Petition — Patsy v. Board of Regents of Fla.

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Office -Supréffie Court, U.S.

80-1874 FILED

WAY 7 08)

ALEXANDER L. STEVAS,

IN THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1980

GEORGIA PATSY,

Petitioner,

—l

BOARD OF REGENTS OF THE STATE OF FLORIDA, A BODY

CORPORATE, FOR AND ON BEHALF OF FLORIDA INTERNA-

TIONAL UNIVERSITY,

Respondent.

—_—-- —-—

—_—— —-~ —

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CHARLES S. SIMS

(Counsel of Record)

BRUCE J. ENNIS, JR.

E. RICHARD LARSON

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

132 West 43rd Street

New York, NY 10036

(212) 944-9800

Counsel for Petitioner

Georgia Patsy respecfully petitions for

a writ of certiorari to review the

judgment of the United States Court of

Appeals for the Fifth Circuit in this

case.

QUESTIONS PRESENTED

1. Whether the Fifth Circuit's require-

ment that all §1983 plaintiffs exhaust

state administrative remedies conflicts

with the repeatedly reaffirmed holding by

this Court that exhaustion of administra-

tive remedies in §1983 cases may not be

required.

2. Whether the Fifth Circuit's require-

ment that all §1983 plaintiffs exhaust

state administrative remedies is incon-

sistent with the intent of Congress,

especially the recent enactment of a

carefully tailored, limited exhaustion

requirement in section 7 of the Civil

Rights of Institutionalized Persons Act,

P.L. 96-247, 42 UsSuGe §1997e.

3. Whether the Fifth Circuit erred in re-

quiring plaintiff in a §1983 action seeking

injunctive relief or damages to exhaust

state administrative remedies where the

defendant failed to demonstrate that such

remedies would be plain, speedy, and ef-

fective, and where the agency to which

plaintiff would ultimately be remanded at

the end of the administrative process is

not empowered to grant injunctive relief,

or to grant the damages alternatively

sought by plaintiff.

QUESTIONS TREE bwseceeccesetseeeaessee

TABLE OF AUTHORITIES,

bb e0ee eeesese se eeeenne

OPINIONS BELOW. .cccccccccccccccvecccsvccen

JURISDICTION. .cccccccccccccccccencc.coccee

STATUTES INVOLVED... ..ccceecnveccccseceeed

STATEMENT OF THE CASE,.....cceccvcecsenseed

REASONS FOR GRANTING THE WRIT.....2000009

I. THE DECISION BELOW CONFLICTS

WITH NUMEROUS DECISIONS OF

THIS COURT AND THE COURTS OF

ET ePT TTR TTC TTT ee LL

II. THE DECISION BELOW IS INCON-

SISTENT WITH RECENT EXPRES-

SIONS OF CONGRESSIONAL

OO eee ere ee Te Te Tee

III. THE REMAND ORDER IS INCON-

SISTENT WITH THIS COURT'S

RULING IN MCNEESE v. BOARD

OF EDUCATION, T ’

LEAST, ADMINISTRATIVE EXHAUS-

TION MAY NOT BE REQUIRED UNLESS

THE DEFENDANTS DEMONSTRATE THE

ADEQUACY OF ADMINISTRATIVE

REMEDIES, AND THAT ADMIN-

ISTRATIVE REMEDIES ARE INADE-

QUATE WHERE THE OFFICIALS

AT THE END OF THE ADMINISTRA-

TIVE PROCESS ARE NOT EMPOWERED

TO GRANT RELIEF.......2seeeee0039

iii

Page

CONCLUSION. .cccccccccccccccccccccccc ccc cA

APPENDIX A.ccccccccccccccccccccccccccec cba

APPENDIX B.wcccccccccccccccccccccccccekscd

APPENDIX C..ccccccccccccccccccccccccscldsla

APPENDIX D.wccccciccccccccccccccccccc cbeva

APPENDIX E..ccccccccccccccccccccccccccebsca

TABLE OF AUTHORITIES

Cases: Page

Alee v. Medrano, 416 U.S. 802 (1974.....12

Alyeska Pipeline Service Co. v. Wilder-

ness Society, 421 U.S. 240

ei 7, ) Pr eee 34

Arizona v. California, 373 U.S. 546

CESSES) dn cs dekodieccescatekesktnnweeene

Brown v. General Services Administra-

tion, 46425 UsBi O20 COTE) < ccceonscseee

Burford v. Sun Oil Co., 319 U.S.

315 CESSES is vc cccheveocececcecectansneaenn

Burrell v. McCray, 426 U.S, 471

CL97E) « ciensce cébeceecedsebeneen. 41

Cannon v. University of Chicago, 441

U.S. 667 C2978) 0 600008e6oe6eeuseeene

Canton v. Spokane School District, 498

F.2d 840 (9th Cir. 1974) ..ccccceceelL3

Carter v. Stanton, 405 U.S. 669

COLOTE bh aicciscenessecccoeensaseaanee 12

City of Columbus v. Leonard, 443 U.S.

905 [291 Pbkteecs ono usvanwenee 18, 19

Damico v. California, 389 U.S. 416

EROS Ti cdc ccc ccacecesedeteueneteenesae

Eisen v. Eastman, 421 F.2d 560

(2a Cir. SOTO éndée cs keweondeunowe 14

Page

Ellis v. Dyson, 421 U.S. 426

CRP ePi bee ebhecdacececssevee Se aL, 12

Federal Communications Commission v.

Broadcasting Service Organization,

337 U.S. 901 (it | ) PS ree |

Gibson v. Berryhill, 411 U.S, 564

0. | PP A er Se eet 12

Gillette v. McNichols, 517 F.2d 888

(10th Cir. DG dsstsemackh cebens icone

Gonzales v. Shanker, 533 F.2d 832

(2d Cis. J Ferrers eer rer ee

Hochman v. Board of Education, 534 F.

ee cae Aes: ROTOR bi coeceneseead

Houghton v. Shafer, 392 U.S. 639

Tt ctieee teh en 06 0000066008 00060a8

Illinois v. Milwaukee, 406 U.S. 91

NG ery >

Jenkins v. Brewer, No. 80-5116, 49

U.S.L.W. 3616 (February 23,

4 ae eee & 15, 25, 26, 34

Jones v. Metzger, 456 F.2d 854

(6th Cir. Ds ob59606 66 btn eh owen ne

King v. Smith, 392 U.S. 309 (1968).....12

McCart v. United States, 395 U.S.

185 TARE bce nbbe.6en sees Codec oesseee

McCray v. Burrell, 516 F.2d 357

(4th Cir, 1975), cert. dismissed

as improvidently granted, 426

GT.B. 471 (1975) .ccccccccccccccccsehd

Page

McNeese v. Board of Education, 373

i 668 (29GS) ckkcccceces ce spaSEIm

Milwaukee v. Illinois, 49 U.S.L.W.

4445 (April 28, 1981)........23, 34

Monell v. Department of Social

Services, 436 U.S. 658

bY oy | iP Peer ere ee ee

Myers v. Bethlehem Shipbuilding

Corp., 303 U.S. 41 $5 « } PPR

National Railroad Passenger Corp. v.

National Association of Railroad

Passengers, 414 U.S. 453 (1974)..33

New York Gaslight Club, Inc. v.

Carey, 447 U.S. 54 (1980)........32

NLRB v. Sears Roebuck & Co., 421

U.S. 132 2! 5.) eee & 33

Northwest Airlines v. Transport

Workers Union, No. 79-1056,

49 U.S.L.W. 4303 (April 20,

Pi) ee ae ee 33, 43

Plano v. Baker, 504 F.2d 595 (2d

Cir. BEVEL ap seds ee dseéececoésswtecae

Preiser v. Rodriguez, 411 U.S.

475 og | SA a eres = 21

Railroad Commission v. Pullman

Co., 312 U.S. 496 (1941) ...2222--42

Raper v. Lucey, 488 F.2d 748

(lst Cir. op) I ee ee ee

vii

Page

Secret v. Brierton, 584 F.2d 823

(7th Cir, 1. en oP nee a

Securities and Exchange Commission

Vv. Otis & Co., 338 U.S.

843 CRO cbse 66 66 6.b0s tame sheen

Spector Motor Service v. McGlaughlin,

323 U.S. 101 C2966) cavcdcecuénccouan

Steffel v. Thompson, 415 U.S. 452

CAPTORS 6acrdbdicrcdséstéedeneswnees 12

Stradley v. Andersen, 456 F.2d 1063

(8th Cir. BETO 0006 680 ceVseteiweene

Vermont Yankee Nuclear Power Corp,

v. Natural Resources Defense

Council; 435 U.S, 519 (1978).....33

West Virginia Board of Education v.

Barnette, 319 U.S, 624 (1943) .18,19

Wilwording v. Swenson, 404 U.S, 249

Cee Pabst sc dacktanccsviseencveete il, 12

Wolff v. McDonnell, 418 U.S. 539

CASTE) ocdadeadocccccvedeseosseseone

Statutes:

Civil Rights of Institutionalized Persons

Act, P.L. 96-247, 94 Stat, 349,

codified at 42 U.S.C.

BRON dv 6eedweccccccccO, Abe 26,29

Fla.Stat.Ann. §120.69......2+++39, 40, 41

viii

Page

5 U.8.C. $704. .cccccccccceccccccccccscced

28 U.S.C. $1343 (3) cc cccccccccccccccceced

28 U.S.C. §2401 (bd) ..cccccccccccccccccecad

BS Win. BAPOI sc ccccnccccccccecccsPassim

42 U.S.C. §2000@-5... ccc ccccccccccccceed

Legislative Materials:

H.Conf.,Rep. No. 96-897, Civil Rights

of Institutionalized Persons

Act, 96th Cong. 2a GGGC 6ccssvevteooal

S.Rep. No. 96-416, 96th Cong., 2d

Sess., Senate Judiciary Committee

(Nov. 15 |. er ee

125 Cong. Rec. (daily ed. May 23,

REED eeebwideveccocceals 28, 30, 31

Law Review Articles:

Comment, Exhaustion of State Remedies

in Section 1983 Cases, 41

O Cd Le Rev. 537 (1974) wc cccccccceda

Comment, Exhaustion of State Remedies

Under the Civil Rights Act, 68

Colum.L.Rev. 1201 (1968).......22,.22

Note, Exhaustion of State Administra-

tive Remedies Under the Civil

Rights Act, 8 Indiana Law

MOCaew SES CLOTS) cccccccccccccccesas

° OPINIONS BELOW

The opinion of the Court of Appeals

en banc (App. A at la-122a) is reported

at 634 F.2d 900. The vacated opinion of

the Fifth Circuit panel (App. B at 123a-

126a) is reported at 612 F.2d 946. The

summary order of the District Court

dismissing the complaint for failure to

exhaust administrative remedies (App. C

at 127a-128a) is not reported.

JURISDICTION

The judgment of the en banc Court of

Appeals (App. D at 129a-13la) was entered

on January 22, 1981. On April 3, 1981,

Justice Powell extended the time for

filing a petition for a writ of certiorari

to and including May 7, 1981. Jurisdiction

is conferred on this Court by 28 U.S.C,

§1254 (1).

STATUTES INVOLVED

42 U.S.C. §1983 provides:

Every person who, under

color of any statute,

ordinance, regulation,

custom, or usage, of any

State or Territory, subjects,

or causes to be subjected,

any citizen of the United

States or other person

within the jurisdiction

thereof to the deprivation

of any rights, privileges,

or immunities secured by

the Constitution and laws,

shall be liable to the

party injured in an action

at law, suit in equity, or

other proper proceeding for

redress.

42 U.S.C. §1997e is set forth infra,

App. E at 132a.

STATEMENT OF THE CASE

1. Nearly two and one-half years

ago, on February 7, 1979, Georgia

Patsy filed a complaint in the United

States District Court for the Southern

District of Florida alleging that the

defendant state university, her employer,

had unlawfully denied her employment

opportunities for which she was well

qualified, solely because of her race

(caucasian) and sex. The allegations of

the complaint were specific, noting,

inter alia, that the defendant had main-

tained “files on qualified applicants for

positions by segregating them as follows:

White, Black, Male, and Female, contrary

to federal law and equal employment

guidelines.” (r.-41)2/ Injunctive

and/or monetary relief was sought pur-

suant to 42 U.S.C, §1983, and jurisdic-

tion was properly founded on 28 U.S.C,

§1343(3).

1/ “R.44" refers to numbers at the upper

right corner of the pages of the

Record Excerpts filed by Defendant-

Appellee in the Court of Appeals.

Subsequent to service of an amended

complaint, a motion to dismiss was filed

on June 1, 1979 (R.61) and the District

Court entered an Order on July 9, 1979,

dismissing the complaint "for plaintiff's

failure to allege exhaustion of administra-

tive remedies". App. C at 127a.

2. Plaintiff's timely appeal to

the Fifth Circuit was placed on the

summary calendar pursuant to Fed. R.

App. P. 34 and 5th Cir. Local Rule 18,

and on February 28, 1980, Judge Godbold,

for himself and Judges Reavely and Ander-

son, reversed and remanded for reinstate-

ment of the complaint. App. B at 123a,

The panel rested its conclusion that

exhaustion was not required on what it

considered to be the controlling deci-

sions of Ellis v. Dyson, 421 U.S. 426

(1975), Steffel v. Thompson, 415 U.S.

452 (1974), and Gibson v. Berryhill, 411

U.S. 564 (1973).

3. The Fifth Circuit en banc granted

the defendant's motion for rehearing, and

nearly a year later, on January 22, 1981,

reversed the panel by a vote of 17-7 and

upheld the District Court's conclusion

that plaintiffs in §1983 actions are

required to exhaust administrative

remedies. App A at la-120a.

Weiting for the majority, Judge

Roney dismissed as dicta each of this

Court's repeated statements that §1983

plaintiffs are not required to exhaust.

Because he believed the Fifth Circuit

was free to consider the question anew,

Judge Roney canvassed the policy reasons

in favor of and against an exhaustion

requirement, and concluded that exhaus-

tion would henceforth be required in

all §1983 cases under the general stan-

dards of such cases as McKart v. United

States, 395 U.S, 185 (1969) and Myers v.

Bethlehem Shipbuilding Corp., 303 U.S,

41 (1938). 49a-50a. The panel only

cursorily addressed the question whether

the 42nd Cong~ess intended to require

exhaustion when it enacted what is now

§1983 (38a-40a) and entirely ignored

recent Congressional enactment of a

limited and carefully tailored exhaustion

requirement for a narrow category of

§1983 cases, section 7 of the Civil Rights

of Institutionalized Persons Act, P.L.

96-247, 94 Stat. 349, codified at 42

U.S.C, §1997e. The Court failed to

inquire whether that enactment (of which

it was apparently unaware) was incon-

sistent with judicial imposition of a

different and far broader exhaustion re-

quirement.

When it attempted to apply its new

requirement to the facts before it, how-

ever, the Court found the record inade-

quate to determine "whether state admin-

istrative remedies were adequate in the

context of the rights asserted by plain-

tiff." 55a. Accordingly, the case was

remanded for such a determination, and

for dismissal without prejudice if the

District Court found that plaintiff had

bypassed adequate remedies. Id.

Seven judges joined in three dis-

senting opinions. Judge Rubin, for

himself and four other judges, agreed

that some of this Court's no-exhaustion

statements may have been dictum, but

found Wilwording v. Swenson, 404 U.S,

249 (1971), an insuperable obstacle to

the Fifth Circuit's exhaustion require-

ment. 57a-69a. Judge Rubin also dis~

tinguished the federal administrative

remedies relied onaSamodel by the major-

ity from the myriad state procedures for

which exhaustion would now be required,

noting that “the Congress that enacted

Section 1983 did not have the faith in

state administrative remedies that later

Congresses understandably had in the

federal administrative remedies of their

own creation." 65a-66a.

Judge Kravitch, in a brief dissent,

agreed that only the Supreme Court could

alter its long-established no-exhaustion

rule. 69a. Judge Hatchett, for himself

and four other judges, extensively

canvassed both this Court's precedents

and the policy considerations addressed

by the majority. 70a-120a. Although

he commended the state for creating an

administrative remedy, Judge Hatchett

found that §1983 left to plaintiffs the

decision whether the state or federal

remedy would best enforce the rights at

stake. Examining §1983 in the light of

its legislative history, Judge Hatchett

found that Congress had not intended to

require exhaustion, because the state

administrative bodies had no "expertise"

to apply where federal issues were in-

volved. llla. He also emphasized the

"time-consuming procedural nightmare"

the majority opinion created, the inade-

quacy of the typical state administrative

process in terms of awarding attorneys

fees and maintaining class actions, and

the special inadequacies of the procedure

available to petitioner, 112a-1l15a.

REASONS FOR GRANTING THE WRIT

The exhaustion requirement imposed

by the Fifth Circuit is directly con-

trary to repeated reaffirmations of

the no-exhaustion rule by this Court,

and conflicts with clear and recently

expressed congressional intent not to

require exhaustion in §1983 cases such as

this. It is also inconsistent with the

holding in McNeese v. Board of Education,

373 U.S. 668 (1963), foreclosing exhaus-

tion where the administrative officials

before whom exhaustion must be had are

not empowered to grant relief, but may

(at most) repair to a state court for

enforcement, even if they finally agree

at the end of administrative proceedings

that a grievant's rights have been vio-

lated. A writ of certiorari should be

granted to review each of those conflicts.

Few cases present this Court with

questions as obviously worthy of certiorari

as this. Whether plaintiffs in §1983

actions may be required to exhaust admin-

istrative remedies, and if so, under what

circumstances, is a question which has

occupied the attention of this Court

repeatedly since 1963. But as this case

makes clear, repeated assertions that

courts may not require exhaustion have

plainly not had the intended effect. At

a minimum, certiorari is required to

enforce obedience to law settled by this

Court. Every member of this Court has

indicated that the exhaustion question

or §1983 cases has been long settlea,2/

although some members of this Court have

urged that it is ripe for this Court's

reexamination.2/ The Fifth Circuit's

imposition of an exhaustion requirement

therefore raises an important question

2/ See Burrell v. McCray, 42 U.S.471

(1976) (Stevens, J. concurring); Ellis y.

ae 421 U.S, 426, 432-433 (1975);

Wilwording v. Swenson, 404 U.S. 249, 251

(1971); Carter v. Stanton, 405 U.S. 669

(1972); City of Columbus v. Leonard, 443

U.S. 905 (1979).

3 See City of Columbus v. Leonard, supra.

Rehnquist and Blackmun, JJ, and Burger,

C.J., dissenting from the denial of

certiorari).

regarding the duty of the courts of

appeals to follow the law as definitely

set forth by this Court unless and until

overruled, It raises as well as the sub-

stantive question of exhaustion itself

which at least three members of this Court

have suggested deserves reconsideration. 4/

Apart from creating a square conflict

with cases from this Court2/ and from the

4/ ia.

