provide monetary compensation on Bivens claims at the administrative level before they're filed in court is an issue on which I -- perhaps they could provide a better answer than I can, Your Honor. I think they probably could because they already have a regulation that seems to provide settlements to, in cases involving Federal employees, after they're in court -- that's 50.15, 28 CFR. And I don't know that there's any statutory authority for that either. So I assume they could probably back that up to the administrative level if they wanted to and create an analog to the Federal Tort Claims Act administrative procedure for Bivens claims.

Indeed, they probably could be built in together. You file in one place for both kind of procedures. You get an answer, we'll give you some money or we won't at that point, and then go to court. I think they probably have statutory authority to do that.

QUESTION: If Congress decided to do something like the legislation involving State prisons, it could do that.

MR. SMITH: Absolutely. Congress could do that. The only thing that would limit what Congress could do would be constitutional limitations. And I think there might be some if Congress created a procedure that was so unfair that -- you know, if they gave you 20 minutes to file your constitutional claim, or something like that. But other than that, Congress has the authority certainly to do that.

Now, let me just --

QUESTION: You consider a Bivens claim a constitutional claim, not -- it's not a sort of like a negative commerce clause, our guess as to what Congress wants in the absence of different provision by Congress?

MR. SMITH: Well, I guess it is a remedy for a constitutional claim. Clearly, it has to be -- the underlying violation has to be a constitutional claim. Whether or not there's a constitutional requirement that this remedy exists in the absence of Congress, or whether it's a common law decision by this Court --

QUESTION: That's what I had always thought.

MR. SMITH: I think of it as a common law decision by this Court, just as the Court makes decisions in the statutory area or in other kinds of -- or State law courts make in other common law areas, this is the kind of field of Federal common law that has been created to help enforce the Constitution in the absence of congressional action.

QUESTION: And I suppose, though, although you might not -- and I think you gave some persuasive reasons why you should not hold that the Federal Tort Claims Act supersedes Bivens, what about the scheme of remedies provided in Federal prisons? Why -- I mean Congress has a number of statutes that interlock and that give prison officials the right to establish this grievance procedure for violations. Why could not that be interpreted as, in effect, Congress supplanting Bivens remedies with respect to those matters that it's given the prison authorities power to provide for?

MR. SMITH: Well, Your Honor, if there were a procedure created by Congress that provided compensatory relief of a substantial nature and had due process for that claim, I think that would be a situation in which this Court could very seriously consider the issue, as in Bush v. Lucas or Schweiker v. Chilicky, the issue of whether that preempts Bivens claims.

QUESTION: Do you think the Constitution requires monetary relief? I thought you said it was common law that we're sort of filling in the interstices. I thought Congress could abolish that monetary relief if they wanted to.

MR. SMITH: The only point I'm making now is that if you're going to eliminate Bivens on the basis of some remedy that exists, it ought to be a significant remedy, or there at least ought to be some affirmative indication from Congress that it doesn't think there should be compensation, because this Court has already indicated its judgment that compensation is an appropriate remedy. And I would think at that point you'd want to wait for a pretty strong indication from Congress to get rid of compensation all together.

The other point I'd make is it's not like Congress has specifically encouraged grievance procedures or authorized this specifically. This is entirely a creation of Bureau of Prisons under statutes which say things like, you're authorized to run the prisons.

Just one more point about Congress, and then I'll reserve the balance of my time. I do think it's important to recognize that CRIPA does not support exhaustion in this case for the reasons that I said before. CRIPA first of all prevents forfeitures of claims because you file in Federal court first. They then hold the case for 90 days, and say go exhaust there. So you don't have this inadvertent forfeiture beforehand based on some State law deadline for your grievance.

And as I said before, the Attorney General took the view when the regulations under CRIPA were put out, that you don't have to exhaust a futile procedure. If you have a damages claim, and there are no damages available, then you don't have to exhaust. So CRIPA, if anything, supports our side in the case. The point I'd make is ultimately you -- there could be a procedure. It's just that they haven't created it yet. And there's no reason to rush to borrow this one because it happens to be in the Code of Federal Regulations, even though it's clearly inadequate for the reasons I've stated.

Thank you.

QUESTION: Thank you, Mr. Smith.

Ms. Mahoney.

