USCA1 Opinion
August 17, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1138
DANNY M. KELLY,
Plaintiff, Appellant,
v.
NILES L. NORDBERG, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Selya and Stahl, Circuit Judges.
______________
____________________
Danny M. Kelly on brief pro se.
______________
Scott Harshbarger, Attorney General, and Steve Berenson,
___________________ ________________
Assistant Attorney General, on Memorandum in Support of Appellee's
Motion for Summary Affirmance, for appellee.
____________________
____________________
Per Curiam. The narrow question before us is
__________
whether plaintiff was required to exhaust state
administrative remedies before bringing this suit. Plaintiff
appears pro se seeking unspecified damages, injunctive and
___ __
declaratory relief against the Massachusetts Department of
Employment and Training's ("DET's") practice of disqualifying
for unemployment benefits those persons who travel outside of
the State for the dual purpose of seeking work and engaging
in other activities. The district court granted to defendant
a judgment on the pleadings. We vacate and remand without
prejudice to consideration of any other issue in the case.
A grant of judgment on the pleadings is subject to
plenary review. International Paper Co. v. Jay, 928 F.2d
________________________ ___
480, 482 (1st Cir. 1991). We accept as true all of the non-
movant's factual allegations and draw all reasonable
inferences in his favor. Santiago de Castro v. Morales
____________________ _______
Medina, 943 F.2d 129, 130 (1st Cir. 1991). We are aided here
______
by the parties' apparent agreement as to the administrative
posture of plaintiff's claim.
According to the complaint, plaintiff was qualified
to receive unemployment benefits of $282 per week beginning
in September, 1991, after he lost his job as a software
engineer at Wang Laboratories. He sought new employment
locally and in the midwest. When he filed a required
periodic claim for benefits in December, 1991, he certified
that he would be in Chicago, Illinois from December 23, 1991
until January 5, 1992. He alleged that his reason for travel
was to look for work and to visit family and friends. He
also certified that while he was there he actively sought
work, and was "available" for employment.1
The DET denied plaintiff any benefits for the two
weeks he was in Chicago because of the dual purpose of his
trip. According to both parties' pleadings, the agency's
rule, as reflected in its "Service Representative Handbook,"
is that a claimant who travels or stays outside of the
registration area must do so "for the SOLE purpose of seeking
new employment or reporting for a pre-arranged job or job
interview" in order to qualify for benefits.2 Answer Exh.
D., Complaint 7. Based on plaintiff's written answers to
questions about his trip, a DET adjudicator decided that
plaintiff's trip "did not meet the requirements of the law
____________________
1. Under Massachusetts' Employment Security Law, to be
eligible for unemployment compensation during any week a
claimant must provide evidence to the employment office that
he is available for and actively engaged in a systematic and
sustained effort to obtain work. M.G.L. c. 151A, 24, 30.
2. The record does not explain DET's rulemaking
practices, but we note a suggestion in the case law that
agency rules relating to eligibility are frequently
incorporated into circulars, rather than the Code of
Massachusetts Regulations ("CMR"). See Grand v. Director of
___ _____ ___________
the Div. of Employment Sec., 393 Mass. 477, 480-81, 472
_____________________________
N.E.2d 250, 252 (1984) (rejecting claimant's argument that
review examiner acted without standards when he held
claimant's job search to be inadequate, because agency's
circularized notice "constitutes a guideline or standard set
forth by the division"). We note, too, rules in the CMR for
interstate claims subject to plans approved by the Interstate
Conference of Employment Security Agencies. See 430 C.M.R.
___
4.02, 4.05; see also M.G.L. c. 151A, 66. There are
_________
insufficient facts in this record to determine the relevancy,
if any, of the codified rules.
-3-
because . . . looking for employment was not the sole purpose
of the trip." Answer 7, Exh. D.
