in the history of our nation no statute has ever done what section seven thirteen purports to do given a mere employee unreviewable authority to overturn a cabinet secretary and there's a reason why the points clause doesn't allow it section seven thirteen makes the v a secretary its removal and disciplinary decisions appealable to the m s p but it requires an administrative judge fear and decide that appeal and it makes that decision final there's no border but you can read speaking only for myself i prefer you maybe started talking about some of the reviewed the secretary's removal decisions right and then there was no judicial review be constitutionally valid it would cure the appointments clause problem because the board members themselves are pointed by the president with  questions i believe this court's decision in reilly spoke to that but to completely foreclose close review of the constitutional claims that would be permissible and such in some thirteen b to actually doesn't do that the text of that provision simply says that the decision of the administrative judge in france was this goes to whether courts have jurisdiction here constitutional trial yes i guess i'm just talking about more ordinary case where being the final decider review or that structure itself would be constitutional or at least there would be an appointment because there wouldn't be any other problem in terms of limitations on review ability you know it would not be in appointments class problem whether or not the statute for close review by the courts would depend on how clear congress was in providing that and certainly it's entirely with in congress as well excuse me to foreclose review of some questions i don't think the court ultimately needs to decide how far congress is authority to extend in that respect i'm not i mean we're talking about various problems with the statute is written at least in your view and with respect to the appointments clause it has to do with the final word by the a j so now we're looking at questions if we would agree with you on the whiteman's clause matter we're looking at how do we structure what if anything we have authority to restructure so one of those arguments would be that ok we can just impose judicial review which congress left out or the or alternatively if we're going to try to save the regular run of the mind cases that judge chapman was referring to isn't it clear that the statute is currently drafted forecloses both and that's p b s traditionally even under even under the regular regular case not involving constitutional the court for that matter that congress could have suggested it could have specifically described the extent and scope of that review with knowledge of cases like reilly and lundahl it could of explicitly reference those decisions  said that section seven thirteen into the jurisdiction stripping language was intended to foreclose even review of things like critical legal errors or substantially goal errors recently the supreme court in cuozzo was addressing language that was similar to to the language here and there the court noted that probably the language in that case would not extend the constitutional claims but it even with a little bit further and referenced i think shenanigans once was the word that the court used but noted that perhaps if the people board was issuing a decision that was completely outside of its authority or based on something it didn't have statutory authority to do that that decision would be reviewable as well so congress needs to be what's the remedy why do we have to strike the whole statute the entire entirety of such an event thirteen need to be invalidated because when that statute contains unconstitutional provision  the statute must fall and last what would remain is concerned operates in a manner consistent with the intent of congress and that doesn't happen here is that really the standard under a on the other isn't the standard that's the standard your honor but when applying that standard in looking at that standard under alaska airlines the court needs to consider whether the smaller case would function in a way that's consistent with the intent of congress if it doesn't  to reason for two reasons your honor the first is that there's a number of different ways that the appointments class problem in this case could be fixed there's a number of different proposals that have been put on the table for it was the original house women spies problem if that m s p presides over the appeal in the first instance but both houses of congress didn't do that they were originally house version was at will employment and since this case has been filed congress has actually been considering fixes to section seven thirteen we say that in our reply brief the there was actually two statutes have been in it have been introduced one in the senate which we said in our party if and then there's another one in the house h r fifty six twenty and those procedures look nothing like the severability proposal that it is supposed to do with that i mean i know there's some controversy even to the extent to which we can look back at legislative history proceeding an what are we supposed to do with subsequent actions by presumably a handful of people the congress hasn't voted on these new provisions yet we don't know that they are the mind child of two people or one hundred people so what weight are we supposed to give matters under consideration not whether congress i'm not clear on how how we can possibly put that into the mix there's evidence in the legislative history of those two with that i mean what do we do is it real legislative history that we put in the mix the way we consider legislative history when we're talking about the legislative history of proposals that have never been adapted it's