Patrick Mullinnex . v. Lisa Menard

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.

2020 VT 33

No. 2019-180

Patrick Mullinnex et al. Supreme Court

On Appeal from
v. Superior Court, Windsor Unit,
Civil Division

Lisa Menard et al. October Term, 2019

Michael R. Kainen, J.

Matthew Valerio, Defender General, and Kelly Green, Prisoners’ Rights Office, Montpelier, for
Plaintiffs-Appellees.

Stephen J. Soule and Pamela L.P. Eaton of Paul Frank + Collins P.C., Burlington, and
Michael Bentley and Molly Walker of Bradly Arant Boult Cummings LLP, Jackson,
Mississippi, for Defendants-Appellants.

PRESENT: Reiber, C.J., Robinson and Eaton, JJ., and Skoglund, J. (Ret.) and
Howard, Supr. J. (Ret.), Specially Assigned

¶ 1. EATON, J. Defendants Michael Touchette and Centurion Healthcare1 bring this

interlocutory appeal from the trial court’s certification of a class of plaintiffs in a Vermont Rule of

Civil Procedure 75 action. The class certified below is comprised of persons in the custody of the

Vermont Department of Corrections (DOC), each of whom suffers from opioid-use disorder and

alleges that defendants’ medication-assisted treatment (MAT) program does not meet prevailing

1
We make note of defendants’ indication that, although the amended petition named
“Centurion Healthcare,” the name of this commercial entity is in fact “Centurion of Vermont,
LLC.”
medical standards of care as required by Vermont law. Defendants, the former Commissioner of

the DOC and its contract healthcare provider, argue that the trial court erred both in finding that

plaintiff Patrick Mullinnex exhausted his administrative remedies before filing suit and in adopting

the vicarious-exhaustion doctrine favored by several federal circuits in order to conclude that

Mullinnex’s grievances satisfied the exhaustion requirement on behalf of the entire class.

Defendants also contend that the trial court’s decision to certify the class was in error because

plaintiffs did not meet Rule 23’s numerosity, commonality, typicality, and adequacy-of-

representation requirements. See V.R.C.P. 23(a). We reverse, concluding that—assuming

arguendo that the vicarious-exhaustion doctrine is appropriately applied in Vermont—it could not

apply in this case because, on the record before the trial court, no member of the putative class

succeeded in exhausting his administrative remedies. Because plaintiffs’ failure to exhaust leaves

the courts without subject-matter jurisdiction, we do not reach defendants’ challenges to the merits

of the class-certification decision.

¶ 2. Pursuant to 28 V.S.A. § 801(a), the DOC must “provide health care for inmates in

accordance with the prevailing medical standards.” In 2017, the Legislature added a provision

requiring that: (1) inmates receiving MAT prior to entering a correctional facility be continued in

that treatment so long as medically necessary; (2) inmates who screen positive for opioid-use

disorder while incarcerated may elect to receive MAT if it is deemed medically necessary; and (3)

inmates who so elect “shall be authorized to receive the medication as soon as possible and for as

long as medically necessary.” 2017, No. 176 (Adj. Sess.), §§ 3-4; 28 V.S.A. §§ 801(e), 801b(a).

Plaintiffs allege that the MAT program established by defendants following the amendments to

§§ 801 and 801b does not meet prevailing medical standards of care.

¶ 3. An inmate who believes he or she is not receiving medical care comporting with

the requirements of §§ 801 or 801b may seek redress through the DOC’s grievance process. The

DOC has fulfilled its legislative directive to “establish procedures to review the grievances of

2
inmates.” 28 V.S.A. § 854; see Offender Grievance System—APA Rule #06-006, Code of Vt.

Rules 13 130 005 [hereinafter DOC Grievance Rules], https://doc.vermont.gov/sites/correct/

files/documents/policy/correctional/320-Grievance-System-Rule.pdf [https://perma.cc/EAA4-

SAQ7]. The DOC Grievance Rules set forth the following procedural steps to govern the

resolution of nonemergent grievances which do not allege “serious employee misconduct.”2 DOC

Grievance Rules §§ 3, 5. An inmate who wishes to file a grievance must first file an informal

complaint. Id. § 5(a). If the inmate is dissatisfied with the outcome of the informal-complaint-

resolution process, he or she may file a formal grievance. Id. § 5(b). The “local chain of

command” must respond to the grievance within twenty business days. Id. § 5(d), (e). The inmate

may choose to appeal that local response. Id. § 5(e). “Appeal[s] to the Commissioner will be

responded to within 20 business days.” Id. Finally, the Rules require that inmates “exhaust

administrative remedies provided by the Department of Corrections’ grievance system before

commencing litigation.” Id. § 5(g).

