the the appeals council were also deemed inferior officers and constitutionally appointed the the appeals council members were appointed in july two thousand eight hundred at the same time that it there was constitutional power within the agency itself to fix this because the commission not had the power to make the appointment and indeed has since exercised that hour so few a work the agency by raising the issue you flag the 's no access as i'm aware as far as i'm aware to the commissioner correctly but if you look at the l a tupper decision from the supreme court for example there is a notion recognized in that that the agency as a unit instead of looking at the individual can be an obligation to raise a constitutional issue before an agency even if the agency is powerless to attract it and that's as i said not the case here because the commissioner did have the power to make the appointment and indeed has since ma appointment but i'm sorry were you finish your sentence or now i was just going to say elgin in part by a bad decision assumed that the supreme court of the merit service protection board was power west to address the constitutional i'm not sure we're not relying on that provision specifically as as an avenue here but we do think that if you could have been presented to the a l j and thereby giving the agency notice and preserving the the argument over the proper account for the really significant impact that this is going to have on real individuals who haven't even had a st date here and yet who already face abstention wait times and let's talk about that ok so what are the statistics you  i think you briefly make your heads to the holes of these cases when we look at the numbers in the courts of appeals in the last few years it's in the the hundreds you know in terms of querying our clerk or court we we find you know maybe a few dozen that are pending in our court so i'm trying to understand where your numbers come from and how they square with ours sure when i when you say just to make sure i address you properly are you saying dozens of s s a cases in general  specifically cases with these forfeited would she have claims for example thirty five pending cases in our court now that that's correct your honor so the way the numbers work is this though they are more pointed in july body of cases that are still in the process of working their way through the system where after they clear the appeals council level those claims could presumably be raised for the st time here and only if that they're not t you're saying every case before two thousand and eighteen but there will be cases that were closed and the time for appeal to the district court has expired absolutely your honor we're not saying every case going back to two thousand are whenever i'm but if you think way through the system have to clear the appeals council and then could be timely present in district court but your honor is like that there would be some limitation imposed by that but not enough to prevent a potential significant impact on the agency and significantly  think i do you're on a i think you do have an obligation to present your specific claims to the agent so how how do we when it comes to the constitutionality of the appointment itself of the of the agency process you pointed us to elgin but how do you square the argument you're making with mccarthy and the examples that are that are given there that say one for example where the is the agency's own process and the valid the validity of that process or the or the constitutionality of a statute something that falls outside of the agency's expertise and they even give the example from mcneice their support of education where they state that students didn't need for purposes of desegregation didn't need to petition the superintendent because the superintendent didn't have the power himself to make the change even though the superintendent in turn could have turned around and i asked the attorney general to act why is it rising that on all fours with the case before  us i think the distinguishing feature tend to be extent that elvin does not modify some of those those principles i do think the distinguishing feature here is that the agency did have the capacity to make the appointment here and i think you look at it from the perspective of people within the agency or from the perspective of the litigant is it isn't the exhaustion requirement a burden is placed on the litigant so you have to look to what what opportunities what avenues are available to the li about this in terms of what we ate what notice the agency is entitled to when folks don't waste these arguments the agency is not made aware of its accumulating rest and i want to emphasize again the cost of their war is principally borne not by the agency to pick up where we left off with your opposing counsel were these two forces represented by counsel throughout were partially they were and that was me you're looking at him so it's sort of obviously the  attorney who had been charged with sanctions by the agency and was throwing everything but the kitchen sink back at the agency to try to avoid those sanctions that was never resolved by the district court it was all by itself there were no other cases in which anyone challenge social security able j s as being inferior officers not having that constitutionally appointed prior to the government's change of position c a remember the government specific officials at social security get these messages but the message said if anyone raises an appointment clause issue you are not allowed to comment on it make a ruling why you can do nothing ok but that was after your client's case congress is delegated in the social security act to the commissioner and therefore to the old days the commissioner is there any agency that has sealed is that a grant structure relief i mean the import of your argument is that none of these agencies could require issue exhaustion and everyone would always get a new hearing no you're on i guess i respectfully disagree in terms of the position we're taking we're not taking that broad position for example in the s c c context which is where many of these cases came from their specific provision in either statue or regulation i can't remember which it would require the issue to be raised at a certain point in the proceedings and mr lucy is case that was raised before the full commission it was not raised before be able jack only where there's a statute or reg that requires exhaustion as opposed to one of these well i don't believe the issue your honor is that broad certainly there is no statute or regulation at social security that requires exhaustion of this issue option to they have if we think this is a framing issue a l j himself can't do anything that's your cue that your friend on the other side's argument is but the administration is a whole could have done something and if a tidal wave of cases coming and it would constitutional appointments so for the ale day to grant relief was impossible the l b couldn't reassigned the case to one of his or her your position i'm taking it to a higher level which is why should we be looking at the level of the a l j and not at the level of the agency your honor i believe your question would presuppose that my clients would be part of some wave of claimants and that they should all act in concert and that somehow that would convince the commissioner to take action two or three years prior to the point that she finally did i don't believe that is required of my clients in this situation they are not a class they are individual claimants in the most recent the school year were under represented by counsel at their ministry of hearings so rule the broad sweeping rule that the government seems to seek here that everything is waived and everything is