dissenting:
The majority, in a comprehensive opinion, advances compelling arguments for requiring exhaustion of state administrative remedies, where adequate, as a prerequisite to a § 1983 action. I do not agree, however, that the language in any Supreme Court opinion cited authorizes a lower court to adopt this change. In my judgment, we are bound by the present rule of non-exhaustion until Congress amends the statute or the Supreme Court alters its interpretation.
I therefore dissent.
HATCHETT, Circuit Judge, with whom ALVIN B. RUBIN, VANCE, FRANK M. JOHNSON, Jr. and THOMAS A. CLARK, Circuit Judges, join, dissenting:I respectfully dissent.
The majority holds that “adequate and appropriate state administrative remedies must be exhausted before a section 1983 action is permitted to proceed in federal court absent any of the traditional exceptions to the general exhaustion rule.” I dissent because this holding contravenes numerous decisions of the nation’s highest Court; presumes a congressional intent never articulated by Congress; usurps authority delegated to Congress; and turns *917the clock back to the 1950’s by creating a procedural nightmare that can only have a “chilling effect” on civil rights litigation. In short, I dissent because I believe the majority opinion is both legally unsound and judicially inappropriate.
The majority makes much of the observation that administrative remedies were inadequate in each of the cases in which the Supreme Court has stated that a section 1983 plaintiff need not exhaust state administrative remedies. In my opinion, this observation neither requires nor permits a' lower court to institute an exhaustion rule for 1983 plaintiffs. As a tribunal bound by law and oath to follow the declarations of our highest Court, we must assume that the Supreme Court means what it says when reiterating, “apparently quite categorically, that exhaustion is not required in Section 1983 cases.” Majority opinion, at 906. Why would the Supreme Court articulate an absolute no-exhaustion rule in cases in which it was admittedly unnecessary unless the Court intended the lower courts to adhere to that rule in all 1983 cases? We must not presume that the Supreme Court makes meaningless, gratuitous statements. Instead, we must give deference and substance to its repeated, unequivocal declaration that exhaustion is not required in section 1983 cases.1
Numerous cases have presented the Court with an opportunity to recant its no-exhaustion declaration. Eminent critics have urged the Court at least to restrict the scope of the rule to cases falling within the established exceptions to the exhaustion requirement.2 Never has the Court retreated from its original pronouncement that exhaustion of state remedies is simply unnecessary to the institution of a section 1983 action. The significance of the. Court’s steadfast refusal in case after case to discard or diminish its no-exhaustion rule cannot be overestimated.
The Supreme Court did not announce its no-exhaustion rule in a vacuum. Prior to its decision in McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963), a frequent impediment to the prosecution of suits under section 1983 had been the requirement that a plaintiff exhaust adequate state administrative remedies before proceeding in federal court.3 Commentators noted that prior to McNeese the “requirement that a plaintiff exhaust state administrative remedies before he may maintain a suit in equity under section 1983 was black letter law.” Note, Limiting the Section 1983 Action in the Wake of Monroe v. Pape, 82 Harv.L.Rev. 1486, 1500 (1969). The Court’s no-exhaustion rule regarding state judicial remedies, exemplified by Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), and the Court’s no-exhaustion rule regarding state administrative remedies, announced in McNeese, together with their progeny represent a natural judicial effort to permit the full implementation of the Civil Rights Act of 1871.
Any “confusion surrounding these cases derives partly from the factual contexts of *918the cases (most fall within traditional ‘inadequate’ or ‘futile’ exceptions) and partly from the puzzling brevity of the courts’ explanations for such a no-exhaustion rule.” Comment, Exhaustion of State Administrative Remedies Under the Civil Rights Act, 8 Ind.L.Rev. 565, 570 (1975). Yet careful examination of the concerns of Congress and the decisions of the Supreme Court should remove any confusion and solve any puzzle surrounding the Court’s declaration of a no-exhaustion rule in all 1983 actions.
I. SECTION 1983 AND THE COURT
A. The Early History of Restrictive Judicial Interpretation
Section 1983 was enacted as part of the Civil Rights Act of 1871 (the “Ku Klux Klan Act”). The section provides a private, federal remedy for persons deprived of federal rights under color of state law:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. [42 U.S.C. § 1983.]