¶ 4. The record reveals that the instant proceeding finds its inception in a DOC

grievance form submitted by plaintiff Mullinnex on September 20, 2018, following an informal

complaint to “medical” the day before. Therein, Mullinnex alleged that, although he had “been

approved for MAT,” he would not be induced until thirty days prior to his release from the facility

despite having “a medical need now for MAT” and a desire “to get help with [his] addiction and

be induced.” At some point during the following month,3 Mullinnex appealed the local response

to his grievance to the corrections executive. Finally, Mullinnex filed an appeal to the

Commissioner indicating his dissatisfaction with a grievance response from the corrections

2
Plaintiffs here do not contend that their grievances were either emergent in nature or
founded in allegations of serious employee misconduct.
3
The precise date on which this appeal was submitted is illegible, but at oral argument,
counsel for plaintiffs conceded that “the way Mr. Mullinnex may have ‘flubbed’ the grievance
process is that he appealed a few days too early to a mid-level executive.”
3
executive, which Mullinnex indicated was dated October 30, 2018. Although the form providing

for an appeal to the Commissioner contained a line designated for the date the appeal was

submitted, this line was left blank. However, the form was filed with the civil division of the

superior court on November 2, 2018, together with Mullinnex’s request for emergency injunctive

relief naming “Lisa Menard et al.”4 as the defendants. Although the court received Mullinnex’s

filing several days later, he signed and dated it on October 30. Given this timing, it is clear that

Mullinnex filed his administrative appeal to the Commissioner and his civil action

contemporaneously.

¶ 5. Several days later, an attorney from the Prisoners’ Rights Office entered an

appearance on Mullinnex’s behalf in the civil case. Defendants then moved to dismiss the case as

moot, indicating that Mullinnex had been prescribed MAT and began receiving it on November 7,

2018. The trial court declined to dismiss, instead directing Mullinnex to file an amended petition.

Mullinnex accordingly filed an amended petition, this time through counsel, and joined as named

plaintiffs John Jarvis, Shawn Gagnon, and Gregory Paradis, “on behalf of themselves and all others

similarly situated.” In the amended petition, Michael Touchette and “Centurion Healthcare” were

named as defendants. The amended petition was accompanied by a motion to maintain a class

action on behalf of all others similarly situated, alleging the existence of three questions of law

and fact common to the putative class:

(1) whether [d]efendants’ MAT induction process meets prevailing
medical standards of care as required by 28 V.S.A. §§ 801(a) [and]
801b, (2) whether [d]efendants’ practice and policy of withdrawing
treatment for and punishing prisoner-patients who relapse or
continue to use meets prevailing medical standards of care, [and] (3)
whether [d]efendants’ practice and policy of denying MAT to
prisoner-patients based on their legal status and without regard to
their diagnosis meets prevailing medical standards of care.

4
Menard was the DOC Commissioner at the time of Mullinnex’s request.
4
¶ 6. Defendants responded in opposition to both the amended petition and the motion

to maintain a class action. In addition to arguing that venue was improper and the class-action

requirements were unmet, defendants contended that none of the named plaintiffs had exhausted

administrative remedies relative to their MAT complaints, divesting the court of subject-matter

jurisdiction. In support of the alleged failure to exhaust, defendants offered an affidavit from

David Turner, the Director of Policy Development and Offender Due Process at the DOC. Turner

laid out the DOC’s grievance procedure, describing multiple “levels of appeal . . . that ultimately

reach the Commissioner,” who “is the final arbiter of inmate grievances.” Although he did not

mention Mullinnex’s grievances, Turner averred that none of the named plaintiffs had exhausted

their grievance appeals with respect to the three questions identified in the amended petition.

