s and we are asking for this court to vacate the board's decision on several grounds i would like to start with our due process argument in terms of the structural bias that is associated with the current funding and payment system associated with the initial decision making a proceeding counsel before you get to due process under the fair constitutional avoidance if there's another way to resolve this case we ought to do so correct judge moore there is that concern about constitutional as avoidance but that doctrine applies primarily in cases where the court is being asked to invalidate a statute as being contrary to the constitution in this particular case that is not what we're asking what we're asking counsel you know you're asking us to declare something unconstitutional is that correct more correct we're asking that the internal agency procedures that have been implemented here are in violation of the due process clause of the constitution so in that respect yes in terms of your initial asking us to render unconstitutional an internal agency procedure as opposed to rendering unconstitutional statute your honor i don't have any available at the moment i'm happy to supplement after presented in this case that would allow us to vacate them or man without reaching to constitute a new constitution i think perhaps you're correct and i say when you're asking a question i wasn't thinking in terms at that angle of our arguments i understand my colleagues on the other side has presented that argument there is merit to that so to the extent that the court would decide that based on the current application of this court's arthur x decision that this case can be decided remanded to the board and then avoid the due process argument i believe that you are correct i don't have said before i don't have authority one way or the other the difficulty with that i believe is that it leaves the due process argument suggested to be fair they have suggested that the case can be remanded under authoress so we don't necessarily disagree with that but in terms of deciding the due process argument it leaves that an open question  when gordon gould great raised questions about the re exam process and the two tiered payment system associated with that and the court in path less noted that there was merit in some of the concerns expressed by goals and when that was remanded and so we have a situation where a panel made a decision one way and they the panel decided that the case should not be institute and that's an example where you have the chief a p j who is essentially wearing the two halfs that's similar to a situation the supreme court identified in ward versus villages might row and watched and what  and running that pete had as a business unit within an agency that is run as a business and this is one of the key distinction that makes this case one both unique compared to the other precedent that have been decided both by the supreme court and other regional circuit courts and it also distinguishes this case from how the court dealt with the p t s process and the rigs and process in  the revenue associated with the institution decisionmaking which accounts for forty percent of the p c s a budget and twenty five percent of the piece has overall budget and when we look at those percentages apple case the court decided the standing issue that wasn't raised below the waiver is somewhat prudential when it's a legal issue and there are no disputes of fact the court has no legal issue it's a constitutional issue you think that there's a difference there an inductive constitutional avoidance would i think suggest we ought not to decide a constitutional issue raised for the st time on appeal judge moore i won't disagree that that's where different from what happened in arthur s itself and this is this a case in which had the issue been raised to the board and you filed a brief to the board which you know got sent up the chain to the chief a p j and to the director and they looked at it could anybody have done anything to  the what you say is a constitutional biasing effect from the institution decision in your particular case or do you think that that it's hands that all of those official hands were tied and they couldn't do anything about it which is not an insignificant aspect of why we decided the our strict judge toronto i so i'll answer your question in two ways from no institutional bias i also question whether there be any availability to run the issue up the chain as you say and if that were the case that would actually only amplifier concerns  that they would they would or could fix it within the context of any particular c d n proceeding or ai proceeding i think those are two different issues from a practical standpoint this would involve a a more elaborate evaluation of what sort of funding mechanism or what sort of decisional apparatus to be in place that satisfies due process but at the same time ensuring that there isn't an institutional bias side one way or the going to ask you also to tell us briefly about the forum selection issue so please continue thank you judge newman so what i would say is that the  can fix it we believe that a fifty six dollars said and the best way would be through perhaps to some rule making process we haven't provided a solution to it to the current problem perhaps it could dividing the decision making between and putting a wall between a pj's who decide the institution decision versus deciding the merits of the final written decision so yes we agree that the p p o in the agency can fix it but we disagree that there would be any way either practically or legally to fix it within the context of an ag proceeding and then rip one last point on your being submitted to the actual injury the constitutional injury is the fact that your client your proceeding is submitted to an adjudicator who has potential bias so can i can i just can i just pursue that on just  for eleven more minute just elaborate for me on how this works if there is a bias by decision makers at least maybe the initial decision makers in favor of saying yes to the institution question as opposed to no do i understand your theory is that that is because somehow they or others in a position to influence them get more money if they say yes rather than no and wouldn't that require a comparison of what