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February 28, 1991


Appeal from the Superior Court of the District of Columbia; Hon. Henry H. Kennedy, Jr., Trial Judge

Rogers, Chief Judge, and Steadman, Associate Judge, and Newman,* Associate Judge, Retired.

The opinion of the court was delivered by: Steadman

In an action brought under 42 U.S.C. § 1983, plaintiff-appellant Green Miller, Jr. sought damages from the District for the demolition of two buildings owned by him. The trial court granted summary judgment in favor of the District on the ground that Miller had failed to exhaust his administrative remedies. It has been established, however, that this requirement does not apply in § 1983 actions; and, even if it did, summary judgment was improper here. Accordingly, we reverse and remand for further proceedings.


In September of 1982, plaintiff-appellant Miller received an order to show cause from the District of Columbia Board of Condemnation of Insanitary Buildings (the "Board") why two buildings owned by him, 1330 and 1332 Belmont Street, Northwest, should not be condemned due to insanitary and unsafe conditions. *fn1 The Board decided to condemn both buildings in March 1983, after a hearing pursuant to D.C. Code § 5-703 (1981) and 29 DCRR § 4 (1972). *fn2 Appellant received notice of the issuance of the condemnation order but did not appeal the Board's action to a higher tribunal. *fn3 Instead, for the next 18 months, appellant and the Board engaged in intermittent correspondence and negotiations concerning the properties to the effect that, as the statute contemplates, see note 2 (supra) , appellant's buildings would not be demolished if appellant could sanitize or rehabilitate them. These Discussions included a June 1984 letter to appellant from the Chief of the Board evidencing the continuing course of dealing between the parties. *fn4 However, in October 1984, without any further notice to appellant, the buildings were in fact razed at a cost of $10,000 per building assessable to appellant.

Appellant filed his complaint in the instant action against the District on October 7, 1985, alleging that the demolitions violated his Fifth Amendment due process rights, the Civil Rights Act of 1871, 42 U.S.C. § 1983 ("§ 1983"), *fn5 and the District of Columbia Administrative Procedure Act, D.C. Code §§ 1-1501 to -1511. Although the District did not initially file an answer and a default judgment was issued against it, it thereafter filed a verified answer and a motion to set aside the default judgment was granted on December 1, 1988. *fn6 The District then moved for summary judgment, which the trial Judge granted.


The trial court granted summary judgment on the ground that "the plaintiff failed to exhaust administrative remedies pursuant to the statutory procedures enacted by Congress prior to seeking relief from the court [and thus, a] fortiori, this court is not empowered to grant the relief plaintiff is seeking." *fn7 However, neither party cited to the trial court the controlling Supreme Court decisions concerning exhaustion of administrative remedies in § 1983 litigation, Patsy v. Board of Regents of Florida, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), and Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988), and the court thus failed to consider their effect. Appellant now argues that the trial court's "Conclusion . . . was and remains squarely, materially and irretrievably inconsistent with the explicit Disposition of the issue by the Supreme Court." We agree. The exhaustion of District administrative remedies is not a prerequisite to bringing an action pursuant to § 1983 in the local courts of the District. *fn8


The doctrine of exhaustion of administrative remedies, well established in administrative law jurisprudence, provides "that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969) (citation omitted). See generally B. SCHWARTZ, ADMINISTRATIVE LAW, at 682-684 (2d ed. 1983). In Patsy, a federal court race and sex discrimination case brought against a Florida university under § 1983, the District Court granted a motion to dismiss for failure to exhaust state administrative remedies. After the United States Court of Appeals for the Fifth Circuit, sitting en banc, remanded the case for a determination whether exhaustion would be appropriate, the Supreme Court reversed, holding that "exhaustion of state administrative remedies should not be required as a prerequisite to bringing an action pursuant to § 1983. We decline to overturn our prior decisions holding that such exhaustion is not required." 457 U.S. at 516. *fn9

In Felder, the Court extended the no-exhaustion rule of Patsy to § 1983 actions maintained in state courts. Justice Brennan, for the Court, concluded that "there is simply no reason to suppose that Congress . . . contemplated that those who sought to vindicate their federal rights in state courts could be required to seek redress in the first instance from the very state officials whose hostility to those rights precipitated their injuries." Id. at 147. The basis for the Felder holding was that "the dominant characteristic" of § 1983 actions is that "they belong in court" and that such causes of action "'exist independent of any other legal or administrative relief that may be available as a matter of federal or state law. They are judicially enforceable in the first instance.'" Id. at 148 (citation omitted; emphasis in original). Against the background of the lengthy history, both legislative and judicial, of a § 1983 no-exhaustion policy, the Felder Court held that the imposition of an exhaustion policy in state court would be a "judgment the current Congress must make." Id. at 149. *fn10 We hold, likewise, that unless Congress acts to impose exhaustion requirements, the no-exhaustion rule at work both in federal and state court § 1983 litigation applies in the local courts of the District as well.


The District does not take serious issue with this proposition as a general matter, but argues that it is inapplicable here. It asserts that the existence of a congressionally enacted "comprehensive enforcement mechanism," Smith v. Robinson, 468 U.S. 992, 1003, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984), encompassed in the condemnation statute, precludes an action under § 1983 by Miller. In Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 110 S. Ct. 444, 448, 107 L.Ed.2d 420 (1989) (citations omitted), the Supreme Court held that where a plaintiff has alleged the violation of a federal right under § 1983, the defendant may show that "Congress 'specifically foreclosed a remedy under § 1983' by providing a 'comprehensive enforcement mechanism for protection of a federal right,'" but that the "availability of administrative mechanisms to protect plaintiff's interests is not necessarily sufficient to demonstrate that Congress intended to foreclose a § 1983 remedy." Rather, the Court held, the statutory scheme must be such that if plaintiff were permitted to bring a § 1983 action, it "'would be inconsistent with Congress' carefully tailored scheme.'" Id. at 449 (quoting Smith v. Robinson, supra, 468 U.S. at 1012). Finally, the Court put the burden on defendant to "demonstrate that Congress has expressly withdrawn the remedy," id., of a § 1983 action, reasoning that

"we do not tightly conclude that Congress intended to preclude reliance on § 1983 as a remedy" for the deprivation of a federally secured right. Wright [v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 423-424, 107 S.Ct. 766, ...

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