IN THE SUPREME COURT OF MISSISSIPPI

NO. 94-CA-00269-SCT

CHAUNCY WRIGHT, MARJORIE ANN JONES AND

PHYLLIS RENEE WRIGHT

v.

DR. JAMES O. WHITE, DR. ALTON B. COBB,

CAROLYN BOATWRIGHT, PAMELA PITCHFORD,

ALICIA CROWDER, TUCKER BROWN, INDIVIDUAL

MEMBERS OF THE STATE BOARD OF HEALTH;

MISSISSIPPI STATE DEPARTMENT OF HEALTH;

THE STATE BOARD OF HEALTH; AND WALTER

BOOKER

DATE OF JUDGMENT: 02/09/94

TRIAL JUDGE: HON. ROBERT LEWIS GIBBS

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANTS: DARNELL FELTON

ATTORNEYS FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL

BY: T. HUNT COLE, JR.

NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES

(OTHER THAN WORKER'S COMPENSATION)

DISPOSITION: AFFIRMED - 5/8/97

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 5/29/97

EN BANC.

DAN LEE, CHIEF JUSTICE, FOR THE COURT:

¶1. In this appeal, Wright seeks to reverse a final judgment entered on February 9, 1994, by the

Circuit Court of the First Judicial District of Hinds County. In that final judgment, the circuit court

vacated an order in which the Employee Appeals Board purportedly "transferred" a pending state

civil service employment matter to circuit court for disposition, as beyond the statutory authority of

the EAB, and it dismissed the Plaintiffs' court complaint predicated on that "transfer."

STATEMENT OF THE CASE
¶2. Plaintiffs/Appellants Chauncy Wright, Marjorie Ann Jones, and Phyllis Renee Wright were "state

service" employees whose employment with the State was governed by the statewide personnel

service system (also known as the state civil service system). Miss. Code Ann. §§ 25-9-101 through

25-9-151. The state personnel system provides for a comprehensive scheme of personnel

administration and sets forth an integrated system of administrative review by the Employee Appeals

Board (EAB) and judicial review of adverse employment decisions of state agencies by an appeal to

circuit court.

¶3. The Appellants, who resigned their employment with the State Department of Health, complained

about various aspects of their employment while they were with the Department, and they alleged

that their employment conditions were discriminatory, in violation of provisions of state and federal

law.

¶4. In 1991 and 1992, the Plaintiffs invoked the jurisdiction of the EAB regarding their alleged

employment grievances against the Department of Health by filing notices of appeal to the EAB. Re:

Marjorie A. Jones, EAB Docket No. 91-65, Re: Chauncy Wright, EAB Docket No. 91-67, and Re:

Phyllis Renee Wright, EAB Docket No. 92-22. An evidentiary hearing and several days of witness

testimony on these causes before the EAB was partially completed, and the remaining testimony

before the EAB was set for hearing on June 21-23, 1993, but was continued.

¶5. Before completing the EAB proceeding, the Appellants filed an original suit on their employment

grievances in the Circuit Court of Hinds County on May 17, 1993. This was followed by an

interlocutory EAB "Order of Transfer," which purported to transfer the matter to circuit court and to

"forever relinquish jurisdiction" over the pending employment matter because the EAB might not be

able to give full remedy and complete "resolution" of the grievances. No final decision on the merits

of the grievances was rendered by the EAB.

¶6. The State Defendants promptly moved the circuit court to vacate the "order of transfer" and to

dismiss the Plaintiffs' original circuit court suit, on the grounds, inter alia, that (1) under the

statewide personnel system, the EAB has primary and exclusive jurisdiction of the employment

grievances of "state service" employees; (2) that the only judicial review of an EAB matter that may

be obtained in circuit court is by the limited appellate review as provided by statute, not by an

original suit, and (3) that the EAB did not have any statutory authority to "transfer" a pending state

employment matter to circuit court for disposition.

¶7. Plaintiffs did not submit a written response to the motion. After oral argument, the circuit court

on February 9, 1994, entered a final order which granted the Department of Health's motion, vacated

the EAB "order of transfer," and dismissed the complaint.

