versus the united states commodity futures trading commission and mr callao row is here for the petitioner mr martin and mr gibbs are here thank you your honor and may please the court the question in this case is whether the c f t c had the authority to interpret section eighteen a of the seven u s c eighteen a to allow claims against mr word to go forward while dismissing claims against the identically situated codefendant or coerced but correspondent i should say simply because mr were defaulted in front of the agency think the agency lacked the jurisdiction to take that approach for several reasons first the agency lacks the authority to treat identically situated to fet respondents differently simply because one defaulted that principle has been long established it was recognized by the supreme court in the frow decision the eleventh circuit has recognized it as valid and endorsed it in the gulf coast decision and while final orders of the agency haven't done this and its own internal proceedings administrative law reparation order so the phrase the reparation is used there and then in the next sentence it talks about the bond having to be double the amount to the reparation awarded against the appellant and i think if the agency's was right and if the appeal bond were to require requirement were to be understood to apply here the word the reparation what occupy two different time periods in the same statutory phrase so your argument is that a default judgment is not in any order order the order dismissing the default judgment is a reparation order i think everyone agrees on that your honor so the twenty sixteen order saying that denying mr ward's motion to set aside the default against him that is a reparation order but the question is does that reparation order award any damages and reparations that need to be posted in the form of a bond and as to that the answer is no because the twenty sixteen order did not award any reparations it simply denied a motion to set aside an earlier award that collection proceedings were already underway and had long been underway and in which assets had already been recovered if you're right then all of defaulting defendant has to do is to wait for the default to be entered and in this case wait several years and then come back and move to reopen and whatever judgment the commission enters at that point does not involve the reparation orders isn't aright and wouldn't that defeat the whole purpose of requiring the posting of a bond no your honor so i think it is true i think there are two questions here so first i would say the answer is yes bond does not need to be posted in the case of order a motion to set aside a reparation order that's point number one but the reason that that shouldn't have the practical consequences you're concerned about is that as a general matter defendants are respondents are not going to use that process to enhance their rights to appeal if the defendant if the respondent gets notice of the charges against them and actually appears in front of the c s he see they certainly get the benefit of being able to present their arguments to the agency and then if they announce that they are going to directly appeal the agency's order to see if he sees own regulations provide that the judgment actually can't be collected there's a regulatory provision that says and that provision is seventeen c f r twelve point four zero seven that if you timely file an appeal from an order of the commission with this court payment of the bond excuse me payment of the actual war  and provides an essence for insurance money that if the party prevails on appeal it still will be able to collect on the judgment if the party proceeds with an appeal but in the case of a default there is no stay open for sman in the case of a default as soon as the commission's order becomes final the party against the party for whom reparations were awarded can immediately go to district court and begin collection and that's what happened here but so but we're back to judge wilson's question looking at the language section eight how do we get around the fact that congress says this is mandatory in order to perfect an appeal from whatever the district court decides it's mandatory when your i think the answer to that is that it's mandatory when you're appealing a reparation order that awards reparations but he still challenging the reparation order is just doing it i guess if you want to use the phrase through a collateral attack on the entry of the default judgment against him fifteen years earlier that's correct your honor but i think just going back to your earlier point the purpose of a bond is to secure assets in the event that an appeal is unsuccessful exact calculations i think are not very not contained in the record from either side but he certainly paid well more than two times the amount of the reparation award against him and so at minimum we would think that under the sahar off case that the agency has cited there's no need for a ational ward was for seventeen thousand dollars plus reasonable attorneys fees and costs correct right but i believe that the attorney's fees and cost and the reparation award whatever that amount was less than the hundred it's less than even doubled is less than the hundred thousand that's already been paid but i think the most important point on this question is what the text of the statute says and it talks about the reparation order and the reparation awarded and in this case the reparation order that is being appealed is the twenty sixteen order that order does not award any reparations and i don't think the scorched be concerned about the possibility that parties in the c f d seat will effectively sleep on their right to get an advantage on appeal because there's one that's not what the tech one that's i think what the text of the statute says but two there are many practical reasons why you wouldn't do that if you actually knew about the claims against you principle eight you would be in a situation where the other party is basically has the right to go to a district court and begin collecting assets from you immediately well in advance of your taking any claim that the commission to try to set aside the default judge and that was entered a long time ago i'm still not convinced it end run around around the bond i just don't see how the party who is protected by the award is any better off if we don't say you've got to post a bond in the full amount that's due and owing at the time you wish to pursue remedies well i think it would not be in any event amounted to a knowing at the time you wish to pursue that remedy the amount that