# Penn v. Schtlesinger

> Court of Appeals for the Fifth Circuit · December 18, 1973 · 490 F.2d 700

URL: https://www.frixlaw.com/law-library/cases/8892082

## Case

- **Full name:** Willie PENN, Individually, Etc. v. James R. SCHTLESINGER, Individually and as Secretary of Defense, Etc.
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** December 18, 1973
- **Citations:** 490 F.2d 700; 6 Fair Empl. Prac. Cas. (BNA) 1109; 8 Empl. Prac. Dec. (CCH) 9487; 1973 U.S. App. LEXIS 6398
- **Precedential status:** Published
- **Opinion:** Concurrence by Morgan
- **Judges:** Godbold, Morgan, Tuttle
- **Cited by:** 35 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8892082

## Opinion text

LEWIS R. MORGAN, Circuit Judge
(specially concurring):
Although I agree fully with the reasoning and results of the majority opinion in this case, a few words about the issue of exhaustion may be helpful. Judge Tuttle correctly states that in light of our conclusion that the plaintiffs exhausted all available administrative remedies, it is unnecessary to decide whether exhaustion was required. Nevertheless, it seems clear from existing precedent that in an action under the Civil Rights Act of 1866, 42 U.S.C. § 1981 et seq., exhaustion of administrative remedies is not required.
The question may have remained open after McNeese v. Board of Ed., 373 U.S. 668 , 83 S.Ct. 1433 , 10 L.Ed.2d 622 (1963), since the court held there that resort to the state administrative remedies may well have been futile. However, the more recent decision of Damico v. California, 389 U.S. 416 , 88 S.Ct. 526 , 19 L.Ed.2d 647 (1967), seems to have settled the question, at least for the time being. Both of these decisions related to the failure to exhaust state administrative remedies, while in this case we have a question of resort to federal administrative remedies. However, the policies behind the requirement of exhaustion of state administrative remedies are even stronger than those requiring exhaustion of federal administrative remedies, because of comity considerations. Thus, if state exhaustion is not required, a fortiori, exhaustion of federal remedies should not be required.
It is true that McKart v. United States, 395 U.S. 185 , 89 S.Ct. 1657 , 23 L.Ed.2d 194 (1969), while holding that a failure to exhaust remedies within the Selective Service System did not preclude raising certain defenses in a criminal prosecution for failure to report for induction, included strong language in support of the exhaustion requirement. However, that case cannot possibly be held to have overruled Damico . Therefore, although the wisdom of this exception to the exhaustion requirement has been questioned, 1 we are apparently left with a flat exemption to the requirement of exhaustion in civil rights cases. But see, Eisen v. Eastman, 421 F.2d 560 (2 Cir. 1969).
Although this circuit has followed this rule in some cases, Caldwell v. National Brewing Company, 443 F.2d 1044 (5 Cir. 1971), it has not always done so. Beale v. Blount, 461 F.2d 1133 (5 Cir. 1972). It is this unfortunate inconsistency which creates confusion among the judiciary and the bar. Although this was not the case in which to do so, we should take the earliest opportunity to rationalize and make consistent this confusing area of the law.
. K. Davis, Administrative Laws Treatise, 1970 Supp., § 20.01.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8892082. Public record. Not legal advice.