Exhausting administrative remedies
Ross v Blake, USSC, Docket No. 15-339
This decision by the United States Supreme Court considered an appeal involving the federal Prison Litigation Reform Act [PLRA], 42 USC 1997e(a) requirement that an inmate exhaust “such administrative remedies as are available” before bringing suit. The Supreme Court vacated the Fourth Circuit’s “unwritten 'special circumstances’ exception” to the exhaustion of administrative remedy as being inconsistent with the text and history of the PLRA,” explaining that “[m]andatory exhaustion statutes like the PLRA foreclose judicial discretion.”*
Of special interest to public employers and employees not operating in a penal environment was the Supreme Court’s observation that “that there are certain circumstances in which an administrative remedy, although officially on the books, is not available.”
The court then provided the following examples of an administrative procedure being illusory or unavailable:
1. Where the procedure operates as a dead end;
2. Where the appointing authority or the employee organization is unable or consistently unwilling to provide relief;
3. Where the administrative scheme is so opaque that it becomes, practically speaking, incapable of use; and
4. Where a grievance process is rendered unavailable should an appointing authority thwarts the employee from taking advantage of it through misrepresentation, or intimidation.
Courts, as a general rule, will not consider lawsuits filed by public employees protesting some administrative determination unless the individual has exhausted his or her administrative remedies. The major exception to this rule: any attempt to exhaust the available administrative remedy would constitute an exercise in futility. Typically the courts apply this exception when it is decided that the administrative decision "is a foregone conclusion."
The exhaustion rule, however, is not inflexible and need not be followed where an agency's action is challenged as either unconstitutional or wholly beyond its grant of power [Watergate II Apartments v Buffalo Sewer, 46 NY2d 52] or where it is alleged that the administrative agency or process followed by the administrative agency violates the individual's constitutional rights to due process [Levine v Board of Education, 173 A.D.2d 619].
However, questions involving proper statutory interpretation and the reasonable interpretation of an agency's own regulations must first be raised within the agency's own administrative review process before being presented to the courts [Crumb v Broadnax, 178 A.D.2d 781].
An employee’s withdrawnal of his or her grievance has the effect of exhausting his or her administrative remedy. [Vega v Department of Correctional Services, 186 A.D.2d 340].
In Wilbur v Town of Rockland, 53 F.3d 542, the Circuit Court of Appeals, Second Circuit, said an employee suing the Town for alleged violations of her freedom of association under the First Amendment pursuant to 42 USC 1983 was not required to exhaust her state administrative remedies as a prerequisite to commencing a federal action, the general rule being that federal courts may not require exhaustion of administrative remedies as a "condition precedent" to 42 USC 1983 litigation.
From time to time courts are asked to settle questions about which officials or bodies have "primary jurisdiction" and should be turned to first to resolve employment disputes. In Hessney v Tarrytown Public Schools, 228 A.D.2d 954, we learn that the Commissioner of Education "is uniquely suited" to resolve questions concerned with the similarity of the duties of teaching positions and failing to initially submit the issue to him could be fatal to an individual's claim.
In any event, in cases in which the employee is alleged to have failed to exhaust his or her administrative remedy,” the employee typically has the burden of proving his or her seeking a judicial remedy falls within the ambit of one or more of the “exceptions to the rule,” frequently a difficult task.
* The court explained that PLRA contains its own, textual exception to mandatory exhaustion. Under §1997e(a), the exhaustion requirement hinges on the " " of administrative remedies. Thus there must exhaust available remedies, but one need not exhaust unavailable ones.
The decision is posted on the Internet at: