today i certainly believe the policy of having to have cases done twice and they don't have to be done twice and you can be is not only of the administration certainly the burden of puts on the claimants should be considered the standard of review who is limited to working maybe a couple of days a week she testified that she asked for bad days a week because a fiber miles or which she rest most of the day we have a medical examiner who testified that he didn't know whether she had fibromyalgia or not but if she  the record does not have to be unequivocal in fact i believe that social security really eighty three twenty even indicates that precise evidence another trying to treat chronic symptomology and she has had the treatment not only surgeries and they post her date last assure she had multiple gastrointestinal surgeries by will be sections and she started with those actually this is not somebody who just was into a doctor one day you know so i think the record speaks for itself i do not believe that locational has money is necessary because the rulings make it clear she can't do sedentary work at all that's the lowest level  requires five days a week eight hours a day so i was never an issue of what or from what time she is entitled to compensation i don't believe the onset date is an issue she good morning your honour's my name is sarah ryan and i represent the source of security administration of the system regional council here in and i would like to add on a personal note that it is a very great privilege an honor to be here appearing before this court today mister lipton started out by telling the court that this is a policy issue and reminding the court that it was a  reversal issue and i would like to redirect the court's attention to the policy involved here the basic standard of review that this court has before it did the district court abused its discretion  additional proceedings in order to cure defects that we ourselves at minute had occurred at the administrative hearing level and that is the policy that i ask the court to keep in mind the very doctrine of anything left as a matter of law and what is what's left and if in fact you credit the testimony that she can work four days out of a week what's left to argue about here factually onset ninety one or a few the onset date is important and yes it is important to fix an exact month from the standpoint of if she was determined to be eligible for benefits then the question is from what date does she resolved by the adjudicator which in this case went straight at large which and that's why i believe the district court order to remain for further proceedings because there are a number of questions about the onset date  i can't tell you after today but i can tell you that at the time the a l j wrote his decision she determined that she expects the a l j determine the climate finally became disabled and the question was did it occur before or after samples now and we're looking back from ninety six one year or two years it seems to me that makes a big difference because seem pretty obvious she's  jury determined that she had a temporary period of disability following that in order to have reasonable recovery recuperation but it was not until a year and a half after that that it became apparent that  she was really going to have to have considerable procedures thank you thank you very much  court found that she was credible contrary to what the commissioners are you doing but what the sequence of events are is we had a hearing in one nine hundred ninety eight and by that time the court as well with this lady had gone through in one thousand nine hundred eight and whether she was confused when surgery didn't really her problems after the bilateral carpal tunnel surgery didn't believe her problems her dream physician dr levitz began trigger point injections every other month since april of nineteen ninety two which also and was a federal employee who was dismissed from federal service after which he followed appeal with the m s t v he also allege that age discrimination was involved with his terminations and therefore became a mixed case with the m s p beat prior to the administrative hearing bankston proceeded to file in a timely fashion in other words within ninety days in federal district court in reno nevada what ensued was a motion to dismiss initially on that case which will call bankston one in which they move to dismiss based upon a failure to exhaust grounds that culminated in a colloquy between the counsel and the court whereupon judge mckibben ordered us to have ninety days in which to attempt to reopen that matter and then come back to him if  advised him if we have been able to reopen it if we could reopen it then he addressed the issue that was presented at that point in time we attempted to reopen an m s p would not allow us to reopen it so we did come back to judge mckibben and the issue was again presented the procedural posture within which it was presented happened to be a renewed action because he dismissed the previous action without prejudice to bring a second action and there was no issue regarding limitations periods do that order the district court considered the the new briefing did not have i believe the subsequent arguments i'm sure that the district court considered the transcript because it ordered the transcript on the previous hearing and they made a decision and the decision was not based upon nor did it address the question that was left open in stevens versus the department of treasury and that question is whether or not under the ada a federal employee is required to exhaust his administrative remedies our position in this appeal and now below was that as justice stevens in his concurring opinion indicated that there was no exhaustion requirement in the eighty a and therefore for shorey you could not have an abandonment argument to apply as a credential consideration by the courts grafting something into the legislation that wasn't there administratively you may have regulations under these cases that address this issue and under the congress created this remedy under addressed whether or not a final agency decision was necessary in order for c to federal court and as indicated in a justice stevens concurring opinion in stevens versus the department of treasury what as he saw what the courts would have gone this way the sec the third circuit the first circuit in castro the believe the third circuit in patrol these other cases that have been cited in the briefs and in the decision below have have upon this statutory scheme and analogy or by analogy or requirement similar to that in title seven where there is none that exist in the only circuit that out there that really has candidly addressed this issue i think  it in langford and they looked at and they said there is nothing there to require a final agency decision under the eighty e a there's doesn't make a difference so if