from arguing before the a o jury that he has a leg injury and then arguing for the st time in district court that he also has a back injury so that he can get only you know it so i can find the apple to recover an award jury proceeding is that is the st step and sort of is when everything gets put on the table and it seems that it might make more sense to require you know the waterfront to be covered there like that they had a personal stake in the case for the st time in court that was still fall under the new evidence borrowed by g b trying to prevent new evidence and unless it were both material and something you couldn't have presented before you wouldn't be able to we're talking about a closed universe few one hundred cases and there is no indication that the agency will struggle in any way and claim it simply giving claimants new hearings and the settings just prior to questions that are related one is what ground to use among several to do than to say that you don't have to raise it if the ground is the structure of the social security administration i do share the chief justices suggestion that not necessarily new evidence but lawyers are very imaginative they're very good you said in your office you think of excellent argument that people actually have never read this before and you bring them over to the district judges now why isn't that a problem you may not want to say anything extra  haven't already if you go on the ground well they could consider this the a l j is it was futile because the agency told them they couldn't move the agency tell them that after your clients were involved in their case let me say anything about those further about those sure so two points st taking it the nature of the social security for a sitting us i do think  actually resolve a lot of the concerns with respect to whether orders are going to be facing sort of new evidence new arguments and have problems with them because most errors that are being raised in court are things of a rose and then in a way that a decision similar already and accountability i don't think that we would even need to show that because an appointment caused violation of structural but the court's cases i think i have had long emphasized that the appointment causes not just the structural constitutionally goes into real estate in this case the a l j was appointed by a lower level of social and now it has been reappointed along with all the others by the acting commissioner so is reserved for someone who makes a timely challenge if we rule in your favor and remain with the made the courts below still deny your relief on that supposed to raise the appointments with him actually really inequitable even if there was some sort of some sort of power to tailor remedy in the fashion which and i am not sure where that would come from well i'm thinking of a leave those question and it seems to me that last question just remind me was this petitioner represented by counsel before the agency imagine that the claim that your clients failed to read this was not this sort of legal slash constitutional claim but really was related to the fact finding that the j had done so for example a question  hypothetical is actually squarely console based and been two questions and samson were not exhausted one of them was about the l g s potentially improper questioning of one of the witnesses and the other was whether the that's a put but there was a political in the appeals council which justice o'connor was where it had given claimants the wrong impression and that they would rely on it to their detriment so can you really just rely on sims for clause issues if they're raised in front of them was said public or was that how did you come to find that so it was very difficult to come by because emergency messages in general are made is something that come from what had been evident beforehand which is that i don't think there's ever been a point beforehand where the social security administration thought that it did have jurisdiction over appointments clause challenges i think what the emergency message also that the agency was very very aware of the employment got a problem and so it's not like the claimants were needed to sort of withdraw the agency's attention to the fact that elegies were likely unconstitutionally appointed the agency knew that and in keeping with the just fundamental nature of it the tory process told the l a j s you can't actually deal with the appointments so don't do anything about it and all of that i think builds up to a clear case of futility under the cour underscores why the social security policy nineteen dash one p that they got on point two is such a low remedy that it's not getting it is essentially work fine people long after the time pass when anyone would be able to do anything proceeding and is confined to that context because what it said is that the general rule is that you do not be agency decision if the unless the agency had a chance to correct an error  adversarial and non adversarial proceedings i'm wondering how unique the social security administration is to me and so you point out that it's not adversarial it's informal you know sems made those points to if we were to haul your way would we be you know saying that there are other agencies in which this exhaustion requirement did not apply well i don't think that's a big concern because the  their own authority and including an issue to exhaustion refinement if that is appropriate and refined you know what they want to do and they can calibrate them and they can make the sort of hard policy choices of deciding whether they want to issuing the option to apply just some pretty things some types of issues some types of claim and some types of arguments and that is exactly what the rule making process seems designed to accomplish by letting different stakeholders way and figure out the pros and cons of doing that of those other agency context the issue exhaustion rules are imposed by regulation yes one other question about the social security administration so you know justice o'connor's opinion which was the narrowest and so controlling under mark focused on the lack of notice and you know i'm i'm just wondering whether you know how how common it is in proceedings before an alj a for a social security claimant to raise a constitutional issue or some sort of legal challenge that's unrelated to the facts of the disability claim well my understanding is that it would be very uncommon and we certainly know with respect to the appointment that zero claimants according to the government will raise an when the government appeals to equity do not add up and exhaustion rule would disadvantage hundreds of thousands of unrepresented claim and the government never explained why people in dire need of assistance would hold back please the court to resolve this case the core need only apply either of two well established rules the st is the one hundred year