what it does is it directs its its staff to issue what is in effect a complaint so let me let me just how we want come from so you can understand with one judge this goes on all the time there are millions of these things in these agencies where you then you can claim the wrong party and that's yours austin there's no rule they're not i don't they can change that direction any time they want they are not bound by that that's what a rule is it barring the agency gives them zero discretion there was nothing here that said that's what they meant to do well you're out there that's what the administrative procedure act says the administrator procedure rectifies a rule and the way of collects authority sierra club versus e p a and seventy three a third the thing is this is not a guy stopped this document instructs staff to name these parties and by naming the parties that cation of those claims it is a big big step which affects first my standard oil was a big big step and the petitioning point of it was furious that they were going to be made subject be incurred is not enough to give you a presence in court at this moment your honor a lot has happened we have been notified we have in effect a complaint filed against sasuke standard oil in two hundred  fifty cases the thing you're not anything you're missing is it goes on over time that the fact that there is a complaint issue or a shortage or whatever except in very rare circumstances where there may be a rule there is no rule here well i think what you have is an attempt by the department of labor to take something which clearly is a rule in their mind and call it something else and thereby it hope that they're going to be able to get out of having to escaping oh yeah they will if you follow the procedures the exhaustion procedures the challenge that you're now claiming to be properly raising in fact i think there is already one case where you did raise it properly no we didn't raise it we haven't been able to raise it we've got no discovery we've never been given any discovery by the party rhetoric there's i this is my way this is something about whether you whether you're able to raise it in the form you would prefer to do what you are absolutely allowed to raise this in the event and i still think there is something in the record to get this has come up in one of the proceedings where if they file a charge against the company that or the company entity you think of the wrong one you can say no you cannot adjudicate this a guess that is a totally legitimate the fence you exhaust your procedures and then you come to the court of appeals in the event that you lose that's when this happens but your honor i don't think this follows the plain language i don't know what to tell you i mean it's just there are tons of was totally inconsistent with what you're saying mining is irrelevant because it was a rule making there there was no question there was room making that the agency meant to bind itself it had no discretion on the bend of the spear the test was met the rights and legal obligations were all fixed and changed that's not what happened here yes it is the agency ballot itself it isn't it there's no there isn't anyone the compass is this action by the department the department couldn't do this as a rule so what they did is they could look cheated they did it as a bulletin and they couldn't do it as a rule because it's extremely retroactive it has a significant statue it's contrary to your past practices and precedent you should be looking at patriot all your make every argument you have and you lose and then goes up question you lose again and you come to court would you be able to make all those arguments in court we should have been given discovery the imposition of liability was wrong as a matter of fact a matter of well well you know the thing is that i don't know what arguments we can  board is basically in the same boat and then you know you go up that we have eight we have fifty companies eight courts of appeals these cases that go all the way take seven to eight years or more to do and so what we have here is a statutory scheme it seems to me that gives us an opportunity to get relief without having to have this fight with the agency which is going to go on forever and also you know even in any way i think it was recognized that that you know to go through this process is getting absolutely nowhere can't get discovery can't get a witness and the thing is that they're not going to get an education for me ok the thing is if what this comes down to i think is in all the cases the principle that is emphasized most is the intent of congress of this reflected in the language of the statute and it's reflected in the process and the intent of congress cannot be this it seems to me i mean you can make you can certainly make the argument that you know we could do it you know i could do it and you know you can do these things someplace else maybe not as efficiently maybe inefficiently but the fact of the matter is that i exclusive remedy that is afoot is in the long shot back to place here a place only to compensation orders we don't have a compensation order here what we've got is a bulletin which is a rule which is producing all the effects that rules produce we have to hire kelso we have to do all of those things that rules require you to do but it's not a compensation order and so that limitation of strict limitations is very all of its legal claims in the administrators proceedings and indeed it has an arm motion for judicial notice of the documents that have been filed an ongoing agency proceedings starting at age forty six through page forty  should there be such an across the board ruling in one of these proceedings or when they just have to get that same legal and validation of their liability and every single case one of time sure so the benefits review board can and does his two presidential assist decisions that would be binding across all the able to decisions those can be appealed to the regional courts of appeal so you could get to just review at that level the board essentially dissin validate the ballot and say there was a wrongful for whatever reason just hypothetically a wrongful imposition of liability sure the board could say that well the department is relying on you know seven twenty five point five nine for a four to explain why arch is liable that's an incorrect reading of that regulation for whatever reason but that's again  potentially liable to pay for benefits in these cases you're no party to the proceedings let's begin and that's at the core of these proceedings the third is agency expertise as well as question goes to show the agency can bring its expertise for on it it has expertise