been disqualified from their professions as horse trainers and orders for a period of one to five years the horse protection act vested jurisdiction in the secretary and section eight hundred and twenty five b one provides no penalty shall be assessed unless such a person is given notice and an opportunity to work for a hearing before the secretary with respect to such a violation the amount of such penalty shall be assessed by the secretary by written order and the good uncle the penalty in this case has been set aside everyone agrees we have yes we have to remain on them and go well i don't agree that well let's assume we're going to remain a you'll get you'll get a hearing before because the administrative law judges serves as a principal officer and has two levels of pin your protection in violation of the bill protection rule set forth and for enterprise so no we will not get a race were not appointed to thirty one of the government also taking the position that the jails were not principle officers but you stuff like that issue i'm sorry what is it in other words the fact that the government was taking sick of the position didn't prevent you from level and so we can't forfeit something that didn't exist i don't i'm still not completely dry off all of that because it's the argument still existed right judges because you've got two levels of tenure protection i'm craving as trial advocates that that's a little far from our of you can argue things in the alternative which is what you're doing here there's no  appointment by the side of the secretary closely chia actually they did of a for loop cio which is a separate problem that's not the issue here and all of that happened after you went through the administer all that but if it were to go back you do have arguments that you could win on and get all the way home regardless of your constitutional challenges to either they are there or that i don't know of any what won't help me i thank you very factual factual challengers to the allegations made by the agency oh yes yes let me mention that they say yeah we could one just just as a free enterprise like  but if we have if we remain and you have a set of arguments for why we need to worry about the a l j as who will necessarily hear the case as soon as it goes back why should we also strain to reach your argument about the judicial officer which is two steps removed and a little bit more speculative because we don't know we don't know how the case will come out before the yale j we don't know whether it will be appealed to the judicial officer we don't know how these recusal issues will shake out seems like that part of your rules of practice there are no rules of practice under which the secretary can make the decision all the rules of practice are directed to the judicial officer secretary can withdraw that delegation of a prospect our case because all of the rules that had been in that effect during the whole time of this case require appeal the somebody else there's no rule it doesn't tell us what to do what happens there's only one judicial officer right now and she presumably has a recusal problem in your case she does yes ok so what happens case case goes back you lose before the agency it's an administrative appeal why doesn't it say and if rules which it has control over then it will go to the secretary but we are we at least know from the government's reading that it thinks it can go to the secretary to do it but not under the rules under what rule can they cover the secretary would that satisfy your concern because it seems also that you raise some questions about that because there would be some due process concerns that someone who is not independent deciding the case oh i  him that's quite another thing can i ask you this question so a lot of your argument seems to be operating on this premise that you have in a title meant not to have to go through a proceeding before an agency where you have a constitutional objection that doesn't mean you have an entitlement not to have to go through that proceeding to begin with just as long as you have additional review at the end of the day because that's for example what happened and what happens in a lot of our cases where we say you have to go through an agency route even though we understand you're objecting to the agency route you just have to go through the agency route raise your objections and then you get additional review at the back and that's what happened in the john doe case about the c f p director even though ph that are the panel decision had already come down and there was a constitutional objection to the composition of the c s he a single director the lark or still said we understand that you have that argument we understand that you don't want to go through the proceedings but you still do you go through the ages of some coworkers are open to the question this one should be too do you should not make our class these are people that klingon stables that border horses you should not make below here forcefully as you're making them but the exact same arguments have been made to the effect that it doesn't make any sense to require going to the agency because there's no way any agency itself is going to declare itself to be a violation of the constitution it's going to have to come back up or to sort of you anyway present well so two things on that one we think that the result in any event is riemannian regardless of the reason it's appropriate midges going forward to i know that you know they can win on the merits because we're not going to rely on the default on proceeding will ignore the fact they're allowed to present from the senses that they want to present evidence and have a hearing and all the normal rights of their associated with the need to get a proceeding in how is how is it just just on the question whether we the directors of removal restrictions were unconstitutional the remedy would be that each unsee could not act at all which as i understand it is why that or setting needed to reach that because although your title to remain on the st part is questionable particular officer performing a particular function not that the agency structure at initio is problematic correct and i don't understand them to be making any argument that the secretary somehow lacks authority to conduct these you asians in the statute vests that if you could have  right yes and so