What is the test for exhaustion of an affirmative action claim?

Appellants argue the district court acted prematurely by granting relief without requiring appellees to exhaust the administrative remedy available under 41 C.F.R. 60-1.21 Et seq. (1973). These provisions apply to complaints by employers, or applicants for employment, against individual employers for alleged acts of discrimination violating the employer's contractual obligations to the government. ³² Although the complaint in this case alleges such acts as the immediate source of the "distinct and palpable injury" to individual appellees essential to standing, these acts are not the primary target of the litigation. The complaint is directed instead at the ultimate cause of appellees' injury the systematic approval by government officials of affirmative action programs that did not contain the provisions mandated by the regulations to expose and eliminate discriminatory employment practices. Appellees seek a declaration of the standards by which the adequacy of affirmative action plans must be judged and a declaration of the duties of compliance officials in implementing those standards. The administrative procedures to which appellants point are not designed for processing claims of this sort or to provide relief of this scope. With respect to this major aspect of appellees' claim, there was no administrative remedy to be exhausted. Rosado v. Wyman, 397 U.S. 397,

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Moreover, even if the complaint procedures were applicable to appellees' primary claim, we would not reverse because appellees failed formally to exhaust them. This is not a case in which exhaustion of administrative remedies is required by statute as a prerequisite to judicial intervention. As applied here, the requirement that administrative remedies be exhausted is a judicially created doctrine to be employed in the manner that best serves the competing interests of the court, the agency, and the aggrieved individual in the circumstances of the particular case. Montgomery v. Rumsfeld, 572 F.2d 250, 253-54 (9th Cir. 1978). None of the interests served by the exhaustion requirement would be advanced by a reversal in this case.