court and the social security administration have recognized that constitutional issues are beyond the agency's power to decide and nd no statute regulation or precedent requires agency exhaustion of constitutional issues in social security case supreme court has said that courts must remain sensitive to the differences that marked the social security act and that congress wanted more oversight by courts in this context not less the supreme court has thus ruled the time and again the constitutional claims relief so that key words timely then they go ahead and define timely in the next two or three sentences by saying lucio made a timely challenged person there i can testing it before the commission securities exchange commission so doesn't that pretty much indicate that we should say it's got to be brought up sometime as you know so skewed a several layers some time before so security i don't believe so your honor and allow me to address that you know up front in the cio as you pointed out the court said the claim was timely because it was raised to the board now here we don't have the board we have the social security commissioner but we have th st that's correct your honor and then that leads to the nd important distinction which is that in the securities and exchange law there is an explicit congregational requirement of agency exhaustion it says that no court may consider any issue not race to the board that does not exist under any statute regulation or precedent that applies to social security litigation if such a statute did exist then that would contravene numerous supreme court precedents that have allowed constitutional notwithstanding the absence of a prior four or five b hearing where the claimants challenge the decision on constitutional grounds and the the court the reason the court gave for that is because constitutional questions obviously are unsuited to resolution appointments and eliminate these claims i don't believe so your honor and here's the reason why it's a little bit complicated but i'll try to walk the court through it is a problem that existed with respect to social security jason other agency l j was not just a question of agency staff appointing these judges it was also a problem of these appointments being subject to another government departments review the aphex of personnel management under the essentially had control over how these elders were being picked and they gave a select number of choices in the said you can choose from this crisis you can choose from anything else that was a problem the edges were part of the competitive service and  federal statute allows him to do that it then became possible for the commissioner social security to ratify the appointments as a commission i understand that but if one hundred thousand people had filed these claims couldn't the are or the social security claimants as to whether or not the commissioner felt like he was going to do that or not and as it turned tucker case a that's one reason for this kind of requirement that it puts you on notice of the risk of proceeding without substantial changes in the current administrative review system at the behest of a single aid recipient raising a constitutional challenge in an adjudicator context the secretary would not be required even to consider a constitutional challenge now i understand your point if one hundred thousand claimants are coming and saying we want to raise these claims maybe that might change the equation but then look at the social security administration emergency messages in those messages they were anticipating that these claims might be made and they weren't saying well we better ratify these appointments they were claimants and i believe weinberger was a class action lawsuit those claimants were not required to exhaust their claims for the agency before raising them in district court and i think i said is it one litmus test where that the agency can change it or not yes it is your have to be the one to change it because the president has allocated the authority to remove or make exemptions to the competitive service under the federal statutes present that that's true you're a bit but that raises some other problems in terms of the fact that for a significant period v the president there are other complicating factors involved here and i appreciate the point that the court is trying to get at but i think the bottom line question is what and social security claimants under a claimant protective statute what's their reasonable to i want to say is goodness gracious were were struck at this says they have to exhaust claims all the time so you got to help me on that sure i'd be happy to and i believe you might be referring to the andersen versus barnhart case which the government which said that any claim not raised to the national labor relations board cannot be regulated by a court again we don't have a statute like that here so i think that's an easy way to distinguish rocco another way to do it is on the  distinguished social security claims in the case by emphasizing that when you're talking about adversarial litigation the interests in administrative exhaustion are at their highest because you have two sides fighting it out and you need to put up with the other side unfair notice that social security litigation is not an adversarial inquisitorial it's meant to provide as much of a benefit of the doubt to the claimant as possible and that's a very different situation than what you see in rocco and then speaking to kind of cases like andersen versus barnhart in those cases what the court was dealing with is a type of objection that could be made to l j decisions and the objection is one where you can essentially saying that the l g decision is wrong because the l g failed to develop the record in a particular way and under the facts of that case the court said well you didn't raise it at the hearing you didn't raise it in your benefits application in terms of this basis for disability therefore written to find that the l g didn't have a