action for a lack of subject matter jurisdiction we believe upon the dyno though review that is accorded to a dismissal for lack of subject matter jurisdiction that this court should follow the clear text of the united states code in section four of five h of the relevant act that precludes jurisdiction only for matters arising in a federal question jurisdiction and federal officer jurisdiction and explicitly not for the bankruptcy court jurisdiction under thirteen thirty four this court has already made clear that a textual approach to this provision of law should be followed in its president of the will cut case which is a fifth circuit case interpret king the mandamus jurisdiction of the federal courts under a different statutory provision that is also not excluded under for a fight his third sentence now there's been some discussion in the mandamus case as a whole cottage industry of mandamus cases has come out discussing the it peculiar historical history of mandamus and that's all very interesting  this court has said in discussing that and amos we don't need to go much further than the text of the third sentence to four or five days now my friend will point out which is true that different circuits have taken a different approach to thor if i they just third sentence and we have a  circuit split that i'm at it disappointed to tell you you will have to confront one where the other and my friend will say more of the circuits are on the other side of this circuit split but i would respectfully draw out of the court's attention that every single one of those circuit court cases does not analyze the what i call the privies of provision of twenty six sixty four in its full context as a savings clause and none of those circuit court cases discussed the savings cost timing element of the previous so they pluck the words and analyze the isolation sentence does not bar you what do we make of the second sentence is the second sentence a jurisdiction stripping provision or is it a channeling exhaustion with the second sentence is it is an unfriendly element of four or five was at the supreme court has wrestled with this question too and the problem and so the short answer question to him is does not a jurisdictional provision it is best perceived as a sort of channeling provision for actions that come under four or five jurisdiction that say you have to satisfy the exhaustion requirement five and when the supreme court wrestled with that you can actually see it in the southeast case and then the math is be eldridge case that happened at the same time and justice rehnquist is sort of saying well some of this has to be jurisdictional because you've got to get it lists requirements that are a precondition to proceeding and o and waiver and forfeiture an excuse by the government the i understand that is to four or five gee what i might what i'm wondering though is this to four height h the first two sentences there it sure seems like at least under cases like california versus stand  one way one could read in correctly one way one can read the second sentence is by forcing everything into the four or five g procedures as a channeling provision as you use it the problem with that and that was the opinion by the way adopted in a concurrence by justice briefs is because if you read channeling as exclusive then what you've done is equated it with a jurisdictional provision and if you read it as to sacto jurisdictional by requiring everything to go through the four of five g hoops then you've created yourself a new textual problem which is to render the third sentence surplusage of redundant which is the gist of it would be completely unnecessary to have the third sentence with the seconds and in that work which i i completely understand but that would assume that the stuff that is being channeled in the stuff that's being stripped are the same and so i'm actually wondering if this helps your case and so i'm i'm curious as to why this work because i think if i just let me finish this is so if it is true that the findings and decision of the commissioner of social security after hearing if that is the thing that is being channeled in the first two sentences that is a different thing than no action against the united states cetera et cetera et cetera as in the third sentence yes it strikes me that there is a textual similarity between the findings and decision of the commissioner of social security after hearing that's the first sentence coupled with the second and the kind of stuff that is a application for benefits in be one of the same section of the one hearing type action that would then go into four or five g for the judicial review procedures after the minister proceed but your client isn't applying for a claim i'm just not applying for benefits and therefore i don't see why this is all sort of neither here nor i think this could this is a police is a plausible reading i would have to think somewhere  honor but whether that could make sense of the second sentence i will say that the supreme court's most recent pronouncement of it in the illinois council they tried to say that is clearly trying to channel a lot of things over and impose some sort of exhaustion requirements and in that channeling capacity puts forward the we can call it the strict exhaustion requirements to get all the floral side matters through the four of five jeeps but the corona of that is no court has ever held that when jurisdiction by command of the second sentence of oral five even though you're not proceeding here in under four or five g we're going to take those exhaustion requirements and put them into thirteen thirty four jurisdiction i suppose the textural basis to as well would be that review under thirteen thirty jurisdictions in the context of saying that it's not isn't the entire premise of california in cases like it that the thing that your client is asking for is a procedural benefit right it is like you should not be withholding my benefits while i got this rehearing thing upon it is so it is therefore not the sort of stuff that is meant to be either channel or stripped it is that it there are are gay or there is uncertain case on the what will call the scope question of whether this is a for if i have to have a shoe or if it's purely collateral zingy i'm just asking for a procedural thing that's not really covered by the spirit of it there are some very capacious language in supreme court present suggests it should be broad but i think i can answer that