Though this language is broad and inclusive, section 1983 initially proved ineffective as a shield against state violation of federal rights. Restrictive judicial interpretation permitted a section 1983 action only to vindicate section 1983 offenses actually committed by the states. Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883); United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1875).
In the 1940’s, the Supreme Court began to allow full implementation of the Civil Rights Act by recognizing the broad reach of the words “under color of state law.” 42 U.S.C. § 1983. See Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941); Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). This new recognition of the substantive scope of section 1983, however, failed to remove the major procedural impediment to its full effectiveness: the judicially-created requirement of exhaustion of state judicial and administrative remedies. As late as 1960, less than 300 federal suits were brought under all of the civil rights acts. Administrative Office of the United States Courts, 1960 Annual Report of the Director 232, table C 2. “Section 1983, enacted as part of the Civil Rights Act of 1871 to enforce the guarantees of the fourteenth amendment by providing a cause of action in federal court, lay dormant as a result of restrictive judicial construction until the Supreme Court’s 1961 decision in Monroe v. Pape.” Developments in the Law — Section 1983 and Federalism, 90 Harv.L.Rev. 1133, 1135-36 (1977).
B. The Seminal Decision of Monroe v. Pape
In Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), an Illinois resident sought damages under section 1983 from the City of Chicago and individual policemen for allegedly conducting an unconstitutional search of his home under col- or of state law. Since the alleged conduct of the policemen also violated Illinois law, the action could have been brought under state law in state court. Although the Supreme Court concluded that the City of Chicago could not be sued as a “person” under section 1983, it held that the alleged conduct of the policemen which violated state law constituted “action under color of state law” and supported a section 1983 action in federal court without the necessity of exhausting state judicial remedies.
In concluding that exhaustion was unnecessary, the Monroe Court examined the history and purposes of section 1983. The Court identified these purposes as: (1) the overriding of particular state laws; (2) the provision of a remedy when state law was inadequate; and, (3) the creation of a feder*919al remedy when the state remedy, though adequate in theory, was not available in practice. Monroe, at 173-74, 81 S.Ct. at 476-77. These first three purposes could have been served by requiring a section 1983 plaintiff to exhaust his state judicial remedies whenever they are truly adequate. Since there had been no showing in Monroe that the state laws and procedures were in any way deficient, the Court’s decision to permit federal suit without such exhaustion necessarily rested upon a critical fourth purpose underlying section 1983: the “federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.” Monroe, at 183, 81 S.Ct. at 481; see, e. g., Developments in the Law — Section 1983 and Federalism, 90 Harv.L.Rev. 1133, 1170 (1977).
The majority opinion virtually ignores this clearly-stated and critically-important fourth purpose of providing a federal remedy through 1983 that is fully independent and supplementary. The majority merely argues that “[f]ar from thwarting congressional intent, a requirement of exhaustion of adequate state remedies is wholly consistent with the second and third congressional purposes identified in Monroe v. Pape, that is, the provision of a federal remedy where the state remedy is inadequate on its face or in practice.” (Emphasis added.) Yet the decision today to institute traditional exhaustion requirements in 1983 cases clearly thwarts Monroe’s fourth purpose of providing an independent, supplemental federal remedy.
The majority opinion does obliquely acknowledge this fourth supplementary purpose of section 1983 through extensive quotation of Justice Rehnquist’s dissent from the denial of certiorari in City of Columbus v. Leonard, 443 U.S. 905, 99 S.Ct. 3097, 61 L.Ed.2d 872 (1979). Joined by two other members of the Court, Justice Rehnquist concluded in this dissent that “the time may now be ripe for a reconsideration of the Court’s conclusion in Monroe that the ‘federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.’ ” Leonard, at 911, 99 S.Ct. at 3101. Apparently a super-majority of the Supreme Court disagreed; Justice Rehnquist could only dissent. His invitation to reconsider the supplementary nature of section 1983 thus represents nothing more than an invitation declined. At least Justice Rehnquist admits what this court would deny: the independence of 1983 from state remedies constitutes the established law of our highest Court, law which that Court refused to reconsider as recently as 1979.4
C. Extension of Monroe to Administrative Remedies
Monroe referred only to the exhaustion of state judicial remedies. Yet the Monroe Court’s recognition that Congress intended section 1983 to provide an independent and supplementary federal remedy laid the foundation for extension of the exhaustion principle to administrative procedures.