the action is still pending at the time of the civil action is bro that issue isn't here thank goodness because in in the fact the fishing which they argue is not applicable anymore but there is a part of that back to fish in the very last paragraph they they say that the primary purpose of the exaction requirement is to prevent simultaneous proceedings and i would i would imagine that if that issue were presented to you you would have some serious prevention concerns because you're you're you're you're double tracking it and and that in that instance it's not here though fortunately for this court that's that's another situation where you would have some serious credential considerations of play where you've got a complaining party charging party attempting to dual track things to get two bites of the apple essentially we didn't get two b apple here we decided when i got involved with the case and i don't know if this in the record but just so you know i became involved and i did not want to go to that hearing i did not want this is due to catered by the administrative law judge and i advise a client that we can get out of this i reviewed the case  respect to this and and i knew this issue was going to come up i was almost certain it was going to come up and here we are today addressing it we're not addressing it because i'm concerned about my potential problem and advice and the client to drop that we're addressing this because it's an important issue and the question i think really comes down to can this court look as the court below did look at a regulation of the e e o c is promulgated that says here's a three avenue she have to go and you can't go to federal court until one hundred eighty days expires the process or one hundred twenty days expires with the m s p be processed and then you can treat that is finally just a decision and only then can you go to federal court where the congress has not imposed any such limitation where congress has imposed such a limitation the courts have been correct in coming down and applying as a credential consideration the requirement that if you undertake to exhaust your administrative remedies and abandon them if you're stuck but in this situation you don't have that and therefore by imposing that credential consideration in this case under these facts this court is grafting a prudential requirement or limitation where congress is not even spoke for spok and i think that would be inappropriate for this court to to undertake that type of judicial legislating our congress has been silent and we know that we're congress has wanted to speak about the issue that is done so it is done so very clearly under two thousand and sixteen title seven requiring exhaustive requiring a final agency decision to be made before you proceed to federal court it is not done so in the d n a and certainly not with respect to federal employees m s p b category you've got one hundred twenty day of a hundred twenty days to deal with the issue after which you can treat it as a final agency decision here on the sixty second day we withdrew ok so we didn't gone to the m s p be in the footnote the court notes that the hundred twenty day limitation is is a fire under the agencies where if you will and not any kind of does not make a final agency decision so that's another distinction and i'm not i haven't thought through how to if it's even necessary to try to figure that out because again congress is not required to finally it's a decision whether or not the one twenty is a final agency decision or not it is beside the point in this case we did undertake in a timely fashion to trigger the procedures that were in place as congress is required we timely filed the action after concluding the they are separate and distinct regulations with separate and distinct requirements and this court in back made it very clear in footnote one at page two forty four of that decision that had nothing to do with anything other than regulations namely the title twenty nine regulations and footnote one it states quote we emphasize their holdings is limited to age discrimination claims governed by e e o c regulations and then there's  terminates or filed rather if the claimant files a parallel so wolf action doesn't that terminate by the claimants act yes ok so in this case the claimant effectively did just  discrimination cases that were also mixed case cases the third circuit in particular and the seventh circuit in again priest stevens case which may be implicated by the stevens decision but following steven to get anything see decision whether it's  tax case there is big and the language in there is that you've got an expectation of kroll and that it's on the board's burden to find it so it's a low threshold it's still an agency decision is just some reliable evidence to show that you looking at so they give them some framework that they work through and i think that the structure is set up that they're entitled and last the court finds evidence of when one has an initial suitability hearing of the lead when mr biggs was convicted that it was two thirds of the minimum term of twenty five years plus whatever given whatever custody credits i think in his case it was about them supporting for his life and this was fifteen years along the way with me i think it was fifteen years along the way and then even then you also have to keep in mind that this does if one is found suitable as mcwillie in case it is a prime example he was found suitable for all in seventy nine i so what is it that you want to you say he didn't get a fair hearing but you haven't addressed why there isn't some evidence so you're saying we should the district court should have determined that this was a bogus hearing no matter if  standards that this report found and even others that it found some evidence for only have some elements when you look at what was actually said during the hearing for example there was some questions about his sincerity or his  i just pointed out those i don't have a thing i'm not really addressing because i don't have anything to add to what i put in the briefs the other aspect that i think is problematic is that i don't think that district court can make an accurate some have an assessment without calculating into it what it means there is that the board was biased when he was discussing the evidence so your suggestion is based on the use statements of mr berg's prose on page twenty  it again shows up in using answer it again shows up in his objection so i think the court had notice of it and just fail to address that issue i'd like to reserve the remainder of my time for you ma and i think it's important for the court to look at the penal code section thirty forty one b where it's specifically states that the gravity of the conviction offense the time or gravity of the conviction offense should be considered to determine whether or not public safety requires a more lengthy period of