Curtis v. Taylor

• Decision Date: 19 December 1980
• Docket Number: Nos. 78-2203,79-2244,s. 78-2203
• Citation: 648 F.2d 946
• Parties: Margarette CURTIS, et al., Plaintiffs-Appellees, v. Alvin J. TAYLOR, Individually and as Secretary of the State of Florida, Department of Health and Rehabilitative Services, Defendant-Appellant. Margarette CURTIS, et al., Plaintiffs-Appellees, v. Alvin J. TAYLOR, etc., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 946

648 F.2d 946

Margarette CURTIS, et al., Plaintiffs-Appellees, v. Alvin J. TAYLOR, Individually and as Secretary of the State

of Florida, Department of Health and

Rehabilitative Services, Defendant-Appellant.

Margarette CURTIS, et al., Plaintiffs-Appellees, v. Alvin J. TAYLOR, etc., Defendant-Appellant.

Nos. 78-2203, 79-2244.

United States Court of Appeals, Fifth Circuit.

Dec. 19, 1980.

Chester Senf, Asst. Gen. Counsel, Charles Collett, Atty., Florida Dept. of Health & Rehabilitative Services, Tallahassee, Fla., for defendant-appellant.

Legal Services of Greater Miami, Inc., Stephen Maher, Perrine, Fla., Marcia K. Cypen, Legal Services of Greater Miami, Miami, Fla., Florida Legal Services, Robert F. Williams, Tallahassee, Fla., David Fredric Chavkin, National Health Law Program , Washington, D. C., for plaintiffs-appellees.

Appeals from the United States District Court for the Northern District of Florida.

ON PETITIONS FOR REHEARING

Before RUBIN and POLITZ, Circuit Judges, and POINTER ^*, District Judge.

ALVIN B. RUBIN, Circuit Judge:

The opinion in this case, 625 F.2d 645, is modified as follows:

1. The word "defendants" in the caption and in the text of the opinion is changed to "defendant."

2. The order in case number 78-2203 is changed from "Appeal dismissed" to "Judgment vacated, case remanded with instructions to the district court to enter an order dismissing count I as moot." ¹

Some of the issues raised in the state's brief were not mentioned in our prior opinion. We had considered each of them and thought it supererogatory to reject each in explicit terms, particularly because, after deciding that they had no merit, we decided the ultimate substantive issue in the state's favor. However, because the state again raises these issues on the supposition that they were overlooked, we will state briefly the reasons why we rejected them. ²

This Circuit is now considering en banc whether exhaustion of administrative remedies is required before resort to federal court under 42 U.S.C. § 1983. Patsy v. Florida International University, 612 F.2d 946 (5th Cir. 1980) rehearing en banc granted, 617 F.2d 442 (5th Cir. 1980). In addition, the Supreme Court has granted writs in a case that involves this issue. Jenkins v. Brewer, -- U.S. --, 101 S.Ct. 395, 66 L.Ed.2d 243 (1980).

We do not think it either necessary or desirable to await the decisions in those suits. Even if the Supreme Court or this court should decide that exhaustion of administrative remedies is necessary before a Section 1983 claim may be asserted, recourse to state agencies has never been required unless the suggested state administrative remedy is adequate. See 17 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure: Jurisdiction § 4233, at 373 (1978); Gibson v. Berryhill, 411 U.S. 564, 575 n. 14, 93 S.Ct. 1689, 1696 n. 14, 36 L.Ed.2d 488, 498 n. 14 (1973); Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969), cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75 (1970). Therefore, we assume arguendo for present purposes that, if an adequate state remedy is available, a Section 1983 suitor must resort to it before invoking the aid of a federal court.

