clause challenge at any point during their administrative proceedings instead they race i claim for the st time in district court under longstanding principles of administrative law courts do not consider claims that were not race below particularly when the agency had the power rule that the supreme court announced almost seven years ago in l a tucker which is orderly procedure and good governance dictate that claims that were not raised during an eating cease proceeding should not be the basis for judicial overturning of typically the pro se as i recall it's been over thirty years since i last one of myself but you don't have to be an attorney to even represent folks before basically the that sort of sets these kind of cases apart from some of the other cases that the court has addressed don't you don't you agree certainly there are an adversarial but i'd point out that both plaintiff here were represented by counsel at their l j proceedings that's attorneys who are representing them at that time and so look i mean it doesn't just apply just that these ones who are in fact represented will plotty anyone who come up so in any pronouncement we make here today and s s a proceedings you can do what the th circuit did and it's a t v decision which was to say that our role here is for counseled claimants in these proceedings and when we encounter a case that has a pro se claimant will decide that case on those basis sees in the particular claims that are then true here so i don't think that you should be letting the fact that other plaintiffs who aren't in these cases might have been under represented at s s a proceedings they take the outcome in these cases i mean the fact that the  allow anybody to come into court as plaintiffs advocate as a categorical rule and raise for the st time any legal claim of care even if it was never presented to the agency when the agency could have had an opportunity to consider and provide a remedy or correct the rationale that the supreme court applied and since not out the couple here what's the practical difference between the appeals counsel and the a l j that would cause us to reach a different result sure so the primary errors in the case and in the form that you have to request the bills come through you they provide three lines the potentially identifying the issues that's fundamentally different from an in person hearing before the l j where you have the opportunity to testify provide evidence and raise any legal claims of error that you would like as we noted in a reply brief in richardson versus probably as a constitutional challenge the s s a procedures right the attorney in that as a sales date hearing raised the constitutional challenge almost fifty years ago it's well understood that you have the ability to raise the claims that you want to and the sorts of appointments cause claims were being raised across the country in different in ministry proceedings and what it was th to say that the rationale for not applying an exhaustion requirement is there was no notice that seems to be the central issue she then goes on and says that that's particularly the case for some other reasons but her her holding is that there was no notice what if if i interpret her decision that way as only permitting and issue exhaustion requirement in an s s a proceeding where there is some notice is there anywhere i could look to find that notice in your statutes regulations look for being on the roof of the claims i don't think that the need can say that both me to be manifest and a statute or regulation because otherwise that's changing the rule from one about whether anybody had noticed too is issues often codified in a statute or regulation and we if the judge a l j announced it when you walked in the room so maybe i'm just looking for some kind of notice i get it doesn't have to be in the regulations i mean you know but is there anywhere i would look i mean i tried to look at the forms and i just didn't find any place that i could suggest that there was any type of notice statute rude regulation pamphlet announcement anything and i just want to make sure i'm right that if i read and understand your point about just o'connor's opinion but if i read o'connor's opinion to require some kind of notice is there anything that you would point me to that provides that notice and point in point the court to the th circuit sufficient car that considered this issue right and there the court identified several f s a regulations where it says you know these are the regulations that say if you have objections or claims of error in the l g hearing this is when you raise them these are the time periods for them etc now we are arguing that those regulations impose an exist routes often aren't by themselves but i do think if you're looking for notice that the why i don't read the nd sentence of that as imposing in each you exhaustion requirement i understand you haven't argued that and it might be waived but as opposite of the court why is that not an issue exhaustion requirement we just haven't argued that that has been an issue of golf from a parliament and i'm not here to say that if you if the court is from read that on its face and believes that it opposes one i'm not here to say that it doesn't but we haven't made that argument here and what we're arguing is that the back room rule that's the supreme court explained in cases like l a tucker and again and went right where the supreme court granted relief on an appointment cost claim with the court said  entitled to really because he quote kindly raised that claim before the commission and the agency and then continued to pursue it on judicial review in the court of appeals and the supreme court right plants rule is that everybody who has raised this claim in the district court is entitled to relief on that and as we've described that's potentially you know as i say educates over seven hundred thousand cases a year and there are tens of thousands of cases that could go to court now in most of these just report cases the district courts applied the proper rule which was issue exhaustion which was you didn't resist playing for the agency when the agency could have appointed and given you a hearing before d a constitutionally appointed officer and indeed that's what the agency has done there's no doubt that the commissioner possessed the relief to grant possess the power to grant relief on these kind of claims and if they had been raised at the time that's exactly what the th circuit noted is that you would have had hundreds of these claims before the agency and the agency could have a lot of these district courts reach the proper conclusion was because of the how they had the proper rule because alternatively if all of these district courts had decided instead of issue exhaustion that no you can raise this claim for the st time then yes that would have been thousands of