incarceration i think the board did consider that and found that because of the conviction offense more like the term of incarceration was warranted a district court did the same thing and implicit in that finding there is a showing that there is some evidence to deny parole which also has a showing that their decision was not based on biased because there's some evidence to support the we're looking at the first hearing i got that correct ok so when they when he comes up what is it that the statute commands that there be a parole date unless the board finds that a specific language separate decisions one whether or not the inmate suitable for parole where there is a number of factors that are considered that are laid out in the california code of regulations and in the penal code and then the second decision if they are found suitable what is the the primary reason there were also mr biggs his failure to profit from previous terms of probation and parole he continued his criminality there was also issues of whether or not further therapy saying that they were going back to the nature of the fence and what he did during the period when he was seventeen and that was the primary reason correct and i mean as the california supreme court  was not a blanket for all policy that the board and the governor did examine each case and consider all the factors they gave in each individual consideration which is what was required under the california regulations and they also find that there was little liberty interest they actually did not address the federal due process standards they did their hold that there was a right to have some procedures and that some evidence was required that's correct coconspirators he agreed to transport the murderer to the scene of the crime which he did he actually switched out his car so he wouldn't be recognized he then watched as the victim was bludgeoned and stabbed to death and then he met his crime partners after the crime where there was an exchange of mining and the whole purpose of the murder was to prevent the murder victim from testifying in a crime and the board properly considered all these factors and weighed them and decided that they presented the some evidence s actually watched the murder he did he didn't stop it he did actually bring the person who committed the murder back to more carefully dispose of the bodies so he and he fully admitted to this participations we didn't watch i'm not participated as far as transporting the killer and you know even worse in my mind what took the killer back so that the killer could we dispose of the body must have found out he'd just been dumped but you can watch the murder if that makes any difference three general asylum and if asylum would deny to have a full deportation hearing subsequently where he would be able to apply for suspension of deportation but three weeks after he did that congress and acted  had already been enacted the statute was clear it wasn't going to go into effect for another three weeks but it was clear that he was not going to be able to qualify for suspension be the case and that's the survivor file that application he had the regulations and the warning on these found application and so the court didn't address this issue at all and and and so that is not binding precedent on on this court and it's very it's very important  often the only source of information available to the service to initiate the scenes before the immigration judge and a peach twenty seven and similarly in that preamble to the regulation the department warning that the application may be used to establish deport ability this part of the final will not be applied retroactively and will fact only those persons who make an application on the new form and they did that because they said this is alive ultimately to file for suspension absolutely the immigration judge ruling that she felt she was without power to allow him to file for suspension said had this country in a meaningful and positive way so it is with some distress and a great deal of empathy for the respondent that the court feels that must go forward this point and grant the only relief available voluntary departure he had two u because it was the fact that he had no sort of expectation as to whether his application would be tonight and even if it were tonight he had no expectation as to when the proceedings were commenced the emphasis is on the basically did not induce him to do anything by voluntarily submitting himself and his application for asylum the government did not force him to do anything they didn't again  is clearly distinguishable from vasquez so that all because of the fact that student when he applied he did not know that the law was going to be changing obviously and the government said we're going to warn you the individual in pleading guilty allow the government not to have to sustain its burden of proof in that case and similarly here there is a conception of of the portability essentially in the information provided forth in the regulations and in the morning on the application there was definitely an exchange here and he did give up something very important i would like to clarify though that this is not a situation kind of here with the government argues you might clarify it for me what it was that he gave up the government has the burden of proving the elements of the portability and including a have not filed for asylum that he wouldn't have been discovered by the time the ten years which appears to be the case that's not i'm not sure that's something we can take into account application based on the iranians believe that he was eligible for other forms of relief from removal got to his individual calendar hearing it was determined that in fact he was not eligible for any other form of relief and he sought the immigration judge would not permit petitioner to reinstate his his application for asylum and to the state any reason at all for not permitting him to go ahead and apply for asylum  articulate any reason i found that the petitioners i desired to reinstate him as a sum of occasion given the circumstances was reasonable and to be ira also refused to isn't seeking to reopen a case there's already been concluded he's appearing at an individual county hearing that's been scheduled time in some blocked off to consider applications he wants to make for relief from removal nothing could be more reasonable than that and so to say that he has to actually present a crime the facia case i think is a an arbitrary standard that's being applied to a million that in that situation but even if the court wants to say that understand the argument you're saying that this is a unique motion for reinstatement and that it's looking at the reinstatement motion we can determine we have jurisdiction application that he room to sleep with drew based on a reasonable assumption that he was an eligible i mean you have a lot of different factors