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*********************************************** 
THE METROPOLITAN DISTRICT v. COMMISSION ON

HUMAN RIGHTS AND OPPORTUNITIES

(AC 39371)

Sheldon, Elgo and Mihalakos, Js.

Syllabus

The plaintiff municipal entity, which was the respondent in several proceedings pending before the defendant Commission on Human Rights and

Opportunities, commenced this action seeking a declaratory judgment,

as well as injunctive and other relief, against the commission, which is

a state agency governed by the provisions of the Uniform Administrative

Procedure Act (act) (§ 4-166 et seq.). The plaintiff alleged that the commission, as a matter of practice, had assumed and retained jurisdiction

over complaints without conducting a proper merit assessment review

and made improper reasonable cause determinations, in contravention

of its statutory and regulatory obligations and in violation of the plaintiff’s right to due process. The commission filed a motion to dismiss

the action for lack of subject matter jurisdiction due to the plaintiff’s

failure to exhaust its administrative remedies. The trial court granted

the motion to dismiss and rendered judgment dismissing the plaintiff’s

action, from which the plaintiff appealed to this court. Held:

1. The plaintiff had adequate administrative remedies that it was required,

but failed, to exhaust prior to commencing the present civil action:

although the complaint primarily complained of certain routine practices

allegedly engaged in by the commission, the present action was predicated on the commission’s conduct in five specific proceedings before

the commission in which the plaintiff was the respondent, three of which

were pending before the commission at the time the plaintiff commenced

the present action and concerned the same conduct that formed the

basis for the declaratory relief requested, namely, that the commission

had not complied with its statutory and regulatory obligations and had

improperly assumed jurisdiction over complaints against the plaintiff

filed by independent contractors, and, therefore, the plaintiff was

required to exhaust its remedies in those pending administrative proceedings, including filing an administrative appeal pursuant to § 4-183

in the Superior Court following the commission’s decision, if necessary;

moreover, because, during the pendency of those administrative actions,

the plaintiff could not resort to the avenues of declaratory relief available

under the act to bypass its obligation to exhaust its remedies in the

context of a pending administrative proceeding, it likewise was foreclosed from seeking declaratory relief via an independent action in the

Superior Court, and to the extent that any issues remained following

the culmination of those proceedings, the plaintiff could then properly

seek declaratory relief as provided by §§ 4-175 and 4-176.

2. The plaintiff could not prevail on its claim that it qualified for an exception

to the exhaustion of administrative remedies requirement for situations

in which resort to the administrative remedy would be futile or inadequate: the plaintiff failed to establish demonstrable futility in pursuing

its administrative remedies before the commission, as proceedings

before the commission are not futile where, as here, a plaintiff’s claims

can be addressed by way of defenses to the complaint, the plaintiff did

not establish that it could not prevail before the commission in the

pending proceedings, and although the plaintiff claimed that it was

unlikely that the commission would rule in its favor and declare its own

conduct to be improper, that contention was based on speculation,

which could not establish the requisite futility; moreover, the plaintiff

was not permitted to bypass the available administrative procedures

even though that process might prove more costly and less convenient

than going directly to Superior Court, it could pursue an administrative

appeal pursuant to § 4-183, in which it could challenge the agency’s

determinations, and it failed to articulate any reason why such an appeal

would be inadequate, particularly when the statute expressly encompasses allegations that an agency has acted in violation of statutory
provisions, in excess of its statutory authority, or upon unlawful procedure.

3. The plaintiff could not prevail on its claim that because it was contesting

the jurisdiction of the commission it did not need to comply with the

exhaustion requirement, which was based on its claim that there exists

a broad exception to the exhaustion requirement that is implicated when

the jurisdiction of the administrative agency is challenged: our Supreme

Court previously has rejected a similar argument and determined that

an administrative agency must first be given the opportunity to determine

its own jurisdiction, and, therefore, the plaintiff was obligated to raise

its challenge to the jurisdiction of the commission in the pending administrative proceedings and, if necessary, in an appeal pursuant to § 4-183

or a subsequent declaratory petition pursuant to § 4-176; moreover, the

inclusion of requests for injunctive relief and a writ of mandamus in

the complaint did not obviate the need for the plaintiff to comply with

the exhaustion requirement.

4. The plaintiff’s claim that the exhaustion of administrative remedies

requirement did not apply to the count of its complaint alleging a violation of its federal due process rights was unavailing; the inadequacy of

an available legal remedy is a standard prerequisite for injunctive relief

in a state court, and where, as here, an adequate administrative remedy

existed, no form of injunctive relief, under the applicable federal statute

(42 U.S.C. § 1983) or otherwise, was justified as an exception to the

exhaustion requirement.

Argued November 30, 2017—officially released March 27, 2018

Procedural History

Action seeking, inter alia, a judgment declaring that

the defendant Commission on Human Rights and

Opportunities had engaged in improper rule making,

and for other relief, brought to the Superior Court in

the judicial district of Hartford, where the court, Scholl,

J., granted the defendant’s motion to dismiss and rendered judgment thereon, from which the plaintiff

appealed to this court. Affirmed.

Jeffrey J. Mirman, with whom, on the brief, was

Amy E. Markim, for the appellant (plaintiff).

Emily V. Melendez, assistant attorney general, with

whom, on the brief, was George Jepsen, attorney general, for the appellee (defendant).
Opinion

ELGO, J. In this civil action, the plaintiff, The Metropolitan District,1 appeals from the judgment of the trial

court granting the motion to dismiss filed by the defendant, the Connecticut Commission on Human Rights

and Opportunities (commission). On appeal, the plaintiff claims that the court improperly dismissed the

action for lack of subject matter jurisdiction due to the

plaintiff’s failure to exhaust its administrative remedies.

We disagree and, accordingly, affirm the judgment of

the trial court.

The plaintiff is a municipal entity that was created

in 1929 by a special act of the General Assembly ‘‘for

the purpose of water supply, waste management and

regional planning.’’ Martel v. Metropolitan District

Commission, 275 Conn. 38, 41, 881 A.2d 194 (2005);

see also Rocky Hill Convalescent Hospital, Inc. v. Metropolitan District, 160 Conn. 446, 450–51, 280 A.2d 344

(1971). The commission is a state agency whose ‘‘primary role . . . is to enforce statutes barring discrimination . . . .’’ Commission on Human Rights &

Opportunities v. Hartford, 138 Conn. App. 141, 144 n.2,

50 A.3d 917, cert. denied, 307 Conn. 929, 55 A.3d 570

(2012). With respect to certain nondiscrimination statutes, the legislature expressly has deemed the plaintiff

‘‘to be a state agency’’ within the jurisdiction of the

commission. General Statutes § 46a-68 (a).

In late December, 2015, the plaintiff commenced this

action seeking a declaratory judgment against the commission, as well as injunctive relief and a writ of mandamus. In its complaint, the plaintiff alleges that the

commission, ‘‘as a matter of practice,’’ assumes and

retains jurisdiction over complaints without conducting

a proper merit assessment review and makes improper

reasonable cause determinations, in contravention of

its statutory and regulatory obligations. More specifically, the plaintiff alleges that the commission routinely

fails to comply with the strictures of General Statutes

§ 46a-83 and §§ 46a-54-42a (a) and 46a-54-49a (b) of

the Regulations of Connecticut State Agencies.2 By so

doing, the commission allegedly has engaged in

improper rulemaking and has violated the plaintiff’s due

process rights, as secured by 42 U.S.C. § 1983. Those

allegations are predicated in part on the commission’s

conduct in five specific proceedings in which the plaintiff was the respondent.3 The complaint also alleges

that the commission lacks jurisdiction over complaints

made by independent contractors against the plaintiff.

The request for relief in the plaintiff’s complaint is

primarily declaratory in nature. The plaintiff seeks a

declaratory judgment that the commission has engaged

in improper rulemaking by engaging in certain ‘‘routine

practices’’4 and has ‘‘violated the procedural and substantive due process rights of the [plaintiff] by engaging
in [those] practices.’’ The complaint also seeks a declaratory judgment ‘‘that General Statutes § 46a-715 does

not apply to the [plaintiff], and that the [commission]

does not have jurisdiction over complaints filed by independent contractors against the [plaintiff].’’ (Footnote

added.)

Apart from such declaratory relief, the complaint

requests a permanent injunction ‘‘enjoining the [commission] from engaging in improper rulemaking . . .

and requiring [it] to follow its statutory mandate to

engage in proper merit assessment reviews, to dismiss

complaints during the merit assessment review process

where no reasonable cause exists, to engage in proper

substantive review during the early legal intervention

process, and to refrain from attempting to assume jurisdiction over matters outside the jurisdiction of the

agency.’’6 The complaint further requests a writ of mandamus ordering the commission ‘‘to review all of its

files regarding complaints of discriminatory employment practices since 2011’’ to determine whether the

commission engaged in any of the routine practices

enumerated in its complaint. See footnote 4 of this

opinion.

In response, the commission filed a motion to dismiss

the plaintiff’s complaint for lack of subject matter jurisdiction due to the plaintiff’s failure to exhaust its administrative remedies.7 Following the filing of memoranda

of law by the parties, the court heard argument on the

motion. In its subsequent memorandum of decision, the

court concluded that the plaintiff had adequate administrative remedies that it failed to exhaust prior to commencing this action. Accordingly, the court granted the

motion to dismiss for lack of subject matter jurisdiction,

and this appeal followed.