they or the  other powers that be would be doing if if they said no and moved on to other matters in front of the office isn't your argument dependent on some kind of comparison like that which i don't see remember seeing any demonstration of if if if if there's plenty of business to go around and they don't do the trial as it's called they would be doing something else how do we know that's relevant people make less money if they do something else instead of going on to the final written decision chance to run through i think your question touches a little bit about haven't argued that you don't think we need to argue but we would argue that that data point suggests that at that time the board felt the need to fill up the pipeline to ensure that there was work for the a p chase now i'll also offer this currently the counterfactual and that the facts don't necessarily we haven't gotten there yet but take for example a situation where and my colleagues on the other side explain that institution rates are declining and we don't disagree with that but if we get to the point that institution rates are declining so much whereby customers like the p t o customer stop using this process that will be problematic and that it goes more to the structure of but is there any is there is there any case in this area either of the any of the three supreme court cases i guess all of  involve mayors and two of them found a problem right and one of them didn't is there is there any case that finds an unconstitutional structural bias not based on an individual empire is there any case like that judge tried to add say that there is no exact point on all fours and given the fact that we have in this case because again the currents funding situation for practical perspective and this is where it becomes important to understand that the issue just not causing bias but the appearance of where the process is unbiased or not here we know for a fact that for the past several years the p t o through the current statutory scheme essentially gets all of the money that it generates through its decisions because congress each year decides that that's a good idea yes correct and that's what congress wanted it to do a structured it so that essentially the revenues that are generated one year become the budget for next year if  the statute says allows the special treasury fund to be spent by the p t o only subject to an appropriation i may not have quite the language the quoting but i thought it's in substance subject to the appropriation otherwise there might be a anti assignment offense being committed correct judge trying to i think i believe you're correct that i don't know if that's the precise language but i believe so why i think i'm remembering right and government can correct me if i'm wrong that government i think has several responses but i think it's the government's view that it is a sufficient response that ultimately congress is in charge of all of this and as long as congress is in charge of all of this the structural bias that was found improper in the two supreme court cases at least just isn't present full stop that everything else is just too attenuated complicated  it wasn't the fact that congress said it was ok if i could if that were really the holding then we could get to the next step where of congress a says anything is ok then you can have a violation of due process but we know that's not correct  what caught with the d c circuit pointed out in particular and in delaware river keeper was that it was too tenuous because the agency essentially had no expectation that they would receive funds if they started granting permits under its authority to raise more money that is not the situation here and here's another important distinction between the two more important things in between  case and delaware river keeper one there was no indication that in that case any of the g d caters war or had the potential to get bonuses based on productivity we do have that here there is also then and that that particular point to get also distinguished i think but let me just let me just ask so i'm part part i guess when i was thinking is something like this and just correct the picture if you look at the individual a p h a p j s they might get bonuses but they're not in any way in charge of the money on the other hand there are two possible people in charge of the money i suppose  problem judge trying to i think it's the last point the nd point about the folks who are in charge of the money not getting bonuses which i think is not quite right with  mayor didn't have any personal financial interest it was the fact that he was wearing two hats and making decisions that would benefit the village council in that case but in our case it's the fact that we have leadership a pj's who are making a juke or adjudicatory decisions and also making decisions about the finances right so board to completely ignore the foreign selection clause and when you read the board's decision both in that initial decision at appendix your page seven and eight and then if you look again it penned except believe it seven seven the board gave zero consideration to the foreign selection class yeah the side doesn't dispute that there was a foreign selection clause you had a side doesn't dispute that they were barred from brin merits of patentability or patten eligibility this is why we take it different from the other cases that this court has decided now if you do decide that the court doesn't have jurisdiction to review that type of dispute and it should be dismissed then we understand but up until this point this court i don't believe has ever gone that far to say that the board and consider the foreign selection clause and what we're saying is that the proper legal analysis again not doing anything with the merits of the likelihood of success on invalidating any claims was that right in turn for valuable consideration we have a problem with a board's analysis when it condones a private parties action that is in essence a breach of that contract in my view i don't see anywhere in the work congress intended to enable a federal agency to then enable have private party to breach a private contract and this is not a question and on that front we see that this case is distinguishable from this court's prior precedent we we haven't