ORAL ARGUMENT OF MAUREEN E. MAHONEY ON BEHALF OF RESPONDENTS

MS. MAHONEY: Mr. Chief Justice, and may it please the Court:

The dispute in this case really has come down to it's not a question of power. Everyone here is in agreement that this Court has the discretion to require exhaustion of this procedure as part of its power to fashion an appropriate Bivens remedy. The issue really is whether or not the Bureau of Prisons has designed an appropriate grievance procedure. And that issue, we submit, is firmly entrusted to the BOP and its expert judgment about what's going to work in this prison system.

The way that the system is designed is to serve a variety of purposes. And in fact, the petitioner does not dispute that this system does serve very, very important institutional purposes. The 15-day requirement that they say is so prejudicial to the inmate is for the benefit of not only the inmate complaining but also the other inmates within that system. Unless the prison has --

QUESTION: Ms. Mahoney, what if the prisoner is beat up and unconscious in the hospital for 2 weeks?

MS. MAHONEY: Your Honor, that would be -- he would certainly be excused from meeting the 15-day deadline. If I could just describe how the 15-day deadline works, I think it would satisfy any concern that this is somehow --

QUESTION: Are there provisions for excuses?

MS. MAHONEY: Absolutely, Your Honor. The regulations specifically provide that the inmate is to file his complaint, which is a simple one-page statement, within 15 days of the date of occurrence, but that the Bureau of Prisons shall -- and I emphasize shall -- waive that time limit if there is any, quote, "valid reason for delay." And even if there is no valid reason for delay, the Bureau of Prisons would retain discretion to waive the time limits.

QUESTION: Have you ever been in a Federal prison?

MS. MAHONEY: Your Honor, I've been in a State prison. I don't believe I've ever been in a Federal prison.

They do retain the authority to waive the time limits, and as I indicated, it is mandatory if there's any valid reason. In practice, it is liberally applied. In fact, in cases such as Mr. McCarthy's, where the allegation is one of medical negligence, it is the practice of the BOP not to hold them to the 15-day requirement even if they miss it, because of the serious nature of the problems that stem from having doctors who are not carefully treating patients.

And in fact, I'd like to point out that in this case, when Mr. -- the record indicates from the Tenth Circuit that when Mr. McCarthy went back to the prison to try to exhaust his claim, the warden did in fact investigate his claim of medical malpractice, even though it was filed more than 2 weeks late, and did not dismiss it for lack of timeliness. It was only after the petitioner appealed to the regional director 2 days late that it was dismissed, that the appeal was dismissed for untimeliness. But there was an investigation of the facts and it was considered on the merits. And we don't know why Mr. McCarthy --

QUESTION: Well, if the prison did not excuse a delay in filing an administrative grievance, would the Bivens action, then, have to be dismissed by the court for the failure to exhaust in a timely fashion?

MS. MAHONEY: Your Honor, I think it would be up to this Court in its equitable discretion to determine whether the reason for failure to follow the procedural rules established by the system should be excused. That's precisely the type of analysis that this Court has conducted for years in the habeas context. And in cases where there is a deliberate bypass of those procedural rules, the Court has not excused the failure. And I think the same should apply in this case.

QUESTION: Do you think that the procedure, the grievance procedure is adequate when only monetary damages are sought as relief?

MS. MAHONEY: Yes, Your Honor, for a number of reasons. First of all, we have to measure the system in accordance with the way it works in practice. Even though Mr. McCarthy may say he only wants damages, in most cases there are other things that the inmate wants. In this case, he wanted more medication. He wanted different medication. He wanted a new cell. If in fact he had filed his grievance and the warden had decided to give him any one of those things, he probably never would have filed his damage action. And that's what the Fifth Circuit in fact found in the Catalanotto case dealing with 1997(e) procedures. It said even if there is no monetary remedy, we still should require exhaustion because in many of these cases there will be a remedy that satisfies the inmate, even though he claims he only wants damages.

Second, in this case --

QUESTION: Of course, that's pretty speculative on your part, isn't it, Ms. Mahoney?

MS. MAHONEY: No, Your Honor, I don't think it's speculative at all. It's the practice --

QUESTION: I heard you say probably he wouldn't bring his case. Probably.