certainly different than legislative history of a statute that what's wrong with that that would result in a system that is inconsistent with what congress initially intended that would res because that statute would require three mandatory layers of reveal that would still require the m s p be to refer the case to the administrative judge in the first instance then there would be review by the m s p and then some level of determination decision is made and so during the entire appeal process for that or you that person will be off the payroll so those are some specific advantage is that if you look at the legislative history you can tell that the thrust of what congress was going for was to remove these people from their positions as quickly as possible recognizing their going to be some limited appeal i don't think it is the tail wagging the dog the legislative history of the bill that was passed shows that having a final an expedited administrative review process was one of the central goals and requiring three layers rather than just existed over over the previous two mandatory layers would be inconsistent with that objective but isn't this wasn't one of the real goals also to get these people off the rolls as quickly as possible and that had to have been a focal point that's certainly the case but there was an emphasis on not just getting them out of the deployment but ensuring that the administrative review process is constrained in there's a reason that the administration had been right in mind not  if if the court were to strike down just a couple of these little suppositions then there would be this extended appeal process but during that time of all of that extended review process you call that a three layer review the s e s employee wouldn't be in her position and likewise wouldn't be getting paid that as us during that entire review process of the thirty days of took three years and my right yes that's also true under the title five for seizures as well once an employee has been removed and that post terminations review process is ongoing but there's another reason and we only knock out the two or three opposed to paying attention to what court all know that congress wanted this process to be quick and so wouldn't you expect with the age of the rule of the road in these cases and there aren't very many of them in the interven courts and invalidate the statute entirely and that's in the name of constitutional avoidance simply severing out some of these provisions that we've been talking about with not sure all constitutional of the facts in the statute specifically board they issue an initial decision if thirty five days passes that's the decision of the board there is no requirement that the m s p be take any affirmative act and the requirement that the m s p be actually issue an affirmative case on the first day and then there'd be no a j i mean why strings not to to a bit they determine and based on at some point in the proceeding one side may decide not to challenge the piece of  this isn't a situation where the mere passage of time makes the decision of the a l j the decision of the commission how does that work under our procedures i mean i don't know if when the age if gays decision is not appeal hypothetically that we were to agree on the appointments clause and we were to agree to some sort of supper ability i think there's also a dispute between the parties as to what we do in this case and i think your position as i understand  if that's the way we decide to go in this case we should vacate the a j is decision and i don't even vacate the secretary's decision and go back to square one i think the other side differs with that so what's the rationale i mean if we would just like to go that first instance by someone who is properly when three you'd want to do it by the age where if if the court invalidates the whole thing and if the court of validates the whole thing then then it would have to go back to the right it would be but that still presents appointments class issues that are quality because that administrative judge would be someone who is taking testimony conducting trials ruling on the admissibility of evidence and that decision then would have would become the the decision of the board through the mere passage of time so we disagree with you that on your position that in a j or in every case that the m s b be there's an appointment  peavy it still could be sent back to the v a secretary and self because why total thirty eight is not exclusive of title five authority to fire someone if the court suffers these provisions that would result in administrative review scheme that's much different than what title thirty eight looks like when the secretary made that decision and the secretary ought to be given the opportunity and the chance to decide between what title thirty eight looks like now may please the court mark freeman for the government like to start with judge chance point a few minutes ago when i don't want to set you off of course one thing we didn't cover with the other side that i thought you might be the best person to have it's just a technical question which is why is subsection five candidly also a little confused on that point as you point out in section seven seven zero one of the regular title five provisions for m s p appeals as soon as a person is removed from federal civil service they are no longer receive their pay pending the outcome of the administrative proceeding it may have been that this is a belt and suspenders provision it may also have been that this was meant to make clear that the operative stopping point was the administrative judge's decision rather than a board decision but i  this statute was that it allows the secretary of veterans affairs to remove senior executives from the department for