Glisson v. U.S. Forest Service

• Decision Date: 01 June 1995
• Docket Number: No. 93-3261,93-3261
• Citation: 55 F.3d 1325
• Parties: , 25 Envtl. L. Rep. 21,246 Joseph M. GLISSON, Plaintiff-Appellant, v. UNITED STATES FOREST SERVICE; F. Dale Robertson, Chief, United States Forest Service; Floyd Marita, Regional Forester, United States Forest Service; et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1325

55 F.3d 1325

41 ERC 1283, 25 Envtl. L. Rep. 21,246

Joseph M. GLISSON, Plaintiff-Appellant, v. UNITED STATES FOREST SERVICE; F. Dale Robertson, Chief United States Forest Service; Floyd Marita Regional Forester, United States Forest Service; et al., Defendants-Appellees.

No. 93-3261.

United States Court of Appeals Seventh Circuit.

Submitted April 21, 1995.

Decided June 1, 1995.

Joseph M. Glisson (submitted), Creal Springs, IL, pro se.

Leslie Auriemmo, Dept. of Agriculture, Milwaukee, WI, William E. Coonan, Asst. U.S. Atty., Civ. Div., Fairview Heights, IL, for defendants-appellees.

Before POSNER, Chief Judge, and FAIRCHILD and KANNE, Circuit Judges.

POSNER, Chief Judge.

This appeal requires us to consider the scope and application of the doctrine of exhaustion of administrative remedies. We simplify the facts slightly. On January 17, 1990, the supervisor of the Shawnee National Forest in southern Illinois authorized a sale of timber. Under the regulations of the Department of Agriculture (of which the U.S. Forest Service is a part), a person objecting to the sale had 45 days within which to file a notice of appeal to the Regional Forester, 36 C.F.R. Sec. 217.7(b)(1), stating among things the reasons for the objection. 36 C.F.R. Sec. 217.9(b). On February 1, Joseph Glisson filed a notice of appeal that did not contain a statement of the reasons for his objection, so on February 15 the notice was dismissed. He was promptly informed of this action, though we do not know exactly when. He had until March 5 or 8 (we are not certain which) to file a timely, conforming notice of appeal with the Regional Forester. But he filed nothing until September 11, 1991, more than a year and a half later, when he tried to renew his appeal on the basis of "new information"--which the Regional Forester determined was not new. Before this determination, while his renewed appeal was pending, Glisson brought this suit in federal district court to enjoin the sale, which had not yet taken place. The ground for the suit was that the sale would violate several different federal statutes. After the Regional Forester rejected Glisson's belated appeal as untimely, the court, without considering the merits of the suit, which Glisson had standing to bring as a recreational user of the Shawnee National Forest, Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 1365, 31 L.Ed.2d 636 (1972); Sierra Club v. Marita, 46 F.3d 606, 611 (7th Cir.1995), dismissed it on the ground that Glisson had failed to exhaust his administrative remedies. The court made the dismissal with prejudice because it was too late for Glisson to cure the problem that had caused the dismissal by exhausting those remedies. The doors of the agency were closed to him because of his failure to file a timely appeal to the Regional Forester.

Exhaustion of administrative remedies is a doctrine--originally and still to a large extent judge-made though now codified in cases governed by the Administrative Procedure Act by section 10(c) of the Act, 5 U.S.C. Sec. 704--under which a court asked to invalidate an administrative order will stay its hand until the plaintiff has exhausted whatever internal remedies the agency provides. Reiter v. Cooper, --- U.S. ----, ---- - ----, 113 S.Ct. 1213, 1220-21, 122 L.Ed.2d 604 (1993); McCarthy v. Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 1086, 117 L.Ed.2d 291 (1992). The doctrine cuts down on the work of the courts, preserves the integrity and autonomy of the administrative process, and ensures that when the administrative proceeding does come before the court, the court will have before it the mature, considered, and final articulation of the basis of the agency's action. Id. at 145-46, 112 S.Ct. at 1086-87; Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 2466, 45 L.Ed.2d 522 (1975); In re Establishment Inspection of Kohler Co., 935 F.2d 810, 812 (7th Cir.1991). The doctrine is closely related to the doctrines of finality, mootness, and primary jurisdiction, all of which are designed to postpone judicial intervention until the plaintiff's need for judicial help is clear and the record is adequate to enable the intelligent performance of the judicial function.

Exhaustion of administrative remedies is a sensible doctrine and we are not disposed to give it a grudging interpretation. But to the extent that it is a doctrine of federal common law rather than the inflexible command of a statute, it is to be applied with due regard for its underlying purpose and for considerations that may in particular cases counsel for a waiver. Weinberger v. Salfi, supra, 422 U.S. at 765, 95 S.Ct. at 2466; Bowen v. City of New York, 476 U.S. 467, 484, 106 S.Ct. 2022, 2032, 90 L.Ed.2d 462 (1986). If circumstances make it unreasonable to require the plaintiff to run the gauntlet of internal administrative appeals--perhaps because the internal appellate tribunals were not authorized to give him the relief he sought (the most common reason), or because the agency had placed unreasonable restrictions on access to them, or because the delay entailed by exhaustion would cause him irreparable harm--then the doctrine is not applied. McCarthy v. Madigan, supra, 503 U.S. at 147-48, 112 S.Ct. at 1087-88. The judgment of the district court on the question of waiver is entitled to considerable deference by the court of appeals, since the question is of a highly particularistic, case-specific character. Powell v. AT & T Communications, Inc., 938 F.2d 823, 825 (7th Cir.1991); Massengale v. Oklahoma Board of Examiners, 30 F.3d 1325, 1328 (10th Cir.1994); Committee of Blind Vendors v. District of Columbia, 28 F.3d 130, 133 (D.C.Cir.1994).

Given the specialized technical or scientific character of a decision on when and how to harvest timber with minimum damage to environmental concerns, the district court was right, or at least reasonable, in refusing to countenance Mr. Glisson's extremely long delay in pursuing his administrative appeals, as a result of which the appellate process within the Forest Service is now closed to him. Had Glisson complied with the Service's not unreasonable requirements for filing an appeal, then even if he had gone on to lose before the agency at least the district court would have...