springs thing abbot edition or securities and exchange commission you can start good morning and may please the court i'm dominic traina and i represent the petitioner kimberly springstein now that this case is about three due process violations and two unlawful sanctions the former include sanctions imposed for unproven charges in adequate notice of allegations and unconstitutionally appointed regulators the result is a lifetime ban which this court has described as the securities industry equivalent of capital punishment for a woman who consistently under reimbursed herself ten percent donated over two million dollars to the funds that are in question acknowledged misallocations when in fact once you peel away the continuing education expenses which were legitimate business expenses under the operating room and all that remains in this case that's actually been proven are twenty six random high as you're going  can you point to where you praised the constitutional due process claims rather than claims about due process under finra as you know various statutory requirements  constitution under the statute is comparable and so even if even if the court construe this only as raising statutory procedural rights they should be treated in foreign material with the due process rights under process rights and do not provide for s t of someone who has not had their day in court beyond a reasonable doubt standard and that's not what you are going to us though in my missing there's something here where you're actually making the arguments you made to us but then there was a remand ephemera and a tattoo that actually narrow down that list but i did the right to go on judge read did you get your question the answer is yes i mean i guess i don't see that i don't see anything that you're pointing to in the record that mentions the constitutional claims so i guess if we assume that those constitutional claims were not exhausted have you presented reasonable grounds for us to consider them here on appeal assuming that they were not exhausted is a very lax standard for reasonable grounds this court's opinion again action for children's television says that it is unnecessary presenting arguments when an agency general user now and when it comes to see treats that as equivalent or certainly including the constitutional minimum due process we before you could even decide the constitutional issue you want as a matter of constitutional avoidance would have to decide if the statute was violated so we're back to looking again for where you made the same arguments you're making to us now as statutory arguments which the f c c of course is qualified to decide eighty different times over the course of three different years and then they concluded that eighty something times over the course of three different years as a pattern or practice that's not one incident i don't i don't understand why you say the record didn't change they proved exactly as you wanted adjusted by reducing the disgorgement and reducing fine but they never adjusted the lifetime ban because they thought it was still appropriate for eighty something instances over the course of three years combined with combined with lying to investigators again engaging in what they found was a bad day so again that is the fruit of the unfair process as well the credibility determination was born of a process in which only at the hearing it's j one thousand and thirty three dollars this springsteen out objected to the inaccuracy yes in the expense schedule that she was two in which miss princeton abbott insisted on correct allegations against her and even when that arrived singer refused to reopen the record so that she could respond to the corrected special so if you look at these things in just a bunch of expenses from the same restaurant you know that and they point out at the hearing that this was a children's known she admits she was on a diet and so forth after a somewhat embarrassing time questioning and then then they give her evidence that this children's  to respond to the allegations against her instead of that exact opportunity and she did respond in the hearing and then she got caught when she said oh no repeatedly that was my diet meal she didn't say i'm not sure i don't remember she said no that was my i was on a diet at that time and that's what i ate it was only when she got confronted with the e mail that she admitted that in fact it was for her children and children so i don't understand what real process question of whether process was well then let me give you the rd on your honor which is the unconstitutional you pointed to two dictators this one concerns and all three of them again are correct have to be presented so so far i tack involved a non jurisdictional exhaustion requirement but here we have a jurisdictional exhaustion requirement doesn't that distinguish for a tag from this case asn't the appointment clause if you raised before the commission why and lawrence name would anybody representing who you represented not raise the appointments clause issue knowing that if you don't raise it before the commission you're gonna least have a major problem in the court of appeals on a mystery as to why these cases come up all over the country  statute that's very forgiving in terms of preservation so do you read the statute to be forgiving i mean we have precedent saying that it is they jurisdictional exhaustion statute if we just read reasonable grounds to be almost more than reasonable explanation and i believe it's also that case that distinguishes other examples like the extraordinary circumstances threshold that's required in different statutes which i i can't quote chapter and verse right now but there are in our and our reply brief this court has appropriately given credit to the way that congress fracture this preservation requirement so no it's it is a lax where have you argued that they are officers of the united not just state actors but officers of