This extension occurred in the 1963 decision of McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963). In McNeese, black students alleged racial discrimination in an Illinois public school system and brought suit under section 1983 for equitable relief. The administrative remedy available to the plaintiffs provided that residents could file a complaint with the Superintendent of Public *920Instruction, who would then hold a hearing. If the Superintendent decided that the allegations were correct, he would request the attorney general to bring suit in the state courts. The district and appellate courts dismissed the suit for failure to exhaust available administrative remedies.
Relying upon the fourth congressional purpose identified in Monroe, the Court in McNeese held that plaintiffs bringing suit under section 1983 were not subject to any exhaustion requirement: “relief under the Civil Rights Act may not be defeated because relief was not first sought under state law which provided a remedy.” McNeese, at 671, 83 S.Ct. 1435.
Admittedly, the McNeese Court also based its decision upon the finding that the state administrative remedy was inadequate, since it offered only “tenuous protection” to the plaintiffs’ federal rights. McNeese, at 676, 83 S.Ct. at 1438. The mere fact that the Court refused to base McNeese solely upon this inadequacy of the state remedy suggests that it intended to announce a no-exhaustion rule for all section 1983 eases. Moreover, subsequent Supreme Court interpretations of McNeese show that the Court views McNeese as establishing that state administrative procedures need not be exhausted even when they are adequate.
D. The Post-McNeese Decisions
Four years after McNeese, the Court decided Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967). In Damico the Court quoted McNeese for the proposition that “relief under the Civil Rights Act may not be defeated because relief was not first sought under state law which provided [an administrative] remedy.” Damico, at 417, 88 S.Ct. at 526 (quoting from McNeese v. Board of Education, 373 U.S. 668, 671, 83 S.Ct. 1433, 1435, 10 L.Ed.2d 622 (1963) (bracketed material added by the Damico Court). The Damico Court’s insertion of the words “an administrative” indicates its desire to confirm that McNeese had completely abolished the administrative exhaustion requirement. To comprehend the full import of the insertion “an administrative,” Justice Harlan’s lone dissent in Damico must be considered. Significantly, Justice Harlan argued that McNeese did not govern in Damico because of the finding in McNeese that the state administrative remedy was inadequate. The majority of the Damico Court rejected Justice Harlan’s restrictive view of McNeese; no Justice joined Justice Harlan’s dissent.
The import of Damico and its lone dissent was apparent to commentators. As one thoughtful article stated:
Prior to the 1967 term, the Supreme Court’s treatment of the exhaustion requirement had been inconclusive. Last year, however, when the need for exhaustion was again urged upon the Court in Damico v. California, it was rejected summarily. Surprisingly, the question was treated as one governed by settled law.
The Supreme Court in Damico appears to have eliminated the exhaustion requirement in suits under the Civil Rights Act. The result is not surprising; recent pronouncements by the Court had perhaps foreshadowed this development. What is surprising is the summary nature of the opinion, for neither of the two cases cited by the Court — McNeese and Monroe — mandated the result reached.
Comment, Exhaustion of State Remedies Under the Civil Rights Act, 68 Col.L.Rev. 1201, 1201-1202 (1968) (footnotes omitted). That the Court chose to treat the exhaustion question presented in Damico as one of “settled law” is of crucial significance. In short, Damico erased any doubt about exhaustion in 1983 cases by confirming that McNeese stands for the proposition that “relief under the Civil Rights Act may not be defeated because relief was not first sought under state law which provided [an administrative] remedy.” Damico, 389 U.S. at 417, 88 S.Ct. at 526.
It therefore matters little that in Damico “it was beyond the authority of the administrative agency to declare a state statute or regulation unconstitutional and thus the administrative remedies were clearly inade*921quate.” Majority opinion, at 907; accord, Secret v. Brierton, 584 F.2d 823 (7th Cir. 1979); Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969), cert. denied 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75 (1970). While administrative remedies may have been inadequate, the Damico Court refused to rest its decision on this ground, and indeed, did not even mention it. Even more important than the Court’s lack of interest in the adequacy of remedies in Damico itself was the Court’s interpretation of McNeese as rendering any inquiry into state administrative remedies simply irrelevant in 1983 actions.
