we'll hear argument next think a seventeen sixteen zero six smith versus barry though mr kimberly mr chief justice may have pleased the court the appeals council's decision in this case dismissing petitioners request for review as untimely was a final decision on his request for benefits it brought the administrative review process to a close after the appeals council's decision there was nothing left for the agency to do and the agency's denial of benefits became conclusive and binding now the form and substance of the peals council's decision in this case was a determination that petitioner by filing his application excuse me by filing his request for review out of time had failed to exhaust his administrative remedies and the question presented in this case is whether the district court has authority under section four hundred five g to review that decision it did the question of exhaustion ordinarily arises as a threshold matter as an affirmative defense in any case challenging agency action as this court held in jones against bok if the government is not inclined to waive the appeals council's determination that a claimant failed to file a timely request for review the government is free to raise it as an affirmative defense and the district court in turn of course has the authority to resolve the merits of that affirmative defense to either sustain or overruled the government's r understanding of the words after a hearing are that they embody a exhaustion requirement and that the best reading of the word appearing in section four or five g is to give it the same meaning that it has in section four o five the one which is a hearing before and in ministry of law judge and of course that is not a bar to review in this case because petitioner had such a hearing now amicus is contrary position is that the district court in this case was required simply to take the appeals counsel's word for it that he had filed his request for review out of time and that upon the government's raising of that affirmative defense the district court was to reflectively dismiss the case without considering at all whether the appeals c decision was correct well it's not take his word for it it's that there is no judicial review and if there is no judicial review that's that's the end of it that's not necessarily agreeing or disagreeing that's appreciating the fact that the legislature has precluded review well the legislature i think that would be a departure from this court's cases indicating that there is a strong presumption in favor of judicial review with the kordell on that yes there's a normally a presumption but surely here the presumption is at least  out of the picture it's not overturned because you have a situation where congress in general said no review under four or five it's not the typical case that you get review in this situation so that ought to be enough to eliminate the presumption  i don't think that's the right way of looking at four o five each year and i think what congress was attempting to do with four hundred five age was make clear that the sole avenue for review of final decisions by the commission of social security is a complaint filed under section four zero five g as to the scope of for over five g i think the presumption in favor of judicial review of course applies any decision that is fairly characterized as a decision of the commissioner of social security made after hearing ought to be subject to review and that's particularly in light of congress's use of the word any in front a final decision it does not limit it to any particular kind of decision it is not limited to decisions on the merits versus decisions based on procedural default says any final decision and as the court said in mock mining and michigan academy in order to construe for over five g as depriving court some of their traditional role as overseers of agency action in circumstances like these there would have to be a clear statement on the face of for all five g itself that that was what congress intended and there is no such clear statement on the text here indeed the word final as it appears we think covers this case is a matter of covers the appeals council's decision in this case is a matter of plain text the dictionary that seems to me manco back to my question i'm trying to see the difference between you and the government are trying to understand it the government's p appears really straightforward to me they think the scope of the courtroom be you should be limited to the ground on which the appeal was dismissed on tiling this and presumably they would say was there substantial evidence for the appellate court's decision to dismiss on timeliness but i have a sense that you're arguing for a different kind to review that your are you arguing that it's not just on the on timeliness question but it's on the substance question of whether or not are the merits of your of your appeal was right we accept that if the government does not waive the question of exhaustion of administrative remedies that the threshold issue has to be judicial review of the appeals council's determination on timeliness in particular but for henson and so a me that we were to find that the court was wrong on that but if we say the court was right nobody goes any further correct on the merits of the appeals price determination if the court says you didn't i  think was on a timely that ends the matter that's right your honor so you now if we were to hold the opposite that this wasn't timely who would decide the merits of the substance of whether what you argued was right on the merits i think looking at the fourth sentence of four o five g it would be in the district courts discretion to reach the merits after overruling the appeal skipping over the appeals council when the regime that set out is to be a j you go to the appeals council i think if one thing to say the appeals council was wrong in saying this was  merits in any case in which the question presented here arises the question is whether if upon a reversal of the appeals council's determination that what i mean i meant i misspoke i meant the appeals council the you consider the merits of the case i think what we're urging is that it would be in the district court's discretion and i think that follows in a lock to believe from the fourth sentence of section four hundred five g which appears midway through the page