summer seventeen there's three four eight three jones brothers inc vs federal mine safety and health review commission at all or argument not to exceed fifteen minutes to be shared by attorneys for petitioner in fifteen minutes to be shared by attorneys for respond your out of this the this case changed on march sixteenth but this year and it changed because this court pressed the government to come forward and discuss the merits of this case all we had he prior to that time was waiver waiver waiver when they did that they waited until four o'clock on the afternoon of the final day to come forward and tell this court and tell the petitioners what was pretty clear all along that they had in fact admitted that they had unconstitutionally failed to appoint the administrative law judge in this case what about the possibility that you forfeit this argument you know there's a statute that says you're supposed to raise issues  fact and law in front of the agency and you did mention the issue of actually but i would say argued it so i don't know does that does that forfeiture provision apply here absolutely not your honor for two reasons kember one the statute that it applies here is it's judicial review it says we must raise it and urge it before the commission we did then we noticed it we told them they acknowledged that they knew that when they filed the r separate support of the motion to strike and so they knew it was there we did not sandbag them we set it forth at the time it was a clear issue we had two courts with different interpretations of the inferior  you know we have your case is something to the extent that statute applies we have cases that say you can't just identify an issue you have to present an argument and i would say what you did was identify the issue and maybe that doesn't apply to constitutional  but where you are on what we think it does not apply to this type of constitutional argument this is a structural constitutional argument involving the appointments clause which the supreme court has recognized and i know there are some cases are back and forth but the controlling precedent in this case is fright and the supreme court decisions it is cite you cannot weigh this type of substitution or this type of argument totally which is what the government wants the the act is set up so that judicial meaningful judicial review will occur when it gets before this court or the d c court of congress was very straight about that but there has to be meaningful constitutional review by this court it's an article three court and part of that means the court using its discretion even if that issue wasn't raised before if it sees a constitutional issue of this ilk this is fundamental it goes to the very core of our constitution it's not something that can be waived it's not something i would submit that this court can turn a blind eye to after the government has admitted that what they did was wrong and after they continued to try to put that all through they they responded we raised this issue they had thirty days to consider it it eight days they denied review no question they thought they could have responded it they could have asked for further discussion they knew it was there they didn't they wanted to avoid it we filed our our brief our first brief we raised the issue specifically before this court which the courts have recognized is sufficient in fact courts of the supreme court has recognized the only method raising it all until a supplemental brief after briefings done in this if it's important if there are some cases that seem to go the other way that seem well i think if you look at those cases your honor none of them involved the whole if that they discussed including some of the cases of this court involved this top of a constitutional issue this has nothing to do with the man act which that's what the jurisdiction of the of the respondents is it's the monitor it's to determine adjudicate issues involving the mine act its application its interpretation its requirements and whether or not somebody violated it this is a totally collateral independent constitutional issue that goes beyond anything that involve constitutional this is constitutional issue appointments clause issues directly one of them was the a court of appeals case in the d c circuit and if you read that case the court said they denied th the petitioner did not raise the issue in its opening brief the second decision this court that was this court's decision said we don't have to get to that argument because we're going to decide in your favor on the merits and so you're getting the relief you want so we do not have to address the appointments causation but what happens so you have this let's see a case presumably they'll be a decision by june or end of june  if the challengers lose lucy a then obviously there's not a whole lot probably to do here presumably although we have to see what it says so it's more interesting if the challenges when the see a right that that would make warm your heart what would you want us to then have us look at that appointments cost challenge in light of the sierra or would you want to send the commission to look at it first could the commission look at it first what what's what should happen next if the see it comes out the way you want to come out of the room of the we believe your honor and what this court should do is it was an uncut my client received an unconstitutional hearing it's tainted the administrative law judge the whole proceedings the proper course for this court is to remain and the case back to the commission for a new trial the novo before a nother a separate because this judge is already taking it a nother separate judge to consider the case the from the get go we're not trying to get at it we're not