As a preliminary matter, we note that ‘‘[i]n an appeal

from the granting of a motion to dismiss on the ground

of subject matter jurisdiction, this court’s review is plenary. A determination regarding a trial court’s subject

matter jurisdiction is a question of law. When . . . the

trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are

legally and logically correct and find support in the

facts that appear in the record. . . . Jurisdiction of the

subject matter is the power [of the court] to hear and

determine cases of the general class to which the proceedings in question belong. . . . A court has subject

matter jurisdiction if it has the authority to adjudicate

a particular type of legal controversy.’’ (Internal quotation marks omitted.) Francis v. Chevair, 99 Conn. App.

789, 791, 916 A.2d 86, cert. denied, 283 Conn. 901, 926

A.2d 669 (2007). ‘‘When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss,

it must consider the allegations of the complaint in their

most favorable light. . . . In this regard, a court must

take the facts to be those alleged in the complaint,
including those facts necessarily implied from the allegations, construing them in a manner most favorable

to the pleader.’’ (Internal quotation marks omitted.)

Bellman v. West Hartford, 96 Conn. App. 387, 393, 900

A.2d 82 (2006). Further, in addition to admitting all facts

well pleaded, the motion to dismiss ‘‘invokes any record

that accompanies the motion, including supporting affidavits that contain undisputed facts.’’ (Internal quotation marks omitted.) Henriquez v. Allegre, 68 Conn.

App. 238, 242, 789 A.2d 1142 (2002).

This appeal concerns the proper application of the

exhaustion doctrine. ‘‘The doctrine of exhaustion of

administrative remedies is well established in the jurisprudence of administrative law. . . . Under that doctrine, a trial court lacks subject matter jurisdiction over

an action that seeks a remedy that could be provided

through an administrative proceeding, unless and until

that remedy has been sought in the administrative

forum. . . . In the absence of exhaustion of that remedy, the action must be dismissed.’’ (Internal quotation

marks omitted.) Republican Party of Connecticut v.

Merrill, 307 Conn. 470, 477, 55 A.3d 251 (2012); see also

Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41,

50–51, 58 S. Ct. 459, 82 L. Ed. 638 (1938) (‘‘no one is

entitled to judicial relief for a supposed or threatened

injury until the prescribed administrative remedy has

been exhausted’’).

The exhaustion doctrine is rooted in both prudential

and constitutional considerations. As our Supreme

Court has explained, ‘‘separation of powers principles

[underlie] the exhaustion doctrine, namely, to foster

an orderly process of administrative adjudication and

judicial review, offering a reviewing court the benefit

of the agency’s findings and conclusions. It relieves

courts of the burden of prematurely deciding questions

that, entrusted to an agency, may receive a satisfactory

administrative disposition and avoid the need for judicial review. . . . Moreover, the exhaustion doctrine

recognizes the notion, grounded in deference to [the

legislature’s] delegation of authority to coordinate

branches of [g]overnment, that agencies, not the courts,

ought to have primary responsibility for the programs

that [the legislature] has charged them to administer.

. . . Therefore, exhaustion of remedies serves dual

functions: it protects the courts from becoming unnecessarily burdened with administrative appeals and it

ensures the integrity of the agency’s role in administering its statutory responsibilities.’’ (Emphasis in original;

internal quotation marks omitted.) Lopez v. Board of

Education, 310 Conn. 576, 598–99, 81 A.3d 184 (2013);

see also McKart v. United States, 395 U.S. 185, 194, 89

S. Ct. 1657, 23 L. Ed. 2d 194 (1969) (exhaustion doctrine

an expression of executive autonomy); American Federation of Government Employees v. Resor, 442 F.2d

993, 994 (3d Cir. 1971) (‘‘[f]or the courts to act prematurely, prior to the final decision of the appropriate
administrative agency, would raise a serious question

regarding the doctrine of separation of powers, and in

any event would violate a [legislative] decision that

the present controversy be initially considered by the

[agency]’’); Pet v. Dept. of Health Services, 207 Conn.

346, 351–52, 542 A.2d 672 (1988) (‘‘[A] favorable outcome [in an administrative proceeding] will render

review by the court unnecessary as . . . [a] complaining party may be successful in vindicating his rights in

the administrative process. If he is required to pursue

his administrative remedies, the courts may never have

to intervene.’’ [Internal quotation marks omitted.]).

Accordingly, ‘‘[i]t is a settled principle of administrative

law that, if an adequate administrative remedy exists,

it must be exhausted before the Superior Court will

obtain jurisdiction to act in the matter.’’ (Internal quotation marks omitted.) Fairchild Heights Residents

Assn., Inc. v. Fairchild Heights, Inc., 310 Conn. 797,

808, 82 A.3d 602 (2014).

I

We first consider the question of whether administrative remedies were available to the plaintiff in the present case. In this regard, we note that the plaintiff’s

complaint is twofold in nature. Although it primarily

complains of certain ‘‘routine practices’’ allegedly

engaged in by the commission, it also is predicated on

the commission’s conduct in five specific proceedings

in which the plaintiff was the respondent. See footnote

3 of this opinion.

With respect to the former, we note that the complaint generally alleges that the commission routinely

fails to comply with certain statutory and regulatory

obligations. In addition, the plaintiff seeks a declaratory

judgment ‘‘that [§] 46a-71 does not apply to the [plaintiff], and that the [commission] does not have jurisdiction over complaints filed by independent contractors

against the [plaintiff].’’ In granting the motion to dismiss, the court concluded, inter alia, that the plaintiff

had ‘‘the ability to request a declaratory ruling from the

commission as to the issues it raises,’’ which it failed

to exhaust before commencing this civil action in the

Superior Court.8 That determination merits closer

scrutiny.

The commission is a state agency governed by the

provisions of the Uniform Administrative Procedure

Act (UAPA), General Statutes § 4-166 et seq. See Commission on Human Rights & Opportunities v. Board

of Education, 270 Conn. 665, 673, 855 A.2d 212 (2004).

Pursuant to General Statutes § 4-176 (a), ‘‘[a]ny person

may petition an agency, or an agency may on its own

motion initiate a proceeding, for a declaratory ruling

as to the validity of any regulation, or the applicability

to specified circumstances of a provision of the general

statutes, a regulation, or a final decision on a matter

within the jurisdiction of the agency.’’ If the agency
issues a declaratory ruling in response to a request

made pursuant to § 4-176, ‘‘[a]n aggrieved party can

appeal from a declaratory ruling to the Superior Court

pursuant to General Statutes § 4-183. See General Statutes §§ 4-166 (3)9

[now (5)] and 4-176 (h).10 In addition,

if an agency declines to issue a declaratory ruling, the

person who requested the ruling may bring a declaratory judgment action [in the Superior Court] pursuant to

General Statutes § 4-175 (a).11’’ (Footnotes in original.)

Republican Party of Connecticut v. Merrill, supra, 307

Conn. 477–78.

Compliance with § 4-176 is not a discretionary option

for a party such as the plaintiff, but rather is a ‘‘precondition’’ to the commencement of a declaratory action

in the Superior Court. Financial Consulting, LLC v.

Commissioner of Ins., 315 Conn. 196, 199, 105 A.3d

210 (2014). As our Supreme Court has explained, ‘‘[i]n

1988, the legislature passed No. 88-317 of the 1988 Public Acts (P.A. 88-317), which substantially revised the

UAPA. . . . The purpose of this revision, in part, was to

simplify the [circumstances] that require appeal [from

declaratory rulings] as oppose[d] to independent action.

. . . Accordingly, the legislature subjected declaratory

rulings . . . in both contested and noncontested cases,

to judicial review by way of [administrative] appeal

. . . and limited direct petitions to the Superior Court

for declaratory judgments to those circumstances

wherein the petitioner first had requested a declaratory ruling from the agency, but did not receive one.’’

(Citations omitted; emphasis added; internal quotation

marks omitted.) Sastrom v. Psychiatric Security

Review Board, 291 Conn. 307, 322–23, 968 A.2d 396

(2009). For that reason, the Supreme Court ‘‘repeatedly

has held that when a plaintiff can obtain relief from an

administrative agency by requesting a declaratory ruling

pursuant to § 4-176, the failure to exhaust that remedy

deprives the trial court of subject matter jurisdiction

over an action challenging the legality of the agency’s

action.’’ Republican Party of Connecticut v. Merrill,

supra, 307 Conn. 478; see also Polymer Resources, Ltd.

v. Keeney, 227 Conn. 545, 558, 630 A.2d 1304 (1993)

(‘‘[b]ecause [the plaintiff] could have appealed to the

Superior Court pursuant to § 4-183 from any adverse

declaratory ruling by the commissioner . . . [it] was

required to request such a declaratory ruling before

seeking redress in court’’); Connecticut Mobile Home

Assn., Inc. v. Jensen’s, Inc., 178 Conn. 586, 589–91, 424

A.2d 285 (1979) (plaintiff improperly bypassed administrative remedy by failing to seek declaratory ruling from

agency prior to commencing action in Superior Court).

It is undisputed that the plaintiff did not avail itself of

the administrative remedy provided by § 4-176 prior to

commencing this declaratory action.

Whether the plaintiff properly was entitled to avail

itself of that administrative remedy is another question.

