The opinion of the court was delivered by: Bua, District Judge.
This cause comes before the court on defendants' motion to
dismiss pursuant to Rules 12(b)(1) and (b)(6) of the Federal
Rules of Civil Procedure. Plaintiffs, a group of former
employees of the CETA program, Title VI, 29 U.S.C. § 801-999
(1978), have filed a complaint alleging various violations of
CETA by said defendants. Plaintiffs seek declaratory and
injunctive relief under CETA, 42 U.S.C. § 1983 and the United
States Constitution. As that is so, jurisdiction over their
action properly lies pursuant to 28 U.S.C. § 1343(3).
Defendants rely initially on the argument that plaintiffs'
complaint should be dismissed for failure to exhaust available
administrative remedies. As the court finds this issue
dispositive, it will not address those other contentions
raised in the defendants' motion.
It is a long established rule of judicial administration
that no one is entitled to judicial relief for a supposed or
threatened injury until the prescribed administrative remedy
has been exhausted. Myers v. Bethlehem Corp., 303 U.S. 41, 58
S.Ct. 459, 82 L.Ed. 638 (1938). The doctrine of exhaustion of
remedies has retained its vitality and, with very narrow
exceptions, is applied in order to avoid the untimely
interruption of the administrative process. Frey v. Commodity
Exchange Authority, 547 F.2d 46 (7th Cir. 1976). The
Comprehensive Employment and Training Act (CETA), 29 U.S.C. § 801-999
(1978) provides for administrative remedies when
violations of its provisions occur. See 29 U.S.C. § 816 (1978).
Accordingly, as plaintiffs have not availed themselves of these
remedies, they may not seek relief from the federal judiciary
at this time.
That judicial intervention at this point in the present
proceedings would be untimely is demonstrated by the CETA
provisions governing the administrative resolution of
grievances. Basically, CETA requires that each prime sponsor
establish grievance procedures through which employees in the
program may have complaints expeditiously resolved.
29 U.S.C. § 812(a)(1) (1978); 29 C.F.R. § 98.26 (1979). When, moreover,
the complainant has either exhausted the remedy provided by the
prime sponsor or has failed to resolve the grievance under this
procedure, he may then file a complaint with the Secretary of
Labor. 29 U.S.C. § 816(b) (1978). 29 C.F.R. § 98.40-29 (1979).
It is unclear from the memoranda provided by the parties
whether the prime sponsor in the instant case has in fact
provided the requisite grievance procedures. However, even if
the prime sponsor has not complied with the statutory
requirement, the complainants' proper recourse is to the
Department of Labor. It is the stated policy of the
regulations governing CETA that the Department of Labor
receive information concerning the alleged violation of any
title of the Act. 29 C.F.R. § 98.40(b) (1979) (emphasis added).
Therefore, if the prime sponsor has failed to establish the
proper procedures, such failure constitutes a violation of CETA
that may properly be referred to the Department of Labor. See
Gooley v. Conway, 590 F.2d 744 (8th Cir. 1979); Hayward v.
Henderson, 88 Cal.App.3d 64, 151 Cal.Rptr. 505 (5th Dist.
1979). All other allegations in the complaint of violations of
CETA must be resolved in the same way. 29 C.F.R. § 98.40(b).
In Plaintiffs' Memorandum in Opposition to the Motion to
Dismiss, it is stated that in the instant case there should be
an exception to the exhaustion requirement because it would be
futile to seek relief from the agency which perpetrated the
violations. However, if, as plaintiffs allege, the prime
sponsor has not established any grievance procedures, relief
could be sought from the Department of Labor, an agency which
has not committed any wrongs against plaintiffs. If, on the
other hand, the prime sponsor has established grievance
procedures, any decision reached by that agency may be
appealed to the Department of Labor. Therefore, plaintiffs are
not forced to seek relief exclusively from a branch of the
agency which allegedly violated the Act.
Further, this is not a case where requiring that plaintiffs
exhaust the administrative remedies available to them would
amount to the satisfaction of empty formalities, Collin v.
Smith, 447 F. Supp. 676 (N.D.Ill. 1978). Plaintiffs have not
alleged that they would be unable to obtain relief from the
Department of Labor; and such relief is available from that
agency even when the prime sponsor has failed to meet the
requirements for establishing grievance procedures. Gooley v.
Conway, 590 F.2d 744 (8th Cir. 1979). Plaintiffs merely allege
that requiring them to go through the lengthy processes
established by the Department of Labor would be unfair.
Arguably, however, the length of the administrative process
would have been shorter than this judicial one, had it been
commenced at the same time. In any event, based upon the
allegations presented, the case at bar does not fall within the
ambit of the futility exception. Collin v. Smith, 447 F. Supp. 676
Plaintiffs further allege that exhaustion of administrative
remedies is not required when bringing a § 1983 action. It is
true that "the federal remedy [under § 1983] is supplementary
to the state remedy, and the latter need not be first sought
and refused before the federal one is invoked." Monroe v. Pape,
365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961).
However, a federal court is not prohibited from requiring a §
1983 plaintiff to exhaust administrative remedies. Secret v.
Brierton, 584 F.2d 823, 826 (1978).
Plaintiffs also allege in their complaint that defendants
have discriminated against them based upon their political
affiliations in violation of the Equal Protection Clause of
the Fourteenth Amendment. The characterization of a violation
as unconstitutional, however, does not necessarily abrogate
the exhaustion requirement. Maremont Corp. v. FTC, 431 F.2d 124
(7th Cir. 1970). Discrimination on the basis of political
affiliation, being violative of CETA, 29 U.S.C. § 834(a)
(1978), is subject to the exhaustion requirement. As that is
so, administrative exhaustion will be directed. When their
administrative remedies have been exhausted, should plaintiffs
remain dissatisfied, they may return to this court with their
In light of the above, the motion to dismiss for failure to
exhaust administrative remedies will be granted. Pursuant to
29 U.S.C. § 816(a), (b) (1978), plaintiffs have until September
30, 1980 to file a timely complaint with the agency of the
prime sponsor or, if none exists, the Department of Labor. If
no effective action is taken on their complaint within a
reasonable time, plaintiffs may then resort to the judicial
process for relief.
© 1992-2003 VersusLaw ...