power to address an employment discrimination claim shifts from the executive to the judicial branch the exhaustion requirement is therefore jurisdictional in the plainest sense of that word and that is confirmed in at least three ways first the text and structure of section two thousand five demonstrates that the exhaustion requirement is jurisdictional ensuring that courts do not reach the merits of a claim before it has been presented to the expert agency but the expert agency unlike the samples that you give of agencies that have adjudicatory authority he or she has no authority to adjudicate yes you have to let the complaint stay there for one hundred eighty days but they don't decide anything even if they decide they dismiss your claim that has no crucifix in the court so it's one thing to say when congress said such a scheme with the agency is the equivalent of a court of first instance it makes a decision and that decision is reviewed but in a title seven case the court is never revealing the decision of the e e o c because they don't have a new thought already to make decisions well justice ginsburg i think the important question with respect to jurisdiction is whether the agency has been empowered to attempt to resolve a claim i don't think whether the the way that it resolves it whether whether the way that it's been empowered to resolve it whether it's adjudicatory or non adversarial i don't think that matters what matters is whether congress vested authority in the agency to attempt to resolve it and i think with respect to title seven it's correct the agency is not using adversarial proceedings and that's because as we know congress intended for employment discrimination claims to be resolved in a non adversarial matter to be resolved or cooperation or means like that and so it wanted the agency to have the power to do that and leaving the door open for the adversarial judicial process at the same time would certainly have undercut that intention and united states has sovereign immunity and they can say you can't sue us unless there's no question about it they're very much is in two important ways first of all state sovereign immunity is certainly indicated by section two thousand and five because it gives parties the right to sue state but also section two thousand and five and the exhaustion requirement let's go back handed or is this congress give the stage the the give a party the right to sue if the is congress is we've munity that's that's correct but the question is how narrowly to construe the waiver of sovereign immunity in this court has repeatedly held that waivers of sovereign immunity both with respect to state and the federal government need to be narrowly construed and i'd also just like to add section two thousand and five does implicate the federal government sovereign immunity because section two thousand and five f is expressed fully incorporated in section two be narrowly construed if congress said yes you can bring suit against the federal government yes you may bring suit against a state but only after you have attempted to resolve this claim through non adjudicatory methods then we need to  honor congress says decision about the breath of the waiver that's at stake in that case do you think they meant it if you take a case title seven trees take it to a district court take it to a court of appeals this being jurisdictional and yes congress very much did say that this is a jurisdictional rule but i think that that is focusing on one relatively rare instance rather than on the reasons that congress would make a provision like this jurisdictional did i think that the text of section two thousand and five makes very clear that a civil action may be brought only after the e e o c has either dismissed the claim or has one hundred eighty days have passed and then section two thousand  five f three only confers jurisdiction over actions brought under this subchapter so i think it's pretty two separate sections one is the  three and that doesn't say anything at all about exhaustion exhaustion isn't a separate provision they're not linked together in one provision so they are both in subsection and one in subsection f one and in the other subject section f three and they are certainly linked by the specific textual clues which is that subsection f three says you only have jurisdiction over actions brought under this subchapter days have passed so i think that gives her from a suit for copyright infringement may not be brought until the copyright is registered well there i don't think there was a that wasn't in the same provision as the express jurisdictional grant i also think you know we're not just looking at text in isolation you have to look at text in context and here we have this very this this text linking explicitly to the jurisdictional provision and it's part of an intricate scheme for statutory and traditional review and this court in case after case has said that when congress said oh you just use the word review to review is an agency and then the court is hearing the case  novo it is not reviewing anything the agency has done well that the court has used the term review to refer to what the agency does and so i don't think it's using review in the sense of there has to be a decision in front of it that it's looking at and in fact we know that review well i'm not sure that that's how the court has been using it because it refers to administrative review and we all agree that the agency is acting in the first instance so i think it is referring to reviewing a claim and certainly the courts are reviewing a claim but again i don't want to get too bogged down in this i there is do novo review but we think again that that is because congress was setting out a scheme that was designed to encourage litigants to first go to this non adversarial  process so that satisfied by making it mandatory this is a mandatory rule and if the defendant races it but when a defendant doesn't raise it  to question about the premises of our system ordinarily we found a civil court don't the principle of party  suggesting really runs up against that main theme that it's up to the parties to state their claims to the defendant to raise objections defenses i think that in john our sam's the court recognized that jurisdictional rules don't function in that way and they don't function in that way because they are generally intended to vindicate system related goals and it's very clear here that the titles hav exhaustion