¶ 7. The court issued a decision in which it held that both venue and subject-matter

jurisdiction were proper. With respect to the latter issue, the court did not hold an evidentiary

hearing. Instead, it looked to the grievances filed by Mullinnex and concluded that he had

exhausted his administrative remedies, noting that it found the “basis for his failure to exhaust as

asserted by [d]efendant . . . unclear,” but explaining that, “[t]o the extent the purported failure lies

with the absence of a response or decision from the DOC administrators, the court would deem

the DOC grievance procedure ‘unavailable’ to Plaintiff Mullinnex.” Although it noted that

Mullinnex appeared to have appealed to the Commissioner prior to the expiration of the twenty-

day window provided under DOC rules for the Corrections Executive’s response, the court found

“this premature filing to be of little consequence in the absence of any response from DOC

administrators.” It then adopted the “vicarious exhaustion” doctrine favored in some federal

jurisdictions, pursuant to which one prisoner-plaintiff’s exhaustion satisfies the federal Prison

Litigation Reform Act’s (PLRA’s) exhaustion requirement on behalf of an entire class. See, e.g.

Chandler v. Crosby, 379 F.3d 1278, 1287 (11th Cir. 2004). On this basis, it held that the putative

class had satisfied the exhaustion requirements through Mullinnex’s efforts. It then noted that it

5
could not yet determine whether plaintiffs met the prerequisites for class certification and set the

matter for oral argument. Following this hearing, the court issued another ruling on April 26,

2019, certifying the class as to issues with the MAT induction process and disciplinary actions

taken against inmates who divert their MAT medication, but declining to certify the class as to the

legal-status question. Defendants then brought this interlocutory appeal. Because the vicarious-

exhaustion doctrine—whatever its merits outside the PLRA context—applies only where “one or

more class members has exhausted his administrative remedies with respect to each claim raised

by the class,” we must first consider whether the trial court was correct in concluding that

Mullinnex had done so. Id. (quotation omitted).

¶ 8. “A trial court lacks subject matter jurisdiction to hear a case if a party fails to

exhaust administrative remedies.” Pratt v. Pallito, 2017 VT 22, ¶ 15, 204 Vt. 313, 167 A.3d 320.

Therefore, in raising a challenge to Mullinnex’s exhaustion, defendants in essence moved to

dismiss this case below for want of subject-matter jurisdiction. “We review a trial court’s denial

of a motion to dismiss for lack of subject matter jurisdiction de novo, with all uncontroverted

factual allegations of the complaint accepted as true and construed in the light most favorable to

the nonmoving party.” Conley v. Crisafulli, 2010 VT 38, ¶ 3, 188 Vt. 11, 99 A.2d 677 (quotation

omitted). “A court may consider evidence outside the pleadings in resolving a motion to dismiss

for lack of subject matter jurisdiction, and we review these factual findings for clear error.” Id.

¶ 9. However, plaintiffs contend that the court cannot now take up the issue of subject-

matter jurisdiction because: (1) defendants did not timely appeal from the trial court’s decision not

to dismiss the case for lack of subject-matter jurisdiction; (2) pursuant to Rule 23(f), the only issue

this Court may consider in relation to this interlocutory appeal is the merits of class certification;

and (3) defendants bore the burden of showing failure to exhaust below, and did not do so.5

5
Should we reach the question of subject-matter jurisdiction, plaintiffs urge us to affirm
the trial court’s decision to apply the vicarious-exhaustion doctrine on the basis of Mullinnex’s
6
¶ 10. We find no merit in these arguments. It was incumbent on plaintiffs, in the first

instance, to file a complaint “showing that the pleader is entitled to relief.” V.R.C.P. 8(a). And,

at the time of the vicarious-exhaustion ruling, the court had yet to certify the putative class. The

vicarious-exhaustion doctrine applies only to certified classes. See McGoldrick v. Werholtz, 185

Fed.Appx 741, 743-44 (10th Cir. 2006) (assuming arguendo that circuit would follow vicarious

exhaustion, it was unavailable to plaintiffs because class was not certified); Hattie v. Hallock, 8 F.

Supp. 2d 685, 689 (N.D. Ohio 1998) (holding vicarious-exhaustion doctrine “only available to

plaintiffs in a class-action lawsuit, where a class is certified pursuant to Fed.R.Civ.P.

23(b)(2)”). Therefore, until the court certified the class, its determination that the vicarious-

exhaustion doctrine applies in Vermont was, in effect, conditioned on the court’s subsequent

decision on the motion for class certification. See, e.g., Armendariz v. Santa Fe Cty. Bd. of

Comm’rs, No. 1:17-cv-00339-WJ-LF, 2019 WL 722629, at *54 (D. New Mexico, Feb. 20, 2019)

(ruling that “[t]he Court shall apply the vicarious exhaustion rule in this case, but application of

the rule is conditional on this Court granting class certification in this case” (emphasis

omitted)). In other words, it was only upon certification of the class that the vicarious-exhaustion

ruling took legal effect; had the court declined to certify the class, that language would have

remained dicta.