duty to develop it so respond to but and this is the key thing in later cases the supreme court for example i'm sorry this court in cases like mas are sad there's no bright line rule that attaches to that principle you have to take it on a case by case basis and there may be circumstances where an l j has to step in  meant to be claimant friendly and while i appreciate kind of the the court's concern that you do want issues to be raised i think there's another way of looking at this and that is if you impose an issue exhaustion rule you're going to be stripping of claimant friendly procedures from hundreds of thousands of cases going forward these are going to become trials to the extent constitutional issues are in play and that's going to cause a lot more problems and a lot more headaches for  process and i don't think that forsaking say the one hundred or so cases that might in theory raise that appointments cause claim to create that problem going forward makes a lot of sense you think so i think that the procedures turning into a trial that's completely incompatible with what social security litigation supposed to be it might be a decision your honor but it's also not a decision that's consistent with the jurisdiction that social security l g s exercise said on matthew's against elders and why were you on sol feet does it matter of you think that the discussion there about constitutional claims came in the context of whether four or five g precluded jurisdiction  congressional statute that allows the appointment of inferior officers by the head of a department so clearly the commissioner of s s a does have a constitutional and statutory authority to appoint a whole chase no i think he was saying unless the president and he examined the people from this opium process the commissioner was constrained i don't i don't understand that's me a separate claim that they were raising but if even if that is a separate claim the supreme court's recognized at least in one case  noted was in that case the interstate commerce commission i believe it was had already educated five thousand dollars cases which would all be vulnerable to attack if we didn't adhere to the normal rules of forfeiture the stakes are considerably higher there are hundred redo now that works to the detriment of claimants who are currently awaiting their st l j hearing and there are hundreds of thousands of that sort of parade of horribles argument i don't think it's a prayer of parables iran or us seen hundreds of these claim when they came to district court it wasn't in their complaint and obviously the district court had authority to rule on that claim it was only after they had received an adverse a term nation from a magistrate judge and after the supreme court had ruled on this issue with respect to the district court and to the extent that you're worrying about futility before the agency i don't think that's appropriate either the commissioner as we said clearly has the authority to appoint the sale jase and to the extent that claimants were actually raising this claim before the agency  case where somebody tried to sue and district court raising this argument and that was interesting proper for a variety of reasons but it's not like the claim was unavailable it could be made and the agency had the power to correct it and i think that's what the futility analysis goes to and why it doesn't and there was a case where some people had been fired from federal employment because they didn't register for the draft and they so you say the other matthews and so forth are four or five g cases whereas this is while well so those are consider what the supreme court said is we will assume that i must be cannot consider that claim because it's a facial constitutional attack nevertheless you have to go through those administrative proceedings and race and preserve that claim for judicial review decide other things that are related to you you can receive meaningful judicial review and analyze that under address section a framework under up previous supreme court case called thunder basin but so the extent that you think matthew says any relevance at all we think that's been overtaken by the supreme court later decision and elton and just to the extent that they say i think what if we don't think elgin's really on point with matthews well if you don't think that i'm fluent and you think that there are some sort of i guess claim that you need to preserve for judicial review you have to raise it before the agency and when you don't do that then it's not properly before the court to mean that there are some extraordinary circumstances that make something a really rare case where we might want to but again plaintiffs here haven't identified anything about their cases that's particularly rare what they've said is that we had cases that were judicata by an l j not appointed by the commissioner therefore you should excuse for future and that clearly isn't a case that applies to two very simple points up front st the government wants to play mix and match with statutes i'm talking about l a tucker i'm talking about elgin and talking about rocco those are different statutory schemes they're not social security litigation standards from these other statutes into social security that again it's actually risking creating more problems the very problems that it parades in front of the court as a horrible here rather than solving problems but then going to the government's other point which is  horrible there are hundreds of thousands of cases that will have to be redone if you excuse if you find that there's no forfeiture rule here that's not true there is we're not advocating a blanket rule where essentially working within the system as exists and sex you have to have an asserted apartments cost claim and not all of these cases joe and if you look at the numbers that the social security administration post and the website for some of these decisions i mean one of the elders in these cases judge sandra one hundred and one denials over a