looking for a get out of jail free card here that's what we've said is the remedy that's what we believe the appropriate or the how are these a o j case appointed are they appointed by a majority of commissioners all of the commission of commissioners just the chief justices how are they appointed the chief administrative law judge harrison so there is no there's no commission mission is not involved at all well the i believe the commission the chairman of the commission may say it's ok to hire this person but the commission doesn't make the consideration they don't vote on it if you look at the and we've objected to it they filed a rule twenty eight submission of this alleged  ratification that they feel that they've done and if you look at that it's just two things i think of very much interest you have taken the position that you should look at it so i realize i'm kind of talking out of both sides of my mouth here but if you look at what they did they say that they've known they've had this issue since two thousand and fifteen and then they turn around and we're now going to go back and ratify the unconstitutional amendments as the commission for the said all seventeen administr judges seventeen that's a bad well i think that i don't think the point the appointments clause issue goes to structure and how you decide not what you decide so why isn't it why isn't that void you can't go back and ratify something that's void it's still forward to time zero is still zero i'm not saying they can't do what they want to do but i think they have to go through it properly follow the individual assessments by the commission because they're making the appointment then they have to have the oath of office again because they've been given that of the first time and then they have to have the commission that's all part of it it's all laid out in the constitution the supreme court has said  is not etiquette in protocol it's substantive and it goes to a very core of separation of powers and also to keep this appointment power from being diffused and and i think under those circumstances there may be a proper way to do it in one of the cases that they cite that congress actually stepped in and did it certainly congress could do that but i'm not sure that the be a commission can do that on its own but in any of it we think the proper remedy in this is comes out of the fry case  versus a usa where the court said if you've gotten an unconstitutionally appointed judge you go back and you get a new trial with a new judge you know under your view we should not address the actual issue that was before the commission and all the actual issue that was before the commission at all from a constitutional standpoint you know the actual if you that got you there in the said well we don't need to get to that because we're given you your relief now if we do that it's fine with you but if we go after that it's not firing if you do that it would be great with me because frankly if you do that my clients better off because if you do that it's over if you do what i'm asking you to do we've got to go back and have a whole new trial in proceeding and we'll come out all over again and if the government does what i think they're going to do which is take this judge and say ok you're ratified now now go back and look at the record you did before and tell us it's ok that you were right the first time and now it's legal we'll be back here again with that issue but it's a very thorny problem when you get into this you have to have to unwind it in our case and make it  right if you want us to decide whether you were properly finder now i think the issue is and i would have to defer to my colleague but i think the issue is whether or not this the statutory construction was appropriate and if and whether or not the osha or the mine safety i understand that but that's that's the preliminary question that led to the resolution of that was against your position yes it was against our position as far as we took the good morning may it please the court i'm no well true on behalf of jones brothers and here to argue where we just left off with mr whalen and that is the jurisdictional argument in this case and specifically that insured did not  cited operation jones brothers has been in the business of building roads in tennessee for over forty years when it was doing what it often does which is using borrow material from a nearby pit to start repairing a road when i'm sure did w it sometimes does which is overreach its jurisdiction and cited jones brothers under various regulations intended for mind the two what about the fact that tennessee had quite a few requirements for the rock they were supposed to use to fill the bad i mean it didn't seem like they were just take a shovel and take in the dirt putting it in there looks like there was a lot going on including the blasting and busting up of iraq well i think that the interagency agreement in the program policy manual really focus on three things in that regard the location it wasn't on mine property here the use of the material is it being used for bowl or filled material and the process but the process really in those definitions isn't on how it's being extracted it uses the term extract an extraction multiple times so it's not how are you getting it out of the ground it is are you doing anything to it after your extracting it or you you crushing it and they were not in the situation that inches only when breaking up the rock well the what the rock was being drilled and blasted which inches only witness after talking to his two supervisors agreed was not the problem here the drilling and blasting wasn't the problem drilling a brac blasting does break up rock that's how they got it out of the ground between that in an excavator