good morning your honor my name is scott claus i represent america u haul international an office for life insurance company were here today because my clients were tried in absentia for fifteen days in an unfair labor practice proceeding before an administrative law judge the government provided my clients no opportunity to be present during the fifteen days of a trial during  april twenty seventh two thousand and four the administrative law judge issued a categorical order refusing the new respondents the ability to recall witnesses previously called  entered on i'll give you the record cite your honor if i could in a moment the administrative law judge entered an order denying my clients the opportunity to recall witnesses previously cal thousand and four that comment was made and that highlights the reason why both the general counsel and the a l j acted so egregiously in denying my client's due process rights and it second day and the judge quoted contingent upon the nuvi added respondents being permitted to recall and cross examine witnesses being permitted to object to any evidence already introduced and being permitted to object to any testimony already a deuced that was the legal predicate on which the a l j added my clients to a fifteen day day hearing on april twenty seventh two thousand  to record for seventy seven and i'll read it for you ok two thousand and four right everybody exactly your honor that is what he said we would have that right but then when he reduced his order to writing on april twenty seventh two thousand and four he stated that the respondents motion to recall previous witnesses the right to object to evidence already introduced and the right to object to previous ruling addressed that is absolutely not to your i see your you make that point the real issue here is whether that even remotely matters if the pragmatic reality is that the trial judge's factual and credibility determinations are to retrieve oblique tainted by evidence that was a deuced while my clients were not present for sure if that's that is what the courts that the a legion of courts have recognized that when fundamental constitutional issues more fundamental constitutional rights are deprived there is always an issue and the issue is always now as the court you know what let's not exaggerate i don't like nobody's talking about denying judicial review or preserving constitutional rights the question and the only question in this case is when this court has jurisdiction to consider and that answer is provided and ample authority your honor there are issue of the constitutionality of the national labor relations act was at issue with the court the constitutionality of the act itself therefore when miers talked about constitutional questions it talked about the constitutionality of the act itself justice brandeis in his opinion explicitly recognized that miers was not a case where there were procedural constitutional irregularities that were an issue argument as to why now on record evidence attached to a motion did not unfairly and unjustly i'm using your words influence the determination of the judge  that at the end of the first week he said this has been and i'm using his words it's in the record a call also a waste of my time i have not heard a single piece of evidence having to do with the government's prime official case i have not heard anything about union activities authorisation cards and i missed knowledge nothing this evidence may at some point in time appear to me to be germ main but at this point in time it has been a colossal waste of my time that is because to the bewilderment of everyone except for the general counsel my clients liability as a single employer single integrated business enterprise or joint venture was actually tried in my client's presence and that's why i said there is no effective judicial review the courts are legion in their recognition that the motion influenced a trial or of fact then fifteen days of trial thirty witnesses over a thousand pages of documents very evidence could not half but influenced the credibility determinations of the administrative law judge and the factual findings of the administrative law judge which are effectively beyond judicial review to answer your question previously your honor it is not district court cases that of pennsylvania on which we rely we rely primarily on favors doubts i recognize that is the second circuit case however fay has been recognized in this court three times in section says downs does not require the analytical step that lead in versus kind requires favor says downs permits the district court to enjoin an unfair labor practice proceeding when the board the fact of the matter is your honor that my client's rights were substantively substantially and egregiously deprived during the proceeding evidence was taken without my client's being there i want to go back to your april twenty seventh thing i think you have not fairly characterized what the judge said there was that you have the right to recall specific relevant witnesses but then they sentence that you alluded to here's what it really said respondents motion to recall all previous witnesses their right to object to all evidence already introduced and the right to object to  previous rulings of the judges do not will that was ridiculous to us to even ask for that the judge said you could recall relevant witnesses if they weren't but you were asking to recall every single witness object to every piece of people come in to cases like they are stuck with the record they have the right to reopen specific positions on a showing of need it's a case by case thing relevant with this is or determined case by case they go back to me go back and take  say to my point about the april twenty seventh the judge simply denied you being able to reopen everything and in making that denial the judge not only if mr ray did his prior order that's not true he said you were asked to do everything all over again he said not you can do limited things all over again if you show a leak why don't you show the he also ignored the bork precedent that served as his legal authority and granting them a trial amendment required explicitly what we asked for the rights to objects to all evidence that was entered introduced the right to object to all testimony that was already introduced he relied on that legal precedent in granting made trial consolidation he then ignored the very precedent on which he relied that is the answer to your question that current you're saying that the kiko decision by the board said that you had the point even if this happened in the united states district court you can't just pop up here say look the district judge just made an outrageous evidentiary call  depriving me of the right to cross examine or object or do whatever to witnesses you can't do things that you can at the end of the day come up here in say this trial stinks and we will either agree or disagree but we're not objecting to an evidentiary ruling your honor where objecting to the deprivation of our fundamental do process rights which include notice and a fair hearing we weren't given any notice that our rights were being adjudicated one good sensible reason why you cannot take chief redress for all of the ills that you my question is can you tell me why you cannot get full redress for all of the ills that you believe have been inflicted on your client at the end of the day titian for review of the left at our peril to parse the record to to show what findings were made by contaminated improper evidentiary record and what are reasons i can think of to wait until the end of the day you've got a partial record in order to show you've had a violation of your constitutional rights thirty one and a half minutes ago you were asserting that the constitution was going to come down on our hands this very minute if we didn't let you  and the entities you represent absolutely or the incentive is they're focusing on unfair labor practices that are contained in a charge and made in a complaint they're not they have no earthly idea that issues of single employer single integrated enterprise in joint venture which which require a completely unrelated evidentiary showing are going to be tried and and you have a couple of nevada does miers he said that at the time of myers that the constitutionality of the act was still in question and if you look back judge in laughlin which found the at times three tional had already been decided by the time miers was decided miers in fact cites to was the case in myers or if you speciously attack the constitutionality then you have to wait through the entire administrative proceeding and wait till you get your ten s review but what he's saying is do if you have a much more common question about that for the record of what's happening in the administrative case here has been fully briefed before the board there is a motion pending to reopen the record that has not been decided but all the briefs are in and it's waiting decision by the board and we'll certainly notify the court as soon as of the proceeding