A Ellis v. Dyson, 421 U.S. 426, 432-

3 ( ; v. McDonnell, 418 U.S.

539 (1974); Allee y. Medrano, 416 U.S.

802, 814 (1974); Steffel vy. rhompsor. 415.

U.S, 452, 472 (1994); Preiser Vv. riguez,

411 U.S. 475, 492-93 ' A-10-TL373)7 Gibson —

v. Berryhill, 411 U.S. 564 (1973); Carter

Vv. stanton, 405 U.S. 669, 671 (1972);

Wilwording v. Swenson, 404 U.S. 249, 251-

52 (1571); Houghton v. Shafer, 392 U.S.

639, 640 (dees King v. omith, 392 U.S.

309, 312 N.4 (1968); Damico Vv. California,

389 U.S. 416, 417 (1967); McNeese v. Board

of Education, 373 U.S. 668 (1963).

other Courts of Appeals, °/ the decision

below is also inconsistent with the will

of Congress. This Court has long under-

stood the history behind enactment of

§1983 to reveal a policy preference for

federal enforcement of federally guaran-

teed rights. Forced subjection of §1983

litigants to the time-consuming, often

ineffective, and nearly always inadequate

6 See, €.9., er Vv: Lucey, 488 F.2d

48 (lst Cir. 13957 Hochman a Board of

Education, 534 F.2d 10 r ;

McCray v. Burrell, 516 F.2d 357 (th Cir.

1975), cert dismissed as improvidently

granted, 426 U.S. 471 (1975); Jones v.

Metzger, 456 F.2d 854 (6th Cir. 1972);

Str. ar

adley v. Andersen, 456 F.2d 1063 (8th

Cir. 132); Canton v. Spokane School Dis-

trict, 498 F.2d 840 coEh Cir, 1974); Gil-

Tette vy. McNichols, 517 F.2d 888 (loth Cir.

e Seventh Circuit has required

exhaustion only in certain prison §1983

cases, Secret v. Brierton, 584 F.2d 823

(7th Cir. at rule has been

vacated by this Court and remanded for

reconsideration in light of 42 U.S.C.

§1997e. Jenkins v. Brewer, No. 80-5116,

49 U.S.L.W. 3016 (February 23, 1981). The

Second Circuit requires plaintiffs to ex-

haust state administrative remedies Eisen

(Footnote continued on next page)

procedures afforded by varying juris-

dictions can only dissuade them, and their

attorneys, from seeking the relief §1983

promised. The Court of Appeals' decision

ignores the fact that Congress has pointedly

failed to require exhaustion in the cir-

cumstances presented by this case, while

explicitly requiring it in related but

quite different contexts. Most importantly,

the decision below is inconsistent with

Section 7 of the Civil Rights of Institu-

tionalized Persons Act, 42 U.S.C. §1997e,

and renders that law superfluous, The

adoption in §1997e, after extensive hear-

(Footnote continued from preceding page)

v. Eastman, 421 F.2d 560 (2nd Cir. 1969),

Walbeit with some hesitation," Plane ¥.

Baker, 504 F.2d 595, 597 (2nd Cir. 1974),

but the circumstances under which exhaus-

tion may be required are notably more

limited than in other areas of the law I

where exhaustion is required, or than will

apparently be the case in the Fifth Circuit.

See, e.g., Gonzales v. Shanker, 533 F.2d

832 (2nd Cir. 1976).

ings, of a carefully tailored exhaustion

requirement for a limited category of

§1983 cases demonstrates that Congress

has not only been aware of and ratified

this Court's longstanding and consistent

interpretation of exhaustion under §1983,

but has accepted its legislative respon-

sibility to amend §1983 as changed con-

ditions warrant. Judicial imposition of

an exhaustion requirement for §1983 cases

thus usurps “the policy role that Congress

has reserved for itself." Alyeska Pipe-

line Service Co. v. Wilderness Society,

421 U.S, 240, 269 (1975). The Court has

recently vacated another Court of Appeals

decision imposing an exhaustion require-

ment in certain §1983 cases, remanding

for reconsideration in light of §1997e,

Jenkins v. Brewer, No. 80-5116, 49 U.S,

L.W. 3616 (February 23, 1981), and the

judgment below should either be vacated

for similar reconsideration, or summarily

reversed.

Finally, even without reaching the

general question regarding exhaustion in

§1983 cases which this case squarely pre-

sents, the Court should grant certiorari

to resolve a conflict between this case

and McNeese vy. Board of Education, 373

U.S. 668 (1963). Although the McNeese

court held that plaintiffs in §1983 suits

were not subject to any exhaustion require-

ments, 373 1.8. at 671, it also observed

that the state administrative remedy of-

fered below was in any event inadequate,

because the final administrative decision-

maker was unable, even if he accepted

plaintiff's arguments, to grant relief

without repairing to a state court for

enforcement. The procedure available

here, notably more cumbersome and labyrin-

thine, suffers the same defect, Under

these circumstances, exhaustion may not

be required, whatever the merits of

exhaustion in other §1983 cases where

state remedies provide substantially

greater assurance of being plain, speedy,

and effective,

I. THE DECISION BELOW CONFLICTS WITH

NUMEROUS DECISIONS OF THIS COURT

AND THE COURTS OF APPEALS,

This Court has repeatedly held, or

stated without qualification, that ex-

haustion of state administrative remedies

is not required in §1983 cases. See n.5

supra. Every member of this Court has

agreed that the question has long been

settled, see n.2 supra, although three

Justices have urged that the question be

reexamined, see n.3 supra. Under these

circumstances, the decision below

flagrantly violates the Court of Appeals’

obligation to obey this Court's decisions

unless and until overruled, If for no

other reason, certiorari should issue to

summarily correct the Fifth Circuit's mis-

apprehension of its responsibilities,

Federal Communications Commission y.

Broadcasting Service Organization, 337

U.S. 901 (1949); Securities and Exchange

Commission v. Otis & Co., 338 U.S. 843

(1949).

Should more than three Justices

now consider the no-exhaustion rule

ripe for re-examination, see City of

Columbus vy. Leonard, supra, then the writ

should issue both to correct the Fifth

Circuit as a matter of procedures and to

consider the merits of the exhaustion

question itse1f,2/ Compare West Virginia

7/ If four Justices would not otherwise

grant certiorari to consider the exhaus-

tion rule, and City of Columbus v. Leonard,

supra, suggests they would not, the Fifth

(Footnote continued on next page)

Board of Education v. Barnette, 319 U.S.

624 (1943); Spector Motor Service v.

McGlaughlin, 323 U.S. 101 (1944). Although

petitioner urges such full consideration

only in the event that the judgment below

is not summarily reversed, and believes

summary reversal appropriate because of

this Court's precedents and the recent

enactment of §1997e, full consideration

upon briefs and oral argument would

plainly be warranted in preference to

the denial of certiorari. In light of

the repeated reaffirmation of the no-

exhaustion rule, even by its critics,

City of Columbus v. Leonard, supra, a

(Footnote continued from preceding page)

Circuit's unwarranted departure from the

rule hardly should provide the occasion

for such full reexamination.

discretionary decision to let the judg-

ment below stand would severely under-

mine the authority of this Court's deci-

sions. Settled principles of stare decisis

may not require slavish adherence to the

no-exhaustion decisions, see Monell v.

Department of Social Services, 436 U.S.

658 (1978),°/ but they do not permit their

4 The reasons relied on in Monell to

ustify departure from stare decisis do

not apply here. The McNeese no-exhaus-

tion rule was not a departure from set-

tled prior practice; it is not inconsis-

tent with related expressions of con-

gressional intent; petitioner and other

§1983 plaintiffs have relied on the no-

exhaustion rule in their expenditure of

money and time to bring §1983 claims in

federal courts; and it cannot be said here,

as it was in Monell, that the rule is

incorrect as a matter of statutory con-

struction "beyond doubt". See 436 U.S.

at 695-701.

casual discard through the failure to

exercise the Court's discretionary

jurisdiction.

The judgment below deprives petitioner

of her repeatedly reaffirmed right to

prompt federal consideration of ripe

§1983 claims. The Fifth Circuit's deci-

sion to deprive petitioner of that right

and to subject her to an extensive

delay in addition to the two year delay

she has already been compelled to accept,

all in direct conflict with decisions of

this Court and decisions of numerous

Courts of Appeals, warrants this Court's

review. 2/

9/ This petition is not the occasion to

address the merits of the exhaustion ques-

tion, They are extensively addressed in

the en banc decisions below, and in jud-

iciaIl and scholarly analysis. See, e.g.,

Preiser v. Rodriguez, 411 U.s. 475, -

ennan, J., dissenting); Note, Ex-

haustion of State Administrative Remedies

Under the Civil Rights Act, 8 Indiana Law

(Footnote continued on next page)

II. THE DECISION BELOW IS INCONSIS-

TENT WITH RECENT EXPRESSIONS OF

CONGRESSIONAL INTENT.

For the reasons set forth by Judges

Rubin and Hatchett in dissent, we think it

clear that this Court's repeated holding

that exhaustion is not required is correct,

and accurately reflects the intention of

the 42nd Congress. But even assuming

arguendo that the intentions of the Con-

gress that enacted what is now §1983 were

open to varying interpretations so far as

exhaustion of administrative remedies is

concerned, subsequent history demonstrates

uniformly and without contradiction that

Congress is aware of, approves of, and

has relied on the no-exhaustion rule in

§1983 cases, while at the same time re-

quiring exhaustion in a variety of other

(Footnote continued from preceding page)

Review 565 (1975); Comment, Exhaustion

of State Remedies Under the Civil Rights

Act, 66 Colum.L.Rev. L201 (1968); —

Exhaustion of State Remedies in Section

ses, “ .L. Rev. é

contexts. 2°/ Moreover, Congress has re-

cently addressed the issue, and has care-

fully decided to require exhaustion in

§1983 cases only in extremely limited

circumstances not present here. The

Fifth Circuit's abrogation of the no-

exhaustion rule and imposition of an

across the board exhaustion requirement

inconsistent with Congressional intention

improperly usurped a policy judgment

entrusted by the Constitution to Congress,

Northwest Airlines v. Transport Workers

Union, No. 79-1056, 49 U.S.L.W. 4303

(April 20, 1981); Illinois v. Milwaukee,

406 U.S. 91, 107 (1972); Arizona v.

California, 373 U.S. 546, 565-566;

Milwaukee v. Illinois, 49 U.S.L.W. 4445

(April 28, 1981).

10/ See, e.g., 28 U.S.C. §2254(b) - (c)

Thabeas corpus); 5 U.S.C. §704 (review

of agency action); 28 U.S.C. §2401(b)

(tort claims); 42 U.S.C. §2000e-5 (Title

VII). See also App. A infra at llla

(Hatchett, J., dissenting) .

Certiorari should issue to vacate that

judgment, either by summary reversal or

for reconsideration in light of the newly-

enacted statute.

On May 23, 1980, Congress passed the

Civil Rights of Institutionalized Persons

Act, Pub. L. 96-247, 94 Stat. 349. Sec-

tion 7 of the Act (codified at 42 U.S.C.

§1997e) requires the Attorney General to

adopt minimum standards “for the develop-

ment and implementation of a plain, speedy,

and effective system for the resolution

of grievances of adults confined in any

jail, prison or other correctional facil-

ity."2)/ Congress specifically required

certain safeguards which the Attorney

General's standards must include. States

may apply to the Attorney General, out-

1l1/ Section 7 is set out infra at 132a.

lining for him the procedures available

to prisoners with grievances, and he is

required to certify those procedures deter-

mined to be adequate. Once a state's

procedures have been certified, if an

adult prison inmate brings a §1983

action regarding a grievance related to

his confinement, "the court shall, if the

court believes that such a requirement

would be appropriate and in the interest

of justice, continue such a case for a

period of not to exceed ninety days in

order to require exhaustion of such plain,

speedy and effective administrative

remedies as are available." §1997e(a) (1).

Dismissal for exhaustion is not permitted.

The judgment below is flatly incon-

sistent with §1997e, and certiorari

should accordingly issue to reverse it

or at least to remand for reconsideration

in light of §1997e. Compare Jenkins v.

Brewer, supra. The decision below requires

exhaustion in cases (such as this) where

Congress declined to require it. 22/ It

requires exhaustion through dismissal,

without time limitation, and without the

other strict limitations Congress imposed

12/ A major theme in the legislative

history was that prisoner §1983 cases

posed special burdens on the district

courts, because they were frequently

poorly drafted and disproportionately

frivolous. See, e.g., S.Rep. No. 96=

416, 96th Cong., 2nd Sess., Senate

Judiciary Committee (Nov. 15, 1979), at

34. Accordingly, the exhaustion reguire-

ment Congress enacted was limited to

the problem it sought to remedy. There

was no record before Congress indicating

that §1983 cases by any other groups,

including public employees claiming

racial or sexual discrimination, posed

any special burdens on federal courts,

or required imposition of an exhaustion

reguirement.

on the carefully tailored exhaustion re-

quirement of §1997e. Congress extended

the carrot of exhaustion to

induce the states to adopt a particular

kind of administrative procedure, composed

in part of Congressional recuirements

and in part of requirements formulated by

the Attorney General “after consultation

with persons, State and local agencies,

and organizations with background and

expertise in the area of corrections."

§1997e(b) (1) .22/ Here, in sharp contrast,

13/ Representative Drinan, a co-sponsor

Of the bill and a member of the Judiciary

Committee which considered it, noted in

the final House debate that the grievance/

exhaustion measure was “intended to serve

the dual purpose of encouraging the estab-

lishment of grievance mechanisms in state

correctional systems and of relieveing the

federal courts of some of the burden of

§1983 prisoner petitions.” 125 Cong. Rec.

H3637 (daily ed. May 23, 1979)

the judgment below requires exhaustion

without any of the quid pro quo or in-

ducements which Congress has attached

to its limited exhaustion requirements.

In light of the repeated statements by

bill sponsors that the Act was less

protective of the rights of prisoners

than of the rights of other institution-

alized persons covered by the act24/, it

would be extraordinarily anomolous to

require exhaustion in non-prisoner cases

like this more broadly and with less com-

pensating safeguards for civil rights

litigants than in prisoner cases.

see. e.g., 126 Cong. Rec. S.4622

vomathe S Of Senator Bayh); 125 Cong.

Rec. H.3648 (daily ed. May 23, 1979)

(remarks of Rep. Gudger); Id. at 1136-

49 (daily ed. May 23, 1979) (remarks of

Rep. Railsback).

The plain wording and meaning of

section 7 makes clear Congress" under-

standing that even in prison cases ex-

haustion was not and could not be required

prior to its enactment, and its decision

to require exhaustion in the future only

when and to the extent that the carefully

balanced provisions so required. The

legislative history confirms that under-

standing.

The Conference Report explained that

the limited exhaustion requirement of

continuance for ninety days applicable

to certain §1983 cases brought by adult

prisoners was “authorized” only in return

for “substantial compliance with" the

minimum grievance resolution procedures.

H. Conf. Rep. No. 96-897, Civil Rights

of Institutionalized Persons Act, 96th

Cong., 2nd Sess. at 15. The Report

stressed that §1983 cases only "unrelated

to conditions of confinement...would not

appropriately be continued." Id.

Statements by the bill's sponsors

accurately reflected that understanding,

as well. Rep. Drinan stated:

Section 4 of H.R. 10 also

authorizes a federal court

in which an adult prisoner‘s

suit filed under 42 U.S.C.

1983 is pending, to con-

tinue that action for a

period not to exceed 90 days

if the prisoner has access

to a grievance resolution

system which is in substan-

tial compliance with the

minimum standards promul-

gated under this legislation.

Such limited continuance

would be for the purpose of

requiring exhaustion of the

approved grievance resolu-

tion system.

125 Cong. Rec, H.3637 (daily ed. May

23, 1979).

Representative McClory ranking minority

member of the Judiciary Committee,

agreed that the Act was necessary to

“allow courts to continue cases brought

by state prisoners under 42 U.S.C. §1983"

125 Cong. Rec. H.3639 (daily ed. May 23,

1979) (emphasis added) .2°/ piainly,

Congress understood the law to be that

13/ See also remarks of Rep. Butler, 125

ng. Rec. H.3641 (daily ed, May 23, 1979)

(section 7 “provides that in certain cases

a federal judge may require a State prisoner,

who has filed a 1983 petition, to go back

and exhaust his state grievance procedure...

prison system to help him. He can file

his grievance directly in the federal court

and his case has to be investigated by

that court..."); remarks of Rep. Sawyer,

125 Cong. Rec, H3643 (daily ed. May 23,

1979) ("If a State opts to substantially

adopt these grievance procedures, then

before a prisoner may go into Federal

court with a §1983 suit, he must go back

and go through the grievance procedures to

see if it cannot resolve the grievance

without unnecessarily taking up the court's

time..."); remarks of Rep. Gudger, 125

Cong. Rec. H3648 (daily ed. May 23, 1979)

("[TJhere is a process here which has

peculiar application to the prison problem...

where there has been an inmate grievance

procedure adopted (so that the grievances

and protests of prison inmates may have a

due process proceeding) there is a stay

order available so that the civil action

cannot proceed until that grievance pro-

ceeding has been exhausted, This has

application only to the prison problem.")

phasis added).

unless the bill passed, lower courts would

not have the power to order exhaustion of

State administrative remedies in §1983

cases brought by prisoners, and that

understanding is controlling here. As the

Court has held, “"*the relevant inquiry

is not whether Congress correctly perceived

the then state of the law, but rather what

its perception of the state of the law was.'"

Cannon v. University of Chicago, 441 U.S.

667, 711 (1979), quoting with approval

from Brown v. General Services Administra-

tion, 425 U.S. 820, 828 (1976). See also

New York Gaslight Club, Inc. v. Carey, 447

U.S. 54, 70-71 & n.9 (1980).

Enactment of §1997e, and the themes

repeatedly sounded without dissent in the

debates preceding its passage, demonstrate

that the Fifth Circuit's imposition of an

exhaustion requirement is contrary to

legislative intent. Compare NLRB v.