In the next Supreme Court case treating administrative exhaustion, King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968), the Court again rejected the argument that exhaustion applies to section 1983 cases:
We reject appellants’ argument that appellees were required to exhaust their administrative remedies prior to bringing this action. ... Decisions of this Court ... establish that a plaintiff in an action brought under the Civil Rights Act, 42 USC § 1983, 28 USC § 1343 is not required to exhaust administrative remedies where the constitutional challenge is sufficiently substantial, as here, to require the convening of a three-judge court.
King v. Smith, at 312 n. 4, 88 S.Ct. at 2130 n. 4.
King was followed in the same term by Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968). On the facts of that case, exhaustion would have been futile and, therefore, not required. The Supreme Court noted the probable futility of the available administrative process, but confirmed that “[i]n any event, resort to these remedies is unnecessary in light of our decisions in Monroe, McNeese, and Damico.” Shafer, at 640, 88 S.Ct. at 2120. Can there be any doubt after reading the quoted Shafer language that the highest Court believes that a no-exhaustion rule had been established by the three prior cases?
In a subsequent habeas corpus case, Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971), the Court repeated the “[i]n any event” language of Shafer. In Wilwording, the Court stated that it had already established that a section 1983 plaintiff need not invoke state remedies before seeking a federal forum. Wilwording thus undermined the argument originally formulated by Judge Friendly in Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969), cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75 (1970), and reiterated by today’s majority that the Supreme Court has' never held unambiguously that exhaustion is necessary when state remedies are adequate. As expressed by one commentator:
The Supreme Court undermined Judge Friendly’s argument in Wilwording v. Swenson, a habeas corpus case challenging state prison conditions. The Court rejected the suggestion that its holding in Shafer was based on the futility of the appeal: “Although the probable futility of such administrative appeals was noted, we held that ‘in any event, resort to these remedies is unnecessary.’ ” The Court’s willingness to extend its liberalized exhaustion principle seemed unambiguous when it held in Wilwording that, for exhaustion purposes, the plaintiffs were entitled to have their habeas corpus claim treated as if it had been brought under section 1983.
Comment, Exhaustion of State Administrative Remedies Section 1983 Cases, 41 U.Chi. L.Rev. 537, 546 (1974) (footnotes omitted).
In a later section 1983 case, Carter v. Stanton, 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972), the Supreme Court vacated a lower court dismissal for failure to exhaust administrative remedies on the ground that Damico, “an indistinguishable case[,] . .. establishes that exhaustion is not required in circumstances such as those presented here.” Carter, at 671, 92 S.Ct. at 1234. As in Damico, the constitutionality of the statute was in issue and the adequacy of the administrative remedy was questionable. Once again the Supreme Court refused to rest its decision on the fact that *922the available administrative remedy was inadequate.
The majority opinion discusses and relies upon the subsequent decision of Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973). This reliance on Gibson is misplaced, as noted by one law professor:
[T]he [Gibson] Court intimated that perhaps exhaustion of state administrative remedies would be required in some 1983 cases as where, for example, “a license revocation proceeding has been brought by the state and is pending before one of its own agencies and where the individual charge is to be deprived of nothing until the completion of that proceeding . . . . ” [T]he following year the Court reiterated, without qualification, its long standing no-exhaustion rule for state administrative remedies. In this connection it is significant that the Court has never in fact required exhaustion of state administrative remedies in a 1983 case.
S. Nahmod, Civil Rights and Civil Liberties Litigation, 145 (1979) (footnotes omitted). In addition to being repudiated by later cases, the language from Gibson quoted by Professor Nahmod and the majority constitutes no more than dictum.5
Promptly after Gibson, the Court restated, without qualification, the established no-exhaustion rule in Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). “When federal claims are premised on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3)-as they are here-we have not required exhaustion of state judicial or administrative remedies, recognizing the paramount role Congress has assigned to the federal courts to protect constitutional rights.” Steffel, at 472-73,94 S.Ct. at 1222. (Emphasis added.) The Court again stated the no-exhaustion rule in the subsequent case of Ellis v. Dyson, 421 U.S. 426, 95 S.Ct. 1691, 44 L.Ed.2d 274 (1975): “exhaustion of state judicial or administrative remedies in Steffel was ruled not to be necessary, for we have long held that an action under section 1983 is free of that requirement.” Ellis, at 432-33, 95 S.Ct. at 1694-95.