¶8. On March 10, 1994, more than ten days after entry of judgment, the Plaintiffs filed a Rule 59

motion for reconsideration and contended that the state civil service statute was unconstitutional

because it was inconsistent with alleged rights under 42 U.S.C.A. § 1983. On the same day, Plaintiffs

simultaneously filed a notice of appeal of the final judgment which transferred jurisdiction of the case

to this Court and raised the following issues:

I. WHETHER THE EMPLOYEE APPEALS BOARD, PURSUANT TO ITS
STATUTORY AUTHORITY, CAN TRANSFER A PENDING ACTION TO A STATE

COURT OF COMPETENT JURISDICTION BECAUSE IT LACKED SUBJECT

MATTER JURISDICTION TO GRANT THE RELIEF REQUESTED BY

APPELLANTS, AND

II. WHETHER APPELLANTS ARE REQUIRED TO EXHAUST THEIR

ADMINISTRATIVE REMEDIES BEFORE FILING AN ACTION IN A COURT OF

COMPETENT JURISDICTION WHEN THEIR COMPLAINT, INTER ALIA,

ALLEGES VIOLATIONS OF RIGHTS SECURED UNDER FEDERAL LAW AND

REQUESTS RELIEF OUTSIDE THE JURISDICTIONAL AUTHORITY OF THE

EMPLOYEE APPEALS BOARD.

¶9. It is the opinion of this Court that the trial court was correct in determining that the EAB lacked

statutory authority to transfer a pending matter to circuit court and that the circuit court lacked

jurisdiction to hear the matter brought before it. Therefore, it was not error for the trial court to

vacate the EAB's order and dismiss the Appellants' complaint.

STANDARD OF REVIEW

¶10. It is a well-settled principle that the Supreme Court is the "ultimate expositor of the law of this

state." UHS-Qualicare, Inc. v. Gulf Coast Community Hospital, Inc., 525 So. 2d 746, 754 (Miss.

1987). Therefore, this Court conducts de novo review on questions of law. Id.; Bodman v. Bodman,

674 So. 2d 1245, 1247 (Miss. 1996); Rea v. Breakers Assoc., Inc., 674 So. 2d 496, 499 (Miss.

1996); Tucker v. Hinds County, 558 So. 2d 869, 872 (Miss. 1990); Harrison County v. City of

Gulfport, 557 So. 2d 780, 784 (Miss. 1990). The questions of whether the EAB has the authority to

transfer a matter to the circuit court and whether the circuit court has jurisdiction to hear such a

matter are issues of law and deserve a relatively broad standard of review by this Court. Therefore, in

deciding the case sub judice, we look at all the information de novo to determine if the circuit court

was correct in its dismissal of the Appellants' complaint.

DISCUSSION OF THE LAW

WHETHER THE EMPLOYEE APPEALS BOARD, PURSUANT TO ITS STATUTORY

AUTHORITY, CAN TRANSFER A PENDING ACTION TO A STATE COURT OF

COMPETENT JURISDICTION BECAUSE IT LACKED SUBJECT MATTER

JURISDICTION TO GRANT THE RELIEF REQUESTED BY APPELLANTS.

¶11. Appellants contend that the EAB did not have the authority to provide the requested relief and

therefore, the EAB's actions were correct and reasonable in removing the employees' proceedings

from the Board's jurisdiction.

¶12. The State Defendants counter, arguing that the lower court correctly held that the EAB, as an

administrative body, lacked any statutory authority to order a transfer of a pending, state civil service

employment matter to circuit court, and that the lower court properly vacated the EAB "Order of

Transfer" and dismissed the court complaint based thereon.

¶13. The statewide system of personnel administration, established by Miss. Code Ann. Sections 25-
9-101 through 25-9-151, provides for a comprehensive scheme of personnel administration with

regard to "state service" employees and sets forth a carefully integrated scheme of administrative and

judicial review of the adverse employment decisions of state agencies. This system establishes a

structure and practice of personnel administration to ensure the fair and efficient use of employees in

state service. Miss. Code Ann. § 25-9-101 (Supp. 1990).

¶14. As this Court noted in Hood v. Miss. Dep't of Wildlife Conservation, 571 So. 2d 263, 267

(Miss. 1990):

Employees affected by adverse decisions may appeal to the Employee Appeals Board (EAB) for

de novo hearing, then to circuit court for judicial review on the record, and finally to this Court.