Sears Roebuck & Co., 421 U.S. 132, 164-

165 (1975); Monell v. Department of

Social Services, 436 U.S. at 696-99. The

careful attention Congress has provided

the problem, and the comprehensive char-

acter of the exhaustion scheme it has

chosen, confirm an intent not to authorize

additional or different procedural require-

ments. Northwest Airlines v. Transport

Workers Union, 49 U.S.L.W. 4383, 4388

n.30 (April 20, 1981); National Railroad

Passenger Corp. v. National Association of

Railroad Passengers, 414 U.S, 453, 458

(1974); cf£. Vermont Yankee Nuclear Power

Corp. v. Natural Resources Defense Council,

435 U.S. 519, 524 (1978). Where Congress,

informed of this Court's statutory inter-

pretation decisions, fails to disturb

them, and subsequently revises them only

in narrowly limited circumstances, it is

not the judiciary's province to render

Congress‘ recent carefully considered

work superfluous, or unnecessary. Alyeska

Pipeline Service Co. v. Wilderness Society,

421 U.S. at 260-271; Northwest Airlines v.

Transport Workers Union, supra, 49 U.S.L.W.

at 4387-88; Milwaukee v. Illinois, 49 U.S.L.W.

at 4447-4449,

The recent disposition of Jenkins v.

Brewer, vacating an exhaustion requirement

for reconsideration in light o* §1997e,

accurately reflects these principles. The

decision below is far more egregiously

contrary to §1997e than was Jenkins. Like

the Seventh Circuit in Jenkins, the Fifth

Circuit has required procedures contrary

to those chosen by Congress, but it has

done so not only for those §1983 cases

in which Congress authorized exhaustion,

as in Jenkins, but also for those Congress

intended to leave unaffected by an exhaus-

tion requirement. A fortiori the petition

for certiorari here should be granted.

III. THE REMAND ORDER IS INCONSISTENT

WITH THIS COURT'S RULING IN McNEESE

v. BOARD OF EDUCATION, THAT, AT THE

LEAST, ADMINISTRATIVE EXHAUSTION

MAY NOT BE REQUIRED UNLESS THE

DEFENDANTS DEMONSTRATE THE ADEQUACY

OF ADMINISTRATIVE REMEDIES, AND THAT

ADMINISTRATIVE REMEDIES ARE INADE-

QUATE WHERE THE OFFICIALS AT THE END

OF THE ADMINISTRATIVE PROCESS ARE

NOT EMPOWERED TO GRANT RELIEF.

Petitioner has urged that a writ of

certiorari should issue to reverse sum-

marily the decision below, or to set

the case for full consideration, because

it is inconsistent with this Court's

repeated decisions and with recently

expressed Congressional intent. But

even if the Court rejects those arguments,

certiorari is warranted here because the

judgment below is inconsistent with even

the narrowest reading of McNeese v. Board

of Education, which stands at least for

the rule that 1) exhaustion may not be

considered where the state has not carried

its burden of proving the adequacy of state

administrative remedies, and 2) such

remedies are not adequate where the

ultimate administrative officals to

which plaintiff will be remanded have no

enforcement power without petitioning a

state court. 373 U.S. at 674-76. Here,

the defendants had a full opportunity to

carry that burden. That they failed to

do so is apparent from the Court of

Appeals' conclusion that the record was

inadequate "to tell whether state adnin-

istrative remedies were adequate in the

context of the rights asserted by plain-

tiff..." 55a. Accordingly, the judgment

below was in error.

The judgment below is also in direct

conflict with the second part of the

McNeese holding, which found an admin-

istrative remedy inadequate where even

if the official at the end of the admin-

istrative process agreed that grievants had

been injured, he was unable to grant relief

himself, but could only petition the state

courts (through the Attorney General) for

relief. "It would be anomolous," the Court

stated, "to conclude that such a remedy

forecloses suit in the federal courts

where the most it could produce is a

state court action that would have no such

effect." 373 U.S, at 675.

The record below showed precisely

the same defects of administrative

remedy eight Justices found inadequate

in McNeese. Judge Hatchett's description

of this Kafkaesque system (which the

majority took no issue with) is as fol-

lows (112-114a):

We need only consider Patsy's

plight to appreciate the delay in-

herent in even a well-intentioned

state administrative procedure.

Upon a determination by the trial

that the administrative remedy is

adequate, Patsy must utilize the

Florida International Univer-

sity (FIU) career service em-

ployee (CSE) grievance procedure

set forth in 6C8-4.05 of the

Florida Administrative Code

(See Appendix, Table I). If

these procedures culminate in.

an unfavorable ruling, Patsy

may then apply to the Florida

Human Relations Commission (HRC)

under procedures outlined in 9D-

9 of the Florida Administrative

Code (See Appendix, Table II).

The CSE Procedure

The CSE procedure requires

that Patsy attempt to seek re-

dress from her superior and

others in the FIU chain of com-

mand. If FIU personnel fail

to follow CSE procedures, Patsy

may seek redress from the

Florida Director of Personnel

in the Department of Admin-

istration. The Director may

request compliance from FIU

personnel, but if this request

is denied Patsy is left without

a remedy since the Director lacks

enforcement authority.

Upon the issuance by PIU per-

sonnel of an unfavorable deci-

sion, Patsy may refile her

grievance with the Director

only if she alleges that the

University failed to follow

the Florida Administrative Code.

The Director may then issue a

final decision. Once again,

though, the Director lacks

pr to enforce his deci-

sion.

The HRC Procedure

If Patsy is dissatisfied with

either the ruling of FIU per-

sonnel or the decision of the

Director, she may file a com-

plaint with the Human Relations

Commission. The HRC procedure

can be extremely time consuming.

e.g., Hargis v. Leon County

Schoo Board, 11 Florida

Administrative Law Reports

957-A (1980) (HRC decision

issued more than a year and

a half after the filing of

complaint).

Additionally, the Human

’ Relations Commission lacks

independent enforcement power.

In order to enforce its deci-

sions, the Commission must

petition the appropriate

Florida circuit court, and

appeal an unfavorable ruling.

See Fla.Stat.Ann. 120.69.

As that description makes clear, the

Director of Personnel in the Department

of Administration, who has a kind of

oversight responsibility at the first

stage of the administrative proceeding,

the CSE procedure, has no power to compel

petitioner's state diglover to follow

the required procedures even if he finds

that those procedures have not been

followed. Nor does the CSE procedure pro-

vide for a hearing or compulsory process,

provisions that even thedeficient McNeese

procedures employed. 26/

Far worse, however, is the ineffective-

ness of the final stage of the administra-

tive remedy, the HRC procedure, if peti-

tioner is unsuccessful at the first stage.

Even if the Florida Human Relations Com-

mission agrees with petitioner's claim

of discrimination, it has no power to

enforce its decision. It may seek

enforcement in the Florida Circuit Court,

but it need not do so. Fla.Stat.Ann.

16/ Differing with the majority as to the

efficacy of the administrative remedy,

Justice Harlan relied on the use of compul-

sory process to show that “the administra-

tive remedy was intended as serious busi-

ness and not as an exercise that might

abort before fulfillment." 373 U.S. at

678 (Harlan, J. dissenting).

§120.69(1) (a). And even if it does, the

respondent (i.e., the employer) may then

‘relitigate the entire claim as a matter of

right. Fla.Stat.ann. §120.69(5) .2//

The HRC therefore has even less power

than the "inadequate" administrative body

in McNeese, which at least had theoretical

power to cut off funds to the erring

school district, McNeese, supra at 675-

676, and was required to seek to enforce

any violations it found. The HRC's power

is merely advisory, 18/ and it may decline

to seek enforcement at all. This case is

17/ Alternatively, if the HRC finds for

petitioner but declines to seek enforce-

ment, petitioner could seek enforcement

in the circuit court after waiting 60

more days. Fla.Stat.Ann, §120.69(1) (b).

Again, however, the employer can reliti-

gate the entire claim. §120.69(5).

18/ This was also the fault with the

administrative procedure in Burrell v.

McCray, supra, where the Court granted

certiorari to consider the §1983 exhaus-

tion question, but dismissed the writ

after argument. The ineffectiveness of

the remedy available in Burrell is dis-

cussed in the brief for the ACLU amicus

curiae in Burrell, at 7 n.], 10-1T.

like McNeese, however, in one other

respect which the McNeese Court relied

on heavily in rejecting exhaustion there.

Neither in McNeese nor here is the §1983

Claim "in any way entangled in a skein

of state law that must be untangled be-

fore the federal case can proceed." 373

U.S. at 674. Thus, the concerns -under-

lying such cases as Burford v. Sun Oil Co.,

319 U.S. 315 (1943), and Railroad Commi-

sion v. Pullman Co., 312 U.S. 496 (1941)

do not support exhaustion here.

In sum, after exhausting state admin-

istrative remedies, and gaining final

administrative agreement that her rights

had been violated, plaintiff would then

be forced to institute (or have instituted

for her) a state court lawsuit. McNeese

held that exhaustion of a far more expedi-

tious system, but which also required resort

to state courts for enforcement, could not

be required. Therefore, even were this

Court not inclined to grant certiorari to

resolve the conflict between its previous

holdings that exhaustion may not be

required, and the judgment here requiring

such exhaustion as a matter of course,

this case warrants review to ensure that

administrative exhaustion is at least not

required where it lacks substantial assur-

ance of being plain, speedy, and admin-

istratively effective. 22/

19/ Although what constitutes sufficient

Simplicity, effectiveness, and speed may

vary in different circumstances, here the

provisions of §1997e provide a Congression-

ally-approved benchmark which should be

controlling assuming arguendo that exhaus-

tion could ever be renaired in non-prisoner

§1983 cases. "Once Congress addresses a

subject, even a subject previously governed

by federal common law, the justification

for lawmaking by the federal courts is

greatly diminished." Northwest Airlines v.

Transport Workers Union, supra, 45 U.S.L.W.

at 7388 n.34. Under those minimum standards,

the Florida procedures outlined in Judge

Hatchett's dissent, 112a n.7, 12la-127a,

do not nearly pass muster.

CONCLUSION

For the foregoing reasons, the Court

should grant the petition for a writ of

certiorari, and summarily reverse the

judgment below. In the alternative,

certiorari should be granted, and the

Court should vacate the judgment below

and remand for reconsideration in light

of 42 U.S.C. §1997e, or set the case for

full argument.

Respectfully submitted,

CHARLES S. SIMS

ans of Record)

:. RICHARD LARSON

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION ~—

132 West 43rd Street

New York, NY 10036

(212) 944-9800

Counsel for Petitioner

APPENDIX A

No. 79-2965

UNITED STATES COURT.OF APPEALS,

FIFTH CIRCUIT

GEORGIA PATSY, )

Plaintiff-Appellant, )

Vv. )

FLORIDA INTERNATIONAL UNIVERSITY, )

Board of Regents of the State of ORDER

Florida, a body corporate, for )

and on behalf of Florida Inter-

national University, )

De fendant-Appellee. )

Before: COLEMAN, Chief Judge, BROWN,

AINSWORTH, GODBOLD, CHARLES CLARK,

RONEY, GEE, TJOFLAT, HILL, FAY,

RUBIN, VANCE, KRAVITCH, FRANK M.

JOHNSON, Jr., GARZA, HENDERSON,

REAVLEY, POLITZ, HATCHETT,

ANDERSON, RANDALL, TATE, SAM D.

JOHNSON, and THOMAS A. CLARK,

Circuit Judges.

RONEY, Circuit Judge:

This section 1983 sex and race discrim-

ination suit was dismissed on motion for

failure to allege exhaustion of state admin-

istrative remedies. A panel of this Court

reversed on the ground that exhaustion of ad-

ministrative remedies is not a prerequisite of

a section 1983 suit. Patsy v. Florida Inter-

national University, 612 F.2d 946 (5th Cir.

1980). We took this case en banc for the pur-

pose of ccrsidering whether to adhere to an

automatic rule that no section 1983 plaintiff

need pursue state administrative procedures be-

fore asserting federal court jurisdiction, re-

gardless of the adequacy of relief that might

be there available, or whether to adopt a more

flexible rule that would requixe such exhaus-

tion in appropriate cases. Deciding to take

the latter course, we remand the case to the

district court for it to consider the adequacy

of administrative procedures available to this

plaintiff in light of the rule here adopted.

Plaintiff is a white female employed as a

secretary at Florida International University

(FIU). Asserting 28 U.S.C.A. §1343(3) juris-

diction of her action authorized by 42 U.S.C.A.

§1983, plaintiff alleges that during her em-

ployment with FIU, she has applied for numerous

employment openings in the university for which

she was clearly qualified but has been uni-

formly rejected because FIU has discriminated

against her on the basis of her race and sex.

Plaintiff contends that by seeking out indi-

viduals from minority groups to hire and pro-

mote and by segregating applicants' files

according to race and sex, FIU is engaged in

a pattern and practice of discrimination, in

violation of the Constitution and laws of the

United States.

Plaintiff named as defendant the Board

of Regents of the State of Florida on behalf

of Florida International University. She

prayed that the court remedy the discrimina-

tion against her by promoting her to the next

available position to which she had applied

and for which she was qualified or, in the

alternative, to award $50,000 actual and

punitive damages. The Board of Regents moved

to dismiss on the ground that plaintiff had

failed to exhaust her administrative remedies.

The district court granted the motion to dis-

miss.

In this en banc rehearing we consider

whether, under relevant Supreme Court hold-

ings, exhaustion of adequate state adminis-

trative remedies can ever be a prerequisite

to actions under section 1983 and, if so,

whether we should adopt such a rule in this

Circuit. In concluding that exhaustion of

state administrative proceedings should

sometimes precede federal court considera-

tion of section 1983 claims, we first, ex-

amine the exhaustion doctrine as tradition-

ally applied to suits against Government

officers, second, review the Supreme Court

cases to determine that they do not fore-

close a flexible exhaustion rule in section

1983 cases, third, examine the state of the

law in the other Courts of Appeals, which

reveals a conflict on the point, and fourth,

consider the objections to and the policy

considerations for the implementation of an

exhaustion requirement. Deciding after this

analysis that exhaustion should be required

under certain standards, we then review

the case before us and conclude that the

district court's dismissal should be vacated

and the case remanded for full consideration

of the adequacy of the administrative pro-

cedures available to plaintiff to determine

whether exhaustion is required in light of

our opinion in this case.

I. The Exhaustion Doctrine

It has long been established that a

party will normally be denied judicial re-

lief for injury until available administra-

tive remedies have been exhausted. As the

Supreme Court stated in one of the leading

cases dealing with the exhaustion doctrine,

Myers v. Bethlehem Shipbuilding Corp., 303

U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed.

638 (1938):

{T]he long settled rule of

judicial administration [is]

that no one is entitled to

judicial relief for a supposed

or threatened injury until the

prescribed administrative

remedy has been exhausted.

The rule applies in federal courts to

both state and federal administrative remed-

ies, and has been said to be of special force

in federal-state cases. Ilinois Commerce

Commission v. Thomson, 318 U.S. 675, 63 S.Ct.

834, 87 L.Ed. 1075 (1943); Natural Gas Pipe-

line Co. v. Slattery, 302 U.S. 300, 58 S.Ct.

199, 82 L.Ed. 276 (1937); Gilchrist v. Inter-

borough Rapid Transit Co., 279 U.S. 159, 49

S.Ct. 282, 73 L.Ed. 652 (1929). As the Court

explained in Public Service Commission v.

Wycoff Co., 344 U.S. 237, 246-47, 73 §.Ct.

236, 241-42, 97 L.Ed. 291 (1952):

Even when there is no incipi-

ent federal-state conflict,

the declaratory judgment pro-

cedure will not be used to

preempt and prejudge issues

that are committed for initial

decision to an administrative

body or special tribunal any

more than it will be used as a

substitute for statutory

methods of review....

* * * * * * *

-.-State administrative bodies have the

initial right to reduce the general policies

of state regulatory statutes into concrete

orders and the primary right to take evid-

ence and make findings of fact.

Many of the important policy purposes

of the doctrine requiring exhaustion of

federal administrative proceedings as a

precedent to judicial relief were articulated

by the Supreme Court in McKart v. United

States, 395 U.S. 185, 193-95, 89 S.Ct. 1657,

1662-63, 23 L.Ed.2d 194 (1969): (1) to

avoid premature interruption of the adminis-

trative process; (2) to let the agency de-

velop the necessary factual background upon

which decisions should be based; (3) to per-

mit the agency to exercise its discretion or

apply its expertise; (4) to improve the

efficiency of the administrative process;

(5) to conserve scarce judicial resources,

since the complaining party may be success-

ful in vindicating rights in the administra-

tive process and the courts may never have

to intervene; (6) to give the agency a

chance to discover and correct its own

errors; and (7) to avoid the possibility

that "frequent and deliberate flouting of

administrative processes could weaken the

effectiveness of an agency by encouraging

people to ignore its procedures."

When the complaining party seeks

federal court review of state action, the

reasons stated in McKart are overlaid by

forceful considerations of federalism and

comity which counsel the exhaustion of ad-

ministrative relief before the intervention

of the federal judiciary into the dispute.

K. Davis, Administrative Law §20.01 (Supp.

1970). C£. National League of Cities v.

Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.

2d 245 (1976) (state autonomy in certain em-

ployment decisions); Younger v. Harris,

401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669

(1971) (non-intervention of federal courts

in pending state court action absent ex-

ceptional circumstances); Railroad Com-

mission v. Pullman Co., 312 U.S. 496, 501,

61 S.Ct. 643, 645, 85 L.Ed. 971 (1949)

(abstention because of "scrupulous regard

for the rightful independence of the state

governments").

Like most judicial doctrines, the re-

quirement of exhaustion of administrative

remedies is subject to numerous practical

exceptions which result from the efforts of

the courts to balance the rights of the

Claimants against the substantial policy fac-

tors favoring the rule. Briefly, the tradi-

tional exceptions are first, exhaustion is not

required when the prescribed administra-

tive remedy is plainly inadequate because

either no remedy is available, the available

remedy will not give relief commensurate

with the claim, or the remedy would be so

unreasonably delayed as to create a serious

risk of irreparable injury. Walker v.

Southern Railway, 385 U.S. 196, 87 S.Ct.

365, 17 L.Ed.2d 294 (1966); Frozen Food

Express v. United States, 351 U.S. 40, 76

S.Ct. 569, 100 L.Ed. 730 (1956); United

States v. Joseph A. Holpuch Co., 328 U.S.

234, 66 S.Ct. 1000, 90 L.Ed. 1192 (1946);

United States Alkali Export Association v.

United States, 325 U.S. 196, 65 S.Ct. 1120,

89 L.Ed. 1554 (1945); 3 K. Davis, Adminis-

trative Law §20.07 (1958 and Supps. 1970,

1976 & 1978).

Second, when the claimant seeks to have

a legislative act declared unconstitutional

and administrative action will leave stand-

ing the constitutional question, exhaustion

is not required. Public Utilities Commis-

sion v. United States, 355 U.S. 534, 78 S.Ct.

446, 2 L.Ed.2d 470 (1958); Davis, supra at

§20.04.

Third, courts do not require exhaustion

when the question of the adequacy of the

administrative remedy is for all practical

10a

purposes co-extensive with the merits of

the plaintiff's claim, such as when, for ex-

ample, the plaintiff contends that the ad-

ministrative system itself is unlawful or

unconstitutional in form or application.