The Court rendered Steffel and Ellis subsequent to Gibson. Both Steffel and Ellis contain clear pronouncements of the no-exhaustion rule. The majority opinion dismisses the statements as dicta. While the pronouncements may be dicta, they are relevant and revealing as Supreme Court interpretations of earlier Court precedent and should guide a lower court in understanding and following Supreme Court decisions. The unequivocal no-exhaustion statements in Steffel and Ellis thus refute the argument advanced by Judge Friendly in Eisen and restated by today’s majority. As appreciated by Judge Hunter of the Third Circuit:
After its decision in Gibson, the Court again reaffirmed its adherence to the rule that exhaustion is not required, without mentioning the adequacy of available remedies. Ellis v. Dyson, 421 U.S. 426, 432-33, 95 S.Ct. 1691 [at 1694-95], 44 L.Ed.2d 274 (1975); Wolff v. McDonald, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). These cases indicate that possible sentiments in Gibson have not come to fruition.
United States ex rel. Ricketts v. Lightcap, 567 F.2d 1226, 1230-31 (3d Cir. 1977).
As recently as 1979, the Court had an excellent opportunity in Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979), to overrule its no-exhaustion rule if such was the Court’s desire. The real significance of Barry, cited by the majority, is that the Court refused to retreat from the no-exhaustion rule prefigured by Monroe (1960), announced by McNeese (1963), confirmed by Damico (1967), relied upon by King (1968), Shafer (1968), Wilwording (1971) and Carter (1972), reiterated after *923Gibson (1973) by Steffel (1974) and Ellis (1975), and reconfirmed by the rejection of Justice Rehnquist’s dissent in Leonard (1979). Clearly the Court adheres to the no-exhaustion rule.
II. SECTION 1983 AND FEDERALISM
The majority opinion implies that in bypassing state administrative remedies the current no-exhaustion rule creates needless federal-state friction and thereby constitutes poor federalism. Good federalism, however, does not demand unreasoned acquiescence to state interests. Indeed, “Our Federalism,” as described by Justice Black in Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 750, 27 L.Ed.2d 660 (1971), requires a balancing of competing federal and state interests.
Admittedly, “[i]t is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 386, 76 L.Ed. 747 (1932). (Brandéis, J., dissenting.) Yet it is equally true that “one of the strengths of our federal system is that it provides a double source of protection for the rights of our citizens. Federalism is not served when the federal half of that protection is crippled.” Justice Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489, 503 (1977). The need for independent federal supplementation of state innovations is keenly apparent in the context of civil rights and section 1983.
The history of section 1983 shows that states should be free to devise improved mechanisms for protecting civil rights; litigants should be free to choose state-created remedies; but, the federal remedy should always be available independently. The predecessor of section 1983,
[w]as enacted for the express purpose of “enforcepng] the Provisions of the Fourteenth Amendment.” 17 Stat. 13. The predecessor of § 1983 was thus an important part of the basic alteration in our federal system wrought in the Reconstruction era through federal legislation and the constitutional amendment. As a result of the new structure of law that emerged in the post-Civil War era-and especially of the Fourteenth Amendment, which was its centerpiece, the role of the Federal Government as a guarantor of basic federal rights against state power was clearly established.
Section 1983 was thus a product of a vast transformation from the concepts of federalism that had prevailed in the late ■ 18th century. ... The very purpose of § 1983 was to interpose the federal courts between the States and the people, as guardians of the people’s federal rights-to protect the people from unconstitutional action under color of state law, “whether that action be executive, legislative or judicial.” Ex parte Virginia, 100 U.S. at 346, 25 L.Ed. at 679.
Mitchum v. Foster, 407 U.S. 225, 238-39, 242, 92 S.Ct. 2151, 2159-60, 2162, 32 L.Ed.2d 705 (1972).
This court has similarly explained the revolutionary nature of the Civil Rights Act and the remedy it created in the section now codified at 1983. In Moreno v. Henckel, 431 F.2d 1299, 1305 (5th Cir. 1970), we said:
The Act was not one artfully phrased so as not to disturb the relationship between the States and the Nation. If there is one thing certain about the legislative history of the Act, it is that Congress, open-eyed, deliberately set out to alter the so-called “delicate balance” between the state and the federal government so that federal courts could effectively protect federal rights.