requirement is indicating certain system related goals as we're discussing it's helping to protect sovereign immunity it's also ensuring that the e e o c has its central work role in the employment discrimination context and it can't have that role if litigants are able to sort of do side agreements and just evade the e e o c entirely what we do with one another facet of title seven title seven is written for employees to state the i think that in forcing the exhaustion requirement courts have taken that into account and it's sort of similar to the notice of appeal setting where a notice of appeal is a jurisdictional requirement but this court has been relatively flexible in order to recognize that sometimes there might be difficulty in satisfying that and to ensure that people do have their day in court and so i think if you look at the army maybe we've been flexible in regarding some things as notices of appeal when they're not phrase translated into the e e o c context where there is some flexibility in what is regarded as an adequate charge but what there is no flexibility on and i would agree with you completely because this is a jurisdictional requirement there isn't flexibility on whether a charge seven but what if it didn't exist so that a plaintiff would have to rely solely on thirteen thirty one would you have the same argument it would be a different argument quite candidly because we do have a textual link here between the exhaustion requirement and explicit grant  so congress created a special grant of jurisdiction it textually links that to the exhaustion requirement and i don't think this court has ever held that thirteen thirty one can sort of be used as a get out of jail free card in you know the general grant does not apply where a specific remedial scheme has demonstrated that it isn't available and we see that in under bass and we see that in free enterprise fund and in elgin where the court is looking at whether that general grant was just placed even in some of this court social security act cases it is said well this particular claim isn't really covered by these explicit provisions but we don't think that congress would have wanted claimants to be able to a vade this remedial scheme by using thirteen thirty one and that's exactly again what we have what we have here and as we know it's not just these more recent cases but cases dating back over one hundred years that has one hundred y division no absolutely not our argument is that this type of exhaustion requirement fundamentally affects the power of the courts because it congress rather than vesting power in the courts congress  say if you don't raise something before the agency the court can't consider why bother with that so that's what you're saying no no we're absolutely not saying that we're not saying that every single type of exhaustion requirement out there whether it's about notic comment rule making or stated ministry of procedures or whether it's a statute that makes clear that the administrative scheme is not exclusive any of that note now you've got a you know exhaustion acquirements jurisdiction no we're saying that when congress sets out a scheme that is clearly designed to be the exclusive scheme for individual ised resolution of claims that this court has held and this isn't a new rule this court has repeatedly held that when it does that it doesn't leave the  jurisdictional now that was you know that an hour is deemed there was adjudicated but the court didn't think that difference was was significant and it's not significant in this case either because what is too important is that congress empowered the agency not the courts to address the to address title seven claims in the first image not to resolve it not to resolve it and that's an enormous difference between a social security administration or b and b they decide authority to decide the constitutional claims at stake there but nonetheless the court held that it was a jurisdictional when you had to go there first even though you might have a constitutional question and the court carefully explain that the court the case might drop out of the ground and therefore the court would never have to get to the constitutional question so social security you have to go before the agency first you may be you may have a constitutional question but maybe that you don't qualify because of one of the statutory weapons and that's with the agency and and judy kay that must mean before the court can consider the case and that's exactly right what was concerned with was the fact that a case or a claim might be fully resolved before the judicial the judicial branch had to weigh in and that's exactly what we have here congress created a scheme that limited the jurisdiction of the of the judicia by giving the authority first to an agency that would resolve some of the claims so that the judiciary never has to pass on it not resolve any legal question it can only be it has  defendants raise the argument that something has not been properly exhausted and on the practical implications wouldn't your rule put a new burden on courts to look through the record to make sure each claim was specifically exhausted isn't the very fact bound and why shouldn't the courts be able to rely on defendants to do that in the first instance rather than doing it themselves in each and every i think because the incentives of that that a defendant has aren't precisely aligned with the system related goals that the exhaustion requirement is indicate and so there are going to be instances where defendants aren't raising that exhaustion requirement there actually lots of cases where won't always result will result in dismissal of the case but it may be that the employee be able to go back to the to the e e o c exhaust and then return to court so in that instance of course isn't there a time problem with doing that there may or may not be if and in some circumstances there's actually three hundred days so the idea that this will just that every time if an employer raises it right at the outset that will just get rid of the suit well but the e e o c procedure is likely to be a real waste of time i mean here the part litigating for how long these five years five years i don't know and now you would have them assuming you can get through the time you would have them go back and say well let's go back to the sea and see if we can work this thing out the there's been  and energy invested in trying to win as opposed to resolve it there