Fuentes v. Roher, 519 F.2d 379 (2d Cir.

1975); Finnerty v. Cowen, 508 F.2d 979,

982-83 (2d Cir. 1974).

Fourth, exhaustion of administrative

remedies is not required if it would be futile

to comply with the administrative procedures

because it is clear that the claim will be

rejected. City Bank Farmers Trust Co. v.

Schnader, 291 U.S. 24, 54 S.Ct. 259, 78

L.Ed. 628 (1934); Montana National Bank v.

Yellowstone County, 276 U.S. 499, 48 S.Ct.

331, 72 L.Ed. 673 (1928).

It should be noted that the applica-

tion of the exhaustion doctrine with its

traditional exceptions is far from an exact

science. Indeed, as Professor Davis has

stated, in applying the exhaustion rule,

lla

"judicial action is variable and difficult

or impossible to predict." Davis, supra at

§20.01 (1958). This is because "[a]pplica-

tion of the doctrine to specific cases re-

quires an understanding of its purposes and

of the particular administrative scheme

involved." McKart v. United States, 395

U.S. at 193, 89 S.Ct. at 1662. In most

situations the decision to require exhaus-

tion or not comes after careful analysis

and thoughtful balancing of the interests

for and against exhaustion. The question

presented in this case is whether the Court

in section 1983 cases may and should take

the analytical approach normally applied

whenever administrative remedies are avail-

able or whether it should automatically ex-

cept every section 1983 case from the re-

quirement, as seems to have been done in

Many cases.

l2a

II. Exhaustion in Section 1983 Cases

A. Supreme Court Cases

The initial inquiry in this determina-

tion is whether the point is open for deci-

sion under cases that have been decided by

the Supreme Court. Although the simple

statement that “exhaustion of administra-

tive remedies is not required in section 1983

cases" has support in the language of some

opinions, a careful analysis of the holdings

of the Supreme Court leads us to conclude

that there is room for this Court to develop

an analytical rule.

The Supreme Court held in Monroe v.

Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d

492 (1961), that it is not a prerequisite to

filing an action under 42 U.S.C.A. §1983 that

state judicial remedies be exhausted. The

question of administrative remedies was not

before the Court. In McNeese v. Board of

Education, 373 U.S. 668, 83 S.Ct. 1433, 10

L.Ed.2d 622 (1963), a subsequent section 1983

l3a

case, the Supreme Court was confronted with

the issue of exhaustion of both judicial and

administrative remedies. McNeese was a

school desegregation case in which the pri-

mary administrative remedy available was

that the residents of the school district

could file a complaint with the Superintend-

ent of Public Instruction alleging racial

segregation. He could then set a hearing and

after the hearing, if he decided the allega-

tions were substantially correct he could

request the Illinois Attorney Generai to file

suit. Alternatively, it was suggested that

the Superintendent could refuse to certify

the school and then withhold state funds.

The Court first stated that it had

"previously indicated that relief under the

Civil Rights Act may not be defeated because

relief was not sought under state law," and

quoted the language from Monroe v. Pape

which held that state judicial remedies need

not be exhausted. 373 U.S. at 671, 83 S.Ct.

l4a

at 1435. The Court then held that the

plaintiffs did not have to exhaust state

judicial remedies and that abstention was

inappropriate. Upon reaching the question

of administrative remedies, the Court said:

Moreover, it is by no means

clear that Illinois law pro-

vides petitioner with an ad-

ministrative remedy suffici-

ently adequate to preclude

prior resort for protection

of their federal rights.

373 U.S. at 674-75, 83 S.Ct. at 1437. After

examining the administrative remedies at

some length and noting their ineffective-

ness in responding to petitioners' com-

plaints, the Court concluded that “[w]hen

federal rights are subject to such tenuous

protection, prior resort to a state proceed-

ing is not necessary." Id. at 676, 83 S.Ct.

at 1438.

It is quite clear that exhaustion of

administrative remedies would not have been

required in McNeese under the traditional

rule because a clear-cut exception-inadequacy

15a

of administrative remedy-was applicable.

In fact, the administrative process could

afford no direct relief. Nevertheless,

from McNeese and subsequent Supreme Court

pronouncements relying on McNeese has grown

the rule, followed by a majority of the

circuits, that exhaustion of state adminis-

trative remedies is absolutely never required

in section 1983 suits. Whether or not such

a sweepingly broad and inflexibly wooden

rule was ever intended by the Supreme Court,

the following examination persuades us that

the Supreme Court does not now follow such

a rule in practice and that if such a rule

is ever to be sustained by that Court, it

would be only after the issue is squarely

presented and thoroughly considered.

In its two most recent section 1983 cases

involving exhaustion of state administrative

remedies, the Supreme Court's analysis and

language strongly suggest that it does not

adhere to a rigid no-exhaustion rule. Barry

l6a

v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61

L.Ed.2d 365 (1979), was a section 1983 ac-

tion involving the New York State Racing

and Wagering Board. Plaintiff Barchi was

the trainer of a horse found to be drugged

following a race. Plaintiff's license as a

trainer was temporarily suspended without

a hearing under a state regulation making

the trainer responsible for the horse's

condition and presuming that if drugs are

found the trainer is at fault. New York

procedures permitted a suspended licensee

to have a post-suspension hearing but did

not permit the suspension to be stayed dur-

ing the course of the hearings. Further-

more, neither the statute nor the regula-

tions specified a time limit within which

a hearing had to be heard and the Board

was permitted 30 days after the hearing in

which to issue a final order.

Without resorting to these post-

suspension hearing procedures, Barchi filed

17a

suit alleging that the state statute was un-

constitutional because it permitted his

license to be suspended without a prior

hearing to determine his culpability and

because a summary suspension could not be

stayed pending a post~-suspension hearing

by the Board. One of the grounds on which

the state officers opposed the suit was that

Barchi should have exhausted his administra-

tive remedies prior to commencing his court

action.

In concluding that the lack of a timely

post-suspension hearing was unconstitutional,

the Court considered the state's exhaustion

argument:

We reject appellants' further

contention that Barchi should

not have commenced suit prior

to exhausting the procedure

contemplated under §8022. Un-

der existing authority, ex-

haustion of administrative re-

medies is not required when

"the question of the adequacy

of the administrative remedy...

[is] for all practical pur-

poses identical with the mer-

its of [the plaintiff's] law-

18a

ail v.s. 564; 575, 93 $.Ce.

411 U.S. ’ ’ Ct.

1689, 1696, 36 L.Ed.2d 488

(1973).

443 U.S. at 63 n.10, 99 S.Ct. at 2648, n.10

(brackets and deletions in original). Sig-

nificantly, the Court did not merely recite

a blanket no exhaustion rule. Instead, it

excused Barchi's failure to comply with the

procedures provided by the state by focus-

ing on one of the usual exceptions to the

general rule that state administrative reme-

dies should be exhausted.

Justice Brennan in a concurring opinion

agreed that exhaustion was not required and,

like the majority, did not rely on a rigid

blanket rule. Rather, he found two excep-

tions to the general rule that exhaustion is

required. First, he said that the district

court properly declined to require exhaus-

tion of "state remedies that were themselves

being challenged as unconstitutional.” 443

U.S. at 68-69, 99 S.Ct. at 2651. Second, he

described the administrative procedures as an

19a

“exercise in futility” and stated that for

that reason the plaintiff should not be re-

quired to exhaust his state administrative

remedies. Id. at 74, 99 S.Ct. at 2654.

By going to the trouble of finding and

using traditional exceptions to the exhaus-

tion rule, the Justices plainly did not ad-

here to a rigid rule that exhaustion is

never required in section 1983 cases. That

the Court would permit a more flexible ap-

proach is supported by Gibson v. Berryhill,

411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488

(1973). The plaintiffs there were licensed

optometrists who sought to enjoin proceed-

ings against them pending before the Alabama

Board of Optometry. In their section 1983

suit they alleged the Board was biased and

could not provide a fair and impartial hear-

ing. The Supreme Court agreed with the

three-judge district court that the plain-

tiffs should not be required to exhaust

state administrative remedies, but specifi-

20a

cally left open the question whether the non-

exhaustion exception in section 1983 cases

was "invariably the case."

In the instant case the matter of ex-

haustion of administrative remedies need

not detain us long. Normally when a State

has instituted administrative proceedings

against an individual who then seeks an in-

junction in federal court, the exhaustion

doctrine would require the court to delay

action until the administrative phase of the

state proceedings is terminated, at least

where coverage or liability is contested and

administrative expertise, discretion, or

factfinding is involved. But this Court has

expressly held in recent years that state ad-

ministrative remedies need not be exhausted

where the federal court plaintiff states an

otherwise good cause of action under 42 U.S.C.

§1983. McNeese v. Board of Education, 373 U.S.

668 [83 S.Ct. 1433, 10 L.Ed.2d 622] (1963);

Damico v. California, 389 U.S. 416 [88 S.Ct.

2la

526, 19 L.Ed.2d 647] (1967). Whether this is

invariably the case...is a question we need

not now decide; for the clear purport of ap-

pellees' complaint was that the State Board

of Optometry was unconstitutionally consti-

tuted and so did not provide them with an

adequate administrative remedy requiring ex-

haustion. Thus, the question of the ade-

quacy of the administrative remedy, an issue

which under federal law the District Court

was required to decide, was for all practical

purposes identical with the merits of

appellees’ lawsuit.

411 U.S. at 574-75, 93 S.Ct. at 1695-96

(emphasis added, footnotes omitted).

The significance of this language was

not lost on the two concurring justices,

Justice Marshall and Justice Brennan, From

their brief one-paragraph concurrence, it

was clear to them that the majority of the

Court may have been making room for a hold-

ing that exhaustion may sometimes be re-

22a

quired.

I join the opinion of the Court except

insofar as it suggests that the ques-

tion remains open whether plaintiffs

in some suits brought under 42 U.S.C.

§1983 may have to exhaust administra-

tive remedies.

411 U.S. at 581, 93 S.Ct. at 1699 (Marshall,

J., concurring).

We are aware of the numerous instances

in which the Court has stated in opinions,

apparently quite categorically, that exhaus-

tion is not required in section 1983 cases.

But the simple fact of the matter, as one

commentator has noted, is that "in all the

cases in which the Supreme Court has artic-

ulated its no-exhaustion rule, the state ad-

ministrative remedies were sufficiently in-

adequate that exhaustion would not have

been appropriate in any event." Develop-

ments in the Law-Section 1983 and Feder-

alism, 90 Harv.L.Rev. 1133, 1274 (1977).

Accord, Secret v. Brierton, 584 F.2d 823

(7th Cir. 1979); Blanton v. State Univer-

sity of New York, 489 F.2d 377, 383-84 (2d

23a

Cir. 1973); Eisen v. Eastman, 421 F.2d 560

(2a Cir. 1969), cert. denied, 400 U.S. 841,

91 S.Ct. 82, 27 L.Ed.2d 75 (1970); Comment,

Exhaustion of State Administrative Remedies

in Section 1983 Cases, 41 U.Chi.L.Rev. 537,

544-47 (1974). Individual examination of

each section 1983 case mentioning exhaustion

of state administrative remedies bears this

out. Damico v. California, 389 U.S. 416,

88 S.Ct. 526, 19 L.Ed.2d 647 (1967) (per

curiam); King v. Smith, 392 U.S. 309, 88

S.Ct. 2128, 20 L.Ed.2d 1118 (1968); and

Carter v. Stanton, 405 U.S. 669, 92 S.Ct.

1232, 31 L.Ed.2d 569 (1972) (per curiam),

all involved welfare recipients seeking to

have various state laws or regulations de-

clared unconstitutional. In each case it

was beyond the authority of the administra-

tive agency to declare a state statute or

regulation unconstitutional and thus the

administrative remedies were clearly in-

adequate. Houghton v. Shafer, 392 U.S. 639,

24a

88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968) (per

curiam) and Wilwording v. Swenson, 404 U.S.

249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971)

(per curiam) were both cases in which state

prisoners sued prison officials. In Hough-

ton, the Supreme Court specifically noted

that to require exhaustion of administrative

remedies would be to demand a futile act.

In Wilwording, the lower court had suggested

that plaintiffs should be required to ex-

haust certain state judicial remedies,

Wilwording v. Swenson, 439 F.2d 1331 (8th

Cir. 1971), so any language about state ad-

ministrative remedies was dictum. Similarly,

in Steffel v. Thompson, 415 U.S. 452, 94

S.Ct. 1209, 39 L.Ed.2d 505 (1974) and Ellis v.

Dyson, 421 U.S. 426, 95 S.Ct. 1691, 44 L.Ed.

2d 274 (1975), the issue before the Court was

whether plaintiffs could enjoin possible

future state criminal prosecutions, so the

discussion of exhaustion of state administra-

tive remedies was merely dictum. On the

25a

basis of this authority, it cannot be fairly

said that the holdings of the Supreme Court

require lower courts to apply mechanically a

no-exhaustion-ever rule in section 1983 cases.

This analysis of the Supreme Court cases is,

essentially that also made by the Second and

Seventh Circuits in Eisen v. Eastman, 421 F.2d

at 567-69; Blanton v. State University of

New York, 489 F.2d at 383-84; and Secret v.

Brierton, 584 F.2d at 825-28.

In addition to the strong statements in

Gibson v. Berryhill and Barry v. Barchi and

the weakness of Supreme Court authority for

an ironclad rule, there are a number of other

indications that the Supreme Court would per-

mit a flexible approach. In Runyon v.

McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49

L.Ed.2d 415 (1976), Justice Powell noted in

his concurrence:

In some instances the Court has

drifted almost accidentally into

rather extreme interpretations

of the post-Civil War Acts. The

most striking example is the

26a

proposition, now often accepted

uncritically, that 42 U.S.C.

§1983 does not require exhaus-

tion of administrative remedies

under any circumstances. This

far-reaching conclusion was

arrived at largely without the

benefit of briefing and argu-

ment.

427.U.S. at 186 n.*, 96 S.Ct. at 2602 n.*

(Powell, J., concurring).

Recently, three other members of the

Court have made it clear that they do not

consider the no-exhaustion exception in

section 1983 cases to be the final word. In

his dissent from the denial of certiorari in

City of Columbus v. Leonard, 443 U.S. 905,

99 S.Ct. 3097, 61 L.Ed.2d 872 (1979), Justice

Rehnquist, joined by Chief Justice Burger and

Justice Blackmun, declared the time had come

to re-examine the case underpinning the no-

exhaustion exception, Monroe v. Pape.

[T)he time may now be ripe for a

reconsideration of the Court's

conclusion in Monroe that the

"federal remedy is supplementary

to the state remedy, and the

latter need not be first sought

and refused before the federal

27a

443 U.S.

one is invoked. [365 U.S.] at

183 [81 S.Ct. at 481]. As noted

earlier, the Court believed that

this conclusion followed from

the purpose of the Civil Rights

Act "to provide a federal remedy

where the state remedy, though

adequate in theory, was wag not

available in practice.” Id. at

174 [T8I S.Ct. at 4777] (emphasis

added). But this purpose need

not bar exhaustion where the

State can demonstrate that there

is an available and adequate

state remedy. Indeed, scholarly

commentators have soundly

criticized the Court for holding

to the contrary....I would take

the opportunity afforded by this

case to reconsider the Court's

conclusion as to exhaustion of

state remedies. Not only is the

Court's conclusion open to

serious question, as noted

earlier, but the conclusion was

reached in an almost off-the-

cuff manner, in distinct con-

trast to that portion of Monroe

overruled by the Court in

Monell [436 U.S. 658, 98 S.Ct.

2018, 56 L.Ed.2d 611).

at 910-11, 99 S.Ct. at 3101.

(Rehnquist, J., dissenting).

In at least one instance the Supreme

Court declined to follow the rule that a

section 1983 action is not precluded by

failure to exhaust state remedies. The

28a

plaintiff in Huffman v. Pursue, Ltd., 420 U.S.

592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975),

was unsuccessful in a state nuisance action

aimed at shutting down his theater for a

year, but instead of appealing the judgment

within the state court system, immediately

filed a section 1983 action seeking declara-

tory and injunctive relief. Although dis-

claiming any intention to undermine Monroe

v. Pape, the Supreme Court held that, ab-

sent Younger-type extraordinary circumstances,

the plaintiff was required to exhaust his

state appellate remedies before he could

commence a section 1983 action in federal

court. While this holding provides no direct

support for eliminating an exhaustion of ad-

ministrative remedies requirement, it is

another significant piece of evidence that

the no-exhaustion rule is not etched in stone,

at least as far as the Supreme Court is con-

cerned.

Our discussion of Supreme Court cases

29a

is not intended to suggest that they compel

the conclusion we reach here. In truth they

have been analyzed with much the same premise

as Judge Friendly articulated in Eisen v.

Eastman, 421 F.2d 560, 568 (2d Cir. 1969),

cert. denied, 400 U.S. 841, 91 S.Ct. 82,

27 L.Ed.2d 75 (1970), where he said:

[T]he consequences of com-

pelling federal courts to

pass upon all complaints of

unconstitutional acts by

state and local officials at

the lowest level, without any

requirement of appeal to higher

ones, would be so destructive to

proper concepts of federalism

and so needlessly burdensome to

the federal courts that it is

appropriate to examine whether

the decisions have not been

given a broader sweep than the

Court intended.

Additionally we are concerned about a

doctrine which opens the doors of the federal

courthouse immediately to a citizen suing a

state officer for violations of constitutional

or federal law, when the same doors would be

closed to that citizen suing a federal officer

for a similar violation until administrative

30a

remedies had been pursued. A concern for

this unevenness of treatment of state

officials and federal officials by federal

courts may necessarily create an atmosphere

which welcomes the result we here reach, In

any event, our review of the cases convinces

us that they do not prevent a decision to

take an analytical rather than a mechanical

approach to the question of exhaustion of

administrative remedies and to require in

appropriate cases that adequate state admin-

istrative remedies be exhausted before a

section 1983 plaintiff comes into federal

court.

B. Circuit Court Cases

Since this Court is sitting en banc,

neither opinions of prior panels of this

Court nor the decisions of other circuits

control this deliberation. A review of

prior Court of Appeals cases is helpful,

however, to an informed decision. The dis-~-

3la

covery that the circuits are divided on the

point in cases which stand uncorrected by

the Supreme Court bolsters the conclusion

that the door has not been closed to a non-

mechanical rule of exhaustion.

Six circuits, including this one, the

Third, Fourth, Sixth, Eighth and Tenth, have

decided cases that apparently hold that ex-

haustion of state administrative remedies

is never a prerequisite to a section 1983

suit. United States ex rel. Ricketts v.

