Failure to exhaust administrative remedies requires an evidentiary showing of policy and process says the 5th District COA.

Holmes v Southern Methodist University, No. 05-11-01178-CV (Tex. App. Dallas May 1, 2013).

The moral to this story is if you are making an argument a plaintiff failed to exhaust administrative remedies, you had better make sure to attach evidence and statutory/policy citations as to what remedies he/she was supposed to exhaust. Holmes was a graduate student in music at Southern Methodist University (“SMU”).  After her studies, her only remaining requirement for graduation was passing the Graduate Comprehensive Exam (“GCE”). She had three chances to take and pass.  She failed twice but refused to take it a third time arguing the grading methods were arbitrary and capricious.  After her administrative appeal of the scores went unanswered she sued for breach of contract and a host of other claims. SMU filed a motion to dismiss arguing she failed to exhaust her administrative remedies, i.e. taking the GCE a third time, and her claims are therefore not ripe. The trial court granted the dismissal which Holmes appealed.

The 5th District Court of Appeals reversed holding that after the Plaintiff meets the pleading burdens,  SMU has the burden to assert and support its contention, with evidence, that the trial court lacks subject matter jurisdiction. After noting that unverified documents are not “evidence” for such purposes, the court held SMU did not produce any evidence that SMU had a documented policy requiring all three attempts be made in order to exhaust administrative procedures. The record was devoid of any evidence establishing what administrative process existed and, as an aside, the court noted SMU blocked Holme’s discovery attempts to obtain all administrative procedures. The court held SMU did not meet its burden of establishing the defense of “failure to exhaust administrative remedies” and reversed and remanded the case.

If you would like to read this opinion click here.