but the issue even in the cases that the secretary cites focuses on not how it's gotten out of the ground but really the use and the process post extraction so there's no there's no doubt here it was being used for bulk this was the very bottom layer of this road and even the ten department of transportation labels all of these layer but this bottom layer by that same body was called borrow excavation that's what it was called in terms of the specifications the case law allow for an analysis to see if material is huge is suitable to be used as bulk or fill it says it needs to be mostly used for bulk and that was that was the case here and all of that analysis or you know them visually looking at it was done and pray extraction to see if it was suitable for for to be used as a book or film it here making the point that the tennessee folks weren't looking at it after to come out of the ground to make sure it was of the right side stone and i think  they were allowed to be there and they would sometimes visually inspect to see if it you know again the the definition allows for debris to be removed and even larger rocks to be removed the program policy allows for that and so not all the time but they were allowed to be there on the time but sometimes they were there to visually inspect to see if it was suitable to be used as the bulk material in this bottom layer it seemed like from looking at it that they were regulating pretty carefully what was in the fell and it also seems pretty obvious why last time around the road slid into the river you know rocks are going to help stop that so well i think you might there was some method to what they were doing based on what had happened the last time i think they were seeing if it was going to be suitable to be used as this bottom bulk layer so that it wouldn't slide into the river but if you if you look at all of those other layers they were the more contract the one more feature that seemed to work against your client in that was the length of time was it the over year that they were at this so called temporary borrowing pit i've i think it was from like span so such a such as length of time that seems to eliminate it from the pit classification i think brothers position on that point would be that the definition doesn't specify duration but that when it says one time is the pit being used for a one time purpose in this situation to repair that nearby road it's not like the current or price case where you had a pit that was continuously being extracted incent to fifty different customers with fifty different it's all used at one spot rather than duration that's the way you would have yesterday by sea ok thank you thank you  recognize before by statute this court can only address issues that was not properly exhausted before the commission if it finds quote extraordinary circumstances that we can now stop you there sorry to break your momentum but  why why should i assume that the word law in the exhaustion statute goes beyond statutory arguments so for example that would include conservation avoidance arguments but as i think the questions we told you were going to ask suggest i don't think the commissioner of the a l j is have authority to invalidate the whole statute i don't that's not how this works i mean they're creatures of a statute they can't invalidate what their creator created so isn't the better way to think about this that the word laws just refers to statutory arguments there are two important presumptions sort of buried in there and i'd actually like to disentangle them and explain why and address them separately first your your assumption in that question is that this case would involve the invalidation of a federal statute and it wouldn't because the relevant statute is thirty u s c eight twenty three b two that vests the appointment power congress vested the appointment power over these days in the commission as a whole now the commission as a whole is a quote head of department and we know that from the free enterprise fund versus p c a case page five eleven so if the commission is a head of department it is per the appointments clause authorized to appoint inferior officers the reason we have an appointments clause violation here isn't because of the defect in any federal but rather because the commission adopted a practice of delegating its authority to its chief a l j but the commission has the authority there's absolutely nothing that's so so there's no way of thinking about it that that's an as applied constitutional problem or as implemented constitutional problem we're still agreeing it's a constitutional problem i'm agreeing that it's a constitutional problem but there's a pair of supreme court cases that are very relevant here the first actually involved constitutional questions except when they're what doing so would require them to quote in passing on the validity of a legislative act and this case doesn't involve that all the commission would have to do is to recognise that its own conduct  conform to the appointments clause and the code so just to see you here where were the questions are that means the word law in the exhaustion statute because that i'm taking a back to the statutory interpretation point has more than one meaning in other words the word law is going to pick up some constitutional arguments but not other constitutional arguments and that bifurcation is bizarre to me you know i know your honor i think all constitutional claims pressed before the commission i think even once they can't rule on elgin is explicit on this point your honor if you look at page twenty one thirty eight of that opinion the support that was in fact the central issue in elgin it was assumed that the m s p b couldn't resolve the facial constitutional challenge at issue there