to s s a and the harm isn't to the agency right because the agency has capacity to andle a volume of these cases the harm is to the claimants who are waiting up to two years to have their st failed think hearing in a number of those  says they had some level of expertise you would toss them out medical testimony this is a constitutional place what is the a l j some specific started to be able to address the appointments call directly answering aren't question the agency doesn't have special ops expertise in constitutional claims for large but this is a constitutional claim saying that the commissioner of social security should appoint c l k and it's something that commissioner can do and indeed has done if those d are the kind of claims that were presented to the agency then he agency could address them and provide relief on those grounds and that's exactly why it would further the interests of if you exhaustion and picture because it's allowing the agency to address the cream of error in the st instance and even if the agency doesn't do that as the supreme court noted in early pucker is at least advising the agency that it's risking all fail reversal on a number of cla that because i think the rule it will go across the board but but but the the bottom line being is that at least in a tent in a circuit you did have a statute that required this objection there's no such thing here and there's no such  seeking relief on their disability claims there was not a statute or regulation and what the it's and th circuit explained in those cases is that is not the end all be all the background role that we start from is one of issue exhaustion and what we enquire understands and under the other that the plans rely on is whether or not we should be creating an exception to that rule and as those cases very ably described we should not be creating an exception to that rule there's no basis for it the agency can address the claim the  only dealing with administrative the exhaustion of administrative remedies but if you look at the last page of that decision four hundred and thirty dollars and it says there the plaintiff once read the constitution claim the agency proceedings and put no three says indeed it has done so it's raised that claim  properly appointed those are now time are you still have to file a civil action in court within sixty days of receiving a bioethicist of the commissioner we really are not talking about thousands and thousands of cases we're talking about maybe a couple one hundred address quickly a couple of points that were brought up as you know when brought up regarding this making a difference for represented versus i represent the claim is that something that justice o'connor specifically cautioned against in that was not a road that the courts would want to go down because of the complexities in that because of how it would have different rules for different people and it was something that we should really try not to do and regarding  t having bias against the claimant then his playmates let the women you know i want to understand that because i was going to come to this but since you brought it so it doesn't actually say that right so it has a prefatory sentence that talks must notify them at your earliest opportunity that that nd sentence doesn't strike me contrary to your your colleagues you know doesn't want to raise this but that strikes me as saying you must raise an objection at the time what why is that nd sentence limited by the st was read take your argument to be i would say a couple of points about that for one thing we have they're selling the remedy that the agency can give to the claimant they can just assign a different tale j a they also just as they subsequently did the agency could reopen point in the proper manner all of the ail james i mean we know based on what ultimately ends up happening after lucio that the agency could remove the this appointments cost problem and that's as a point i'd like to get to it's notable that in security knew that their energies were not properly appointed i view points lost yet they waited for eight months to do anything about it after the supreme court and the chia and the solicitor general forced their hand on the issue they were even telling their own adjudicators don't do anything about this don't even entertain it so they were aware of the litigation risk that was posed by this but they chose to do nothing and i think it's an important point to note here that the claimants in this case didn't have publicly available knowledge of the sale j s were could not have figured out that there was a potential appointments clause challenge until after lucio we don't know how they were all challenges being made and this wasn't like a an audi issue right they were i mean just so he made  say but it i mean i'm just want to go back to the non for the actual make sure that you've given the argument that you've got for why this doesn't impose an issue exhaustion requirement only on this narrow piece i'm not talking about other issues it only relates to you know an objection to the a l j it's like quite specific in requiring that issue to be really at your earliest yet i don't think that america can be divorced from the issue of bias that is how that is practiced that is something again that could be addressed by the agency and it's something that if they set out that way if you think there might be a regulations that you have to look at the nature of the claim contrary to a counsel saying on the other side here the supreme court noted mccarthy vs matt again that the nature of the claim is essential to deciding whether or not issues action should be imposed and i would also like to clarify nature of the claim something that agency is competent to address and also the governmental interests were balancing individual and government interest government interesting usually implicated with exhaustion when it comes to the ability to correct the error but also the competence of the government to address it and neither of those things are in favor of having issues here where a constitutional challenge something that the l j is not an expert in that's something that article three court needs to be looking at and also  specifically in matthew's versus eldritch as a case that doesn't get a lot of ink spilled on it from the government side the supreme court said that it's a claim in a security hearing should not be expected to have to raise a constitutional challenge qualified so i how many what is the percentage of these cases that are not represented it's approximately thirty percent have no representation you don't have other people as you noted earlier who have not attorney representation that's beyond a very percent and got people who are disabled or claiming disability of various types and whatever's there could be mental disability and yet to hold them to the stand it seems