Do I Have to Exhaust Administrative Remedies?

Exhaustion of administrative remedies can be required by statute or through judicial precedent. The answer to the question of whether you have to exhaust really depends on what your goal is and how you want to go about achieving your goal. When in doubt, EXHAUST.  For individuals in the custody of the Federal Bureau of Prisons (BOP), there are several administrative procedures that may need to be exhausted depending on the nature of the issue and suit that you may seek to pursue. 

If I want to sue the BOP and some officers, do I have to exhaust administrative remedies and where can I find out what is required to exhaust administrative remedies?

Pursuant to the Prison Litigation Reform Act of 1997 (PLRA), Title 42 U.S.C. § 1997e(a), “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”[1] Congress did not define the term when it required exhaustion of available remedies through the passage of the PLRA.  That is not surprising as exhaustion of administrative remedies was a requirement (though much weaker) in the Civil Rights of Institutionalized Persons Act (CRIPA), §7, 94 Stat. 352 (1980), which was the precursor to the PLRA.[2]  

The PLRA does not require a specific administrative grievance procedure to exist.  Instead, it says that when the government has established an administrative grievance process and it is “available” then it must be followed. 

The BOP's general procedure for filing and exhausting administrative remedies can be found in BOP Program Statement 1331.18, Administrative Remedy Program (Jan. 6, 2014). There are ordinarily four steps required to complete the process.[3] The first step requires informal resolution.  The procedure for completing the informal resolution step can be found in the local Institution Supplement (which can be obtained from the institution law library) and the Admission and Orientation Handbook the inmate is provided when they arrive at the facility. 

IT IS CRITICAL that you initiate the administrative remedy process right away.  You have only fifteen (15) days to get through the informal resolution process and initiate the formal Request for Administrative Remedy. This step of the process can vary by institution, but generally involves the inmate obtaining an informal resolution form from their Unit Team.  The second step is the Request for Administrative Remedy that is submitted (usually through the Unit Team) to the Warden (submitted on what is commonly called a BP-9 form).  The third step is the appeal of the response or lack of response from the Warden to the Regional Office (submitted on what is commonly called a BP-10 form).  The final step is the appeal of the regional response to the Central Office (submitted on what is commonly called a BP-11 form). 

The PLRA is not the only statute requiring exhaustion of claims which may be the subject of suit by federal prisoners.  Prisoner litigation often seeks to raise both civil rights / constitutional claims and negligence claims. The administrative remedy process provided for through BOP Program Statement 1331.18, and its associated regulations must be followed to bring civil rights / constitutional claims.  But if you are also seeking to pursue a tort claim (like those arising from negligence or recklessness), you must also follow the procedures the BOP has established for the processing of claims under the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et. seq. The agency regulations and policy governing FTCA claim processing can be found in BOP Program Statement 1320.06, Federal Tort Claims Act (08/01/2003) on its website.[4]

The Administrative Procedures Act, 5 U.S.C. § 704, does not have a mandatory exhaustion requirement, but exhaustion is required to bring an APA claim if the statute or regulatory scheme requires it.[5] Habeas claims brought under 28 U.S.C. § 2241, are not subject to a statutory exhaustion requirement but are ordinarily subject to a judicial exhaustion requirement.[6]  For both of these types of claims, you should follow the administrative grievance procedures provided through BOP Program Statement 1331.18, Administrative Remedy Program (Jan. 6, 2014).

The Freedom of Information Act, codified at 5 U.S.C. § 552, requires appeal prior to resorting to litigation.[7] The FOIA regulations which govern BOP FOIA processing can be found at 28 C.F.R. § 16.8.[8] It has a separate appeal process that should be followed.

Where can I get help navigating the BOP administrative remedy requirements?

Your legal counsel can help you to identify which administrative remedy procedure(s) you should or would be required to complete before filing a suit.  Your counsel can assist you in drafting the language for your administrative grievance and appeal submitted under Program Statement 1331.18, but you must submit the forms directly and you must sign the form. For administrative tort claims, your counsel can file on your behalf, provided your counsel can demonstrate you have authorized them to act on your behalf.

You can also ask your counsel to reach out to The Law Office of Jennifer M. Merkle for a consultation about these issues.  You can reach Jennifer by completing the contact form at www.jmmerklelaw.com or emailing her at [email protected].

[1] 42 U.S.C. § 1997e(a).

[2] Woodford v. Ngo, 548 U. S. 81, 84 (2006).

[3] See Program Statement 1331.18, Administrative Remedy Program (Jan. 6, 2014) at 1330_018.pdf (bop.gov).

[4]  Program Statement 1320.06, Federal Tort Claims Act (bop.gov)

[5]  Darby v. Cisneros, 509 U.S. 137 (1993).

[6]  See e.g., Boumediene v. Bush, 553 U.S. 723, 793 (2008); Timms v. Johns, 627 F.3d 525, 531 (4th Cir. 2010); Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012); and Skinner v. Wiley, 355 F.3d 1293, 1295 (11th Cir.), cert denied, 124 S.Ct. 2112 (2004).

[7]  5 U.S.C. § 552(a).

[8]  For more information on BOP FOIA processing, check out Freedom Of Information (bop.gov).