and a majority of the supreme court said you still need to exhaust that claim before the agency because the agency had that there or one of the considerations the court pointed to was the fact that the agency would assist with the building of a record but here i think it's also notable that the commission should have the opportunity to consider its own possible error and to correct it so i just to be clear i'm all for the idea of what is good practice i completely agree good practice is to let them know because they could correct the problem no matter what kind of constitutional challenge it is but the question is what are the consequences of not doing it and i think what you want to do is say the law does refer to constitutional claims but then fix this problem through extraordinary circumstances is that which is a kind of your way of thinking about it well i i think extraordinary circumstances is a safety  that the statute preserves now and to our knowledge in forty years of mine act history no court has ever found a reason to use that safety valve but that safety valves there and i agree that under fry tag this court has the discretion to reach out and decide this constitutional question but i think the presumption under the statute is that it shouldn't have to i think to put what words let's say on the see it doesn't come out the government's way for the sake of argument and let's say for the sake of argument we you know we think they should be able to have this claim addressed just and i realize that's against your position what would you have us do would we send it to the ala jay to decide these issues first or would we send the commission to decide the issue or would you prefer that we decide the issue i think that the appropriate outcome here if this court is inclined to overlook the forfeiture what one thing you might want to do is hold for lucy as you suggest but then depending on the outcome there i think the right outcome is to send this back to the commission for further proceedings and what why not the zero as they have no authority well that the commission i think would assign it to the l j a n l j consistent with its own practices but i think from a  f the direct relationship between this court in the commission i think that the way these things would normally be handled as you would remain to the commission for further proceed in the committee commission could they decide appointments clause challenges in light of  point so don't go down the road of saying they're just going to fix it avoid to avoid litigation assume they want to stand by their or their old system because for example they think gail j's for the mine commissioner deferred to have different responsibilities could the commission decide the question i think the answer is yes but i do want to emphasize that the commission has already indicated what it's going to do as we notify because i was unaware of that era i'm aware of that i'm just trying to explore your theory of forfeiture so  could the commission address it i think the most relevant place to look is page two fifteen of the thunder basin decision where the supreme court explicitly recognized that the commission does have a practice of addressing constitutional claims including constitutional claims that go to the facial facility of us statute which isn't even involved here because as i said all that's an issue is the commission's own past practice which it has the ability to pass on and it has the ability to unilaterally effects so i'm go have to go back and look at elgin but when i looked at it before i was underwhelmed in terms of its relevance to this case that i'm just i'll go back and read it because you're speaking with conviction but but i want to i want to ask you a question that's take it outside of this law just really trying to isolate the point is it just my intuition about the case in its could be wrong but just imagine a core constitutional challenge to a statute that an agency implements it is attacking it in every single component it's saying the whole thing can't be done and let's say as i'm pretty confident it's true the agency does not have authority to nullify what congress has created all right and you have an exhaustion statute for that agency just like this one it just seems really bizarre to me that i see the virtue of telling them because the president and an agency can fix constitutional challenges so i certainly think they should be raising it i get that entirely but the idea that it's forfeited when they don't is a real head scratcher to me because i say to myself what good they couldn't have acted on the claim it's very strange to require extreme case where you're talking about the validity of the agency as a whole the supreme court did address that circumstance in free enterprise fund and found that that was outside the scope of the channeling requirement but that was outside the scope of the exhaustion rule but says went into this goofy idea that law means some type of things but not other types of things or is it so much easier to say law just means statutory interpretation challenges including constitutional avoidance challenges well i don't think it requires giving two meanings to the word law what this would free enterprise fund held was not that it just held that that kind of claim that particular very specific kind of constitutional claim just fell outside the channeling requirements altogether not that  it wasn't subject to forfeiture because i think it is important to understand that constitutional claims including claims involving fundamental rights are forfeited all the time and in fact normal appellate review and traditional procedure would be wildly up ended if the mere fact that important right was at stake would mean that there was no exhaustion