question at perhaps a more satisfying way to your honor which is to say regardless of his will call them procedural defects claims with the social security he has straight up garden variety statutory bankruptcy causes of action that are listed under title eleven of  nothing whatsoever to do with the intricate apparatus of the social security administration he says you violated the set of provisions of the bankruptcy code it doesn't matter if that's a sort of against the federal government a private creditor the social security ministration and when the c e said you can't do that because you're bettering yourself against other creditors in this bankruptcy estate and that cause of action arises under five fifty three of the bankruptcy code which is express the why congress in section one zero six eight of the bankruptcy code explicitly the clearest statement imaginable abrogate sovereign immunity for these cause of actions that come under the bankruptcy code not separate you know contract things are trying to expand possibly the scope of liability by putting yourself into bankruptcy court these are bankruptcy cause of action and that's why we would have a clear we shouldn't fight the text and we have an abrogation explicitly under one of six a sovereign immunity so we should even worry about what any exhaustion apartments might or might not be by command a four hundred five h s second sentence which is a conundrum for me because i prefer the comfort of the motivations for taking on a case pro bono publico it's because i believe that jurisprudence has misinterpreted bankruptcy court jurisdiction and i'm trying to correct what i perceive as a massive error federal jurisdiction i'm only representing mr benjamin on this appeal he's going to have to fight out his matter  generously when as a chance to actually get to the merits he has lots of claims he's made but i can tell you this i can see is quite comfortably under the five fifty three matter and say that straight up anchor the law there's clearly subject matter just action there's no exhaust a requirement that should be remanded whatever a selfie has to be one rema time i don't want to waste time i've tried to be as explicit in the brief as possible explaining the basis of my arguments on the statutory jurisdiction i just would like to sound a note in policy if i may which is there might be a concern that if you follow the text as i strongly urge you to do you might be you don't see bankruptcy conferences people talking about over the ninth circuit as you know other scary things are and indeed mr benjamin's case does not suggest any gamesmanship or running to bankruptcy to circumvent the social security he was driven into bankruptcy when his checks got cut by social security end up losing his home in the bankruptcy it's a day which is not an infrequent occurrence in the bank of these so any issues of gamesmanship or strategy do not appear to be present here and of course bankruptcy judges are amply situated with the capacity to deal with bad faith proceedings to dismiss them to then even if a complicated matter would ever come up let's say there's a can join the case where he's bring a bankruptcy came and then something really complex involving the social security administration's operation procedures the bankruptcy judge can say i'm not going to hear that we're going to stay that one is and you have the social security to work it out come started that administrative process that is in the midst of ongoing now and instead he went to the bankruptcy court to try to have a bankruptcy court here and that's incorrect for two reasons i'm at least begin with exhaustion point which is the second sons of four or five age requires exhaustion regard less of whether the bankruptcy court had jurisdiction under the third sentence that for five to four of five a very carefully constructed scheme for the past eighty years or claimant united states provided very hopeful description of it as a safe decision to the individuals over paid initial determination subject to the as a safe for level process for ministry to review which ins in four or five eight and then four by g that's all by regulation none of the words that little piece that i just were right and i apologize again for interrupting isn't in the statute the statute talks about people who are applying for claims for benefits as well as asking your friend on the other side does anything about overpayment determinations it talks about hearings to which of course mr benjamin never the agency is is treating that is that akin to a request that you it be waived that you received payments for a period of time when you were actually entitled to benefits and so i think the agency views it as your we're deciding whether you should be able to keep those benefits that you received even though you didn't meet the substantive requirements under the act i'm not aware of any case or any plaintiff in fact who has made that argument in the waiver context i think everyone has gone as proceeded as if it goes into four o taken years and years and years and having left this in a box somewhere mr benjamin would have gotten the four level review procedure that is in g what you write in so the only reason that this is even coming up in this may explain why it doesn't happen very often is for whatever prisons are not in the record this sat in an inbox somewhere in the united states government and he never got it in because he never got it and because of the six thousand five hundred seventy dollars it is withholding he says i'm all for a new dispute he was driven into bankruptcy and has to do it by design it's not because i have a choice i'm here for under section five of the three you have to put this in and so now we're confronted with the situation of trying to figure out how to do something that maybe maybe no one has ever tried to think about before just a couple of it is not in the in his whatever was waiver request almost immediately upon the over determination of the overpayment determination that would happen in this case was he was represented to pay for his sister so she sent in a waiver request that time see she died in the interim he payments at that point up until that is that they make the first level determination to deny that and then they do and then he files for right but if if the court agrees that you cannot read the numbers thirteen thirty one and thirteen forty six to mean thirteen thirty four with the appropriate disposition would be simply to reverse