light of the supreme court's grant of search are already on what appears to be the same issue whether you think there is going to be anything left over in this case it doesn't get resolved by the supreme court decision if so what is it and i suppose what whether the commissioner would have any objection to this court simply holding the case awaiting word from the supreme court i think just to start off i think it's entirely within the court's discretion so all the case and the thing i decision by the supreme court on the merits of the question and those cases davis versus all in car versus salt if they may question presented here and this issue on the merits in that case is almost certainly you know obviously the supreme court and what it wants to hold but it's almost certainly going to control the outcome of the case here if the supreme court agrees with their position the result would be a rematch and the district court to make a determination on the disability claims in the disappoints here then into that if it's a green court sides with the rd in six circuits then it would be in a ferment and it would go back to those social security administration prepare their administrative proceedings i know that this just happened this morning so i again the comparison of the cases these cases the ones before us right now appear to have been going through the process at the agency during a time when the agency itself had instructed st and of course the peals counsel not to reach appointments clause issues so the so this message st goes out rattling around the country and we're we're just reminding you that you have to decide them had that message gone out these plaintiffs would have had an opportunity even before the ale trade sided to go ahead and raise an appointment because issue but it was the opposite message is don't do this don't do this and this all doesn't get sorted out until after they are through the appeals council so i wasn't sure if a sequence of times the same  davison car as that but it was i was curious i can't i can't recall at the moment dave's and car involved several consolidated cases if i'm remembering correctly the merchant messages may have been active in different portions of those in ministry to proceedings i'm not sure at least here though just to further clarify both hector and who've had their l j hearings or any of the emergency messages and i believe appeals council decision was rendered after the last version accurate we have it's only after both plaintiffs requests for review were denied by the appeals council that the agency publishes the new policy saying yes we're going to address these appointments cla issues which any way down the line that may become important i think you know should we hold the case we would of course invite input from both parties camara yet of whatever right the fact that the agency said at one point you know we're not going to hear these claims and then at another point said actually we are going to provide relief we're going to appoint all these ail jase and we're going to allow claims to be heard on the merits or and provide really pose to show that this wasn't f e the agency was open to persuasion and in fact did act in a way to grant everybody really so just to the extent that there is a claim of futility here i think that's you know undercut by the fact that the agency has provided relief in these instances and exceptions any difference whether it's adversarial non adversarial because i mean this is quite a different administrative structure from the one the security exchange commission uses which was addressed and lucy  and it's it's not adversarial i think that makes a difference in two ways right versus that you don't need to completely raise every claim at every stage through the administrative procedure that's what the supreme court in this court explained in sim security administration would drowns if your applicants in every case thought on pain of forfeiture we've got to throw in the kitchen sink but it's exactly that kind of consideration i think which is why  a requirement to exhaust all issues does exist at some level during the administrative proceeding right because otherwise the rule is anyone who's disappointed with their s s a decision can raise any legal claim for the st time in district court and that the agency has never had an opportunity to consider it or as here had an opportunity to provide direct really point the l j's and it's intentionally subjecting tens of thousands if not hundreds of thousands of decisions to being overturned on the basis of an  data what i do have is the numbers of the general case that we've cited i agree over the passage of time this has gone down considerably particularly because the district courts across the country the vast majority of them were correctly applying the rule forfeiture saying cases and i can just relay the fennec totally in the circuit where people want to challenge the method of appointment saying that it was improper there's a th circuit case where the plants council made the point in district court that we maybe get points proper but maybe removal protections from the g s are not so maybe we'll raise that too so just saying that in this particular instance there won't be potentially hundreds of claims affected and we don't think that that's particularly significant but the rule would stay true for cases in the future and that is exactly the kind of concern that ellie tucker more than surpassed a regulation of course we have the interesting situation where there's no law or regulation that requires exhaustion and i think a statute or regulation certainly makes it any easier case