we'd offer you a seat on the bench but that's not a problem and so i'm glad you're here program within for receives one hundred percent of its budget through those continued approvals and the the courts have been clear going back to the supreme court in iraq that you know order to determine whether we have a protected property interest or liberty interest that is protected by procedural due process we look to establish state rules and we look to see what our entitlements under including federal but we booked also to state law and established rules or state law for what are entitle benefits under state law within that we look to for this case then we look to the pennsylvania constitution and pennsylvania's states is appearing here and is arguing that under your argument i believe there are twenty five agencies that would have to do things much differently than they're doing now that's a pretty broad swath you're cutting would you care to respond to that argument constitutional simply because a lot of people are doing it that we assess we have to assess constitutionality pursuant to establish jurisprudence and if and it but but we do to some extent look to history and practice in deciding what processes to do so this kind of funding mechanism is widespread and has been longstanding that cuts against you well we haven't had a case that so the other two parts of of acknowledge that part of that part of the analysis in determining what the process is do and all that we're asking for here to be clear is that unbiased if you decatur but we're not the notice an opportunity to be heard  issues are not issues that we've that we've raised with regard to the question of twenty five other agencies we've addressed in our brief a breakdown on on how we perceive the differences among those agencies and we think that what the court is left with is is one or two agencies most notably nuclear regulatory commission i know one of our miki pointed to the patent system but what we what we have here if we are going to look at the question of twenty five what we have here is a unique agency because of the combination of the juda could to an executive functions i'm so not all the agencies that they point to that we see funds receive those funds as part of it you get a process secondly not all of those agencies that receive funds receive the same worship of their funding here and again the natural gas program in particular receives one hundred percent of its funding from the approvals so it's not simply an application fee there's a difference between saying we get funding from people who a r in front of us it's specifically tied to the approvals and that makes that that makes this relatively the gas pipelines are twenty percent of what for the best the natural gas program is twenty percent of  overall does i just really other eighty percent of her work the same way and it's my understanding and i'm not as well versed in those pieces but it's my understanding that they are also user funded but not as directly  that the the budget implications are are not right and yet this starts with an appropriation from congress how these are all reem this is a reimbursement to the treasury right procreation right it is that significantly different from the cases that well it's significantly different from that we think that the facts in this case are significantly different from any of the cases that have been decided to begin with on both sides of the the and this is why we say that you have to look at the practical effect and the district court made a determination that we believe was really a determination that could be made as a matter of law which is that a as a problem we're not going to see the bias as a problem the reality we believe that it that that's a fact question that needs to be decided with the full fact record because the courts required to consider the practical effect of the  budget process when one looks at how the budget process is actually paid out played out your honor first has submitted budget requests it table because of its long term funding from approvals it's able to project out what its funding needs it faces at ever increasing costs and so its budget has continued to rise something like fifty one percent over the last ten years by our calculation ninety nine percent of its budget requests in the thirty year period and that  it's operated under this budget act ninety nine percent of its budget requests have been granted the the united states has pointed to two examples where there has been differences we address those differences  our briefing and we suggest that there are there differences without a distinction that in that really in the end what is it is that the way to approach it and you're saying because for has been successful therefore there must be some showing a structural biases that i thought well i thought the law of the case was asked us to look at whether the structure creates an improper influence a possible temptation basile temptation that's right and but i'm answering the charge that well because the because congress appropriates there is no possible temptation and our answer to on the possible temptation or honor is that these are projects of limited lifespan and so the pennies project that that this case was kind of framed around when they submitted they said they have a forty year lifespan for their project you look at two aspects of it you look at the structural integrity the long term structural integrity integrity of the pipes you also look at the contracts because they impart get approved based on the contracts that they've been able to sign here pennies to says they have a fifteen year contract so unless there is that continuing the possible temptation lies in the fact that unless there is a continuing of these projects ultimately there will be no more funding for it for available for the agency because while congress appropriates congress requires then under the budget act for it to go back and collect it  properly brought in a challenge to a first certificate that should be brought by way of a of a constitutional challenge to the to the budget act which is what we have done here one of the reasons the court said that's the appropriate mechanism is that there may be factual issues that need to be established one of the factual issues that the court noted is that there is a threshold at which those costs can be passed on to the consumers meaning to the pipeline companies before they that before the profitability dries up what's your best case you're at you're asking us to go way beyond the supreme court cases where either the adjudicator gets more money upon imposing a fine or the adjudicator has executive responsibilities and the entity gets more money if it imposes more fines you're saying well neither of those is true but maybe in the long run if they have more pipelines they'll be able to ask congress for more money and such and seems like to the extent there are any cases addressing those very diffuse and long term issues they all seem to cut in the government's favor the need isn't doolan and cases like that do you have anyone that finds a structural