dissenting.
Does the new “prisoner civil rights” statute, the Prison Litigation Reform Act of 1996, 42 U.S.C. § 1997e, apply to pending eases? That is the question before us. Passed in April 1996, the statute is jurisdictional in nature. It requires the exhaustion of all “available” state “administrative remedies” by the prisoner before a federal court may entertain and decide his civil rights action. Prior to the enactment of the new statute, no significant incentives existed to deter the filing of state prison petitions raising insubstantial issues, and so in federal courts each year prisoners file thousands of petitions and take thousands of appeals. More than 1,000 such appeals are filed in the Sixth Circuit Court of Appeals each year, and approximately 500 are now pending.
The opinion of the Court that the statute does not apply to pending cases fails even to mention the extensive benefits of the new statute or to acknowledge that those benefits apply just as much to pending cases as to new cases. This narrow interpretation of what could be an extremely useful law deprives prisoners, state corrections systems, state prosecutors and courts of an opportunity to overcome some of the problems with prisoner petitions now flooding the federal courts — -almost all of which are denied without a hearing in the trial or appellate courts.
A system deferring federal court review until completion of the state process of administrative adjudication and judicial review of the administrative decision (if provided by state law) has long been needed. No persuasive reason has ever been given for requiring full exhaustion of state remedies in habeas corpus cases involving life or liberty but allowing direct access in prison rights cases under § 1983. The new statute is therefore a much needed reform with substantial benefits.
*424The reasons for requiring exhaustion in such cases are similar to the reasons for requiring exhaustion of available remedies in state habeas corpus cases involving good-time credits and similar prison regulations, as explained by Justice Stewart in Preiser v. Rodriguez, 411 U.S. 475, 491-92, 498, 93 S.Ct. 1827, 1837-38, 1840-41, 36 L.Ed.2d 439 (1973). “It is difficult to imagine,” he wrote, “an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons”:
The relationship of State prisoners and the State officers who supervise their confinement, is far more intimate than that of a state and a private citizen____ Since these internal problems of state prisons involve issues so peculiarly within state authority and expertise, the States have an important interest in not being bypassed in the correction of those problems. Moreover, because most potential litigation involving. state prisoners arises on a day to day basis, it is most efficiently and properly handled by the state administrative bodies and state courts, which are, for the most part, familiar with the grievances of state prisoners and in a better physical and practical position to deal with those grievances.
[The exhaustion requirement] serves the important function of allowing the State to deal with these peculiarly local problems on its own while preserving for the state prisoner an expeditious federal forum for the vindication of his federally protected rights, if the State has denied redress.
Each of the four states in the Sixth Circuit, Tennessee, Kentucky, Ohio and Michigan, has recently established a prison grievance process for resolving disputes that is certified by the Department of Justice as meeting its criteria for a rational, fair and efficient system of conducting evidentiary hearings and deciding prison disputes. Such deliberative proceedings, based on evidence, a written record and concluding in a written decision subject to review, will give prison wardens, state correction officials, state executive, judicial and legislative leaders, and the public much needed information about the operation of the prison system. The prisoner will have an opportunity to complain, present evidence personally and have others testify before a • neutral tribunal familiar with local prison conditions. Legitimate grievances can be worked out and adjusted at the local administrative and review level before coming to federal court, as currently takes place in criminal cases during the habeas corpus process.
This weeding-out process will tend to reduce the number of such cases that reach the federal courts, as in habeas cases, and improve the quality of the decision making process. The federal courts will have a written record. They will be able to determine whether a constitutional violation has occurred in a more reflective and reliable way without the present bureaucratic necessity of delegating the work in plenary fashion to pro se law clerks at the district court level and to staff attorneys at the appellate level.
In the Thaddeus-X ease alone, Judge Moore’s opinion on the merits of the summary-judgment issue runs to 12,000 words and interprets nearly 100 different court opinions and orders a new trial in the court below that will require many days, perhaps weeks, of evidence from inmates and prison employees. Thaddeus-X, by itself, illustrates the reasons we should require administrative exhaustion and an administrative record before deciding the multiple, confusing, shotgun-type claims filed against the many state defendants in the case.
My colleagues’ opinion avoids any serious consideration of beneficial purposes of the new statute or the policies underlying it. “We emphasize,” Judge Moore says, “that we do not believe that it is our job to weigh policy — that is Congress’s job.” The opinion simply repeats several times in different ways the view that the pending cases will simply come back “before this court again in another two years, after plaintiffs have exhausted their administrative remedies and then gone through the district court for a second time.” As a district judge I would prefer a few cases coming back with an *425administrative record to the Thaddeus-X type result.