be no there being no real purpose in sending it back to the u c in this case well i think this is a marginal case and of course the question is what congress intended not what might happen in this case which is very rare as far as we can tell there are only two other examples that respondents have been able to point to where anything like this is happened ones from one thousand nine hundred two and ones from two thousand so this isn't something that's coming up all the time but even if that were the question is what did congress dictate did congress say that this was during and we pointed out that the text the structure the purposes all demonstrate that it did if it has this legislation after two thousand and six that seems to be about the time we adopted a much more focused understanding of jurisdiction requiring a pretty clear statement you really wouldn't have much of a case would you i don't think that's correct again i think there is the text makes it pretty clear i also think that from two thousand  on the court has regularly recognized that the clear statement roll applies to the extent it accurately reflects congressional intent which means that when the long line of this court's precedent undisturbed by congress treats a particular type of  jurisdictional the court will presume that follow suit and as we've pointed to there is a long line of this court precedent that establishes that when congress creates an intricate scheme of administrative and then judicial review it generally inten s had to be how do you distinguish sorry how do you distinguish me home or on that point you me homer is about notice and comment review isn't about what it's about a scheme designed to make sure that the claim or the issue since they claim the issue is first raised to the agency with the idea that the agency would then take that into account i think in this case and in all of the examples we've cited what we're talking about in terms of administrative review percent provisions is individual eyes claim resolution provision so once you have a claim what do you where do you go do you need to go to the agency or can you go to actually to the courts you mean homer it wasn't about that it was about notice and comment review first of all that's not individual ised you don't actually even have  at now yet how how do we look at that in the scheme individualized claim proceeding in ministry of exhaustion requirement that's all we know what else do we need to know well as the court said in elgin you look at the text you look at the structure and you look at the purposes so you look at the text to see how intricate is this scheme and how comprehensive is it does it seem to actually cover all claims or does it seem pretty isolated i mean i think brown versus community versus community nutrition is an example of that there the scheme really wasn't comprehensive and so the court didn't find that it precluded any any direct avenue to the district courts so after you look at the text you look at the structure again and there's a little bit of overlap here it's basically is there a detailed administrative review scheme and then that culminates in judicial review again you have that here and then you look at the purposes is this the sort of scheme that would best be forwarded by i have channeling all things to the luck on him mr chief justice and may please the court this court has held numerous times in zipes and our bar and in many other cases the statutory limitations are not jurisdictional unless this unless congress has said they are just in a clear statement that is meant to be a readily administer all bright line there was a that should of course was passed before that yes your honor but i think that the our buckler state and rule is intended to be the best way to discern congressional intent that's what this court said in henderson and when you're talking about a situation where congress might have been doing something very unusual that is imbuing a statute with jurisdictional status with all the harsh consequences that come which  the waste of time the burden that this would place on the district courts i think it's right that the court should demand a clear statement from congress before saying that congress meant to make a jurisdictional rule and you do that in other kinds of context with these kinds of consequences as well also such as extra towards or extra territorial application things like that you ask for a clear statement because the consequences could be very severe and then if i could answer your question sort of  is we're going to look for a clear statement because of this starting now i mean everybody knows it was a real mess before then but you can't sort of say that congress was on notice that it had to give a clear statement prior to the time we said no your honor and that's why i come back to my first answer which is that this is the way of discerning congressional intent in these very important cases where the question we're asking is is this of the high level that it would have to be to be a jurisdictional status are we going to want to impose these kind of costs on the court and on the parties and litigants and do we want to give congress clear guidance on what they're supposed to be doing in the future when they're deciding what to do with statutes whether to amend them or are overall the reality is that i doubt congress even thinks about or in the past start about this issue that's probably right you're wrong and so in the absence of the clear statement rules intended to give us guideposts of how to discern that i agree with that  is clear history as there was in whether an appellate rule is jurisdictional or not we follow the history that's right and i think that's a way of discerning clear a clear statement from god but there's no history here there's absolutely no history here on earth those cases that you're talking about i think it's bowles and john r sand and gravel those are cases where there's one hundred years of direct precedent of this court and of all the courts of appeals there is nothing like that in this case in fact the only cases we have are sites in our boss actually and those are cases that cut in our favor every other case of this court is analyzed jurisdictional wasn't where the scheme is similar to us you have to do something before you go to district court those have and in some of those the language in the text of the statute is better for our friends on the other side than the statute really what