due process problem  similar structures yes or no you're right i think the answer to the first part of your question is what do i think our strongest case is i actually think it's the supreme court's decision in word and the reason why is not because in any of these cases as i said i don't think in any of these cases do we see a fact pattern such as it is that aligns up i think what we see are statements of principles that guide the court in the decision making on a biased adjudicator we see those statements and that and that was where the fines accounted for a third of the city's budget will make the connection i don't see the connection your honor here we have a institution that unless it continues to grant approvals its funding source will dry up period you'll have mopo needs to exist at all that's correct or just with respect to this no none at all not none because the pipelines have limited life spans and so if if if thirty years ago forty years ago there was a rash of approvals and its funding source is those pipelines and those pipelines are no longer operable because they haven't continued to replenish their pool they haven't continued to replenish the source of said when you that there's a recognition of institutional responsibilities in fact we can expect that all of the the genuine public servants at first both at the staff level and and the commissioners themselves have part of that they have an obligation to their institution they say the the court has to recognize and the courts have historically recognized that people who are in charge of institutions act with a sense of institutional responsibility that is an issue that is dependent on their that institutions continued existence if they leave with with less existence then then they have undermined their institution i'm sorry i'm just with what lifespan of a pipeline it's been projected as up to for up to forty years you know like like a lifetime of a life span of a for commissionaires five years the fact the fact that there is a that  and i see that my my time is running the fact that that that it is spread out over time doesn't make the math any more real but the fact that this problem if any happens on a twenty thirty forty year time horizon suggests if you're in your rational for commissioner thinking what what's going to happen here the prospect of congress just letting pipeline regulation go out of existence for lack of funding seems well be implausible well that gets to it seems to me your honor that gets to in some ways answering the first question that the court raised is should we be concerned about the practical effect of finding this unconstitutional because it may disrupt the funding sources that the point that your honor makes can be applied equally to that concern  say fine then find another you'll find another way to fund it it doesn't mean that that the that the program has to shut down if congress had said that we think this is so important we're going to balance it against our need against  increases we're going to balance it against other budget priorities the congress could do that but right now the reality is we're operating under system where congress doesn't have that natural incentive that it has in ever in its other budget decisions about how t hopefully they'll continue to have me your honor at the the bottom line it and to your point as the district court found here that the commission cannot be structurally biased a matter of law because the commission does not control its budget and said congress controls its budget and sets it through appropriations the congress in the budget act simply instructed the commission to recoup its fixed costs or user fees approving or deny a pipeline does not change or agencies have received user fees to repute their costs in fact the supreme court and skinner considered it a somewhat separate challenge to user fees that the department of transportation was collecting and found that the other reason is to the point of the possible standard it's it's a problematic that in the one hand riverkeeper saying that the commission is ever growing because it keeps approving these pipelines and yet on the other hand is positing that they may all go  e next year but even putting that aside let's say that situation did occur the far more likely scenario is to drastically simplify the commission's approval situation the commission assess the pipeline determines whether there is adequate market demand for the gas being shipped on the pipeline and considers whether it can be safely and reliably operated consistent with environmental and local community standards so if a bunch of pipelines are going offline but there remains demand for natural gas from customers likely what is it going to occur is that new companies are going to bring pipeline applications and the commission is going to be busy assessing that as applications which ultimately when one looks at the budget requests of the commission or the commissions process the through the pre filing process the environmental review through the interactions with local landowners and communities projects that are unlikely as correct or nice to receive funding are not going to continue to put in the time the co effort to continue to seek and pursue those applications until the very end the second point is that the commission has in fact deny applications for instance in jordan cove in two thousand and sixteen the commission found that the need for the project was outweighed by the adverse impacts on the local landowners and communities and the final point is this court has repeatedly recognizes that the commission has broad authority to attach a host of terms and conditions to pipelines so even when projects are approved they rarely if ever look as they were originally applied for the commission uses its authority to shape and mold those projects to ensure that they can be operated safely and in an environmentally s way and so and the final point i would make your honor is that to the point that all of the commissioners all seeing this need or this vice do it the commissioners don't always agree in fact in the penny's case there was mentioned earlier there was context note no gas pipeline constructed that cases that are brought under the natural gas act must be brought through the natural gas actually just short of you provision so as your honour's or are familiar in a standard commission case that is going through  seeking a commission rehearing and then bringing a case under seven seventeen are the reason that we're here is because as the court found in no gas the budget act is obviously separate from the natural gas act but the challenge to the co use of twenty orders is a challenge to how the commission is administering the natural gas act and whether it's abiding by what seventy seven thousand are requires so i would argue first off that we are in the wrong court for such a challenge and that it should be brought  second thing i would note your honor is that these the commissions use of quote unquote tolling orders to extend the time to consider re hearings have been universally of held both by this court and