old rule that a party challenging agency action forfeit issues not raised during the agency's proceedings the courts of appeals have consistently applied that rule in the specific context of social security a l j proceedings for decades petitioner suggests that the government is asking the court to change the rules of the game but the reality is the exact opposite the nd rule is that a party forfeits an appointment cause challenge by failing to raise it before the agency itself under the traditional de facto office or doctrine a private party could contest the legitimacy of an official's appointment only in a direct student against the official himself that doctrine prevented the enormously stabilizing consequences that could otherwise result although the court has since loosened the doctrine it has critically limited disruption by requiring a timely challenge before the agency enforcement of the rules particularly appropriate here where petitioners united in a fight any prejudice resulting from the allegedly invalid appointment petitioner's primary response it point to the court's decision and them but justice o'connor's controlling opinion rested on her conclusion that the agency it by simply misled claimant about the need to raise issue cases different regulations governing l j proceeding do not vote claimant and it thinking they may forego raising issues and the consequences of executing for a picture here would be far more dramatic where them involve the requirement to raise an issue before a particular adjudicator petitioners contend that claimants may decline to rate an issue before the agent be at all the course of rejects if you and me were just sitting in your living room talking about your life it began by saying the appointments clause is concerns are well established but i don't think they're very well known  you know it's hard to imagine people sitting in the living room talking about their lives and saying how but important a role the employments clause has played you know when they were or were growing up it isn't the expectation that claimant would raise an issue under the appointments clause which however important to you know to us lawyers is pretty obscure in such a setting where the ail j s themselves view it as a very informal and casual setting i don't think so your honor the regulations here on materially distinct from those in sam's and they make clear that the claimant have to be an active participant including objecting to prejudice on the part of the a l j and in other context we require pro se claimants to abide by procedural requirements and would for example this court rejected arguments that represented prisoners shouldn't have to exhaust properly to satisfy the p l r a exhaustion requirement and so i don't think requiring claimants to raise this type of issue here is in any way unusual and on top of that there have been some suggestions that a l j has an affirmative duty to raise the appointments clause argument for the claimant but that's just not correct dale jr has a duty to investigate issues that were raised by the reconsideration decision but of course the point is cause she wouldn't have been raised by a reconsideration decision and then has the discretion to raise additional issues but there's certainly no duty opportunity none of those requirements exposed to the appeal council stage you also have an entitlement to an a l j hearing you do not have an entitlement at the appeals council stage and nd i think there's the structural point which was touched on questions earlier which is that the a j stage is the main stage that is basically the trial for all the evidence but for that for the most fulsome arguments are developed the appeal consultation contract you don't have an entitlement to a hearing and the appeal council declines to review eighty five  we are not advancing the argument that any particular regulation requires issue exhaustion here and there's obviously a change cost to adopting a regulation of that behind and i think the agency hasn't felt the need to undergo those costs given the well established background rule i think it's important not to lose sight of the fact that the courts of appeals have virtually uniformly applied to adoption requirements tail j proceedings for decades and apart from the three circuits in the circuit under the circuits but under review that have sided with petitioners petitioners have not identified a single court of appeals in history that has rejected issue is often a tucker and i don't think there's anything unusual about that because it goes to the type of arguments that the courts themselves will consider and obviously those are an a dyna you know our legal system is littered with those sorts of rules for example the rule court will typically only consider things that were pressed or passed on below or the rule that a court won't consider arguments raised for the st time in a reply brief those are all common law rules we acknowledge because this is a common law rule rather than a we we agree with justice barrett that justice o'connor's opinion and sam's was controlling and she was only willing to dispense with the forfeiture rule because on her reading the social security administration had effectively misled claim and i don't think there's any plausible claim here given the regulations i've cited and given other aspects of the proceeding that the agency had misled claim and the non adversarial aspect of the proceedings were not alone be enough and i just want to note that a tucker of course is not the only basis on which this court could rule in our favor as a writer and lucienne the de facto officer doctor in our analytically independent basis for ruling for the government and the rule in those cases doesn't depend on the non adversarial was futile and indeed it wasn't because the commissioner had the power to ratify ala j which she eventually did add to the constitutional issue that you know we do not agree that there is a categorically quote categorical exception for didn't really need to adopt a regulation and i guess i'm just wondering about that because you told the court in sims i think that the s s a had the matter of issue exhaustion under review and the court specifically noted in that opinion that of course s s a could adopt a regulation mean if this matters so much to s s a seems as though it would not have taken a whole lot of effort to adopt a regulation is certainly possible that this case and the agency could have done so and we agree that it's a step it could take but again there are change costs associated with any type of overhaul like that and particularly in this context where the thirty case law has been virtually unbroken for literally decades i think the agency has justifiably felt that it can rely on the back ground rule without the need to overhaul that through a regulation how much is that relying on the back ground rule how often a and exhaustion claim in court