to the extent that they were saying there's no regulation that would allow the practices of procedures to occur before the secretary i don't think that's true if you look to see if our sorry seven c f r one point one three two that's  definitional sections so it defines a judge to be able j it also says the judicial officer is somebody who's been appointed to be the judicial officer or the secretary when performing the access have been delegated to the judicial officer and then see if our seven seats are two a case about whether this particular course was mistreated i think the secretary certainly has that power in to the extent that the claims here are ones about whether but i mean you have you have regulations in place that would direct the remanufacture when a l j which happens all the time and you have a theoretical but seemingly wildly implausible possibility that the secretary would say oh i want to do this issue cation myself that doesn't seem like much of a reason they disagree earlier and can t issues seems to me much stronger with regard to a l j issues than judicial officer issues so that's what i'm for sure i would disagree with that primarily also based on the fact that here you have a statute that says you must exhaust all the administrative remedies according to the practices established by the secretary so that's a perfect argument doesn't work with her and then the regulation of hearings before the judicial officer says argument before the judicial officer is limited to those issues that you raise before the judicial no occasion to raise that challenge you know i don't think that i mean so the fact that they say we couldn't raise it i believe because there had been no holding that alle j s were officers yet i don't think that's an impediment to making a re plaintiff there had raised her removal challenge to the able jase arguing that there were multiple layers of for cause removal protection which was unconstitutional as i recall that there was no accompanying appointments costly and so the fact that you can raise an removal claim even without saying that this person has or has mandatory statutory rule yes it's a mandatory claims process and rule but we also have fry cag which says precisely with respect to that category of rules that we excuse preservation weeks use failure to preserve to decide and that was an appointment is cause issue but we did s the phrase i jotted down in my now she's they were talking about what they described as a category of errors that are structural but non tourist fictional and that describes this case this removal claim to e appeals before you can reuse it there with the supreme court's that is you look to whether or not the statute has built in exceptions to an exhaustion requirement and you do not if the statute doesn't then you do not have judicially created  exceptions to that or future requirement i think they're the th circuit held we will excuse for future because of special circumstances and the supreme court said the statute doesn't talk about special circumstances you can't excuse for patrol that basis and so here there's nothing within the statute that versus blake or united states versus may regain is that once amended reclaim processing rule is properly in time we vote saying you forfeited this you didn't exhaust your you didn't exhaust or administered remedies it is mandatory to apply what's big i suppose that's a distinction and also fred i mean freitag means that it can be reached not nothing says that you have to pitch in that's correct and there in the court exercise its discretion in a particular case where there wasn't  regulation imposing for are you aware of a situation in which whether if we assume that one of the discretionary box and the question is whether as a matter of discretion we should reach something that we can putting aside your argument that we can't even reach it because mandatory claims processing lots of similar in the box where we say we can reach it if we want to we can excuse the former sure we can reach it if we want to and the question is whether we should are you aware of a situation in which a court has exercised discretion to reach something when the proceedings were going to be remanded anyway i can't recall warn off of the top of my head they cite the utility waste case for this proposition as i understand that case the e p a had agreed to a voluntary remained to essentially reconsider actions that it had already taken constrain exactly what you could even do on dream and that would work to the prejudice of particular parties and so therefore we will decide those issues now i don't think that that reasoning applies here for the reasons that we laid out at the that they're entitled to remain and the initial decision is vacated and so that question doesn't even need to be reached because we've been finding that of a violation or an imposition of a civil monetary culti what about the argument that the elder is a principal officers so that i don't think is true at i on the merits of its rebut in terms of whether we should address it so you have the argument so there's three arguments i think that are before us if i'm counting them correctly sure elders of his officers elegies are protected by double layers of which creates a problem under free enterprise and then the judicial office of the principal officer as to the one that says that they all js are principal officers on the question of whether we reach that argument what's the government's view about that i don't think you need to reach it again because we'll be in the result is a remittance of the each and see for further proceedings and to the extent that you're not in the usual going to be agnostic about the result of that we obviously think that they are inferior officers and we can discuss the merits of that if necessary but the result is still agreement and if they prevail on the merits which we know that they're entitled to present defenses they're entitled to make their case and if the agency finds in the favor or if the parties reach a settlement which as we've noted has happened in a lot of cases that have been remitted under similar circumstances i mean that resolves the issue in this court doesn't need to address those various the possibility settlement doesn't seem like that advances the valar great deal because that's true in any case in which a court could remain so that that would have