USCA1 Opinion

August 17, 1993

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1138
DANNY M. KELLY,
Plaintiff, Appellant,
v.
NILES L. NORDBERG, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Selya and Stahl, Circuit Judges.
______________
____________________
Danny M. Kelly on brief pro se.

______________
Scott
Harshbarger, Attorney
General, and
Steve
Berens
___________________
______________
Assistant Attorney General, on Memorandum in Support of Appelle
Motion for Summary Affirmance, for appellee.
____________________
____________________

Per Curiam.
__________
whether

plaintiff

The narrow question

was

required

to

before us

exhaust

administrative remedies before bringing this suit.

appears

pro se seeking
___ __

declaratory

unspecified damages,

relief against

the Massachusetts

is

state
Plaintiff

injunctive and
Department of

Employment and Training's ("DET's") practice of disqualifying

for unemployment benefits those persons who travel outside of
the State for the

dual purpose of seeking work

in other activities.
a

and engaging

The district court granted to defendant

judgment on the pleadings.

We vacate

and remand without

prejudice to consideration of any other issue in the case.

A

grant of judgment on the pleadings is subject to

plenary review.

International Paper Co.

________________________

v. Jay,
___

928 F.2d

480, 482 (1st Cir. 1991).

movant's

factual

inferences

We

accept as true all of the non-

allegations

in his

favor.

and

draw

all

Santiago de Castro v.
____________________

Medina, 943 F.2d 129, 130 (1st Cir. 1991).

______
by the

reasonable

parties' apparent agreement as

Morales
_______

We are aided here

to the administrative

posture of plaintiff's claim.

According to the complaint, plaintiff was qualified
to receive
in

unemployment benefits of $282

September,

engineer at
locally

and

in

the midwest.

his

job as

He sought
When

he

for benefits in December,

new

a software
employment

filed a

required

1991, he certified

he would be in Chicago, Illinois from December 23, 1991

until January 5, 1992.

was to

he lost

Wang Laboratories.

periodic claim
that

1991, after

per week beginning

look for work

also certified that

He alleged that his reason for travel

and to visit

while he

family and friends.

was there

work, and was "available" for employment.1

he actively

He

sought

The DET
weeks he was
trip.

denied plaintiff any benefits

in Chicago because

According

to both

rule, as reflected in
is

that a

claimant

for the two

of the dual purpose

parties' pleadings,

of his

the agency's

its "Service Representative Handbook,"

who travels

or

stays outside

of

the

registration area must do so "for the SOLE purpose of seeking

new

employment or

reporting for

a pre-arranged job

interview" in order

to qualify for

D., Complaint

Based on plaintiff's written

questions

7.

about his

plaintiff's trip "did

trip,

a DET

not meet the

benefits.2

or job

Answer

Exh.

answers to

adjudicator decided
requirements of the

that
law

____________________
1.
Under Massachusetts' Employment Security Law, to be
eligible for unemployment compensation during any week a
claimant must provide evidence to the employment office that
he is available for and actively engaged in a systematic and
sustained effort to obtain work. M.G.L. c. 151A,
24, 30.
2.
The record does not explain DET's
rulemaking
practices, but we note a suggestion in the case law that
agency rules
relating
to eligibility
are
frequently
incorporated into circulars,
rather than the Code
of
Massachusetts Regulations ("CMR").
See Grand v. Director of
___ _____
___________
the Div. of Employment Sec., 393 Mass. 477, 480-81, 472
_____________________________
N.E.2d 250, 252 (1984) (rejecting claimant's argument that
review examiner
acted without standards
when he held
claimant's job search to be inadequate, because agency's
circularized notice "constitutes a guideline or standard set
forth by the division"). We note, too, rules in the CMR for
interstate claims subject to plans approved by the Interstate
Conference of Employment Security Agencies.
See 430 C.M.R.
___
4.02, 4.05; see also M.G.L. c. 151A,
66.
There are
_________
insufficient facts in this record to determine the relevancy,
if any, of the codified rules.
-3-

because . . . looking for employment was not the sole purpose

of the trip."

Answer

7, Exh. D.

