argument once so ballplayers pages on that issue will be heard now i'm going to give you the same amount of time fifteen minutes which side would work it's an important issue so if you require more time all i'll judge at is we go along and to the word intel it mandates wouldn't be really odd for us to send stuff back to the board before the lead case mandate and let me just ask you a practical question because my guess is this is what's going to happen if we send it back and this is why the government's urging us not to do it they are probably now considering i'm sure they're considering whether to file a petition for a hearing on block and not takes a lot of time in the justice department house with looser general's office and so they're going to do that if we send this back then they're going to file they're going to end up filing a petition here too and doing the same exact thing so why make everybody waste time in filing multiple petitions i understand the courts mushroom and just responding to it in different cases there's one very very good reason and that is because there are threats case is not a vehicle to raise the nd of the two main issues of races that are threats case decision raises two large appeal because all i was there was a decision of all parties in that case agreed that the courts solution would work that it would cure the constitutional deficiency in this case that's not true we do not agree that they are threats sure solves the problem for two reasons so i don't understand how that has any difference about whether we send it back now or not because we're bound by heart you are bound by our threats but we would  constitutional challenge to the board and there are some i think in the th circuit case they rely heavily on on some of the cases finding that nothing happened to provide no relief whatsoever did you even if they'd normally apply waiver if they have a good reason for it and i think they were just looking at the waiver doctrine they were looking at whether you are entitled to a remedy or not if you if you raised it too late and got us to the too late point i think the arts or the officer you're on constitutionally appointed don't roll on this isn't that a fundamental line of administration law that i'm not aware of a finding by so the answer is different depending on what the what the remedy is and what the board is and here it was sure that the answer is always different but that the general was as i understand it as if it's a constitutional challenge to the structure or the appointment or the life in ministry the body just can't declare itself on constitution i agree with that they can issue they can rule on person you know as applied constitutional challenge i think there's all kinds of cases like that and that's the problem we have here certainly i don't think the p t could do clerk self and the petition is the problem but it's the same problem and issues which is whether the constitutional here works and it's our view that it does not when we get to that issue thank you the nd issue is whether the cure works and in my view it does not work for two depends on what you speculate the congress would have liked but isn't this i mean this seems to me to be not a great argument for you because when when various courts have faced various appointment clause problems with inferior officers because they are removal provisions were too restrictive this is exactly what a bunch of other courts have done this is not a staking out new territory as it so i think it is the intercollegiate case is the only one i'm aware of i can't say that it's the only one but it's the only one i'm aware of where there was no form of review within the executive branch if you look at the st enterprise fund that had some form of review as well so there was a i think it's inconsistent with the guidance from the from the supreme court in the edmonds free enterprise fund all of which said that the key issue on the distinction between a principal officer and an inferior officer is is that officer rendering a final decision by the executive branch that's the language from edmonds that's the holding from fully an appointment i think i'm misunderstanding what you're getting at i thought you were going to argue that if it's with improper because it about the extent of the court's power to rewrite that statute and as i said earlier i recognize your but that's the ether equips and i agree about you know there's all the press record says look and see whether congress would rather have the scheme without the employment restriction or not and i you know i would move on to your nd point because i think that's a harder line i agree that the only you i want to use the word rewrite i'd use the word save but yes yes i understand the difference but just this issue hasn't been fully briefed by anyone as far as i'm aware that there is a reasonable basis to believe that when congress laid out specifically that some people have employees and b to employees or trimble at will and then did not do so for the p judges but that supports an inference that that was a deliberate intentional choice and therefore reflective of their intent and as i say that issue hasn't been briefed anywhere it's fully out so i am not capable of giving you chapter scheme to go out or do you want to change your mind on that and then we look for evidence of that and i agree with you that's that's exactly the process and what we're doing is we're sort of backing into the merits of our threats at that at that point we are better that's that's the  a move to the nd issue because i agree that's the more fundamental question in my view although the court follow the guidance and entered pleas of from the d c circuit the guidance from the supreme court is to the contrary and says that it's not enough merely to have shorthand that that the director has the ability to rig the results they made that argument out of those words yes and are threats i think properly rejected it because the director could rig the results only if has the power to unassigned to not to sign and that's not clear there are threats court to specifically said that's not clear in a footnote yes but there are other procedures that if he doesn't like that decision from the piano he can create a larger pan the nd i know these all these words the supreme court hates all of the stop and i do think there might be presidential or due process problems with it but that doesn't mean it doesn't give the director of out of control over the actual a p j stuff i don't think you save one constitutional violation by creating another i don't think that's what congress would intended and i don't think that's what the court should be doing and in any event that wouldn't cure the  fundamental problem which is that the supreme court cases