this appeal is taken from an order of the securities and exchange commission suspending trading of the common stock of mining pursuant to section twelve k one of the exchange act twelve k one provides that the  well they're still consequences if the court does what we would like the court to do the trading should should reinitiate start you in your brief see your brief suggested trading is can is now suspension is terminated by it's own terms what you're concerned about is that he lied of the suspension different procedures applied to the trading of your client stock and would have applied in the absence of the suspension right  desires to show that it's not appropriate may file a petition with the secretary to terminate the suspension and then b says the commission may schedule a hearing on the matter you attorney said you're sending it to the wrong person on the other than that whatever it says what did you do to to avail yourself of the these procedural safeguards in the regulations it's the only thing we get because the only thing you did but you could  know the words they're hearing was available to you you didn't request it well that's not what five five all it says though it says that you have to file a verified petition right and they have to review the petition and then they see it may be right if they've reviewed it and denied you a hearing i don't understand your complaint about why you didn't get a hearing but you never requested to hear is a procedure for requesting a hearing in the agency you never requested it so how can you complain today that the agency of conditions on the terminations of the suspension after the ten days he said in that case that this ten day suspension was an emergency situation and i know i understand what sloan says but i'm asking a different question because i understand your briefing and i'm not sure i understand it correctly so you can correct me if i'm wrong you have two complaints one is that they imposed a more than ten day suspension the second complaint is that in imposing the suspension they didn't give you and i'm focusing on that second complaint and it seems to me it's hard to complain about not getting a hearing when the rules provide for one at least the possibility of one and you never requested it so i want to make sure i understand you never did request a hearing that you never requested now go back to your first point tell me why an order that on its face only applies for ten days is permanent because that's what the statute says that's what i tell me tell me what the statute says that makes it permanent statute says it's they can impose a ten days temporary suspension they impose a temporary suspension it may not exceed ten days it may not exceed ten days and on its face it says it's ten days that when the suspension is over things refer to refer to tell me why as a matter of law that says i understand your mootness argument that that ten day suspension is continuing effects on you but tell me why is a matter of law you are suspended after those ten days you're trading in your stock is suspended after that because market well in order to get the stock back up and trading again you have to somebody else has to jump through a series of hoops to get the stock up and trading and they're the same well it's finra and well  they're saying ok the suspension is over at the end of ten days but your stock doesn't get to trade your stock is not like an exchange listed stock it gets to trade automatically at the end of the day and days but you small company have to jump through these additional hoops and of course that relates back to the sloan case where rehnquist said you can't put implements in the way of this stock starting to trade again and in effect that's that's what the f c c did here in th sloan case they tried to issue consecutive order but it's always different sunday right they issued consecutive ten day suspension and and the court said wait a minute this is an emergency suspension if you're going to do consecutive ones you ought to have a hearing and five or five  the same thing instead of consecutive orders now we're going to come up with this rule that says instead of the stock automatically trading again now you have to petition us with a verified petition within ten days or during the suspension period and then we'll take a look at the petition and after we look at the petition we'll decide if we're going to give you a hearing or not and they frequently denied hearing that one of the other cases they cited i want to say it's greenfeld or green bomb the commission d did not but if they denied you hearing you could come in complaining about that being a county they were shots that you would have asked for one you haven't asked for one so it's hard to complain about not being given one they don't hand them they don't sort of walk around and say we'd like to hear a way for people to ask for a hearing right but it's our position we didn't have to this is if you read the history of the statute it's pretty clever because what the f c c has virtually done is they were the burden was always on the commission to do certain things they've been enacted series of rules and now the burden shifts over to us to take certain steps to try to get the stock up a trade he might want you might want to reserve say you have some or battle time because you're in a minute and a half administrative bremen days and bringing its due process challenge for failure to provide a hearing prior to issuing the suspension order and but i'm just wondering what process is actually available to the money to make a pre de argument our role five fifty petition is only to challenge orders once they've been issued correct that's correct there's no process before the trading suspension is imposed and