¶ 11. Because the issues of exhaustion and class certification are thus inextricably

intertwined, defendants’ request for interlocutory appeal was not untimely. Furthermore, because

the exhaustion ruling is bound up in the ruling on class certification, we conclude that it is

appropriately considered in connection with an interlocutory appeal pursuant to Rule 23(f). And,

in any event, issues of subject-matter jurisdiction are not subject to waiver. Rather, “[i]t is

grievances. Notably, plaintiffs do not argue that Jarvis, Gagnon, or Paradis—the other three named
plaintiffs—have exhausted their administrative remedies, and there is no evidence of record to
support such a contention.

7
axiomatic that lack of subject matter jurisdiction of the trial court may be raised for the first time

on appeal to this Court.” Town of Charlotte v. Richmond, 158 Vt. 354, 358, 609 A.2d 638, 640

(1992). As a result of our independent obligation to ensure that we act only in cases where we

have subject-matter jurisdiction, we may consider such arguments on our own motion or at any

time during the pendency of a proceeding; we do so now.

¶ 12. At the crux of the dispute over exhaustion is the significance of the fact that

Mullinnex filed his claim in the trial court before the twenty-day periods afforded the corrections

executive and the Commissioner to respond to his respective appeals had run, see DOC Grievance

Rules § 5(e), and the grievance materials he submitted in connection with his superior court filing

did not include evidence of any such responses. Defendants controverted Mullinnex’s suggestion

that he had exhausted his grievances by filing Turner’s countervailing affidavit. See Conley, 2010

VT 38, ¶ 3 (noting that in reviewing ruling on dismissal for lack of subject-matter jurisdiction,

only “uncontroverted factual allegations” are accepted as true). The trial court did not hold an

evidentiary hearing to resolve this apparent conflict.6 See, e.g., Baird v. City of Burlington, 2016

VT 6, ¶¶ 11, 13, 201 Vt. 112, 136 A.3d 223 (noting with respect to standing, lack of which deprives

court of subject-matter jurisdiction, that “to avoid an unnecessary trial, courts may require

plaintiffs to prove facts essential to support standing at a preliminary hearing”); N.A.A.C.P.,

Boston Chapter v. Harris, 607 F.2d 514, 526 n.15 (1st Cir. 1979) (“To avoid an unnecessary trial,

the district court may conduct a preliminary evidentiary hearing on standing or other issues of

justiciability.” (emphasis added)). Taking all uncontroverted factual assertions as true, see Conley,

6
Below, plaintiffs argued that defendants were required to submit a motion to dismiss for
lack of subject-matter jurisdiction, and that such filing would then trigger an evidentiary hearing.
However, as set forth supra, ¶ 8, in arguing that plaintiffs had not exhausted their administrative
grievances, defendants in essence moved to dismiss. This is so because, had the trial court found
a failure to exhaust, the resulting lack of subject-matter jurisdiction would have compelled the trial
court to dismiss.

8
2010 VT 38, ¶ 3, the record before us on appeal reveals that Mullinnex filed each of the grievance

forms necessary to exhaust his remedies, but also suggests—as a result of the DOC’s affidavit

disputing exhaustion—that he failed to wait for either an agency response or expiration of the time

in which the agency could respond before filing suit. See Murray v. City of Burlington, 2012 VT

11, ¶ 2, 191 Vt. 597, 44 A.3d 162 (mem.) (observing that, in reviewing ruling on motion to dismiss

for lack of subject-matter jurisdiction, we “accept all reasonable inferences that may be drawn

from [the] facts.”).

¶ 13. To understand the bearing of this circumstance on our conclusions regarding

exhaustion, we look to the policies and principles underlying the exhaustion requirement. We

have previously explained that “[t]he term ‘exhaustion’ is used to describe both the judge-made

common-law doctrine and a statutory direction that judicial review is available only if specified

administrative procedures are first employed.” Stone v. Errecart, 165 Vt. 1, 4, 675 A.2d 1322,

1325 (1996). Exhaustion is required pursuant to statutory direction where “specifically

mandate[d]” by the Legislature. Id. But where the Legislature “ ‘has not clearly required

exhaustion, sound judicial discretion governs.’ ” Id. (quoting McCarthy v. Madigan, 503 U.S.

