Wagle v. Murray

• Decision Date: 10 November 1976
• Docket Number: No. 73-2066,73-2066
• Parties: Lawrence S. WAGLE, Plaintiff-Appellant, v. H. Max MURRAY, as Principal of the R. A. Long High School, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1329

546 F.2d 1329

Lawrence S. WAGLE, Plaintiff-Appellant,

v.

H. Max MURRAY, as Principal of the R. A. Long High School,

et al., Defendants-Appellees.

No. 73-2066.

United States Court of Appeals, Ninth Circuit.

Nov. 10, 1976.

As Modified on Denial of Rehearing Jan. 19, 1977.

Jerry D. Anker (argued), Washington, D. C., for plaintiff-appellant.

Alvin A. Anderson (argued), Tacoma, Wash., for defendants-appellees.

Before BROWNING and CHOY, Circuit Judges, and WEIGEL, ^* District Judge.

BROWNING, Circuit Judge.

Appellant brought this action under the Civil Rights Act of 1871, 42 U.S.C. § 1983, against the principal of R. A. Long High School, Longview, Washington, the superintendent and members of the board of directors of the Longview School District, and the school district itself. ¹ He alleged that appellees terminated his employment as a history teacher at the high school because of his exercise of his First Amendment right of free speech, and in violation of his Fourteenth Amendment right to procedural due process. He sought reinstatement, back pay, damages, attorneys' fees, and costs.

The jury awarded appellant $50,000. The district court granted appellees' motions for judgment notwithstanding the verdict on the grounds that (1) appellant failed to exhaust his administrative remedies and (2) there was no evidence that appellant was terminated for exercising his First Amendment rights or that appellees acted in bad faith. The district court also denied appellant's motion for equitable relief. This appeal followed.

Four issues are raised: (1) whether appellant's claim is barred because he failed to exhaust administrative remedies; (2) whether the jury's verdict lacked support in the evidence; (3) whether, if the judgment notwithstanding the verdict is reversed, appellees are entitled to a new trial; and (4) whether appellant was entitled to equitable relief.

1. Exhaustion of Administrative Remedies

Washington law provides that if the board of directors of a school district determines there is "probable cause" not to renew a teacher's contract for the next school term, the board shall notify the teacher by April 15, specifying the cause for nonrenewal. ² Within ten days after receiving the notice of nonrenewal the teacher may request a hearing before the board, ³ or file an appeal to the state superior court. ⁴ If a hearing is held before the board, the board shall notify the teacher "of its final decision to renew or not renew" the employment contract within ten days after the hearing is concluded. ⁵ If the teacher does not request a hearing before the board (or file an appeal in the superior court) within the time allowed, the decision of the board not to renew becomes final and conclusive. Robel v. Highline School District, 65 Wash.2d 477, 485, 398 P.2d 1, 6 (1965); State ex rel. Bohanon v. Wanamaker, 47 Wash.2d 794, 803, 289 P.2d 697, 701-02 (1955).

On April 1, 1970, the school board sent appellant a "resolution of non-renewal," asserting "probable cause for non-renewal" on listed grounds. The notice did not inform appellant that he had ten days to request a hearing or file suit. Appellant testified that he knew of his statutory rights to request a hearing, but thought he had 30 days within which to act. ⁶ He further testified that he learned of the deadline from another teacher on Friday, April 10, the ninth day of the statutory ten-day period. On the same day, appellant delivered a note to the school personnel officer reading, "The non-renewal of my contract was, as you know, illegal. There will accordingly be a legal challenge to the decision of the school board." On the following Monday, apparently two days after the ten-day period had run, ⁷ appellant contacted his attorney, and, on the attorney's advice, delivered another note to the school personnel officer, reading, "I have already indicated that there would be a challenge to my illegal dismissal. At what time would it be possible to obtain a hearing with the school board?"

The secretary of the board wrote to appellant in response to both letters. The secretary stated that appellant's first note was not a request for a hearing, that his second note was not timely under the statute, and that neither note was addressed to the "chairman or secretary" of the board as the statute required. The secretary's letter concluded, "(T)he Board of Education may not waive or alter statutory requirements. The Board therefore cannot grant you a hearing on the non-renewal of your contract."

