Judge or Jury: Who Decides Threshold Exhaustion Questions Under the PLRA?

Who decides? The answer to this fundamental question matters not only for the allocation of power among our different branches of government, but also for the allocation of authority within each branch too.

Nowhere is this more apparent than in the division of authority within the judicial branch between judges and juries.

The Supreme Court recently addressed this issue in Perttu v. Richards by holding via a 5-4 decision (with an unusual lineup) that the Prison Litigation Reform Act of 1995 (PLRA) requires that a party receive “a jury trial on PLRA exhaustion when that issue is intertwined with the merits of a claim protected by the Seventh Amendment.”

But before diving into the Court’s convoluted explanation for its decision, it’s important to step back and to first understand a few background principles.

Division of Labor Within the Judicial Branch

Any first-year law student can explain that judges generally decide questions of law while juries decide questions of fact. That’s true, but it’s not quite the full story.

If we go all the way back to medieval England, separate courts developed to deal with legal and equitable actions. The former involved common-law principles where juries resolved factual disputes, while the latter involved actions where a judge (the infamous Lord Chancellor) heard and decided cases based on principles of fairness (equity) without a jury’s involvement.

The Framers of our Constitution vested federal courts with the power to hear both types of disputes—“all Cases, in Law and Equity”—though the Seventh Amendment quickly clarified that for all “Suits at common law” exceeding twenty dollars, “the right of trial by jury shall be preserved, and no fact tried by a jury, shall otherwise be re-examined in any Court of the United States, [other] than according to the rules of the common law.”

Still, questions have come up about what types of disputes judges alone can resolve versus what types of disputes juries must resolve—especially when a party pursues both legal and equitable claims.

Prison Litigation Reform Act and The Facts of This Case

Against this backdrop, Congress passed the PLRA in 1995 in part to stem the tide of frivolous prisoner lawsuits that crowded out the meritorious ones. As part of this effort, Congress required prisoners to exhaust “such administrative remedies as are available” before filing a federal lawsuit. But the Court had previously held that an administrative process is “unavailable” for PLRA purposes when a prison administrator “threaten[s] individual inmates so as to prevent their use of otherwise proper procedures.”

And here, Michigan inmate Kyle Richards alleged that’s exactly what happened. He accused corrections employee Thomas Perttu of sexually harassing him and then retaliating against him—in violation of the First Amendment—by destroying his grievances. When Richards filed his federal lawsuit seeking money damages, Perttu pleaded that the suit couldn’t be brought because Richards had failed to exhaust his administrative remedies. No records of any grievances existed. A magistrate judge held an evidentiary hearing and agreed with Perttu, finding that Richards’s witnesses who testified about the supposed retaliation and grievance destroying “lacked credibility.” The magistrate judge “recommended the case be dismissed without prejudice for failure to exhaust,” and the district court “adopted the recommendation.”

But the Sixth Circuit reversed, holding that “the Seventh Amendment requires a jury trial when the resolution of the exhaustion issue under the PLRA would also resolve a genuine dispute of material facts regarding the merits of the plaintiff’s substantive case.” And here, as the Supreme Court explained, all parties agreed “that the exhaustion and First Amendment issues are intertwined, because both depend on whether Perttu did in fact destroy Richards’s grievances and retaliate against him.”

Statutory Silence and Background Principles

While the Supreme Court agreed to hear the case, Chief Justice John Roberts, joined by Justices Kagan, Sotomayor, Gorsuch, and Jackson, ducked the constitutional question, instead finding that the PLRA itself—even though the statute is silent on the subject—compels that a jury resolve the factually intertwined questions related to exhaustion.

Roberts explained that “PLRA exhaustion is a standard affirmative defense” that is subject to “the usual practice under the Federal Rules.” And that when Congress enacted the PLRA, “it was well established that when a factual dispute is intertwined with the merits of a claim that falls under the Seventh Amendment, that dispute should go to a jury, even if it requires judges to defer determinations they would ordinarily make on their own.” And, Roberts said, “nothing in the PLRA suggests Congress intended to depart from that practice here.”

Justice Amy Coney Barrett, joined by Justices Thomas, Alito, and Kavanaugh, dissented and savaged the majority’s holding and rationale. She lamented that instead “of resolving the constitutional question that the parties brought,” the majority instead took a “detour” and read “the PLRA’s silence to implicitly confer a right to a jury trial.” In the past, she said, congressional silence had been read in just the opposite way. As a result, in her view, the ruling “contravenes not only basic principles of statutory interpretation, but also several of this Court’s precedents.”

Interestingly, Barrett acknowledged that while the parties did not ask the Court to consider, and the Court rightfully did not agree “to determine whether the Seventh Amendment requires jury trials for all disputes about exhaustion,” resolving such a dispute would require the Court “to confront challenging historical and methodological questions,” such as: “Did the Seventh Amendment constitutionalize common-law pleading rules? Does Congress have the authority, after the merger of law and equity, to fashion novel defenses as ‘equitable’? [And] [w]hat presumption applies when the historical evidence is ambiguous?”

But since the Court did not answer those questions—and did not need to—they remain for another day.

And while the Court here (perhaps wrongfully) resolved the “who decides question” as between the judge and the jury, larger questions loom about whether anyone decided anything—and what background principles courts should apply when trying to answer that question—when Congress remains silent on a particular topic in a statute.