on page five a of the government's brief and if i could i'll just very briefly read that sentence it says the court shall have the power to enter upon the pleadings and transcript of the record a judgment affirming modifying or reversing the decision of the commissioner of social security with or without remanding the cause for rehearing we think that is a clear textual rejection of the basic general rule but i want to stress that i don't think there's actually a lot of daylight between our position and the government's position on this score because as a practical matter in the eleventh circuit where the rule that we advocate has been governed for nearly the last forty years district courts generally do re manned back to the appeals council when and if they determine that the  peals council made a mistake in dismissing the request for review as untimely and certainly there would be nothing in the text of the statute or our way of viewing this case that would prevent the district courts from doing that our point is simply that the government certainly for example could waive the question whether the petitioner had exhausted his administrative remedies and if he did waive that question surely the district court would have the authority to move on to the merits of the case just as it would if it found that some equitable exception to exhaustion had applied as the court did in eldridge and city of bowen so our position is only that it would be a matter of of discretion for the district court but i want to stress that the position that we take on the merits of the question presented really is fundamentally the same as the position that the government takes our view is that the decision by the appeals council that a claimant has failed to file a timely request for of you must be reviewable under section four zero five g b by a  district and that to find otherwise would require the court to find that there is a clear statement on the face of four hundred five g pointing the court in a different direction divesting the courts and their traditional authority as overseers of agency action there is no clear statement on the face of four or five g to that effect your clear statement is simply the reiteration of your presumption of review ability point that's right and indeed your honor the presumption of review ability recognized for terms ago in mark mining and before that an admission that michigan academy is not merely a tie breaking canon it is a clear statement will and absent a clear statement the court has held that there must be judicial review because congress has prerogative alone to exercise its discretion to divest courts of their traditional role as overseers of agency action and unless it does so in a clear statement congress must be presumed to have intended to do this is a sort of strange face because it's not that congress has chosen to divest the courts of total review it told us we had a preview in in a circumstance and so the question is basically dictate to us the answer to that question well i don't think that the agency can dictate to this court the answer to the question whether there is judicial review exactly or what the final judgment means well i and our view on that score is the agency of course has the authority to issue the rules and regulations that it deems necessary for a fair an official resolution of the claims before without question it has the authority to say when it's done it does not have the authority to dictate whether there is can judicial review of his decision when it is done and when that process is concluded thank you should mr chief justice and may please the court the social security appeals council dismissal order in this case was a final decision because it marked the agency's last word on petitioners application for this existed if you believe that is the government instructing its line attorneys to waive exhaustion of remedies in all appeals from timeliness to let us yes during the pendency of this of until this court rules in this case we are as we described in our brief in our opening brief we are no longer notifying claimants who receive an untimely dismissed a dismissal from timeliness from the appeals council that they cannot seek judicial review and where the cases are going to litigation the department of justice is no longer invok that so that rule why don't you just continue doing that irrespective of what we do should we have granted to here just in this case where you are there is a entrenched long standing division circuits on the question whether the existing regulation of mood at this mooted the split well per your action your honor again the the court granted the petition in order to resolve the disagreement among the courts of appeals on the question whether the agency's regulation which was published through notice and comment while making is a reasonable interpretation of the statute now we believe the case you know we know we question on which the courts are divided is whether the existing regulation is a reasonable one we submit that the answer to that question is no again because the plain text of the statute under the plain meaning of final it the agency's decision was conclusive the agency has no more work to do and the agency held a hearing in and before an administrative law judge on petitioners application for social security going to shoot your view is simply that requirement made after he is purely chronological doesn't have anything to do with the basis of analogy at all well i think i would say two things about that mr chief justice the first is that it is chronological in the sense that there is a reference to a hearing in section four or five be one four or five shows your honor mention in four or five g and we think it means the same thing in all three places which is that the basic unit of decision by which this agency resolved resolves claims for benefits is an l g hearing but i don't think that i would that it's quite right to say that it has nothing to do with finality i think as the court has said insall feeney in eldridge and in city of new york the phrase final decision after hearing in section four o five g refers to the requirement that the claimant must  fully exhaust his administrative remedies before a court reviews his entitle me to benefits and we fundamentally agree with that proposition this case is not about whether petitioner is required