by other courts just last week by the six circuit because i think that beyond the fact that the plain language of the sachi says act not act on the merits for instance with the pennies forseen if you will there's over forty rehearing requests totaling thousands of that would address the tolling order concerns well i obviously can't speak for what the commission would so would say on rehearing to their to their request but if if the in a hypothetical of the commission denies or requests obviously they can bring that challenge to this court and have this the natural gas act has given automatic rate for a project start so it's cognizant of that and one of the reasons it denied the application joran was that it it was did not want to let a project go for it didn't see sufficient need for when i would have immediate effects but i would per se i think there'd be a big difference if it was a toy in order for a day or month versus a toll in order for several years while the project is completed obviously the commission works is it is hard to kant to process rehearing applications in an official manner but i think that's why that's one order case would be more properly brought with for instance the penny's application where a party could say this the commission has stayed this for six months or and look at all this construction that's got on the bench and obviously a party also can challenge as this is a court just held last year can obviously challenge any individual called letter orders from the commission and those whose to the first question the court asked the appellant's of course the theory advanced here does not only affect federal agencies but state and local governments as well because it's advanced under the federal due process clause in terms of the potential need for factual of the allegations in the complaint as the court has recognized in its questions pipeline's complaint paragraph one twenty two pipelines last for forty years complaint paragraph one thirty nine pennies has a fifteen plus year contract and you can also of course look at the plain language of the relevant statutes and reg which include the first regulation one fifty four point four zero two allowing pipelines to pass through these charges to their customers and that in fact is what for did in the rule making  appellate brief when they were analyzing the size of the charge with respect to the industry the address that by allowing the pipelines to pass them through ward is the best case in appellants few in my county it's the only case that recognized  a structural bias claim that didn't involve some of the cuny ery interest or some ability to increase the coffers of the agency through a marginal decision of course we don't have that here because it's proportional only so they're just decreasing or increasing the the costs imposed on a particular pipeline with respect to tolling orders i would say congress made a determination in the natural gas act that the filing of a request for rehearing would not automatically stay the effectiveness of for quarter so to the extent things are allowed to move forward that was at least in part a decision that congress made and we find it hard to understand how you can adjudicate a tolling order claim in the abstract without facts about how long the toyman were was in place and if anything was allowed to occur while the tolling order was of place finally i would say the prop to the claim was not if there is a facial due process claim i think they needed to preserve it in the district court and looking at the way the issues were briefed i think they raised a statutory claim and a claim that somehow the tolling workers contributed to their structural due process claim but i don't know that they bias i think as this court's questions recognize this morning the claim here is far more generalized goes far beyond what any court has there is a structural bias problem such way but i do we do want to emphasize that at the level of given the breadth of the challenge here if this court were to find that the type of generalized interests that petitioners claim introduc them the money so they can operate it without that money they called but that the fees do not give them the money to operate congress starts by statute all of the monies collected here flow into the general fund in the u s treasury thank you how much time  we believe that the district court was in error in deciding this matter as a matter of law on a motion to dismiss and i think the questions this morning and the discussion with learned counsel just now highlights the benefits of that when we hear about plausibility how plausible is it that the funding dry wasn't imminent were tangible that is exactly the type of conclusion that should only be made when there is a for a full record that's been established i hear the court concern and i hear the united states is concerned about how do we distinguish this from other agencies if we can that's the type of consideration that would be fully explored of law that those issues were raised in the complaint so to the extent that there are those factual issues that would benefit from discovery in addition to the question a possibility which was part of this court's concern in the no gas pipelines case on that the question of the the tolling order we very clearly in our complaint and we spoke to it repeatedly in the brief but it's very explicit in in below i can't help but think of the boardwalk whack a mole game or at least in my generation it was a boardwalk and now it's probably a computer version when we're talking about the  on hearing now's not the place now's not the time you've got to go do it somewhere else and what we heard this morning was a keeper network auto wait until this is been till it's been told for a year or two and there has been damages incurred to come in raise their due process challenge over the use of polling orders well at that point the liberty interest the property interests have been lost the reference to the six circuit decision that was made in the letter that was submitted to the court in reference to again today all highlights the fact that the courts have already said we're going to consider the tolling orders proper under the natural gas act so file so challenging it in the context of an appeal of a challenge to us  certificate doesn't provide an avenue for the court to actually consider we're saying that if the natural gas act is going to be interpreted in a way that allows for these indefinite tolling us then that constitutes a violation of due process it deprives the opportunity of of residents who are subjected to significant risks to never having their day in court and we've seen that iraqi you think that any tolling under any circumstances of any help would be unconstitutional well i think here the we can see very clear contours in what congress establish in this context because of the nature of the rights and the nature of the judicial concerns to have the issues in front of the court within thirty days so that certainly provides a a clear framework that we think that the court cannot bring in i'm sorry is that a yes i don't know