MS. MAHONEY: Your Honor, the experience of the BOP is that many, many inmates who obtain some sort of relief in the administrative process never file a claim even if they theoretically, or even if they've asked for money to begin with. It simply -- and in addition, Your Honor, they also find that many never file a claim even if they don't get relief. We have to keep in mind that these -- that prisoners often have a motivation to sue for harassment and intimidation and that if we make it easy for them to file a complaint in Federal court against one of their guards or their doctor the day that they have a disagreement with them --

QUESTION: Well, I agree with all that, but nevertheless, you were confronted with the fact there's no provision for damages in a grievance procedure, is there?

MS. MAHONEY: Your Honor, there is the potential to settle the claim. And I will turn to that right now. This works both as -- this procedure works as an opportunity for the BOP to give an administrative remedy such as new medication or changing a cell, but it also works as an opportunity to give them notice of a claim so that they can use their settlement authority to settle the claim if they believe there is some merit or --

QUESTION: Ms. Mahoney, are there any examples in the record that you can call our attention to where the Government has in fact paid money to any prisoners on Bivens claims?

MS. MAHONEY: Your Honor, there is no record in this case to speak of. The Government --

QUESTION: You described the general practice and what happens, but there's nothing in the record. Can you point to any objective support for the proposition that in the past there have in fact been monetary payments on Bivens claims?

MS. MAHONEY: Your Honor, the only thing I can do, I'd be happy to submit something supplemental. I can make a representation to this Court on behalf of the United States that yes, in fact there are claims that have been asserted by inmates in this grievance procedure, that theoretically could have been cast as Bivens claims that have been settled. Because what --

QUESTION: Settled by the payment of money?

MS. MAHONEY: Settled by the payment of money. That's correct, Your Honor. Because the way this works is that the inmate files his notice --

QUESTION: And those claims also could have been brought as Federal Tort Claims Act claims?

MS. MAHONEY: Yes, Your Honor.

QUESTION: Are there any that could not have been brought as Federal Tort Claims Act claims where a Bivens payment of money has been made?

MS. MAHONEY: In settlement or after judgment?

QUESTION: In settlement.

MS. MAHONEY: Not that I know of, Your Honor. I can --

QUESTION: That's, of course, where the problem is critical because there is a category of Bivens claims for which there's no Federal Tort Claims Act remedies.

MS. MAHONEY: Well, Your Honor, if I could --

QUESTION: And if you addressed yourself to that problem, then I find you more persuasive.

MS. MAHONEY: All right, I'll address myself to that one. I think that that category is probably quite small because if we look to the FTCA --

QUESTION: But this case isn't in that category.

MS. MAHONEY: It is in -- excuse me, it is in the category of cases that could be settled under FTCA authority, Your Honor, because this case, while he claims it is a Bivens case, a case of deliberate indifference, it certainly can also be characterized as a malpractice claim, which is --

QUESTION: Well, correct me if I'm wrong, but I thought that in that case the regulation doesn't apply at all because it exempts tort claims.

MS. MAHONEY: Well, Your Honor, there is a separate procedure for tort claims, but it's not that it does not apply. If the inmate brings the grievance to the attention of the prison officials through this administrative remedy process, and they wish to treat it as a claim that could be settled under its FTCA authority, they simply ask the inmate to file an additional form and exercise their authority to settle the claim.

QUESTION: Well, Ms. Mahoney, though, it says in the regulation filings will not be accepted under the administrative remedy procedure for tort claims.

MS. MAHONEY: Your Honor, the way that that has been applied by the Bureau of Prisons is if an inmate says the only thing I want is a Federal Tort Claims Act suit, they will treat it as an FTA suit which has a separate administrative claims process. And let me explain why there's a separate process. Congress established under the Federal Tort Claims Act that there should be administrative exhaustion of FTCA claims, and they provided a variety of aspects of that system. And it has not been up to the Bureau of Prisons to establish its own system for pure FTCA claims. And for that reason those, the pure FTCA claim needs to be -- it's a very similar process, but it has some separate provisions.

QUESTION: Well, do you take the position that this particular claim is a pure Federal Tort Claims Act claim?

MS. MAHONEY: No, Your Honor, he has styled it as both a -- he has styled it as a Bivens action. It's a question of --

QUESTION: Well, do you say that the Federal Tort Claims Act covers his entire complaint?

