of my time for rebuttal two minutes this is an appeals district court's dismissal that was based on federal rule of civil procedure twelve b one the district court held that plaintiffs and i  title twenty of the code of federal regulations and it adopts a definition of final decision that is a final decision is such that if not appealed it would become binding this is in twenty c f r for all four point nine eight seven which states generally if you're dissatisfied with a determination or decision made in a minister and if you process but do not request further review with that stated pi period you lose your right to further review and that determination or decision becomes final again if you do not review a decision and appeal the decision that becomes final that is the only that's the only definition of final decision was in the court of federal federal regulation which selfie set is the one that fin on the merits before the district court was dismissed for lack of subject matter jurisdiction right and i'm trying to figure out whether the purpose of determining i thought whether the waiver more aspect of exhaustion applies or doesn't it may be relevant whether you're bringing a procedural due process claim because that would be relevant to whether it's wholly collateral and on the merits of the claim yes there is a contention of due process claim on two ways there is also to waive the exhaustion of that claim and the complaint paragraph specifically paragraphs number one fifty six and one on one sixty seven plaintiffs allege explicitly that they do not need to exhaust administrative process the administrative review process from the complaint it was brought up well but there's two aspects of that there's the question of whether there you're talking about whether you had to channel it through all four or five clearly you were saying you didn't have to channeled but it was channel one for damage but not fully exhausted but not full in did you ask the district court or the agency to waive exhaustion yes but there is an interpretation of words and i'm saying that the words need not be exhausted and the allegation that this need not be exhausted plus the motions in opposition to the motion to dismiss this guessing all the parameters for not exhausting exhausting or not exhausting is in essence a request  in accordance to only the only case that was decided against given that we're talking about benefits from workers as opposed to the welfare was a case of eldritch but even eldritch congress then decided no we need to give them three termination hearings we vote in essence that part of eldridge there is a discrepancy that i see between the definition of final decision which is nice think what what it takes here given the holding on procedural due process amenities versus eldridge what's the argument that you have a colorable claim on the merits on the procedural due process clause i'm not getting to the question don't you have to show that you have it on the merits that you have a colorable chance of winning yes yes and the merits of the case were not discussed at all that would have been the right but you have to if you want to excuse exhaustion don't you have to convince someone either this record or us right that the claim would be a colorable one on the merits notice your benefits are going to be terminated there is no process whatsoever that they were involved before terminations occurred so my question is about matthew suggested that in some cases post germination process can make process justified not having a preacherman nation hearing and what we requested in the complaint was not necessarily a hearing for say but a process that occurs where they may defend their their benefits before termination thank you for your good morning and may it please the court thomas poem for the social security administration and the acting commissioner and like to begin by just clarifying a couple of items that came up in the proceeding present to action  is just not explained in her declaration provided the plaintiff with an opportunity to submit additional evidence they were off also given that opportunity after their  with respect to terminations there was pre term anation process there was a notice that the agency was going was undertaking every determination and it invited the notice invited the plaintiffs to submit evidence and then that the redetermination was done and i thought i would like to say that this is in a somewhat different position than eldridge eldridge involved the terminations of one that there was pretty deprivation terminations process of a sort just not a full blown hearing that's correct and so what's the significance of that with respect to the point about exhaustion if we thought that the procedure to process them was wholly collateral and we thought that there was undue hardship is that an argument that on the merits there's not a colorable argument that there was a due process violation yes i just wanted to clearly understand that i'm now  enough such that you don't think it's a colorable procedural the government's position is there is no colorable procedural due process claim yes to the extent that the plaintiffs bring an independent due process claim i think that's right this case is governed by squarely but i encourage the court to look at the complaint and indeed the plaintiffs brief i don't think there is an independent due process claim there i believe the claim is that  due process was violated because the reopening regulations weren't followed so it's just a repackaging of the claim under the regulations the plaintiffs appear to be arguing that when the agency deviates from regulation that violates due you've exhaustion so the district court addressed the arguments of the plaintiffs made which were first that the claim did not arise under the act but he says today your brother says i believe that in fact they did make the request it's sort of in there somewhere where they say exhaustion isn't required what's included in that is that