In deciding cases brought under section 1983, we must never forget that Congress intended to fundamentally change the rela*924tionship between the states and the nation with the Civil Rights Act. We must remember that Congress intended the federal courts, endowed with the protections afforded by life-tenure, to serve as a barrier between the states and aggrieved individuals in the protection of civil rights.6
The alteration of our federal structure by act and amendment in the wake of the Civil War, and the resulting reliance upon the federal courts as primary protectors of civil rights, strongly argues against institution today of exhaustion requirements in section 1983 cases.
[T]he absence of an exhaustion requirement in § 1983 is not an accident of history or the result of careless oversight by Congress or this Court. On the contrary, the no-exhaustion rule is an integral feature of the statutory scheme. Exhaustion of state remedies is not required precisely because such a requirement would jeopardize the purposes of the Act.
Preiser v. Rodriguez, 411 U.S. 475, 518, 93 S.Ct. 1827, 1850, 36 L.Ed.2d 439 (1973) (Brennan, J., dissenting as to other matters). The difference noted by the majority between the requirement of exhaustion of federal administrative remedies in section 1983 cases and the absence of any requirement of exhaustion of state administrative remedies merely demonstrates the critical difference between the federal and state roles in the realm of civil rights. Compare McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969) (articulating the reasons for requiring exhaustion of federal administrative remedies) with the line of section 1983 cases refusing to require exhaustion of state administrative remedies. The paramount role of the federal government in the realm of civil rights, as envisioned by the Congress and the Constitution, is wholly inconsistent with today’s dilution of the federal section 1983 remedy through imposition of state exhaustion requirements.
The development of the exhaustion doctrine represented, at least in part, an attempt to minimize intergovernmental friction by deferring to the maximum extent possible to the interest of the states in ordering and regulating their own affairs.
However, ritual genuflection in the direction of federalism should be avoided. The states are not the only legitimately interested parties. A reasoned evaluation of the exhaustion requirement cannot be made without considering other factors which may outweigh the interest of the states in orderly recourse to their procedures. One of these is delay. Even without conscious state efforts to frustrate the assertion of unpopular rights by requiring recourse to dilatory remedial procedures-and an exhaustion rule does open the door to such efforts-the inevitable consequence of insistence on exhaustion is substantial delay in vindication of the constitutional rights of many complainants.
Comment, Exhaustion of State Remedies, 68 Col.L.Rev. 1201, 1206-7 (1968) (footnotes omitted).
III. SECTION 1983 AND THE NO-EXHAUSTION RULE
There are many reasons why this court should not abolish the no-exhaustion rule. First, and fundamentally, the Supreme Court has enunciated and continually followed the no-exhaustion rule. As explained in Section I of this dissent, until such time as the highest Court rejects the rule, this court should steadfastly follow it.
Second, as explained in Section II, Congress did not intend to require exhaustion of state administrative remedies. If Congress intended at any time to require exhaustion of judicial remedies in section 1983 cases, it could have easily expressed its disagreement with the Court’s no-exhaustion rule by adopting the explicit statutory lan*925guage often used in other areas. See, e. g., 28 U.S.C. § 2254(b) (habeas corpus for state prisoners); 28 U.S.C. § 1342 (state rate orders); 28 U.S.C. § 1341 (state taxes). Further, Congress created the special remedy that is section 1983 after survey, public debate, and findings. Rather than abrogating the no-exhaustion rule by judicial fiat, this court should permit Congress to make any such alteration through the full and open legislative process.
Third, although it is often argued that administrative remedies should be exhausted because of the “expertise” of an administrative body, where federal issues are involved, no such “expertise” resides in state administrative agencies.
A suit under the Civil Rights Act will often turn upon isolable issues of federal law, and involve federal [constitutional] rights of a particularly sacrosanct character. Insofar as the question is one of federal law, the federal court is the “expert” body. There is a strong federal interest in adjudicating these cases immediately, without any exhaustion of state procedures.
Comment, Exhaustion of State Remedies Under the Civil Rights Act, 68 Col.L.Rev. 1201, 1207-8 (1968). (Emphasis added.)
Fourth, there is a very real danger that the delay inherent in requiring use of state administrative processes may discourage aggrieved individuals from seeking vindication of their rights.7 I agree with Judge Rubin that “the federal courts are likely to provide a civil rights plaintiff with the swiftest, least costly, and most reliable remedy.” Dissent of J. Rubin, at 916.