MS. MAHONEY: No, Your Honor, if he were correct that these doctors engaged in wanton and deliberate conduct subjecting him maliciously to injury, he might well be entitled to damages above and beyond that which he could get in a Federal Tort Claims Act suit. But Your Honor, we're not submitting that he's required to take a settlement under our FTCA authority. He would certainly have the option, if we offered him money -- if we said we can settle your claim and we'd like to do so, he could say no, thank you very much, I have finished my exhaustion, and I'm heading to Federal court because what I want are punitive damages paid out of the pockets of these defendants. He retains that right.

All we are asking for is an opportunity to let the grievance process work, to let us sort through these claims. Let us determine if there is some way to settle it short of coming to Federal court. It's a very quick process, it's an easy process. In the ordinary case, the remedy is complete within 3 months.

QUESTION: Why -- can you tell me, why is it that a Bivens claim can't be categorized as a tort claim?

MS. MAHONEY: No, Your Honor, I'm sorry. This could be categorized as either a Bivens claim or a tort claim. There's an overlap.

QUESTION: Why can't a -- isn't a Bivens claim also --

MS. MAHONEY: Oh, under our regulation?

QUESTION: Yes. Why isn't it that a Bivens claim can't be thought of as a tort claim under your regulation?

MS. MAHONEY: Because simply, it could be except that it's not. The BOP established this regulation and it's interpreted its own authority, and it has consistently interpreted it to apply to any claim relating to any aspect of imprisonment, except for those claims in which a prisoner says I want an FTCA remedy only.

QUESTION: Did it make that -- did it change that interpretation after Congress passed the 1983 grievance process statute?

MS. MAHONEY: No, Your Honor. It has been using the regulation in this way for --

QUESTION: It has been consistent at all times?

MS. MAHONEY: Your Honor, I don't want to say that it's been consistent at all times. I don't know enough about what other things may have happened in the past, but I can say that there has been a persistent effort to require inmates to bring any kind of grievance that they have, whatever it relates to through this process, because it serves such important interests of the institution to get notice within 15 days to investigate it and to serve its purposes.

I don't think that this inmate --

QUESTION: Why wouldn't the regulation be rewritten to make that clear if that's the situation?

MS. MAHONEY: Your Honor, if that's what required, BOP certainly would do that. But I think that that would be sort of an unnecessary hurdle at this point. There's no indication that this inmate, that Mr. McCarthy did not understand that the BOP in fact required him to bring this claim under his administrative -- under the administrative grievance process.

And in fact, when he filed his Federal action -- the Tenth Circuit's been quite clear on it, Your Honor, for more than 10 years since Brice v. Day. So this inmate knew, and in fact he fully briefed the issue of the exhaustion cases in other circuits at the time that he went to Federal court. In addition, the judge in this case dismissed his claim for failure to exhaust, telling him he needed to go exhaust before his 15 days had even expired. So he didn't lack notice that he was required to do it. And when he filed his grievance with the warden, they didn't reject it because it was a tort claim. They went ahead and considered it on the merits, had a factual investigation, and responded to him saying that they thought what was appropriate was for him to get psychiatric care, and they were making it available.

So it is clear from this record that they have in fact encouraged inmates to use this grievance system and that it has in practice not worked any undue prejudice. Again, though, if Mr. McCarthy came to the Federal district court, filed a new complaint and said, I didn't exhaust because it was absolutely unclear that I had to resort to that procedure, that would presumably be a reason to provide equitable relief. On this record, though, it is clear that he cannot say that. He knew he was required to exhaust, the court told him so. And the warden went ahead and considered his claim, even though it was 2 weeks late. So I don't think that we have that problem in this case.

QUESTION: What authority does the Bureau of Prisons have to provide monetary relief under this particular procedure where the claim is not under the Federal Tort Claims Act?

MS. MAHONEY: Your Honor, this particular procedure does not spell out what relief will be available and whether it be monetary or nonmonetary.

QUESTION: Oh, I know, but what authority -- where does it get the -- where does the BOP get the authority to pay money?

MS. MAHONEY: The Attorney General has delegated authority to the Bureau of Prisons to settle claims for tortious conduct against Federal prison officials pursuant to the authority under the Federal Tort Claims Act.