in my view we look at them and we look at for a tag and when we look at free enterprise fund all require some form of review that is the point are these people rendering final decisions for the executive branch that's the test of heads and if the answer to that is yes in each of those cases they were not an inferior officer and then the question becomes is term an ability it will an effective or appropriate supervisory review of affective review which i think admins in free enterprise all require is telling ability at will an effective or appropriate means to accomplish that end and i think not for two reasons one if you're terminating after the final written decisions issued and it's issued if you're if you're relying on the intro or i'm a fact of a pj's being worried about being fired by issuing a decision based on the ground that they think the director might not like that seems like a fairly blunt instrument and not a very appropriate way of doing it and i think the idea that congress would have wanted that system or a pj's are possibly worried about their livelihoods  decisions based on speculation about what might or might not appease the powers that be as opposed to a straight forward system that had a level of review i think the odds are congress would not prefer that  intriguing because he said you were going to discuss the the remedy machine gun to which you were once the rent i believe the remedy is that required by free enterprise fund and evans and others which is some form of affective meaningful subsidy review of altogether clear are you were many cases where it wasn't a problem even if there was no effective executive review i think there are some cases suggesting that your honor and i think just to step back for a moment the  cases all suggest that you know edmund says there's no exclusive criterion i think it's a mosaic approach we take a balancing act and we look at the different levers and see if there is more and one less than another and a balance to  over all support constitutionality i would look at edmund itself there it's true that the that the military judges they are their opinions were subject to review by the court of appeals or the armed forces but i know the review there was highly deferential the review was not a true novo you know look at this altogether and be able to change anything that we'd like the re review is not necessary i think that's also the case in this court's nastiness i think i'm saying a correctly decision where the vaccine acts special masters of their decisions also receive a deferential review and just to make another point on review i i quibble a little bit with the suggestion that there isn't a review agency of the of the a p j's decisions i think there is for several reasons the director has the authority to designate decisions as presidential and three that he can direct the outcome in a given case the director also  an issue finding policy guidance that that could in certain cases be directed at the facts in that case you can imagine a circumstance where a final written decision issues after an issue  the director broad control over the agency and i want to make sure a quote from the statute properly says sections here's what i'm thinking of and this is not related to this case necessarily but when you say d that the believe the a p gays are bound by the director's interpretation of one o one if that comes up to this court on appeal of course then it's wrong then this court will reverse the decision i believe they pj's th intervene every decision not necessarily but that doesn't take away from the director's power to review any decision and in any case the director may review the decision and i don't think that the constitution requires course here is to hold any decision in this case in abeyance and i want to have one of be careful with how i say this because i want to express my sincere respect for this court as an institution it's opinions but the arthritis opinion has not mandated it's not final and we disagree with the result reached in that opinion and believe that it's a candidate for a petition for rehearing and i'm not saying that because  you're i think you're frightened agrees with you to a certain extent that arthur opinion is wrong too i think that on different points and thinks he wants to be able to get a decision no so he can raise his burger points on rehearing you have your arguments rather than issue a decision that we have this all on bach and this is just my idea i haven't cleared it with my colleagues and they may disagree if you have further supplemental briefing on when arthritis and if you have arguments about why it's wrong you may have different arguments about why it's wrong of suspect we're going to hear from the government about why it's wrong to  forfeiture has to be an all or nothing proposition and we think that follows from the supreme court's decisions and we cheat and writer as well as the sort of traditional equitable principles that accompany crafting a remedy so even if at the front end the court for various professional reasons decides to reach a weight issue we don't think that obliges it to go whole hog on the remedy and i note that the supreme court's emphasis on a timely challenge being raised in lucienne writer that didn't come in any sort of front and waiver discussion came in the remedial section and so we think that as a matter of sort of tactical discretion even if a court wants to clarify and question we agree this is an important issue it wants to get some press done on the facts and tell the agency had  course part of the reason that there is that extra time in a government case is because we do consult with other agencies the solicitor general's office makes the ultimate decision after looking around the government and thinking about all those consequences so i can't i can't give you a li today i don't know if we'll ever file or a hearing petition that includes such a list or not but there but i think it to say this was a very important decision with striking down an act of congress is always a very serious matter even with a partial invalidation that we will be looking at very seriously while the solicitor general decides whether or not to seek rehearing on but turning back to our threats i just want to go the reasons that the arthur x panel articulated for using its discretion to reach a waved issue i think don't necessarily judge while it was on the panel the panel did not reach the issue there issued a rule thirty six of workmen's think that shows that different panels can and do use their discretion differently now the aardvarks panel of course explained that because of the significance of this question because of the importance of answering this question giving timely resolution to the many parties who who were