current nurseries would six one hundred and thirty one thousand nine hundred and twenty dollars and two dollars stats under the old fee structure it would have zero to approximately two hundred and thirty thousand dollars the problem is that there are six judicial bankruptcy administration that's under your sherry as opposed to the u s trust the system that so in alabama north carolina there was a different fish structure in place for approximately eleven months meeting of my clients had filed chapter eleven in one of those districts and one of those things districts they were paid some four hundred thousand dollars less than they did in their cases and the claim is that that violates article one section it calls for a constitution which grants congress the power to establish uniform laws on the subject of bankruptcy struck united states you're in for arguments and i want to address any concerns of the court the st and this is not there are two different systems with their own geographically isolated problems and so from congress to address geographically isolated problems is permissible with then the constitution a couple of district or a bankruptcy administrator district you can't get away from that nd and i just ask one question if you are correct that there is a lack of uniformity between us trustee districts and n b a districts would that also invalidate the entire us trustee system on the theory that it it simply was not implemented in a way that a uniform goals were bankruptcy and they have court there ought to the type of uniformity problem that the constitution your view so i don't understand your argument is that the uniformity is seen only through the lens of reorganization case and in that case congress had implemented a new provision that only applied in the east and midwest of the challenge but the the what the supreme what justice brennan ones that because there were no railroad bankruptcy's outside of that region there wasn't a there was not a problem so it was really joint justice brennan's decision was a no harm no foul kind of cut kind of argument but i think that underlying that is the focuses is not on is there a of formal non uniformity versus what's what's the impact on the actual parties involved cases and their judges justice brennan found there was no impact because there were that what nine hundred and thirty dollars a seven does is give the judicial authority but only to do what nest is necessary for a uniform see the consequence of that i suggest to you is that your client is not the victim of any lack of uniformity permitted by congress there may be a question over the permissibility of digital conference's actions but that would not be a ground to absolve your client from the fees that congress intended to be uniform throughout the system why should we not view this case that way would require you to rewrite the statute in a way that i believe is not permissible at what point in time mean we have precedence that says that made can sometimes be construed as shout and after all we have the principle that construction is to be consistent with constitutionality not inconsistent so what part of the statute yes and your honor agree one hundred percent and as the bankruptcy court sent you you should look for a construction of the statute that is fairly possible by which constitutional question can be for this court to find that in this one place that may mean shall become a court would have to assume that congress essentially was using men shall throughout the statute in really and and you just threw me another softball your honor because i think you just put your finger on it is that for a period of years in some sense the judicial conference  did go along the the the genesis of this a six and seven is and i this is in the brief and there's there's a lot of you commentary on this is that this is a political neil for whatever that when you when the sausage gets made and it's made in a way that's that's not consistent you potentially are going to have problems when a seven was put in place it conference was going to have this discretion so in some sense and i know this is a strong statement but the way congress at this up this statutory scheme along with the constitution in some sense congress window here where you are saying that sir bankruptcy is in the trustee system between when congress raised the fee and when did you just feel confidence raise the fee you can only be charged the old rate or is euro i just your argument go further and dispute whether anybody can have their fees raised after two thousand and eight after the judicial conference action not i'm not sure i understand the question your honor i want to know how how broad the relief you're asking for is does it only pertain to bankruptcy in the window  me how that argument ties into what i understand your challenge to be a purely a facial challenge or a not as applied correct so how is it that you had a facial challenge to the language of the statue but you're what i think arguing is that your argument would not be valid after first two thousand and eighteen how does that work considering the language of the statute hasn't changed aren't you really making it as applied challenge based on how it was implemented in at a particular point in time i think it's an odd but i i  party executive is applying it improperly in a way that violates some constitutional provision i don't think that's quite what we have here your honor because here it's the argument is is is not that the federal judicial misapplied the law but the argument is that the federal judicial conference did exactly what and seven authorized to do which is it gave digital coverage discretion to describe distinction then it almost sounds as what you're arguing is more and as applied challenge for a period of time but just if and when well when the judicial conference raised the fees to an equal level maybe then nobody had standing anymore to to to challenge it because they're not harmed in any way but it's almost like a temporal as applied everyone in this window has the same as applied challenge  i'm just trying to figure out how to fit a claim with a temporal limitation as i think you're arguing with a fake challenge to a law facial i call it making problem in the real reward case it's no if if i think under the real reward decision of a railroad outside of the geographic region that congress defined filed bankruptcy it would have a problem and i think the decision at least implicitly says that so that i i don't i don't disagree with you that from october one two thousand and eighteen foul situation the facial issue goes away so that it's it's hard to see in the real reward decision how there wasn't that facial problem i mean congress passed a statute that applies and expressly applies and only one reason i  understand you saying that it seems to me that if without if you're just asking us to be creative then why don't we just say that may means shout and that will fix it two out of things will fix it but it doesn't seem like that's really what courts typically do but i don't reordered case where justice presidents sensually lays down a no harm no foul rule and it was it was a uniformity case congress had put in place a