While the essence of the plaintiff’s complaint is that
the commission allegedly has failed, as a matter of practice, to comply with certain statutory and regulatory

obligations, the complaint also is predicated on the

commission’s conduct in five specific proceedings

before the commission in which the plaintiff was the

respondent. The inclusion of such allegations requires

us to consider whether the pendency of any of those

proceedings precluded resort to the avenues of declaratory relief afforded under §§ 4-175 and 4-176, in light of

our Supreme Court’s decision in Financial Consulting,

LLC v. Commissioner of Ins., supra, 315 Conn. 196.

The plaintiffs in that case were insurance producers

that were licensees of the defendant administrative

agency. Id., 200–201. When an insurance company notified the agency that it was terminating the plaintiffs as

its agents due to their ‘‘alleged misconduct while selling

life insurance policies,’’ the agency began an investigation of the plaintiffs to determine whether they had

violated any state insurance laws. Id., 201. During the

course of that investigation, the agency issued ‘‘ ‘second

chance’ ’’ notices to the plaintiffs ‘‘informing them of

the allegations and offering them an opportunity to

show their compliance with the law in order to retain

their licenses.’’ Id.

While that investigation was pending, the plaintiffs

filed a petition for a declaratory ruling pursuant to § 4-

176 with the agency,12 which took no action thereon.

Id., 202–203. After sixty days had passed, the plaintiffs

brought a declaratory action in the Superior Court pursuant to § 4-175. Id., 203. Because the agency at that

time was engaged in an investigation of the plaintiffs,

the trial court concluded that the investigation constituted a pending ‘‘ ‘agency proceeding’ ’’ under the

UAPA. Id., 204. The court therefore ‘‘rejected the plaintiffs’ claim that §§ 4-175 and 4-176 authorized them to

use the declaratory judgment procedure to bypass the

[agency’s] pending administrative process’’ and dismissed the matter for lack of subject matter jurisdiction

due to the plaintiffs’ failure to exhaust their administrative remedies. Id., 204–205.

On appeal, the Supreme Court addressed, as a matter

of first impression, the issue of ‘‘whether the declaratory ruling and judgment procedures [set forth in §§ 4-

175 and 4-176] are available when an agency proceeding,

such as an investigation, is already pending with respect

to the conduct at issue.’’ Id., 211; see also id., 215 n.15.

The court answered that query in the negative, stating

that ‘‘[t]he utility of that statutory procedure is . . .

largely vitiated if agency proceedings have already been

commenced with respect to the same conduct that

forms the basis for the petition for declaratory relief. An

administrative proceeding affords its subject numerous

potential remedies including . . . judicial relief in an

administrative appeal pursuant to § 4-183 from the final

agency decision against them. . . . Thus, once an
administrative proceeding has commenced, the prudential concerns underlying the exhaustion doctrine counsel against permitting parties to pursue a judicial

remedy such as a declaratory judgment.’’ Id., 214–15.

The court further noted authority from sister states that

‘‘supports the position . . . that the declaratory judgment procedures under §§ 4-175 and 4-176 may not be

used to bypass a party’s obligation to exhaust its remedies in the context of a pending administrative proceeding.’’ Id., 215–16. The court nevertheless held that,

because the agency had ‘‘not yet instituted formal

license revocation proceedings’’ against the plaintiffs;

id., 221; the trial court had ‘‘improperly dismissed this

declaratory judgment action on the ground that the

plaintiffs had failed to exhaust their administrative remedies.’’ Id., 222.

In so doing, the court in Financial Consulting, LLC,

distinguished those proceedings before the defendant

Commissioner of Insurance from investigatory proceedings before the commission, stating that ‘‘in contrast to

the relatively informal second chance process that is a

precursor to license revocation proceedings [before the

Commissioner of Insurance, proceedings before the

commission] involve formal agency proceedings

. . . .’’ Id., 222 n.21. That distinction is consistent with

Greater Bridgeport Transit District v. Commission on

Human Rights & Opportunities, 211 Conn. 129, 131,

557 A.2d 925 (1989), which recognized that the commission’s ‘‘investigation of a complaint of employment discrimination’’; id., 133; constituted a pending

administrative proceeding that required exhaustion

prior to ‘‘a judicial challenge’’ to the commission’s

actions. Id., 131; see also id. (‘‘we have recognized the

delay and disruption in the administrative process that

would result from judicial interference with statutorily

authorized administrative investigations intended to

determine whether there is a factual basis for the initiation of formal proceedings’’); Commission on Human

Rights & Opportunities v. Archdiocesan School Office,

202 Conn. 601, 605, 608, 522 A.2d 781 (holding that

respondent in pending commission proceeding could

not raise issues in Superior Court proceeding challenging administrative action because ‘‘the investigatory

stage’’ had not concluded and stating that ‘‘the [commission’s] investigation may not be forestalled at this point

in the proceeding simply because [constitutional] issues

may later be raised if the outcome of the investigatory

process is adverse to the defendants’’), appeal dismissed, 484 U.S. 805, 108 S. Ct. 51, 98 L. Ed. 2d 15 (1987).

In accordance with the foregoing, we must examine

the record to determine (1) whether any of the five

proceedings before the commission detailed in the

plaintiff’s complaint were pending at the time that this

action was commenced and (2) if so, whether the proceeding concerns ‘‘the same conduct that forms the

basis for the petition for declaratory relief.’’ Financial
Consulting, LLC v. Commissioner of Ins., supra, 315

Conn. 214. At oral argument before the trial court on

the motion to dismiss, the plaintiff’s counsel conceded

that the Dixon and Smith matters; see footnote 3 of

this opinion; were not pending.13 Nevertheless, the commission, in its motion to dismiss, acknowledged that

the other three proceedings, identified as Sotil v. Metropolitan District Commission, Cipes v. Metropolitan

District Commission, and Wills v. Metropolitan District Commission, in the plaintiff’s complaint, were

‘‘currently pending’’ before the commission.

Guided by the precedent of our Supreme Court in

Financial Consulting, LLC v. Commissioner of Ins.,

supra, 315 Conn. 214, we therefore look to whether any

of those three proceedings concern the same conduct

that forms the basis for the present declaratory action.

In this regard, we are mindful of the procedural posture

of this case, in which the court, in considering the merits

of a motion to dismiss, must construe the allegations of

the complaint in the light most favorable to the pleader.

Wilkins v. Connecticut Childbirth & Women’s Center,

314 Conn. 709, 718, 104 A.3d 671 (2014).

So construed, the plaintiff’s complaint indicates that

the Sotil matter involves the same conduct complained

of in this civil action—namely, the commission’s alleged

noncompliance with its statutory and regulatory obligations, and its jurisdiction over complaints filed by independent contractors against the plaintiff.14 The parties

have not argued otherwise in this appeal. In addition,

both the commission and the plaintiff, in their respective memoranda of law submitted on the motion to

dismiss, appended various documents regarding the

Sotil matter that plainly evince a dispute as to whether

the commission had improperly retained jurisdiction

over the matter, as the plaintiff alleges in its complaint.15

The plaintiff’s complaint also indicates that although

‘‘[i]n the position statement filed on September 29, 2015,

in connection with the Sotil case . . . counsel for the

[plaintiff] advised the [commission], inter alia, that (1)

all of the claims were filed beyond the 180 day limitation

period and are time barred, and (2) that the [commission] is without jurisdiction over those claims brought

pursuant to 42 U.S.C. [§] 1981,’’ the commission refused

to address those jurisdictional issues. The complaint

likewise alleges that the Cipes matter involves the issue

of whether the complainant was an independent contractor over which the commission had jurisdiction,

while the Wills matter pertains to whether the commission improperly had retained jurisdiction over an

untimely complaint. Like the plaintiffs in Financial

Consulting, LLC v. Commissioner of Ins., supra, 315

Conn. 202–203, the plaintiff here was a respondent in

administrative agency proceedings that concerned the

very issues on which it sought declaratory relief.

The existence of those pending administrative pro-
ceedings, which concern the same conduct that forms

the basis for the plaintiff’s request for declaratory relief,

precluded the plaintiff from seeking such relief pursuant to §§ 4-175 and 4-176. As our Supreme Court

observed, those declaratory judgment procedures,

which are the only statutory mechanisms by which a

party to an administrative proceeding may bring a direct

petition for declaratory relief to the Superior Court;

Sastrom v. Psychiatric Security Review Board, supra,

291 Conn. 322; ‘‘may not be used to bypass a party’s

obligation to exhaust its remedies in the context of a

pending administrative proceeding.’’16 Financial Consulting, LLC v. Commissioner of Ins., supra, 315 Conn.

216. If resort to the declaratory relief afforded by §§ 4-

175 and 4-176 is foreclosed due to the pendency of the

aforementioned administrative proceedings identified

in the plaintiff’s complaint, logic dictates that declaratory relief via an independent civil action in the Superior

Court likewise is foreclosed. To conclude otherwise

would run afoul of both the prudential and the constitutional underpinnings of the exhaustion doctrine.

Pursuant to that doctrine, the plaintiff was required

to exhaust its remedies in those pending administrative

proceedings. Should the plaintiff prevail therein, unnecessary judicial intervention would be averted, consistent with the well recognized principle that ‘‘whenever

possible, courts will stay their hand with respect to

addressing matters that are within the cognizance of

administrative agencies.’’ Id., 212. If the plaintiff does

not prevail, it nevertheless would have ‘‘access to an

administrative remedy’’; id., 207; in the form of an

administrative appeal pursuant to § 4-183.

