1979-06-06_ENFORCEMENT - M1978352 (13)

Home Browse Search

The cases cited in support of Defendant ' s exhaustion argument all deal with attempted court review prior to final agency action. The words of the court in Dixon, supra at page 289 , ring true here: "All the cases cited. . . involved attempted judicial interference with various administra- tive proceedings before such proceedings had been concluded, and are, of course, not in point here. " Even if exhaustion was held technically not to have occurred, the facts of this case would obviate the need for barring court review under established legal principles . The impossibility or improbability of obtaining adequate relief by pursuing administrative remedies is a reason for dispensing with the exhaustion requirement. Schnader vs. 291 U.S. 24 , 78 L.Ed. 628 (1934) ; Jackson vs . State of Colorado, 294 F.Supp. 1065 (1961) ; Oil Shale Corp. vs. Udahl, 235 F.Supp 606 (1956) ; K.C. Davis, Administrative Law Treatise, Section 20 . 07 (1958) . Exhaustion is held not to be required where statutory interpretation is involved. McGee vs . United States, 402 U.S. 479 , 91 S .Ct. 1565 (1971) ; State of Colorado vs . Veterans Administration, 430 F.Supp 551, 558 (1970) . Further, "exhaustion is not required where it represents a hollow futile act. " State of Colorado vs. Veterans Administration, supra at 558; also see Jackson, supra at 1071 and Oil Shale Corp. , supra. The fact that the Board itself elected not to call a hearing, even after the Plaintiff made it' s objections and requests for future Board consideration, makes it clear that any further Board appeal (whatever it' s conceivable form) would be fruitless. A review of the meeting transcript demonstrates that the Board was not at all disposed to any further review of the notice question, and it' s denial of Plaintiff counsel ' s requests make it clear that the Board would -9-