140, 144 (1992), superseded by statute on other grounds, 42 U.S.C. § 1997e, as recognized in

Woodford v. Viet Mike Ngo, 548 U.S. 81, 85 (2006)). Here, while the DOC rules require that

inmates “exhaust administrative remedies provided by the Department of Corrections’ grievance

system before commencing litigation,” the Legislature included no such requirement in the

enabling statute. DOC Grievance Rules § 2(5)(g). However, we need not determine whether the

legislative direction to establish grievance procedures constitutes a “specific mandate” of

exhaustion because we conclude that the court abused its discretion in exempting Mullinnex from

the exhaustion requirement under the common-law doctrine. Stone, 165 Vt. at 4, 675 A.2d at

1325; see also, e.g., Gilbeau v. Dep’t of Corr. & Centurion Med. Servs., No. 2016-236, 2016 WL

7353065, at *2 (Vt. Dec. 1, 2016) (unpub. mem.), https://www.vermontjudiciary.org/sites

9
/default/files/documents/eo16-236.pdf [https://perma.cc/W2FB-73JG] (“Even if the legislative

direction to establish prisoner grievance procedures does not constitute a specific mandate of

exhaustion, the superior court acted well within its discretion in not exempting plaintiff from our

longstanding and well-settled exhaustion rule.”).

¶ 14. “This court has consistently held,” as a “long-settled rule of judicial

administration,” “that when administrative remedies are established by statute or regulation, a

party must pursue, or ‘exhaust,’ all such remedies before turning to the courts for relief.” Jordan

v. State, 166 Vt. 509, 511-12, 702 A.2d 58, 60 (1997). The rule “serves the dual purposes of

protecting the authority of the administrative agency and promoting judicial efficiency.” Id. at

512, 702 A.2d at 60 (citing McCarthy, 503 U.S. at 145). To allow complainants to bypass their

administrative remedies deprives “the parties and the courts [of] the benefit of the administrative

agency’s experience and expertise,” and denies “the agency the opportunity to cure its own errors.”

Pratt v. Pallito, 2017 VT 22, ¶ 14, 204 Vt. 313, 167 A.3d 320. “Hence, we generally will not

interfere with an agency’s decisions regarding issues within its legislatively permitted jurisdiction

unless and until all administrative remedies have been invoked.” Luck Bros., Inc. v. Agency of

Transp., 2014 VT 59, ¶ 20, 196 Vt. 584, 99 A.3d 997 (quotation omitted). “Indeed, exhaustion of

administrative remedies is a presumed requirement, and the burden is on the party seeking to

bypass the administrative process to show that it fits within an exception to this general rule.” Id.

¶ 15. Here, the trial court found that Mullinnex had exhausted his administrative

remedies because he “appear[ed] to have submitted the necessary forms to comply with the appeals

process.” But compliance with the DOC’s administrative-grievance procedures requires more than

submission of each form in the appropriate sequence; rather, it necessitates filing the required

forms and then waiting for either an agency response or the expiration of the time allotted for the

same by rule. The well-settled purposes underlying the common-law exhaustion requirement are

not served by rote submission of documents, rapidly followed by an appeal before the agency has

10
occasion to respond. Rather, in order for the review process—and, ipso facto, the common-law

exhaustion requirement—to have meaning, the agency must be afforded the opportunity to cure

its own errors and to weigh in on the issues at stake, giving courts the benefit of the agency’s

expertise. See Pratt, 2017 VT 22, ¶ 14. Therefore, in order to bypass the exhaustion requirement,

Mullinnex bore the burden of showing that his circumstances “fit[] within an exception to this

general rule.” Luck Bros., Inc., 2014 VT 59, ¶ 20. The trial court specifically considered two such

exceptions, unavailability and substantial compliance. For the reasons set forth below, we

conclude that—on the limited record before the trial court—Mullinnex failed to show either

exception is appropriately applied here.

¶ 16. With respect to unavailability, the trial court noted that, “[t]o the extent the

purported failure to exhaust lies with the absence of a response or decision from the DOC

administrators, the court would deem the DOC grievance procedure ‘unavailable’ to . . .