As our Supreme Court has observed, ‘‘§ 4-18317 provides the proper avenue for reviewing an agency’s

actions. . . . Not only does that statute provide a right

of appeal from a final agency decision by an aggrieved

party, but it also includes an immediate right to appeal

from an adverse preliminary ruling if review of the

final agency decision would not provide an adequate

remedy.18 Moreover, the statutory framework includes

a means of staying an agency decision pending appeal.19

. . . Thus, a potentially aggrieved party is well protected by statute.’’20 (Citation omitted; footnotes

added.) Pet v. Dept. of Health Services, supra, 207 Conn.

352. In commencing this civil action while the Sotil,

Cipes, and Wills matters remained pending before the

commission, the plaintiff, to paraphrase our Supreme

Court, chose not to avail itself of the safeguards

afforded by § 4-183. See id.

In its memorandum of decision, the trial court concluded that ‘‘[i]t is clear to the court that all the issues

raised by the [plaintiff] can be litigated and resolved in

the context of the [pending commission] proceedings,

and, if the [plaintiff] is unsuccessful, can be appealed to

the court or be the subject of a petition for a declaratory
ruling to [the commission].’’ We agree with that assessment. If the plaintiff does not prevail in the pending

Sotil, Cipes, and Wills matters, it may bring an administrative appeal—interlocutory if necessary—before the

Superior Court pursuant to § 4-183. If the plaintiff ultimately prevails in the Sotil, Cipes, and Wills matters,

its interests ostensibly will be vindicated, but to the

extent that any issues remain following the culmination

of those proceedings, the plaintiff then properly may

seek declaratory relief as provided by §§ 4-175 and 4-

176. In light of the pendency of the Sotil, Cipes, and

Wills proceedings before the commission, we conclude

that administrative remedies were available to the plaintiff that it was required to exhaust, including an appeal

pursuant to § 4-183, rather than commencing an independent civil action for declaratory relief in the Superior

Court.21 See Housing Authority v. Papandrea, 222

Conn. 414, 423–24, 610 A.2d 637 (1992) (‘‘[w]hen a party

has a statutory right of appeal from a decision of the

administrative agency, [it] may not, instead of appealing, bring an independent action to test the very issues

which the [administrative] appeal was designed to test’’

[internal quotation marks omitted]).

II

The plaintiff nonetheless claims that it qualifies for

two exceptions to the exhaustion requirement. First, it

argues that its administrative remedies are futile and

inadequate. Second, the plaintiff claims that it need not

comply with the exhaustion requirement when challenging the jurisdiction of the commission. We disagree

with both contentions.

A

We begin by noting that ‘‘[n]otwithstanding the

important public policy considerations underlying the

exhaustion requirement, [our Supreme Court] has

carved out several exceptions from the exhaustion doctrine . . . although only infrequently and only for narrowly defined purposes. . . . Such narrowly defined

purposes include when recourse to the . . . remedy

would be futile or inadequate. . . . A remedy is futile

or inadequate if the decision maker is without authority

to grant the requested relief.’’ (Citations omitted; internal quotation marks omitted.) Garcia v. Hartford, 292

Conn. 334, 340, 972 A.2d 706 (2009). ‘‘It is futile to seek

a remedy only when such action could not result in a

favorable decision . . . .’’ O & G Industries, Inc. v.

Planning & Zoning Commission, 232 Conn. 419, 429,

655 A.2d 1121 (1995); see also Polymer Resources, Ltd.

v. Keeney, supra, 227 Conn. 563 (‘‘[d]irect adjudication

even of constitutional claims is not warranted when

the relief sought by a litigant might conceivably have

been obtained through an alternative [statutory] procedure . . . which [the litigant] has chosen to ignore’’

[internal quotation marks omitted]). To avail itself of

the futility exception, a plaintiff must establish ‘‘demon-
strable futility in pursuing an available administrative

remedy.’’ Pet v. Dept. of Health Services, supra, 207

Conn. 356.

The plaintiff has not satisfied that burden. It is undisputed that, at the time that it commenced this action,

the Sotil, Cipes, and Wills matters remained pending

before the commission. In each instance, the plaintiff

was the respondent. As this court has noted, proceedings before the commission are not futile when ‘‘the

plaintiff’s claims can be addressed by way of defenses

to [the complainant’s] complaint.’’ Flanagan v. Commission on Human Rights & Opportunities, 54 Conn.

App. 89, 92, 733 A.2d 881, cert. denied, 250 Conn. 925,

738 A.2d 656 (1999). Furthermore, the plaintiff has not

even argued, much less demonstrated, that it cannot

prevail before the commission in those pending proceedings. This case thus resembles Johnson v. Dept. of

Public Health, 48 Conn. App. 102, 114, 710 A.2d 176

(1998), in which we observed that the futility exception

did not apply because ‘‘[t]he plaintiff may prevail before

the agency. He has available an adequate remedy, recognized under [§ 4-183], namely, to resort to the agency

proceedings that have been instituted, which he now

wants to bypass.’’

In its appellate reply brief, the plaintiff insists that

it is unlikely that the commission would rule in the

plaintiff’s favor and declare its own conduct to be

improper. We decline to view an administrative agency

of this state with such a jaundiced eye. As the United

States Supreme Court has noted, ‘‘[j]udicial intervention

into the agency process denies the agency an opportunity to correct its own mistakes.’’ Federal Trade Commission v. Standard Oil Co. of California, 449 U.S. 232,

242, 101 S. Ct. 488, 66 L. Ed. 2d 416 (1980). Moreover, the

plaintiff’s contention is pure speculation, which cannot

establish the requisite futility. See Polymer Resources,

Ltd. v. Keeney, supra, 227 Conn. 562 (‘‘a mere conclusory assertion that an agency will not reconsider its

decision does not excuse compliance with the exhaustion requirement’’); O & G Industries, Inc. v. Planning & Zoning Commission, supra, 232 Conn. 429

(when party’s suspicion of bias on part of zoning commission is purely speculative, such suspicion does not

render exhaustion of administrative remedies futile);

LaCroix v. Board of Education, 199 Conn. 70, 84–85,

505 A.2d 1233 (1986) (‘‘the statutory remedies are not

rendered futile by the plaintiff’s conclusory assertion

that requesting and attending a hearing before the

defendant board would have been pointless in the face

of the board’s earlier decision to terminate his employment’’); Johnson v. Dept. of Public Health, supra, 48

Conn. App. 113 (‘‘[t]he mere allegation that [resort to

agency action] will prove [futile] is not cognizable’’).

As one court aptly observed, ‘‘[n]o doubt denial is the

likeliest outcome [in the administrative proceeding],

but that is not sufficient reason for waiving the require-
ment of exhaustion. Lightning may strike; and even if

it doesn’t, in denying relief the [agency] may give a

statement of its reasons that is helpful to the [court]

in considering the merits of the claim.’’ (Emphasis omitted.) Greene v. Meese, 875 F.2d 639, 641 (7th Cir. 1989).

The record plainly reflects that the plaintiff is dismayed by the resources which it must expend in

responding to complaints made with the commission.

The plaintiff also bemoans what, at times, can be a

protracted process before the commission. As its counsel stated at oral argument before this court, an independent action before the Superior Court provides a much

‘‘quicker’’ avenue of redress than what it describes in

its appellate reply brief as the ‘‘painfully slow process

utilized by the [commission].’’ That argument is contrary to our precedent, which instructs that ‘‘[i]t is no

answer for the plaintiff, in refusing to avail himself of

that administrative remedy, to claim that to do so may

prove more costly and less convenient than going

directly to Superior Court.’’ Johnson v. Dept. of Public

Health, supra, 48 Conn. App. 114; see also Federal Trade

Commission v. Standard Oil Co. of California, supra,

449 U.S. 244. Moreover, the plaintiff has not argued,

either before the trial court or on appeal, that the present case qualifies under the ‘‘immediate and irreparable harm’’ exception to the exhaustion requirement.

See, e.g., Polymer Resources, Ltd. v. Keeney, supra, 227

Conn. 561.

The plaintiff’s claim of futility and inadequacy is further undermined by the fact that if it does not prevail

in the pending proceedings before the commission, an

avenue of administrative appeal awaits the plaintiff pursuant to § 4-183.22 In such an appeal, an aggrieved party

may challenge an agency’s determinations on the basis

that they are ‘‘(1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority

of the agency; (3) made upon unlawful procedure; (4)

affected by other error of law; (5) clearly erroneous in

view of the reliable, probative, and substantial evidence

on the whole record; or (6) arbitrary or capricious or

characterized by abuse of discretion or clearly unwarranted exercise of discretion.’’ General Statutes § 4-183

(j). The plaintiff has not articulated any reason why

such an appeal would be inadequate. Section 4-183

‘‘[n]ot only . . . [provides] a right of appeal from a

final agency decision by an aggrieved party, but it also

includes an immediate right to appeal from an adverse

preliminary ruling if review of the final agency decision

would not provide an adequate remedy. Moreover, the

statutory framework includes a means of staying an

agency decision pending appeal. . . . Thus, a potentially aggrieved party is well protected by statute.’’ (Citation omitted; footnote omitted.) Pet v. Dept. of Health

Services, supra, 207 Conn. 352. As our Supreme Court

has observed, ‘‘a claim that an administrative agency

has exceeded its statutory authority or jurisdiction may
be the subject of an administrative appeal.’’ Payne v.

