Torquemada Meets KAFKA: The Misapplication of the Issue Exhaustion Doctrine to Inquisitorial Administrative Proceedings

Abstract

A new development in administrative law threatens to undermine the judicial review rights of benefactory agency claimants, including thousands of disabled and elderly claimants of the Social Security Administration (SSA). In the past fours years, virtually every court of appeals has significantly limited SSA claimants' judicial review rights by refusing to consider issues asserted in court that have not been specifically raised in the previous inquisitorial SSA proceedings. This Article argues that the courts have heedlessly adapted this formal doctrine to informal inquisitorial benefactory agency proceedings. None of the recognized prudential justifications for administrative exhaustion is adequately served in this context. In additions, the agency fails to provided adequate notice and the meaningful opportunity to claimants to raise and preserve issues and arguments in the mass-justice oriented administrative proceedings, in contravention of applicable equitable and procedural due process principles. the Article concludes that issue exhaustion is doctrinally and functionally incompatible with the SSA's inquisitorial model and operating reality and it urges the courts to reject the doctrine's application to SSA proceedings.