Lightcap, 567 F.2d 1226 (3rd Cir. 1977);

McCray v. Burrell, 516 F.2d 357 (4th Cir.

1975), cert. dismissed as improvidently

granted, 426 U.S. 471, 96 S.Ct. 2640, 48

L.Ed.2d 788 (1976); Hardwick v. Ault,

517 F.2d 295 (Sth Cir. 1975); Jones y.

Metzger, 456 F.2d 854 (6th Cir. 1972);

‘Simpson v. Weeks, 570 F.2d 240 (8th Cir.

1978), cert. denied, 443 U.S. 911, 99 S.Ct.

3101, 61 L.Ed.2d 876 (1979); Gillette v.

McNichols, 517 F.2d 888 (10th Cir. 1975).

32a

These decisions have simply concluded that

the Supreme Court has laid down a blanket

rule.

Four other circuits, the First, Second,

Seventh and Ninth, have apparently deter-

mined there is no such airtight rule, and

have used a more flexible approach. See

generally Annot., Exhaustion of State Ad-

ministrative Remedies as Prerequisite to

Federal Civil Rights Action Based on 42

U.S.C.S. §1983, 47 A.L.R. Fed. 15 (1980).

The Second Circuit has consistently

ruled that a section 1983 action cannot be

maintained if the plaintiff has failed to

exhaust adequate state administrative re-

medies and if none of the other traditional

exceptions to the exhaustion rule applies.

Gonzalez v. Shanker, 533 F.2d 832 (2d Cir.

1976); Fuentes v. Roher, 519 F.2d 379

(2d Cir. 1975); Blanton v. State University

of New York, 489 F.2d 377 (2d Cir. 1973);

Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969),

33a

cert. denied, 400 U.S. 841, 91 S.Ct. 82,

27 L.Ed.2d 75 (1970). The Second Circuit

reads the Supreme Court cases as merely

condemning a "wooden application" of the

exhaustion doctrine to section 1983 cases.

421 F.2d at 569.

The Seventh Circuit in Secret v.

Brierton, 584 F.2d 823 (7th Cir. 1978),

after analyzing the recent Supreme Court

cases, decided that a non-rigid approach

to exhaustion is permitted under the Supreme

Court decisions and that a state prisoner

should exhaust his administrative remedies

before filing a section 1983 claim in

federal court alleging that his personal

property was unlawfully confiscated without

due process of law. ?

The Ninth Circuit “has not gone so far"

as to infer a blanket no-exhaustion-under-

any-circumstances rule from the Supreme Court

cases. Canton v. Spokane School District #81,

498 F.2d 840, 844 (9th Cir. 1974). In that

34a

circuit, exhaustion of adequate administra-

tive remedies is required if the plaintiff

seeks to forestall a threatened future de-

privation of civil rights. Id. at 844-45.

See also Bignall v. North Idaho College, 538

F.2d 243, 246 (9th Cir. 1976); Toney v.

Reagan, 457 F.2d 953 (9th Cir. 1972), cert.

denied, 409 U.S. 1130, 93 S.Ct. 951, 35 L.Ed.

2d 263 (1973). Exhaustion is not required

if plaintiff claims relief from or compensa-

tion for a deprivation of civil rights which

has already occurred. Whitner v. Davis, 410

F.2d 24, 28 (9th Cir. 1969).

The First Circuit in a footnote dis-

cussion in Raper v. Lucey, 488 F.2d 748 (lst

Cir. 1973), focused on the issue of ripeness.

While rejecting a general or automatic re-

quirement of administrative exhaustion in

section 1983 cases, it adhered to the necessi-

ty for ripeness “to the extent that there must

be at least some definitive administrative

or institutional determination before a

35a

§1983 action may arise." 488 F.2d at 751

n.3. Subscribing to the view expressed in

our own case of Stevenson v. Board of Edu-

cation, 426 F.2d 1154, 1157 (5th Cir.),

cert. denied, 400 U.S. 957, 91 S.Ct. 355,

27 L.Ed.2d 265 (1970), the First Circuit

requires a section 1983 plaintiff to pur-

sue the administrative process until the

action has sufficient institutional finality

to be ripe for adjudication. Raper v. Lucey,

488 F.2d at 751 n.3. The court in Palmigian

v. Mullen, 491 F.2d 978, 981 n.5 (lst Cir.

1974), left open whether in section 1983

prisoner's actions an inmate may be required

to exhaust readily available and adequate

administrative procedures specially designed

for the very grievance in issue.

III. Objections and Policy Considerations

Having determined that under relevant

Supreme Court authority this Court may take

an analytical approach to the question of

36a

exhaustion of state administrative remedies

in section 1983 cases, and having seen that

several of our sister circuits have already

done so, we must now decide whether we

should take such an approach.

There are two basic arguments for a

blanket rule that no exhaustion of admin-

istrative remedies is required in any sec-

tion 1983 case. First, it is argued that

an exhaustion requirement would thwart the

purposes of Congress in enacting section

1983. Second, it is argued that the elim-

ination of an exhaustion prerequisite is

justified because, given the nature of the

rights protected by section 1983, claims for

their protection are entitled to be ad-

judicated in the federal courts.

Although an additional argument could be

made that a mechanical rule is easy to under-

stand and apply, we reject it out of hand

because of the important interests that might

be unthinkingly sacrificed on that altar

37a

of expediency. Instead, we examine the

two principal arguments that could reason-

ably support a no-exhaustion rule.

In Monroe v. Pape, the Supreme Court

examined at length the historical back-

ground and legislative intent of Congress

in enacting section 1983. The Court dis-

serned three main aims for the legislation:

(1) to override certain kinds of state laws

that were inconsistent witn federal law;

(2) to provide a federal remedy where state

law was inadequate; and (3) to provide a

federal remedy where the state remedy was

available in theory but not in practice.

365 U.S. at 173-74, 81 S.Ct. at 476-77.

In the view of the Court, Congress was

least concerned with nullifying state laws.

Its quarrel was not with state statutes then

on the books, but with their lack of even-

handed enforcement. Id. at 174-75, 81 S.Ct.

at 477. Discriminatory state statutes

present, however, the strongest case for not

38a

requiring exhaustion, because in such cases

administrative procedures are unlikely to

provide any significant relief. But as one

commentator has persuasively argued, even

in the case of discriminatory state laws,

categorical rejection of ex-

haustion is inappropriate.

Assuming a state statute is

inconsistent with federal

law, exhaustion may be

appropriate for the purpose

of developing a factual re-

cord, receiving the benefit

of agency expertise in the

administration of its statutes

and rules, and allowing the

agency to limit the applica-

tion of the statute consistent-

ly with federal law. Only

where a factual record is ir-

relevant and the statute is

both facially unconstitutional

and incapable of any appropri-

ate construction is exhaustion

without value.

Comment, Exhaustion of State Administra-

tive Remedies in Section 1983 Cases, 41

U.Chi.L. Rev. 537, 553 (1974) (footnote

omitted).

Far from thwarting congressional intent,

a requirement of exhaustion of adequate

state remedies is wholly consistent with the

second and third congressional purposes

39a

identified in Monroe v. Pape, that is, the

provision of a federal remedy where the

state remedy is inadequate on its face or in

practice. "If Congress sought to provide a

federal remedy where the state remedy is

not adequate in fact, it follows that the

legislative intent required adequate reme-

dies to be exhausted." Comment, 41 U.Chi.

L.Rev. at 553. Although the federal courts

must inquire into the actual efficacy of

the state administrative procedure, once it

is found to provide an adequate remedy, an

exhaustion requirement is consistent with a

section 1983 purpose to provide a federal

remedy where a state remedy is inadequate or

not available in practice.

Regardless of congressional purpose or

intent, however, the question remains as to

whether the nature of every section 1983 claim

entitles it to immediate adjudication in the

federal courts. McNeese v. Board of Education,

40a

373 U.S. at 674, 83 S.Ct. at 1437. It must

be kept in mind that we are here dealing

with state administrative remedy exhaustion,

not state judicial exhaustion. Unlike

judicial actions, state administrative pro-

ceedings carry no res judicata or collat-

eral estoppel baggage into federal court.

Resorting to appropriate and adequate state

administrative remedies in no way precludes

federal court protection of federal consti-

tutional and statutory rights. At most it

can only delay federal court action, at best

it could eliminate the need for such action.

The proper focus should be on relief from

wrong, and the adequacy of the administra-

tive system to provide a remedy, not on the

federal origin of the right that was violated.

There are important policy reasons for

requiring a potential section 1983 plaintiff

to exhaust adequate and appropriate state

administrative remedies. The following dis-

cussion does not necessarily arrange them in

4la

the order of importance, nor does it attempt

to delve into all the nuances of argument for

and against. The purpose here is to set forth

the considerations which to this Court are

controlling.

First, exhaustion promotes a wiser alloca-

tion of judicial resources, and does so in a

variety of ways. To begin with the most ob-

vious, the administrative process may re-

solve the dispute in a manner wholly satis-

factory to the complainant. In that case,

no judicial action at all will be required.

The administrative process may also serve

to focus the contentions of the parties and

eliminate extraneous issues, thereby simpli-

fying any resulting litigation. In cases

where the facts are significant, during the

administrative process the agency can sift

through complicated factual matters and

reduce issues of fact, thus aiding the court

in making its findings of fact. Yet another

potential benefit is that the agency may be

42a

able to construe or interpret statutes or

regulations in such a way as to resolve the

complainant's grievance or to avoid a con-

stitutional conflict. Permitting the admin-

istrative process to function may also allow

the agency to define the contours of a yet

uninterpreted statute or regulation and al-

leviate the necessity of having the federal

courts guess about its meaning.

Second, a reasonable exhaustion require-

ment will assure that "the action com-

plained of is final within the institution

in the sense that it is ripe for adjudica-

tion." Stevenson v. Board of Education,

426 F.2d 1154, 1157 (5th Cir.), cert. denied,

400 U.S. 957, 91 S.Ct. 355, 27 L.Ed.2d 265

(1970). If the university or the Board of

Regents is being sued, it should be clear

that the university or the Board is respons-

ible for the alleged wrong, instead of some

first echelon functionary. As then Chief

Judge Brown stated:

43a

[I]t must be clear that the

body having responsibility,

in response to specific com-

plaints, has for the legal

entity involved, failed or

refused to take corrective

action. The street light in

my block may be inadequate,

and unequal to another neigh-

borhood, but until I can seek

a §1983 order from a federal

Judge, I must at least allow

the city of Houston to turn

me down. This is good sense.

It is good federalism. It is

good nineteen eighty-threeism.

Hawkins v. Town of Shaw, 461 F.2d 1171,

1177 (5th Cir. 1972) (en banc) (Brown, C.J.,

concurring) (emphasis in original). In-

volved in the ripeness concept are notions

of fairness. Many would think it simply

unfair to be summoned into federal court

to defend against a constitutional claim

where they have contrary policies and

machinery to right alleged wrongs in an

orderly fashion, but are given no reason-

able opportunity for that machinery to

operate.

Third, a reasonable exhaustion re-

quirement will improve the administrative

44a

process itself. Prompted by appropriate

judicial decisions, the state administra-

tive agency will have the incentive and be

able to hone its procedures to comply with

federal requirements, both procedural and

substantive, without losing the advantage

of the agency's expertise, its familiarity

with local conditions and awareness of the

impact of particular action on related areas,

and its desire to correct errors of lower

level functionaries within the agency. The

proper roles of the officials within the

agency will be solidified when the errors

of lower level functionaries are corrected

within the agency instead of by the courts.

‘Pourth, administrative remedies are gen-

erally simpler, speedier and less expensive

for the parties themselves. Under a no-

exhaustion rule plaintiffs, of course, would

have a choice between court and administra-

tive procedures. Defendants, however, have

a genuine interest in solving conflicts with

45a

the least court cost and attorney fees.

Failure to require utilization of administra-

tive remedies which might well achieve the

same or a better remedy than could be ob-

tained in court is wasteful of a litigant's

resources.

Fifth, of serious importance to the

judicial system's response to the concept of

dual constitutional government, a require-

ment that a plaintiff complaining of state

action must first exhaust state administra-

tive remedies is supported by fundamental

notions of federalism and comity. The

policy here has at least three significant

bases. First, the citizens of a state have

a constitutionally based interest in auto-

nomously running the state business and

government to the fullest extent possible,

until it collides with the federal consti-

tution. The constitutional collision should

-come, if at all, at the end of state action,

not at the beginning. An early law review

46a

note on the subject articulates this con-

cern as follows:

A strong state interest is

reflected in the establish-

ment of a comprehensive scheme

of regulation; authority over

the subject matter of the dis-

pute has been vested in an ex-

pert supervisory body, far

more familiar than a federal

court with local factors that

legitimately affect adminis-

tration. Moreover, the states,

as well as the federal govern-

ment have an interest in pro-

vidiiug a means whereby official

abuse can be corrected without

resort to lengthy and costly

trial....{A] federal court ad-

judicating a suit under the

Civil Rights Act must consider

the implications of division of

responsibility under a federal

system of government. The de-

velopment of the exhaustion

doctrine represented, at least

in part, an attempt to minimize

intergovernmental friction by

deferring to the maximum ex-

tent possible to the interest

of the states in ordering and

regulating their own affairs.

Note, Exhaustion of State Remedies Under

the Civil Rights Act, 68 Colum.L.Rev. 1201,

1206-07 (1968) (footnotes omitted). Second,

much of the work of the federal courts even

since that law note was written has been to

47a

establish rules and regulations under which

the states must operate to meet due process

and other constitutional requirements.

That effort is of little practical value if

the parties the courts have sought to protect

by improving the state procedwral structure

can turn their backs on state administrative

remedies and go directly into a federal fo-

rum. Good faith efforts by the states to

provide protection for such parties are dis-

couraged when federal courts encourage ig-

noring state administrative remedies. Third,

plaintiffs are required to exhaust federal

administrative remedies. As Professor Davis

queried, "Why are not the reasons for requir-

ing exhaustion of state remedies stronger

than the reasons for requiring exhaustion of

federal remedies, on account of all the

reasons behind the abstention doctrine?"

K. Davis, Administrative Law §20.01 at 646

(Supp. 1970). In terms of comity, why

should not state defendants have at least

48a

the same rights as federal defendants in suits

against them for alleged governmental wrongs?

IV. The Decision

Considering the policy factors which so

heavily favor the imposition of an exhaus-

tion requirement, we are compelled to conclude

that adequate and appropriate state adminis-

trative remedies must be exhausted before a

section 1983 action is permitted to proceed

in federal court, absent any of the tradi-

tional exceptions to the general exhaustion

rule. In so holding, we make it clear that

we deal only with the question of what must be

done procedurally before a section 1983 ac-

tion is prosecuted in federal court. This

decision in no way limits the range of sub-

stantive rights for which section 1983 pro-

vides a remedy.

In determining whether the administra-

tive remedies available to a particular plain-

49a

tiff are adequate and appropriate, the courts

should look to the large body of law apply-

ing the exhaustion requirement in non-section

1983 contexts. In view of the importance of

the rights protected by section 1983, however,

certain minimum conditions must be met before

resort to state administrative remedies can be

made a prerequisite to proceeding under section

1983. First, an orderly system of review or

appeal must be provided by statute or written

agency rule. Second, the agency must be able

to grant relief more or less commensurate with

the claim. Third, relief must be available

within a reasonable period of time. Fourth,

the procedures must be fair, and not unduly

burdensome, and must not be used to harass or

otherwise discourage those with legitinate

claims. Fifth, interim relief must be avail-

able, in appropriate cases, to prevent irrepar-

able injury and to preserve the litigant's

rights under section 1983 until the adminis-

trative process has been concluded.

50a

Where these minimum standards are met,

the court will need to further consider the

particular administrative scheme, the

nature of the interest the plaintiff seeks to

protect, the values served by the exhaustion

doctrine, and the proper balance of these

interests in this type of case. See McKart

v. United States, 395 U.S. at 193, 89 S.Ct.

at 1662.

Contrary to the suggestion that the

adoption of an exhaustion of administrative

remedies requirement will somehow "turn back

the clock" on civil rights law, we think

that a carefully devised, well-monitored ex-

haustion requirement might well advance the

cause of potential civil rights litigants.

The resulting development of speedy and

effective state administrative procedures for

the vindication of 1983 transgressions could

make available less expensive, less time

consuming, more accessible, easily under-

standable procedures. For all litigants

5la

alike, but most particularly for those poten-

tial litigants who are neither so poor that

they lose nothing by protracted federal court.

litigation nor so rich they can afford the risk

of loss without financial worry, carefully

constructed procedures within their own state

and especially within their own agency should

be a step forward, not backward. To suggest

that administrative procedures are not up to

the task of dispute resolution in 1983 con-

troversies is to ignore a century °f develop-

ment in this widely accepted field of juris-

prudence. To confuse substance with procedure

is to obfuscate the purpose of the rule here

adopted.

V. The Present Case

In the complaint in this case, plaintiff

alleged employment discrimination against

her because she was white and a female. The

complaint did not mention any effort to ob-

tain relief through administrative procedures.

”»

52a

The Board of Regents filed a short motion for

dismissal "because the plaintiff has failed to

exhaust her administrative remedies." Ina

supporting memorandum, the Board's attorney

asserted that the rules of the university

prohibit race and sex discrimination in its

employment practices and that certain admin-

istrative procedures were available for any-

one who has been aggrieved in equal employ-

ment opportunity. The memorandum said:

As a Career Service employee,

Ms. Patsy has access to several

administrative grievance pro-

cedures in the State University

System. The administrative rules

of the Department of Administra-

tion Career Service System, Div-

ision of Personnal provide that

each Career Service employee or

applicant shall be assured of

an equal opportunity in all

agency employment practices

without regard to that person's

“race, color, sex, religion,

creed, national origin, political

opinions or affiliations, or age"

except as provided by law. Fla.

Admin. Code, Chapter 22A-15.02

(1). These rules also provide

for a comprehensive complaint,

review and appeal procedure for

any career service employee or

applicant who feels he or she

53a

has been aggrieved with respect

to equal employment opportunity.

Id., Chapter 22A-15.05. The De-

partment of Administration also

requires each agency to estab-

lish written procedures for

handling grievances of Career

Service employees. Id., Chapter

22A-10.04. As a result of this

requirement, the administrative

rules of the Department of Edu-

cation, Florida International

University provide a compre-

hensive method of handling the

grievances of its Career Service

employees. Id., Chapter €C8-

4.05. Under these rules, Ms.

Patsy could have initiated an

adequate and readily available

grievance procedure after the

denial of any of her applica-

tions. Id., Chapter 6C8-4.05

(2) (a).

The memorandum further stated that the Board

of Regents "has the power to remedy any

practices which violate the University System's

commitment to nondiscrimination and equal em-

ployment opportunity.”

