(dissenting):
In Migra v. Warren City School District Board of Education, 465 U.S. 75,104 S.Ct. 892, 79 L.Ed.2d 56 (1984), the Supreme Court held that in section 1983 suits federal courts, in determining the preclusive effect of earlier state court proceedings, must apply the same law of res judicata that the state courts would apply. Judge Newman’s opinion, while artfully crafted, reaches, in my view, an incorrect answer to the crucial Migra question: would the New York courts have given the decision in Gargiul I — a case in which a tenured teacher raised a statutory claim for continued pay during her suspension and a procedural due process claim to the same effect — the preclusive effect of barring her section 1983 claim that since she was willing to pay for an examination by a female physician selected by the Board, the Board’s suspension of her for refusal to be examined by a male physician was arbitrary and capricious and violated her privacy rights? Nothing in Judge Newman’s opinion convinces me that the New York courts would give Gargiul I such preclusive effect. Nor does anything in the New York law of claim preclusion indicate that she would have had to raise her substantive constitutional claims in the state Article 78 proceeding in which she sought pay during suspension on statutory and procedural due process grounds. Instead, New York law forcefully indicates that a New York court would not hold that the earlier action bars this suit.
*275It was m March of 1975 that the Board of Education of the Liverpool Central School District suspended Gargiul, a kindergarten teacher, without pay for failing to submit to a physical examination by a male doctor, despite her scrupulously reasonable offer to pay for a female doctor of the school’s choosing. As the majority points out, Gargiul chose to challenge this suspension through the statutorily prescribed administrative process, rather than in the state courts. Her 1976 appeal of the suspension to the Commissioner was rejected on February 24, 1976, and a rehearing was denied on June 15, 1976. She did not appeal the Commissioner’s decision. Her Article 78 proceeding, filed April 8, 1976, was brought only to demand that the Board continue to pay her salary during her suspension. This it was apparently obligated to do under N.Y.Educ.Law § 3020-a (McKinney 1981), since the New York Court of Appeals had held in 1974 that tenured teachers could not be suspended without pay pending the final determination of disciplinary proceedings. Jerry v. Board of Education, 35 N.Y.2d 534, 324 N.E.2d 106, 364 N.Y.S.2d 440 (1974). Although the majority opinion states otherwise, the petition, including its request for relief, makes clear that the due process claim, as well as the statutory claim, did not challenge the propriety of the suspension itself. The Article 78 proceeding was held time-barred. Gargiul v. Board of Education, 54 A.D.2d 1085, 389 N.Y.S.2d 504 (4th Dep’t 1976), leave to appeal denied, 41 N.Y.2d 802, 362 N.E.2d 627, 393 N.Y.S.2d 1026 (1977) (Gargiul I).
In April, 1977, a tenure hearing panel acting pursuant to section 3020-a sustained charges of incompetence but recommended Gargiul receive back pay retroactive to the date of her earlier suspension. In May, 1977, the Board terminated her for incompetence and refused back pay for the suspension period. On Article 78 review of this decision, the Appellate Division in April, 1979, upheld the incompetence finding and refused to reach the merits of the suspension without salary issue, holding that Gargiul was bound by the Commissioner’s prior determination since she had neither appealed his ruling nor joined him in the second Article 78 proceeding. Gargiul v. Board of Education, 69 A.D.2d 986, 416 N.Y.S.2d 119 (4th Dep’t), leave to appeal denied, 48 N.Y.2d 606, 397 N.E.2d 760, 421 N.Y.S.2d 1031 (1979) (Gargiul II).
In June, 1976, before the Commissioner denied a rehearing and before the Article 78 proceeding for pay had been decided, plaintiff filed a section 1983 action in federal court. This action was permitted to remain in abeyance during the state proceedings. In 1982, Judge Miner dismissed the complaint for failure to state a claim. This court reversed. 704 F.2d 661 (2d Cir.1983). The Supreme Court then vacated and remanded, in light of Migra, to determine if New York res judicata law precluded the federal section 1983 suit. 465 U.S. 1016, 104 S.Ct. 1263, 79 L.Ed.2d 670 (1984). We remanded to the district court, 739 F.2d 34 (2d Cir.1984), which granted summary judgment to defendants on res judicata grounds.