Under M.G.L. c. 151A,

reconsideration
requesting
the

of

the

39(b), a claimant may seek

DET's

a de novo hearing
__ ____

The

parties agree

determination

before a review

absence of such a request,

final.

initial

In

the initial determination is

that plaintiff

agency review, but the DET

examiner.

by

did

not request

spontaneously treated plaintiff's

correspondence as a notice of appeal, advising plaintiff of a

hearing

date.

Plaintiff

did not

hearing and did not respond to

offering to
appear.

consider any

alleging that DET's

his right

a further notice from the DET

justifications for his

instead

failure to

filed

this

complaint

pro
___

se
__

travel rule unconstitutionally infringed

to travel

lifelong residents
and

the scheduled

DET dismissed the appeal.

Plaintiff

on

appear at

of

and to

Massachusetts.3

moved for judgment on

plaintiff had failed to

enjoy the same

benefits as

Defendant

the pleadings on

answered

the ground that

exhaust his administrative

remedies

____________________
3. Claimants who remained in the State were allowed benefits
if they actively sought work "at least three days a week and
made at least four job contacts/week," according to a 1984
Supreme Judicial Court opinion. Grand, 393 Mass. at 481, 472
_____
N.E. at 252.
The record before us offers no facts as to
DET's current eligibility rules for those who remain in the
state while seeking work, facts against which any claim of
unequal treatment necessarily must be measured.
Without a
full record we imply no opinion as to the ability of the
instant claim towithstand a motion to dismiss on the merits.
-4-

and

failed to state a claim.

the

judge inquired whether DET was still willing to afford a

hearing

on

respond

to the

plaintiff's claim

stating that it
showed

question.4

The

failure to

and

DET

gave

DET two

answered with

would reschedule a hearing

satisfactory

appear.

At the hearing on the motion,

reasons

judge then

for

his

dismissed the

willingness to

initial
instant

afford what

to

an affidavit

if the plaintiff

exhaust administrative remedies, "in

Commissioner's

weeks

failure

to

action for
view of the

appears to

be a

meaningful hearing on the merits."

We

sense

in

the

district

court's

decision

an

attempt

to

dilemma.
se
__

fashion an

plaintiff

urges

exhaustion

solution

to a

practical

The DET procedure strikes us as affording to a pro

___
the

benefit

certainly less expensive

he

equitable

upon the

of

fast,

streamlined,

procedure for litigating the

federal

of administrative

courts.5

Moreover,

remedies normally

and
issue

requiring
"serves the

____________________
4. Since the parties have not provided a transcript of the
hearing, our understanding of the proceedings below is
limited to the judge's abbreviated written orders.
5.
Plaintiff maintains that an agency factual hearing would
be futile since the examiner would have no power to change
the DET's admitted policy, only to award benefits. However,
state law also provides a subsequent discretionary appeal to
the Board of Review, which is expressly empowered to search
the record for errors of law as well as fact.
M.G.L. c.
151A,
40, 41.
And claimants are further afforded a
streamlined method for appeal to the state's district courts
where jurisdiction includes any constitutional errors, errors
of law or procedure.
M.G.L. c. 151A,
42; M.G.L. c. 30,
14(7).
-5-

interests

of

accuracy,

judicial economy."

efficiency,

agency

autonomy

and

Ezratty v. Puerto Rico, 648 F.2d 770, 774

_______
___________

(1st

Cir. 1981).

While

common sense would

seem to dictate

that

plaintiff ought to avail himself of the benefits of the

state forum, plaintiff

here adamantly insists, as

his

that

memorandum below,

he has

he did in

deliberately chosen

to

bypass the state's procedure in favor of a federal forum.

The court

cannot

insist on

exhaustion

of

state

remedies as a prerequisite to a

federal suit, however, where

Congress

to

has left

that choice

the plaintiff.

plaintiff's complaint liberally, especially

Reading

in light of

his

pro se status, it appears to assert a claim under 42 U.S.C.