send back and have all this washed out  that it only exists because of the federal law and the federal law comes with you get the benefit of the entitlement it comes with the package deal of the channelling of those claims through the social security act so even if this court were to disagree with us on that third sentence it would go back to the bankruptcy court i think you can dispose of it if you agree that there's never been a showing of why we should wait but even if you want some you know want to have some not so that the first instance that's what will be decided what it how is he supposed to exhaust the i'm not sure i understand the  exhaustion requirement as applied to the bankruptcy court right because good reason isn't bankruptcy is because you couldn't exhaust this right if he'd been able to exhaust it or if the social security mission had followed its own regulations and stayed the overpayment withdrawals of legal bar vision to the problem and unfortunately they did not correct the problem they absolutely did two provisions of the at least four provisions of the five that would have been a political and so what we have now if you accept  plaintiff's position is a scenario in which you could proceed for example in diversity jurisdictions imagine you're a medicare an entity receiving medicare payments you're diverse from your medicare contractor there plaintiffs theory you can proceed in district court if you happen to not be diverse you cannot because you can't go under federal question jurisdiction so every court to consider the diversity jurisdiction context has said no it has looked at the and i think it's unfair to say they have looked at the history of an enraged buyer shore's really goes through the historical analysis looks at the technical corrections dutchy looks at the other things that are being done in that and do we get to the recount if occasion can and if we think the text is clear because i see the numbers thirteen thirty one and thirteen forty six i don't see the number thirteen thirty four which begs the question why do you get into this domestic relations exception what does it mean what's the scope of that they narrow you know it was a pretty narrow scope but they still said there are some civil cases that will be heard and so you know looking to that supreme court approach i think you can do that here i think the supreme court has also looked and the state from your medicare contractor you could proceed we have a third seventy eight circuit cases rejecting that approach but we also have the problem that under plaintiff's theory this is a case i think where it's easy to say well it's a waiver i can look at the regulations it's a pretty easy thing for a court to determine but there their position applies even to substance of disability determinations they don't think waivers require they don't think i don't see why present are required i don't see why there be limitations periods you can imagine someone showing up in bankruptcy court saying i was disabled twenty years ago i should have been receiving benefits this whole time under the social security act at this social screen ministration is charged with helping the claimant scores well we're helping the claimant about the record to not adversarial proceeding so i think plaintiffs would i guess have the bankruptcy court conduct a sort of mini trial where in social security comes in and they're developing the record and they're helping the claimant or the maybe they become adverse from the claimant at some point and it's just it's not what congress invision it's not what congress constructed  want to say though in response to your question of whether we get to the record of the cation doctrine is that's what my friend went to with the principal part of her argument is i want to correct one thing she said i could if i said this i misspoke i did not want to say the other cases don't look at the history i think other cases look not in this case for at least two reasons this is not a record of the haitian if this case had arisen in one thousand nine hundred seventy six i would be taking a very different position about what the office of law revision counsel can do on its own without anything else ok or if the statute had  council that are changing the numbers in the statute maybe congress was foolhardy to have gone ahead and then acted that suggested maybe congress was wise and wanted to focus the action on the bases in which of these types of challenges could be brought up federal question jurisdiction federal officer jurisdiction of the the cation of the judicial code we're not dealing with it here secondly to answer your question i don't think a canon of interpretation can trump clear text so if you had a statute that talked about a voting age of eighteen then you are codified it and you change some language and say the age of majority ability of the part of the cation doctrine i would say even courts that apply it to true record of the cations are talking about plausibly ambiguous text or text that maybe expands the definition of a statute where an ak and back went from actions and law in equity to any civil action right so the question is when you expand the text you still need to subsume a long standing common law exception here we have a now rowing of the text as explicit numbers and i think it's awfully difficult to use interpret presumption to read numbers that simply aren't in there all the issues of what he waved in his pro se pleadings and did he wave a discussion of futility or an excuse to you make a good excuse for not what this court said wisely in the ultra petroleum case is that you are not a court of first instance and even on matters of statutory interpretation which could be matters of the novo legal review you still should let the court of first instance have the crack at how to interpret all these doctrines whether they've been waived for fun or whatever but i the hypothetical jurisdiction that you might go to read or maybe if there was hypothetically jurisdiction and we might have a firm for a failure to exhaust and pleated i think it's just clear to reverse the remand of the proceedings point we certainly would not say anything goes i want to correct the stage of review so he's done present in one steroids and we would not think that as a requirement for his appeal we think it's amply clear that he's satisfied that we asked for the reversal and wish mr benjamin good luck in his proceedings below when he gets to have his day in court