about religion elgin your honor i think handles a very different set of circumstances as justice ginsburg was saying those are cases where essentially jurisdiction has been stripped from the district court and administered agency adjudicates the case and then there's judicial review that's funneled to a particular court of appeal or district court it doesn't matter but it's funneled to a court and those are completely different  doesn't educate anything there's no review there's no administer record there's no risk of sort of differing some of the cases our friends cite in their reply brief or about inconsistency in tariffs across the country and there's to the court you go to administrative agency there's no district court jurisdiction at all at the first instance then you get a judicial administer record you go up to a court of appeal congress could do that if they wanted but they haven't chosen to do this what i'm asking this suppose that everything in this statutory structure is exactly the same except that the e e o c had actually been given the ability to resolve claims rather than simply to assist in the mediation of claims right now and i think the case comes out the same way because then i think it looks still like just an exhaustion requirement not like the thunder basin elg unlined case and i don't think as our friends argue that there is an exception from the r balki or state and rule for exhaustion type schemes i think they're arguing that even if there isn't one that we should recognize one or create one exception for administrative exhaustion schemes and so you just take that directly why that would be a bad idea yes or i think it would be a bad idea for several reasons let me start with the burden that it would impose on the district courts in cases like this one you'd be asking district courts in every single title seven case at the beginning of the case to look into not whether there was a charge file or not that's relatively easy courts could probably do that but in to whether the charge captures the things that are in the complaint and not just captures them but consistent with the rules  have that it could also be reasonably related to what's in the charges not just that it's directly what's in the charge so district courts would have to engage in this extremely articulate in alice's at the beginning of every single case suicide because they have to assure themselves of their federal jurisdiction that's an extraordinary burden to place on the district courts and on the parties such as in our case where we've been litigating for five years and it would wipe out two grounds of appeals the circuit all honor it wouldn't necessarily be a burden on the defendant making them be able to get out of this lawsuit that's true let me turn a little bit to the incentives plaintiffs and defendants have to bring up this defense because my friend talked about that a little bit earlier i don't understand this argument that defendants don't have an incentive to bring up the charge the lack of a charge or the fact that the charge isn't good enough as we noted in our brief we point out a defense manual for title seven cases that says bring up these defenses immediately and that's because most of the time you'll be able to get rid of the claim it is a mandatory requirement if the charge i'm good enough to claim will be merits to get this case out on the back of the charge or do you think that if it's a if it's just a mandatory claims processing rule do you think that a district court would nevertheless have discretion to raise it to a spontaneous i think so or under david mcdonnell your honor with the one caviar is that it's it's different than they've even done and that that was just a time calculation so that's easy to do as i was just talking about a couple minutes ago this is quite complicated because there might have to be discovery might have to figure out whether the charge could grow into the complaint and that sort of thing so i would urge district courts not to do it in general because it's dangerous but i think they have discretion to do it and then it's just an abuse of discretion analysis on appeal if you get there if i could just turn to we've been talking about the incentives defendants have to raise the charge requirement as a defense but plaintiffs also have extremely strong incentives to go to the e e o c first of all of course they'll lose if they don't so that's a big problem but more to the point you want to have that chance that the e e o c will come into your case on your side that's an extremely powerful tool in the hands of plaintiffs there is a conciliation process that could be extremely useful for a point of stu's and there's also mediation a more informal process that the e e o c has to help get you resolution so i think the incentives for plaintiffs are even more powerful than the incentive sort of tenants to comply with the e e o c so you have any idea what percentage of charges filed with the sea are resolved to reconciliation and there were never have to be litigated i don't have the exact number very low i think most cases don't get resolved i think maybe the united states might have that number exactly but it's it's the most my memory is serving me wrong i think it's under twenty under what twenty percent or  so i think the incentives point of have are very strong for going to the e e o c and it's even twenty percent wouldn't it be important from the perspective of the courts to require the plaintiffs to do that that's twenty percent or fifteen percent fewer cases that have to be litigated it's absolutely important your honor and our position throughout this litigation has been the charge of carmen is crucial to the way title seven works and we don't dispute that in most cases if you don't comply with title seven requirement you're going to lose and that's the way the statute should work but it's just not a jurisdictional bar it doesn't comply with the clear statement rules set forth  for the high level of burden you have to get to for it to be jurisdictional and it on one other point on these incentives we have been running in that natural experiment across this country on whether our rule works or not as our friends on the other side can see there's a least eight circuits that have already adopted our rule and there is no indication not a shred of empirical evidence that our friends on the other side can point to that there was a problem with a rule are you looking for it would be very hard to