worth it is this not raise says structural issues are different right this is not a doubt of biased hearing officers alike that there are some cases that say well structural components are there because they also protect individual rights can you articulate what the your rights portion of this is what is the scenario in which you are suffering some kind of prejudice because of an appointment because violation i believe your honor the individual's right derives from the structural imperial explain give me a hypo give me a hypo in which your client is worse off because of this explain it in just as plain terms as you can you know i'm not sure i can come up with a hypothetical different situation not in some kind of crony appointments is there a way in which you get an inferior or biased a l b j well certainly the supreme court has commented about the appointments clause that it's there because the framers did not want the appointment power broadly distributed without accountability and so certainly that could raise concerns about what kinds of people end up in this job and this is a very very important job although again remember it is non adversarial is inquisitorial approach was thomas was very clear in sims about what that means in locations of that there's a book the point here being that maybe phrased another way new a o j appointed properly appointed it what are the chances of there being a different decision on the merits than what happened to these two gentlemen in this case well your honor there are widely varying allowance rates among the old days in the l g core there are over fifty american able to raise in the united states and of course they're all applying the same one regulations but these are medical facts vocational expert witnesses a lot of systemic protection where is there an individual right to only have a trial before a constitutionally appointed catch i believe there is an individual right to only have a trial before a constitutionally pointed judge there certainly is a statutory right of the social security act t where if it's not preserved then the remedy might be revisited and then there would be a requirement of showing homelessness so out what side of the line are we on here if there were a choir meant to appointed not the same hotel who heard the case the st time in the court stated its reasons for that i think that establishes that we said in this context that the error is considered harmful and must be remedied are as a harmful error whether we view the constitutional dimension of the issue as one that is structural that goes simply to the separation of powers or whether that inheres in an individual who has a right to a hearing before constitutionally appointed inferior officer of the united states so i think if you did have to show prejudiced you agreed that you could make that challenge no i won't i wouldn't go so far as to say that your honor i believe it's inherently prejudicial to the claimant to have his or her case decided by an officer of the united states who has not been validly appointed as required by the constitution which we now know but that would be to that there can never be a required showing of harmlessness for structural error and we know that not the case because in pieces like weaver the supreme court we're in and an objection was not preserved i has addressed and if you were prejudiced your honor i can't directly address we were i've not research that particular issue but i do i simply would go back to the question what  a new hearing before a different constitutionally appointed a object by the way not a newly ratified by the time the case was heard and decided by the supreme court the s e c had gotten around to ratify mainsail juries just as the commissioner social security has done regulations the question is do do does the court impose it in the reason not to do it or are several one you've already mentioned your honor which is mccarthy and the idea that you've got unavailable in the district of remedies in the situation instance by the agency officials they really are for the chords what makes me nervous though is now you're you're blowing up a been a universe of claims and i thought if i take this to be the rare case for exhaustion how do you draw a line if you're saying oh it's constitution office and how you draw a line that is faithful to the idea that this is rare this is the exception this is not a little understood so right in that context i'd like to address what my colleague from justices said about the numbers of people have to wait for more hearings between six and one million seven hundred thousand hearings a year are held by social security in recent years the government has told us only that there are about one hundred and fifty cases pending in pennsylvania in the federal courts that involve this issue that could be affected by your rule when let's say it let's said in new jersey in delaware let's double that if you can talk about the entire united states let's multiply it by ten let's say there are one thousand five hundred cases in the courts that's less than two tenths of one percent of all the cases that this agency educates every year this is not going to make any appreciable difference in the doorway and one p everyone is on notice and they're not going to be these cases making their way to the courts in this context to this point is it's a one time thing but how do we keep it rare in that not all so security errors are going to this your honor i believe it is rare in the sense that as i've already said as an absolute number perhaps it's not rare but as a relative number to the numbers of cases that social security  even that the federal courts entertain it's between fifteen dollars twenty cents cases a year they get filed if only i wondered fifty cases in pennsylvania involved this issue at this point we're not looking at a wharf number of cases in fact it's argument to the appointment clause context where it goes to that the fundamental power of the agency to after all i believe that the more narrow point is the one that we are arguing here that the court does not have to go to rule for my clients to the extent of saying any constitutional objection is not subject to exhaustion although i think an argument be made that is not the case here you really have a narrower ground on which raised a quote timely objection before the f c c which was why he was entitled to that remedy that mr sutton highlighted we know from l a tucker that there was a decision there that the supreme court accepted would have been a never apply s s a that simply put you should always be able to come to cork because it's an inquisitorial proceeding and raise any argument constitutional or not that wasn't presented before the agency because there is no statute or regulation that especially in light of the fact that the commissioner of s s a no less than the head of any other agency the head of department had the power to correct this deficiency had the power to make these appointments and indeed has made these appointments and therefore was entitled to notice and an opportunity to correct this the fact unless the court has questions on that i just want to finish by emphasizing again the impact that this threatens to have on other individuals i  sutton isn't particularly concerned because he says not so many cases have been fought so far what he is over walks is that the overwhelming majority of district courts have not been perceptive to these claims and i'm sure that that did much to quell this but if there is a decision from this court saying that anybody who comes into district court and the world would she gets a new hearing i think that that could radically affect the agency and compound wait times for individuals who haven't even had a st hearin thank you very much thank you for being with us