requirement as both the d c circuit and the federal circuit have held in the in re d p c in the intercollegiate case that includes the appointments because you do have to present those challenges in a timely way and i'd also note that the supreme court decided a case called l a tucker which involved an invalid appointment that was a statutory problem not a constitutional problem with the appointment but setting that aside that case was almost on all fours with this one and there the supreme court said yes the employment was invalid yes if this had been timely raise the proceeding should be thrown out but we're not going to treat it as a nutty because we have an obligation to stir themselves and to raise their challenges in a timely way that's not what jones brother stayed here and as a result of just a maybe i think you kind of hinted at this but just because i think you're the one that's going to talk about this  if the government loses lucy is if you are taking the position that this commission and it's a j's are sufficiently like the ones that issue in the c of that you'd want to do some revamping x i know you've already done some changes but can you preview this for us or order or have you are not committed to that yet so here we have said it in our supplemental brief in this court that we believe because there was a delegation here which again was not required by the statute but there was a delegation to the chief a l j we think in appointments clause violation has occurred that's that's something the department of justice the executive branch determined here now we also believe that this is a problem that's fixable if the commission appointed sale jase which in fact it has since done so i think what would happen with this case and we're not likely to have another argument after the c e o we don't know what's going to happen but if the government loses or not loses anymore but yeah a got that wrong sorry overburdened because that's where the rules say get the dirt and move it from one place to the other without any differentiation in what is extracted and what is what is ultimately used that's not the case here this is a full fledged mining that's been in operation for over a year from aug eleventh of twenty fifteen to august seventeenth of twenty sixteen it had its employees working six days a week for the duration of the time it was the duration we heard you heard your opponent say duration isn't all that key yet you had it was only used on this particular patch of road that's nearby and that it's only for the first layer so you know you say it it's a mine and of course you have the other side say it's not so we're looking for the pinpoint rationale that days out of every week for a whole here they hit the nail on the head when it came to these when it came to these specifications that the department of tennessee needed it had to be sound it had to be biodegradable and every single time some of that rock came out of the ground it was perfect and it wasn't a small operation this was sixty eight thousand cubic yards of  just to put that in perspective your honor this would be enough for up to fill your stadium here in town the bengal stadium from top to bottom are it terms of acreage yes and it was six it was six acres and this is a operation where there was nothing sexy about what happened they took some dirt move it from one place to the to the other and i don't suspect that an operation like this is what the assistant secretary of whatever is being constructed but in this particular case this site if they had looked at it as a convenient place for a barrel turned out to be all say and they would have to keep looking tell they found something six physical issues but then there were also chemical issues there were sounding some mis tests and they had to go through all of these this this this one test that mimics  sort of give both sides the answer would be to what would happen to this rock after five years just because it was being put into the this river of the  race before when it's a structural fundamental constitutional issue like this it needs to be considered here we have and it responded agencies who have after trying to hide the pea and a walnut shell for a while has now come forward  ed that this was a fundamental appointments clause issue that they they violated the important cause of this administrative law judge if this is not a rare or exceptional case what is a thank you i would like to one other thing real quickly the fender basin case in the elgin case your honor thunder basin involved this commission in that case the important point is the this court or the supreme court ruled that the cost of the statutory procedures needed to be followed but that the that the plaintiff because they went to try to circumvent by going to district court and got an injunction and of course there's no you can't do that congress has said the going to be the article three courts that consider this for meaningful constitutional review and they said in the elgin case came back later and i believe that the counsel was very selective in the way he quoted these cases we can well understand that but the elgin case reaffirmed that and said if you have a statute that would preclude constitutional consideration then that would raise a very very serious issue constitutional issue in and of itself and what they're basically saying is that not overburden was not authorized represented by the secretary the insurance specter and his testimony after he talked about his field supervisor in the entire district manager was that the material here was not the issue that was not insisted all right thanks to all four of you for the briefs and arguments thanks for answering our questions we appreciate it the clerk may submit the case and call the next one