find in your own right i concede i know that we get this argument quite a bit the rules being here and look there's no great crisis there there's no great crisis there but it's hard when you think about it to try to figure out how that evidence would be compiled absolutely and i have two answers to that to try to get there one is that i think the e e o c has the empirical tools to observe what's happening in the district courts to make sure the same number of charges are going forward there's not some sudden drop off  charges because suddenly the rule is non jurisdictional so i think they could see if something was happening there it's their world and i think they would be able to notice the other thing is it's true that in general the it's ha the bubble up because these kind of cases are rare but i still see you think you would see some evidence in the court of appeals as people come with these claims that they haven't gone to the e e o c all along and the court of appeals are saying well why why do we have this case at all and there's just not a single case that looks like that the cases that there are all look like this case where there is a charge the question is is this charge sufficient is there enough in the charge to get you to the values you've looked in there's not a single case not that many but there are some we have them in our brief in the footnotes from the courts of appeals but also when i'm think about that question i also think that zipes in our bar in this kind of case and so it has come up before in this court i think it's zipes that was actually brought up after trial and so that just shows you that this kind of problem could be very harmful to the way the courts work well if there are no further questions i could leave this court and one final thought which is that this court has done a lot of work in the last fifteen years to clear up the prophet use of the word jurisdictional our friends on the other side i want you to blur that line again and reinject uncertainty back into these cases we are not to do that and affirm the judgment below thank you thank you counsel mr bond mr chief justice and may it please the court are bright line will resolve this case title seven charge filing requirement is not jurisdictional because congress did not clearly state that it is not petitioners primary submission is that the court in manufacturing exceptions to that clear statement rule based on an app as it doctrines but the court should reject that for several reasons first those exceptions do not exist in this court's case law second adopting them would require blurring  our bright line and overturning decisions of this court and third as i think has come up already those exceptions would not apply here in any event i'd like to touch on for particular points but first as alito the number you're looking for is approximately one percent per year  federal employer discrimination claims third the argument that this requirement serves two important purpose to be wary of a ball and finally the analogy to thunder basin but turning first to the exhaustion exception the petitioner proposes so i think has already been explored this morning that exception would not apply to title seven charge filing requirement in any event because as this court already recognized in woodford vs no in rejecting the same analogy it is not in any sense and exhaustion requirement you're not asking the agency for a decision it is not deciding anything appeals and it to on to say a court may not consider an issue not presented to the board that's the provision on the basis of which this court has held that there is no jurisdiction over issues not presented to the board but even if you thought this fell within the ambit of some exhaustion requirement this court cases do not recognize that kind of exception position points to no case that has held that and none of petitioners cases before are about to recognize any kind of bright line rule or even presumption that those requirements are jurisdictional what if there were adding saussure requirement by the time the agency's decision but the losing party before the agency could get a de novo lawsuit in district court under those circumstances wouldn't it the wouldn't the inference that congress on what you say to the chief justice is concerned that this is a stack should that pre dates or ball now i know you're going to tell me immediately that we've done this before and applied our bar retroactively statute preexisting  besides that argument what rationale do you think supports us doing so so i would point to the rationale that our ball gave it was about reflecting or ascertaining congress intent or ball went through before announcing the clear statement will the severe consequences of deeming a requirement jurisdictional including that it means courts must raise the sewer spontaneous it can wipe out litigation years after the fact or up on appeal it means judges instead of juries are deciding these questions in the typical case and for all of those reasons given those consequences courts should not assume that congress does that lightly or inadvertently and as mr makoni and suggested it's the same with other presumptions that this court applies that are interpreted presumptions aimed at getting to congress is intent we've been in areas apply our interpretive presumptions and all judicial decisions retroactively i mean that's that's our consistent rule supposed to be right we certainly do apply them to existing statutes as you do in extraterritoriality kongo our decisions are normally retroactive in their application not merely prospect of exactly right that's right so an additional virtue of our bond is that it's as the court said leaves the ball in congress's court by creating a clear baseline but it's certainly not the case that that presumption or any other applies only going forward and i think the problem that if you created an exhaustion exception now is that you would blur white line rule and you would not only create uncertainty for lower courts about exactly how this rule applies but you also make it more difficult for congress to say in the future whether it means that requirement to be jurisdictional has already been explored this court has applied  employers it's very different legally and practically from what's at issue here under five that the legal differences are twofold first to get involve suits against the government or government agencies so it always involves federal sovereign immunity