Miss. Code Ann. §§ 25-9-131 and 25-9-132 (Supp. 1990). Review by the circuit court is

limited to determinations of whether the EAB's actions are supported by substantial evidence,

are arbitrary or capricious, or are in violation of some statutory or constitutional right of the

employee. Miss. Code Ann. [§ 25-9-132(2)] (Supp. 1990). Appeal to the circuit court must be

within thirty days of the board's decisions and a bond is required. [Miss. Code Ann. § 25-9-

132(1) (Supp. 1990).]

¶15. In Hood we discussed Miss. Forestry Comm'n v. Piazza, 513 So. 2d 1242 (Miss. 1987), which

addresses the state civil service procedure. Piazza, 513 So. 2d at 1246. An employee of the

Mississippi Forestry Commission sued in chancery court to enjoin his transfer to another

district. Piazza, 513 So. 2d at 1243. Reversing the grant of a permanent injunction, this Court

held that whether the Forestry Commission could authorize an involuntary transfer was a matter

for the State Personnel Board, and its alter ego, the Employee Appeals Board. Piazza, 513 So.

2d at 1249.

Hood, 571 So. 2d at 268. Piazza would seem to preclude all of the Plaintiffs' claims arising from

their treatment.

¶16. The EAB was wholly competent to consider every claim the Plaintiffs assert in the present

complaint, including the grounds for their Section 1983 claims.

The remedial process provided such employees necessarily vests the employee's department,

agency or institution, and ultimately the EAB, with full authority to hear not only the merits vel

non of any charge of inefficiency or other good cause, but also any other matter of fact or law

the employee may assert affecting his employment. We take Section 25-9-131(3)'s directive that

the appeals procedure there provided "replace any existing statutory procedure" as declaring

this the employee's exclusive remedy.

Hood, 571 So. 2d at 268.

¶17. The Plaintiffs may have presented before the Department of Health and thereafter before the

EAB every ground for relief they assert in the present complaint, including their federal claims.

"Section 1983 merely serves as a method for asserting claims of violation of constitutional rights, the

act containing no substantive provisions in and of itself." Id. (citing Chapman v. Houston Welfare

Rights Organization, 441 U.S. 600, 618 (1979); Estate of Himelstein v. City of Fort Wayne,
Indiana, 898 F.2d 573, 575 (7th Cir. 1990); Trigg v. Fort Wayne Community Schools, 766 F.2d

299, 300 (7th Cir. 1985)). The Hood Court continued:

[t]he more relaxed administrative appellate process before EAB is quite conducive to a full

airing of the employee's constitutional claims. On judicial review the circuit court is specifically

charged to consider whether EAB's action abridged "some . . . constitutional right of the

employee." Miss. Code Ann. § 25-9-132 (Supp. 1990). On final review, the employee's

administrative remedies thus exhausted, he may before the Circuit Court pursue all avenues of

relief Section 1983 makes available.

Hood, 571 So. 2d at 268 (citing Presnell v. Pell, 260 S.E. 2d 611 (N.C. 1979); Johnston v. Gaston

County, 323 S.E.2d 381 (N.C. App. 1984)).

¶18. The Plaintiffs in the case sub judice were "state service" employees of the State Department of

Health, Miss. Code Ann. § 25-9-107(b), whose employment grievances had been brought before the

EAB. Several days of evidentiary hearings before the EAB on the grievances had already been held

before the grievants abandoned their cause in the EAB and that body "transferred" the matter to the

circuit court for disposition as an original suit.

¶19. It is a fundamental rule that administrative agencies may exercise only those powers that are

granted by statute. Miss. Public Service Comm'n v. Miss. Power & Light Co., 593 So. 2d 977

(Miss. 1991); Farrish Gravel Co. v. Mississippi State Highway Comm'n, 458 So.2d 1066, 1068

(Miss. 1984). In Farrish, this Court pointed out that "government agencies have only such powers

that are expressly granted to them, or necessarily implied in their grant of authority. Any acts which

are not so authorized are void." Id. at 1068.