to complete the entire administrative process and exhaust he is but the question the basis for the social security administration's decision in its final decision in this case was a determination that he had failed to complete the administrative process and that is a type of determination that courts review pursuant to a wide range of statutes that just like this one require a court to have undertake judicial review only after the agency gives its final decision we decided to see if i could just understand your position reconsideration what would happen then according to the government so that was one thing that i think is clear and one thing that is a little bit more difficult to clear thing is that the claimant in that case would absolutely be required to continue to pursue the administrative process to essentially appeal up the chain the question of timeliness he would be required to go seek a hearing and seek review from the appeals council on the question whether he had in fact ok so but let's say he did that but in none of these steps is he ever granted a hearing because nobody needs a hearing to decide whether your filing was timely or not so then what so i think that's a more difficult case than this one that the court doesn't have to resolve today i think the right way to think about the problem is probably this court's decision in salvi and i think that the logic of the court's decision in that case is that where the agency has reasonably determined that it doesn't need a hearing in order to make a final decision on a particular issue then the after hearing requirement is not a barrier to judicial review but i guess i myself is a constitutional avoidance cases and in part your honor the courts are the but the court is is i think quite consciously addressing the reason why do you disha review in that case was consistent with its understanding of the final decision and after hearing i think the court said a similar thing in bowen against city of new york which was not about a constitutional claim that was an allegation that the agency had failed to properly apply its own regulation and i think that's the essential feature of the claimant's claim in this case that the agency made a mistake in applying its timeliness right that that does seem to read out the maid after hearing from the statute so your honor again i think that the reason why after a hearing is in four or five g it's because it's also in four or five eight and it's in four or five b one four zero five b one is the basic instruction to the agency to hold a hearing in order to make a decision and so the statute then says because the agency typically needs to hold a hearing in order to make a decision judicial review is available for a final decision after a hearing i think it holds together in the ordinary course what i think s eldridge and sit if new york recognized us that there may be occasional cases where the agency resolves a particular question but doesn't feel it's necessary to hold a hearing and in that case there is at least a strong claim for judicial re one when it refers to a hearing it's talking about an ale jay hearing we had a nail g hearing in this case and so that's fine i think the problem with the emmett kiss his argument is that it would mean that appeals council decisions of which there are approximately twenty two thousand every year are never reviewable and that simply would not make any sense because the appeals council virtually never holds a hearing that they decide cases typically on the papers and so i just don't think that is consistent with the statutory that's been set up i also agree with my friend mr kimberly that i don't think the predictions by the amica us of a sort of flood of claims on the federal courts have been borne out that certainly hasn't been the experience of the eleventh circuit going forward there's likely to be even fewer of these type of disputes because as of two thousand and eighteen so after the proceedings that issue in this case but as of two thousand and eighteen the administration authorizes e file ing and that generates an electronic receipt so the type of disputes about post marks and when something was submitted we expect there to be fewer of those in the future you portray this is a straightforward question of statutory interpretation correct that's right you're on the government's been on the opposite side of this for a long time or an explanation for that your honor we take the text of the statute very seriously and we had occasion once the seventh circuit weighed in on the other side of the split two to reconsider the question and we had occasion when the petition for writ of certiorari was filed in this case to to think very seriously about the question and we became convinced the the statutory text is plain and dictates the result and moreover that the reasons that have been offered by the various circuits on the other made after hearing well that could be read as saying that the final decisions that are reviewable are final decisions that had something to do with hearing some kind of relationship but that mean that would mean  a decision that is made solely on procedural grounds and those procedural grounds relates soley to the appeals process does not fall within the statute that's a possible reading so so so your sponsor that is what i think it's inconsistent with the court's decisions in selfie in eldridge and in city of new york all of which have said that the way to read this statute for a five g is as a wave of  exhaustion of remedies requirement and in all three cases the court authorized judicial review of a question that had not been before the a l j as part of the disability proceeding i'm glad you brought up sanders your honor which is obviously the sort of the but sanders is really about a fundamentally different procedure a reopening is something that is entirely unaddressed by the statute and any time a claimant is seeking to reopen a claim he will have received the one opportunity for judicial review that the statute guarantees and i do want for the court to hold that at that time if if that were the decision of the district court the only appropriate remedy is to remain and the court should not just simply skip over the appeals council and proceed to decide the question there's three basic reasons the first is that we think it's compelled by this court's decision the wringer which