I do agree with Judge Newman that appellant’s approach to Gargiul I — that the 1975 and 1977 Board actions gave rise to two separate transactions, and that claims litigated in one action are therefore not a bar to claims that arose later out of subsequent events — is without merit under New York law. O’Brien v. City of Syracuse, 54 N.Y.2d 353, 429 N.E.2d 1158, 445 N.Y.S.2d 687 (1981). Our inquiry, however, does not end with a finding that there was only one transaction. While I agree with the majority opinion, at n. 4, that Marrese v. Academy of Orthopaedic Surgeons, — U.S. -, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985), does not compel us to go beyond the arguments raised by the parties, Marrese does require that federal courts not “give a state court judgment greater preclusive effect than the state courts themselves would give to it.” Id. 105 S.Ct. at 1334. I therefore think it appropriate to go beyond the narrow arguments raised by the parties, where necessary to ensure that we do not give greater preclusive effect to prior state *276court judgments than the state courts themselves would give.
Examination of New York law and Gargiul’s proceedings makes clear that the state courts would not agree with the all-inclusive res judicata effect the majority would give to Gargiul I. Gargiul I was simply an interim effort by Gargiul to receive her pay during her suspension pending a final outcome of the section 3020-a process. She did not challenge the suspension itself in that action, and her Article 78 proceeding was the only way to enforce judicially her asserted right to receive pay pending the hearing panel decision.1 There is no New York or other authority for the proposition that in that proceeding all of her substantive constitutional claims had to have been raised or lost. In fact, the New York law decidedly stands for the opposite proposition. In Soucy v. Board of Education, 51 A.D.2d 628, 378 N.Y.S.2d 500 (3d Dep’t 1976), a tenured teacher waited until the end of the section 3020-a administrative process to bring an Article 78 proceeding to attack her termination on the merits and to demand her pay during suspension under Jerry. The court explicitly held, “Petitioner could have brought a separate action or proceeding to secure payment of her salary pending the final determination. Petitioner was not required to enforce her right to compensation in a separate action or proceeding and may assert her right in this proceeding.” Id. at 629, 378 N.Y.S.2d at 503 (emphasis added) (citation omitted). See also Board of Education v. Nyquist, 48 N.Y.2d 97, 102, 397 N.E.2d 365, 367, 421 N.Y.S.2d 853, 855 (1979). Soucy's reference to a “separate action” makes clear that a prior action bringing a claim for pay would not bar the New York courts from subsequently considering the merits of the school board’s actions, and indeed Judge Newman’s opinion now concedes this, at 12. In any event, the Soucy decision is perfectly reasonable, while the assertion that all constitutional claims had to be raised or lost in this interim proceeding would border, I think, on the absurd. The gist of the latter position would be that if a tenured teacher, while in the middle of a statutorily prescribed administrative termination process, seeks to bring an action asserting his statutory right to continue receiving pay pending its final outcome, he must also litigate all of his substantive constitutional claims, although he might ultimately win the administrative proceeding. If New York courts treated the pay claim proceeding as res judicata as to all substantive claims implicated by the suspension, the statutory right under section 3Q2Q-a(5) to appeal a final adverse hearing panel decision in an Article 78 proceeding would itself be rendered a nullity. Alternatively, if a tenured teacher wished to preserve his right to appeal a final adverse administrative decision, he would lose his right to enforce payment of his salary during his suspension. In the absence of the slightest indication that New York would require imposition of such a disruptive effect on its administrative procedures, we should not treat Gargiul I as relevant for res judicata purposes.
