dissenting.

Certiorari was granted in this case, 423 U. S. 923, to consider the questions:

“1. Whether the United States Court of Appeals for the Fourth Circuit erred when it held that exhaustion of state administrative remedies was not required in an action brought pursuant to 42 U. S. C. § 1983.

“2. Whether the United States Court of Appeals for the Fourth Circuit erred when it reversed the judgments of the District Court in McCray v. Burrell, #74-1042, and McCray v. Smith, #74-1043, based on a finding that Respondent McCray’s Eighth and Fourteenth Amendment rights were violated under the circumstances of those cases and remanded for determinations on the merits.” Pet. for Cert. 2-3.

Following the grant of the writ of certiorari, the parties fully briefed and orally argued these questions. The result of their efforts is today’s one-line order dismissing the writ of certiorari as improvidently granted. That order plainly flouts the settled principles that govern this Court’s exercise of its unquestioned power to dismiss writs of certiorari as improvidently granted.

We have held that such dismissals are proper only when the more intensive consideration of the issues and the record in the case that attends full briefing and oral argument reveals that conditions originally thought to[*474] justify granting the writ of certiorari are not in fact present. “ [C] ircumstances . . . 'not . . . fully apprehended at the time certiorari was granted/ ” The Monrosa v. Carbon Black Export, Inc., 359 U. S. 180, 183 (1959), may reveal that an important issue is not in fact presented by the record, or not presented with sufficient clarity in the record, or compel the conclusion that “the standards governing the exercise of our discretionary power of review upon writ of certiorari [such as] . . . 'special and important reasons’ for granting the writ. . ., as required by Supreme Court Rule 19,” are not met. Rice v. Sioux City Cemetery, 349 U. S. 70, 73 (1955). See R. Stern & E. Gressman, Supreme Court Practice 227-230 (4th ed., 1969). No such circumstances have been revealed upon plenary consideration of the legal claims and record in this case; certainly the parties have neither argued nor suggested any. Nor does the Court so explain its action; rather, recognizing the impossibility of any such attempt, it simply orders the writ dismissed. I can only conclude that in today’s action- — • an action which renders our discretionary jurisdiction an essentially arbitrary jurisdiction — the Court is not pursuing our “duty to avoid decision of constitutional issues” only where reason and principle justify doing so; rather, this is plainly an instance where “avoidance becomes evasion.” Rice v. Sioux City Cemetery, supra, at 74.

Further, a Justice who originally voted to deny the petition for writ of certiorari is, of course, privileged to participate in a dismissal as improvidently granted that is justified under the Monrosa standard. See Ferguson v. Moore-McCormack Lines, 352 U. S. 521, 559 (1957) (Harlan, J., concurring and dissenting); United States v. Shannon, 342 U. S. 288, 294 (1952). But I hold the view that impermissible violence is done the Rule of Four when a Justice who voted to deny the petition for certiorari participates after oral argument in a dismissal[*475] that, as here, is not justified under the governing standard, but which rather reflects only the factors that motivated the original vote to deny. Ferguson v. Moore-McCormack Lines, supra, at 559-562 (Harlan, J., concurring and dissenting). In this circumstance, I share the view stated by Mr. Justice Douglas, dissenting in United States v. Shannon, supra, at 298:

“A Justice who has voted to deny the writ of certiorari is in no position after argument to vote to dismiss the writ as improvidently granted. Only those who have voted to grant the writ have that privilege. The reason strikes deep. If after the writ is granted or after argument, those who voted to deny certiorari vote to dismiss the writ as improvidently granted, the integrity of -our certiorari jurisdiction is impaired. By long practice — announced to the Congress and well-known to this Bar — it takes four votes out of a Court of nine to grant a petition for certiorari. If four can grant and the opposing five dismiss, then the four cannot get a decision of the case on the merits. The integrity of the four-vote rule on certiorari would then be impaired.”

I would reach the merits and affirm the judgment of the Court of Appeals.