
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          August 17, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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-