you would have to post i think in all circumstances and i think even the commission would agree to this is whatever the reparation award was plus attorney's fees doubled you wouldn't take whatever the amount is later after interest has come out and at some later point in time when you get with it you would concede that had he timely appeared and had the reparation order been entered and had he filed an appeal and posted a bond it would have been whatever the amount was of the reparation award plus reasonable fees and costs at that time amount it would have been get would have been twice whatever the amount was in the order plus the fees and costs yes i don't think it would add interest to that amount it would be what was in the order plus attorneys fees and costs right in that circumstance and this is why it's not an run i mean first of all we think that the text says what it says but even separate from that it's not an end run because in that circumstance the complainants in this case deadens would not have been able to go to the district court in the state court and take in a default judgment and immediately collect the assets of mr word he would have had the right because he posted that bond to forestall collection of the judgment against him so it's not an end run because i think when defendants escape and when respondents have notice of the claims against them what they will do in the ordinary case is just appeal in the ordinary course but he's never posted a bond at any time and yet now you're insisting that we have jurisdiction to hear this appeal in the face of what looks to me to be pretty clear congressional statutory language that says without the bond you can appeal your honor he has never posted a bond because he's never appealed a reparation order in which there was a reparation awarded i think even the commission itself in their decision in this case in footnote forty one of the decision seems to envision that you can have a reparation order that is appealable that does not award any reparation but let me seeking to set aside that default judgment and the order that arose from he seeking  aside the default judgment yes but the order that he is appealing is a two thousand and sixteen order that does not award any reparations and in that order and footnote forty one the commission said that he would have to post double the amount of any reparation awarded which we think most naturally reflects the commission's own understanding that you can have a reparation order that itself does not award any reparations which i guess i do wish i knew i guess i'd have more sympathy for your argument if i saw some money in the form of a bond but since he hasn't posted anything i'm really having trouble following your argument to its logical conclusion i've given the language of the statute first of all your honor i think well money hasn't been posted in the form of a bond a substantial amount of money has been paid to the other side in the form of the collection of mr ward's house and of his assets that have been attached and pursue in several proceedings as a result of the default judgment against him that he is seeking to set aside so a substantial amount of money has already been paid and i think in any circumstance that would of satisfaction of the actual judgment is usually understood to obviate the need to post a bond on top of that the practical concerns with the reading that i think your honor suggesting may be the better reading of the statute are that an individual could completely pay the judgment against them the underlying judgment against them and then still have to post a bond of double that amount in order to obtain access to the courts and we think that that's not what the statute in visions and not what it's text actually says i think what the text most naturally says is that if the there you look at what the reparation order that's being appealed does and if that reparation order does not contain an award of reparations then there is no bond that's required you can see that if the befall judgment and fall within the term in any order in the statute thing you do have the post of do have to post a blog i'm not sure i would i'm not sure of the answer to that question or i think what you need to look at is what the reparation order is that's being appealed if the court thinks that the reparation order being appealed is the default judgment from the ninety's then i suppose that's right but i think everyone acknowledges in this case even the agencies acknowledged in their brief that the reparation order being appealed is a twenty six order denying the set aside i see my time is running a little bit short if i could briefly address the merits or honors i'd be happy to do that we haven't addressed the were two additional minutes thank you radhika i think there's two reasons why it's if you agree with us that following the text of the statute and are not troubled by the practical considerations for the reasons i mentioned on the merits the agencies  withstand scrutiny the question of whether the agency had jurisdiction is post arlington a question about whether the agency has properly exercised its statutory authority and we think they have been for two reasons the first is that the agency interpreted eighteen a in a way that did not treat similarly identically situated defendants or respondents i should say alike there were several one one respondent appeared from the commission and asserted that the claims were timed barred in every respect that that respondent was identically situated to mr ward which is a point that the a l j effectively all but conceded and yet the commission said that those similarly situated identically situated individuals shouldn't be treated alike because  defaulted and the frau decision as well as discords decision and gulf coast and the agency's own a l j decisions all confirm that that approach is not a valid approach to take you can't treat identically situated individuals differently and if you do that's arbitrary capricious and thus outside the agency's jurisdiction we also think that the agency's interpretation of the statute itself the way that they looked happy day was wrong and right arlington because what the agency did and i think it's i think it's hard to dispute if you look at the order that the agency issued that what they were doing was interpreting the statute as opposed to the regulation the way they interpreted that statute was by saying we're looking at this sort of question from from article three context of non jurisdictional and that is not the right ones to take in the context of an agency adjudication where the question is