with respect to the black lung out statutes and the department of labor's regulations and as a threshold matter to me to determine in any of these cases that will in fact isn't liable for a variety of reasons the claimant is in fact not entitled to benefits or the claimant actually didn't work for get played out and then they go to the regional courts of appeals it's a different question is whether they really meant to argue that they tried to adopt a rule without following rule making and that's impermissible what you're headed for that that's a question i think their claim that it is a rule and therefore it should go to the district court at least for me makes no sense because that's not what mining service because you all right enforce rules all the time so that's really not in my view proceeding and issued an interlock tory order and there the petitioners came to this point and said that's a legislative rule that was promulgated without notice and comment that's completely improper we want to challenge it and what this court said is no no that's not a final order and you don't get to come to court and as i understand it in some of the cases that are before the administrative logic just arch hasn't even appeared before those hearings but the third thing is is if they have been wrongfully denied any discovery about those issues that's something that the l j can say wait a minute the district before the district director or if not they're the algae can they get discovery of something like hey what about patriot coley need to see what happened to their money or is that not going to be allowed because but it would be impermissible that if they sought this discovery before district director or didn't work there before an allergy to deny him his coverage into other potentially liable companies companies that they say you're only look to me because you say you can't that that well has run dry it's well it's run dry that's the only reason you're looking at us and you're wrong that well isn't dry i'm not sure about the impermissible portion of it because i'm not sure about what harmless error rules pacifically apply in the proceedings when discovery what are you doing by passing your last employer and coming back to me the last employer had a pool of money that's where you need to go now i'm sorry you are not sure about that i don't know the standards of discovery before the district directors i know that discovery is possible but i'm not system doesn't allow structurally doesn't allow that claim to be addressed with that be problematic no i don't think so if i can explain why even assuming that the dish reporter sorry the district director is tonight's coverage across the board the o come to us and argue that it's not an error the system doesn't allow that type of protein third parties and now might be the case aren't you saying that in the illusion of this to this if we say that it goes that's the end of the question you know the words that party's claims about the need for discovery we agree it's there it's something that they can probably raise and if they're impermissibly deny that they can come up with a challenge that would in the question that's correct and that it can be channeled through the courts of review and if the agency want to try to make sure we wouldn't be committing some error of our own by same that that type of discovery is available that's what i'm asking right or is there something in the regs anywhere either in the bulletin or in read somewhere that says they're not entitled to discovery no i don't want to we can't quibble and it's going to be not important seems to me that any party who wants discovery always says they don't have  says you can have reasonable discovery in the regs i am not aware of the regulations this is going on for have been informed that they could receive discovery on these issues before the next question is discovered what i believe a discovery related to their claims generally we i'm who has real needs to be taken care of in the labor department is reconciled with that so are we concerned with that but to the extent that it's going to impair our ability to have a case on this issue which we think should have been done in the room making processes it wasn't in any way and they couldn't do it the rule making process because it's already active nothing you know this is all about financial stuff and all of the financial transactions that are relevant here took place no later than two thousand and six and many of the earlier than that so the labor department knows because you've already told them they can't do it and then i'm a you can't write a rule that's retroactive so they did this thing which is a bullet and they could have called it a poppy that's that's not that hardly surprising the question is whether once you're in an adjudicator well their view the labor department has already argued in its briefs that we've we don't supply the only discovery we get is before the otherwise in writing these kinds of opinions when we were to address them we would say of course reporters and pintle to fair process and if that includes discovery in appropriate cases we assume a list as a rule to the contrary they get it that's what we were it's a rule that says no ok and what they do is they have a rule that says something and then they have briefs that say it means that we can about the briefs is there or in this case well all that matters is whether there's a they have never done it i think the third circuit in one case said well they could theoretically but it wouldn't matter because it couldn't be effectuated because the agency would take it up thing is what we're dealing with here is kind of a catch twenty two situation that says that he won a contest responsibility you've got to do it within sixty days before you know anything it's the this is that i mean the thing is that people are pretty  well schooled that how they're going to do this and the thing is it's not fair and which which one ok some twenty five or twenty see if are seven twenty five four eight now this is our ok this is before the district director operator which receives notification under seven twenty five four seven which fails to file a response time limit provided by that section shall not be allowed to contest its liability for the pain or benefits and of the ground set forth and some other than the noticed if you within ninety days of the data which it received notification under seven twenty five four seven operator may submit documentary evidence in support of its  the agency's record is not adequate we send it back that's the way it works which means if you didn't get the girl you should have gotten it cool if you're sitting by designation to do that