among other things poor performance alone that is a change from prior law before this provision was in acted a senior executive could be demoted from senior exit the senior executive service for performance if a performance appraisal so provided it but you could the secretary could not in the secretary's determination remove the person from civil service altogether  case has challenge the constitutionality of congress judgment in that respect and there's no reason why that or many other provisions of section seven thirteen ought to be set aside just because there is a narrow constitutional difficulty with respect to the review of the administrative judge's decision points plus problem and would not thereafter allowed to do will review it all that is completely constitutional for congress to have done so the question is just whether consistent with the severability principles that judge clevenger pointed out earlier one can get to that result by line what their intent was was acts that we can't do what we can to further their intent i mean a difficult position here your honor because i don't want to fight you on what i think congress would have preferred i think normally i'm not the position of standing at this at this podium and saying an act of congress is unconstitutional and normally when people try to line it it statutes it is my job to stand up and say no no no you don't get to add words you just strike them so i think we are hesitant to indulge that form of analysis but i understand the point and i don't disagree that what congress would have wanted is to cure the appointments plus problem and then foreclose judicial review not to judge clever just point earlier it is absolutely the case that the board i think we think would be obligated to expedite these appeal may in fact result in a late the year proceeding before the m s p p than it would if the a j just had their normal run of the course so why would we not strike out the twenty one days to just kind of get on and you know with consistency so again i understand the point i think though that we all ought to be obliged to follow congress's directive to provide for a very fast administrative hearing and twenty one days although very fast consistent with the rules that the board has regulated if the board has promulgated a complex set of regulations to insure the maximum expedited process inconsistent with due process congress wanted that that is by itself not constitutionally problematic and there is no reason we apparently  dispute that there could be a period where it is not possible to conduct a proper hearing twenty one days go consistent with the regulations promulgated by the board it is certainly enough the judge here issued a sixty page decision covering three different charges and five specifications that one difficulty i have is i'm not sure how it's a big for the solicitor ground if that is one thing of course and in addition to that i don't know what words the court would be adding that we do think there are some basic principles of severability lot at play here and we've given the court our best answer to how we think they ought to apply in these circumstances but if i may just circle back to your honest point earlier if the m s p has the opportunity to review you're right the secretary of veterans affairs might be upset if the n s p be count into right i think you may be correct as to congress intent with respect to m s p review but of course congress did other very important things in the statute including authorizing the removal of senior executives for performance and suspending certain other limitations that would apply under title five let me just follow up with something i think yes i think everybody agrees that when you sever what you propose to suffer and then we ask oursel that had been created as a result of striking provisions two and three if you're i guess what i'm wondering is why isn't that the right lens to look at it if you strike the provisions that are truly unconstitutional would the house and senate by majority vote have cast what was i guess i so i understand the question i guess i disagree with part of the premise which is the standard i don't think we ask a sort of legislative horse trading question about whether particular members would or would not have voted and when you can get to a majority what we what we ask is if the supreme court has said right in any circumstance in which you have several ability problems by hypothesis cannot congress cannot have what it enacted so the question is would it want what is left when that unconstitutional provisions are stricken compared to the status quo ante what it had before and here we know we had all of these hearings the congress said we think the provisions under title five for the remov thirteen a and a number of other provisions that for example suspend the normal rule that an employee gets thirty days written notice before removal or that provides that a senior executive can't be removed within one hundred twenty days of the appointment of the head of the department these are all provisions that of course congress has within its legislative discretion to suspend so section seven thirteen suspends them and there's no constitutional difficulty with them so there's no reason why as a matter of severability analysis those ought to fall let me ask you another question you you are proposing to also remove the the provision that if a j doesn't decide a case within a day for you know the secretary's decision becomes final right so there is no other there would twenty one i agree with the v a secretary memo to follow in sixty days there is such a case right now as the court may be aware it's called the wife's case in which an administrative judge did more or less that and  there's dueling appeals on that question in