Procedure Act). The difficulty arises when, as here, Congress has not spoken clearly and efforts must be made to discern its underlying intent from the legislative history and surrounding circumstances.
At the outset, it should be noted that the analysis required to determine the exclusivity question is similar, but not identical, to that involved in determining the existence of an implied private right of action. A court will not presume to find a private right of action in a statute silent as to remedy unless there is some evidence to indicate that the legislature impliedly intended one to exist. E.g., Texas Industries, Inc. v. Radcliff Materials, Inc., supra. In determining the exclusivity question, on the other hand, the court must presume a § 1983 right of action to exist unless there is evidence in the underlying statute which suggests an intent on the part of Congress to foreclose such an action. See Sea Clammers, supra. It is quite possible to find in the same statute, therefore, the absence of any intention on the part of Congress to either create an implied right of action or to preclude the assertion of a § 1983 action. In such a case, as in Thiboutot, an individual aggrieved under the terms of the statute would be entitled to bring a § 1983 action against state officials but not private parties.
In the present case, I discern no intention on the part of Congress to foreclose a § 1983 remedy for the enforcement of Title I. While the legislative history referred to in the previous section indicates that Congress chose not to include a civil action remedy in Title I itself, it does not suggest that Congress intended to make administrative remedies exclusive. The conference committee might equally well have chosen not to include a judicial remedy in 29 U.S.C. § 722 because it assumed that a § 1983 action was already available and would suffice.
I do not believe that the overall statutory scheme set forth in Title I requires a different result. In Sea Clammers, the Supreme Court found a § 1983 action precluded where the underlying statutes contained their own highly comprehensive set of enforcement remedies, including special citizen-suit provisions permitting private persons to sue in court for injunctive relief. Were the Court to have permitted a parallel § 1983 action, litigants could then have bypassed the procedural checks and balances, including a requirement of 60 days notice to potential defendants, which Congress had carefully made a part of the enforcement scheme. Under the circumstances, the Court concluded that a § 1983 remedy would be inconsistent with the statutory scheme and that Congress must have intended the acts' own provisions to be exclusive.
Here, on the other hand, the procedures set forth in 29 U.S.C. § 722(d) and a civil action under § 1983 would not be inconsistent but complimentary. If one assumes, as I do in the following section, that administrative remedies must be exhausted as a prerequisite to a § 1983 action for the vindication of federal statutory rights, then the availability of a § 1983 remedy will not interfere with the administrative remedies now provided in the statute. An aggrieved individual will be afforded access to the court only after all state agency procedures have been completed.
The statute at issue in this case, insofar as it provides for state administrative procedures but contains no judicial remedies, is virtually indistinguishable from the AFDC provisions of the Social Security Act at issue in Thiboutot. In order to participate in the AFDC program, a state must "provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for aid is denied or is not acted upon with reasonable promptness." 42 U.S.C. § 602(a)(4). Despite the existence of these federally mandated state administrative procedures, the Supreme Court found a § 1983 remedy available in Thiboutot for judicial enforcement of the provisions of the Act. If Thiboutot has any remaining vitality after Pennhurst and Sea Clammers, it all but dictates the conclusion that the statutory scheme created by Congress in Title I does not, by its nature, preclude a § 1983 remedy.
Viewing Title I as a whole, I find no Congressional intent to foreclose the assertion of a § 1983 action by a handicapped individual denied benefits under the program. The Supreme Court has held that courts should be "most reluctant to assume Congress has closed the avenue of effective judicial review to those individuals most directly affected by the administration of its program." Rosado v. Wyman, 397 U.S. 397, 420, 90 S. Ct. 1207, 1221, 25 L. Ed. 2d 442 (1970). Heeding this mandate, I conclude that plaintiff is entitled to assert his Title I claims by way of an action under § 1983.
3. Exhaustion of Administrative Remedies
Defendants next contend that, even if plaintiff is entitled to assert a private right of action under § 1983, the action must nevertheless be dismissed because plaintiff has not exhausted available state remedies.