Mullinnex.” In support of this conclusion, the court cited the report and recommendation of a

federal magistrate judge in Morales v. Burke, No. 5:17-cv-124-gwc-jmc, 2019 WL 277591, at *4

(D. Vt. Jan. 22, 2019), adopted by Morales v. Newton, No. 5:17-cv-124, 2019 WL 2996434, at *1

(D. Vt. Jul. 9, 2019). However, as the trial court itself observed, in Morales, summary judgment

for institutional defendants was unwarranted because a “question of fact existed as to [the]

prisoner’s failure to exhaust where she had filed forms in accordance with the DOC grievance

procedure, waited the requisite amount of time under Directive 320.01, and DOC administrators

neither responded to the grievances, nor signed, dated and timed the grievance forms as required

by same.” (Emphasis added.) Indeed, in support of this conclusion, the federal magistrate judge

observed that

courts in the Second Circuit have generally agreed with the
proposition that administrative remedies may be deemed
unavailable when the prison fails to timely respond to a grievance.
This conclusion makes sense because a prisoner who has complied
with all of the administrative requirements and made a good-faith

11
effort to exhaust should not be denied the opportunity to pursue his
[or her] grievance in federal court simply because administrative
decision makers have failed to respond to the grievance.

Id. (alterations, citations, and quotations omitted). This rationale is plainly inapplicable here

because Mullinnex neither sought to invoke the expedited timeline applicable to emergency

grievances nor waited for the requisite amount of time for DOC response to nonemergency

grievances under Directive 320.01 to elapse before seeking relief in court. See Vermont

Department of Corrections Directive 320.01, Offender Grievance System for Field and Facilities,

https://doc.vermont.gov/sites/correct/files/documents/policy/correctional/320.01-Offender-

Grievance-System-for-Field-and-Facilities.pdf [https://perma.cc/Y46Q-BANS]. Rather, the

record demonstrates that Mullinnex filed his civil case on the same day as his appeal to the

Commissioner. To show unavailability, Mullinnex needed to establish a lack of agency response,

which is not apparent on the record before us.

¶ 17. The trial court also made note of a superior court decision declining to dismiss on

exhaustion grounds where a prisoner-plaintiff complied “substantially,” but not “strictly,” with the

DOC’s grievance rules. See Davis v. Marcoux, No. 10-1-16 Cncv, 2016 WL 9453672, at *2 (Vt.

Super. Ct. Dec. 29, 2016), https://www.vermontjudiciary.org/sites/default/files/documents/2017-

6-27-1.pdf [https://perma.cc/4G3F-9G4S] (finding plaintiff “did not strictly comply with DOC’s

grievance regulations” because he did not wait until the corrections executive issued a decision

before appealing to the Commissioner, and did not wait until the Commissioner issued a decision

before filing a Rule 75 complaint in civil court, but declining to dismiss the complaint for failure

to exhaust because plaintiff “substantially complied with the grievance process”). Neither the trial

court here nor the trial court in Davis offered further case law supporting this conclusion, which

we find unpersuasive. “The exhaustion doctrine is designed to ensure that a grievance is fully

explored and litigated before the administrative body possessing the pertinent experience and

expertise in the subject area; the doctrine thus serves to preserve the authority of the administrative

12
body, and to promote judicial efficiency.” Rennie v. State, 171 Vt. 584, 585, 762 A.2d 1272, 1275

(2000) (mem.) (affirming dismissal for failure to exhaust where plaintiff’s efforts “did not satisfy

the prerequisites, or the purposes, of the exhaustion doctrine”). It benefits neither plaintiffs,

defendants, nor the law for courts to consider an issue without benefit of its full development

before the relevant agency. See McCarthy, 503 U.S. at 145 (“Exhaustion concerns apply with

particular force . . . when the agency proceedings in question allow the agency to apply its special

expertise.”). Whatever may constitute “substantial compliance,” it is not manifested through the

procedural course followed by Mullinnex here.

¶ 18. For these reasons, the trial court abused its discretion in determining, on the record

before it, that Mullinnex exhausted his administrative remedies. As a result, the threshold

requirement of the vicarious-exhaustion doctrine—exhaustion by at least one member of the

class—is unmet. Therefore, the question of whether the doctrine is appropriately applied in this

jurisdiction is not properly before us. And because we determine that the courts are thus without

subject-matter jurisdiction, we do not reach defendants’ challenges to the merits of the trial court’s

class certification.7

Reversed.

FOR THE COURT:

Associate Justice

7
However, we note that plaintiffs may also seek relief in the nature of declaratory
judgment, which allows a party to seek judicial determination of “[t]he validity or applicability of
a rule,” and “may be rendered whether or not the plaintiff has requested the agency to pass upon
the validity or applicability of the rule in question.” 3 V.S.A. § 807.
13