QUESTION: Well, I know, but this is -- I just said, what authority is there for a non-Federal Tort Claims Act to give money?

MS. MAHONEY: Well, Your Honor, it's all a question of characterization. Mr. McCarthy could have easily styled this action as an FTCA claim, and certainly in our settlement powers we could characterize it as exactly that. We could say, look, you called this a Bivens action, but what you're really complaining about is the malpractice of our doctors.

QUESTION: Well, I know, but you say that what -- if this plaintiff wants to prove deliberate indifference he might be able to get much more money than the Federal Tort Claims Act, so it would not be a Federal tort claims procedure.

MS. MAHONEY: Well, Your Honor, he would have the option, if he chose to go to Federal court and try to do that. And no, we couldn't pay him a settlement for punitive damages. But if we offered him $2,500 or $5,000 under our FTCA authority, he might well jump at the chance. And in fact, I'd be highly surprised if he didn't, Your Honor. So I think that while he may want to characterize it as a Bivens action when he arrives at the courthouse, that doesn't eliminate the fact that he may be quite content.

QUESTION: I think you still haven't really answered the question. Let me see if I can ask you another one. Assume a claim that could not be characterized as a Federal Tort -- discretionary function or a willful assault and -- there must be a category of a claim that could only be brought as a Bivens action. Could you -- do you have any statutory authority to settle that case for dollars without recasting it as a Federal Tort Claims Act claim?

MS. MAHONEY: Your Honor, I believe that the Attorney General does, but that the Bureau of Prisons does not.

QUESTION: So this regulation really does not authorize a monetary settlement in that hypothetical case, which you say is a very rare case.

MS. MAHONEY: That's correct, Your Honor. And on that point, in terms of it being a very rare case, it is important to emphasize that under the Federal Tort Claims Act, intentional claims for assault and battery by law enforcement officials are still compensable torts and --

QUESTION: Does the Attorney General take the position that correction guards are law enforcement official representatives?

MS. MAHONEY: Yes, Your Honor.

QUESTION: Let me ask you another sort of more basic question. It seems to me that there is some rule making that's going to be required by either this Court -- you're asking the Court to approve a 15-day statute of limitations waivable and so forth and so on. Isn't this whole area something in which Congress could really do a much better job than we could of fashioning the right kind of rules as they've done for State prisoners? Why isn't the right thing to do is to go Congress and get them to draft a statute that will clear up all these problems so we don't have to meet them one at a time?

MS. MAHONEY: Your Honor, I think Congress already delegated the power to the Bureau of Prisons to come up with a system that's workable. And that's why we have --

QUESTION: Why do you suppose they wrote a statute for the States and not the -- you think that the authority was already clearly there?

MS. MAHONEY: Yes, Your Honor, under 18 USC, section 4001, the Congress established that the Attorney General and the Bureau of Prisons would have the authority to establish a system of government for prisons, to control and manage and adopt whatever regulations are necessary. These regulations governing the administrative grievance procedure are really a fundamental part of the government of those prisons. It is of critical importance not just to reduce the need for answering complaints in Federal court, but also to provide a system where prisoners will have some recourse, will have some chance to meet with prison officials to talk about their concerns, and to obtain speedy and effective relief. And that's what this system does, Your Honor.

QUESTION: What if a prisoner gets beat up the day before he's let out of prison?

MS. MAHONEY: Your Honor, if a prisoner gets beat up --

QUESTION: What would his remedy be?

MS. MAHONEY: If he got beat up the day before, I would still believe --

QUESTION: You still say he has to exhaust.

MS. MAHONEY: I would still believe that he would have to exhaust. And the reason I say that, Your Honor, is because this does not benefit just the prisoner. It benefits all the other prisoners who live in this closed environment. If the prison officials do not know that he was beaten up that day, they have no opportunity to take corrective action by disciplining the particular prison guard. It's absolutely vital that they have that notice.

In addition, just as this Court found in Coit, it's very efficient and useful to have a process that requires claims for money damages to be brought to the attention of the agency before the Federal action is filed so that if they think there is any merit, and if they want to settle the claim, they have the opportunity to do that.

