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July 6, 2006

Getting to Ngo

esterday I asked why there wasn’t more public outcry over the decision in Woodford v. Ngo, which I suggested could effectively end inmate civil rights litigation. A number of commentators offered the answer that the public just isn’t that concerned about the constitutional rights of convicted criminals. Though discouraging, that’s probably true. It makes the decision seem even worse to me, though, because one of the more plausible general principles of constitutional law I’ve encountered is that courts should be more aggressive in protecting the rights of people whose interests are likely to be discounted in ordinary politics.

The other reason that I was so troubled by the decision is that, as I said, this is an issue I’ve been chasing for a while. The story starts back in 2001 when I was an associate with Mayer, Brown & Platt (now Mayer, Brown, Rowe & Maw) in Chicago. One of the great aspects of Mayer Brown’s pro bono program is something called the Seventh Circuit project. Staff attorneys for the Seventh Circuit Court of Appeals screen pro se appeals to identify cases that might benefit from the appointment of counsel; then their descriptions of the cases are passed on to Mayer Brown and associates are allowed to pick cases to brief and argue. I took one called Thomas v. Doyle, which the staff attorney memo said presented what looked like an interesting equal protection issue.

It turned out that the equal protection issue didn’t really exist—the staff attorneys weren’t always that good at figuring out which of the issues the pro se litigants asserted were real. But the state of Wisconsin decided to argue on appeal (having not raised the issue below) that a procedural error Thomas had made while exhausting his administrative remedies barred his civil rights suit.

That seemed like an interesting issue too, so I briefed it and showed up at oral argument fully prepared to discuss it. Or so I thought—about ten seconds into my argument one of the judges interrupted to inform me that a decision they’d handed down two days before had decided the issue against me. (I won’t give the link, but I think the Seventh Circuit has audio recordings of oral arguments, so if you want to spend the time tracking it down you can hear me say “Okay” slowly a couple of times before switching to a procedural argument, which of course didn’t work.)

Not being able to argue the issue was very frustrating to me. While I was still with Mayer Brown I filed petitions with the Seventh Circuit for rehearing en banc and with the Supreme Court for certiorari. Those were denied, not all that surprisingly since the Seventh Circuit was the first court of appeals to squarely decide the issue. Then after I started teaching at Penn I wrote an article about it called Exhaustion Under the Prison Litigation Reform Act: The Consequence of Procedural Error (52 Emory L. J. 1771 (2003)). I used Westlaw to follow the issue as it developed in other circuits, and I consulted on cases where it came up. Eventually a pretty serious split developed, with the 6th and 9th circuits taking what I thought was the right position and the 2nd, 3d, and 11th joining the 7th.

So when the Court granted cert in Ngo, I consulted again with Ngo’s lawyer (another former Souter clerk, who I thought did a very good job) and filed an amicus brief on behalf of law professors.

The basic argument was this. The courts that had said that making a procedural mistake while exhausting administrative remedies prevented a subsequent civil rights suit had relied on an analogy to either habeas corpus jurisprudence or administrative law. In each of those contexts, a litigant who makes a procedural mistake (either in state court, for habeas petitioners, or before an administrative agency, in administrative law) will not be able to get a federal court to hear the merits of his claim. But in each context, the federal court is being asked to overturn the decision that rests on a procedural ground—the decision of the state court or the administrative agency. In the prison litigation context, by contrast, the civil rights suit is not trying to get the decision of prison administrators reversed. The civil rights suit is an original action decided entirely independent of the administrative grievance proceedings; it is not a review of them. And so it shouldn’t matter whether the grievance is denied on the merits or on procedural grounds.

I thought this was a pretty good point. In the Ngo decision, it got three votes (Stevens, Souter, and Ginsburg), which was a little disappointing because I expected Breyer to come along. The majority’s response (in footnote 2 here) was more disappointing; it was that the distinction between original actions and review proceedings was wrong because the Court at one time thought of habeas petitions as original actions. This was so unresponsive (my brief pointed that out, and described the effect of Wainwright v. Sykes and AEDPA as changing habeas petitions from original actions to review proceedings) that it was a little hard to credit as a good-faith attempt to find the right answer.

So the whole experience was a little disappointing, but it does highlight one of the nice things about being a law professor, which is the ability to take issues that you’re interested in and devote yourself to them, rather than whatever a client needs you to think about. Tomorrow I’ll say something about the other issues I’ve been chasing, in fiction and in a book about constitutional interpretation that will be coming out this fall.

Posted by at July 6, 2006 1:50 PM

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Comments

Posted by: MF at July 7, 2006 8:48 AM

Posted by: Kim at July 7, 2006 11:23 AM