ultimately what the best reading of the statute is now i don't think the statute can be construed to permit claims to be filed after two years but even if your honour's disagree and believe that the statute is ambiguous statements he has to provide a reason to basis for interpreting the statute as they've interpreted it and we think they haven't given good reasons here or are we have your argument reich may it please the court i think i will start with the bond issue and i think the best way to approach the bond issue is to simply walk through the statutory language turning to section eight under the reparations provision is subject to appeal so sentence one talks about any order clued in the two thousand and sixteen in order in this case you can appeal it to this court the second sentence deals with the bond and the first words of the sentence grammatically the subject of the sentence is such appeal so that a reference back to any  so so starting at the beginning of the second sentence congress instructs that any order subject to appeal shall not be affective unless there's a bond posted  mr words counsel emphasizes the language at the end of the second sentence that language already presumes there is a bond requirement says you know the sentences already said it has to be posted within thirty days and simply tells you how to calculate the amount of the bond requirement and it says double the amount of the reparation awarded against  now mr words counsel would have you read that as double the amount of the reparation awarded against the appellant in the particular order that happens to now be in front of the court however that's not what the language says well let me ask you this question counsel reparation order the first were easy to the word reparation does that refer the order being appealed in other words the any order at the beginning or sentence yes because otherwise the within thirty days requirement would not make any sense otherwise he would have had to post the bond for this appeal twenty five years ago correct reading the language is to answer your question yes that the that that language about how you calculate the amount refers to a different order and the reason that's the best reading of the statute is it does not say double the amount of the reparation awarded in some particular order it just says double the amount of the reparation awarded against the appellant whenever and and  i think a second way to get at the same point is i think the point made at least implicitly by judge tolman which even which is that even the current two thousand and sixteen order it's it's not the first order awarding reparations but it is an order whose practical effect is to ensure that mr word is required to pay reparations so i don't know that there's any fundamental difference between the two thousand and sixteen order and the original order so that's another way of getting at the same point let me ask you a slightly different question would the reparation awarded be the entire reparation award or would it be what is remaining on collected of the original award ok that i think the best way to approach this is a two step process  i would say i think the best thing to do is simply start with the literal language of the statute which would tell you to go back to the one thousand nine hundred two awards including interest cost whatever calculate double that amount so let's say it's fifty thousand dollars or whatever you calculate that amount and just the literal language of the statute says you've got to pay that bond into the court if there had been no collection say which was both true in this case until quite recently then that's the end of the story if some money has been paid then the be at that point it would be open to mr word to come in to the court and say this violates my equal protection rights and there's no rational basis for the award if hypothetically mr word had paid everything he owed one hundred percent that might be a good argument however in this case the there is still an that was paid altogether was seventy five thousand dollars was in that ballpark yet which is more than double the amount of the reparations word correct however this the the the statute first just applying the statute literally require the bond payable to the court number one so that the literal language and the policy reason for a bond remains enough fact because the policy reason for the bond is to ensure that the claimant is made whole assuming the claimant wins the appeal and that policy reason is still in effect and it is true that there has been a substantial payment but there is still a large amount owing and that large amount owing is due to mr words conduct in you know failing to pay what he owed including interest at an earlier date just curious how much is the seventy five thousand dollar appeal bond cost i don't know calm now i like to address the merits of at least briefly mr words counsel says that the issue in this case in essence is did the administrative law judge you know back hundred two properly allow the state the still thems claim against mr word to go forward even though it is possible that they violated the two year requirement  and i say possible because with discovery rules or possible tolling those issues were never litigated as to mr words so we don't know for a fact that mr word would have been in the same situation as miss farrow who's against whom the claim was dismissed however more fundamentally that is not the issue before this about the default by nine hundred ninety five at the latest procedurally can mr word walk into the c f p see twenty years later and make the argument that his counsel wants to make now and that is a question that is not answered by the plain language of section eighteen a which merely states the two year requirement that is  question that is answered by the c f t c s procedural rules which say to get in the door at this point mr word had to demonstrate that that old order was void for lack of jurisdiction and so that's the question before the court and that question is answered by sebelius in which the supreme court said that when you have time limits for action administrative agency in that case a review board within the department of health and human services those time limits are presumed not to be jurisdictional unless congress clearly states that they are and if you read the language of section eighteen a it says it it there's no jurisdictional type language it's just written like a normal statute the limitations the claimant is supposed to come in within two years now i guess mr word has counsel raises the question how do you square that with the