Fairfield Hills Hospital, 215 Conn. 675, 679, 578 A.2d

1025 (1990).

The gravamen of the plaintiff’s complaint is that the

commission has acted in contravention of its statutory

and regulatory obligations.23 The plaintiff has offered

no explanation as to why an appeal pursuant to § 4-183

would be inadequate to review such claims, particularly

when that statute expressly encompasses allegations

that an agency has acted in violation of statutory provisions, in excess of its statutory authority, or upon

unlawful procedure; General Statutes § 4-183 (j); or why

the Superior Court in such an appeal could not provide

the plaintiff with adequate relief.24 Indeed, the record

before us reflects, and the trial court in this case found,

that the plaintiff availed itself of its avenue of appeal

pursuant to § 4-183 with respect to the Dixon and Smith

matters referenced in its complaint. See footnote 19 of

this opinion.

Moreover, in the pending Sotil, Cipes, and Wills

administrative proceedings, the plaintiff is free to

advance, as defenses to the complainants’ allegations;

see Flanagan v. Commission on Human Rights &

Opportunities, supra, 54 Conn. App. 92; its claims that

§ 46a-71 does not apply to the plaintiff and that the

commission lacks jurisdiction over complaints filed by

independent contractors, as alleged in the present complaint. If the commission ultimately rejects those contentions, the plaintiff could appeal that adverse ruling

to the Superior Court pursuant to § 4-183. See Cannata

v. Dept. of Environmental Protection, 215 Conn. 616,

629, 577 A.2d 1017 (1990) (‘‘[i]f the commissioner denies

the plaintiffs [relief in the administrative proceeding],

they can then pursue an appeal to the Superior Court

pursuant to § 4-183 challenging the commissioner’s

jurisdiction and her decision’’). In that event, the

reviewing court may find helpful the stated basis of the

commission’s ruling in considering the merits of the

plaintiff’s claim. Greene v. Meese, supra, 875 F.2d 641. To

the extent that the plaintiff asserts something vaguely

resembling a capable of repetition, yet evading review

argument with respect to the disposition of such administrative proceedings; see generally Loisel v. Rowe, 233

Conn. 370, 382, 660 A.2d 323 (1995); we reiterate that,

once those pending matters have concluded, the plaintiff properly may seek declaratory relief as provided by

§§ 4-175 and 4-176. See footnote 20 of this opinion.

In considering the proper role of the exhaustion

requirement in the administrative context, this nation’s

highest court has cautioned that judicial review of

agency action ‘‘should not be a means of turning prosecutor into defendant before adjudication concludes.’’

Federal Trade Commission v. Standard Oil Co. of California, supra, 449 U.S. 243. We concur with that sentiment, and conclude that the plaintiff has not established
demonstrable futility in pursuing its administrative remedies before the commission. See Pet v. Dept. of Health

Services, supra, 207 Conn. 356. Accordingly, the plaintiff’s failure to exhaust its administrative remedies cannot be salvaged by the futility exception.

B

The plaintiff also argues that, because it is contesting

the jurisdiction of the commission, it need not comply

with the exhaustion requirement. It posits that there

exists a broad exception to the exhaustion requirement

that is implicated when the jurisdiction of an administrative agency is challenged. A review of Connecticut

precedent reveals otherwise.

The appellate courts of this state repeatedly have

recognized that ‘‘a claim that an administrative agency

has exceeded its statutory authority or jurisdiction may

be the subject of an administrative appeal.’’ Payne v.

Fairfield Hills Hospital, supra, 215 Conn. 679; see also

Republican Party of Connecticut v. Merrill, supra, 307

Conn. 479; Housing Authority v. Papandrea, supra,

222 Conn. 424; Sastrom v. Psychiatric Security Review

Board, 105 Conn. App. 477, 481, 938 A.2d 1233 (2008);

Johnson v. Dept. of Public Health, supra, 48 Conn. App.

112. The plaintiff nonetheless argues that the jurisprudence of this state’s highest court has established a

jurisdictional exception to the exhaustion requirement,

relying principally on Aaron v. Conservation Commission, 178 Conn. 173, 422 A.2d 290 (1979). That reliance

is unavailing.

Aaron did not involve an administrative proceeding

pursuant to the UAPA, but rather a municipal land use

proceeding. Id., 174–75. In discussing exceptions to the

exhaustion requirement, the court stated: ‘‘[O]ne such

exception is that resort to administrative agency procedures will not be required when the claims sought to

be litigated are jurisdictional. . . . Another exception

is that exhaustion of administrative remedies will not

be required when the remedies available are futile or

inadequate.’’ (Citations omitted.) Id., 179. The court’s

subsequent analysis of those two exceptions consisted

of two sentences: ‘‘In the present case there is some

question as to whether the plaintiff’s claims could properly be litigated by way of appeal because of the rule

that a party who seeks some advantage under a statute

or ordinance, such as a permit or a variance, is precluded from subsequently attacking the validity of the

statute or ordinance. . . . In light of the above, this

court is compelled to conclude that the trial court erred

in declining to assume jurisdiction on the ground that

the plaintiff should be left to seek redress by other

forms of procedure.’’ (Citations omitted.) Id., 179–80.

In so doing, the court recognized the procedural uniqueness of that case, in that it involved the standing of a

party that has secured a land use permit or variance

from a municipal land use agency.
Ten years after Aaron was decided, our Supreme

Court directly addressed the exhaustion requirement

in the context of a party’s challenge to the jurisdiction

of an administrative agency. In Greater Bridgeport

Transit District v. Local Union 1336, 211 Conn. 436,

559 A.2d 1113 (1989), the court framed the issue before

it as ‘‘whether the trial court erred in dismissing, for lack

of subject matter jurisdiction, an independent action

challenging the scope of an administrative agency’s

jurisdiction . . . .’’ Id., 436. It then determined that the

exclusive power to determine the agency’s jurisdiction

in the first instance belonged to the agency, and not to

the courts. As it stated: ‘‘The present appeal requires

us to determine whether an administrative agency has

exclusive initial power to determine its own jurisdiction

in a particular case. . . . A claim that an administrative

agency has acted beyond its statutory authority or jurisdiction properly may be the subject of an administrative

appeal. . . . Where there is in place a mechanism for

adequate judicial review, such as that contained in § 4-

183, [i]t is [the] general rule that an administrative

agency may and must determine whether it has jurisdiction in a particular situation. When a particular statute

authorizes an administrative agency to act in a particular situation it necessarily confers upon such agency

authority to determine whether the situation is such as

to authorize the agency to act—that is, to determine

the coverage of the statute—and this question need not,

and in fact cannot, be initially decided by a court. . . .

We are persuaded that the jurisdictional claim raised

in the plaintiff’s complaint to the Superior Court is

properly, and exclusively, within the power of the

board to decide in the first instance. The plaintiff may

then, if necessary, raise the jurisdictional issue on

administrative appeal pursuant to . . . § 4-183.’’25

(Citations omitted; emphasis added; internal quotation

marks omitted.) Id., 438–40. That decision did not

acknowledge Aaron in any manner.

The Supreme Court revisited the issue one year later.

In Cannata v. Dept. of Environmental Protection,

supra, 215 Conn. 616, the plaintiffs—like the plaintiff

here—relied on Aaron for their argument that a challenge to the jurisdiction of an administrative agency

qualifies for ‘‘an exception to the exhaustion requirement.’’ Id., 621. The court rejected that argument and,

in light of Greater Bridgeport Transit District, held

that the agency ‘‘must first be given the opportunity to

determine its own jurisdiction.’’ Id., 622–23. Significantly, the court also addressed the apparent conflict

between Aaron and Greater Bridgeport Transit District on this issue. It stated: ‘‘Although it may be possible

to distinguish the two cases on the basis of differences

in the relief sought and the availability of an administrative remedy, we regard Greater Bridgeport Transit District as implicitly overruling [Aaron] with respect to

the absence of an exhaustion requirement for the deter-
mination of an agency’s jurisdiction when an adequate

administrative remedy is available.’’ Id., 622 n.7. The

Supreme Court has not cited to or relied on Aaron

since. In subsequent years, our appellate courts have

adhered to the precept that such jurisdictional challenges properly are within the purview of the administrative agency in the first instance. See, e.g., Polymer

Resources, Ltd. v. Keeney, supra, 227 Conn. 558; O &

G Industries, Inc. v. Planning & Zoning Commission,

supra, 232 Conn. 425; Canterbury v. Deojay, 114 Conn.

App. 695, 708–709, 971 A.2d 70 (2009); Wilkinson v.

Inland Wetlands & Watercourses Commission, 24

Conn. App. 163, 167, 586 A.2d 631 (1991).

Equally misplaced is the plaintiff’s reliance on Heslin

v. Connecticut Law Clinic of Trantolo & Trantolo, 190

Conn. 510, 461 A.2d 938 (1983), for the proposition that

‘‘a respondent before an administrative agency need

not wait until the agency issues a final decision before

taking an appeal pursuant to [§ 4-183], but instead may

bring a declaratory judgment action [in the Superior

Court] to challenge the agency’s exercise of jurisdiction.’’ Heslin did not involve a question of the agency’s

jurisdiction, but rather involved a question of ‘‘the legislature’s constitutional power to regulate attorney conduct.’’ Id., 515. In addressing that question, the court

explained that ‘‘[i]t is presumed that, in authorizing

[administrative] investigations, the legislature has delegated to the administrative body a power which the

legislature lawfully possesses. Where, however, a colorable claim is made that the preliminary investigation

is not within the power of [the legislature] to command

. . . that presumption is rebutted.’’ (Citation omitted;

emphasis added; internal quotation marks omitted.) Id.