¶20. The Appellants have not cited in their appellate brief, and the lower court could not find, any

statute which gives the EAB, as an administrative agency, the authority to "transfer" a pending state

employment-related grievance to any court for determination. In fact, just the opposite is readily

found. The statutes creating the EAB plainly indicate that the EAB's ultimate authority is limited to

issuing a "final decision," Miss. Code Ann. § 25-9-131(2), in which case the appellate jurisdiction, as

compared to the original jurisdiction, of the circuit court may be invoked by the aggrieved employee

to review the EAB decision. Miss. Code Ann. § 25-9-132. The EAB cannot, consistent with the

statute, simply "pass the buck" and "transfer" a state service employment matter to the circuit court.

The statute clearly contemplates that the EAB will render final decisions which can be appealed to

the circuit court.

¶21. This Court in Hood held that for state law purposes the statutory method of administrative

appeal and judicial review provided by the state civil service statute is the exclusive remedy for

grievances related to state employment and may not be bypassed by filing an original action. See also

Miss. Forestry Comm'n v. Piazza, 513 So. 2d 1242 (Miss. 1987) (the only rights which plaintiff

could have under his employment with the state, if any, are contained within the act creating the State

Personnel Board).

¶22. As the State Defendants and the trial court below both recognized,

to permit the EAB to transfer a state employment matter to the Circuit Court for adjudication
as an original suit would constitute a bypass of the exclusive statutory method of review and

remedy, a bypass that is prohibited by Hood. If such a "transfer" from the EAB to Circuit Court

can occur simply because an imaginative state service employee demands some kind of damages

relief that the EAB (or the courts) could not statutorily give, then a bypass of the EAB/judicial

review procedures, which is prohibited by Hood, will become commonplace, and the EAB will

be encouraged to "transfer" pending grievances on its docket to the courts. Post hoc forum

jumping by "state service employees," as between EAB and the courts, will take place, as it did

in the instant case.

¶23. This Court has further held that "any power sought to be exercised [by an administrative

agency] must be found within the four corners of the statute under which the agency proceeds."

Miss. Milk Comm'n v. Winn-Dixie Louisiana, 235 So. 2d 684, 688 (Miss. 1970). There is

absolutely nothing within the "four corners" of the statute creating the EAB which gives it any

authority to ship state employment matters to circuit court for adjudication. The "transfer" here is

contrary to the plan of the EAB statutes, which envision a final decision by the EAB, and subsequent

appellate jurisdiction by the circuit court if any appeal be taken.

¶24. This Court's decision in Hood further confirms that where the Legislature has created a civil

service scheme which provides an express statutory method of judicial review and appeal of the

decisions of administrative bodies, that statutory method may not be ignored in favor of an original

action in chancery court or circuit court. See also, Scott v. Lowe, 223 Miss. 312, 78 So. 2d 452

(1955); Tennant v. Finane, 227 Miss. 410, 86 So. 2d 453 (1956).

¶25. The Appellants' contention that statutory authority for a "transfer" by the EAB is found in Miss.

Code Ann. Section 25-9-131 is specious. That Section provides that the EAB "may modify the action

of the department, agency or institution but may not increase the severity of such action on the

employee." This language plainly concerns what remedial action(s) the EAB may take with regard to

the employing state agency. It does not provide any authority to the EAB with respect to transfer to

the courts.

¶26. The EAB's statutory authority and duty is "rendering decisions" which are "final", so that the

decision may be appealed to circuit court in the manner authorized by statute. Miss. Code Ann.

§§ 25-9-125, 25-9-132.

¶27. Accordingly, because no aspect of the statutes creating the EAB gives it authority to transfer a

pending state employment matter to circuit court, and because such a transfer is contrary to Hood

and the statutory method of administrative appeal and judicial review, the lower court's vacating the

order of transfer and dismissing the complaint is affirmed.

WHETHER APPELLANTS ARE REQUIRED TO EXHAUST THEIR ADMINISTRATIVE

REMEDIES BEFORE FILING AN ACTION IN A COURT OF COMPETENT

JURISDICTION WHEN THEIR COMPLAINT, INTER ALIA, ALLEGES VIOLATIONS

OF RIGHTS SECURED UNDER FEDERAL LAW AND REQUESTS RELIEF OUTSIDE

THE JURISDICTIONAL AUTHORITY OF THE EMPLOYEE APPEALS BOARD.