As I say, the majority concedes that under Soucy an interim Article 78 proceeding to vindicate a tenured teacher’s statutory right to suspension pay during the section 3020-a administrative process would not preclude a subsequent challenge to the merits of the suspension. It concludes, however, that because Gargiul I included a procedural due process claim and because of the Commissioner’s decision pursuant to N.Y.Educ.Law § 310 (McKinney 1969), Gargiul I precludes this section 1983 action. This reasoning I find impossible to follow. First, it transmogrifies her procedural due process claim in Gargiul I into a *277challenge to the merits of the suspension itself. The majority asserts that in seeking suspension pay, rather than nominal damages, she necessarily argued, under Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), that the adverse action would not have occurred absent the due process violation. The majority then leaps to the conclusion that the adverse action that would not have occurred absent the violation is the suspension itself. This conclusion is baseless, I believe, even leaving aside the fact that Carey was decided almost two years after Gargiul I was commenced: the petition clearly states that the adverse action being challenged is not the suspension, but rather the withholding of Gargiul’s salary. Since the due process claim is solely for suspension pay, there is simply no reason to hold Soucy inapplicable to Gargiul I.
Second, the majority contends that the Commissioner’s decision on the merits of the suspension somehow gives Gargiul I the res judicata effect that it otherwise lacks. It may well be that Gargiul had to appeal the Commissioner’s decision or lose the right to obtain judicial review of the administrative resolution of her suspension (although Gargiul II is somewhat unclear as to whether Gargiul could have obtained review had she joined the Commissioner). It may also be true that had Gargiul sought Article 78 review of the Commissioner’s decision, she would have had to join that claim with Gargiul I since Gargiul I was brought after a final decision by the Commissioner. However, Gargiul was not required to seek judicial review of the Commissioner’s decision. The most that Gargiul II held was that the Commissioner’s unreviewed decision is final within the state administrative process but, as discussed infra, and as conceded by the majority, at n. 9, it could not bar a subsequent section 1983 suit. Under the majority’s reasoning, even if Gargiul I contained only a statutory pay claim, and even if Gargiul brought no other state judicial proceedings, this section 1983 suit is barred as long as the Commissioner acted before Gargiul I was commenced. The effect of this approach is to force any teacher in Gargiul’s position either to forego the interim pay proceeding in order to preserve a civil rights action, or to join all his substantive claims with a claim for pay during suspension in an Article 78 proceeding, which is precisely the result that, as the majority is required to recognize, Soucy intended to avoid. It simply cannot be that the right to bring a non-preclusive interim pay proceeding pending resolution of the section 3020-a administrative process turns on whether the Commissioner has rendered a final decision in the section 310 proceeding.
If I am correct that Gargiul I does not bar this section 1983 action, we still must examine the preclusive effect of Gargiul II. I take note of the majority’s disavowal of according preclusive effect to Gargiul II, at n. 7, and of the concession of appellee’s counsel at oral argument that Gargiul II does not bar this suit.2 I also take note of the fact that Gargiul II did not accord Gargiul I res judicata effect. The later decision did not even take cognizance of the earlier one. The court’s reference in Gargiul II to the fact that “she may not relitigate the propriety of her suspension without pay in this CPLR article 78 proceeding,” 69 A.D.2d at 986, 416 N.Y.S.2d at 120, obviously refers to the Commissioner’s determination on suspension, rather than to Gargiul I.
Under New York law a dismissal not on the merits is not res judicata except for what is decided in the dismissal, Peterson v. Troy, 96 A.D.2d 856, 857, 465 N.Y.S.2d 771, 772 (2d Dep’t 1983); DeRonda v. Greater Amsterdam School District, 91 A.D.2d 1088, 1089, 458 N.Y.S.2d 310, 311 (3d Dep’t 1983). The Gargiul II court avoided the merits of the constitutional claim on two related grounds: failure to join the Commissioner in the second Article 78 proceeding and failure to appeal his *278decision. Specifically, the procedural failure to join a party in an Article 78 proceeding does not operate as a bar to another suit. Schanbarger v. New York State Commissioner of Social Services, 99 A.D.2d 621, 622, 472 N.Y.S.2d 175, 177 (3d Dep’t 1984).
The court’s refusal to consider Gargiul’s constitutional claims for failure to appeal the Commissioner’s decision, in my view, is just as clearly a decision not on the merits. Article 78 review of the Commissioner’s decision is a judicial gloss on the Commissioner’s statutorily established review powers. See N.Y.Educ.Law § 310 (McKinney 1969). During the relevant period, such decisions were “final and conclusive,” although a court could review them if they were “purely arbitrary.” Baer v. Nyquist, 34 N.Y.2d 291, 298, 313 N.E.2d 751, 755, 357 N.Y.S.2d 442, 447 (1974). The limited holding of the court in Gargiul II was that since the Commissioner’s decision had not been appealed, it was final within the administrative review of Board of Education decisions. Thus, to reiterate, Gargiul II was not a decision on the merits of the constitutional claims.