In a responsive memorandum, the plain-

tiff simply argued that exhaustion of state

administrative procedures is not required

in section 1983 causes of action. The

district court, apparently without hearing

54a

and without examining the adequacy of the

administrative remedies available to plain-

tiff or any exceptions to the exhaustion rule,

dismissed the complaint.

The district court correctly rejected

the wooden application of the no-exhaustion

requirement in section 1983 cases asserted

by plaintiff. The record reflects, however,

that it would have been impossible for that

court to tell whether state administrative

remedies were adequate in the context of the

rights asserted by plaintiff, or whether she

had in fact bypassed adequate remedies.

We therefore remand the case to the

district court with directions to permit

plaintiff to amend her complaint and then

to apply the principles set forth in this

opinion in determining whether plaintiff

should be required to exhaust state admin-

istrative remedies before bringing this

action. If the district court finds there

are appropriate administrative remedies that

55a

plaintiff should exhaust, it may dismiss

her complaint without prejudice. If the

court finds on examination an exception

to the requirement of exhaustion, then

the case can proceed accordingly.

VACATED AND REMANDED WITH

INSTRUCTIONS.

56a

ALVIN B. RUBIN, Circuit Judge,

with whom VANCE, FRANK M. JOHNSON, Jr.,

HATCHETT and SAM D. JOHNSON, Circuit

Judges, join, dissenting:

The majority opinion is both a

scholarly and pragmatic exposition of

the reasons why Section 1983 claimants

should in some cases be required to

resort to administrative remedies

before entering federal court. The

evident fault lies not in its logic

but in its eventual, albeit respectful,

disregard for the numerous instances

in which the Supreme Court has stated,

“apparently quite categorically, that

exhaustion is not required in Section

1983 cases," p. 906, and in its reli-

1. Among these cases are Ellis

Ve son, 421 U.S. 426, 432-33, 55

ste 1691, 1694-95, 44 L.Ed.2d 274

(Footnote continued on next page)

57a

ance on inferences drawn from Barry v.

Barchi, 443 U.S. 55, 99 S.Ct. 2642,

61 L.Ed.2d 365 (1979); Gibson v. Berry-

hill, 411 U.S. 564, 93 S.Ct. 1689, 36

(Footnote continued from preceding page)

(1975); Wolff v. McDonnell, 418 U.S.

539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974);

Allee v. Medrano, 416 U.S. 802, 814, 94

S.Ct. 2191, 2200, 40 L.Ed.2d 566, 580

(1974); Steffel v. Thompson, 415 U.S.

452, 472, 94 S.Ct. 305" 1222, 39 L.Ed.

2d 505 (1974); Preiser v. Rodriguez,

411 U.S. 475, 492-953 n. 10, 953 - Ct.

1827, 1837-38 n. 10, 36 L. Ed, 2a 439

(1973); Carter v. Stanton, 405 U.S. 669,

671, 92 S.Ct. 1232, 1234, 31 L.Ed.2d

569 (1972); Wilwordin v. Swenson, 404

U.S. 249, 251-52, 92 -- Ct. 407, 709, 30

L.Ed.2d 418 (1971) ; Houghton v. Shafer,

392 U.S. 639, 640, 88 S.Ct. 2119, 2120,

20 L.Ed.2d 1319 (1968); King v. Smith,

392 U.S. 309, 312 n. 4, 88 - Ct. 2128,

2131 n. 4, 20 L.Ed.2d 1118 (1968);

Damico v. eect t 389 U.S. 416,

= 27, 19 L.Ed.2d 647

(1967); McNeese v. Board of Education,

373 U.S. 600, 6072, 63 5.Ct. 1433, 1435,

10 L.Ed. 2d 622 (1963). See 13 C.

Wright, A. Miller & E. Cooper, Federal

Practice and Procedure: jwrisdiction

§ 3573, at 497-98 (1975). As one com-

mentator has noted, “it is significant

that the Court has never in fact re-

quired exhaustion of state administra-

tive remedies in a[§] 1983 case." S.

Nahmod, Civil Rights & Civil Liberties

Litigation 145 (1979).

58a

L.Ed.2d 488 (1973).” My brethren find

emanations from these cases that lead

them to believe a Supreme Court major-

ity is willing to adopt a rule of admin-

istrative exhaustion, but in neither

case did the Court abandon the doctrine

it had so often previously iterated.

In its effort to escape the import

of what the highest court has done, the

majority opinion suggests that the

Supreme Court spoke only in dicta in

every instance where the rule has been

stated. Statements of the rule may

indeed generally have been dicta. See,

2. Note that the no-exhaustion

rule was categorically restated in

Ellis v. Dyson, supra, decided in 1975,

two years after the decision in Gibson

v. Berryhill, which is relied upon by

the majority. See Judge Hunter's

thorough opinion in United States ex

rel. Ricketts v. Li htcap 567 F.2d

1236 Gad Cir- Ly

59a

e.g., Steffel v. Thompson, 415 U.S, 452,

94 S.Ct. 1209, 39 L.Ed. 2d 505 (1974).

In Wilwording v. Swenson, 404 U.S.

249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971)

(per curiam), however, the Supreme Court

did not discuss the adequacy of state

remedies when it held that exhaustion

of state administrative remedies was

not required. The majority describes

the statement in Wilwording as dictum

because “the lower court had suggested

that plaintiffs should be required to

exhaust certain state judicial

remedies." (P. 907. Emphasis in

original.) However, the Court of Ap-

peals decision, Wilwording v. Swenson,

439 F.2d 1331 (8th Cir, 1971), states,

"The state administrative procedure

act is available as are suits for

damages . . . ." and required the

60a

Plaintiffs to exhaust "available state

procedures before requesting equitable

relief in the federal courts." In re-

versing this decision, the Supreme

Court began with the observation that

the Court of Appeals had required the

plaintiffs to invoke possible alter-

natives including "perhaps other relief

under the State Administrative Procedure

Act." Wilwording, 404 U.S. at 250, 92

S.Ct. at 249. The per curiam succinctly

observes: "The remedy provided by [the

Civil Rights Act] ‘is supplementary‘ to

the state remedy and the latter need not

be first sought and refused before the

federal one is invoked," and cites

three of its prior decisions.

In stating consistently that ex-

haustion is not required, the Supreme

Court must have been aware of the

6la

factors considered in the majority opin-

ion and previously relied upon by the

Second Circuit, speaking through Judge

Friendly, in Eisen v. Eastman, 421 F.2d

560 (2d Cir. 1969), cert. denied, 400

U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75

(1969). It must have been aware, too,

that there are good reasons beyond mere

precedent not to require exhaustion of

state remedies. These include the de-

sirability of giving to civil rights

plaintiffs, many of whom are indigent,

the swiftest and least costly form of

relief. See Comment, Exhaustion of

State Administrative Remedies Under

the Civil Rights Act, 8 Ind.L.Rev. 565

(1975); Comment, Exhaustion of State

Remedies Under the Civil Rights Act,

68 Col.L.Rev. 1201 (1968).

62a

The Supreme Court was also aware

that the statute later codified as sec-

tion 1983 was enacted by Congress in the

belief that the states, or at least some

of them, would not provide remedies for

constitutional deprivations inflicted

upon their citizens. In Mitchum v.

Foster, 407 U.S. 225, 240-41, 92 S.Ct.

2151, 2161, 32 L.Ed.2d 705 (1972), the

Court quoted these statements from the

debate over that statute:

[R]ecords of the [state] tribunals

are searched in vain for evidence of

effective redress [of federally secured

rights].

The Federal Government cannot serve

a writ of mandamus upon State Executives

or upon State courts to compel them to

protect the rights, privileges and

immunities of citizens.

All the apparatus and machinery

63a

of civil government, all the processes

of justice, skulk away as if government

and justice were crimes and feared

detection. Among the most dangerous

things an injured party can do is to

appeal to justice,

See Monroe y. Pape, 365 U.S. 167, 81

S.Ct. 473, 5 L.Ed.2d 492 (1961).

The Congress that enacted Section

1983 had cause to doubt the willingness

of state authorities to redress violations

of federal constitutional rights, and to

be especially troubled by the attitude

of state officials in those states where

such yiolations were so grievous as to

generate the urgent need for federal

legislation, Congress, therefore, did

not require exhaustion of state judi-

cial or administrative remedies and the

64a

Supreme Court itself has never done

so despite the Court's invocation in

other situations of federalism as a

basis for adopting abstention and

other doctrinal reasons to withhold

federal judicial action until state

relief has been unsuccessfully sought.

When the court that is constitu-

tionally designated as Supreme has

spoken so often, so categorically and

so recently, it is not meet for us, as

an inferior court, to avoid the patent

import of those judicial statements.

Justification for our departure cannot

be found in the requirement that claim-

ants asserting violations of their rights

by federal officials are required to

exhaust their federal remedies. Those

claims are founded in other statutes or

on implied remedies. The Congress that

enacted Section 1983 did not have the

65a

faith in state administrative remedies

that later Congresses undoubtedly had in

the federal administrative remedies of

their own creation. Indeed, Congress

so doubted the dedication of the

members of state executive branches

that it enacted the very statute we

now interpret. See Mitchum v. Foster,

supra. Since 1871, Congress has not

expressed a contrary legislative intent

in the area of civilrights violations

by state officials. Moreover, requiring

resort to a nationally uniform federal

administrative procedure is not the same

as requiring pretesting of fifty diverse

mechanisms whose personnel and procedures

vary tremendously.

The majority may sense that, to

some degree, Georgia Patsy's claim is

not ripe for adjudication. We have

insufficient information on appeal to

66a

determine whether the defendant is

truly “committed to conduct that would

raise the proffered issues for decision."

13 C. Wright, A. Miller & E. Cooper,

Federal Practice and Procedure: Civil

§3532, at 247. The university's fail-

ure to act on Ms. Patsy‘s application

may or may not have been sufficient

to commit it to the role of adversary

for purposes of this litigation. See

Stevenson v. Board of Education, 426

F.2d 1154 (5th Cir, 1970), cert.

denied, 400 U.S, 957, 91 S.Ct. 355,

27 L.Ed.2d 265 (1970). Ripeness, how-

ever, is an entirely separate doctrine

from exhaustion of administrative

remedies. United States ex rel.

Ricketts v. Lightcap, supra; Stevenson

v. Board of Education, supra. Ripeness

is satisfied at the first moment when

the controversy becomes justiciable;

this moment may occur long

before administrative remedies have been

67a

exhausted if the parties are sufficiently

adverse and the facts have been adequately

developed, whether or not alternative

forums are available. Questions about

ripeness might warrant a remand to the

district court, but such questions do

not justify the adoption of the panoply

of exhaustion rules.

No less than the majority, I wel-

come the increasing willingness of

state administrators and judges to

vindicate federal rights. Only Congress,

however, may substitute a policy of

congressional deference to state remed-

ial devices whose adequacy the majority

opinion must announce a rule regalia to

define. I am troubled that, despite

this attempt to fashion protection for

the civil rights litigant, remedy-

exhaustion may prove to be litigant

exhaustion. Congress may still believe

68a

that, in spite of the policy factors ad-

duced by the majority, the federal courts

are likely to provide a civil rights

plaintiff with the swiftest, least costly

and most reliable remedy, and that the

litigant should have access to these

portals without first passing through

state administrative antechambers. In

any event, it is not for this court

to make such policy judgments in

the face of consistent Supreme Court

teaching to the contrary and subse-

quent apparent congressional concurrence

in that doctrine for decades.

KRAVITCH, Circuit Judge, dissenting:

The majority, in a comprehensive

opinion, advances compelling arguments

for requiring exhaustion of state admin-

istrative remedies, where adequate, as a

prerequisite to a § 1983 action. I do

69a

not agree, however, that the language in

any Supreme Court opinion cited author-

izes a lower court to adopt this change.

In my judgment, we are bound by the pre-

sent rule of non-exhaustion until Con-

gress amends the statute or the Supreme

Court alters its interpretation.

I therefore dissent.

HATCHETT, Circuit Judge, with whom

ALVIN B. RUBIN, VANCE, FRANK M. JOHNSON,

Jr. and THOMAS A. CLARK, Circuit Judges

join, dissenting:

I respectfully dissent.

The majority holds that "adequate

and appropriate state administrative

remedies must be exhausted before a

section 1983 action is permitted to

proceed in federal court absent any of

the traditional exceptions to the gen-

eral exhaustion rule." I dissent

70a

because this holding contravenes numer-

ous decisions of the nation's highest

Court; presumes a congressional intent

never articulated by Congress; usurps

authority delegated to Congress; and

turns the clock back to the 1950's by

creating a procedural nightmare that

can only have a “chilling effect" on

civil rights litigation. In short, I

dissent because I believe the majority

opinion is both legally unsound and

judicially inappropriate.

The majority makes much of the

observation that administrative reme-

dies were inadequate in each of the

cases in which the Supreme Court has

stated that a section 1983 plaintiff

need not exhaust state administrative

remedies. In my opinion this observa-

tion neither requires nor permits a

lower court to institute an exhaution

J7la

rule for 1983 plaintiffs. As a tribunal

bound by law and oath to follow the

declarations of our highest Court, we

must assume that the Supreme Court means

what it says when reiterating, “apparently

quite categorically, that exhaustion is

not required in Section 1983 cases."

Majority opinion, at 906. Why would

the Supreme Court articulate an absolute

no-exhaustion rule in cases in which it

was admittedly unnecessary unless the

Court intended the lower courts to

adhere to that rule in all 1983 cases?

We must not presume that the Supreme

Court makes meanincless, gratuitous

statements. Instead; we must give

deference and substance to its repeated,

unequivocal declaration that exhaustion

72a

is not required in section 1983 cases.

Numerous cases have presented the

Court with an opportunity to recant its

no-exhaustion declaration. Eminent

1. As noted by Judge Rubin, the

Supreme Court has made this unequivocal

declaration in the following cases:

Ellis v. -pygon. 421 U.S. 426, 432-33,

, 1694-95, 44 L.Ed.2d 274

(1975); "Wolff v. McDonnell, 418 U.S. 539,

94 S.Ct. 2963, 41 L.Ed.2d 935 (1974);

Allee v. Medrano, 416 U.S. 802, 814, 94

, 40 L.Ed.2d 566, 580

(1974); Steffel v. Thompson, 415 U.S.

452, 472, 94 8.Ct. 1209, 1222, 39 L.Ed.

24 505 (1974); Preiser v. Rodriguez, 411

U.S. 475, 492-93 n. 10, 93 5.Ct. 1827,

1837-38 n. 10, 36 L.Ed.2d 439 (1973);

Carter v. Stanton, 405 U.S. 669, 671,

e 34. 31 L.Ed.2da 569

(1972); Wilwordin v. Swenson, 404

U.S. 249, 251- 52, 92 5.Ct. 407, 409.

30 L.Ed.2d 418 (1971); Houghton v.

Shafer, 392 U.S. 639, 640, 88 te 2119,

20 L.Ed.2da 1319 (1968); King v.

auith, 3920.8. 309, 312 n. 4, 80-8 -Gt.

2128, 2131 n. 4, 20 L.Ed.2d 1118 (1968);

Damico v. California, 389 U.S. 416, 417,

eGte 9 L.Ed.2d 647 (1967);

McNeese v. Board of Education, 373 U.S.

° P , 10 L.Ed.

2d 622 (1963).

73a

critics have urged the Cowrt at least

to restrict the scope of the rule to

cases falling within the established

exceptions to the exhaustion require-

ment. 7 Never has the Court,retreated

from its original pronouncement that

exhaustion of state remedies is simply

unnecessary to the institution of a

section 1983 action, The significance

of the Court's steadrast refusal in case

after case to discard or diminish its

no-exhaustion rule cannot be overesti-

mated,

The Supreme Court did not announce

its no-exhaustion rule in a vacuum.

2. See, e.g., Eisen v. Eastman,

421 F.2d 560 ( ir. 1969), cert.

denied, 400 U.S. 841, 91 S.Ct. 82,

27 L.£d.2d 75 (1970) (Friendly J.);

Comment, Exhaustion of State Admini-

strative Remedies in Section 1983 Cases,

- * . Vv. _

74a

Prior to its decision in McNeese v. Board

of Education, 373 U.S. 668, 83 S.Ct.

1433, 10 L.Ed.2d 622 (1963), a frequent

impediment to the prosecution of suits

under section 1983 had been the require-

ment that a plaintiff exhaust adequate

state administrative remedies before

proceeding in federal court.°? Commenta-

tors noted that prior to McNeese the

"requirement that a plaintiff exhaust

state administrative remedies before

he may maintain a suit in equity under

section 1983 was black letter law." Note,

Limiting the Section 1983 Action in the

Wake of Monroe v. Pape, 82 Harv.L.Rev.

1486, 1500 (1969). The Court's no-ex-

haustion rule regarding state judicial

3. Comment, Exhaustion of State

Remedies Under the Civil Rights Act,

~L.ReV. L2OlL (1968).

75a

remedies, exemplified by Monroe y. Pape,

365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d

492 (1961), and the Court's no-exhaus-

tion rule regarding state administrative

remedies, announced in McNeese, together

with their progeny represent a natural

judicial effort to permit the full im-

plementation of the Civil Rights Act of

1871.

Any “confusion surrounding these

cases derives partly from the factual

context of the cases (most fall within

traditional ‘inadequate’ or ‘futile’

exceptions) and partly from the puz-

zling brevity of the courts’ explana-

tions for such a no-exhaustion rule."

Comment, Exhaustion of State Administra-

tive Remedies Under the Civil Rights Act,

8 Ind.L.Rev. 565, 570 (1975). Yet

careful examination of the concerns of

Congress and the decisions of the Sup-

76a

reme Court should remove any confusion

and solve any puzzle surrounding the

Court's declaration of a no-exhaustion

rule in all 1983 actions.

I. SECTION 1983 AND THE COURT

A. The Early History of Restrictive

udicia nterpretations

Section 1983 was enacted as part

of the Civil Rights Act of 1871 (the

“Ku Klux Klan Act"). The section pro-

vides a private, federal remedy for

persons deprived of federal rights un-

der color of state law:

Every person who, under color of

any statute, ordinance, regulation,

custom, or usage, of any State or

Territory, subjects, or causes to

be subjected, any citizen of the

United States or any other person

within the jurisdiction thereof

77a

to the deprivation of any rights,

privileges, or immunities secured

by the Constitution and laws, shall

be liable to the party injured in

an action at law, suit in equity,

or other proper proceeding for

redress. [42 U.S.C. § 1983.]