The state regulation in this case was under attack both because it denied the plaintiff class equal protection under the fourteenth amendment and because it violated the federal statute. The administrative procedures available to the plaintiff class under Florida's Administrative Procedure Act (APA), Fla.Stat. ch. 120 (Supp.1974), could not provide the plaintiffs with the relief they sought. ³

Although Section 120.57 of the Act provides for a proceeding of an adjudicatory nature before an administrative hearing officer to challenge agency action, the authority of that hearing officer is limited. The Florida courts have held that "the administrative hearing officer lacks jurisdiction to consider constitutional issues " Gulf Pines Memorial Park v. Oaklawn Memorial Park, Inc., 361 So.2d 695, 699 (Fla.1978). See also Department of Revenue v. Amrep Corp., 358 So.2d 1343 (Fla.1978); E. T. Legg & Co. v. Franza, 383 So.2d 962 (Fla.4th Dist.Ct.App.1980). "The Administrative Procedure Act could not and does not relegate Fourteenth Amendment questions to administrative determination, nor restrict the occasions for judicial consideration of them nor otherwise impair the judicial function to determine constitutional disputes." Department of Revenue v. Young American Builders, 330 So.2d 864, 865 (Fla.1st Dist.Ct.App.1976). See generally Swan, Administrative Adjudication of Constitutional Questions: Confusion in Florida Law and a Dying Misconception in Federal Law, 33 U.Miami L.Rev. 527 (1979).

Nor was the administrative hearing officer empowered to consider the invalidity of the state regulations under the applicable federal statutes. The final order issued by the administrative hearing officer after a Section 120.57 hearing regarding the fifty cent co-payment rule reveals the limited nature of this administrative relief. That final order provides in relevant part:

It is noted that appellants raised in their motions numerous questions of constitutionality, invalidity of statutes, invalidity of regulations, and conflicts of regulations with statutes and with each other. While many of the arguments appear to be of questionable merit, with respect to the presentation of such issues to him, the Hearings Officer believes that he is invested with only quasi-judicial authority and possesses no general judicial powers such being reserved to the courts alone under Article V of the Constitution of Florida. Thus, an administrative Hearings Officer has no power to rule on constitutionality, declare a statute or rule invalid, pick from among myriad statutes or rules and declare which is controlling these things call for the exercise of judicial, rather than quasi-judicial, power.

The Section 120.57 hearing invoked to challenge the fifty cent co-payment rule could not resolve the plaintiffs constitutional and federal statutory challenges to that rule. The plaintiffs made the same claims of invalidity in regard to the other rule challenged in this case. Because the administrative hearing provided by Section 120.57 could not resolve the claims advanced by the plaintiffs, the failure to exhaust that avenue of relief will not bar the resort to federal court in this case. ⁴

The state also asserts that the judicial review of agency action provided by the APA Section 120.68 is an adequate remedy. If this is an argument that state judicial remedies must first be exhausted, the argument has been repeatedly rejected by the Supreme Court. See, e. g., Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492, 503 (1961); McNeese v. Board of Education, 373 U.S. 668, 672, 83 S.Ct. 1433, 1436, 10 L.Ed.2d 622, 625 (1963) ("We would defeat (the) purposes (of Section 1983) if we held that assertion of a federal claim in a federal court must await an attempt to vindicate the same claim in a state court.") Ellis v. Dyson, 421 U.S. 426, 432-33, 95 S.Ct. 1691, 1695, 44 L.Ed.2d 274, 281-82 (1975); Preiser v. Rodriguez, 411 U.S. 475, 477, 93 S.Ct. 1827, 1830, 36 L.Ed.2d 439, 443 (1973). See generally, C. Wright, Law of Federal Courts 210-11 (1976) (traditional rule that exhaustion of administrative remedies is generally required, though exhaustion of judicial remedies is not required). On the other hand, the argument may suggest that the state judicial review will supply deficiencies in the state administrative process. In this light, we note that judicial review under Section 120.68 is limited to the administrative record except where the court directs the agency to conduct a factfinding proceeding to supplement that record. Fla.Stat. § 120.68(4) & 120.68(6) (Supp.1974). Moreover, Section 120.68 requires the reviewing court to remand the case to the agency if it finds that the exercise of discretion by the agency violates a constitutional or statutory provision. The reviewing court is not allowed to substitute its judgment for that of the agency. Fla.Stat. § 120.68(12)(c) (Supp.1974). Such a disposition of the complaining party's challenge by a court that, in most cases, conducts its review only after final agency action cannot be said to constitute an adequate administrative remedy.

The available administrative procedures could not provide the plaintiffs with the remedy they sought: an adjudication of the validity of the challenged rules under the Constitution and the applicable federal statutes. Inadequate administrative procedures need not be exhausted before the plaintiffs' claims are entertained in federal court.

The district court correctly refused to abstain. There was no issue of interpretation of state law. Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941...