city of arlington case which suggests that at least for some  purposes there's no difference between jurisdictional statutes and non jurisdictional statutes involving administrative agencies and the way you square those two cases is to recognize that they deal with different issues arlington is about the process of interpretating a statute and arlington says for purposes of a court interpret ing a statute involving an agency all statutes are equal they all go to the authority of the agency you use the same interpretive method and this case deal with a different issue assuming for the sake of argument that you figured out what the statute means two years whatever and that there has maybe been a violation of it maybe th maybe not what are the consequences and sybella says for that purpose all statutes are not equal some statutes if you violate them totally deprive the court of the power to act and we call those jurisdictional others do not and that's precisely the situation in this case the issue is even for the purposes of argument that the st were late which of course we don't know what are the consequences not jurisdictional and the procedural consequence is that mr word is not entitled to make the argument at this point please the court i'm only going to address the race judicata issue will touch upon some of the facts of pertain to the appeal bond issue that we've been discussing to saw go through some history the sit ins have been involved seven bankruptcy filed by mr word and that award the award was declared not just so we were back in the district court the judgment was entered in for thirty seven thousand dollars in one thousand nine hundred six beginning in two thousand and three and eventually we had a claim and to enforce the judgment against real property that mr word had interest in there was a receivership appointed for the allstate that had there and  can apply when a default judgment has been entered on is as a discovery sanction and the facts in that case are very parallel to the case we have before us it's just that the bankruptcy case and the district court case earned reverse the appeal by would've been thirty five thousand dollars twice the original reparations award mr mrs denham would love to have that today thank you mr gibbs your again from mister he would still owe approximately fifty thousand dollars you know assuming that the that the statute of limitations is not jurisdictional and he was required to post an appeal bond it seems like he could have posted some appeal bond and come into court and say appeal bond requested by the commodities futures trading commission was excessive for whatever and so i mean we granted him form a pop or us status in this case we might have taken into consideration you know the fact that the appeal bond was not in the amount that it was intended to be but you know there was an appeal bond that was post it i think compliance with the statute there's no appeal bo all that's correct your honor but first just as a factual point the amount that's been paid is actually seventy five thousand dollars give or take plus thirty five thousand dollars in attorney's fees but the question your honor asked i think assumes that an appeal bond is required and i think what the c f t c effectively conceded based on their statutory interpretation is that an appeal bond is not required they agreed that the reparation order we are talking about is the twenty sixteen order they agree that if their position is correct the word the reparation in the statute occupies two different time periods and the following sentences the first sentence says the reparation order we're here the reparation order is when we talk about the reparation here we need twenty sixteen that that's one time period and then the next sentence they say are in the same sentence i should say the appellant also filed with the clerk the of the court a bond and double the amount of the reparation awarded and now we're going all the way back to the one nine hundred eighty s when the first reparation was awarded that is not the right way to interpret the statute so it can't have if we have jurisdiction what's your argument to the race to kata argument a couple things your honor first the agency itself disavowed the passing on the rescue to cut arguments that they have not exercise their discretion on that issue in any way in their order i believe in the same footnote footnote forty they do not address rescue to kata but i think more important district court dismissed the case with prejudice as a sanction because of mr words recalcitrance and responding to discovery so if if that if we if we decide that the district court first they the district court cannot revisit the underlying merits of the order of the statute and issue here eighteen he actually vests the exclusive authority to reek to look at agency decisions in the agency itself so the district court could not address any of the merits of the underlying reparation order all it had the authority to do was basically say whether it was a collectable or not and i believe most of the deaths at the case law say that that a merits  dismissal as a sanction and then when appropriate case can be deemed to be raised to kata as to a defense that could otherwise have been raised had the defendant not been so difficult but in responding to the litigation i think the first response to that is that the defense could not have been raised to the district court because only the c f t c had the authority under eighteen he to hear the arguments about the jurisdiction whether it had jurisdiction and whether it acted rights if that award was converted to a judgment in the united states district court why would that deprive the district court of the authority to determine whether the original reparation order was was entered by an agency without jurisdiction because the conversion is effectively automatic i think the statutory section eighteen d to the c f t c statute says that a reparation order shell scuse me a reparation award shall be directly in forcible in district court as if it were a judgment and the district was no different from n l r b orders or f c c orders or consumer or trade commission orders but ultimately i think it comes back to the point that the district court did not have the ability to revisit any of the agency's determinations and therefore mr ward's challenges to the agency's determinations were not actually litigated or a necessary part of the judgment of the district court thank you thank you mr cole are and i see you were appointed by the court to represent them mr ward in this case in the court thank you for your service thank you