# Petition — Patsy v. Board of Regents of Fla. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2073%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1982 - **Citation:** 457 U.S. 496 ## Text - a 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, i 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. ii 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 iv 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 Vv 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 vi 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 ix ° 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, 2 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- 5 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 7 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 8 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 9 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 10 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). 11 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). 12 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) 13 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). 14 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 15 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 16 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’ 17 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) 18 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. 19 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. 20 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) 21 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 22 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) . 23 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. 24 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. 25 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. 26 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) 27 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). 28 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. 29 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, 30 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). 31 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. 32 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 33 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. 34 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 35 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 36 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 37 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. 38 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 39 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). 40 §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. 41 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 42 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. 43 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) r. :. RICHARD LARSON AMERICAN CIVIL LIBERTIES UNION FOUNDATION ~— 132 West 43rd Street New York, NY 10036 (212) 944-9800 Counsel for Petitioner 44 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- la 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 2a 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. 3a 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 4a 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 5a 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.... * * * * * * * 6a -.-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- 7a 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. 9a 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 firs [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2073%3A01. Public record. Not legal advice.