Under M.G.L. c. 151A, 39(b), a claimant may seek
reconsideration of the DET's initial determination by
requesting a de novo hearing before a review examiner. In
__ ____
the absence of such a request, the initial determination is
final. The parties agree that plaintiff did not request
agency review, but the DET spontaneously treated plaintiff's
correspondence as a notice of appeal, advising plaintiff of a
hearing date. Plaintiff did not appear at the scheduled
hearing and did not respond to a further notice from the DET
offering to consider any justifications for his failure to
appear. DET dismissed the appeal.
Plaintiff instead filed this complaint pro se
___ __
alleging that DET's travel rule unconstitutionally infringed
on his right to travel and to enjoy the same benefits as
lifelong residents of Massachusetts.3 Defendant answered
and moved for judgment on the pleadings on the ground that
plaintiff had failed to exhaust his administrative remedies
____________________
3. Claimants who remained in the State were allowed benefits
if they actively sought work "at least three days a week and
made at least four job contacts/week," according to a 1984
Supreme Judicial Court opinion. Grand, 393 Mass. at 481, 472
_____
N.E. at 252. The record before us offers no facts as to
DET's current eligibility rules for those who remain in the
state while seeking work, facts against which any claim of
unequal treatment necessarily must be measured. Without a
full record we imply no opinion as to the ability of the
instant claim towithstand a motion to dismiss on the merits.
-4-
and failed to state a claim. At the hearing on the motion,
the judge inquired whether DET was still willing to afford a
hearing on plaintiff's claim and gave DET two weeks to
respond to the question.4 DET answered with an affidavit
stating that it would reschedule a hearing if the plaintiff
showed satisfactory reasons for his initial failure to
appear. The judge then dismissed the instant action for
failure to exhaust administrative remedies, "in view of the
Commissioner's willingness to afford what appears to be a
meaningful hearing on the merits."
We sense in the district court's decision an
attempt to fashion an equitable solution to a practical
dilemma. The DET procedure strikes us as affording to a pro
___
se plaintiff the benefit of a fast, streamlined, and
__
certainly less expensive procedure for litigating the issue
he urges upon the federal courts.5 Moreover, requiring
exhaustion of administrative remedies normally "serves the
____________________
4. Since the parties have not provided a transcript of the
hearing, our understanding of the proceedings below is
limited to the judge's abbreviated written orders.
5. Plaintiff maintains that an agency factual hearing would
be futile since the examiner would have no power to change
the DET's admitted policy, only to award benefits. However,
state law also provides a subsequent discretionary appeal to
the Board of Review, which is expressly empowered to search
the record for errors of law as well as fact. M.G.L. c.
151A, 40, 41. And claimants are further afforded a
streamlined method for appeal to the state's district courts
where jurisdiction includes any constitutional errors, errors
of law or procedure. M.G.L. c. 151A, 42; M.G.L. c. 30,
14(7).
-5-
interests of accuracy, efficiency, agency autonomy and
judicial economy." Ezratty v. Puerto Rico, 648 F.2d 770, 774
_______ ___________
(1st Cir. 1981). While common sense would seem to dictate
that plaintiff ought to avail himself of the benefits of the
state forum, plaintiff here adamantly insists, as he did in
his memorandum below, that he has deliberately chosen to
bypass the state's procedure in favor of a federal forum.
The court cannot insist on exhaustion of state
remedies as a prerequisite to a federal suit, however, where
Congress has left that choice to the plaintiff. Reading
plaintiff's complaint liberally, especially in light of his
pro se status, it appears to assert a claim under 42 U.S.C.