holds that where a claimant has a viable path to pursue relief in the agency exhaustion will not be excused and that would be exactly petitioner situation he could go back to the appeals counsel and attempt to assert the grounds of  that he has we also think that's consistent with this court's entire body of precedent starting from chattering and we think it's also consistent with selfie which recognized that one critical feature of exhaustion is to enable the agency to compile a record that is adequate for judicial review that's exactly what the appeals council exists to do under the court to look at twenty six which is petitioners request for appeals council review he says the problem i have with the l g decision is that it was based on an incomplete record that's exactly the type of question where the appeals council can bring its house expertise to bear and until it does so this court is really not well suited to undertake the substantial evidence for a view that applies to mr kimberly referenced the fourth sentence of section four of five g the court's power to affirm reverse or modify the agency's decision that's not an unusual formulation there are other statutes that have the same tax the f t c act fifteen u s code forty five c authorizes the same thing but this court is the a court as a general matter has the authority in a case to affirm modify or reverse the decision but the principle of shiner e is that it would be an abuse of that discretion to simply skip over the administrative process and substitute a decision that congress has assigned to the agency for a decision made by a court in an in a more ordinary case where the entire administrative process was borne out and the appeals the agency has no more work to do it would be appropriate for a court potentially to modify or modify the decision but in this case where the the principle of china is that the agency's decision has to be judged on the rationale that the agency gave and so for all those reasons we would urge the court to hold the judicial review is authorized in this case but to make clear that it must be limited only to the rationale that the agency gave for its decision thank you thank you counsel mr chief justice and may it please the court in the way that section four o five g has successfully cabin judicial review for eight decades for the more than a dozen massive claims processes to which it now applies is to limit traditional review not just to any final agency action but to a particular kind of action each of the words a final decision of the commission are made after a hearing and especially those last four words needs to be read together rather than in isolation because each word qualifies and modifies the kind of action in question in s s i cases like this one under title sixteen of the social security act section four zero five g guarantees judicial review only for disputes over the eligibility or the amount of welfare benefits the matters on which the social security at itself requires a hearing and a final determination not on procedures afforded under the agency's regulations so the key words to start with i think are the ones that the chief justice justice kagan and justice briar have all asked about which are after hearing and i think the parties interpretation comes perilously close to reading either reading the words out of the statute or reading them so that there isn't really any plausible relationship between the decision and the end there after hearing requirement and i think actually congress chose those words carefully and they meant there to be a relationship  tribunals on the case it has spoken in the last word is generally considered a final decision so before we get to your after hearing do you agree that this determination to think even if you set aside after hearing you still have the words final decision of the commissioner and i think that does some work here because one way to think about this is the way that cases come to this court from the state courts under twelve fifty seven so if you have an intermediate state court decision the petitioner has to first go to the state supreme court and find out file a timely petition and only when they do that if the if the state court says we're not taking the case right that then becomes the final decision of the state court system  comes here and the way that the social security process works is similar when the appeals council denies review that becomes the final decision so that the the statute delegates to the social security administration the ability to determine when it produces a final decision of the komisarek hoped that that's a somewhat awkward way of putting it in my mind certainly the agency has the full power under the act to say what steps the individual has to take to exhaust their process but that seems to feel substantially different to me then it having the final word of whether someone has actually followed that process or not and this comes perilously close to reading the words final judgment out of the a and saying that the agency can tell us what that means it may tell us how to exhaust its processes but i don't think it can tell us what constitutes the exhaustion of that process let me give you the extreme hypothetical let's say the agency here had said they presented us with  proof of mailing that consisted of stamped by the post office but we've never seen that stamp before so we're not going to believe it and the  petitioner says i want to a court because that's ridiculous you know the stamp is brings us all sorts of crew presents the agency with all sorts of proof that this is actually a stamp by the post office you would actually the solicitor general's analogy and since vs outfall that's the way they describe the way this works and i think this court has said repeatedly most recently in sims versus apple that the word final decision isn't fully defined by the statute and it leaves to the agency the ability to flesh out the process so i think this court has always recognized that the agency gets to decide how it produces a final decision of the commission and i'll grant you justice sotomayor that in the typical exhaustion regime that we're used to questions about whether the exhaustion occurred goes to court and then in this respect you know this is different it's more like a procedural default regime if you like and i think congress chose this regime