front of the merits of some protection board which has suspended that case pending the outcome of this now let me ask it leaving aside the whether they can discipline the agent for not doing it what happens in a particular case underwriting the clock passes does the m s p then just as we would read the statute as separate as you propose what happens i think we would find out you're out of the government would not no one would argue that as a result merely of the time passing that the removal of the employee became final and unreviewable that's the provision would which would be stricken so then there would just be a question which is the court is where happens in any number of circumstances when there is a statutory deadline that an administrative agency misses and sometimes you have mandamus petitions  two i think that it may well be within the authority of the of the board to do that i don't want to speak for them on that question but i think that might well be within the authority of the board to do if i may just i know i'm running out of time here i wanted to refer just briefly to the question that m friend raised on the other side about whether an administrative judge whose decision is completely reviewable novo by the board would nonetheless be an inferior officer the point i just want to stress that this is not the case to decide that much bigger and more consequential whose decision could not be appealed the remedy for that is to give the case to the board for the appeal she was unable to have then if she wants to raise this new question which involves many different considerations than the parties have breached here and then raise it again on review to this court as a constitutional matter we can do that in due time that would give the among other things the members of the merits a source protection board bar an opportunity to apply not a question that would affect the validity of agency proceedings in all title cannot presume that we know what congress would enact on this score and the possibility that congress would enact legislation that might move this case and require some other proceeding is a reason to be cautious about what we decide here and not a reason to do more  avoid confronting that if you your honor i don't see how respected how the court could decide that right now because just particular example the lucita case the way that a case like that works is if you want to say that the agency's proceedings are unconstitutional because of as is their argument the limitations that the board has on a review of one of its own employees decisions you raise that argument to the agency itself and give the agency an opportunity to address it to tell us this court and the public how it understands its relationship with its employees and then this court adjudicates the constitutional question in light of that answer that's what happened in which we have versus s e c it is premature here to reach the question they have not lost the opportunity to raise it what we do w respectfully suggest is decide the question that's in front of you they were unable to raise that question with the board because the statute precluded them from getting an appeal to the board send it back for an appeal to the bork if they want to raise it then great if congress enact board can and does sue a sponsor a review decisions of administrative judges that no party has appealed that underscores that the decision is of the order and not one of the administrative judge second as judge priest pointed out of course people are entitled to not appeal adverse decisions against them and there ought not be the second if that effectively a waiver and we ought not be drawing constitutional consequences from those private choices and third i said two things are actually three and third that is exactly the sort of question that the court ought to be that that is not proved in this case that ought to allow that underscores the reasons why the court ought to send it back and if the petitioner wants to raise that question and come up with a case an appeal where everybody briefs that very may please the court my name is michael morley i represent the military and veterans group intervenors after listening to the oral argument to this point i'd like to emphasize to the court this is not a separate bil the crux of the alleged appointments clause problem and as we explained in our briefs there actually isn't an appointments clause problem but the crux of the alleged appointments clause problem that the government in this hellman contends exists is that a government official was given certain powers anough powers to render him an officer of the united states but he wasn't appointed in the correct manner whenever we've seen cases of this structure in the supreme court in the d circuit in the ninth circuit whenever we see faces of this structure the remedy is not to invalidate the powers that make the official an officer of the united states the remedy has been fix the appointments clause problem fix the problem with remove all by addressing those legal provisions here we have a federal statute that was recently enacted not even i don't know what process exactly became we as the court defect here lies in the method of appointment the constitutional defect isn't the fact that congress gave administrative it is but if we're left with the constitutional deef that and we have to decide this elements case and what happens to miss home previous decision so if this court were to hold that the appointment of administrative judges is unconstitutional the method of their appointment is unconstitutional it could then remember this case so that a properly appointed administrative judge whether it be shushed can't force them to act well you know there's a lot going wrong with the transition it might be months