First, there is the complaint. And in the complaint is a short, plain, statement of the claim. But you have a defense—the plaintiff didn’t complain to the government agency first, and the plaintiff has to exhaust their administrative remedies. If the other side didn’t address this in the complaint can you get the complaint tossed? Well, unless the statute makes exhaustion jurisdictional, then exhaustion is an affirmative defense, not a prerequisite to filing suit. Federal Rule of Civil Procedure 8(c) states that “[i]n responding to a pleading, a party must affirmatively state any . . . affirmative defense . . . .” So you don’t get to write that motion to dismiss just yet—but you better read over that draft answer and make sure you’ve included your exhaustion defense.

As one example, the Second Circuit recently decided whether failure to exhaust administrative remedies must be pleaded in a Title VII suit. Curtis Hardaway sued the Hartford Public Works Department alleging retaliation and discrimination after he filed several OSHA complaints then was fired. The District of Connecticut held that, because Hardaway had failed to plead administrative exhaustion, the court had to dismiss his claim. Hardaway appealed (pro se) and the Second Circuit reversed.

The Second Circuit held that Title VII’s exhaustion requirement was an affirmative defense. Both the Supreme Court and the Second Circuit had already held that Title VII’s exhaustion requirement could be waived, estopped, and tolled—a good indication that it’s not jurisdictional. (The Supreme Court did some welcome brush-clearing on what’s jurisdictional and what’s not last year—you can read about it here). And if you look at the statute as well as the cases, “[t]he statutory scheme makes no mention of pleading requirements or question of proof relating to exhaustion.” Hardaway might not have pleaded exhaustion, but because Title VII exhaustion is an affirmative defense it wasn’t Hardaway’s job to plead it—it was Hartford’s.

The Second Circuit’s opinion is here.