because the absence of a statute dictating rule but i'm having trouble understanding all of those for being slow but what is the standard by which we judge whether they adopted that standard appropriately or not what do we look to really the only issue as far as the i a e a should have been concerned was whether there was good research for him to have withdrawn the application was your reply let him reinstate the application that was the merit of the application but where i think withdraw of the application just as there is no benefit gained when the application is denied in any event there is no standard for measuring i request for the denial of a request to be in state and as a result the court doesn't have jurisdiction under five u s c seven a one as the court has indicated and as you know just has failed to articulate there really is no basis on which the court can measure whether that it doesn't removal proceedings the circuit recently got its hands slapped for taking upon itself to resolve the question whether or not cha resolve that question it's that we should not take it upon ourselves to do so even if it appeared in this case for example that the party to which the claimant the petitioner claim even if the court were to consider the application my court would have to determine whether he can establish his burden of proving by specific evidence that he had either  court i mean we can take judicial notice and generally but is this court really in a position if we're down through fear of reasonable for a future prosecution predict the status of what's going on in mexico  and the final case on calendar is howard vs barnhar in that case i believe we are faced with a question of first impression and that is interpretation of the statute that requires the commissioner to make reasonable efforts that if you the attrition or other appropriate specifically declined to do so so we know that the l j made no effort to call a medical expert to evaluate the case of the individual instead the a shall make a reasonable effort to have the child examined because there already provisions for that in terms of consultative examinations the commissioner said the staff uses the commissioner must make a reasonable effort to have t child was at risk of institutionalization the addition the case involved the testimony and i think that was very important even the trace if she was credible and she identified a number of deaths  a medical expert would have looked at it's also not enough that the nine examining state agency physicians reviewed this child's case that the initial and the reconsideration stages again that was already the argument is in cases of child disabilities congress appears to have been focused on getting someone who's familiar with child diseases and development so the other other individual does it enough if they are just someone who is you know it's experienced in dealing with psychiatric problems or rheumatoid arthritis or whatever it may be it doesn't necessarily have to be a pediatrician or does because the do the people who testify evaluating the case have to be specifically qualified in childhood arizona long term care evaluation that said the child was so impaired that she was at risk of institutionalization also contrary to the l j's version of the facts found that the child needed occupational speech and physical therapy the other problem again just touching on it briefly is that the injury was very unclear as to how he was reviewing this as you just mentioned at fisher there was a there was a statutory change here not once not twice but three times  says elizabeth bell leonard director for clinical and nero behavior disorders child and adult adult psychology finally the commission was not obligated to consult other appropriate specialist on benefits to children but i did take the trouble to specify that be a qualified pediatrician or other individual like knowledge through evaluate the case and what i'm concerned satisfy the statute by saying well you know they're examining or consulting doctors here who fit the category of having pediatric type experience so that's enough to satisfy the mandate of the statute i don't find that an appealing reading of the statute doesn't seem consistent with what congress had in mind that they wanted an expert who would assist the ale jamie who get that expertise to help him or her evaluate the case and that's why i'm concerned even in the given the number of people you're listing here with those people really about you wait the case or did they come in as we so often see the case yesterday where the surgeon looked at the woman's chronic sinus condition but he was just looking at a narrow issue yes he was an expert in sinusitis or whatever but he wasn't there to evaluate the full picture and you all were arguing your administration was arguing well you know there's not enough evidence to support them so how do we how do we sure that jay's actually  the commissioner some shall make reasonable efforts and it seems that the intent of the statute is to make sure that there is at least a doctor you know evaluate the case that sometimes the claimant may come forward and not have any medical evidence they might just have you know just a couple reports from occupational therapist a speech therapist or you know lay witness reports and this is the way i'm sure that you have at least have a physician  as we heard in a different context of a judicial officer can make statements that push the right buttons but substantively do something quite different and the concern one has when  repeatedly cites the wrong process he may invoke the statute but how do we know he wasn't really applying a different standard even though he invoked the right statutory all right gibson do you have any further questions  physicians review the available medical evidence everything in this case was not available to those physicians in particular the commission relies upon dr leonard's second evaluation leonard never saw a physician who had testified at the hearing would have had both of those items of evidence available to him or her to evaluate the case and that i think is very important the only other point i vision in the sense that the commissioner should my queries the more i first went sure that a qualified pediatrician or other individual who specialized in the field of medicine program for this believe the individual record and send it off to an expert and say you know here's a list of interrupt the tories and send me a copy of them allow me to respond and you know we could go down that road as a practical matter i think that's more difficult than having an expert actually come into the hearing where you can  and then turn around and say well here's my medical judgment as to whether this child needs three quills the medical criteria in the listing of impairment and i have this rather horrendous footnote in my brief a body is acting as your own expert witness