Since neither Gargiul I nor Gargiul II would be res judicata in a section 1983 action, the only decision that could conceivably be advanced as having res judicata effect would be the Commissioner’s decision. For a number of reasons, however, that decision should not be accorded such effect. First, Migra requires only that federal courts apply state res judicata law to state court decisions. Therefore, even if New York would give the Commissioner’s decision preclusive effect, this court is not bound to do so. Second, even if quasi-judicial administrative proceedings can bar a subsequent section 1983 suit, as in one extremely limited instance we held they could, see Zanghi v. Incorporated Village of Old Brookville, 752 F.2d 42, 46 (2d Cir.1985); but see Pettis Moving Co. v. Roberts, 784 F.2d 439, 441 n. 4 (2d Cir.1986); Elliott v. University of Tennessee, 766 F.2d 982 (6th Cir.), cert. granted, — U.S. -, 106 S.Ct. 522, 88 L.Ed.2d 455 (1985), the Commissioner’s “round table discussion, ... [with its] procedural inadequacies, which include the inability to examine or cross-examine witnesses,” Gargiul, 704 F.2d at 667, hardly rises to the level of a quasi-judicial proceeding which could bar a subsequent section 1983 action.
Finally, the fact that a court in an Article 78 proceeding subsequently refused to reconsider the Commissioner’s decision does not give that decision the res judicata effect that it lacks standing alone. Gargiul II was simply a ruling that pursuant to section 310 the Commissioner’s decision is final within the administrative process unless appealed and that the court would not reconsider the merits where plaintiff had failed to join the Commissioner in the second action and where she had earlier foregone an opportunity to exhaust her administrative appeals. Such exhaustion is clearly not a prerequisite to a section 1983 suit. Patsy v. Florida Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982); Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 481, 5 L.Ed.2d 492 (1961). Since the Commissioner’s decision would not bar a section 1983 suit and Gargiul II was a procedural ruling not on the merits, the New York courts would have entertained Gargiul’s section 1983 claim for damages arising out of the violation of her constitutional rights. So should we.
The majority finds that New York res judicata law does not bar Gargiul’s suit against the education officials in their individual capacities, but that a remand is unnecessary since these officials are entitled, as a matter of law, to a good-faith immunity defense. Following our remand, 739 F.2d 34, on the limited question of New York res judicata law, appellees did not raise this defense below, and the district court never ruled on it.3 As the issues *279were not before us on this appeal, appellant had no opportunity to brief or argue the question. If appellees wished this court to consider the immunity issue, they should have raised it before the district court following our remand. The general rule of practice of this court is to refuse to consider issues not raised below, even if the new appellate claim is a purely legal question raised after a summary dismissal proceeding. Schmidt v. Polish People’s Republic, 742 F.2d 67, 70 (2d Cir.1984); Terkildsen v. Waters, 481 F.2d 201, 204-05 (2d Cir.1973) (citing Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941)); see also Singleton v. Wulff, 428 U.S. 106, 120-21, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976). In Singleton, the Court noted that “there are circumstances in which a federal appellate court is justified in resolving an issue not passed on below,” 428 U.S. at 121, 96 S.Ct. at 2877, and left that decision primarily to the discretion of the courts of appeals. The standard in this court is to consider new issues “only when necessary to avoid manifest injustice.” Schmidt, 742 F.2d at 70. The majority points to no such injustice here, nor to any other special circumstances other than the duration of this litigation.4 The fact that the immunity defense was made in opposition to appellant’s motion for summary judgment before the district court in 1981, or before a previous panel of this court, neither of which considered the question, does not make it ripe for consideration here following remand on the limited question of the res judicata effect of Gargiul I and II, especially where appellant rightfully did not brief the question. I can understand the majority’s desire to bring this case to a close after eleven years, but I cannot agree that we should resolve the issue of qualified immunity at this point.5
The image that comes into mind when one thinks of Gargiul, whose simple little claim to suspension pay from an arbitrary school board has somehow now been snuffed out, is that of Laocoon and his sons; only the sea serpents have been replaced by the serpentine coils of section 1983 preclusion law.