to me just just  thirty eight requires the ael j to provide a notice of the issues that are going to be decided and then four hundred and four thousand nine hundred and thirty nine tells the claimant that if you object to the issues that are included notice then you must notify that ministry of law judge in writing no later than five days before the the hearing and that doesn't exist in the appeals council i mean that looks like you get a notice with a list of the things i assume in your client's case that list did not include the constitutionality of the appointment of a l j and then nine hundred and thirty nine says if you think there are other issues right if you object to the issues to be decided you must notify them in writing so unlike the appeals council this now i get maybe in your st argument i'm sure is your opposing counsel's way of this argument and you may be right about that but go to the merits if you would of why don't you that as a exhaustion requirement unlike in sims because it doesn't require you to raise additional issues in fact if the regulations say we will tell you the issues to be on issues it be decided there is if you have any objections to how the agency decide on a case of the initial of reconsideration models so how we have already decided your case on your disability there is no regulation requiring you to affirmative that regulation and say that all of the issues that were adversely decided against you will be addressed and we will provide you a notice of those of those issues and if you had jack to the issue meaning whatever the issues you must follow you know a writing within five days before me it doesn't that nine hundred and thirty nine does not limit it to previously adjudicated decisions that are in your at the hearing right it's not limited right that's if you object to whatever the issues are to be decided at the hearing you got to object in writing ah i mean i understand the waiver argument but why should i read that to say they s us it doesn't say anything about appointments cause i look at it and say i want to complain about appointments called i quote must notify the administrative law judge in writing that i will that issue addressed as well and are you saying then that because of sims and the focus of sims on notice that there is no notice claimed in that i mean it seems to me that in a nutshell that your ca there is no notice in that and a lot of these regulations were in existence when sems came out and the court noted that there is no issue exhaustion required who are for any of these issues but who are so security we're not even looking at each particular level they just don't have a statute or regulation of points a lot of things were already in existence at that point and the argument is that yes there's no statute regulation on point and when you look at the factors under because the verses maggette the nature of the claim tucker it's a case that the agency relies upon very heavily and that rationale was specifically rejected in sense of the guard so security proceedings the court noted n l e tucker even though there wasn't a statue regulation on point that was an adver appointments of these people even though the individuals did not have notes of that i believe generous and noted that there were people raising these aquinas questions before that that was based on a suspicion that there might be an issue with their appointments we did not have knowledge the idea that this isn't within the agency's expertise to address was merely because it's a constitutional claim in nature it's a claim that this particular officer and l j should be appointed by the department head by the commissioner that something that the agency has the authority to do and that the agency did in fact that and the challenge that an agency appoint a hearing examiner is the exact same time the claim that was considered at all a talker that the court said you have to raise that sort of claim now plans counsel representing you know ellie tucker's in an adversarial hearing adversarial proceeding and therefore sam's explicit really rejects that that's not the basis for the holding and since the since notes that it's not adversarial  richardson's question justice o'connor's opinion pretty much turns on the issue of notice doesn't it i think again if even if you're having notice that's the background rule it's the come along rule that applies to all d agency proceedings is that you have to raise claims that you wish to preserve on judicial review but i think justice o'connor very carefully chose her language at page one hundred and thirteen where she said i write separately because in my view the agency still used to notify claimants of an exist issue exhaustion requirement in this context is a sufficient basis for our decision she's being really clear that that's why she's writing separately so why doesn't that in the inquiry here because i think the key part of that is in this context right the appeals council is acting as a plenary discretionary view body on which you have three lines to request review and identify whatever you would like them to specially consider that's fundamentally different from an ale jake's hearing where you're attending in person live with an attorney present if you would like one able to make any kind of claim or argument that you would like and then indeed claimants can make and if your claim is i don't think that you can hear my case and tell the commissioner appoints you if those kind of claims are raising the mystery proceeding  the th circuit noted in davis that's something that the agency is going to consider and ultimately as the agency did end up appointing all of these ales chase and i think that goes to the question of whether or not the commissioner before they what the agency did do which was ratify the appointments of all existing you know changed and plans counsel has noted that she believes that many of these claims might be time barred simply the lapse of time there is to know so not as one it takes a long time for anything to proceed from there is plans counsel stating that she believes there may be additional deficiencies in the appointment of the sale taste and that potentially there could be further claims raised on this so once you're considered to be an officer of the united states there are other potential constitutional claims that could arise and just the fact that there is then an initial point that's right if i had a reputation to be challenged people could raise other additional claims on that and a rule that says you don't have to raise any of those claims during the administrative proceeding but instead may raise them on judicial review for the st time is encourages people as both the th circuit noted and davis in the th circuit noted in car to not raise those claims in the administrative proceeding but instead to wait to see if they get a favorable or