the united states which is what you have to argue to make them subject to the appointments  different statutory scheme that has been over reviewed by the f c c and so you might be right but normally we would expect someone to say they are officers of the united states here's the test for an officer of the united states and appl argue to tell you the truth i think the reason you see it comes out that way is that given their decision making capacity and the fact that these folks are good cause removal of money from the president is sufficient and then of course twenty six dollars personal expenses which you know springsteen now has accepted responsibility for those from day one in fact during the hearing but the court could i think adjust the disgorgement by i think it's about thirty thousand stiff allegation this isn't miss misuse of funds case and it involves no more than twenty six dollars items so what i think would be the correct remedy judge crowd would be to d vacate the lifetime bar and then we'll have to sort are made before it so the fact that the proceeding was an error and that's why there was a remount to finra both with respect to liability and the remedy and close the order on review now records that they could have left open to consider you know the issues on the record that have been used so far and with respect to reopening the record i think the commission administration and judge route to your point that's an entirely different statutory scheme because absent for a tag there's no statutory exhaustion requirement and it involves judicially developed processing is mandatory we praise the work which are point and what do you think about the reasonable grounds argument right is it reasonable for springsteen abbott not to raise his question the constitutional questions before the commission either because the commission lacks the power to decide them or has previously you know declined to to reach those questions well under those involved a little bit different set of due process claims the argument there or state actor claims the argument there was that the way that in iraq and the commission had  investigated certain conduct they were acting to you know jointly and so that raised the due process concern and question when the commission actually dismissed the proceeding on that ground but you know more fundamentally i think the point is the reason you opening brief talks at length about how these issues have been written about for a very long time now there was no obstacle whatsoever for them raising it raising these arguments before the commission they just chose not to and you know i think there might be some close some close cases on what constitutes a reasonable ground but this is not one of them would be the case where you thought there would be reasonable grounds yeah so one reasonable grounds if that comes to mind i think if there's the intervening change in law i think that that might be a reasonable amount but there's nothing like that here luci it was ball in a context where you have a mandatory or jurisdictional exhaustion statute yeah i just think it's a very different set of considerations letter because requirement i mean i will say that you know the way that we read the case far it seems like the court has backed away from what it did and for a talk a little bit so in which here it talked about appointments causes rule that related to her preceding you there wouldn't be any question in those circumstances that anybody affected by the rule any you know your honor i don't know how to answer that yeah i think that's you know possible and maybe the court would have to confront that not circumstance but in this adjudication you know we do have  very clear guidance from congress congress wanted objections to be heard before the commission of men went on well you see if it was a rule you would have the same problem when anybody how you don't the only thing they said about this in the opening brief was about this court matter but you know i do want to give the court comfort on this issue and this is addressed in the commission's opinion and i j oh and you know the bottom line is that their argument just doesn't jive with the contractual wanga which or with the evidence so the language in the offering documents is that authorizes the funds to be charged for such other related administrative expens language and that on the fact you know recall what we're talking about here are these are in row continuing education expenses put on by commonwealth securities which is the broker dealer iteration or wants to you know she want to charge investors for the cost of putting on that continuing education for employees of commonwealth capital which is not appropriate and there's just let me ask this question you can see at best very best for your point of view on the appointments clause including the officer of the united states question your very best you could share at the time your litigating this case and before the commission is this some confusion on this issue raise this issue before the f c c no and actually i'm glad to get back to the reasonable grounds argument because it occurred to me best you could make as an argument is that some confusion in the court and therefore why isn't unreasonable not to raise this issue before the securities and exchange commission given the fact that i requirements so a common law preservation is different from a jurisdictional requirement to me it may not say it's reversing but i mean those are two very different things to say congress created a she is actually very helpful for that because as they explained it's just a put reasonable explanation which i think is more than satisfied in this case but one other thing that i would like to respond  i'm asking you a separate question i'm asking you to really rehearse your argument on that front which we have in your reply brief i'm asking you to do is say why we would even entertain it so that wasn't raised in the open