advise because it was dealing with a massive claims process it could have chosen no review which was true of the processes to which it compared this so it was thinking about the war veterans process longshoreman process workers compensation for federal workers all of those schemes at the time had no judicial review and congress could have chosen to do that you didn't have a judicial review of veterans appeals until one thousand nine hundred eight congress could have chosen review of everything which would have been untenable at a time in one nine hundred thirty nine when you had one hundred  seventy nine federal district judges and you were about to unleash millions of claims on to the system and so they chose to land somewhere in between in the question is where did they land in between and i think you know we can talk about final decision in isolation but i think again congress chose all of these words and they are all working together as a coherent phrase and so i'd like to turn to after hearing requirement because i think it does a lot of work here and in california versus anders what this court held is that after hearing adopting judge friendly's reasoning means that that the the matter in which a claimant seeks review does not come within four or five g if it's one that may be denied without a hearing or where the hearing would be service but on that judge fairly also admitted his reading was one of the tyranny of liberalism i think is what he complained about you argue that we should pay close attention to the statute i've been listening to for a number of minutes tell me i need to do that and i don't see in the statute the words a hearing pursuant to some statutory command i see pursue it after hearing it was hearing here let me take you then to the text and i think just  argument from literalism seems to me it might have to live with the tyranny of liberalism mr sure and you know i think it's important to emphasize here that we're not only dealing with the text that that congress enact in one nine hundred thirty nine i mentioned that congress has incorporated this statute by reference a dozen times over the years almost every decade in fact since the statute was enacted in one time that they did that was in one nine hundred seventy two when they created the s s i system in the case of the system under which this case proceeds so what you're actually going to look at first i think is section thirteen eighty three c three that's if you pick up the solicitor general's brief the gray brief and you look at page nine a the text is set forth there and that is that i think the parties have paid much attention to but what it says is quote the final determination of the commissioner of social security after a hearing under paragraph one so there's your  reference just to score such a hearing under paragraph one shall be subject to judicial review as provided in section four of five g of this title to the same extent as the commissioner's final determinations under section four or five of this title so then in order to understand what hearing the statute is referring to we have to look at paragraph one and so that so so the what i just read you was a page nine a of the petitioner of the estes appendix now i'm going to read you from from the reference to paragraph one and that is at the u s g s brief this is the appendix to their brief at seven essay and it's a little bit of a long sentence it's at the bottom of the page and it starts with the words of the commissioner so this is where the s s i provision is telling us what hearing is required for s s i claimants like mr smith and it says the enemy has just skip a few words as i read but the commissioner of social security shall provide a hearing to any individual who is or claims to be an eligible individual and is in disagreement with any determination under this subchapter remember that the statute used the word determination so it's a determination under the act with respect to eligibility of such individual for benefits or the amount of such individuals benefits  interrupt but if i understand you your basic argument boils down to this that no hearing was required here under the various terms of the stage it's right ok and i accept that for argument's sake at least i still go back to four or you it doesn't say any of it it just says an individual after any final decision and justice ginsburg has walked us through that carefully made after hearing gets to gets to go to court right it doesn't say this particular kind of hearing which he is entitled to says a hearing maybe maybe one given imagine that the executive branch getting a hearing is a matter of grace right and i k so what about that i think justice or such that's precisely the argument that this court rejected in california versus sanders and we if i don't read sanders i buy parts to senators and i'm sure you have to write and it is rather cryptic on this score and it doesn't directly adopt judge friendly's concern about the tyranny of liberalism so if i don't feel myself bound by sanders on this score why shouldn't i follow the plain language of the statute which you otherwise argue we should attend to care so just of course if you want of course it's a precedent of this court and i do think it's on you know the only precedent precisely on this text but if you want to set aside i do think that you can get there just under the text and i think remember congress in that did the statute that i was just reading you in one thousand seven hundred two and it's the only reason for a five g applies in this case and it's so it did so in a number of times and i think that reflects some acquiescence on congress's part on the way that that the system was absolutely but but i think you know these questions i i welcome them because i think i'm glad we're turning to section thirteen eighty three because i think it's critical here it tells you what hearing it's a was voted there was that kind of  hearing of the kind set forth in paragraph one right and then there was a final decision now it turns out that the final decision rested not upon the ground having to do with the hearing but on a different ground a ground having to do with appeals council procedure ok we agree on that yes ok so now you are a social security applications and you would like some money because you think you're entitle to it so you so you would like to appeal they say