seen any case maybe there's a case pending but i'm not aware of any case that has gone so far to say and to authorize the board to completely disregard a form selection cost i understand my colleagues arguments on the other side if the court does come out and agree with my colleague then that will be the law but until now i'm which as i think are noted is waived that whole argument is based on a factual premise that a p j have some kind of incentive to institute when they shouldn't and there is no record here performance reviews take into account the number of decisions that they issue as one of four factors but not the outcome it is not unconstitutional to have a bonus system that rewards people who work hard and do good there's a problem could it potentially be an incredibly widespread problem and not just limited to a few days i guess my question is the way you all do these bonuses for a pj's awfully similar to the way you do it for all the employees that somebody has some kind of incentive because everything an agency does indirectly affect the agency and in some sense the agency staff right and you can always draw some kind of chain of reasoning and agencies would be really hamstrung if it worked that way and that's why the supreme court has looked for a direct substantial particularly lake or really direct control over the finances when what was what was the direct link in ward and then also just so it i don't forget as i was writing down i said you had three things that were sufficient now without a factual record and i got the st two they don't make more money by saying as opposed to they got plenty of work so they  on the one dollar hand that was one person the mayor had executive control and had control over finances is responsible for the finances of the touchstone of this case is really do get decisions so which i gather you don't disagree with there at that that there wasn't a personal enrichment of the mayor why is the what was the mechanism by which the supreme court that the mechanism of  bias for the mayor in that case that isn't present here yes in wards the supreme court said that that mayor who was solely responsible and accountable for the city's finances and was making the decisions he wasn't rich in himself but because of you know it all came down to him he was accountable for the finances that was enough but there are two cases from the supreme court where the mayor wasn't being and rich and on one hand we have ward on the other hand we have to again and that's really our touch there here the mayor and do good and wasn't solely responsible he was a member of a five person board that decided what to do with the money and one of the things the board did with that money was pay his salary and the supreme court said that isn't enough that isn't enough control and this that the something that is good for the agency as a whole is something that has been rejected over and over starting with you again where you know the talent does better with money and the mayor can ask for a future raise that there's more money in a budget also delaware river keeper the d c circuit said you know sure more pipelines might mean more money but it would be consistent with do going to call that a structural due process problem in type the th circuit addressed a case where money went to build agency's depleted insurance funds the th circuit said that's not a problem at heart parking ticket adjudicators got contracts from the director of revenue who would seem to have an incentive to take on revenue there are a lot of these cases rejecting this argument there they're not expecting it the a p j is even the three in leadership roles have nothing like the level of direct control even that was present and do get in where the is they are making as the director does that play a role that is if one just treated the citizens as the directors because the director can withdraw the delegation of any time is a much more complicated scheme than the five person board and do good which we know is that it's not really a surprise given how complicated federal spending is that the start with the form selection clause issue mr dowsett this morning that the board completely ignored the form selection clause that's not true the board analyzed the form selection clause on the terms that new vision argued it which was that the board could not institute the review nowhere anywhere before the board did new vision argue that the board should exercise its discretion to deny the petition that simply wasn't argued i honor respectfully the the jurisdiction of this court is is to review the board's decision and congress in section three hundred and fourteen d d has said institution decisions are not reviewable so putting aside for a nd the merits of the board's analysis of the form selection clause issue as new vision argued it that's simply not appealable at this point that's an institution decision that's not appealable and so i i would push back on your honor's premise that this court is the tribunals in which this issue can be related gaited but again what they're attempting to relive again is something they never even argue to the board they never mentioned a discretionary denial possibility two question well the scope of the form of selection clause issue should be decided by a court competent to review that which would be a district court and specifically the district court that the collateral cases already in front of but i would point out to your honor that at the time in which this underlined the c d s were instituted new vision went back to that court that district court in nevada and they didn't say hey stop what s g i gaming is doing they said please state your proceedings stop what you're doing here in nevada because the board is going to review the patentability issue and that's a more efficient way of doing it that's not what we said it's what new vision said and that's in their opening brief at page thirteen they've requested a stay so your honor is there a method for a patentee like new vision to approach this case differently there may have been back continue please continue thank you there may have been a way for them to handle it and we see an example of that in the the dodo case situation where the party got an injunction  and and in fact the petitioner withdrew the petition but here