looking to the court it decided to exercise its discretion and to overlook the waiver now and these cases we have one preserved challenge where of course the court may not engage with the waiver question at all or at the discretion regarding remedy that we discussed in our track supplemental brief but on the other case in the eight recognize that that's binding on us but it also has been mandated and that there's i mean i'm sure you all had a very very busy week and sorry up in so short on or argument but that's where it goes  clearly lots of people have lots of questions about how it's going to play out and so i'm just curious because our troops didn't have the case were preserved at the agency which is one of the touch tone as for your analysis at least for circuit and the collins case has articulated a potential difference when there is st he says where at the relevant time there was what's later deemed an invalid removal restriction as opposed to when there's an office is actually never pointed at all which here was the latter situation the algae at the relevant time was not operating under a head of department appointment at all charge that that to me if it were thinking of remedy as these a bunch of different doctors against and some of that distinction makes a lot of sense for me but the problem with that that circuit case is the facts are also much different here are they not in that the actions taken by the unconstitutional it officer were subject in some sense to further review i don't know that that's necessarily a touchstone i think at that a slightly higher level of generality the fessor gets intuition that those situations are different and might require a different among the parties as to very basic questions about how the agency runs what the director can do even what removal regime exists i think there are tax panel had to adjudicate a fight about specifically whether the a l j removal standard applied or whether this was an a p j specific purpose or that the efficiency of the service standard those are all issues that the agency could have whether it would have or not truthfully addressed moreover i think they can they can provide a factual and legal discussion even if they can't rule it out to congress unconstitutional that's right your honor and i think that the supreme court's subsequent decision after d v c and elgin really makes that clear that where there are statute here but i think what a patent owner wants is the inverse in a lot of ways it's not that they want a constitutionally appointed board they just don't want their hadn't invalidated by an unconstitutional board and if that's what they want the agency let's just suppose that the agency when faced with appointments cust challenge that to itself then yes we've got a problem here we want to shut it down it could have simply declined to institute p r s this is not a situation where the agency is obliged to having to file multiple rehearing petitions in multiple cases that are reminded i also want to know i am aware of one remained having already occurred on thursday i believe it skate  that we find a very troubling situation where we were not permitted to use our statutory right under two thousand four hundred and three to become a party where an act of congress is being challenged and potentially invalidated in a way that results  as this panel cannot today issue a decision inconsistent with our tracks we think the fact of the arthur x panel's constitutional ruling to go into effect immediately so we do not understand different things doing that we would be on the same schedule roughly as are threats if you wish to decision relatively promptly following our threats and therefore the on bank timing would be relatively similar  for two reasons no one is there is no part in our threats to help the court understand the other side of the question of whether they are threats remedy is a factor because all parties there agreed it was and that's a huge issue but the nd point  which your honour's and i discussed with the government of some length is that in our threats there was a waiver question which affected arguably at least according to the government both the question of whether the patient heard it all and the remedy that's not important but that's why those cases are more appropriate vehicle is for both on oct review because you have someone able to make arguments and help the court address an issue that is going to be of paramount importan it takes away an argument that might detract from us and so i think for those two reasons there propre a path is to issue a decision in this case following our flights we would then file a petition fro arrived at some time so that the court to consider them at the same time if we're offset by forty five dollars days or so then i think it's more difficult for the court to coordinate that and decide what it wants to take up and how and and there's no positive reason to do that because for the same reason that our threats doesn't go into effect until that mandate of the remand doesn't happen etc these are desires and if the mandate doesn't happen because there's an arm bar petition that's been granted in one case or the other issued well the negative attack is that not i mean if you're clearly willing because you have other arguments to briefly hearing now the negative effect is that if we do this in every single case where knowledge or ability to participate and that's something the government can intervene to request something to happen if you want but that doesn't affect this case where the government has had all of its rights and appeared repeatedly and that is used quite clearly i do want to address quickly a couple points has refused to talk about this being a mosaic and you don't need full plenary absolute innova review and i think there's some force to that there are cases that talk about meaningful and sure but that they have that now and something that we can fix but there is no case that i'm aware of where full termination at will by itself was sufficient without some form of meaningful form of review and counsel argues there's review in the sense of presidential decisions or things like j speaking for the for the executive branch or not and if there's no a level review that's meaningful and substantive of that decision then the answer is they are and that's i think that i'm aware of no supreme court case be in internee for review there in that instance is that that directors only one of three and that the review is being done by the board the decision has no review that but it's it's not that review is not by a board that is people like the director it's two people who are unconstitutional so the answer is there is no review there is no review by a constitutionally appropriate board before it comes to th