what if they don't now i mean we can't force them to act with that we can't tell them to do something we could just be mandates and they would have an opportunity to do something what if they don't nap i mean how long do we wait well if it's goes by nothing happens what happens to mr mintz case if the government chooses not to make available constitutionally appointed administrative judges to change the status of these offices or just forcing them to tell us the going into that i don't i don't understand how this plays out that well again if this court were to invalidate the delegation of higher authority  and those defects were corrected the government agencies of the government officers were then given an opportunity to review into ratify the decisions that they previously took while they had a defect in their appointment none of these cases  the government obstinately refused to appoint someone in a constitutionally valid manner indeed it would be remarkable if the government refused to do when a constitutional matter that which it has already done through a delegation of  officer then the constitutional defects here would simply be that the merit system if there isn't it which again as we explain in our brief there isn't but the constitutional defect would either be that the m s p be itself didn't directly hire him or didn't ratif has two possible solutions it can either invalidate the statute that gave these officers that gave these officials enough power to become officers or it could invalidate the defect in their appointment the delegation of authority from the m s right she could've done under their rule and there wouldn't have been of what was going wrong correct your honor with regard to the other administrative law judges though they still are given power that did that  you make your provision work we would we would certainly believe that that would be a constitutionally sufficient outcome on the other hand again this court doesn't actually need to order the m s b to do anything once the court problem where a government official has certain powers that trigger employment related provisions of the constitution the court has never responded by striking down those i don't see what we're supposed to be man you say we should vacate you man than striking down a recently enacted congressional statute that responds to compelling policy problems the appointments clause problem could just as easily be eliminated simply by invalidating the internal it ministr delegation of authority to hire these judges comparing the court's role we don't get that we need to do that we can sitting here if you invalidate the procedures that they use for finding the agent that's far less honor that even if there is an appointment supposed problem here or at most administrative judges must be considered inferior officers that if what what if we conclude that when they are operating under the authority of seven one recent p c a o b ruling the court expressly told us where officials were exercising executive authority but were protected by too many layers of protection from removal the supreme court express that we could solve this problem by blueline the statute week which is the exact language they use we could solve this problem by removing authority from the p c a l b so that we don't have an article two issue but instead the court you're going to remedy the constitutional defect simply by removing the true cause of it which isn't that statutory delegation of powers to them but rather the protections from removal and i just i'm sorry to use of the  the secretary to terminate the senior employees for misconduct which gives them which gives them new with already previously lacked the alleged defects with the administrative judge's authority or have nothing to do with that new source of authority and there's absolutely nothing in the legislative history to suggest that even if congress had not been permitted to give administrative judges this new expedited appellate authority that they wouldn't have wanted the that they would have wanted the secretary to retain th authority so under traditional severability principles certainly section eight and many other sections of the statute other than those directly touching on the administrative judges would survive thank you thank you very much so we've gone over you have something like two there's one big point that i would like to make on my travel time here and that's our proposal to invalidate the schedule entirely is the only way that the court can avoid significant constitutional questions that would remain and that would still leave in place the title five procedures under those procedures when an individual's removed the board itself can opt to hear an appeal from that removal decision which as the court has acknowledge would cure any makes a decision under section seven thirteen eight appealable to the board except for what is an elsewhere provided in section seven thirteen so if all that remains is such an essay there's no avenue to get to that  brutal i believe lot of mail says that due process as a whole is what that is sort of a balancing if you get a lot of pre term anation process you don't need as much post germination if you don't get that much pre term anation you'll need a would have the opportunity to doesn't need a board member to hear the case or to hear the case itself in the first instance and that would get rid of all these other constitutional problems that have been discussed that are percolating through the courts in other administrative contact she was removed here for misconduct not before yes and that would mean the secretary would be entitled to remove her for misconduct or propose for moving her for misconduct under title five if the decision is make it entirely  thank you thank you very much all part