The district court agreed with the school board that appellant's two notes did not satisfy the requirements of the Washington statute. For this reason the court concluded that appellant had failed to exhaust his administrative remedy under the statute, and that this failure "was fatal to his action under § 1983."

It is a general rule that a litigant must exhaust available and adequate state administrative remedies before seeking relief in federal courts. ⁸ Generally, suits under the Civil Rights Act are excepted from the rule because the remedy afforded by the Act "is supplementary to the state remedy." Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961). ⁹ Appellees argue, however, that the present case is governed by decisions of this court which hold that in some circumstances the exhaustion rule does apply to actions under the Civil Rights Act. See Whitner v. Davis,410 F.2d 24 (9th Cir. 1969); Toney v. Reagan, 467 F.2d 953 (9th Cir. 1972); Bignall v. North Idaho College, 538 F.2d 243 (9th Cir. 1976). ¹⁰

The exhaustion rule is not to be "woodenly" applied. Morgan v. LaVallee, 526 F.2d 221, 223 (2d Cir. 1975). "Application of the rule is not jurisdictional, but calls for the sound exercise of judicial discretion." Kale v. United States, 489 F.2d 449, 454 (9th Cir. 1973). ¹¹ Even in those areas of the law in which exhaustion of administrative remedies is generally required, judicial review will not be denied for failure to exhaust such remedies unless, on balance, the interests served by requiring exhaustion outweigh the injury the complainant would suffer if exhaustion were required. McKart v. United States, 395 U.S. 185, 197, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969); McGee v. United States, 402 U.S. 479, 484, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971); United States v. Newmann, 478 F.2d 829, 831-32 (8th Cir. 1973).

The damage to appellant would be substantial if his remedy under the Civil Rights Act were withdrawn. The state has denied him any remedy, administrative or judicial. If his federal judicial remedy were also foreclosed, appellant would have no recourse for the termination of his employment and the substantial financial loss he has sustained (allegedly, and as found by the jury) because he exercised rights guaranteed to him by the First Amendment.

Whether the severe burden that would be imposed upon appellant by denying judicial review would be outweighed by the governmental interests at stake depends primarily upon the function served by the particular administrative process and the nature of appellant's default. McGee v. United States, supra, 402 U.S. at 484, 91 S.Ct. 1565.

If the administrative process serves an important purpose in the scheme established by the state for the resolution of the kind of dispute involved, failure to exhaust the administrative process may seriously affect the interests of the state. If the state does not rely heavily upon the administrative process, bypassing that process will have less serious consequences. The present case falls in the second category. Under the Washington statutory scheme, appellant was not required to seek a hearing before the board before appealing to a state court. The Washington statute provides, "In lieu of requesting a hearing before the board of directors . . . an employee may elect to appeal the action of the board directly to the superior court of the county in which the school district is located . . . ." Rev.Code Wash. § 28A.58.515. A state statute also provides that if the employee elects to request a hearing before the board any appeal to the superior court after the board has acted "shall be heard de novo by the superior court." Rev.Code Wash. § 28A.58.480.

This statutory scheme negates the existence of any state interest in requiring exhaustion of the administrative remedy. An aggrieved employee is free to ignore the administrative process entirely. ¹² If he elects to use the administrative process, the administrative decision has no significant effect upon subsequent judicial procedures. ¹³ Washington does not rely upon the administrative process either as a fact-finding mechanism or as a means for developing and applying special administrative expertise. It would be anomalous for the federal courts to attribute a value to the state administrative process the state itself does not.

The minimal state interest in requiring exhaustion is emphasized by the nature of appellant's default. Appellant did not interrupt an on-going administrative proceeding. Nor did appellant deliberately circumvent the administrative process and deny the board an opportunity to develop the facts and correct its own errors. On the contrary, appellant made every effort to obtain a board hearing. He was denied that opportunity because he addressed his request to the wrong official (though the proper official had actual notice and answered his letter), and because he did not file his request within ten days (though he filed a letter protesting the illegality of the nonrenewal on the ninth day a Friday and a request for a hearing on the twelfth day the following Monday and though he filed late because of an understandable confusion as to the applicable time limits. See note 6). There is nothing in this case that will induce the frequent and deliberate flouting of the state administrative process. Moreover, the board did not suggest that appellant's default prejudiced the board in any way....