___ __
1983,

in that

plaintiff

alleges that

the state

defendant

adopted a policy which violates his right to equal protection

of

the

laws,

and

interstate travel.6

impedes
It may

his

constitutional

also be read

right

to

as attempting

to

____________________
6. We emphasize again that the record is too slim to assess
the ability of these claims to withstand a proper motion to
dismiss on the merits.
We have before us no information on
basic issues like the actual burden, if any, on interstate
travel or commerce and the state's legitimate interest or
need
for the rule.
Moreover the factual basis for
plaintiff's unequal treatment claim is not clear, see supra
___ _____
n.3. See generally Hooper v. Bernalillo County Assessor, 472
_____________ ______
__________________________
U.S. 612, 624 (1985); Zobel v. Williams, 457 U.S. 55, 58-65
_____
________
(1982); Jones v. Helms, 452 U.S. 412, 417-22 (1981); Shapiro
_____
_____
_______
v. Thompson, 394 U.S. 618 (1969) (overruled in part on
________
another gnd by Edelman v. Jordan, 416 U.S. 1000 (1974));
_______
______
Edwards v. California, 314 U.S. 160 (1941); Crandall v.

_______
__________
________
Nevada, 73 U.S. (6 Wall.) 35 (1868).
We observe only that
______
general federal question jurisdiction is sufficiently pleaded
-6-

state a claim for

of

the Social

requires

violation by state officials of

Security Act,

42

receiving

federal

states

"methods of administration
calculated

to

compensation

assure

when

due."

recognized a private

. . .
full
The

U.S.C.
funds

Title III

503(a)(1), which
to

that are . .

provide

for

. reasonably

payment

of

unemployment

courts

have

consistently

right of action for equitable relief to

enforce this provision.7

____________________
under 28

See Charles A. Wright et. al., 5

___
Federal Practice and Procedure
1209 (2d Ed. Supp. 1993).
______________________________
7.

U.S.C.

1331.

See California Dep't of Human Resources Dev. v. Java,

___ __________________________________________
____
402 U.S. 121 (1971); Ohio Bureau of Employment Servs. v.
___________________________________
Hodory, 431 U.S. 471 (1977). Though the statute contains no
______
language allowing
a private
action, to assure
state
compliance, the result makes "practical sense."
Jenkins v.

_______
Bowling, 691 F.2d 1225, 1228 (7th Cir. 1982); see also Shaw
_______
_________ ____
v. Valdez, 819 F.2d 965 (10th Cir. 1987); Wilkinson v.
______
_________
Abrams, 627 F.2d 650 (3d Cir. 1980); Pennington v. Ward, 1989
______
__________
____
U.S. Dist. LEXIS 7651, at *2 (N.D. Ill.) (citing Maine v.
_____
Thiboutot, 448 U.S. 1 (1980) for point that
1983 embraces
_________
claims that state defendants violated rights secured by
statute); Brewer v. Cantrell, 622 F. Supp. 1320 (W.D. Va.
______
________
1985), aff'd without op., 796 F.2d 472 (4th Cir. 1986).
_________________
Payment "when due" is interpreted by the federal
regulations to mean with "the greatest promptness that is
administratively feasible," 20 C.F.R.
640.3(a).
We have
not been offered a direct explanation of DET's procedure for
handling travel claims, but its brief suggests that the
travel rule is an initial administrative "rule of thumb."
DET states that despite the "sole purpose" language in the
rule and the dual purpose of plaintiff's trip, plaintiff's
benefits could have been reinstated at a factual hearing. A
review examiner, we are told, could have weighed evidence of
the comparative time plaintiff devoted to seeking work versus
the time he spent on personal matters to arrive at a result
different from that mandated by the rule. We read this as
implying that DET initially denies benefits to claimants who
travel for a dual purpose as an administrative "rule of
-7-

"It is now firmly settled that exhaustion or resort

to state remedies is not
Miller

v. Hull,

878 F.2d

a prerequisite to a
523 (1st

1983 claim."

Cir.) (citing

Patsy v.

______

____

_____

Board of Regents,
_________________
U.S. 976 (1989).
has

457 U.S. 496

A section 1983 claimant who alleges that he

been injured

pursue

state

directly to

(1982)), cert. denied, 493

_____________

by an

unconstitutional practice

administrative
federal

remedies

court" in

"but

order to

need not

may

proceed

press his

claims.

Kercado-Melendez v. Aponte-Roque, 829 F.2d 255, 260 (1st Cir.