go to the appeals council the appeals council says hey you made a mistake you lose does he care who the mistake was well the hearing examiner was right on the merits the mistake was at the hearing examiner did something procedurally wrong or right but he the brave the appeals council procedure was wrong or right what does he care what the mistake is all he knows is that there is a final decision of the agency which was made after hearing now why would you write such a thing after hearing because whether or not there is a hearing will weed out a lot of worthless applications and it will weed out the people who didn't go through the right procedure to begin with but we are dealing with people who did and so what do they care and why would a body of law that presumes that when you lose you get judicial review suddenly without saying so in the statute make some kind of exception as to whether the reason you lost was a procedural vote having to do with the appeals council or the reason you lost is because both the hearing examiner and the appeals counsel thought you didn't word entitle to why a will that's not a tyranny question that's a purposive consequential right and  basic question for those who don't want to get bogged down in the weeds ok so i mean i think justice breyer i do think that this is it's important to emphasize what i am defending is the status quo this is the way  has worked under the social security regime and all of the other regimes that doesn't regimes i mentioned with the exception of the eleventh circuit for four eight decades and i think that's important because congress had something in mind here congress was i told you what it had in m don't mind making sure there's a hearing which means we weed out the bad ones right now but congress was not concerned congress was concerned was in with ensuring that this entire massive process was governed by law it was not directed in cases into the federal courts for error correction purposes it was doing so to ensure that that there would be a judicial oversight of the process and that when people had exhausted completely through the process and had a determination on the merits that that merits determination on eligibility or amount would be reviewed in court and i think it's important that congress chose those words carefully in one nine hundred seventy two they said they were aware that the way that this had been this language had been interpreted and if you look in the appendix to the green brief the amicus brief we laid out the dozen schemes where congress has expressly incorporated four or five g and many of those are compensation regimes the benefits regimes and in each of them or many of them congress either directly or by implication limited review to the decision of compensation or eligibility for benefits what do you say about the application of the presumption of review which is one of the predicates to the question right i think you know you asked about this mr chief justice earlier and mentioned four or five age and i think four of five each goes a long way to addressing the question that the court has said about the presumption in favor of judicial review that it's just that it's a presumption and it's no substitute for looking at the specific words of us the statutory text and its purpose and history so here we know congress took the unusual step in four or five age of saying there is no review at all in social security cases by any tribunal except through this very specific channel that we're creating and then that channel linked the decision with the hearing and i think congress did that advisedly and then they followed up again in one nine hundred seventy two for the specific regime and said we are linking the determination that can be reviewed with the hearing requirement as the link is the word after being substantive review on the merits it was four words that were my basic question why does that matter so that was true in california versus ender's as well there had been an elder hearing it was after that sense but that is not that is not what mattered what mattered is whether the statute requires a hearing otherwise you could have review where the agency just denied a hearing where there should have been a hearing that would not make much sense and you would also disincentive vies the agency from affording clment friendly processes for fear that they would result in review so instead it makes much more sense and this is what the friendly said and what this court said in adopting his reasoning to to look to what the statute requires but mr good on your theory doesn't that mean that merits decisions of the appeals council would not be reviewable i don't think so and i think that's because the appeals council would be would still be reviewing the matter on which a hearing is required so again my test is justice kagan you ask is the thing on which the claimant seeks judicial review the thing the thing on which the statute requires a hearing so when the appeals counsel reviews that thing it's still the thing the eligibility or the amount of benefits on which there would be judicial review providing of course that they exhausted the process provided by the agency be right and i don't deny that justice ginsburg that you know final means different things in different contexts and of all we had was the word final here this would be a very difficult assignment for me to discharge but luckily we have other words in the statu and they mean something and i think congress chose these words carefully and the chose these words to address the situation in which they wanted not no review not review of everything but review of the merits the substance and then i think it's it's important that congress chose this same regime and expressly incorporated it over and over again when it had these massive claims processes when it wanted to ensure that there would be judicial review of the merits but not traditional review of every fact mound or discretionary dispute about compliance with the agency's internal processes because the judiciary does not add a whole lot of institutional competence to this very there is and that's a value that's a traditional trait and of course there is still review of constitutional questions and there will be mandamus review for the for the egregious situation but i think the floodgates concerns were what were animating congress it's comes to  