When such a colorable claim is raised, Heslin instructs

that ‘‘[i]t then becomes necessary and proper for the

trial court to determine, before proceeding further, the

authority of [the] administrative agency to act.’’ Id.; see

also Commission on Human Rights & Opportunities

v.Archdiocesan School Office, supra, 202 Conn. 606–607

(noting that Heslin exception applies ‘‘where the legislative authority to empower the agency to conduct the

investigation itself is challenged’’). In this case, the

plaintiffs have not raised any claim as to the legislature’s

authority with respect to commission conduct. Heslin,

therefore, is inapposite to the present case.

Consistent with the ample body of Connecticut

authority adhering to the precept that such jurisdictional challenges properly are within the purview of the

administrative agency, and the mandate of Cannata v.

Dept. of Environmental Protection, supra, 215 Conn.

622 n.7 in particular, we reject the plaintiff’s assertion

that there exists a broad exception to the exhaustion

requirement for challenges to the jurisdiction of an

administrative agency. Such challenges are ‘‘properly,

and exclusively, within the power of the board to decide

in the first instance.’’ Greater Bridgeport Transit Dis-
trict v. Local Union 1336, supra, 211 Conn. 439–40.

Accordingly, the plaintiff was obligated to raise its challenge to the jurisdiction of the commission in the pending administrative proceedings and, if necessary, an

appeal pursuant to § 4-183 or a subsequent declaratory

petition pursuant to § 4-176.

C

We further note that, in addition to seeking declaratory relief, the plaintiff’s complaint requests injunctive

relief and a writ of mandamus. The inclusion of those

requests does not obviate the need for the plaintiff to

comply with the exhaustion requirement.

It well established that a plaintiff’s preference for

particular relief has little bearing on the adequacy of

an administrative remedy. As our Supreme Court has

observed, ‘‘it does not matter for exhaustion purposes

that [the available] administrative remedies could not

provide the relief the plaintiffs preferred . . . . It is

well established . . . [t]he plaintiff’s preference for a

particular remedy does not determine the adequacy of

that remedy. [A]n administrative remedy, in order to

be adequate, need not comport with the [plaintiff’s]

opinion of what a perfect remedy would be.’’ (Internal

quotation marks omitted.) Lopez v. Board of Education,

supra, 310 Conn. 601 n.23; see also Concerned Citizens

of Sterling v. Sterling, 204 Conn. 551, 559, 529 A.2d 666

(1987) (‘‘we have never held that the mere possibility

that an administrative agency may deny a party the

specific relief requested is a ground for an exception

to the exhaustion requirement’’).

In addition, this court has held that a plaintiff cannot

bypass the exhaustion requirement simply by including

a variety of requests in its prayer for relief. In Johnson

v. Dept. of Public Health, supra, 48 Conn. App. 120, we

stated in relevant part: ‘‘[T]he plaintiff may not bypass

the UAPA exhaustion requirement by filing this selfstyled independent civil action. . . . In attempting to

circumvent his available administrative remedy by this

independent civil action, the plaintiff maintains that he

can do this because he is seeking other relief whether

it sounds contract or tort, declaratory judgment or

injunctive relief and the like. This approach fails

because, on analysis, the factual predicate for his claims

relate back to the alleged statutory violations, which

provide for a statutory remedy. When the legislature

enacts a comprehensive remedial scheme such as the

UAPA with procedural safeguards by which claims are

to be determined by an administrative agency before

judicial review is made available, it has laid that down

as the public policy most likely to produce results. To

effectuate this public policy, the legislative intent is that

the trial court should not, generally speaking, act or be

called upon to act, until there has been compliance with

the statutory scheme. . . . [O]ur Supreme Court . . .

[has] frequently held that where a statute has estab-
lished a procedure to redress a particular wrong a person must follow the specific remedy and may not

institute a proceeding that might have been permissible

in the absence of such a statutory procedure. . . . The

plaintiff’s independent civil action contravenes [that

precedent]. He is attempting, under circumstances that

are impermissible, to prevent the making of a proper

record of agency action, including a decision on the

issues, for proper judicial review.’’ (Citations omitted;

internal quotation marks omitted.) See also Housing

Authority v. Papandrea, supra, 222 Conn. 423 (‘‘[w]e

affirm the principle . . . that a claim for injunctive

relief does not negate the requirement that the complaining party exhaust administrative remedies’’).

In Savoy Laundry, Inc. v. Stratford, 32 Conn. App.

636, 642, 630 A.2d 159, cert. denied, 227 Conn. 931, 632

A.2d 704 (1993), this court similarly observed that ‘‘[t]he

plaintiff may not choose its administrative remedy

through the framing of its own complaint. If that were

possible, the purpose of the exhaustion doctrine would

be thwarted.’’ That precedent is wholly consistent with

our Supreme Court’s admonition that ‘‘a party who has

a statutory right of appeal from a decision of the administrative agency may not bring an independent action

to test the very issues that the [administrative] appeal

was designed to test.’’ Payne v. Fairfield Hills Hospital,

supra, 215 Conn. 679; accord McNish v. American Brass

Co., 139 Conn. 44, 53, 89 A.2d 566 (1952) (‘‘[w]hen an

administrative remedy is provided by law, relief must

be sought by exhausting this remedy before resort to

the courts’’).

III

As a final matter, the plaintiff claims that the court

improperly dismissed its due process count. Because

that count was brought pursuant to 42 U.S.C. § 1983,

the plaintiff maintains that the exhaustion doctrine does

not apply.

To be sure, the United States Supreme Court, in Patsy

v. Board of Regents of the State of Florida, 457 U.S.

496, 501, 102 S. Ct. 2557, 73 L. Ed. 2d 172 (1982), held

that exhaustion of administrative remedies is not a prerequisite to an action under § 1983.26 The Connecticut

Supreme Court nonetheless has held that, ‘‘notwithstanding Patsy v. Board of Regents of the State of Florida, supra, the fundamental requirement of inadequacy

of an available legal remedy in order to obtain injunctive

relief remains in full force.’’27 Pet v. Dept. of Health

Services, supra, 207 Conn. 369. The court continued:

‘‘The inadequacy of an available legal remedy is a standard prerequisite for injunctive relief. We do not view

[Patsy] as having abrogated this fundamental requirement for injunctive relief . . . . A fortiori, it remains

a condition precedent to injunctive relief in a state court

. . . .’’ (Internal quotation marks omitted.) Id. When an

adequate administrative remedy exists, the court held
that ‘‘no form of injunctive relief, under § 1983 or otherwise, is justified as an exception to the exhaustion

requirement . . . .’’ Id. The court thus concluded that

the plaintiff’s inclusion of a § 1983 count in his complaint ‘‘does not permit the plaintiff to avoid the exhaustion doctrine.’’ Id., 370; see also Laurel Park, Inc. v.

Pac, 194 Conn. 677, 691, 485 A.2d 1272, 1279 (1984);

Flanagan v. Commission on Human Rights & Opportunities, supra, 54 Conn. App. 95.

On appeal, the plaintiff acknowledges that precedent,

but claims that it may still prevail because it had no

adequate administrative remedy. This court has

rejected that claim in part II A of this opinion. The

plaintiff, therefore, cannot ‘‘forestall an invocation of

the exhaustion doctrine’’ due to the inclusion of a § 1983

count in its complaint. Pet v. Dept. of Health Services,

supra, 207 Conn. 370.

IV

In sum, we conclude that the plaintiff had adequate

administrative remedies that it failed to exhaust prior

to commencing this independent civil action in the

Superior Court, namely, recourse in the pending Sotil,

Cipes, and Wills proceedings before the commission

and the corresponding avenue of administrative appeal

provided by § 4-183. Moreover, to the extent that any

issues remain after those pending proceedings conclude, § 4-176 permits the plaintiff to petition the commission for a declaratory ruling, which ruling itself then

would be appealable pursuant to § 4-183. It is undisputed that the plaintiff in this case did not exhaust

those administrative remedies prior to commencing this

independent civil action. The trial court therefore properly dismissed the plaintiff’s complaint for lack of subject matter jurisdiction.

The judgment is affirmed.

In this opinion the other judges concurred.

1 We note that the plaintiff has been identified alternatively as the Metropolitan District and the Metropolitan District Commission in our case law.

See, e.g., Blonski v. Metropolitan District Commission, 309 Conn. 282, 284,

71 A.3d 465 (2013); Metropolitan District v. Burlington, 241 Conn. 382, 384,

696 A.2d 969 (1997); Brusby v. Metropolitan District, 160 Conn. App. 638,

641, 127 A.3d 257 (2015); Metropolitan District Commission v. Connecticut

Resources Recovery Authority, 130 Conn. App. 132, 134, 22 A.3d 651 (2011).

In the present case, the plaintiff identifies itself as ‘‘The Metropolitan District’’ in its complaint and has been referred to as such throughout this litigation.