And I would submit that the 15-day deadline, which we do not view as a statute of limitations in any sense -- it is simply a procedure that is readily waivable both by the BOP and in appropriate cases by this Court -- serves that function. The 15-day deadline isn't to erect some sort of barrier for inmates with meritorious claims, it's to protect the interest that the system was established for in the first place. It allows for very, very speedy relief which helps to reduce tensions. It also helps to eliminate the harassment suits that might be filed if the prisoner is allowed to go straight to court, when 2 months later he may change his mind.

And in the Bureau's experience this system, including that 15-day deadline has been -- has worked very well. It has not caused forfeiture of rights as the petitioner would suggest. In fact, 97 percent of all of the grievances filed in the last 11 months -- and I think there were some 9,000 of them -- were filed within the 15-day period. The prisoners know how to comply with this rule. The staff helps them.

QUESTION: How long is the -- when did the rule come into effect, Ms. Mahoney? How long have these regulations been in place?

MS. MAHONEY: In the early 1970's, I believe 1974, Your Honor. And I would also note that these regulations, including the 15-day deadline, have been used in the habeas context by the lower Federal courts and they have required that this regulatory system be exhausted before filing an action for habeas under 2241 regarding conditions of confinement.

Therefore, in other words, the horrors that the petitioner is talking about, these artificial barriers, these problems, they simply have not come up. If you do look through the cases of the lower Federal courts, you will not find any significant number of cases dealing with whether or not to waive the 15-day deadline. And again, without that system -- without that time limit, how can we in the Bureau of Prisons insure that this process will be quick and effective so that if they then want to file a judicial action at the conclusion --

QUESTION: Yes, but you don't -- do you require this procedure in a Federal Tort Claims Act situation?

MS. MAHONEY: Your Honor, we don't --

QUESTION: Why doesn't all the policy arguments apply there as well?

MS. MAHONEY: They do, Your Honor. Congress --

QUESTION: But then why don't they -- why don't you insist it? Why don't you impose it? I don't understand.

MS. MAHONEY: The reason that we don't, Your Honor, is because Congress established the procedure for the Federal Tort Claims Act, for the Federal Tort Claims Act remedy. And it did that with all Federal agencies in mind, not with the Bureau of Prisons specifically in mind.

QUESTION: I know, but if you have this wonderful record of the wonderful benefits of 15-day rule, why don't you tell Congress about it and say, let's make this exception for Federal prisons? We'd get tremendous benefits from it.

MS. MAHONEY: Well, Your Honor, in most cases, inmates who want to pursue a Federal Tort Claims Act case will bring -- they also want something else, too. And so they will come and they will file a grievance.

QUESTION: Yes, but they don't have to.

MS. MAHONEY: That is correct, Your Honor, they don't have to. And I think you're right. I think we would like for that to be changed. It simply is a consequence of having a system that was designed --

QUESTION: It's not important enough to ask Congress for its help, though.

MS. MAHONEY: Well, Your Honor, we have been -- as I say, the experience has been that these claims ordinarily will be brought to us. And more importantly, Your Honor, I would also note that while the system is different, it still does require that the claim be brought to the attention of the Bureau of Prisons before it could be filed in Federal court. And that is one aspect of this system that is of great importance.

QUESTION: I realize that, but most of these claims will be Federal Tort Claims Act. You've demonstrated that earlier. And I find it rather surprising that you don't have regulations that would implement the very strong policy arguments you've been making here in that area, which covers most claims.

MS. MAHONEY: Well, again, Your Honor, most of these claims such as this one, even if they may seek an FTCA remedy, they do bring them under this system as well in order to try and obtain some other kind of relief.

In addition, Your Honor, I think that the thing that we really do not want to lose sight of here is that we are talking about a system that has been designed by the Bureau of Prisons based upon its experience and expertise and it has found that it has very, very substantial benefits. The exhaustion jurisprudence of this Court suggests that it is entirely appropriate, even if full relief cannot be given to the claimant, that exhaustion be required in order to accommodate the benefits and the policies of the agency that is adversely affected when exhaustion is not required, and the petitioner in this case doesn't even contest that those benefits apply here.

Therefore, we would submit that it is appropriate to defer to the scheme that's been established by the BOP, and if there are problems associated with a meritorious claim where an inmate believes that he has not had an adequate opportunity to present his claim, this Court still would retain equitable jurisdiction to provide relief in those circumstances.