___ __
1983, in that plaintiff alleges that the state defendant
adopted a policy which violates his right to equal protection
of the laws, and impedes his constitutional right to
interstate travel.6 It may also be read as attempting to
____________________
6. We emphasize again that the record is too slim to assess
the ability of these claims to withstand a proper motion to
dismiss on the merits. We have before us no information on
basic issues like the actual burden, if any, on interstate
travel or commerce and the state's legitimate interest or
need for the rule. Moreover the factual basis for
plaintiff's unequal treatment claim is not clear, see supra
___ _____
n.3. See generally Hooper v. Bernalillo County Assessor, 472
_____________ ______ __________________________
U.S. 612, 624 (1985); Zobel v. Williams, 457 U.S. 55, 58-65
_____ ________
(1982); Jones v. Helms, 452 U.S. 412, 417-22 (1981); Shapiro
_____ _____ _______
v. Thompson, 394 U.S. 618 (1969) (overruled in part on
________
another gnd by Edelman v. Jordan, 416 U.S. 1000 (1974));
_______ ______
Edwards v. California, 314 U.S. 160 (1941); Crandall v.
_______ __________ ________
Nevada, 73 U.S. (6 Wall.) 35 (1868). We observe only that
______
general federal question jurisdiction is sufficiently pleaded
-6-
state a claim for violation by state officials of Title III
of the Social Security Act, 42 U.S.C. 503(a)(1), which
requires states receiving federal funds to provide for
"methods of administration . . . that are . . . reasonably
calculated to assure full payment of unemployment
compensation when due." The courts have consistently
recognized a private right of action for equitable relief to
enforce this provision.7
____________________
under 28 U.S.C. 1331. See Charles A. Wright et. al., 5
___
Federal Practice and Procedure 1209 (2d Ed. Supp. 1993).
______________________________
7. See California Dep't of Human Resources Dev. v. Java,
___ __________________________________________ ____
402 U.S. 121 (1971); Ohio Bureau of Employment Servs. v.
___________________________________
Hodory, 431 U.S. 471 (1977). Though the statute contains no
______
language allowing a private action, to assure state
compliance, the result makes "practical sense." Jenkins v.
_______
Bowling, 691 F.2d 1225, 1228 (7th Cir. 1982); see also Shaw
_______ _________ ____
v. Valdez, 819 F.2d 965 (10th Cir. 1987); Wilkinson v.
______ _________
Abrams, 627 F.2d 650 (3d Cir. 1980); Pennington v. Ward, 1989
______ __________ ____
U.S. Dist. LEXIS 7651, at *2 (N.D. Ill.) (citing Maine v.
_____
Thiboutot, 448 U.S. 1 (1980) for point that 1983 embraces
_________
claims that state defendants violated rights secured by
statute); Brewer v. Cantrell, 622 F. Supp. 1320 (W.D. Va.
______ ________
1985), aff'd without op., 796 F.2d 472 (4th Cir. 1986).
_________________
Payment "when due" is interpreted by the federal
regulations to mean with "the greatest promptness that is
administratively feasible," 20 C.F.R. 640.3(a). We have
not been offered a direct explanation of DET's procedure for
handling travel claims, but its brief suggests that the
travel rule is an initial administrative "rule of thumb."
DET states that despite the "sole purpose" language in the
rule and the dual purpose of plaintiff's trip, plaintiff's
benefits could have been reinstated at a factual hearing. A
review examiner, we are told, could have weighed evidence of
the comparative time plaintiff devoted to seeking work versus
the time he spent on personal matters to arrive at a result
different from that mandated by the rule. We read this as
implying that DET initially denies benefits to claimants who
travel for a dual purpose as an administrative "rule of
-7-
"It is now firmly settled that exhaustion or resort
to state remedies is not a prerequisite to a 1983 claim."
Miller v. Hull, 878 F.2d 523 (1st Cir.) (citing Patsy v.
______ ____ _____
Board of Regents, 457 U.S. 496 (1982)), cert. denied, 493
_________________ _____________
U.S. 976 (1989). A section 1983 claimant who alleges that he
has been injured by an unconstitutional practice need not
pursue state administrative remedies "but may proceed
directly to federal court" in order to press his claims.
Kercado-Melendez v. Aponte-Roque, 829 F.2d 255, 260 (1st Cir.
