dissenting in part.
I dissent because the issue of exhaustion of contract remedies should not be remanded for an evidentiary hearing. This issue was resolved- in the prior appeal. Thus there is no basis for remanding the issue for redetermination.
The court states:
The superior court erroneously interpreted our decision in Beard I as conclusively deciding the exhaustion issue. Our decision merely reversed the court’s ruling in favor of the State and did not constitute a final determination that Beard was excused from pursuing his remedies under the collective bargaining agreement.
Op. at 545. Although the court suggests that we were reviewing a Civil Rule 12(b) motion to dismiss in Beard I, we did not so limit our discussion of the issue:
Beard is excused from grieving his constructive discharge and intentional infliction of emotional distress claims under the CBA because Senkow, his union representative, refused to file a grievance for Beard’s allegations of harassment underlying those claims on Beard’s behalf.
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*552... Beard could not comply with the grievance procedures established by the CBA because his union representative refused to represent him. Any such attempt would have been futile. Under these circumstances, we hold that Beard is excused from exhausting his remedies under the CBA for his claims of constructive discharge and intentional infliction of emotional distress.
Since the superior court erred in concluding that Beard was not excused from exhausting his contractual remedies as to each of these claims, we must reverse the superior court’s decision striking the claims unless they are not legally viable.
Beard v. Baum, 796 P.2d 1344, 1349 (Alaska 1990) (emphasis added). We then concluded that the claim for constructive discharge was legally viable. Id. at 1350. As to the claim of IIED, we noted that “[s]ince Beard has presented evidence of harassment and of emotional distress, his claim for intentional infliction of emotional distress may be legally viable_ On remand, the court should evaluate this evidence to determine whether it is sufficient to support Beard’s claim.” Id. We did not similarly instruct the superior court to determine whether Beard was excused from exhausting his contractual remedies.
It is not surprising that the superior court read Beard I as settling the question of whether Beard was excused from exhausting his contractual remedies. We did not “merely reverse” the superior court’s decision and remand for further proceedings. We unqualifiedly and unconditionally held that Beard was excused from exhausting his contractual remedies.
Bruce Senkow was the former APEA Field Representative whose affidavit was used by Beard in opposition to the State’s mistitled Motion to Dismiss. In that affidavit, Senkow stated in essence that he had refused to grieve Beard’s claims because they were not grievable under the contract. The State did not present any evidence to rebut that statement, or explain that it might have been incorrect or inaccurate as far as certain claims were concerned.
Following our decision in Beard I, the State deposed Senkow. In its view Sen-kow’s deposition showed that he would have filed a grievance had Beard asked, but Beard had not. Thus Senkow’s earlier affidavit was either incorrect or inaccurate as to certain claims. Based on that deposition, the State concluded that this court had misconceived a material fact. The State promptly filed a belated Petition for Rehearing, as well as a Motion for Late Filing of Petition for Rehearing. We granted the motion, but ultimately denied the petition.
The State’s petition was directed solely at the issue of exhaustion of contractual remedies. The State asserted that the issue of futility had not been raised below: “There had been no scrutiny of the facts of Beard’s relationship with his union representative at the trial level before appeal.” nor had it been raised on appeal: “However, the [supreme] court also found, sua sponte, that Beard was excused from grieving his dispute on the grounds that Beard’s union representative, Senkow, refused to represent Beard.” The State asked this court to “rehear its decision on the futility of Beard’s exercise of his contractual remedies.” We declined to do so.
If the State was correct, this court should have granted the State’s petition for rehearing and afforded appropriate relief at that time. And it should now admit its error. However, the remedy is not now to grant in effect the long ago and far away petition for rehearing. Such a resolution begs disappointed litigants to continue the fray in the hope that at some point in the future they will prevail, even though the issue has long since been decided. Further, it erodes the confidence trial courts should have in effectuating decisions of this court. If our decision and resolution of the petition for rehearing were correct, as I believe it was, there is no justification for remanding this issue for redetermination.
Regarding the procedural issue, the State argues that it never had an opportunity to rebut the evidence presented in *553Beard’s opposition. Op. at 545. I disagree. The court notes that the State’s motion to dismiss was actually a motion for summary judgment. Op. at 545 n. 8. The State acknowledges that “there were opportunities for the state to defend the dismissal, both at reconsideration and on appeal, ...” The State’s only argument is that it did not have the benefit of discovery or factual determinations. However, the State brought the motion to dismiss for failure to exhaust, yet failed to respond to Beard’s evidence that he was excused from exhaustion.
Pederson-Szafran v. Baily, 837 P.2d 124 (Alaska 1992), is not controlling. In Pederson the court noted that the decision in Szafran v. State, Mem.Op. & J. No. 452 (Alaska, May 10, 1989), was based only on Szafran’s affidavit that she was not afforded grievance rights. Pederson, 837 P.2d at 126. The court stated only that “ ‘[t]he superior court therefore erred in dismissing the complaint for lack of subject matter jurisdiction.’ ” Id. (quoting Szafran, Mem. Op. & J. No. 452). Following remand, Sza-fran filed an amended complaint conceding that she had received an administrative hearing. Id. at 128. “[Gjiven Szafran’s concession in her amended complaint that a grievance procedure was in fact afforded her, ... we conclude that the superior court’s grant of summary judgment to the State was not inconsistent with Szafran Id.
In this case the new evidence presented by the State is a deposition by Senkow, which may contradict his earlier affidavit. However, differences in context preclude such a conclusion on this record. This is not a situation in which the grievant has recanted or changed his or her position. Certainly Beard has not.
Furthermore, as a practical matter it seems useless to remand the issue of exhaustion of contract remedies to the superi- or court. The court will be asked to determine if an administrative appeal to Beard’s supervisors would have been futile. These are the same supervisors whom the jury already has found to have engaged in “outrageous” behavior justifying the IIED claim and punitive damages. The answer seems obvious.