Accordingly, I respectfully dissént.
. Rather than beginning her challenge in state court, Gargiul could have initially brought her demand for pay before the Commissioner pursuant to N.Y.Educ.Law § 310. See Board of Educ. v. Nyquist, 48 N.Y.2d 97, 397 N.E.2d 365, 421 N.Y.S.2d 853 (1979). If the Commissioner denied her claim she could then have brought an Article 78 proceeding to review that decision. See id. New York law, however, does not require that she initially bring the claim before the Commissioner. See Soucy v. Board of Educ., 51 A.D.2d 628, 629, 378 N.Y.S.2d 500, 503 (3d Dep’t 1976).
. The Court: You’re relying in other words on Gargiul I, and not on Gargiul II, for the preclusive effect?
Mr. Bell: That’s correct, your Honor, because it was not necessary that the issue be addressed the second time in the Gargiul II proceeding.
. Appellees did raise a defense of good faith immunity in their answer to the First Amended Complaint, Jan. 5, 1980, and in their Memorandum in Opposition to Motion for Summary Judgment, filed Oct. 19, 1981. Judge Miner never addressed the immunity issue in denying plaintiff’s motion for summary judgment, 525 F.Supp. 795 (N.D.N.Y.1981), or in his 1982 rul*279ing that Gargiul failed to state a claim for relief. This court, in finding that Gargiul’s constitutional rights were violated, 704 F.2d 661, also did not address the immunity question.
. Both Chris-Craft Industries, Inc. v. Piper Aircraft Corp., 516 F.2d 172, 186-87 (2d Cir.1975), rev’d on other grounds, 430 U.S. 1, 97 S.Ct. 926, 51 L.Ed.2d 124 (1977), and Georgia-Pacific Corp. v. U.S. Plywood-Champion Papers Inc., 446 F.2d 295, 299 (2d Cir.), cert. denied, 404 U.S. 870, 92 S.Ct. 105, 30 L.Ed.2d 114 (1971), involved appellate redetermination of damages based on a complete record before the court. Neither decision supports resolving the immunity issue here without even affording the appellant an opportunity to brief it.
. Having said that, I feel compelled to respond briefly to the majority’s holding that a reasonable school board member would not have known that his action violated Gargiul’s substantive due process right to be free of arbitrary official action, irrespective of my prior concurring opinion. As this court previously found, 704 F.2d 661, 668, Gargiul offered the Board two reasonable alternatives to examination by a male physician, both sanctioned by N.Y. Educ.Law § 913 (McKinney Supp.1986). No reasonable explanation was offered as to why these alternatives were rejected. The Board’s behavior was the essence of arbitrariness. The majority notes some changes in the law of privacy, but nothing that would make the school board’s decision arbitrary in 1983 but not in 1975. Indeed, I seem to recall comments of the Court as to the unconstitutionality of “purely arbitrary" administrative action dating back at least to Yick Wo v. Hopkins, 118 U.S. 356, 367-68, 6 S.Ct. 1064, 1069-70, 30 L.Ed. 220 (1886). Even assuming that Judge Newman is correct that "considerations of privacy” influenced the majority in our prior opinion, I fail to see how that made the Board’s 1975 decision any less arbitrary. The Supreme Court had already recognized a right to privacy in the physician-patient relationship. See Roe v. Wade, 410 U.S. 113, 163-64, 93 S.Ct. 705, 731-32, 35 L.Ed.2d 147 (1974); Griswold v. Connecticut, 381 U.S. 479, 482, 85 S.Ct. 1678, 1680, 14 L.Ed.2d 510 (1965). That such privacy rights were at least implicated in the Board’s decision makes that decision, if anything, even more unreasonable than had there been no constitutional recognition of the patient-physician relationship. Perhaps significant changes in the law of arbitrary state action occurred between 1975 and 1983, even if I am not aware of them, but I would leave initial resolution of this question to the district court after both parties have had an opportunity to address the question.