the request was made by the court is there any indication that the court read them to be to be making that reconsideration on that no request for reconsideration on that point or anything like that that is correct but on the other hand in the district court say that it wouldn't matter if you did because i don't see any basis for exhausting this record did say the court does not see a know yes but i mean without kind of full consideration i mean this is just the district court saying i don't see anything that kind of jumps out at me i mean they didn't make as and everything to pin that to because they don't now that's correct i sets correct and u that's true and if we're going to do that then if the court were inclined to overlook the forfeiture or view it as properly preserved we would move to the inquiry which involves a consideration of three elements  one whether the claim is entirely collateral to the administrative review process to whether there is sufficient showing irreparable harm and third consideration of  just complaint and the relief they request on that claim is payment of benefits payment of past due benefits and an injunction against seeking it over that's partly because they've got a bunch of different claims going but with respect to just the procedural due process violation pretty terminations in the terminations of the benefits that would be wholly collateral right oh well before i get there i just want to point out we're looking at where they have this reason is that the receiving benefits for ever are they just saying you can't cut them off until we have the full process those are two different types of relief sure all they say is the reinstatement of benefits and if it were before pay that would be but now that would be consistent with the procedure if i seek to end early termination of benefits prior to the hearing what i would like is to have the full benefits reinstated but i'm not saying when i say that and no matter whatever happens that's conclusive for all time well i think those are two different things if you just record in kentucky evaluated th the whole process isn't infected all we need is a little supplemental hearing and it did not order the reinstatement of benefits but it could've been wrong and in that regard that's what i'm asking because that seems to me this demonstrate the point that it is wholly collateral because you're not seeking the final ultimate rez resolution of the benefits question you're just saying in the interim you have no basis for cutting me off given the hardship that i  or nation benefits no but it's a that's the whole point though the point is that when you're talking about the pre term indication that that's raises the point about it being wholly collateral elgin deals with an inquiry of whether a claim is collateral and it's a constitutional claim it's not collateral when it's the vehicle by profession but the nature of the constitutional claim there would have meant that the final resolution of the benefits issue was decided here the nature of the constitutional challenge isn't a resolution of the final determination benefits it's just saying you can't cut them off in the interim that yes but we believe that that is sufficiently intertwined with the request for benefits to not be whol at the end and we have confirmation from all of these court from the three courts in kentucky that these claims are in fact fully reviewable following the exhaustion of administrative remedy and what you're going to what your answer to the hardship that people have to endure in the interim particularly since they seem to be winning at the end this seems like a little bit of an aisle response from the government to be saying well it's no big deal because in the end often you win and when your argument is not welfare benefits so as the court recognise supreme court recognized and eldridge there's less expectation that the while the deprivation may be significant there's a reduced expectation that it will cause the same degree that his family is supporting him and indeed providing his medical insurance so we don't have there are the same kind of risks to health that were viewed as sufficient in in other cases  false statements to the social security administration and i don't think we would expect the agency to just ignore that or to not consider the possibility of harm to the government with respect to all of the benefits that are going out that are frankly unlikely to be recouped these plaintiffs have sought any waiver of the collection of overpayment because they're on the able to and i said to repay the benefits if i understand the numbers there were seven requires what it orders the agency to do is to immediately redetermine entitlements to benefits when there is a reason to believe god may have been involved as it was over agency doesn't have to conclude that there wasn't fact fraud i'm just saying the government's argument was that the reason to believe that he had said the vast majority but it just as it happens the government's own account after they did the first cut was that the vast majority were not all right that's true  while we have any idea yes i believe that i'm sorry i'm looking for the figure there were about three hundred sixty who whose redetermination decisions were would like to point out the cases of kentucky which are trying to who review the same types of laws there is a big difference between the cases in kentucky in the cases important legal cases in kentucky the congressman from kentucky went to social security administration says no you can't take this away and this motion and the commissioner reinstated everybody so the question of pre term a nation terminations for the cases of kentucky do not match the cases here because politically they reinstated everybody while the process is carrying on that's not the situation here other than that i would like to commend i think you called him brother which is a nice term  because i appreciate the work and the clarity of his work it's nice to see