while legal widow and deemed widow could not concurrently collect benefits, after the legal widow’s mother’s benefits terminated on her remarriage, the deemed widow could collect benefits
How later courts described this case
- while legal widow and deemed widow could not concurrently collect benefits, after the legal widow’s mother’s benefits terminated on her remarriage, the deemed widow could collect benefits
Written by the judges who cited it.
The opinion
*1174 THORNBERRY, Circuit Judge,
dissenting:
I would affirm. Appellant challenged Ethel Stephens’ legal entitlement to mother’s insurance benefits for the first time at oral argument. The argument that Ethel Stephens was not Rushell’s widow at the time Eliza Woodson filed her application was not made at the administrative level. Neither the administrative law judge nor the district court had the opportunity to consider these issues. Nor did the appellee have the opportunity to adduce evidence or offer argument in support of its position. Appellant’s failure to present these theories of recovery at the administrative level or even to the district court prevents this court from considering them for the first time on appeal.
Exhaustion of administrative remedies is a general prerequisite to judicial review of any administrative action. Hedley v. United States, 594 F.2d 1043, 1044 (5th Cir. 1979). The Supreme Court stated long ago that a reviewing court usurps an agency’s function when it sets aside an administrative determination upon a ground not theretofore presented and deprives the agency of an opportunity to consider the matter, make its ruling, and state the reasons for its action. Unemployment Compensation Commission v. Aragon, 329 U.S. 143, 155 , 67 S.Ct. 245, 251 , 91 L.Ed. 136 (1946). As the Court subsequently explained, the basic purpose of the exhaustion doctrine is to allow an administrative agency to perform functions within its special competence: to make a factual record, to apply its expertise, and to correct its own errors. Parisi v. Davidson, 405 U.S. 34, 37 , 92 S.Ct. 815, 818 , 31 L.Ed.2d 17 (1974); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. National Association of Securities Dealers, Inc., 616 F.2d 1363, 1370 (5th Cir. 1980). As a general rule, then, a plaintiff who fails to raise an issue before the administrative agency will be precluded from raising it for the first time on appeal from the agency decision. Beale v. Blount, 461 F.2d 1133, 1140 (5th Cir. 1972); Board of Public Instruction v. Finch, 414 F.2d 1068, 1072 (5th Cir. 1969). See generally 3 K. Davis, Administrative Law Treatise § 20.06 (1958, 1976 Supp. & 1980 Supp.) & cases cited therein.
The rule is flexible, however, and exceptional circumstances might prompt us, where injustice might otherwise result, to consider questions of law that were neither pressed nor passed upon by the court or agency below. Finch, supra, at 1072 . In Finch , we dealt with agency action that was in excess of statutory authority, likely to result in individual injustice, disruptive of the legislative scheme, and contrary to an important public policy extending beyond the rights of the individual litigants. Id. at 1073 . In stark contrast, we here deal with a plaintiff who, after hearings at the administrative and district court level, presents us with a completely new theory of recovery. Neither the law nor the evidence available to plaintiff has changed since the administrative hearings. Rather, plaintiff simply has done some additional homework and now presses a claim that she could have pressed below. In this regard, the case before us is rather unexceptional. Finally, I note that the theory premised on Ethel Stephens’ status at the time Eliza Woodson filed her application was not offered at any level in this case, but was developed and considered by this court with neither guidance from the litigants nor the benefit of agency expertise.
Because I find the agency’s action to be supported by substantial evidence on the record as a whole, I would affirm the judgment of the court below.