dissenting in part.
I agree with the court's opinion in all respects but one: I disagree that the doe-trine of res judicata precludes Sengupta's free speech claim. In this claim, Sengupta alleges that he was terminated because he spoke out on issues of public importance-alleged mismanagement of his University department. Sengupta never raised this claim at the administrative proceedings. Thus, the question is whether the doctrine of res judi-cata precludes him from bringing his § 1983 free speech claim because he could have raised it in his administrative proceeding. Put another way, should Sengupta have been required to raise all of his constitutional claims in his administrative hearing and appeal, with the understanding that these claims would be subject to collateral estoppel if they were resolved against him? In my view, requiring him to do so is tantamount to forcing him to elect between his right to an administrative grievance procedure and appeal and his right to file a § 1983 lawsuit.
As an initial matter, it should be noted that a party need not exhaust administrative remedies before bringing a § 1988 claim in state court.1 Therefore, a plaintiff may immediately file a § 1983 claim without first appealing the adverse administrative decision. The question before the court, then, is whether the plaintiff who chooses to grieve and appeal the agency decision is barred by res judicata principles from filing a subsequent § 1983 action for damages.
Other courts have refused to apply res judicata to bar subsequent § 1983 claims where the seope of available relief or the development of the record is limited on appeal from the administrative decision2 In Davenport v. North Carolina Department of Transportation, the Fourth Circuit Court of Appeals focused on the limited relief available to the terminated employee in refusing to apply res judicata3 The court recognized that, in the administrative proceedings, "the claimed wrong was a discharge without just cause from public employment in violation of statutorily protected rights, entitling [Davenport] to the remedy of reinstatement with back, and possibly front, pay.4 In contrast, Davenport's § 1983 claim involved a deprivation of his constitutional rights under the First and Fourteenth Amendments that entitled him to the remedy of compensatory and punitive damages.5 In concluding that res judicata did not apply, the court stated:
Though the constitutional claims asserted in the § 1983 action could be raised by the plaintiff in the administrative hearing, their utility would be limited there to rebutting any "just cause" defense raised by the defendants.... They could not be invoked in that proceeding to provide the full range of constitutional remedies available in a § 1983 action.6
The Fourth Cireuit Court of Appeals thus underscores the unacceptable Catch-22 *1264posed by the majority's approach. If the terminated employee immediately files a separate §,1983 claim following the adverse administrative decision and foregoes the administrative grievance and appeal, the requirement of exhaustion of administrative remedies will bar the party from challenging the termination on the grounds of lack of just cause.7 If the party appeals the termination through the administrative process, the party will not be able to obtain the full array of relief available under § 1988 for constitutional violations.
Apart from the issue of remedies, courts have also declined to apply res judicata where the plaintiff did not have a full and fair opportunity to present the constitutional claim in the administrative proceedings.8 For example, in State Board of Chiropractic Examiners v. Stiernholm, the Colorado Supreme Court refused to apply res judicata where the record on appeal was developed completely at the administrative level by the defendant board.9 The court indicated that § 1983 plaintiffs should be accorded the opportunity for "evidentiary presentation to and fact finding by" the trial court and thus did not require Stjernholm to litigate the § 1983 claim on appeal on the limited record developed before the administrative agency.10
Similarly, in Smith v. Updegraff, the Eighth Cireuit Court of Appeals denied res judicata effect where the reviewing state court had limited powers on administrative appeal.11 The state court only had the power to determine whether the civil service termination "was made in good faith and for cause" and "its review was limited to the evidence before the [ageney].12 Because the court "could not determine the broader § 1983 claim at issue" under these appellate restrictions, the Righth Cireuit Court of Appeals concluded that, under Iowa law, res judicata would not apply to bar a subsequent § 1983 claim.13
I believe that the court should adopt the reasoning of Davenport, Stiernhoilm, and Up-degraff and conclude that Judge Hodges's decision on appeal does not preclude Sengup-ta's subsequent § 1983 claims under principles of res judicata. Under Appellate Rule 602, Sengupta had no absolute right before Judge Hodges to supplement the administrative record 14 or to have a trial de novo to adjudicate his constitutional claims.15 In turn, the administrative record before Judge Hodges was developed at the Rice pre-termi-nation hearing in accordance with procedures developed by the University itself.16 It is not apparent from the record that the University's procedural rules afforded Sengupta an adequate opportunity to litigate his $ 1983 claims and seek the full range of relief, including consequential damages. Thus, Seng-upta should not have been required to pursue each constitutional claim against the University in the pre-termination hearing or the subsequent administrative appeal. For this reason, I1 respectfully dissent from this aspect of the court's opinion.
. See Felder v. Casey, 487 U.S. 131, 147, 108 S.Ct. 2302, 101 LEd.2d 123 (1988); Diedrich v. City of Ketchikan, 805 P.2d 362, 368 (Alaska 1991).
. Accord City of North Pole v. Zabek, 934 P.2d 1292, 1306 (Alaska 1997) (Shortell, J. pro tem., dissenting) (res judicata should not bar subsequent § 1983 claim where administrative proceedings did not permit full scope of relief or evidence admissibility); Restatement (Second) of Judgments § 26(1)(c) (stating res judicata inapplicable where "plaintiff was unable ... to seek a certain remedy or form of relief in the first action because of limitations on the subject matter jurisdiction of the courts or restrictions on their authority to entertain multiple theories or demands for multiple remedies or forms of relief in a single action").
. 3 F.3d 89, 96-97 (4th Cir.1993).
, Id. at 96.
. See id.
. Id.; see also Dionne v. Mayor of Baltimore, 40 F.3d 677, 681-82 (4th Cir.1994); Burka v. New York City Transit Auth., 32 F.3d 654, 658 (2d Cir.1994) ("'the resolution of whether [the constitutional] claim would be barred by res judicata turns on whether the relief sought in that action was relief obtainable in [the prior proceeding]"); Parker v. Blauvelt Volunteer Fire Co., Inc., 93 N.Y.2d 343, 690 NY.S.2d 478, 712 N.E.2d 647 (1999) (refusing to apply res judicata where the damages available under § 1983 were not available under the administrative proceedings). But see Strickland v. City of Albuquerque, 130 F.3d 1408, 1412 (10th Cir.1997) (applying claim preclusion, reasoning that "[the fact that plaintiff's [§ 1983] claims attempt to vindicate interests or obtain remedies other than those pursued or *1264made available under [state law] does not make the prior action a different 'claim' "). >
. See Voigt v. Snowden, 923 P.2d 778, 782-83 (Alaska 1996).
. See, eg., Scroggins v. Kansas, 802 F.2d 1289, 1292-93 (10th Cir.1986); Huron Valley Hosp. v. City of Pontiac, 612 F.Supp. 654, 659 (E.D.Mich.1985), aff'd in part on other grounds and dismissed in part, 792 F.2d 563 (6th Cir 1986).
. 935 P.2d 959, 967 (Colo.1997).
. Id.
. 744 F.2d 1354, 1362 (8th Cir.1984).
. Id.
. Id.
. See Alaska R.App. P. 604(b).
. See Alaska R.App. P. 609(b).
. The University of Alaska is exempted from the procedural requirements of the Alaska Administrative Procedure Act, AS 44.62. See ch. 30, § 1, SLA 1993. The Board of Regents established the pre-termination procedures at issue in this case. Under Board of Regents Policy 04.08.08 XI(A), the employee has the opportunity at the pre-termination hearing "to present testimony and other evidence as to why the action should not be taken." This provision does not guarantee that an employee's constitutional rights will be adequately adjudicated.