2 General Statutes § 46a-83 ‘‘outlines the procedure that the commission

must follow’’ upon receiving a complaint. Lyon v. Jones, 291 Conn. 384,

398, 968 A.2d 416 (2009). General Statutes (Rev. to 2015) § 46a-83 (b) provides

in relevant part: ‘‘Within ninety days of the filing of the respondent’s answer

to the complaint, the executive director [of the commission] or the executive

director’s designee shall conduct a merit assessment review. The merit

assessment review shall include the complaint, the respondent’s answer

and the responses to the commission’s requests for information, if any,

and the complainant’s comments, if any, to the respondent’s answer and

information responses. If the executive director or the executive director’s

designee determines that the complaint fails to state a claim for relief or is

frivolous on its face, that the respondent is exempt from the provisions of

this chapter or that there is no reasonable possibility that investigating the
complaint will result in a finding of reasonable cause, the executive director

or the executive director’s designee shall dismiss the complaint . . . .’’

Section 46a-54-42a (a) of the Regulations of Connecticut State Agencies

provides in relevant part that ‘‘[p]rior to service of a complaint or an amended

complaint upon the respondent, the commission shall review the complaint

to determine jurisdiction over the complaint. The review shall include a

determination of whether the complaint is timely filed, alleges a discriminatory practice . . . and contains other matters necessary to the commission’s

jurisdiction over the complaint . . . .’’

Section 46a-54-49a (b) of the Regulations of Connecticut State Agencies

provides: ‘‘The executive director or the executive director’s designee shall

dismiss the complaint if he or she determines:

‘‘(1) The complaint fails to state a claim for relief;

‘‘(2) The complaint is frivolous on its face;

‘‘(3) The respondent is exempt from the provisions of chapter 814c of

the Connecticut General Statutes; or

‘‘(4) There is no reasonable possibility that investigating the complaint

will result in a finding of reasonable cause.’’

3 As examples of the commission’s allegedly improper conduct, the plaintiff in its complaint cites to Dixon v. Metropolitan District Commission,

Docket No. 1210313; Smith v. Metropolitan District Commission, Docket

No. 1210147; Sotil v. Metropolitan District Commission, Docket No.

1410490; Cipes v. Metropolitan District Commission, Docket No. 1440395;

and Wills v. Metropolitan District Commission, for which no docket number

was provided.

4 The complaint alleges in relevant part that the commission ‘‘engaged in

the following routine practices:

‘‘1. Issuing complaints to respondents without first determining that the

[commission] has jurisdiction over the complaint allegations;

‘‘2. Retaining jurisdiction over complaints without conducting the merit

assessment review required by statute and regulations;

‘‘3. Ordering the parties to mandatory mediation without conducting the

necessary merit assessment review;

‘‘4. Issuing reasonable cause findings by [commission] employees who

have not conducted the investigation required by the statute and regulations;

‘‘5. Issuing reasonable cause findings without providing respondents with

an opportunity to comment on draft reasonable cause findings.’’

5 Titled ‘‘[d]iscriminatory practices by state agencies prohibited,’’ General

Statutes § 46a-71 provides: ‘‘(a) All services of every state agency shall be

performed without discrimination based upon race, color, religious creed,

sex, gender identity or expression, marital status, age, national origin, ancestry, intellectual disability, mental disability, learning disability, physical disability, including, but not limited to, blindness.

‘‘(b) No state facility may be used in the furtherance of any discrimination,

nor may any state agency become a party to any agreement, arrangement

or plan which has the effect of sanctioning discrimination.

‘‘(c) Each state agency shall analyze all of its operations to ascertain

possible instances of noncompliance with the policy of sections 46a-70 to

46a-78, inclusive, and shall initiate comprehensive programs to remedy any

defect found to exist.

‘‘(d) Every state contract or subcontract for construction on public buildings or for other public work or for goods and services shall conform to

the intent of section 4a-60.’’

6 The complaint also requests an injunction ‘‘enjoining the [commission]

from holding its fact-finding conference in the Sotil [v. Metropolitan District

Commission, Docket No. 1410490] case scheduled for February 4, 2016,’’

which was pending before the commission at the time that the plaintiff’s

complaint was filed. It is undisputed that the fact-finding conference before

the commission transpired on February 4, 2016, and that the commission

thereafter determined that it had jurisdiction over the matter, as evidenced

by the February 19, 2016 written notice to the parties furnished by Brian

D. Festa, a human rights attorney with the commission. That notice was

appended as an exhibit to the commission’s March 15, 2016 reply to the

plaintiff’s objection to the motion to dismiss.

7

In its motion to dismiss, the commission also alleged that the plaintiff

lacked standing to request a writ of mandamus pursuant to General Statutes

§ 52-485 and Practice Book § 23-45, the latter of which provides in relevant

part that ‘‘[a]n action of mandamus may be brought in an individual right

by any person who claims entitlement to that remedy to enforce a private

duty owed to that person . . . .’’ (Emphasis added.) The commission thus
argued that the plaintiff lacked standing because it ‘‘seeks a writ that is not

based upon an individual right to enforce a private duty owed it.’’ The court

did not address that argument in its memorandum of decision, and the

plaintiff has raised no claim related thereto in this appeal. We therefore

confine our review to the claims distinctly presented in this appeal, which

pertain solely to the issue of exhaustion of administrative remedies.

8 The court also concluded that it lacked jurisdiction over the plaintiff’s

complaint ‘‘because the plaintiff failed to exhaust the administrative remedies available through the agency proceedings and the appellate process

available after them.’’

9

‘‘General Statutes § 4-166 (3) provides in relevant part: ‘ ‘‘Final decision’’

means . . . (B) a declaratory ruling issued by an agency pursuant to section

4-176. . . .’ ’’ Republican Party of Connecticut v. Merrill, supra, 307 Conn.

477 n.6. Since that case was decided, what had been subdivision (3) of § 4-

166 was renumbered as subdivision (5). See Public Acts 2014, No. 14-187, § 1.

10 ‘‘General Statutes § 4-176 (h) provides in relevant part: ‘A declaratory

ruling shall be effective when personally delivered or mailed or on such

later date specified by the agency in the ruling, shall have the same status

and binding effect as an order issued in a contested case and shall be a

final decision for purposes of appeal in accordance with the provisions of

section 4-183. . . .’ ’’ Republican Party of Connecticut v. Merrill, supra, 307

Conn. 477 n.7.

11 ‘‘General Statutes § 4-175 (a) provides: ‘If a provision of the general

statutes, a regulation or a final decision, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal

rights or privileges of the plaintiff and if an agency (1) does not take an

action required by subdivision (1), (2) or (3) of subsection (e) of section 4-

176, within sixty days of the filing of a petition for a declaratory ruling, (2)

decides not to issue a declaratory ruling under subdivision (4) or (5) of

subsection (e) of said section 4-176, or (3) is deemed to have decided not

to issue a declaratory ruling under subsection (i) of said section 4-176, the

petitioner may seek in the Superior Court a declaratory judgment as to the

validity of the regulation in question or the applicability of the provision of

the general statutes, the regulation or the final decision in question to

specified circumstances. The agency shall be made a party to the action.’ ’’

Republican Party of Connecticut v. Merrill, supra, 307 Conn. 478 n.8.

12 In their petition, the plaintiffs in that case sought a declaratory ruling

‘‘with respect to seven questions concerning the legality of their conduct

in the sale of life insurance policies.’’ Financial Consulting, LLC v. Commissioner of Ins., supra, 315 Conn. 202.

13 At the March 31, 2016 hearing before the trial court, counsel for the

commission informed the court that administrative appeals before the Superior Court already had transpired in the Dixon and Smith matters. The

plaintiff’s counsel acknowledged those appeals and informed the court that

the Smith matter had ‘‘settled’’ and that ‘‘[t]he Dixon matter is also over

. . . . [W]e brought these cases to the court’s attention in our complaint

not because they hadn’t been resolved but because they show the pattern and

practice of the agency exceeding its statutory and regulatory jurisdiction.’’

14 Paragraphs nine and ten of the complaint allege in relevant part: ‘‘[I]n

Sotil v. Metropolitan District Commission, Docket No. 1410490, by letter

dated September 18, 2014, and by various letters thereafter, counsel for the

[plaintiff] advised counsel for the [commission] that the [commission] did

not have jurisdiction over the claims alleged in the Complaint. Nevertheless,

the [commission] issued a notice of retention following merit assessment

review, and before the [plaintiff] had an opportunity to timely reply to the

Complainant’s response to its position statement. Thereafter, by letter dated

June 12, 2015, counsel for the [plaintiff] advised counsel for the [commission]

that . . . the [commission] does not have jurisdiction over claims arising

under 42 U.S.C. [§] 1981 against the [plaintiff]. Nevertheless, the [commission] refused to dismiss the claim. In short, the [commission] has failed and

continues to fail to conduct proper merit assessments and reviews. Upon

information and belief, the [commission] has instituted a practice of routinely

retaining jurisdiction over cases without engaging in the merit assessment

review process. . . .

‘‘Prior to service of a complaint or an amended complaint upon the respondent, the commission shall review the complaint to determine jurisdiction

over the complaint. . . . Upon information and belief, the [commission]

has routinely failed to review complaints filed with it to determine whether

the [commission] has jurisdiction over the complaint. Rather, the [commission] only has jurisdiction of claims against the [plaintiff] by ‘employees,’
as that term is defined in the statute. . . . [I]n Sotil, the [commission] served

a complaint upon the [plaintiff] notwithstanding the [complainant was] not

[an employee] of the [plaintiff] but admittedly [is an] independent [contractor].’’