that's not what happened they didn't go to the district court and seek any relief like that they sought the office a type of relief and your honor just  discretion but do you think that argument really has to be made in every case absolutely absolutely and i'm not making the argument here today judge moore that the board is not aware of its discretion i think any person watching the board's activities is well aware that the board knows that they have discretion the issue is how that discretion should be used and how the board should use so instead of just arguing this was barred they should have said in light of the factors you should just exercise your discretion not to entertain they should have argued what whatever factors they think suggest that this case or that these petition should not have been granted that's exactly what the board requires parties to do n h case in to they tell petitioners to set aside part of your petition and explain to us how we should use our discretion and so the board even if it has discretion party has to tell the board why it is that it would be better for the board to deny than to grant because for example in this case if they said you should deny there would be perhaps arguments that could be made the other way but that wasn't what they said to the board what they said to the board is that it was prevented from instituting only the so your argument is it's really unfair to your clients in particular if we were to entertain this discussion argument because you may well have had arguments to make sort of policy oriented or overall workload oriented or whatever that weren't simply directed to whether it's harder not directed to what a good practice would be easy granting or denying based on discretion and you didn't have an opportunity to make this argument is that right it's more than that your honor is that the board didn't have an opportunity to decide it so there's nothing for this court to review for garlits of what we might have said we don't know what the board would have said we don't know if the board would have said absolutely will deny it or you know we don't think this is ever a discretionary issue we just don't know so yes your honor we couldn't respond to that but more importantly the board couldn't respond to that and that is really the heart of the forfeiture doctrine right is that reviewing tribunals should at least be given the opportunity to make a decision when it's appropriate to do so and so i would submit two things judge moore st there's nothing for this court to review when it comes to discussion because it was never argued and secondly and this brings me back to my initial point this is not a reviewable issue i don't know how this court would even grapple with a review of a discretionary issue and  just from what i can see watching the court it has it has declined every single time to grapple with the scope of the discretion and specifically how it was exercised in any individual case so i don't even begin to know how the court would review a discretionary decision having honor let me respond to a couple of points that my colleague mr kelly said in terms of our request to stay the proceedings in the district court that was a request to partially stay and there's no question that division at the time thought that was the the most efficient route because it lasted partially stay they had proceedings while it went to the board to try to explain to the board that given the foreign selection cause the board should not institute the proceeding so that just a slight clarification that we've made in our brief but in terms of as g s arguments about us waiving in particular our universe having to explain to the board that it has discretion to decide this issue i think you know at worst new visions briefs arguments may have been in artful but there is no question that the thrust of the argument was that given a foreign doing ben harken that purportedly support their side of the argument what i would suggest and emphasized is that how our case is different is that you have leadership a p j who are wearing two hats are in control of a substantial portion of the board's revenues and budget and in this respect this case is probably more like the reasoning that was applied by the  explained that even though none of the judges received any benefit any personal benefit to the fines and fees that were imposed during the court proceedings the judges indirectly that benefit because the funds went through a judicial fund and those funds helped support the judge's staff and courtroom expenses so in this respect is very similar to  is white and police forces can't travel now i will of course acknowledge that those are not federal agency decisions at all and one last point in that of all of the cases that we've reviewed all the case that been raised before this court and in particular you know all of the other agencies and their statutory schemes that are set forth i believe it's in footnote seven and in the p t s brief none of those instances involve a federal agency  that is statutorily structured to operate as a business and that is one element that is critically important here and when then when you see an agency operating as a business the problem is you by business considerations in the private sector there's not a problem with that but in the government sector that raises substantial problems of the appearance of impartiality and this is a does this label has  business do any what concrete work does that do i mean it's kind of a nice help hopeful word from your perspective but it seems to me if by itself doesn't actually say anything is is helpful except for its sound quality which doesn't seem like it's does any work judge trying to i'd respectfully push back a little bit on that because it's much more than a soundbite because it really goes to the flow of money to and from the agency and this is what distinguishes our case from all of the cases that  government does cite that in their view rule against us when you have an agency and particularly when you have the p tab itself running as a business unit the leadership and even the a p js they know that the their finances must balance and that's one thing that particularly distinguishes our case from all the other federal agency cases including delaware riverkeeper with that your honor