¶28. Appellants contend that the state civil service statute is pre-empted by 42 U.S.C. § 1983 and is

in violation of the federal Constitution. Appellants allege that the state civil service statute "directly
contradicts with the Supremacy Clause of the United States Constitution," and is therefore

unconstitutional, because it limits the type of relief state service employees may obtain.

¶29. Nothing in the designated record on appeal indicates that the Appellants ever argued below that

the state civil service statute is pre-empted by 42 U.S.C. §1983 and is in violation of the federal

Constitution. In fact, the record on appeal indicates that the post-judgment motion for

reconsideration was itself untimely and the lower court was without any jurisdiction to consider the

new arguments advanced therein if it had wanted to. See Telford v. Aloway, 530 So. 2d 179, 181

(Miss. 1988).

¶30. This Court has repeatedly held that no new issues may be raised on appeal. Crowe v. Smith, 603

So. 2d 301, 305 (Miss. 1992) (appellant is not entitled to raise a new issue on appeal); Parker v.

Game & Fish Comm'n, 555 So. 2d 725, 730 (Miss. 1989) (trial judge will not be put in error on a

matter which has not been presented to him); Mills v. Nichols, 467 So. 2d 924, 931 (Miss. 1985)

(trial court will not be put in error on appeal for matter not presented to it for decision). This Court

will not entertain on appeal a new theory of unconstitutionality which could have been raised, but

was not advanced, before the trial court until a post-judgment motion. CIG Contractors, Inc. v.

Miss. State Bldg. Comm'n, 510 So. 2d 510, 514 (Miss. 1987); Estate of Johnson v. Adkins, 513

So. 2d 922, 925 (Miss. 1987).

¶31. In the present case, the circuit court's final judgment vacating the EAB order of transfer and

dismissing the complaint was entered on February 9, 1994. The State Defendants' motion to dismiss

and vacate was filed on October 7, 1993. The Appellants failed to file or submit any written response

opposition to that motion. The Appellants' argument that the state civil service statute is in violation

of the federal Constitution was not raised in the lower court until they filed their untimely Rule 59(e)

motion for reconsideration of the lower court's judgment on March 10, 1994. This was 29 days after

the entry of judgment. Appellants asked the trial court to consider their motion as timely and any

delinquency due to the "devastating ice storm that struck the area of counsel for Plaintiffs" and that

this constituted excusable neglect.

¶32. The time limit for serving a Rule 59 motion for reconsideration is 10 days after judgment, and

that period may not be enlarged except by a request being made within the time period provided and

such request being granted by the court. M.R.C.P. 59(e); M.R.C.P. 6(b).

¶33. Additionally, the filing of a notice of appeal transferred jurisdiction of the matter from the lower

court to the Supreme Court, and the lower court is generally without authority at that point to

amend, modify, or reconsider its judgment. Estate of Moreland, 537 So. 2d 1345, 1346-47 (Miss.

1989) (when a proper appeal is taken the case is ipso facto removed to the appellate court). In the

present, the matter was transferred to the appellate court by the filing of a notice of appeal, and the

new constitutionality arguments subsequently advanced before the lower court were not properly

raised in the trial court and may not be considered on appeal.

¶34. Thus, the Appellants are procedurally barred from arguing on appeal that the state civil service

statute is pre-empted by 42 U.S.C. § 1983 and is in violation of the federal Constitution.

¶35. Finally, this assignment of error is also without merit under the United States Supreme Court's

holding in Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989). In Will, the United States
Supreme Court held as a matter of federal law that a federal Section 1983 suit for damages may not

be brought in state court against states, state agencies, and state officials (as opposed to local

political subdivisions). Under Will, even if the state civil service statute could be bypassed, a

Section 1983 suit against the state defendants in state court could not be brought. The argument and

cases cited by Plaintiff are accordingly inapposite.

¶36. The state civil service statute and system of administrative appeal or judicial review is not

unconstitutional or contrary to the federal "Supremacy Clause" because, as a matter of federal law,

state agencies cannot be sued for damages in state court under Section 1983. Section 1983 does not

itself provide any substantive rights. Instead, it is simply the federal statutory vehicle through which

claims of alleged violations of federal constitutional rights may be brought and remedied under

certain circumstances. Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (1979).