15 As previously noted, the motion to dismiss, in addition to admitting

all facts well pleaded, ‘‘invokes any record that accompanies the motion,

including supporting affidavits that contain undisputed facts.’’ (Internal quotation marks omitted.) Henriquez v. Allegre, supra, 68 Conn. App. 242.

Appended to the plaintiff’s memorandum of law in opposition to the motion

to dismiss was, inter alia, a copy of an e-mail chain among commission

officials from May of 2014, regarding the Sotil matter. Susan Horn, identified

therein as a ‘‘HRO Representative’’ with the commission, states in relevant

part that ‘‘[a]fter reviewing the intake sheet and the fifty-four pages of emails,

I have come to the conclusion that the complainant [in Sotil] has exceeded

the 180 days to file his complaint. . . .’’ After reviewing the commission’s

handling of the Sotil matter, Horn then states: ‘‘This situation presents an

essential issue: How will the commission be handling the processing of

contract compliance complaints in the future? Should the effort be centralized like [h]ousing?’’ In addition, appended to the commission’s reply to the

plaintiff’s objection to the motion to dismiss was the February 19, 2016

notice to the parties from Brian D. Festa, an attorney with the commission,

informing them in relevant part that, ‘‘[a]fter a thorough examination of the

evidence in the record . . . I have concluded that [the Sotil] complaint

is timely.’’

16 To the extent that the plaintiff seeks to avail itself of General Statutes

§ 52-29, rather than § 4-175, in pursuing this declaratory action in the Superior

Court, our Supreme Court has noted that ‘‘declaratory judgment actions

under § 4-175 are legally indistinguishable for exhaustion purposes from

actions brought pursuant to § 52-29, the general declaratory judgment statute.’’ Financial Consulting, LLC v. Commissioner of Ins., supra, 315 Conn.

216 n.15. The court further has explained that ‘‘§ 52-29, granting declaratory

judgment jurisdiction to the Superior Court, does not qualify as the type of

separate statutory authorization . . . that allows for a complete bypassing

of an administrative agency with undeniable jurisdiction over the subject

matter . . . . [O]ur case law makes clear that . . . broad statutory grants

of jurisdiction, such as § 52-29, are not intended to circumvent the well

established principles of exhaustion.’’ (Citations omitted; internal quotation

marks omitted.) River Bend Associates, Inc. v. Water Pollution Control

Authority, 262 Conn. 84, 105–106, 809 A.2d 492 (2002). Invoking § 52-29,

therefore, does not obviate a party’s obligation to exhaust its administrative

remedies before commencing an action in the Superior Court.

17 General Statutes § 4-183 (a) provides in relevant part: ‘‘A person who

has exhausted all administrative remedies available within the agency and

who is aggrieved by a final decision may appeal to the Superior Court as

provided in this section. . . .’’

18 General Statutes § 4-183 (b) provides: ‘‘A person may appeal a preliminary, procedural or intermediate agency action or ruling to the Superior

Court if (1) it appears likely that the person will otherwise qualify under

this chapter to appeal from the final agency action or ruling and (2) postponement of the appeal would result in an inadequate remedy.’’

19 General Statutes § 4-183 (f) provides in relevant part: ‘‘The filing of

an appeal shall not, of itself, stay enforcement of an agency decision. An

application for a stay may be made to the agency, to the court or to both.

Filing of an application with the agency shall not preclude action by the

court. . . .’’

20 At the hearing on the motion to dismiss, counsel for the commission

attested that, in two of the matters cited in the plaintiff’s complaint known

as Dixon v. Metropolitan District Commission and Smith v. Metropolitan

District Commission, the plaintiff availed itself of the remedies provided

by § 4-183 by bringing interlocutory administrative appeals raising issues

similar to those presented in this case. As counsel stated, ‘‘these [administrative appeals] were heard in the [Superior Court] . . . and it’s the very same

issues that they put in their complaint here.’’ Attorney Kevin Shea, who was

present at that hearing due to his representation of the plaintiff in other

matters, confirmed that those administrative appeals were commenced in

the Superior Court. Counsel for the commission thus requested that the

court take judicial notice of those administrative appeals, which request

the court granted when the plaintiff’s counsel indicated that he had no

objection thereto.

In its memorandum of decision, the court noted that the plaintiff ‘‘has,
in fact, utilized the provisions of . . . § 4-183 to seek judicial review of

interlocutory decisions of [the commission]. For example, in the Dixon and

Smith cases cited in [the plaintiff’s] complaint, the [plaintiff] filed interlocutory appeals from [the commission’s] reasonable cause finding. See Metropolitan District Commission v. Commission on Human Rights &

Opportunities, Superior Court, judicial district of New Britain, Docket No.

CV-14-6024208; Metropolitan District Commission v. Commission on

Human Rights & Opportunities, Superior Court, judicial district of New

Britain, Docket No. CV-14-6024368.’’

21 If those administrative proceedings were not pending, we reiterate that,

absent an applicable exception to the exhaustion requirement, the plaintiff

would be required to avail itself of the remedy provided by § 4-176 prior to

commencing an independent action for declaratory relief in the Superior

Court. See, e.g., Financial Consulting, LLC v. Commissioner of Ins., supra,

315 Conn. 199 (compliance with § 4-176 a ‘‘precondition’’ to commencement

of declaratory action in Superior Court); Republican Party of Connecticut

v. Merrill, supra, 307 Conn. 478 (‘‘[t]his court repeatedly has held that when

a plaintiff can obtain relief from an administrative agency by requesting a

declaratory ruling pursuant to § 4-176, the failure to exhaust that remedy

deprives the trial court of subject matter jurisdiction over an action challenging the legality of the agency’s action’’). Moreover, if the commission denied

a request for declaratory relief pursuant to § 4-176, the plaintiff could appeal

from that ruling to the Superior Court pursuant to § 4-183. Id., 477.

22 For that reason, Sastrom v. Psychiatric Security Review Board, 105

Conn. App. 477, 938 A.2d 1233 (2008), is plainly distinguishable. In Sastrom,

this court concluded that review pursuant to § 4-183 was not available to

the plaintiff due to the specific statutory provisions that govern review of

rulings by the defendant psychiatric security review board. Id., 484–85.

23 Ironically, the plaintiff, in commencing the present action, seeks to

bypass the statutory procedures contained in the UAPA that govern proceedings before state agencies such as the commission.

24 As the Supreme Court observed in Laurel Park, Inc. v. Pac, 194 Conn.

677, 686, 485 A.2d 1272 (1984): ‘‘Despite the plaintiffs’ protestations to the

contrary, it is difficult to comprehend why a court would have been less

inclined to order a stay of the commissioner’s order upon a proper application in the pending administrative appeal than to issue a temporary injunction

achieving the same result in a separate action. The same evidence presented

to the court in this action would have warranted the same relief in the

pending [administrative] appeal if the plaintiffs had followed the procedure

prescribed by the UAPA.’’

25 In so holding, Greater Bridgeport Transit District comports with Myers

v. Bethlehem Shipbuilding Corp., supra, 303 U.S. 41. In Myers, the defendant

had obtained an injunction in federal court against the National Labor Relations Board prohibiting it from holding certain hearings on the basis that

they were beyond the jurisdiction of the board. In reversing that injunctive

order, the United States Supreme Court rejected the claim that, because

the defendant had challenged the board’s jurisdiction, it would be subject

‘‘to irreparable damage, rights guaranteed by the Federal Constitution will

be denied unless it be held that the District Court has jurisdiction to enjoin

the holding of a hearing by the Board.’’ Id., 50. The court explained that

‘‘[s]o to hold would . . . in effect substitute the District Court for the Board

as the tribunal to hear and determine what Congress declared the Board

exclusively should hear and determine in the first instance. The contention

is at war with the long-settled rule of judicial administration that no one is

entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted. That rule has been

repeatedly acted on in cases where, as here, the contention is made that

the administrative body lacked power over the subject matter.’’ (Emphasis

added.) Id., 50–51. Accordingly, the court concluded that there was ‘‘no

reason why the Board should be prevented from exercising the exclusive

initial jurisdiction conferred upon it by Congress.’’ (Emphasis added; footnote omitted.) Id., 53.

26 One prominent commentary flatly states that the court should revisit

and overrule Patsy, opining that it ‘‘is a badly reasoned anomaly in the law

of exhaustion. The holding is not supported by a single word of statutory

text. It is inconsistent with the many powerful policy considerations that

have shaped the common law of exhaustion in all other contexts. . . .

[J]udicial review of state agency action under § 1983 is, and should be,

analogous to judicial review of federal agency actions under the [Administrative Procedures Act].’’ 2 R. Pierce, Administrative Law Treatise (5th Ed. 2010)
§ 15.9, p.1298. Regardless of the merits of such criticism, reconsideration of

that precedent remains the prerogative of the United States Supreme Court.

27 In so doing, our Supreme Court distinguished the procedural context

of Pasty, noting that ‘‘it was a § 1983 action for damages in federal court

that the plaintiff argued should not be dismissed for failure to exhaust his

state remedies.’’ Pet v. Dept. of Health Services, supra, 207 Conn. 369.