After Leon Thomas was subjected to despicable conditions of confinement in a non-ADA compliant solitary confinement cell, despite demonstrated and severe physical challenges including a transtibial amputation, he sued officials of the Federal Bureau of Prisons. The DOJ asserted failure-to-exhaust when answering Mr. Thomas’ complaint only to disavow it 16 times during the course of the eight years it litigated the case on the merits. Weeks before trial, long after the BOP had lost an interlocutory appeal in the Ninth Circuit and long after Mr. Thomas could cure any exhaustion defects, the DOJ argued for only the second time that Mr. Thomas had filed his case several weeks before the BOP issued its fourth and final grievance denial.
The district court criticized the government’s conduct but felt constrained by its erroneous belief that exhaustion is a jurisdictional element rather than an affirmative defense that can be waived or estopped. On appeal, we argued that the DOJ had waived the opportunity to assert exhaustion because it disclaimed the defense for years. Several former DOJ officials filed an amicus brief in support of our client, in which they issued a blistering critique of their former colleagues’ conduct. The Ninth Circuit agreed with us.
With this result the Ninth Circuit has joined the Second Circuit in holding that the government waives the right to kick a case out of court on the basis of exhaustion when its litigation conduct indicates that it has abandoned the defense.