Ironically, this prediction that all of the cases will come back in two years is inconsistent with Judge Moore’s stated view that the statute of limitations will probably have run when the cases come back to court. The purpose of the new statute is simply to defer a decision pending exhaustion of remedies, and the running of the statute of limitations would be tolled or suspended during the period of exhaustion, as is uniformly the case in all such administrative eases. This is not a valid argument against applying the new jurisdictional statute to pending eases.
Judge Moore’s opinion on the issue of applying the statute to pending cases consists mainly of citing short excerpts from selected Supreme Court opinions to reach the chosen result — a familiar exercise in contemporary legal argumentation. The opinion ignores the broad purposes of the new statute and the fact that Congress, in employing the doctrine of exhaustion of remedies, has decided to use the habeas corpus model of exhaustion. Even if we use this limited rationale, however, a different conclusion is required. This rationale does not give the language of the new statute and the Supreme Court authorities their most plausible interpretation.
First, the statutory language, “no action shall be brought” until all available remedies are “exhausted,” should be interpreted to mean what is obviously intended — that a federal court should not “decide” the merits of any such action prematurely. Contrary to the interpretation given by Judge Moore, it is obvious that Congress did not literally mean to bar a prisoner from “filing” a complaint in court. The only interpretation of the language that makes sense is that a federal court will not adjudicate the claim until after exhaustion. That is the purpose of the statute — non-adjudication of unex-hausted claims — and it logically applies just as much to pending cases as to any other cases. The activity that the new statute contemplates should now occur — state adjudication of the claim — has not taken place in these cases, and the Court should not now adjudicate either a new or pending case without it.
Second, the language in Landgraf v. USI Film, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), and Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), that Judge Moore cites to reach the chosen result actually supports the opposite conclusion. In the Court case, Congress had recently enacted a new statute setting up the Federal Election Commission and creating for the first time a set of election law administrative remedies. In 1972, plaintiff had filed an action for damages and injunctive relief against Bethlehem Steel and its officials for making illegal corporate contributions to a presidential campaign, and the Court of Appeals had upheld the plaintiffs claim. The new exhaustion of remedies law was enacted after the Court of Appeals ruling. Justice Brennan, writing for a unanimous court, held that the exhaustion of remedies provision of the new statute must be applied to pending cases where the relief, if any, will take place in the future. In the eases now before us, as in Court, no relief has been granted and all relief, if any should be granted in either a judicial or prison administrative proceeding, must take place in the future. Court is specifically cited with approval in footnote 33 of Landgraf v. USI Film, and our Court should have followed its holding in the instant case.
Third, in quoting snippets of Supreme Court language, the lead opinion fails to recognize the significance of language from Landgraf relying on Chief Justice Marshall’s opinion in United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 2 L.Ed. 49 (1801). For almost two centuries, the Supreme Court observes, “we have recognized that, in many situations, a court should ‘apply the law in effect at the time it renders its decision ... even though the law was enacted after the events that gave rise to the suit.’” The Supreme Court then gives as examples of this doctrine a number of cases holding that intervening statutes modifying jurisdiction should be applied to pending eases because “application of a new jurisdictional rule usually ‘takes away no substantive right but simply changes the tribunal that is to hear *426the case’ ” (case citation omitted). In the instant case, our Court fails to recognize that the new statute now before us simply modifies our jurisdiction in § 1983 prisoner cases by requiring exhaustion of remedies. In Landgraf, the Supreme Court also says changes in procedural rules usually apply to pending cases “because rules of procedure regulate secondary rather than primary conduct.” In the instant case the Court again fails to recognize that this new statute changes no “primary” or substantive right but only “secondary” rights governing the tribunal that will first conduct a hearing, make a record and resolve the dispute.
My conclusion is therefore that the purpose and policy underlying the new statute providing for exhaustion of state administrative remedies in prisoner 1983 cases leads to the application of the new statute to pending cases and that the case law since Chief Justice Marshall’s time leads to the same conclusion. Applying the new statute to pending cases will not upset settled expectations or vested rights of any kind. All legitimate interests are served by such a rule — the prisoner with a valid grievance, the states which have created a fair process for adjudicating such claims and the federal courts which are now assigning such cases to pro se law clerks and staff attorneys because we are unable to cope with the volume of such cases or treat them in the same way that we treat regular federal question and diversity cases. The rule created by my colleagues declining to apply a current jurisdictional statute to pending cases is not sensible because it does not serve the interest of any party or the public and does not observe the longstanding values of federalism requiring a due respect for state institutional arrangements. And it certainly does not serve the cause of judicial economy. For these reasons, I do not believe we should exercise jurisdiction in these eases but should remand with instructions to dismiss without prejudice so that the parties can exhaust their administrative remedies under the Prison Litigation Reform Act of 1996.