634 F.2d 900 (5tht Cir. 1981), 79-2965, Patsy v. Florida Intern. University

Docket Nº:79-2965.
Citation:634 F.2d 900
Party Name:Georgia PATSY, Plaintiff-Appellant, v. FLORIDA INTERNATIONAL UNIVERSITY, Board of Regents of the State of Florida, abody corporate, for and on behalf of Florida International University, Defendant-Appellee.
Case Date:January 22, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 900

634 F.2d 900 (5tht Cir. 1981)

Georgia PATSY, Plaintiff-Appellant,



State of Florida, abody corporate, for and on

behalf of Florida International

University, Defendant-Appellee.

No. 79-2965.

United States Court of Appeals, Fifth Circuit

January 22, 1981

Page 901

Denis Dean, Sr., Dean & Hartman, Miami, Fla., for plaintiff-appellant.

Mahoney, Hadlow & Adams, Jeffrey H. Klink, Jacksonville, Fla., Mahoney, Hadlow & Adams, John W. Kozyak, Miami, Fla., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.


Page 902

RONEY, Circuit Judge:

This section 1983 sex and race discrimination suit was dismissed on motion for failure to allege exhaustion of state administrative remedies. A panel of this Court reversed on the ground that exhaustion of administrative remedies is not a prerequisite of a section 1983 suit. Patsy v. Florida International University, 612 F.2d 946 (5th Cir. 1980). We took this case en banc for the purpose of considering whether to adhere to an automatic rule that no section 1983 plaintiff need pursue state administrative procedures before asserting federal court jurisdiction, regardless of the adequacy of relief that might be there available, or whether to adopt a more flexible rule that would require such exhaustion 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) jurisdiction of her action authorized by 42 U.S.C.A. § 1983, plaintiff alleges that during her employment with FIU, she has applied for numerous employment openings in the university for which she was clearly qualified but has been uniformly rejected because FIU has discriminated against her on the basis of her race and sex. Plaintiff contends that by seeking out individuals from minority groups to hire and promote 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 discrimination 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 dismiss.

In this en banc rehearing we consider whether, under relevant Supreme Court holdings, exhaustion of adequate state administrative 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 consideration of section 1983 claims, we first, examine the exhaustion doctrine as traditionally applied to suits against Government officers, second, review the Supreme Court cases to determine that they do not foreclose a flexible exhaustion rule in section 1983 cases, third, examine the state of the law in the other Courts of Appeals, which reveals a conflict on the point, and fourth, consider the objections to and the policy considerations for the implementation of an exhaustion requirement. Deciding after this analysis that exhaustion should be required under certain standards, we then review the case before us and conclude that the district court's dismissal should be vacated and the case remanded for full consideration of the adequacy of the administrative procedures available to plaintiff to determine whether exhaustion is required in light of our opinion in this case.

  1. The Exhaustion Doctrine

    It has long been established that a party will normally be denied judicial relief for injury until available administrative remedies have been exhausted. As the Supreme Court stated in one of the leading cases dealing with the exhaustion doctrine, Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938):

    (T)he long settled rule of judicial administration (is) that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.

    The rule applies in federal courts to both state and federal administrative remedies, and has been said to be of special force in

    Page 903

    federal-state cases. Illinois Commerce Commission v. Thomson, 318 U.S. 675, 63 S.Ct. 834, 87 L.Ed. 1075 (1943); Natural Gas Pipeline Co. v. Slattery, 302 U.S. 300, 58 S.Ct. 199, 82 L.Ed. 276 (1937); Gilchrist v. Interborough 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 S.Ct. 236, 241-42, 97 L.Ed. 291 (1952):

    Even when there is no incipient federal-state conflict, the declaratory judgment procedure will not be used to pre-empt and prejudge issues that are committed for initial decision to an administrative body or special tribunal any more than it will be used as a substitute for statutory methods of review....

    ... State administrative bodies have the initial right to reduce the general policies of state regulatory statutes into concrete orders and the primary right to take evidence 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 administrative process; (2) to let the agency develop the necessary factual background upon which decisions should be based; (3) to permit 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 successful in vindicating rights in the administrative 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 administrative relief before the intervention of the federal judiciary into the dispute. K. Davis, Administrative Law § 20.01 (Supp.1970). Cf. National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976) (state autonomy in certain employment 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 exceptional circumstances); Railroad Commission 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 requirement 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 factors favoring the rule. Briefly the traditional exceptions are first, exhaustion is not required when the prescribed administrative remedy is plainly inadequate because either no remedy is available, the available remedy will not give relief commensurate with the claim, or the remedy would be so unreasonably delayed as to create a serious risk of irreparable injury. Walker v. Southern Railway, 385 U.S. 196, 87 S.Ct. 365, 17 L.Ed.2d 294 (1966); Frozen Food Express v. United States, 351 U.S. 40, 76 S.Ct. 569, 100 L.Ed. 730 (1956); United States v. Joseph A. Holpuch Co., 328 U.S. 234, 66 S.Ct. 1000, 90 L.Ed. 1192 (1946); United States Alkali Export Association v. United States, 325 U.S. 196, 65 S.Ct. 1120, 89 L.Ed. 1554 (1945); 3 K. Davis, Administrative 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 standing the constitutional question, exhaustion is not required. Public Utilities Commission

    Page 904

    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 purposes co-extensive with the merits of the plaintiff's claim, such as when, for example, the plaintiff contends that the administrative 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...

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