this was congress's design in section twelve k before there's an agency that has by your own definition no statutory power in fact congress has designed the system to deny a pre deprivation hearing what possible use is there for the money to come to the agency and say we'd prompt post deprivation here satisfies due process that's the mathews balance you may win on that argument the question is whether they had to exhaust that argument before the agency that was dead has no statutory ability to vacation so what you're saying before you can come to court and argue back the absence of a pre depravation you've got to come to the agency and exhaust that argument about a pre death and the relief in that way but another thing it might do would be to develop the record and more clearly articulate the interests that are that are at stake and could do a lot of things but you still wouldn't have a pre he's asking us to say that the statutory scheme and regulatory scheme that allow you to suspend temporarily the trading and stuff is unconstitutional because he doesn't get a free depravation here that argument may be dead wrong could address it on its merits your argument as well you should have told the agency that it has turned you down and the answer my question about is towards what in it would have been futile to ask the agency for a pre deprivation hearing because you don't provide one do you know we don't provide a pretty deprivation hearing but the record would have been more developed certainly than it is here in a way that may inform this court's review of that constitutional question that now has other claims that you effect is this suspension still in effect if not what is its continued effect no this is and is this case moot this essentially is is not still in effect expired after ten days by its own terms there are certain collateral consequences of the suspension that's why we don't contend here that the that this challenge is moot and the commission itself in fact in i would point the court to brabo enterprises commission decision where the commission said we will hear these challenges after the suspension expires even though the ten days are up and then to address the question that came up about what exactly those collateral consequences are it's important to make a distinction between trading and quoting and rule fifteen see to eleven requires brokers to make a particular determination before they enter quotations for the security and there is an exception to that rule called the piggyback exception that that applies if there's been a continuous series of quotations so the the trading suspension training can continue after the ten days are up but it then requires that brokers make the particular determination that the rules and does don't do these collateral these collateral consequences which you say that makes the case not moot are the reason that we should be able to review the the issuance of the temporary suspension today correct that's correct into constitutional challenges and non constitutional challenges and i mean we have the option to say the non constitutional challenges require exhaustion but the constitutional challenge about our pre three depravation hearing which you don't have any authority to give doesn't require exhaustion and then we could find either that they're entitled to one or they're not entitled to one that is an approach the court could take if the thought that was the best approach i point out on the these continuing consequences that no matter what the facts of any particular case it's the kind of thing in which you ought to get a pre depravation here that's purely a matter that might be the the commission has and i am sorry why then should i pretend we had a better record we might be able to do this more accurately and my question is no matter how good the record is you're not going to have a pre deprivation hearing for a temporary course you understand your argument that it's ten days and no pre deprivation hearing is needed because these emergency situations we have to act quickly that's an argument on the merits what i'm resisting a little bit is your exhaustion argument which is that we can't consider that argument on the merits because they didn't make it through an agency that had no authority to give them a free deprivation hearing anyway i understand that and just one other point i'll make on and then i'll give this up i see my time's almost out it's possible the commission could address an argument on the twelve twenty five a on its face you don't consider twenty five see because twelve k five said only is provided for under twenty five all of the other provisions falloff in our are all of the other provisions are completely here with us congress just stuck them in there for fun well no there's another i mean that that act is a giant act there's a whole litany of things that could come into play where those provisions become a clickable if you're feeling from an administrative judge here and many people in from a different fact finder to the f c c for their review but in our particular case we're theoretically appealing from the f c c from the f c c zone ruling and it was a ruling that they made theoretically where they had all of the evidence presented the evidence to themselves made a ruling on it and suspended tradin it seems to me that they had orders pretty final i could come back and say you know review it would we have to do that would they even take the time to review their own unilateral  statement i don't know what my position is the that you didn't have to go to the commission first before we came to the well i think we understand your arguments does anyone have any additional questions all right well then this matter will be submitted thank you both for your argument