Note:
Mike Baldwin, Administrative Law—Exhaustion of Remedies—Federal Employees Must Exhaust Civil Service Commission Remedies Before Bringing an Action for Discriminatory Employment Practices Under Section 1981 of the Civil Rights Act. Penn v. Schlesinger (5th Cir. 1974), 53 TEXAS L. REV. 371 (1975).
 

Abstract:
In Penn, the Fifth Circuit held that federal employees must exhaust Civil Service Commission remedies before bringing an action under 42 U.S.C. § 1981. While exhaustion is generally the rule when a legal or equitable remedy coexists with administrative machinery designed to cope with the same problem, the Supreme Court has carved exceptions to this doctrine of exhaustion in the area of civil rights. Plaintiffs need not exhaust administrative remedies before bringing an action under 42 U.S.C. § 1983. Likewise, the Court has held that actions under 42 U.S.C. § 1982 are not “at war” with the administrative machinery implementing that section. In Penn, the Fifth Circuit refused to accord this option to bring suit without exhausting administrative remedies to federal employees, arguing that the Executive Order which gave oversight of implementation of Section 1981 to the Civil Service Commission essentially preempted alternative remedies. In this note the author argues that the Fifth Circuit’s reasoning is misguided for several reasons, including its inclination to accord preemptive power to an Executive administrative scheme, when the Supreme Court has consistently declined to afford this power to Congressional administrative schemes. Ultimately, the author concludes that the individual plaintiffs, including federal employees, are in a better position to judge whether to make use of administrative or judicial remedies for racial discrimination.