One last point on the issue of the FTCA remedy. One reason why in the Bivens context it's very important that the 15-day deadline and the process that's been established here be exhausted is that the statute of limitations for Bivens is not uniform. And in some jurisdictions it would only be 1 year. And therefore -- and under the FTCA procedure they would not necessarily exhaust it by the time that statute of limitations would run. So by funneling Bivens -- potential Bivens actions through the administrative grievance procedure, we help to insure the protection of the litigant's rights to ultimately bring that action, even in the States that have the shortest known statutes of limitations.

If there are no further questions.

QUESTION: Thank you, Ms. Mahoney.

Mr. Smith, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF PAUL M. SMITH ON BEHALF OF THE PETITIONER

MR. SMITH: Thank you, Mr. Chief Justice. Just a few quick points. First of all, on the issue of whether or not there can be extensions of time of the 15-day deadline, Ms. Mahoney referred to it as a mandatory requirement that they get extensions. But it's mandatory only where somebody determines that there's a valid reason for the extension. And the regulations provide no standards whatever for what reasons will be considered valid or invalid. So you're left either with two possibilities on this extension of the 15-day deadline. Either it's going to be entirely up to the unguided discretion of the Bureau of Prisons to decide when to give an extension, or -- and Ms. Mahoney suggests this is what would really happen -- you're going to kick this issue over to the courts. And whenever somebody doesn't get the extension, they're going to be in court saying, well I should have gotten it because I had a valid reason, and this Court's going to have to develop a whole new jurisprudence about which reasons are valid and which ones aren't, exactly similar to the habeas situation, which --

All this arises because you have a procedure which was not created with litigation in mind. And if you had a situation -- procedure that was created as a basis, as a possible prelude to litigation, you wouldn't have a standardless provision like we'll give you an extension when you have a valid reason. You'd have something entirely different.

Also on that point, the suggestion was made that this issue hasn't arisen in the courts, and therefore it must not be creating a lot of problems. But the reality is that they only require -- the requirement of exhaustion of the grievance procedure only exists in the Tenth Circuit. In other places the requirement in damages cases does not apply. So people have no reason to end up in court fighting about extensions of time on the grievance process.

On the issue of whether people might be satisfied by some relief other than compensation, and therefore there might be some purpose served by people -- making people go through the grievance process, obviously that is a possibility, but it's not an interest which can justify requiring everybody to exhaust. The respondent's brief says that you still have to exhaust this process when you're out of prison altogether when the only interest it could possibly -- the only interest that you could possibly have is a compensatory interest, but they still want you to exhaust that.

QUESTION: But the argument for doing so isn't a classic exhaustion argument, it's a kind of help the Government argument, really. They're saying this is the way of making sure that the Government is informed that there is a problem, if indeed there is one, and that independent benefit ought to be sufficient to justify it.

MR. SMITH: That is a different argument. I think the problem with that argument from the Government's point of view is they are making contradictory points. First they're saying everybody's rushing off to court to bring these Bivens claims, and at the same time, they're saying they're not getting adequate notice of what's going on in the prison in time to fix it.

The third thing that Ms. Mahoney now says, in the Federal Tort Claims Act situation this doesn't arise because 95 percent of the Federal Tort Claims Act claims do get brought to the grievance procedure within that 2-year period before they go to the Tort Claims Act procedure -- so they're sort of telling us everybody's going to file a grievance, everybody's rushing off to court. But at the same time, that somehow they just don't know what's going on in these prisons and they don't have enough notice about which guard is beating up on people.

I submit to you that the arguments don't make any sense if you put them right next to each other.

The final point about this idea that you're going to get Federal Tort Claims Act monetary settlements, first of all, it ignores entirely the issue of notice. Nobody in any court that I'm aware of has ever suggested until after cert was granted in this case that the reason we were going to go through this grievance process in Bivens cases is because of a monetary settlement you might get under the Tort Claims Act. And every court that's looked at this issue, including the Tenth Circuit, has assumed there's no damages available, that damages is not something that justifies sending people through the grievance process. And petitioner certainly had no reason to know otherwise.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Smith.

The case is submitted.

(Whereupon, at 10:59 a.m., the case in the above-entitled matter was submitted.)