It has long been held by the Supreme Court and the Court of Appeals in this Circuit that, as a general proposition, administrative remedies need not be exhausted as a prerequisite to an action under § 1983. See, e.g., McNeese v. Board of Education, 373 U.S. 668, 83 S. Ct. 1433, 10 L. Ed. 2d 622 (1963); United States ex rel. Ricketts v. Lightcap, 567 F.2d 1226 (3d Cir. 1977). The Supreme Court recently reaffirmed this stance in Patsy v. Board of Regents, 457 U.S. 496, 102 S. Ct. 2557, 73 L. Ed. 2d 172 (1982), squarely rejecting an en banc decision by the Fifth Circuit that state administrative remedies, where adequate, must be exhausted by § 1983 litigants. For the reasons which follow, however, I do not believe that either Patsy or its forerunners govern the present case.
As the Supreme Court recognized in Maine v. Thiboutot, there are two very different situations in which § 1983 actions may be brought: cases charging state officials with constitutional violations and cases charging that state officials have misconstrued or failed to comply with a federal statute.
In the former situation, sound reasons can be marshalled in support of a rule exempting plaintiffs from exhausting administrative remedies. The Constitution itself neither contains its own administrative remedies nor requires the establishment of administrative remedies by the states. Cf. Davis v. Passman, 442 U.S. 228, 241, 99 S. Ct. 2264, 2274, 60 L. Ed. 2d 846 (1979). Furthermore, Congress has indicated no intention to require exhaustion of state-created administrative remedies in § 1983 actions brought to vindicate constitutional rights. Patsy, supra, 457 U.S. at -- - -- , 102 S. Ct. at 2559-2564. Courts designated to police rights created by the Constitution, therefore, can reasonably take a dim view of administrative procedures which might have the effect of delaying the vindication of constitutional rights at best and immunizing state officials from the obligations imposed by the Constitution at worst. Unless state legislatures are to be permitted to superimpose their own procedural designs upon the "majestic simplicity" of the Constitution, the courts must remain wary of requiring exhaustion of administrative remedies.
In the present case, however, the very statute which plaintiff seeks to vindicate by way of a § 1983 action requires the state to institute administrative review procedures. If the courts are to effectuate congressional intent, they must give effect to the entire enforcement scheme provided in the statute.
As has frequently been noted, there are a number of sound reasons for requiring the exhaustion of administrative remedies as a prerequisite to the initiation of a court action. Among other things, the exhaustion requirement permits the application of agency expertise, aids the development of a factual record, gives the agency an opportunity to discover and correct its own errors and obviates the need for many cases to proceed to the judicial forum at all. See McKart v. United States, 395 U.S. 185, 89 S. Ct. 1657, 23 L. Ed. 2d 194 (1969). It can only be assumed that when Congress makes provision for states participating in its cooperative spending programs to create administrative remedies, it intends for those remedies to be pursued.
None of the Supreme Court cases traditionally relied upon for the proposition that administrative remedies need not be exhausted in § 1983 actions involved a suit for the vindication of federal statutory, as opposed to constitutional, rights.
Since the concerns presented by the two types of cases are altogether different, I do not believe that the decisions of either the Supreme Court or the Third Circuit Court of Appeals are controlling here. Accordingly, I conclude that where a § 1983 action is brought for the vindication of rights under a federal statute which contains its own administrative remedies, exhaustion of those administrative remedies, if they are adequate, is required.
Merely to hold that exhaustion of administrative remedies is required in statutory § 1983 cases, however, does not resolve the motion in the present case. It first must be determined whether plaintiff has in fact exhausted all adequate administrative remedies available to him.
The federal statute at issue here, 29 U.S.C. § 722(d), provides, in full, as follows:
(1) The Director of any designated State unit shall establish procedures for the review of determinations made by the rehabilitation counselor or coordinator under this section, upon the request of a handicapped individual (or, in appropriate cases, his parents or guardians). Such procedures shall include a requirement that the final decision concerning the review of any such determination be made in writing by the Director. The Director may not delegate his responsibility to make any such final decision to any other officer or employee of the designated State unit.