694 F.2d 78 (5th Cir. 1982), 78-3384, Dougherty County School System v. Bell

Docket Nº:78-3384.
Citation:694 F.2d 78
Party Name:DOUGHERTY COUNTY SCHOOL SYSTEM, Plaintiff-Appellee, v. T.H. BELL, Secretary of Education, Defendant-Appellant.
Case Date:December 20, 1982
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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694 F.2d 78 (5th Cir. 1982)

DOUGHERTY COUNTY SCHOOL SYSTEM, Plaintiff-Appellee,

v.

T.H. BELL, Secretary of Education, Defendant-Appellant.

No. 78-3384.

United States Court of Appeals, Fifth Circuit.[*]

December 20, 1982

Page 79

Denver L. Rampey, Jr., U.S. Atty., Macon, Ga., Drew S. Days, III, Asst. Atty. Gen., Dept. of Justice, Brian K. Landsberg, Marie E. Klimesz, Washington, D.C., for defendant-appellant.

C. Richard Langley, Albany, Ga., Jesse W. Walters, for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before RUBIN and POLITZ, Circuit Judges, and DYER, Senior Circuit Judge.

ALVIN B. RUBIN, Circuit Judge:

By an order filed on May 24, 1982, the Supreme Court of the United States vacated the judgment of this court, Dougherty County School System v. Harris, 622 F.2d 735 (5th Cir.1980), and remanded the case to us for further consideration in the light of its decision in North Haven Board of Education v. Bell, 456 U.S. ----, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982). Bell v. Dougherty County School System, 456 U.S. ----, 102 S.Ct. 2264, 73 L.Ed.2d 1280 (1982). The sole issue raised by the prior appeal was the correctness of the district court's summary judgment declaring invalid the regulations promulgated in 45 C.F.R. Secs. 86.51 & 86.54. We affirmed the district court's judgment, stating that "the regulations as written" were invalid, 622 F.2d at 737, because "the Secretary exceeded his authority by enacting general regulations prohibiting sex discrimination in employment without limiting their effect to specific programs that receive federal financial assistance." Id. at 738. We said, however, in dictum that the statute was intended to proscribe employment discrimination related to specific programs receiving federal aid. Thereafter, the Second Circuit, in North Haven Board of Education v. Hufstedler, 629 F.2d 773 (1980), held that these same regulations were authorized by Title IX, 20 U.S.C. Sec. 1682. The Supreme Court affirmed the Second Circuit's decision in North Haven, holding that the language of the statute and its legislative history support the "conclusion that employment discrimination comes within the prohibition of Title IX." North Haven Bd. of Educ. v. Bell, 456 U.S. at ----, 102 S.Ct. at 1922-23, 72 L.Ed.2d at 314 (footnote omitted). While agreeing

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with our statement that the statute is "program-specific," the Supreme Court held, contrary to our conclusion, that "Subpart E is consistent with the Act's program-specificity." Id. at ----, 102 S.Ct. at 1927, 72 L.Ed.2d at 319.

The Department of Education now takes the position that, because administrative proceedings had not been completed when it suspended federal aid to the Dougherty County School System, we should vacate the district court's decision and remand this case with instructions to grant summary judgment in its favor. Failure to exhaust administrative procedures is not a jurisdictional defect, which the court would be obliged to note sua sponte, but an affirmative defense akin to prematurity. NLRB v. Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO, Local 22, 391 U.S. 418, 426 n. 8, 88 S.Ct. 1717, 1723 n. 8, 20 L.Ed.2d 706, 713 n. 8 (1968); Haitian Refugee Center v. Smith, 676 F.2d 1023, 1034 (5th Cir.1982); Ecology Center of Louisiana v. Coleman, 515 F.2d 860, 865-67 (5th Cir.1975). A reviewing court need not require exhaustion of administrative remedies if the agency fails to assert lack of exhaustion as a ground for denying review. Compare Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 2466, 45 L.Ed.2d 522, 538 (1979); Mathews v. Diaz, 426 U.S. 67, 76, 96 S.Ct. 1883, 1889, 48 L.Ed.2d 478, 487-88 (1976). See also K. Davis, Administrative Law Treatise Sec. 20.13 (1982 Supp.). A fortiori, the issue may not be raised for the first time on appeal. The defense that the administrative procedure had not been exhausted was never raised in the district court and was not raised in this court until after the remand from the Supreme Court. 1 The department's position, therefore, cannot be sustained.

Indeed, the North Haven decision implicitly recognizes federal court jurisdiction to determine whether termination of federal funds is permissible. The Court directed that "[w]hether termination of ... federal funds is permissible under Title IX is a question that must be answered by the district court in the first instance." 456 U.S. at ----, 102 S.Ct. at 1927, 72 L.Ed.2d at 319.

As with the cases considered by the Supreme Court in North Haven, the procedural posture of this case makes further district court proceedings necessary. In North Haven, as here, appeals were taken from grants of summary judgment. The records available to the Court did not provide evidence of discriminatory practices prohibited by Title IX. Nor had the school systems addressed the department's regulatory authority under the Court's reading of the statute. At that stage of the cases' development, the Court declined to examine the merits of the controversies before it, and remanded for consideration by the district

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court. Id. The undeveloped record in this case compels us to follow the Supreme Court's example.

Further district court proceedings are necessary because the department's order deferring federal funds to the Dougherty County School System makes no distinction among the programs to which the funds are applied. When this action was filed, the school system...

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