loud and clear on sort interrupt on the floodgates but if that's all you are viewing the flip side of my prior question that's all you're reviewing that's not going to be overturned very often there probably won't be the floodgates because presumably the appeals council is correct we're applying its timeliness rules and other procedural rules in most cases and so that's what the solicitor general suggests that the floodgates concern is not not a problem because that's one system the social security system and even in that circuit first of all it's difficult to tell with social security cases because they're largely sealed but we've looked at them and what you see are there mostly fact bound disputes or disputes about these discretionary decisions  and i think even there you've had difficult questions that have come up under this bloodsworth rule about how far does it extend into these other processes like the medicare process medicare part a part b part c part d all of these massive regimes incorporate four or five g and i think the solicitor general really understates the floodgate concerns by not grappling with all these other regimes that will be implicated by a decision if you were to adopt the party's position at page fifteen of the solicitor general reply brief the only response really is to shrug and say well that's not before this court that you know but it may be before this court in the next case and i think part of the problem here is just a flood of individual cases there are thousands of cases that are decided on timeliness or procedural grounds by the social security appeals council there are many other thousands of cases in all of these other regimes and then there are going to be questions about the extent to which if you were to adopt  position it applies to all of those regimes is it does it feel a little strange mr gupta to be making this argument when the solicitor general is not it is but it was my honor to say if they don't care why should anybody else but i think it's a good question justice kagan and i think one reason is that congress cared about designing the scheme in this way with limited judicial review and i think the court should care because i think the jury has an institutional yeah but as an institution mistreat a process is fair to them right and if you've got a final decision say no after hearing has been given to you should this justice brier said shouldn't you have that one last crack at the apple well what i'm defending is the way that the process has worked since one thousand thirty nine i think it is congress that is the branch of government that principally decides that kind of policy question about where to strike the balance and congress is evidently satisfied because they have a over and over again it has worked it has stood the test of time there's no suggestion that the regime tells us not you that it's not that they're well i go back to justice point right and i think just to sort of me or i think one thing the s g really hasn't grappled with it they haven't said anything to you about what happens on the other those dozen other claims processes they haven't said anything to you about the other kinds of procedural apply to the mine run of cases under all of these schemes and i think you know this is why in schemes like this we the court generally steps back and allows people who are expert in designing processes like this to  you know design them and if congress has a problem with it congress can step in and do something about it but this is like it's a solution in search of a problem you know all of a sudden after eight decades the solicitor general's office has looked at this text and decided it means something else from what it has always meant and has come to this court they haven't changed regulations they've come to this court and they've asked i asked you to adopt that interpretation and i think the court should be concerned for its own institutional interests and for the institutional interests of the lower federal courts that the balance be struck the way congress designed it thank you thank you counsel mr kimberly three minutes thank you mr chief justice just a few brief points the first core fundamental point is that the decision in this case was final and both the dictionary sense of the meaning of the word and in the traditional administrative law sense of the word and it came after a hearing because petitioner had a section four o five b one hearing before an administrative law judge by the playing terms of section four zero five g that is all that petitioner needed to bring his case and get review before the district court i want to say something very briefly about floodgates my friend mr group the raised concern about appeals involving the medicare scheme there are roughly fifteen thousand appeals before the medicare appeals council the equivalent of the appeals council in this case that's an order of magnitude less than what occurs in the social security scheme and what's more is those reviewing those cases is subject  to a mountain controversy requirement that filters out many more additional cases so there is very little reason to think that medicare would be a basis for thinking that there would be a floodgates problem here and finally i'll just say something briefly about california against sanders since that came up what i would say is that a denial of reopening is not a decision final or otherwise on an initial determination of benefits and what this court said and colophon know is you get one chance to get judicial review it is when you reach the conclusion of the initial the on the initial determination of benefits that is all that we are asking for the six circuits position is that when you reach the end of that review and and you get kicked out on procedural grounds you don't get judicial review there is simply no basis in the text of the statute for reaching that decision and one final point just to sort of my or you raised the question whether we could simply whether the court could simply dismiss the case on the basis of the government's now waiver of this issue because a number of the courts have determined that it's a jurisdictional question i don't think the government's waiver would solve the problem in those circuits including the sixth circuit so i don't think that's a viable option here and for all of those reasons and if there are no further question