structure in one region of the country  increase mandatory increase was not put in place in a seven that's right and you're asking the remedy is to strike down the the amendment to a six that's correct your honor but there's nothing wrong  let me start with this discussion of the distinction between traced on as applied to because i think it's right it's a really easy way to resolve this case if you look on pages twenty one to twenty two and footnote seven you'll see that the  of their brief i'm sorry of the of their opening brief you'll see that they concede that they are not making it as applied challenge that's on page twenty two dollars it's a footnote that spans two pages you also see debt from twenty one over a bit under twenty two they concede that they're not making an altar virus challenge to the actions of the judicial conference so that means you know i think in this case they've given up on any attempt to say that there's an as applied problem hence they're making facial challenge and in making a facial challenge they're bound by the salerno test which says they have to establish that there are no set of circumstances under which this is a constitutional statute and i'd submit to you that in response have a challenge well that means that there is a circumstance under which this statute is constitutional and so if you look at at a seven what it does is it confers at best i'm sure mr enzi right i think the better interpretation is the want the judge you were you know indicating which is to interpret this as a can follow our on the judicial conference to make fees equal and then functionally it becomes a sh that the concern with that is judge sullivan pointed out is it's not as if the congress didn't use the word shall in the statute and so given that it did so indeed it did so right in the same section we like to assume that the words were intended to have different meanings well here are what i would say in response that is that look you're you're dealing with a judicial conference acting and their facial challenge fails right at that at that point now i think you could actually could interpret the nd sentence shall end you know or the last sentence in a seven shall grabs differently than judge solomon was suggesting right because there's a reference in that to such b s you know shelby deposited you know under section one hundred and thirty one and so what trees are we talking about we're talking about the obligation to pay challenge you're dealing were you dealing with a filtration challenge because in this instance right it is entirely possible for this to be uniform and basically mr hands he conceded that at the moment because the fees are equalized there they are uniform some commentary on whether the salerno rule only applies in circumstances where best applies in circumstances where you don't know how something's going to be applied is i understand your adversary's argument at least for the window between january two one thousand and eighteen dollars and october two thousand and eight there was no question that it could not be applied equally in the trustee and the bankruptcy administrative systems you would have similarly asked a question about the constitutional avoidance can't write about about ash want or so you're dealing with the judicial conference they they would be faced with a situation where they should be reading the the statute in a seven to apply the same equal fees in the bankruptcy administrator areas as in the us trustee program areas and that was another reason why it's facially constitutional you know i i also think that in light of that way of interpreting the statute right back it's into our last argument our remedy defense which is mr henslee seems to assume that if you can establish that there's a uniformity problem that the remedy that flows from that has to be that you lower the fees you lower them down you equalize them down to the ones in the bankruptcy administrator areas but i would submit to you that that is not the way at all to read the statute when you're dealing with the remedy question like that you have to approximate as best as possible what the outcome is the congress would have intent and they give you a highly retakes you laid it graduated scale of fees that they mandate in a six dollars for the vast majority of the country right and and so the idea that those that fisa estimate could be just thrown out the window and the extra fees that congress deemed necessary to solve a few crisis in the mid twenty dollars tens you know that that that is something that i don't think  that for a ten month period or approximately ten months it would two different systems being applied get pending on whether you were trustee or a bankruptcy administrator district now i'm i right in eighteen well i think that the basis for that your honor would be that the judicial conference adopted essentially a uniformity rule in two thousand and one in our court that it issued so why the judicial conference chose to depart from that you know approach that had that it prevailed since two thousand and one up until two thousand and eighteen we can't tell you but i can tell you that mr hands he's disclaimed any challenge to that divergence to the judicial conference acting in an altered virus way well what i'm perhaps not articulating clearly for you is if we think that uniformity is necessary how do we achieve uniformity in the circumstances up you'd have to require if you were dealing with a bankruptcy you know administrator area you would have to you know equalize those fees up but you're not even dealing with a party that face that  well you know one reason it might come before the courts is it has applied challenges not been disclaimed if an ultra vires challenge did not and disclaim so i think you know the debtors here are sort of the victims of their own strategic choices the other thing i'd like to just back up to that point let's say for the sake of argument that we disagree with the labeling and we say no in effect the claim that the plaintiff has brought here the debtor's brought here is whatever will characterize it is as applied even though they say that's not the label we say the substance of their claim effectively is as applied so we're not going to say that they're out of the box for having abandoned it so we are in the world assume potentially offering a remedy for an as applied challenge so going back to judge reggie is question what would be the remedy if they had an as applied challenge you're talking about you know at best a control of discretion on digital conference to make fees equal there's no control of the discretion we think specifically to make the fees unequal but if you're dealing with this graduated system that says  size pay this fee debtors of this greater size at the next street a whole you know again highly retake you laid it series of fees you know based on the size of the debt or that congress clearly wanted those extra fees to be paid you should be pay higher fees i guess that's my question is that it says yes you just aren't any i think since those debtors are not in front of you i don't think that you can order that this isn't a basis for these debtors who are subject to the higher fee in the u s they're