Fifth, the majority opinion may create a time-consuming procedural nightmare, the curse of both litigants and federal trial judges.8 After the filing of a section 1983 complaint, the defendant will likely move to dismiss on the ground that the state administrative remedies are adequate. To rule on this motion, the district court will not only have to examine state remedies, but also take testimony from knowledgeable persons as to how the administrative process really works. If the state administrative remedy is found adequate, the court will have to decide whether to dismiss the suit or retain jurisdiction. Presumably, the state’s stat*926ute of limitations will be tolled during the ensuing period of exhaustion since the majority makes pursuit of state administrative remedies a prerequisite to federal suit. See, e. g., Bryant v. Potts, 528 F.2d 621 (5th Cir. 1976). If the plaintiff loses on every point of the state administrative claim, since neither res judicata nor collateral estoppel apply, the plaintiff may then, having exhausted administrative remedies, return to the federal court to continue the suit.
Sixth, the typical state administrative process is not constituted to provide adequately for the award of costs and attorney’s fees.9 Thus, even when a litigant prevails in the state administrative process, he will still need to return to federal court for an award of costs and attorney’s fees. By the time the prevailing plaintiff completes the procedural nightmare dictated by the majority opinion, costs and attorney’s fees will be staggering.
Seventh, most administrative processes cannot adequately entertain class action claims. In the typical administrative setting, when an individual plaintiff is a member of a class and is suing to protect the rights of the class, an individual settlement may be satisfactory. Although satisfactory to the individual plaintiff, it may not protect other class members from like deprivations.
Eighth, assuming that considerations of federal-state friction avoidance are relevant, friction between the states and the federal judiciary can only increase under a system that requires federal courts to judge the adequacy of state administrative remedies.10 Moreover, the majority opinion will in fact interfere with orderly state procedures. What will be the effect of a federal court ruling that a particular state administrative scheme is not adequate for the protection of litigants’ constitutional rights? Will the state be under any duty to amend its statutes and regulations for the next litigant? If a state disagrees with this finding, may it appeal? May the state participate in the hearing regarding the adequacy of state remedies?
CONCLUSION
The majority opinion contravenes a Supreme Court rule consistently applied by the Court in section 1983 cases. The majority opinion assumes a congressional intent never articulated by Congress, and, in so doing, usurps the role assigned to Congress by the Constitution. Most unconscionably, however, the majority opinion will have a “chilling effect” on civil rights litigation after Congress and the Court have struggled mightily to afford civil rights litigants speedy, inexpensive, and reliable redress for constitutional deprivations.
Exhaustion of state administrative remedies simply has no place in the civil rights context. I agree with Judge Friendly’s conclusion that “[i]t is hard to conceive a task more appropriate for federal courts than to protect civil rights guaranteed by the Constitution against invasion by the states.” H. Friendly, Federal Jurisdiction: A General View 90 (1973). Today’s institution of an exhaustion requirement can only interfere with our performance of that most appropriate task.
*927APPENDIX
TABLE I
Career Service Employee (CSE) Grievance Procedure for Florida International University Chart based upon procedures set forth in Florida Administrative Code, Chapter 6C8-4.05
*928TABLE II
Human Relations Commission (HRC) Procedure Chart based upon procedures set forth in Florida Administrative Code, Chapter 9D-9
. As noted by Judge Rubin, the Supreme Court has made this unequivocal declaration in the following cases: Ellis v. Dyson, 421 U.S. 426, 432-33, 95 S.Ct. 1691, 1694-95, 44 L.Ed.2d 274 (1975); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Allee v. Medrano, 416 U.S. 802, 814, 94 S.Ct. 2191, 2200, 40 L.Ed.2d 566, 580 (1974); Steffel v. Thompson, 415 U.S. 452, 472, 94 S.Ct. 1209, 1222, 39 L.Ed.2d 505 (1974); Preiser v. Rodriguez, 411 U.S. 475, 492-93 n. 10, 93 S.Ct. 1827, 1837-38 n. 10, 36 L.Ed.2d 439 (1973); Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 1234, 31 L.Ed.2d 569 (1972); Wilwording v. Swenson, 404 U.S. 249, 251-52, 92 S.Ct. 407, 409, 30 L.Ed.2d 418 (1971); Houghton v. Shafer, 392 U.S. 639, 640, 88 S.Ct. 2119, 2120, 20 L.Ed.2d 1319 (1968); King v. Smith, 392 U.S. 309, 312 n. 4, 88 S.Ct. 2128, 2131 n. 4, 20 L.Ed.2d 1118 (1968); Damico v. California, 389 U.S. 416, 417, 88 S.Ct. 526, 527, 19 L.Ed.2d 647 (1967); McNeese v. Board of Education, 373 U.S. 668, 672, 83 S.Ct. 1433, 1435, 10 L.Ed.2d 622 (1963).