Though this Lanquace is broad and

inclusive, section 1983 initially proved

ineffective as a shield against state 4

violation of federal rights. Restrictive

judicial interpretation permitted a

section 1983 action only to vindicate

section 1983 offenses actually committed

by the states. Civil Rights Cases 109

U.S, 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883);

United States v. Cruikshank, 92 U.S, 542,

23 L.Ed. 588 (1875).

In the 1940's, the Supreme Court

began to allow full implementation of

78a

the Civil Rights Act by recognizing

the broad reach of the words "under

color of state law.” 42 U.S.C. § 1983.

See Screws v. United States, 325 U.S.

91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945);

United States v. Classic, 313 U.S. 299,

61 S.Ct.1031, 85 L.Ed. 1368 (1941);

Hague v. CIO, 307 U.S. 496, 59 S.Ct.

954, 83 L.Ed. 1423 (1939). This new

recognition of the substantive scope of

section 1983, however, failed to remove

the major procedural impediment to its

full effectiveness: the judicially-

created requirement of exhaustion of

state judicial and administrative rem-

edies. As late as 1960, less than 300

federal suits were brought under all of

the civil rights acts. Administrative

Office of the United States Courts,

1960 Annual Report of the Director 232,

table C 2. "Section 1983, enacted as

79a

part of the Civil Rights Act of 1871 to

enforce the guarantees of the fourteenth

amendment by providing a cause of action

in federal court, lay dormant as a re-

sult of restrictive judicial construc-

tion until the Supreme Court's 1961

decision in Monroe v. Pape." Develop-

ments in the Law--Section 1983 and Fed-

eralism, 90 Harv.L.Rev. 1133, 1135-36

(1977).

B. The Seminal Decision of Monroe

—_—_—_——

v. Pape

In Monroe y. Pape, 365 U.S. 167,

81 S.Ct. 473, 5 L.Ed.2d 492 (1961), an

Illinois resident sought damages under

section 1983 from the City of Chicago

and individual policemen for allegedly

conducting an unconstitutional search

of his home under color of state law.

Since the alleged conduct of the police-

men also violated Illinois law, the

80a

action could have been brought under

state law in state court. Although the

Supreme Court concluded that the City of

Chicago could not be sued as a “person”

under section 1983, it held that the

alleged conduct of the policemen which

violated state law constituted "action

under color of state law" and supported

a section 1983 action in federal court

without the necessity of exhausting state

judicial remedies.

In concluding that exhaustion was

unnecessary, the Monroe Court examined

the history and purposes of section

1983. The Court identified these pur-

poses as: (1) the overriding of parti-

cular state laws; (2) the provision

of a remedy when state law was inade-

quate; and, (3) the creation of a fed-

eral remedy when the state remedy,

though adequate in theory, was not

8la

available in practice. Monroe, at

173-74, 81 S.Ct. at 476-77. These first

three purposes could have been served

by requiring a section 1983 plaintiff to

exhaust his state judicial remedies when-

ever they are truly adequate, Since there

had been no showing in Monrve that the

state laws and procedures were in any way

deficient, the Court's decision to permit

federal suit without such exhaustion nec-

essarily rested upon a critical fourth

purpose underlying section 1983: the

“federal remedy is supplementary to the

state remedy, and the latter need not

be first sought and refused before the

federal one is invoked." Monroe, at 183,

81 S.Ct. at 481; see, e,g., Developments”

in the Law--Section 1983 and Federalism,

90 Haryv.L.Rev. 1133, 1170 (1977).

The majority opinion virtually

ignores this clearly-stated and crit-

82a

ically-important fourth purpose of pro-

viding a federal remedy through 1983 that

is fully independent and supplementary.

The majority merely argues that “[flar

from thwarting congressional intent, a

requirement of exhaustion of adequate

state remedies is wholly consistent

with the second and third congressional

purposes identified in Monroe v. Pape,

that is, the provision of a federal rem-

edy where the state remedy is inadequate

on its face or in practice." (Emphasis

added.) Yet the decision today to

institute traditional exhaustion re-

quirements in 1983 cases clearly thwarts

Monroe's fourth purpose of providing an

independent, supplemental federal remedy.

The majority opinion does obliquely

acknowledge this fourth supplementary

_ purpose of section 1983 through exten-

sive quotation of Justice Rehnquist's

83a

dissent from the denial of certiorari in

City of Columbus v. Leonard, 443 U.S. 905,

99 S.Ct. 3097, 61 L.Ed.2d 872 (1979).

Joined by two other members of the Court,

Justice Rehnquist concluded in this dis-

sent that “the time may now be ripe for

a reconsideration of the Court's conclu-

sion in Monroe that the ‘federal remedy

is supplementary to the state remedy,

and the latter need not be first sought

and refused before the federal one is

invoked.'" Leonard, at 911, 99 S.Ct.

at 3101. Apparently a -uper-majority of

the Supreme Court disagreed; Justice

Rehnquist could only dissent. His invita-

tion to reconsider the supplementary nature

of section 1983 thus represents nothing

more than an invitation declined. At

least Justice Rehnquist admits what this

court would deny: the independence of

1983 from state remedies constitutes

the established law of our

highest Court, law which that

84a

Court refused to reconsider as recently

as 1979.

C. Extension of Monroe to Administra-

tive Remedies

Monroe referred only to the exhaus-

tion of state judicial remedies. Yet the

Monroe Court's recognition that Congress

intended section 1983 to provide an inde-

pendent and supplementary federal remedy

4. Aside from the fact that Justice

Rehnquist expresses no more than a dis-

senting view, his reasoning in Leonard

cannot withstand scrutiny. In a portion

of the dissent deleted by the majority

opinion, Justice Rehnquist reasons that

because the Court has recently over-

turned that portion of Monroe which ren-

dered local governments immune from

suit under 1983, “the time may now be

ripe" for reconsideration of the other

Monroe holding that the federal remedy

is fully supplementary. The problem with

this reasoning is that the Court over-

ruled a portion of Monroe not to diminish

its impact, but to realize the full

reach of 1983 by making subsidiary local

governments liable on the same basis

as a state government, See Monell v.

New York City eee oe of Social ser-

Vv ces, . 7 f e e ’

(footnote continued on next page)

85a

laid the foundation for extension of the

exhaustion principle to administrative

procedures.

This extention occurred in the 1963

decision of McNeese v. Board of Education,

373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d

622 (1963). In McNeese, black students

alleged racial discrimination in an

Illinois public school system and brought

suit under section 1983 for equitable

relief. The administrative remedy avail-

able to the plaintiffs provided that res-

idents could file a complaint with the

Superintendent of Public Instruction,

who would then hold a hearing. If the

(Footnote continued from preceding page)

L.Ed.2d 611 (1978). Developments after

Monroe thus show an increase in the

reach of section 1983, rather than fore-

telling its dilution through institution

of an exhaustion requirement.

86a

Superintendent decided that the allega-

tions were correct, he would request the

attorney general to bring suit in the

state courts. The district and appel-

late courts dismissed the suit for failure

to exhaust available administrative reme-

dies.

Relying upon the fourth congressional

purpose identified in Monroe, the Court

in McNeese held that plaintiffs bringing

suit under section 1983 were not subject

to any exhaustion requirement: “relief

under the Civil Rights Act may not be

defeated because relief was not first

sought under state law which provided

a remedy.“ McNeese, at 671, 83 S.Ct. 1435.

Admittedly, the McNeese Court also

based its decision upon the finding that

the state administrative remedy was

inadequate, since it offered only "ten-

uous protection” to the plaintiffs’ fed-

eral rights. McNeese, at 676, 83 S.Ct.

87a

at 1438. The mere fact that the Court

refused to base McNeese solely upon this

inadequacy of the state remedy suggests

that it intended to announce a no-exhaus-

tion rule for all section 1983 cases.

Moreover, subsequent Supreme Court inter-

pretations of McNeese show that the Court

views McNeese as establishing that state

administrative procedures need not be

exhausted even when they are adequate.

D. The Post-McNeese Decisions

Four years after McNeese, the Court

decided Damico v. California, 389 U.S.

416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967).

In Damico the Court quoted McNeese for

the proposition that "relief under

the Civil Rights Act may not be defeated

because relief was not first sought

under state law which provided [an

administrative] remedy." Damico, at

417; 88 S.Ct. at 526 (quoting from

McNeese v. Board of Education, 373 U.S,

668, 671, 83 S.Ct. 1433, 1435, 10 L.Ed,

2d 622 (1963) (bracketed material added by

the Damico Court). The Damico Court's

insertion of the words "an administra-

tive" indicates its desire to confirm

that McNeese had completely abolished

the administrative exhaustion require-

ment. To comprehend the full import of

the insertion "an administrative,"

Justice Harlan's lone dissent in Damico

must be considered, Significantly,

Justice Harlan argued that McNeese

did not govern in Damico because of the

finding in McNeese that the state admin-

istrative remedy was inadequate. The

majority of the Damico Court rejected

Justice Harlan's restrictive view of

McNeese; no Justice joined Justice

Harlan's dissent.

The import of Damico and its lone

dissent was apparent to commentators.

As one thoughtful article stated:

Prior to the 1967 term, the Supreme

Court's treatment of the exhaustion

requirement had been inconclusive.

Last year, however, when the need

for exhaustion was again urged upon

the Court in Damico v. California,

it was rejected summarily. Surpris-

ingly, the question was treated as

one governed by settled law.

The Supreme Court in Damico ap-

pears to have eliminated the exhaus-

tion requirement in suits under the

Civil Rights Act. The result is not

surprising; recent pronouncements

by the Court had perhaps foreshadowed

this development. What is surprising

is the summary nature of the opinion,

90a

for neither of the two cases cited

by the Court--McNeese and Monroe--

mandated the result reached.

Comment, Exhaustion of State Remedies

Under the Civil Rights Act, 68 Col.L.Rev.

1201, 1201-1202 (1968) (footnotes omitted).

That the Court chose to treat the exhaus-

tion question presented in Damico as one

of “settled law" is of crucial signifi-

cance. In short, Damico erased any

doubt about exhaustion in 1983 cases by

confirming that McNeese stands for the

proposition that "relief under the Civil

Rights Act may not be defeated because

relief was notfirst sought under state

law which provided [an administrative]

remedy." Damico, 389 U.S, at 417, 88

S.Ct. at 526.

It therefore matters little that in

Damico "it was beyond the authority of

the administrative agency to declare

a state statute or regulation unconsti-

9la

tutional and thus the administrative rem-

edies were clearly inadequate." Majority

opinion, at 907; accord, Secret v. Brier-

ton, 584 F.2d 823 (7th Cir. 1979); Eisen

v. Eastman, 421 F.2d 560 (2d Cir. 1969),

cert. denied 400 U.S. 841, 91 S.Ct. 82,

27 L.Ed.2d 75 (1970). While administra-

tive remedies may have been inadequate,

the Damico Court refused to rest its

decision on this ground, and indeed, did

not even mention it, Even more important

than the Court's lack of interest in the

adequacy of remedies in Damico itself was

the Court's interpretation of McNeese as

rendering any inquiry into state admini-

strative remedies simply irrelevant in

1983 actions.

In the next Supreme Court case treat-

ing administrative exhaustion, King v.

Smith, 392 U.S, 309, 88j\S.Ct. 2128, 20

L.Ed.2d 1118 (1968), the Court again

rejected the argument that exhaustion

92a

applies to section 1983 cases:

We reject appellants' argument

that appellees were required to

exhaust their administrative

remedies prior to bringing this

action... . Decisions of

this Court .. . establish that a

plaintiff in an action brought un-

der the Civil Rights Act, 42 U.S.C.

§ 1983, 28 U.S.C. § 1343 is not

required to exhaust administrative

remedies where the constitutional

challenge is sufficiently substan-

tial, as here, to require the

convening of a three-judge court.

v. Smith, at 312 n. 4, 88 S.Ct. at

2130

n. 4,

King was followed in the same term

by Houghton v. Shafer, 392 U.S. 639,

Ct. 2119, 20 L.Ed.2d 1319 (1968).

On the facts of that case, exhaustion

93a

would have been futile and, therefore,

not required. The Supreme Court noted the

probable futility of the available admin-

istrative process, but confirmed that

"[iJn any event, resort to these remedies

is unnecessary in light of our decisions

in Monroe, McNeese, and Damico." Shafer,

at 640, 88 S.Ct. at 2120. Can there be

any doubt after reading the quoted Shafer

language that the highest Court believes

that a no-exhaustion rule had been estab-

lished by the three prior cases?

In a subsequent habeas corpus case,

Wilwording v. Swenson, 404 U.S. 249, 92

S.Ct, 407, 30 L.Ed.2d 418 (1971), the

Court repeated the "[iJn any event"

language of Shafer. In Wilwording, the

Court stated that it had already estab-

lished that a section 1983 plaintiff

need not invoke state remedies before

seeking a federal forum, Wilwording

thus undermined the argument originally

94a

forumlated by Judge Friendly in Eisen vy,

Eastman, 421 F.2d 560 (2d Cir. 1969), cert.

denied, 400 U.S. 841, 91 S.Ct. 82, 27

L.Ed.2d 75 (1970), and reiterated by

today's majority that the Supreme Court

has never held unambiguously that ex-

haustion is necessary when state remedies

are adequate. As expressed by one commen-

tator:

The Supreme Court undermined Judge

Friendly's argument in Wilwording v.

Swenson, a habeas corpus case chal-

lenging state prison conditions. The

Court rejected the suggestion that

its holding in Shafer was based on

the futility of the appeal: "Al-

though the probable futility of such

administrative appeals was noted, we

held that ‘in any event, resort to

these remedies is unnecessary. ‘"

The Court's willingness to extend its

95a

its liberalized exhaustion principle

seemed unambiguous when it held in

Wilwording that, for exhaustion

purposes, the plaintiffs were en-

titled to have their habeas corpus

claim treated as if it had been -

brought under section 1983.

Comment, Exhaustion of State Administra-

tive Remedies Section 1983 Cases, 41 U. Chi.

L.Rev. 537, 546 (1974) (footnotes omitted).

In a later section 1983 case, Carter

v. Stanton, 405 U.S. 669, 92 S.Ct. 1232,

31 L.Ed.2d 569 (1972), the Supreme Court

vacated a lower court dismissal for

failure to exhaust administrative remedies

on the ground that Damico, "an indisting-

uishable case[,] .. . establishes that

exhaustion is not required in circumstances

such as those presented here." Carter, at

671, 92 S.Ct. at 1234. As in Damico, the

constitutionality of the statute was in

96a

issue and the adequacy of the admini-

strative remedy was questionable. Once

again the Supreme Court refused to rest

its decision on the fact that the avail-

able administrative remedy was inadequate.

” The majority opinion discusses and

relies upon the subsequent decision of

Gibson vy. Berryhill, 411 U.S. 564, 93

S.Ct. 1689, 36 L.Ed.2d 488 (1973). This

reliance on Gibson is misplaced, as

noted by one law professor:

[T]he [Gibson] Court intimated that

perhaps exhaustion of state admini-

strative remedies would be required

in some 1983 cases as where, for

example, “a license revocation

proceeding has been brought by the

state and is pending before one

of its own agencies and where the

individual charge is to be deprived

of nothing until the completion of

97a

that proceeding. . .." [T]he fol-

lowing year the Court reiterated

wihtout qualification, its long

standing no-exhaustion rule for

state administrative remedies. In

this connection it is significant

that the Court has never in fact

required exhaustion of state admin-

istrative remedies in a 1983 case.

$. Nahmod, Civil Rights and Civil Lib-

erties Litigation, 145 (1979) (footnotes

omitted). In addition to being repu-

diated by later cases, the language from

Gibson quoted by Professor Nahmod and

the majority constitutes no more than

dictum.”

Promptly after Gibson, the Court

5. See Comment, Exhaustion of

State Administrative Remedies in sSec-

tion 1953 Cases, 41 U.Ch:.L.RevV. 537

(1974).

98a

restated, without qualification, the

established no-exhaustion rule in Stef-

fel v. Thompson, 415 U.S. 452, 94 S.Ct.

1209, 39 L.Ed.2d 505 (1974). “When

federal claims are premised on 42 U.S.C.

§ 1983 and 28 U.S.C. § 1343(3)-as they

are here-we have not required exhaus-

tion of state judicial or administrative

remedies recognizing the paramount role

Congress has assigned to the federal

courts to protect constitutional rights."

Steffel, at 472-73, 94 §.Ct. at 1222.

(Emphasis added.) The Court again stated

the no-exhaustion rule in the subsequent

case of Ellis v. Dyson, 421 U.S. 426,

95 S.Ct. 1691, 44 L.Ed.2d 274 (1975):

“exhaustion of state judicial or admin-

istrative remedies in Steffel was ruled

not to be necessary, for we have long

held that an action under section 1983

is free of that requirement." Ellis,

at 432-33, 95 S.Ct. at 1694-95.

99a

The Court rendered Steffel and Ellis

subsequent to Gibson. Both Steffel and

Ellis contain clear pronouncements of

the no-exhaustion rule. The majority

opinion dismisses the statements as dicta.

While the pronouncements may be dicta,

they are relevant and revealing as Su-

preme Court interpretations of earlier

Court precedent and should guide a lower

court in understanding and following

Supreme Court decisions. The unequivocal

no-exhaustion statements in Steffel and

Ellis thus refute the argument advanced

by Judge Friendly in Eisen and restated

by today's majority. As appreciated by

Judge Hunter of the Third Circuit:

After its decision in Gibson, the

Court again reaffirmed its adherence

to the rule that exhaustion is not

required, without mentioning the

adequacy of available remedies.

100a

Ellis vy. Dyson, 421 U.S. 426,

432-33, 95 S.Ct. 1691 Jat 1694-95],

44 L.Ed.2d 274 (1975); Wolff v.

McDonald, 418 U.S. 539, 94 S.Ct.

2963, 41 L.Ed.2d 935 (1974); Steffel

v. Thompson, 415 U.S. 452, 94 S.Ct.

1209, 39 L.Ed.2d 505 (1974). ‘These

cases indicate that possible senti-

ments in Gibson have not come to

fruition.

United States ex rel. Ricketts v. Light-

cap, 567 F.2d 1226, 1230-31 (3d Cir. 1977).

As recently as 1979, the Court had an

excellent opportunity in Barry v. Barchi,

443 U.S, 55, 99 S.Ct. 2642, 61 L.Ed,2d 365

(1979), to overrule its no-exhaustion rule

if such was the Court's desire. The real

significance of Barry, cited by the major-

ity is that the Caqurt refused to re-::

treat from the no-exhaustion rule prefig-

ured by Monroe (1960), announced by McNeese

10la

(1963), confirmed by Damico (1967), relied

upon by King (1968), Shafer (1968), Wil-

wording (1971) and Carter (1972), reiter-

ated after Gibson (1973) by Steffel (1974)

and Ellis (1975), and reconfirmed by the

rejection of Justice Rehnquist's dissent

in Leonard (1979). Clearly the Court

adheres to the no-exhaustion rule.