another there are other circuits around for us so you're saying he has no remedy assuming again my hypothetical that there's a violation of the uniform because yes i mean per haps your honor there's a way for debtors  n you know the different types of of zones to unify with each other to bring a kind of systematic challenge but i don't think that works or at least debtors particularly given what they disclaims i'd like to get to the argument though ancients between particular areas and then for them to be uniform within those spans that's you know that's why i think mr hans you started with the blanchard case because and the supplemental artie's that we wasn't a problem you know if it ain't broke don't fix it and so in light of that it was you know and it could be entirely rational for congress to have two different feast estimates one in u s trustee program areas and one in  is that a regional difference that would justify that is differential i think and you know perhaps your honor entirely arbitrary political juice you know situation might not be but i don't think that's what we're dealing with i think we're talking about the fact that those areas didn't experience the kinds of problems that led congress to create the u s trustee program elsewhere and that when there were pilots that in those areas they didn't seem to go so well in those areas and so that's a rational reason for congress to set up two areas and the fact that you know particular august mean for particular areas have the power to stablish you know what they saw as a rational difference between different areas i don't think that's something that looking at something like this and we really haven't talked about the concept of what standard review applies to constitutional challenges like this right i don't think that's the kind of thing that should be penetrated into you if you applied for instance what why wouldn't there still have it be uniformity in those respects so your honor that's actually an excellent segue to what i want to make is by my last set of points which is that our threshold argument is that this that that providing fees to administer the u s trustee program or the bankruptcy administrator system that those are not core back see matters they're not on the subject of bankruptcy within the meaning of the article one uniformity right no your honor i wouldn't say that and this is another area where i think in terms of the way this case was when it did by the debtors that they they fell down on you know undergo the n f i b the civilians case from the supreme court congress doesn't have to lay out honor i would say that's right so the st point is we didn't rely only on the necessary and proper cause we also pointed out that our congress has an aggregate of hours here under the commerce clause and under because it's using the judicial  the power to create you know adjunct tribunals which is you know at some level essentially well if you want to go through the one it it's time i'm happy to do that with you why don't you start with the necessary and proper clothes you think that the necessary clause our so there has to be some additional add on to of the necessary and proper cause otherwise the clause would become surplus so you know i understand that at some point right if you go way past what the core of embrace doing something ancillary like a free system so that the u s trustee program can go it's kind of the gasoline for the tank of the u s t p that that is something we think of it within the next or ok so now you want  find the commerce clause is the power that authorizes congress to set up different beast structures depending on whether it's a trustee you are a or a bankruptcy if appeals section the fact that they made a choice to kind of tie it as a kind of user fee into the bankruptcy system we don't think is a is a choice of constitutional moment or a choice we're going to negate congress being able to use our commerce ours or it's ours to to raise fee s it's not so clear to me that your adversary might not have an argument if the bankruptcy administrator system were publicly funded and people in the trustee system had to pay  sure thank you your honor so what we have three arguments we think that while bankruptcy courts tend to fix that anything that you know has some tie into the bankruptcy you know area must be under the bankruptcy our we don't think that you know under the classic notion that there's a distinction between substance and procedure that this is a core matter the supreme court has only invalidated one case you did givens case for the equivalent of a private you know and that was clearly you know messing with something that was at the core a bankruptcy about you know treating debtors differently providing for ancillary fees providing for rules local rules local ba different kinds of bankruptcy appellate panels that's not the kind of thing we think fits into on the subject of bankruptcy so we have at nd you know we've obviously been talking a lot about the uniformity i think the simplest way to deal with that is to say that they flunk  let me ask you at that i mean to do you agree that when congress enacted nineteen thousand three hundred and eighty seven it was in response to the concern identified in san angelo amended so i'm a little perplexed as to why they thought they had to take any action in two thousand and thirteen why the two thousand and one action wasn't good enough and similarly why congress in  would not have thought they'll be an automatic increase by the the judicial conference in light of their two thousand and one statement i think congress might have thought that a seven gives the judicial conference seven i think i think the congress probably wouldn't have a reason to believe that what congress did was it set up a system that gave digital conference discretion and eleven dollars point here your honor is it if you look at the two thousand and t virus challenge the below the us trustee argued that the judicial conference had acted ultraviolet virus that the us trustee argued that really if you take the usual conference report question your honor a seven gives additional conference discretion and i understand what there's a common sense in two thousand and one but i think it was if you read digital conference report that the magnitude of the fee increase particular way so it didn't happen for a while and then when it finally act get it act get forward well it didn't act and if it had acted in march of two thousand and eighteen for four or five months because it hadn't met or  on in alabama and north carolina for what it's worth i've appeared in cases in north carolina alabama and i haven't noticed any difference and have to says there are minister i've dealt with bankruptcy administrators and it feels the same as dealing with you know it's trustees so this was a purely arbitrary political thing congress created the problem at the judicial conference in some sense has fixed the problem for congress until it didn't and  exercises discretion here in a way that didn't fix the problem for congress that's why i say i understand the temporal issue i understand the slur issue but this is not a question of we didn't know how something was going to be applied