. See, e. g., Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969), cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75 (1970) (Friendly, J.); Comment, Exhaustion of State Administrative Remedies in Section 1983 Cases, 41 U.Chi.L.Rev. 537 (1974).
. Comment, Exhaustion of State Remedies Under the Civil Rights Act, 68 Col.L.Rev. 1201 (1968).
. Aside from the fact that Justice Rehnquist expresses no more than a dissenting view, his reasoning in Leonard cannot withstand scrutiny. In a portion of the dissent deleted by the majority opinion, Justice Rehnquist reasons that because the Court has recently overturned that portion of Monroe which rendered local governments immune from suit under 1983, “the time may now be ripe” for reconsideration of the other Monroe holding that the federal remedy is fully supplementary. The problem with this reasoning is that the Court overruled a portion of Monroe not to diminish its impact, but to realize the full reach of 1983 by making subsidiary local governments liable on the same basis as a state government. See Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Developments after Monroe thus show an increase in the reach of section 1983, rather than foretelling its dilution through institution of an exhaustion requirement.
. See Comment, Exhaustion of State Administrative Remedies in Section 1983 Cases, 41 U.Chi.L.Rev. 537 (1974).
. See Developments in the Law-Section 1983 and Federalism, 90 Harv.L.Rev. 1133 (1977).
. We need only consider Patsy’s plight to appreciate the delay inherent in even a well-intentioned state administrative procedure. Upon a determination by the trial court that the administrative remedy is adequate, Patsy must utilize the Florida International University (FIU) career service employee (CSE) grievance procedure set forth in 6C8-4.05 of the Florida Administrative Code (see Appendix, Table I). If these procedures culminate in an unfavorable ruling, Patsy may then apply to the Florida Human Relations Commission (HRC) under procedures outlined in 9D-9 of the Florida Administrative Code (See Appendix, Table II).
The CSE Procedure
The CSE procedure requires that Patsy attempt to seek redress from her superior and others in the FIU chain of command. If FIU personnel fail to follow CSE procedures, Patsy may seek redress from the Florida Director of Personnel in the Department of Administration. The Director may request compliance from FIU personnel, but if this request is denied Patsy is left without a remedy since the Director lacks enforcement authority.
Upon the issuance by FIU personnel of an unfavorable decision, Patsy may refile her grievance with the Director only if she alleges that the University failed to follow the Florida Administrative Code. The Director may then issue a final decision. Once again, though, the Director lacks authority to enforce his decision.
The HRC Procedure
If Patsy is dissatisfied with either the ruling of FIU personnel or the decision of the Director, she may file a complaint with the Human Relations Commission. The HRC procedure can be extremely time consuming. E. g., Hargis v. Leon County School Board, II Florida Administrative Law Reports 957-A (1980) (HRC decision issued more than a year and a half after the filing of complaint).
Additionally, the Human Relations Commission lacks independent enforcement power. In order to enforce its decisions, the Commission must petition the appropriate Florida circuit court, and appeal an unfavorable ruling. See Fla.Stat.Ann. 120.69.
. This procedural nightmare will only encourage the filing of frivolous constitutional challenges. Since it is beyond the scope of an administrative agency to declare a state statute or regulation unconstitutional, litigants will strive to assert constitutional deficiencies in all cases in order to enter the federal courts directly.
. In light of the usual absence of adequate provision for costs and attorney’s fee, it is doubtful that state administrative procedures can ever be truly adequate.
. As explained above, I am of the opinion, shared by others, that it is “very doubtful that considerations of friction-avoidance have any place in civil rights litigation in light of the history and purposes of section 1983.” Comment, Exhaustion of State Administrative Remedies Under the Civil Rights Act, 8 Ind.L.Rev. 565, 587 (1975); see also, Note, Section 1983: A Civil Remedy for the Protection of Federal Rights, 39 N.Y.U.L.Rev. 839 (1964).