think the first thing i'd like to say is that it seems to me there has always been a sense of artificial ality about this particular case and i think it is proceeded under i think of a premise that's not really period was open for more than three years until december of two thousand and no comments were submitted by these gentlemen and so i think the idea that somehow they were you know eager to  people might have made common i think that yes they did in fact one hundred fifty people did make comments but i think it goes to our point is that there was notice and there was an opportunity to comment and they didn't they didn't seize on that i mean my question something that you are entitled to rely on a change in regulation only if you commented on it i'm not sure i understand yet why it mattered in the days because if they did not perceive that injury themselves you know that these that most of their petitions didn't even include a claim under the administrative procedure act and they were filed you know months or years afterwards and only came along as an afterthought and particular it was elaborated in two thousand and one after the case went  for me to see if they weren't going to and never commented how they were prejudiced by the failure to wait a month before making the regulation the fact anyway i think that you know if that sort of thing that's a preview what i was go harmed at the time by the bureau's decision to proceed to make the rule of fact that sixty days before it was actually promulgated and that was one of the conformity to its filing and also to a program statement that the company but aspect as we are from the bureau point of view well yeah but also i think before we before you can hold the bureau accountable you have to determine whether these particular petitioners were prejudice right now we're arguing harmless error and remedy and also i mean i guess there's a there's an associated argument which you don't have to reach which is constitutional argument if they were prejudiced then you don't have standing there just isn't the regulation adopted  prejudicial ever should be observed and the court is to make it a judgment about prejudicial error or harmless error on the other side you know by looking at the whole record that's what the statute says and you look at the whole record here and what you see is as a practical matter there was notice on the fifteenth when the when the rules promulgated you know you look at a case like river dance forms it's just such kaczynski is opinion riverbend forms the normal waiting agencies over the years have interpreted certainly thirty days i think that's what just because he was relying on but the fact is if they had waited thirty days everything would be fine and no one was affected no one suspected until december the ninth and that was three of these gentlemen and the other thirteen they were affected by the rule you know months some of them years later i think the last one was expected in october of two thousand almost three years after the provocation of the rule years before he didn't comment i think i've understood your position now and saying that i'm saying he had he had an opportunity to come and that's why he had an opportunity to comment i understand that even though the effect of the rule would not actually invite him for another three years you're saying it's value to comment at that period three years before the rule would have any impact on him now and that means that he cannot now take advantage of the fact that is invalid that right i'm thinking was not harmed by the decision to make the taxes that is what happened here notice and an opportunity to comment and the end result in riverdance forms was a finding of harmless error and i think here the error was harmless for the same reasons because there was saying you know if the if the agency doesn't observe the administrative procedure act the rules invalid but then it went on to consider section seven zero six of title five the harmless or statute and which i seems to me that bushman as a whole stands for you know the rules invalid if someone who's you know claims to be affected was in fact affected prejudicially and that's and that's that's all right and these guys with all respect were not hurt if you look at the cases and we have cited them in the brief what's the remedy for a procedural error i remember remember this specifically from three years ago i think it was addressed in conversation with you judge fletcher and i remember saying the remedy for not waiting thirty days and i think that's still a good question to ask what's the remedy for not waiting thirty days and it seems to me and we've obviously explained this in much greater detail in our brief that the remedy is not eligibility for early release it's a reconstruction of their procedural rights i understand that's not going to get them very far given the fact that a final rule has been adopted which is identical to the interim rule but that's what they just i think that's important to keep in mind that any remedy should be procedural and if you look at it at question and you look at the remedy section which is really on page three fifty eight of volume six seventy six you find that the remedy was restricted and that's for the period that ended with the adoption of a final rule so any claim of invalidity and the right to a remedy was extinguished and that's please the court this case involves black letter and ministry of law under section five fifty three b there has to be prior notice and an opportunity to comment before rule goes into effect if that rule is not complied an opportunity that when a federal bureaucracy acts there's a democratizing influence of allowing the public to comment to provide input and perhaps influence the ultimate rule before this put into effect this court is also noted that when there is a violation of the notice and comment provisions that it not only invalidates the rule but it invalidates the repeal of the prior regulation in this case when the new rule was invalid because of the violation of the administrative procedure act the remaining regulation was the one that this court in downey and davis said each of these clients is entitled to eligibility for a one year reduction and that one year that liberty freedom is what we're saying is the harm if we were not have a remedy here there's certainly standing under that basis there's certainly a real harm that occurred regulation the same rule that we're discussing was black letter of minister of law applies to social security administration so that recipients folks who are entitled to benefits papago members of the proper tribe and more important versus troops