________________ ____________
1987) (while abstention may be warranted where a civil rights
plaintiff seeks to use the federal courts to nullify an
ongoing coercive state proceeding, where the plaintiff is
given the option to initiate a state proceeding, the Patsy
_____
rule prevails), cert. denied, 486 U.S. 1044 (1988). Cf.
_____________ ___
Darby v. Cisneros, 1993 U.S. LEXIS 4246 at *15 (June 21,
_____ ________
1993) (in suit under the APA federal courts do not have the
authority to require a plaintiff to exhaust administrative
remedies where neither statute nor rules mandate
____________________
thumb" subject to change on appeal in individual cases.
Whether this procedure is one sufficiently calculated to
result in payment "when due" within the meaning of 42 U.S.C.
503(a)(1), is a fact specific issue which we cannot
meaningfully assess on the rudimentary record before us. See
___
Fusari v. Steinberg, 419 U.S. 379, 387, 389 (1975). Nor can
______ _________
we determine the relevancy, if any, of the federal statute
encouraging certain interstate payments and procedures on
behalf of unemployed workers who relocate while seeking
employment. See 26 U.S.C. 3304(B)(9); see also M.G.L. c.
___ ________
151A, 66.
-8-
administrative appeals in order to render the agency action
final, citing Patsy with approval).
_____
And the cases recognizing a private right of action
to enforce 42 U.S.C. 503 leave little doubt that state
administrative exhaustion cannot be required where the
challenge is to a state rule that allegedly conflicts with
the "payment . . . when due" provision. See, e.g., Java, 402
_________ ____
U.S. at 121 (where private plaintiffs brought class action
challenging state practice of suspending unemployment
benefits pending appeal, suit commenced before conclusion of
administrative hearings allowed, without discussion); Wheeler
_______
v. Vermont, 335 F. Supp. 856, 860 (D. Vt. 1971) (exhaustion
_______
of state administrative remedies not required where claimant
challenges agency's initial redetermination practice and
terminates benefits before a hearing); cf. International
___ _____________
Union, UAW v. Brock, 477 U.S. 274 (1986) (citing cases
__________ _____
decided under 42 U.S.C. 503 for holding that Eleventh
Amendment does not bar suits challenging application of
federal guidelines to benefit claims, even though individual
eligibility for benefits may be confined to state processes);
Shaw v. Valdez, 819 F.2d 965, 966 n.2 (10th Cir. 1987)
____ ______
(availability of state judicial remedies does not bar private
suit challenging state's notice provisions under 503(a)(3)
where deprivation is allegedly caused by established state
procedure, rather than random or unauthorized act).
-9-
Exhaustion is not required in cases challenging
systemwide errors at the initial benefits determination stage
because of the economic aims of the statute. Prompt
replacement of wages is vital to effectuate "[b]oth the
humane (or redistributive) objectives of unemployment
insurance and its macroeconomic objective (dampening the
business cycle by keeping up the purchasing power of people
laid off in a recession). . ." Jenkins, 691 F.2d at 1229
_______
(Posner, J.); see also Java, 402 U.S. at 131-32 (Congress'
________ ____
intention in enacting 503(a)(1) was to assure both purposes
by making payments available at the earliest stage that is
administratively feasible). While individual administrative
appeals may effectively correct errors in individual cases,
the process may not result in speedy correction of systemic
errors at the initial determination stage. Cf. Schoolcraft
___ ___________
v. Sullivan, 971 F.2d 81, 87 (8th Cir. 1992) (under statute
________
allowing discretionary waiver of exhaustion requirements,
applying similar reasoning to waive requirement).
In conclusion we decide here only the exhaustion of
remedies issue presented to us. We express no opinion on any
other question of justiciability, including standing,
ripeness, mootness, or the like. And as our footnotes
repeatedly emphasize we express no opinion on the merits of
plaintiff's claims, the desirability of the relief sought,
-10-
nor the ability of these claims to withstand a proper motion
for summary judgment or other dismissal on the merits.
Vacated and remanded.
_______ ________
-11-