i think it varies your honor depending on the types of claims that are being raised by claimant so the agency for example is much more likely to raise a forfeiture argument against  represented claimant and against an unrepresented claimant and then of course there are certain issues that come up periodically like this one where like the appointments clause issue where they will be forced to raise its option basically across the board to ward off a large number of claims and i think it's important to note just eleven point about the number of claims here but stationers argue repeatedly that there is not a large number of claims remaining in the pipeline but i think it's a little asserting well there's not many left but there were a lot at the outset and if the court adopts petitioner's rule then we wouldn't have that defense available going forward just to give you a general rough picture at the time lucido is decided if you look at the cases they were pending before the appeals council they were within the sixty day limitations period and they were pending and district court had taken under petitioners will all of those cases could raise an appointment clause challenge that was on the order of about one hundred and thirty five thousand cases so the numbers here was that a purely an internal document that someone in the public or is that something that was published to notice and comment or something in between it's something in between your honor those messages are direction r rayner you rely heavily with respect to sims on justice o'connor's opinion but which was concurring in part and concurring in the judgment miss harris points out and justice o'connor joined part two way of justice thomas opinion making that a majority opinion and that itself is sufficient for the rule that miss harris is advocating here can you respond to that ye obviously i majority didn't join that part and it did in that part of the opinion did knowledge that the adversarial quality of the proceeding is a relevant consideration but i think it's pretty clear that justice o'connor didn't think that that was to decide the case and so if you view her opinion as controlling which i think is undisputed then that is not dispositive the court has to go further and ask an additional question and under her opinion that additional question is if the agency effectively mislead the claimant and i don't think petitioners can make that showing here and again i will just point out that ellie tucker and sans that that is one way to resolve this case but the defacto doctrine is an additional basis for ruling in favor of the cavanagh just pointed out that portion of justice thomas as opinion did commandement surety of the court one of the reasons you know in an adversarial system the issue exhaustion requirement makes sense is that both sides have every incentive to raise all the issues that would benefit them in this kind of proceeding which is not an adversarial where claimant has come to the social security administration income today l j wanting him to give her to give the claimant benefits what incentive does the claimant have to station to l j you know you actually can get me benefits and you can't educate this proceeding because your appointment should have been made under the appointments us especially when you know the claimants interests and speed of getting the disability benefits as soon as he or she can so if you could address because they had a real personal interest in having the dale jr pointed according to the appointment because i think they would have an incentive to raise that early but your question i like the threat of sandbagging here i agree with you as a practical matter they don't have an incentive to raise this early this isn't like a medical argument that they want to raise early to obtain their benefits early because whether the a l j was appointed under one of the methods specified in the appointments clause or not really has no effect on their likelihood of success on the merit free do over if they weren't successful the st time around which is precisely what is occurring here i agree with you about the practical incentive and i think that confirms the threat of sandbagging in this particular context well it also raises the question of why an issue of fashion requirement makes sense in this context but let me put that aside because i do want to ask you do you agree with ms harris that the only other agencies that this whole thing might affect would be the v a or the railroad retirement board that categorical and with respect i'm a little hesitant to weigh too much into other agencies because there's a lot of litigation ongoing involving the other agencies and whether or not their regulations require issue exhaustion thoughtlessly to the extent courts rejected those arguments then we would be reliant on the common law rule but just to be clear the social security administration is obviously far and away the most important for this question i mean it has six hundred a l j is mr chief justice i'd like to focus on just a couple of topics petitioners presentation has focused heavily on the notion that it is unfair to expect on represented claimants to raise legal challenges before the agency this court has already rejected that argument and would st which involved in ministry of exhaustion by on represented prisoners the baseline rule in our legal system is that if a party chooses to proceed pro se he is still responsible for wasn't entitled to these damages or if you know i had this i never got a letter from the government saying this but they don't raise that until the district court i mean it seems to me that that might be a stronger argument  waiver than the appointments clause is there is there any basis for for such a sliding scale approach i don't think so mr chips i think that the better approach here which requires the least policy making by the court is just a clear background rule but if the court wanted to calibrate a rule to the pacific circumstances the issues to focus on here would be twofold one is that this isn't the kind of question that the ail day has a duty to raise and so there's all the more onus on the claimant to raise that and then back again i think the main thing that should drive the analysis in this case is the fact that there is no allegation of prejudice whatsoever and so the unfairness the alleged unfairness of the claimant really should not be the motivating factor here because  justice alito pointed out there's affectively no purpose in that do over it's just imposing but if labor on the for no real benefit well but you really need someone in this position to be able to raise the points appointments cla concern or it just isn't raised i mean it is certainly designed to protect the separation of powers which is designed to protect the liberty of all of us so i think there is prejudice in that only way to obtain a remedy for this kind of alleged harm was through