________________
____________
1987) (while abstention may be warranted where a civil rights
plaintiff seeks
ongoing

Darby
_____

use the

coercive state

given the option

rule

to

federal

proceeding, where

to initiate a

1993 U.S.

1993) (in suit under the APA

authority to
remedies

neither

U.S. 1044

LEXIS 4246

Patsy
_____

(1988).

at *15

to exhaust

statute

nor

an

plaintiff is

Cf.
___

(June 21,

federal courts do not have

require a plaintiff

where

the

nullify

state proceeding, the

prevails), cert. denied, 486

_____________
v. Cisneros,
________

courts to

the

administrative
rules

mandate

____________________
thumb" subject to change on appeal in individual cases.
Whether this procedure is one sufficiently calculated to
result in payment "when due" within the meaning of 42 U.S.C.
503(a)(1), is a fact specific issue which we cannot
meaningfully assess on the rudimentary record before us. See
___
Fusari v. Steinberg, 419 U.S. 379, 387, 389 (1975). Nor can
______
_________
we determine the relevancy, if any, of the
federal statute
encouraging certain interstate payments and procedures on
behalf of unemployed workers who relocate while seeking
employment. See 26 U.S.C.
3304(B)(9); see also M.G.L. c.
___
________

151A,

66.
-8-

administrative appeals

in order to render

the agency action

final, citing Patsy with approval).

_____
And the cases recognizing a private right of action
to

enforce 42

administrative
challenge is

U.S.C.

503 leave

exhaustion
to a state

cannot

little doubt
be

required

rule that allegedly

the "payment . . . when due" provision.

U.S. at

121 (where

challenging

state

of

where

the

conflicts with

See, e.g., Java, 402

_________ ____

private plaintiffs brought

practice

that state

suspending

class action
unemployment

benefits pending appeal, suit commenced before conclusion

of

administrative hearings allowed, without discussion); Wheeler

_______
v. Vermont, 335 F.
_______

Supp. 856, 860 (D. Vt.

of state administrative remedies

challenges

agency's

initial

terminates

benefits

before

1971) (exhaustion

not required where claimant

redetermination
a hearing);

cf.
___

practice

and

International
_____________

Union, UAW
__________

v.

decided under

Brock,
_____
42

Amendment does

477 U.S.

U.S.C.

not

bar

federal guidelines

503
suits

274

(1986)

(citing

for holding
challenging

that

cases

Eleventh

application

of

to benefit claims, even though individual

eligibility for benefits may be confined to state processes);

Shaw
____

v. Valdez,
______

819

F.2d 965,

966

n.2 (10th

Cir.

1987)

(availability of state judicial remedies does not bar private

suit challenging state's notice provisions under
where deprivation

is allegedly caused

503(a)(3)

by established

state

procedure, rather than random or unauthorized act).

-9-

Exhaustion

is

not required

in

cases challenging

systemwide errors at the initial benefits determination stage

because

of

the

replacement
humane
insurance
business

of

(or
and

economic
wages is

aims

of

the

vital

to

effectuate "[b]oth

redistributive)
its

statute.

objectives

macroeconomic objective

cycle by keeping up

of

Prompt
the

unemployment

(dampening

the

the purchasing power of people

laid off

in a recession). .

(Posner, J.);

see also Java,

________ ____

intention in enacting
by

."

402 U.S. at

administratively feasible).

errors at

at the earliest
While

individual cases,

correction of systemic

the initial determination stage.

81, 87 (8th Cir. 1992)

discretionary

waiver

stage that is

individual administrative

not result in speedy

v. Sullivan, 971 F.2d

________
allowing

131-32 (Congress'

effectively correct errors in

the process may

F.2d at 1229

503(a)(1) was to assure both purposes

making payments available

appeals may

Jenkins, 691
_______

of exhaustion

Cf. Schoolcraft
___ ___________
(under statute
requirements,

applying similar reasoning to waive requirement).

In conclusion we decide here only the exhaustion of
remedies issue presented to us.
other

question

ripeness,

of

justiciability,

mootness, or

repeatedly emphasize we
plaintiff's claims,

We express no opinion on any

the

like.

including
And as

express no opinion on

the desirability of

-10-

our

standing,
footnotes

the merits of

the relief

sought,

nor

the ability of these claims to withstand a proper motion

for summary judgment or other dismissal on the merits.

Vacated and remanded.
_______
________

-11-