¶37. In Will -- which was not cited, much less distinguished, by the Appellants -- this issue was

squarely resolved by the United States Supreme Court. There, the plaintiff, a state employee, filed a

Section 1983 federal damages suit in Michigan state court against the Michigan Department of State

Police alleging that he was not promoted in his employment for improper reasons in violation of the

Constitution. The action was pursued both before the State Civil Service Commission and directly in

state court. The Michigan Supreme Court ultimately held that the state was not a "person" that could

be sued in state court under Section 1983, and the United States Supreme Court granted certiorari to

resolve a conflict among state and lower federal courts. Will, 491 U.S. at 61. Based on the language

of Section 1983, the intent of Congress in enacting Section 1983, and the relevant legislative history,

the United States Supreme Court affirmed. In pertinent part, the Court stated:

Given that a principal purpose behind the enactment of § 1983 was to provide a federal forum

for civil rights claims, and that Congress did not provide such a federal forum for civil rights

claims against States, we cannot accept petitioner's argument that Congress intended

nevertheless to create a cause of action against States to be brought in state courts, which are

precisely the courts Congress sought to allow civil rights claimants to avoid through §1983.

Id. The Court added:

[t]he intent of Congress to provide a remedy for unconstitutional state action does not without

more include the sovereign States among those persons against whom § 1983 actions would lie.

Construing § 1983 as a remedy for "official violation of federally protected rights" does no

more than confirm that the section is directed against state action--action "under color of" state

law. It does not suggest that the State itself was a person that Congress intended to be subject

to liability.

Id. at 67. The holding in Will includes agencies of the States, and state officials sued in their official

capacity. Id. at 70.

¶38. This assignment of error is without merit.

CONCLUSION

¶39. No aspect of the statutes creating the EAB gives it authority to transfer a pending state
employment matter to circuit court, because such a transfer is contrary to case law and the statutory

method of administrative appeal and judicial review. Additionally, the Appellants' allegation of

unconstitutional inconsistency of the state civil service statute and federal law was not timely

advanced below and may not now be considered on appeal to this Court. Furthermore, even if

considered, the United States Supreme Court decision in Will forecloses a Section 1983 suit against

the State Defendants.

¶40. Accordingly, the lower court's vacating the EAB's order of transfer and dismissing the complaint

is affirmed.

¶41. AFFIRMED.

PITTMAN, ROBERTS, SMITH AND MILLS, JJ., CONCUR. BANKS, J., CONCURS IN

PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY

PRATHER AND SULLIVAN, P.JJ. McRAE, J., DISSENTS WITH SEPARATE WRITTEN

OPINION JOINED IN PART BY BANKS, J.

BANKS, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶42. I must dissent in this case because I fear that the circuit court has thrown out the baby with the

bath water. To be sure, the baby may be found deserving of dismissal at a later time on other grounds

but the asserted lack of jurisdiction is not one of them. Stated briefly, I agree with the majority that

the Employee Appeals Board exceeded its authority and shirked its duty by attempting to "transfer"

the matter to the circuit court. I also agree that a § 1983 action against the state agencies and the

state officials in their official capacity will not lie. Plaintiffs, however, asserted claims against

individual defendants in their personal capacity and these claims may not be dispatched for lack of

jurisdiction.

¶43. The case upon which the circuit court relies, Hood v. Miss. Department of Wildlife

Conservation, 571 So. 2d 263 (Miss. 1990), applies res judicata to proceedings before the Employee

Appeals Board. It says clearly that the chancery court there had jurisdiction but for the fact that an

event establishing claim preclusion had occurred. It was not an exhaustion case on its facts even

though the opinion discussed exhaustion. We have, in Miss. Forestry Comm'n v. Piazza, 513 So. 2d

1242 (Miss. 1987) held that a direct action for injunctive relief will not lie and that the exclusive

remedy for state employment disputes is before the Employee Appeals Board. Of course the law is

familiar, that where there is an adequate remedy at law, equitable relief will not be addressed. We

have not addressed this requirement in the context of a § 1983 claim, however.