a writ of quo or auto or the officer was a direct party in the suit in another party could obtain perspective relief now i think the  case then that preserves the argument and you can obtain relief on direct review of counsel if the only reason for providing relief in a case like course is to provide an incentive for parties to raise appointments clause claims does our case law allow us to draw a distinction between the party who gets to the supreme court or perhaps a limited category of parties who are similar everybody else who might be covered by an eventual holding that category of appointments was unconstitutional your honor i think there are certain lines the court could draw it could apply its ruling perspective prospectively perhaps of course there are hundreds of these still pending in the lower courts but that would eliminate many of the prior one could adopt a rule in a similar vein that collateral attacks  permissible but i think the right role is the one the court adopted in ryder which is that you have to raise that before the adjudicator before he acts on your case and that provides a sufficient incentive to raise these kinds of claims and that requirement obviously wasn't satisfied here lord nor in contains one of the court's most extended discussions of the de facto doctrine and in that discussion makes clear that it applies to constitutional claims and distinguishing some of those cases right or mentioned that they didn't involve constitutional claims but there i was talking about mcdowell and paul which were statutory challenges and the perspective rule the writer announces is that you have to raise a timely challenge to the adjudicator and so we disagree that historically this wouldn't have covered constitutional claims and if petitioners claim doesn't fall within the narrow exception that rider adopted which it plainly does not then it falls within the background defacto rule and is categor that the court should not fix the problem of the agency's own making that inverts was actually going on here this court of the plight of background exhaustion rule for one hundred years the courts of appeals have uniformly apply that rule to social security l j proceedings for decades and apart from the decisions in the circuit conflict under review all of which rely on reasoning specific to the appointments clause petitioners haven't identified a single court of appeals decision in history rejecting the forfeiture rule has applied a l j hearings under the social security act the agency has reasonably relied on a well established and virtually unquestioned rule and it's petitioners that are asking this court to change the rules of the game  are there any judicial decisions after stems which step to the government's argument on this question and there's about five courts of appeals that have differed that have continued to apply for fisher at the a l j stage after sam's cases are listed in pages thirty dollars thirty three cents of our brief petitioners have suggested that there are guardrails they would prevent any type of factual issues from arising on exhausted to the courts of appeals but i think as those j proceedings and the claimant will be able to object at that time so how many of those cases that you're referencing from the court of appeals didn't rely on other statutory or regulatory exhaustion requirements that are in place and so in this context in the social security context i think petitioner's argument really just boils down to since sams does not control this case the regulations governing a l j an appeal council proceedings are meaningfully different fail regulations require claimants to list the reasons they disagree with the reconsideration decision to object to the list of issues contained in the notice appearing to object to any prejudice on the part of the a l j at the earliest opportunity the appeal council regulations require none of those thing there's simply no plausible argument to claim it might be misled into thinking that they are entitled to sit on their hands throughout a proceeding under justice o'connor's controlling opinion misleading is what is required if the court has no further questions then i'll just close briefly briefly by noting that there are two independent grounds for affirming the judgments below st the court can simply decline to make an exception to the longstanding back ground rule that a party must raise an issue before the agency in order to preserve that issue for additional review since doesn't display several in this particular context nd the court can apply rider and she has a requirement that a party raise an appointment challenge before the relevant adjudicator before that educator acts on his case although petitioners have suggested a point that writer and that she can be explained by agency specific you thoughts in rules that argument ignores the actual reasoning of those opinions which do not  any such rule cases like this when they don't fall within the narrow exception adopted by right or are barred by the defacto doctrine on either of these independent grounds the court should have from the judgment allowed thank you thank you mr rayner ms harris but instead of relying on by court of appeals that have purported should to require at least issuing sashing for some people don't quite work out the circuit are either not acknowledging standards and therefore work wiring exhaustion issues that would cover because they are errors that are rose only in a o j decision or they're really explainable by a refusal to allow new evidence in proceedings which is already covered by a lot of different provisions would the agency never tell claimants about such a rule and if that is in fact the reality on the ground the government points to purported change the cost of not adopting a rule i'm not sure what change cottontail but it seems like engaging  making it where there is no that isn't common and people can weigh in at about the cost of unrepresented same as a particular of not knowing that they have to raise issues g o g is and how people are supposed to navigate obtaining council what the penalties are would seem like something that the agency would need to consider instead of trying to ask courts to read in a requirement that seems so fundamentally in tension with the regulations that the agency has adopted that of all the government point to a lot of numbers and projections with respect to stability and suggesting maybe a one hundred and thirty five cases kind of raises the appointments process problem but there are only eighteen thousand cases in court every single year for social security claimants of any type forty five percent of those but i don't think the government disputes that if it were proper to hear an appointment because challenge on america the new hearing before a new l g should be a remedy and i'm not quite sure we are getting the authority to tinker with exactly what people and claim and choose but