between the parties is that the united states supreme court in sindh at pages want to wait through one tenet that decision held that it disability application need not raise any issue before counsel in order to preserve that issue for judicial review the rd uncontested point is the following quote from sins which was mentioned by the rd circuit  therefore this is a situation where there were no specific statutory or regulatory rules creating issue exhaustion or forfeiture this is why the island crete kates that was decided by this court is not directly apply because that case involved a regulation that created a but it is interesting to read iron island creek because what it confirms is that this court should for free from creating issue exhaustion rules which neither congress nor the relevant agency created so in the end before i get to the points why you should rule in favor of my client i want to be clear that the only issue here is a o j issue exhaust it is nothing to do with the exhaustion of the administrative remedies my clients unquestionably if that so the elgin case which the government talks about is not directly applicable the st reason why this court should find that this severely mentally ill disability  man did not forfeit his appointments plus challenge by not raising it before the a o j is due to the nature of the s s a says here they are informal and non adversarial this is not my opinion adversarial and informal structure of s s a these disability adjudication system it would be improper to create two different tracks where people who are represented have one set of rules apply to them and people who failed chase and appeals counsel judges have an affirmative obligation to develop the record and make arguments in the claimant's favor irrespective of anything the claimant does and justice o'connor talks about what does that agency tell the disability app let's look at page one hundred and eighty two with the transcript at the very outset of the hearing this judge told this severely mentally ill claimant that is hearing it was in the form will now the government in federal court is saying that to my contrasts that this hearing was so forth that my client los there were no validly appointed eight days in the entire united states at the time my clients had better here so if my client had said i want to hear it before properly appointed all shakey appeared before could not of her at that least that's the very definition of futility but there's a nd compelling reason as well look at these emergency messages which were hidden from claimants they've only recently  raise an issue to the appeals council to preserve it so the only issue is a l j level issue exhaustion again s s h rights contain no specific issue or exhaustion provision that's and if you look at page three of that the agency's policy is that a claim it need not race in appointments clause challenge before they o j in order to obtain so it's not just that there is no issue exhaustion rule on the specific issue of appointments it's s s a it's own policy that claim it need not raise the issue in order to obtain relief need not ra euro so forth point i wanted to mention is the holding of lucy itself which is where all of this litigation comes out if you look at page two thousand and fifty of the lucy it decision th an informal non adversarial hearing with no forfeiture rules loses his constitutional rights that can final point your honor this court should find that this claimant did not appeal the appointments clause challenge it at they put that clause protection in the constitution is one that involves both individual rights but also structural considerations related to the separation of powers that go to the very integrity of the judicial proceeding itself therefore the law favors resolution on the merits of such claims this is confirmed in frye tag as well page eighty seven require issue exhaustion so there is no provision anywhere in s s a s regulations which require issue of issue exhaustion and this is a key point the supreme court in since invited the commissioner twenty years ago to create if you exhaustion regulation if you want to abuse and get in the twenty years since if neither congress nor s s a has done anything  is beyond question the only question here is whether this court should create a judicially imposed a level issue exhaustion rule which neither s s a nor congress have done in the twenty years since since itself and this court's analysis in i wouldn't creak confirmed that this court should exercise judicial restraint and not create a tail j level issue exhaustion which not of the relevant agency nor congress have done s s a is a unique sui generis informal and not adversarial regulatory structure where such a rule would be inappropriate finally the government has sense that we're talking about making arguments on the merits for the st time before the court right i mean these were judge that they were subject to the same rule and fixed it on their own but what i think the timeline matters here you have these folks getting the want to go back again something that just seiler raised earlier in this situation where you have i'm assuming a high number per se claimants going before the agents of their claims on something or at the same publisher these people may very well not know the a lay of the land there so are you saying that the situations as in all other situations this burden should be uniformly squarely placed on the claimant to exhaust at that level keeping in mind that many of these individuals are not going to have seventy percent of claimants are represented and we're there i'm not i don't want to discount that there is a significant number of folks who are represented but we're just forty two fronted today with the question and of what to do with folks who were represented or concerned about the so that the people who are already in the queue can keep moving along so i think you can look at that either way typically your honor i don't think that's the right way to think about it i think what you get folks who tried to get benefits of the agency they didn't say so it's sort of that the pan back to the example the alternative is that they left on their right to they didn't recognize the issue but they had a fair hearing before the agency at the time that they be a problem with it they went to court and now with  fix this with the stroke of a and you know if this is an issue that needs to be rectified i think that the overwhelming birdman the time consideration cannot be the controlling factor  right ok and then do you agree that if we agree with the partition or zandi the remedy is to have a new hearing before a different a l j yes me agree with that without reading  idea of accumulating litigation risk here is the counter to that which is very powerful to supreme court cases on that exact issue in the disability contests matthews this exact language this exact analysis and l a tucker by the name was specifically rejected in the unique social security disability context which is not adversarial and inform the nd point i wanted to make your honor is that all of these cases they talk about jones brothers island creek dinallo all of the not involving unique litigation or excuse me it process which is informal not adversarial every with no for fifty two i also want to point this out with respect to jones brothers look at jones brothers because they all timidly found that the pursue his appointments clustered around and they did it on the basis of understandable confusion how could my state of the early mentally ill disability claim not be understandably  the government tells him his hearing is inform and then later on in federal court says it was so formal he lost his constitutional i'm a former time to get s s a for a long time i have a great deal of respect for the agency and i understand it's work but the numbers that the government original week represented here are false and the rd circuit pointed that out in syria that what they talk about being hundreds of relief on that had far more notice on this issue than any of my clients why are the people who had more notice on this issue being given more relief and the people who had less notice but i think ultimately