¶44. The question is whether we may interpose an administrative exhaustion requirement on the

assertion of that claim. That is a matter of federal law and the federal precedents say quite clearly that

we may not. Patsy v. Board of Regions, 457 U.S. 496 (1972). Moreover, a § 1983 claim against

individual defendants simply does not lie before the Employee Appeals Board. There is nothing in our

precedents which suggest the contrary. Both Hood and Piazza involved agency defendants only.
¶45. The majority suggests a procedural bar on the issue whether an exhaustion requirement

contravenes the constitution of the United States. While that is the way that Wright couches a part of

his argument, the question whether exhaustion is required is one upon which the state must carry the

burden before it may obtain dismissal. The question put to the trial court was whether the circuit

court had jurisdiction. It clearly does have jurisdiction of § 1983 claims against individual defendants

in their personal capacity. Hafer v. Melo, 502 U.S. 21 (1991).

¶46. I would reverse so much of the order of the circuit court as dismisses plaintiffs' claim against

individual defendants for lack of jurisdiction.

PRATHER AND SULLIVAN, P.JJ., JOIN THIS OPINION.

McRAE, JUSTICE, DISSENTING:

¶47. I cannot agree with the majority's choice to align itself with the circuit court by affirming the

dismissal of the appellants' claims and precluding suit against individuals under 42 U.S.C. § 1983,

because it has abandoned the appellants with no remedy under the law. I respectfully dissent.

¶48. The appellants, as employees of the Mississippi Department of Health, alleged that the

conditions there were discriminatory and in violation of state and federal laws. The appellants

proceeded to evidentiary hearings with the Employee Appeals Board (EAB), and these hearings were

partially completed. However, the EAB refused to address the employment matters further and

transferred them to the circuit court. Subsequently, the circuit court vacated the EAB "order of

transfer," and dismissed the complaint.

¶49. I take issue with the majority's assertion that the appellants are procedurally barred from arguing

that the Mississippi civil service statute is pre-empted by 42 U.S.C. § 1983. The appellants filed a

motion for reconsideration on March 10, 1994, which the majority characterizes as untimely under

M.R.C.P. 59(e). However, pursuant to M.R.C.P. 60(b), the appellants properly presented an attack

upon the final judgment of the circuit court, even after the normal procedures of motion for new trial

were no longer available. "On motion and upon such terms as are just, the court may relieve a party

or his legal representative from a final judgment, order, or proceeding for the following reasons: . . .

(6) any other reason justifying relief from the judgment." M.R.C.P. 60(b)(6). The circuit court could

have properly entertained the appellants' motion, and the appellants should not be barred on appeal

from arguing that the state civil service statute is violative of the United States Constitution.

¶50. While the United States Supreme Court has been clear in stating that § 1983 suits cannot be

brought against the state and persons acting in their official capacities for the state, Will v. Michigan

Dept. of State Police, 491 U.S. 58 (1989), there has never been any preclusion of § 1983 actions

against persons in their individual capacities, whether they are state officials or not. Clearly in the

matter sub judice, the claimants made complaints against the defendants, in their individual and

official capacities as employees with the Mississippi Department of Health. At the very least, the

claims against the individual defendants have been validly presented.

¶51. The majority opinion presents a dilemma that has always appeared in the context of claims based

on denial of constitutional rights brought before administrative bodies. If the EAB cannot hear the §

1983 claim because the claim may only be brought in state courts or federal courts, but the EAB
cannot transfer a claim from its jurisdiction, where and when can an individual raise claims based on

his federal constitutional rights? Must an individual "exhaust administrative remedies," wait until

resolution of an appeal through this Court three or four years later, and be faced with expiration of

the time in which to file a § 1983 action?

¶52. I commend the EAB for attempting to further the resolution of this matter by shifting it over to

the circuit court. Perhaps when this occurs, we should carve out an exception to say that once an

administrative matter is filed challenging the constitutionality of an agency's actions, it should be

addressed in the agency, as a matter of form. Realizing that the agency cannot resolve the matter, the

claimant then should be allowed to raise the claims for the first time on appeal to the circuit court,

allowing the circuit court to proceed de novo. This is a procedure similar to the one followed in

federal courts where, if a matter is filed in federal court before all state remedies are exhausted, the

federal court will stay the matter until resolved below. Accordingly, I dissent.

BANKS, J., JOINS THIS OPINION IN PART.