and second on top of that the language is starkly different in sixteen c it doesn't say someone aggrieved by discrimination it says someone who's aggrieved by the final disposition of his complaint or the failure to act on his complaint that looks like the f t c day where your your whole grievance for coming into court is that the agency has handled filing requirement requires or compels this court to treat it as jurisdictional as a legal matter that's incorrect into this court's decision i read in footnote nine but as a practical matter i want to emphasize that deeming this requirement non jurisdictional does not undermine its purpose at all the government strongly agrees that this serves an important purpose but whether it's jurisdictional or not as counsel for respondent was explaining plaintiffs have an overwhelming incentive to file a charge and not only because if they if they don't do so they bypass any chance of getting assistance from the commission but also because their suit will likely face a fatal obstacle in court so the only real question here is in the narrow subset of cases where a plaintiff nevertheless doesn't do so and the defendant for whatever reason doesn't raise that objection must you wipe out everything else in the suit that's come to that point and we don't see any basis in title seven policy for that result which wastes courts time which creates an unfair surprise to plaintiffs which creates unjustified windfall to defendants and could impede the commission's own efforts because the logic of petitioners position would extend we think to at what point must a defendant raise this in the answer so we understand this to be a condition precedent that is governed by federal rule of civil procedure nine c which means it must be pleaded generally but must be denied with particular also may frequently entail putting in additional information that turns into a summary judgment the lower courts a little uncertain over whether it has to be raised in something akin to a motion just to dismiss or answer or whether it can be raised in summary judgment but i think the most important point is that by the time you get to appeal and beyond that the defendant has missed the chance to raise that argument if i could turn finally just to the analogy to thunder base and just briefly explain why we don't think this implicates that and i have a general point and a title seven specific point the general point is that title  jurisdictional at all and for all the reasons the court gave in our bar we think that you should assume it is not jurisdictional unless congress says otherwise the title seven specific responses that for three reasons fundraising wouldn't apply here first in fundraising and elgin you have a statute that arguably has peeled back by implication thirteen thirty one we know that's not true in title seven because our boss said so and because the point of title seven jurisdictional provision was to expand your stiction second respondent didn't try to bring a different kind of suit in a different forum than title seven contemplate whether to bring its own suit it doesn't render a decision and so extending thunder basin over here we submit does not is not supported by any of the rationales the court gave and thunder basin and elgin and just to touch briefly on the question about elgin in that case it's true that arguably some issues were beyond the agency's competence and reasonable minds can disagree there although we think the court had to have the right answer but here where there's no agency decision at all nothing in thunder basin or elgin's reasoning supports precluding review and just reports entirely  but when it comes to jurisdiction we know that congress controls jurisdiction congress determines when this court has power to do things and so the key is statutory intent it's not what the agency that's implementing the statute thinks it's not what the jurisdiction only over over actions brought under this subchapter but if we do want to address the practicalities i think there's a little bit to clean up here justice alito you ask well how many of these things are being resolved and the government said well only one percent are being but the government's own website the one they cited for five demonstrates that about fourteen percent of the e e o c claims are actually being withdrawn are being resolved to the benefit of the employee and if you look at the texas workforce commission's website it annual report suggests that twenty five percent of the claims that it's resolving are actually resolved to the benefit of the employee so and then this question about well why would a plane have ever not exhaust well we looked and just in the last two months on westlaw there are at least fifty opinions in which the courts are dismissing claims because there are exhausted so there are many reasons you can speculate about but it is certainly the case that right now in our natural experiment plaintiffs are not bringing they are not bringing their claims to the e e o c as congress directed with the of those excuses like this one with there was a complete she started out with a complaint of a gender based discrimination but not stating anything about it so how many of those cases where there was no exhaustion of the claim book to court cases like this where there was a charge of some kind but but i would again emphasize courts universally apply a pretty plain to friendly position with respect to whether somebody has exhausted or not so they look at whether it's related to or grows out of the charge so so when we're talking about not raised at all we're talking about they didn't even mention this type of discrimination the e e o c had no idea it's something that happened after the e e o c is investigation was concluded but i want to move on to my third point because there's a lot of  here that what we're asking for is a new rule but we are not we are pointing to cases dating back from nineteen zero seven in which this court has held that when congress vests authority first in the hands of an expert agency it intends to displace the original jurisdiction of the district courts and they have attempted was that was because they gave the agency the authority to do what ordinarily district courts do that is the agency was the tribunals of first as it will and justice ginsburg two thousand and five does apply to the government and if there are no further questions i'd ask this court to reverse thank you thank you counsel submitted