been true in ph that would've been true in all canning there's a lot situations in which this settlement could could occur and that's true your honor that's also just showing that there can be a removal resolution of the case where the court doesn't need to pass on particular and yet me to raise those cases exercise discretion to effectively the same removal challenge that's being raised here yes for the court of appeals and we were not in any way do you know whether that was preserved before the agency yes it was in the agency issued a decision as i recall rejecting their own merits in saying that officer principle officer so in your brief you say that it's not going to be an issue on reagan because the person who is now the judicial officer mon sit in judgment of this case henri that's right and so what's going to happen so  go back down to the l j and and there is an adverse finding against petitioners and they choose to appeal then it's a decision for the secretary about whether to hear the case personally or whether to appoint another judicial officer  to the l j the o j has a fine against them there has to be a timely petition preview and that is i think if it would it wouldn't necessarily come up again but at least there's a possibility that it will come up again and there is a possibility but i don't think that that's a reason you know declining to reach those questions i think if i'm right and so is saying that because we think that they might be different and so before you reach that constitutional question about whether or not you think that they might be different or whether the same reasoning applies  needs is that you should read the statute reasonably and if you can be so reasonably interpreted to avoid reaching a constitutional question then that's a reading that should be adopted in a seasonable to interpret statute that provides  is mandated by statute and regulation and so this court cannot reach is it on your theory is it is it would it be a lawful directed for the secretary of agriculture to in which case you've solved you've solved the removal concern but you basically overruled humphrey's executor can't make that directive in which case we're right back to twenty two levels of independence well we're not asking this court to reverse some freeze executor what we are saying is there anything distinctive about this removal this for cause formulation from run of the mill administrative law and let me ask is there anything distinctive about this for cost protection from the one that protect c commissioners i don't know i haven't looked at the f t c but actually so but i would just let's let's assume there's not i mean under your theory the president can direct the f t c commissioners to pass a back to humphrey's executor because it is an understanding of for cause removal that has nothing to do with the existence of two layers well to the extent that you have has it since your questions on the merits of our statutory instruction or even going further with the constitutional resolution of this question should be that just shows that this is the kind of thing that ought to be preserved before it's properly presented before a court and to the extent that you're concerned that this might not come up i can allay that concern people are properly raising removal challenges in various administrative proceedings i've got a new office and they know that those will eventually reach the courts of appeals and very likely this war and we also don't have anybody who's defending the merits of if you if you think that the four cause protection is more robust then you're saying it is then we don't have anybody who's defending the constitutionality of that we have in brief that constitutionally of that that's correct we haven't briefed that portion of the argument but the org case do you have a position on it assuming for cause protection means that the ale jet the secretary can't direct a decision by the a can't can't remove because the a l j decide to case a certain way do you have a position on the constitutionality of this structure notwithstanding the double layer of protection and you didn't issue maker before they make a decision the principal officer can obviously consider that decision in evaluating whether or not that person should later be room for example if they clearly misapply the law are ignored relative facts or otherwise  argument that well they could win anyway henri not another grounds that's correct but that's what you're resting on with respect to that issue i think that's correct and cynics and that you want to get is the merits on it i mean there are clearly subjects who supervision and control right their decisions can be revisited in reverse last question at the end of the analysis remedy suppose we reach the removal issue find that the double for cause structure is unconstitutional the case that is needed from this court that says that it recognizes sixteen and twelve in is a case where that is not approved pollutions statute that is a direction about oral argument that's a long rule but it does not preclude you from saying anything in your you can not say something outside your petition but let me assure you asked one of the questions we certainly raised that the judicial officer acts as a principal officer there is not a characters in fact what the remedy is going to be and that is before the supreme court in seal is granted review of the case but when the supreme court granted review it added an issue and way we can constitutionally are awfully sever some portion of the station so that is use up for grabs and precisely on ph age it is the  the case and then the government responded with a motion to remain in place and in their motion to manage the case they wanted this court to retain jurisdiction in this and before remain and whether or case there was kind of a mix up sometimes in answer to your question about hand the secretary held the j o what to do it reverted to o him of course once the secretary delegates the authority to make the final decision in any case to the judicial officer seventy us sees areas that the secretary that  secretaries functions are vested in the j o and not in the secretary so the j o becomes the principal officer the secretary hand stopping remove the delegation but anything that the jail goes up at that point is in fact the decision of the secretary he does not have the authority of