and basically for any large corporation that may be affected by federal bureaucracies actions a rule changing that or a different one in this situation would have profound effects and negative effects on the development of the minister of law and it's especially unfair given the prisoner's extreme interest in the opportunity for your sense reduction if we accept the argument that the interim regulation was invalid how did how does the permanent regulation apply to them at all not at all the final rule was put into effect on december twentieth two thousand in bushman versus why are they so court stated that the that it was invalid until the final rule issues given the need to reconstruct the procedural rise imo i can foresee a potential argument that final rule should be invalid because where they should have done to correct the situation is to withdraw a lock for a cause for comment but that's not this case each one of these people in their petitions stated the date that their eligibility was determined each of those eligibility determinations was prior to december twentieth two thousand so each of them were declared invalid as a consequence of the a showing that the rule would have been adopted in any event that's one of the reasons i think the judge made such a point of i gave them the opportunity and asked what evidence you want put on i received no new evidence on harmless before the regulation went into effect and despite not giving the formal notice and comment through the federal register actually had the opportunity to present information based on actual not knowledge that's the place where there is an exception and where the court rushed for example found that it was harmless business completely outside of that there's no showing that there was there was procedural harmless in fact this is the essence of the type by this court in which the district court opinion requests that there are alternative remedies requested the same thing in the initial cases with gas a p a was briefed in all the petitions jurisdictional questions i'm not sure if the court is concerned with the belief that the court below completely addressed them with the supreme court controlling cases of  it's still a matter of the initial jurisdiction continues and these people are affected as held in johnson and gunderson because they are eligible for the teaching of the court or a either a reduction of remedies are going to change the remedies change here and using title each of these persons was in a situation where they should be there's jurisdiction there standing and there is a remedial injury and what the court has other questions i just finished with the statement in bushman which was that the procedural safeguards is just as important for social security recipients as they are for powerful corporations and not just at that it's just as important maybe more so when we're talking about your potential freedom and human liberty for these prisoners thank you thank you  a few minutes i see i think if you accept their interpretation you've rendered rules that excuse me section seven zero six and all of it and at least five cases in the circuit and those are the ones w why we recommend look at riverbend and look at the facts in our case and lay them side by side and see if this is a much more like riverbend than bushman where you had you know a promulgated a rule in january of seventy four followed up by another rule in october of seventy five with related back to december of seventy four without anybody having a chance to comment judge dr hart in the state rebellion case that you know he disposed of bushman in a sense because it doesn't control because there was just no noticed there was no and no opportunity to comment this is quite different for these people in their factual situations when the rules apply to them the final rule again i think it's important to read the whole case the whole case englishman the whole case in riverbend riverbend has these statements about the administrative procedure act we agree with those statements the end result is a finding of harmless ever because of the facts of the case if you look at bushman again you have the statements which mr seaney rely so heavily on and we have no quarrel with those but the end result is a tailored remedy which extinguishes the remedy at the time the final rule goes into effect that's the whole case in bushman's on the matter of evidence of harmlessness you know that has been in the record from the very beginning and we directed the district court's attention to that evidence of harmlessness that is the timing i mean in this theory as in so many other areas of human endeavor timing is everything and it's the timing of the provocation it's the tiny of the end of a reasonable period to comment and the timing of the effect of the rule on this particular class of petitioners that's so important in determining whether or not may should not be able to take advantage of the invalidity of the rule now i think no i don't think that is precisely correct are precisely argument is that they did have an opportunity to comment whether or not they took advantage of that opportunity computer time and they tell him what time they have like i think they can communicate with the prisoners that are under their control yeah well i think of course is that they didn't necessarily it's how many answer this question they don't necessarily know who's going to be affected it didn't happen until you know it came time to admit them or at least to say that rebels are looking to participate in the drug treatment program and then whether or not at the end of a successful drug treatment program they would be entitled to a year off but that i don't i'm  sure the bureau could couldn't determine in advance who was going to be affected in that way since these admissions and these determinations were made as we have been like that so often the end of a resume after a reasonable period has expired you give everybody notice man who is going to be affected and therefore why should they even if they have no comment if they didn't know you're going to be affected well but i think you you can't ask him to spend every contingency down the road but what i think the claim is is that they were necessarily know but the fact is that it was out there and the fact it was out there that's decisive thank you very much for the sort of you submitted proceed to the next case on the oral argument calendar which is may please the court there are three basic reasons why if a chuckle camacho does not control this case the first is that intervening supreme court authority on statutory construction undermines the validity of the protective camacho p