II. SECTION 1983 AND FEDERALISM

The majority opinion implies that

in by-passing state administrative rem-

edies the current no-exhaustion rule

creates needless federal-state friction

and thereby constitutes poor federalism.

Good federalism, however, does not demand

unreasoned acquiescence to state interests.

Indeed, “Our Federalism," as described by

Justice Black in Younger v. Harris, 401

U.S. 37, 44, 91 S.Ct. 746, 750, 27 L.Ed2d

660 (1971), requires a balancing of com-

peting federal and state interests.

102a

Admittedly, "“[i]t is one of the happy

incidents of the federal system that a

single courageous State may, if its cit-

izens choose, serve as a laboratory; and

try novel social and economic experiments

without risk to the rest of the country."

New State Ice Co. v. Liebmann, 285 U.S.

262, 311, 52 S,Ct, 371, 386,76 L.Ed. 747

(1932). (Brandeis, J., dissenting.) Yet

it is equally true that “one of the

strengths of our federal system is that

it provides a double source of protection

for the rights of our citizens. Federalism

is not served when the federal half of

that protection is crippled." Justice

Brennan, State Constitutions and the Pro-

tection of Individual Rights, 90 Harv.L.

Rev, 489, 503 (1977). The need for in-

dependent federal supplementation of state

innovations is keenly apparent in the

context of civil rights and section 1983,

103a

The history of section 1983 shows

that states should be free to devise

improved mechanisms for protecting

civil rights; litigants should be free

to choose state-created remedies; but,

the federal remedy should always be

available independently. The prede-

decessor of section 1983,

[w]as enacted for the express pur-

pose of “enforceling] the Provi-

sions of the Fourteenth Amendment,"

17 Stat. 13. The predecessor of

§ 1983 was thus an important part

of the basic alteration in our fed-

eral system wrought in the Recon-

struction era through federal leg-

islation and the constitutional

amendment. As a result of the

new structure of law that emerged

in the post-Civil War era-and

especially of the Fourteenth Amend-

104a

ment, which was its centerpiece,

the role of the Federal Govern-

ment as a guarantor of basic fed-

eral rights against state power

was Clearly established.

* * * * * *

Section 1983 was thus a product of

a vast transformation from the

concepts of federalism that

had prevailed in the late 18th

century ... . The very purpose

of § 1983 was to interpose the

federal courts between the States

and the people, as guardians of the

pecple's federal rights-to protect

the people from unconstitutional

action under color of state law,

“whether that action be executive,

legislative or judicial." Ex parte

‘Virginia, 100 U.S. at 346, 25 L.Ed.

at 679.

105a

Mitchum v. Foster, 407 U.S. 225, 238-39,

242, 92 S.Ct. 2151, 2159-60, 2162, 32 L.

Ed.2d 705 (1972).

This court has sumilarly explained

the revolutionary nature of the Civil

Rights Act and the remedy it created in

the section now codified at 1983. In

Moreno v. Henckel, 431 F.2d 1299, 1305

(5th Cir. 1970), we said:

The Act was not one artfully phrased

so as not to disturb the relation-

ship between the States and the

Nation. If there is one thing

certain about the legislative his-

tory of the Act, it is that Congress,

open-eyed, deliberately set out to

alter the so-called "delicate bal-

ance" between the state and the

federal government so that federal

courts could effectively protect

federal rights.

In deciding cases brought under

section 1983, we must never forget that

Congress intended to fundamentally change

the relationship between the states and

the nation with the Civil Rights Act.

We must remember that Congress intended

106a

the federal courts, endowed with the

protections afforded by life-tenure,

to serve as a barrier between the

states and aggrieved individuals

in the protection of civil rights. °

The alteration of our federal

structure by act and amendment in the

wake of the Civil War, and the resulting

reliance upon the federal courts as pri-

mary protectors of civil rights, strongly

argues against institution today of

exhaustion requirements in section 1983

cases.

[T]he absence of an exhaustion re-

quirement in § 1983 is not an ac-

cident of history or the result

of careless oversight by Congress

or this Court. On the contrary,

6. See Develo nts in the Law-

Section 1583 and Foleralics, 90 Harv.

. Ve.

107a

the no-exhaustion rule is an in-

tegral feature of the statutory

scheme. Exhaustion of state

remedies is not required pre-

cisely because such a require-

ment would jeopardize the pur-

poses of the Act.

Preiser v. Rodriguez, 41l U.S. 475,

518, 93 S.Ct. 1827, 1850, 36 L.Ed.2d

439 (1973) (Brennan, J. dissenting as to

other matters). The difference noted

by the majority between the requirement

of exhaustion of federal administrative

remedies in section 1983 cases and the

absence of any requirement of exhaus-

tion of state administrative remedies

merely demonstrates the critical dif-

ference between the federal and state

roles in the realm of civil rights.

Compare McKart v. United States, 395

U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d

194 (1969) (articulating the reasons

for requiring exhaustion of federal

administrative remedies) with the line

108a

of section 1983 cases refusing to require

exhaustion of state administrative rem-

edies. The paramount role of the federal

government in the realm of civil rights,

as envisioned by the Congress and the

Constitution, is wholly inconsistent with

today's dilution of the federal section

1983 remedy through imposition of a state

exhaustion requirements.

The development of the exhaustion

doctrine represented, at least in

part, an attempt to minimize inter-

governmental friction by deferring

to the maximum extent possible to

the interest of the states in or-

dering and regulating their own

affairs.

However, ritual genuflection in

the direction of federalism should

be avoided. The states are not the

only legitimately interested parties.

A reasoned evaluation of the exhaus-

tion requirement cannot be made

without considering other factors

which may outweigh the interest of

the states in orderly recourse to

their procedures. One of these is

delay. Even without conscious state

efforts to frustrate the assertion of

unpopular rights by requiring recourse

to dilatory remedial procedures-and

an exhaustion rule does open the door

to such efforts-the inevitable con-

109a

sequence of insistence on exhaustion

is substantial delay in vindication

of the constitutional rights of many

complainants.

Comment, Exhaustion of State Remedies,

638 Col.L.Rev. 1201, 1206-7 (1568)) foot-

notes omitted).

III. SECTION 1983 AND THE

NO-EXHAUSTION RULE

There are many reasons why this

court should not abolish the no-exhaus-

tion rule. First, and fundamentally,

the Supreme Court has enunciated and

continually followed the no-exhaustion

rule. As explained in Section I of

this dissent, until such time as the

highest Court rejects the rule, this

court should steadfastly follow it.

Second, as explained in Section II,

Congress did not intend to require ex-

haustion of state administrative remedies.

If Congress intended at any time to

require exhaustion of judicial remedies

in section 1983 cases, it could have

1l0a

easily expressed its disagreement with

the Court's no-exhaustion rule by adopting

the explicit statutory language often

used in other areas. See, e.g., 28 U.S.C.

§2254(b) (habeas corpus for state prisoners) ;

28 U.S.C. § 1342 (state rate orders); 28

U.S.C. § 1341 (state taxes). Further,

Congress created the special remedy that

is section 1983 after survey, public

debate, and findings. Rather than abro-

gating the no-exhaustion rule by judicial

fiat, this court should permit Congress

to make any such alteration through the

full and open legislative process.

Third, although it is often argued

that administrative remedies should be

exhausted because of the "expertise"

of an administrative body, where federal

issues are involved, no such "expertise"

resides in state administrative agencies.

llla

A suit under the Civil Rights Act

will often turn upon isolable issues

of federal law, and involve federal

[constitutional] rights of a

particularly sacrosanct character,

Insofar as the question is one of

federal law, the federal court is

the "expert" body. There is a

strong Federal interest in adju-

dicating these cases immediately,

without any exhaustion of state

procecures,

Comment, Exhaustion of State Remedies

Under the Civil Rights Act, 66 Col.L.

Rev. 1201, 1207-0 tI5CB) (Emphasis

added. )

Fourth, there is a very real danger

that the delay inherent in requiring use

of state administrative process may dis-

courage aggrieved individuals from

seeking vindication of their rights.’

7. We need only consider Patsy's

plight to appreciate the delay inherent

in even a well-intentioned state admin-

istrative procedure. Upon a determina-

tion by the trial court that the admin-

istrative remedy is adequate, Patsy must

utilize the Florida International Univer-

sity (FIU) career service employee (CSE)

grievance procedure set forth in 6C8-

4.05 of the Florida Administrative Code

(see Appendix, Table 1). If these

procedures culminate in an unfavorable

ruling, Patsy may then apply to the

Florida Human Relations Commission (HRC)

(Footnote continued on next page)

ll2a

I agree with Judge Rubin that “the fed-

eral courts are likely to provide a

civil rights plaintiff with the swiftest,

least costly, and most reliable remedy.”

Dissent of J. Rubin, at 916,

(Footnote continued from preceding page)

under procedures outlined in 9D-9 of

the Forida Administrative Code (See

Appendix, Table II).

The CSE Procedure

The CSE procedure requires that Patsy

attempt to seek redress from her superior

and others in the FIU chain of command.

If FIU personnel fail to follow CSE

procedures, Patsy may seek redress from

the Florida Director of Personnel in the

Department of Administration. The Director

may request compliance from FIU personnel,

but if this request is denied Patsy is

left wihtout a remedy since the Director

lacks enforcement authority.

Upon the issuance by FIU personnel of an

unfavorable decision, Patsy may refile

her grievance with the Director only if

she alleges that the University failed

to follow the Florida Administrative Code.

The Director may then issue a final deci-

sion, Once again, though, the Director

lacks authority to enforce his decision.

(Footnote continued on next page)

1l13a

Fifth, the majority opinion may

create a time-consuming procedural night-

mare, the curse of both litigants and

federal trial judges. After the filing

(Footnote continued from preceding page)

The HRC Procedure -

If Patsy is dissatisfied with either the

ruling of FIU personnel or the decision of

the Director, she may file a complaint with

the Human Relations Commission. The HRC

procedure can be extremely time consuming.

E.g., Hargis v. Leon County School Board,

lorida Administrative tae Reports 957-A

(1980) (HRC decision issued more than a

year and a half after the filing of com-

plaint).

Additionally, the Human Relations Com-

mission lacks independent enforcement

power. In order to enforce its decisions,

the Commission must petition the appropri-

ate Florida circuit court, and appeal an

unfavorable ruling. See Fla.Stat.Ann. 120.6S

8. This procedural nightmare will

only encourage the filing of frivolous

constitutional challenges. Since it is

beyond the scope of an administrative

agency to declare a state statute or .

regulation unconstitutional, litigants

will strive to assert constitutional

deficiencies in all cases in order to

enter the federal courts directly.

ll4a

of a section 1983 complaint, the defendant

will likely move to dismiss on the ground

that the state administrative remedies

are adequate. To rule on this motion, the

district court will not only have to

examine state remedies, but also take

testimony from knowledgeable persons as to

how the administrative process really

works. If the state administrative remedy

is tound adequate, the court will have to

decide whether to dismiss the suit or

retain jurisdiction, Presumably, the

state's statute of limitations will be

tolled during the ensuing period of

exhaustion since the majority makes

pursuit of state administrative

remedies a prerequisite to federal suit.

See, e.g., Bryant v, Potts, 528 F.2d 621

(Sth Cir, 1976). If the plaintiff

loses on every point of the state administra-

tive claim, since neither res judicata

1ll5a

nor collateral estoppel apply, the plain-

tiff may then, having exhausted admini stra-

tive remedies, return to the federal

court to continue the suit.

Sixth, the typical state administra-

tive process is not constituted to provide

adequately for the award of costs and at-

torney's fees.” Thus, even when a litigant

prevails in the state administrative pro-

cess, he will still need to return to

federal court for an award of costs and

attorney's fees. By the time the pre-

vailing plaintiff completes the procedural

nightmare dictated by the majority

opinion, costs and attorney's fees will

be staggering.

9. In light of the usual absence

of adequate proyision for costs and at-

torney's fee, it is doubtful that state

administrative procedures can ever be

truly adequate.

ll6a

Seventh, most administrative pro-

cesses cannot adequately entertain class

action claims. In the typical administra-

tive setting, when an individual

plaintiff is a member of a class and is

suing to protect the rights of the class,

an individual settlement may be satisfac-

tory. Although satisfactory to the

individual plaintiff, it may not protect

other class members from like deprivations.

Eighth, assuming that considerations

of federal-state friction avoidance are

relevant, friction between the states and

the federal judiciary can only increase

under a system that requires federal

courts to judge the adequacy of state

administrative remedies.?° Moreover,

10. As explained above, I am of

the opinion, shared by others, that it

is “very doubtful that considerations

of friction-avoidance have any place in

civil rights litigation in light of

(Footnote continued on on next page)

117a

the majority opinion will in fact inter-

fere with orderly state procedures. What

will be the effect of a federal court

ruling that a particular state administra-

tive scheme is not adequate for the

protection of litigants‘ constitutional

rights? Will the state be under any

duty to amend its statutes and regulations

for the next litigant? If a state dis-

agrees with this finding, may it appeal?

May the state participate in the hearing

regarding the adequacy of state remedies?

CONCLUSION

The majority opinion contravenes

a Supreme Court rule consistently

(Footnote continued from preceding page)

the history and purposes of section 1983."

Comment, Exhaustion of State Administra-

tive Remedies Under the Civ ts Act,

; see also,

° Vv. ’

Note, Section 1983: A Civil Remedy for

the Protection of Federal Rights, c

. . . o Vv. .

118a

applied by the Court in section 1983

cases. The majority opinion assumes a

congressional intent never articulated

by Congress, and, in so doing, usurps

the role assigned to Congress by the

Constitution. Most unconscionably,

however, the majority opinion will have

a “chilling effect” on civil rights liti-

gation after Congress and the Court have

struggled mightily to afford civil

rights litigants speedy, inexpensive,

and reliable redress for constitutional

deprivations.

Exhaustion of state administrative

remedies simply has no place in the

civil rights context. I agree with

Judge Friendly's conclusion that "[iJt

is hard to conceive a task more appro-

priate for federal courts than to pro-

tect civil rights guaranteed by the

Constitution against invasion by the

119a

states." H, Friendly, Federal Jurisdiction:

A General View 90 (1973). Today's insti-

tution of an exhaustion requirement can

only interfere with our performance of that

most appropriate task.

120a

TABLE I

Career Service Employee (CSE) Grievance Procedure

for Florida International University °

Chart based upon procedures set forth in

Florida Administrative Code, Chapter 6C8-4.05

Complainant must orally notify

immediate supervisor within seven

days of incident prompting

complaint.

Supervisor must orally respond

within five days.

Complainant must file written

grievance with immediate super-

visor and file a copy with the

Director of Personnel.

Immediate supervisor files written

answer with his supervisor. This

supervisor has ten davs to file

an answer.

Complainant may appeal, step by

step, up the hierarchy of the

|_University to the Vice President.

Complainant may then file grievance

with Director of Personnel.

Director of Personnel oversees

appointment of committee to hear

the grievance within thirty

days of filing.

Director of

Personnel deter-~

mines whether

complaint is

within the

jurisdiction of

the University.

Committee must issue recommendation

to University President within

fifteen days of the committee hearing

University President must issue final

decision within fifteen days after

12la

[receiving committee recommendation.

TABLE 11

Human Relations Commission (HR) Procedure

Chart based upon procedurer set forth in

Plorida Administrative Code, Chapter °D-9

Complaint is served

upon Respondent within

fifteen days of filing

Executive Director ma

suspend HRC proceed-

ing for forty-five

days pending outcome

of public agency

Complainant must file complaint wien |

Executive Director of HRC within vod

|_ Gays of incident prompting complaint

Exec. Dir. may refer

complaint to public

agency (e.6. Fi1U) w

for resolution.

Executive Di-

rector may

investigate

the complaint.

HRC General Counsel

Getermines whether

there is reasonable

cause.

If the General Counse

finds no reasonable

cause, the complainan

must file a petitions:

for redetermination

within twenty days of

If the General

Counsel finds rea-

sonable cause, HRC

must seek a con-

Ciliation agree-

ment, which may

then he adopted

by HRC as a

consent order.

is not reached, complainant mus

file a petition for relicf

within thirty days after

receivif® the notice of failure

If a conciliation agreement

of conciliation.

Respondent must file an answer

to the petition for relief with

days of service.

|_ to HRC.

HRC Hearing Officer conducts *

hearing and makes recommendation

WRC issues final order either

Sj a fs Ps se

practice.

122a

APPENDIX B

No. 79-2965

Summary Calendar.

UNITED STATES COURT OF APPEALS,

PIFTH CIRCUIT.

Feb. 28, 1980.

GEORGIA PATSY, )

Plaintiff-Appellant, )

Vv. )

FLORIDA INTERNATIONAL )

UNIVERSITY, Board of Regents )

of the State of Florida, a )

body corporate, for and on )

behalf of Florida Inter- )

national University, )

Defendant~-Appellee. )

123a

Before GODBOLD, REAVLEY and

ANDERSON, Circuit Judges.

GODBOLD, Circuit Judge:

Appellant Georgia Patsy brought

this action under 42 U.S.C. §1983 after

her applications for employment with

the University had been rejected a

number of times. The district court

dismissed the suit on the grounds that

Patsy had not exhausted her administra-

tive remedies within the state univer-

sity system, relying on Penn v.

Schlesinger, 497 F.2d 970 (5th Cir. 1974)

(en banc), cert. denied, 426 U.S. 934,

96 S.Ct. 2646, 49 L.Ed.2d 385 (1976).

Patsy appeals. We reverse and remand.

Exhaustion of administrative rem-

edies is not a prerequisite of a § 1983

124a

suit. See, e.g., Ellis v. Dyson, 421

U.S. 426, 432-33, 95 S.Ct. 1691, 1694-

95, 44 L.Ed.2d 274 (1975) ("Exhaustion

of state judicial or administrative

remedies . . was ruled not to be nec-

essary, for we have long held that an

action under § 1983 is free of that

requirement"); Steffel v. Thompson,

415 U.S. 452, 472, 94 S.Ct. 1209, 1222,

39 L.Ed.2d 505 (1974) ("When federal

claims are premised on 42 U.S.C.

§ 1983 . . . we have not required ex-

haustion of state judicial or administra-

tive remedies"); Gibson v. Berryhill,

411 U.S. 564, 574, 93 S.Ct. 1689, 1695,

1696, 36 L.Ed.2d 488 (1973) ("But this

Court has expressly held in recent

years that state administrative rem-

edies need not be exhausted where the

-125a

federal court plaintiff states an

otherwise good cause of action under

42 U.S.C. § 1983"); Hardwick v. Ault,

517 F.2d 295 (5th Cir. 1975). The

district court's reliance on Penn v.

Schlesinger, is misplaced, as that case

involved § 1981, not § 1983.

Appellees also attempt

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