individual has the right to challenge material factual assertions in this case in these cases the agency relied on specific allegations of fraud to exclude evidence in hundreds of cases and it denied the beneficiaries any opportunity to the government put forth yet another losing argument which the district courts described as illogical this string of losses standing alone is sufficient to find a lack of substantial justification but more than that it's the government's position conflicted with binding precedent and multiple regards providing at least two more reasons for still st the government's position ran directly counter to a half century of supreme court precedent that makes clear that the government may not deprive citizens of property without  providing a meaningful opportunity to be heard in the supreme court has recognized that principle any number of times from green to doe to harm d and matthews itself nd the government failed to provide formal education procedures and in fact its position on this issue makes little sense this court held that the government had conceded both the major and minor premises of a logical syllogism and this forecloses any argument the government's position was substantially justified the district courts found the government's position substantial just as i don't like by committing a series of legal errors each of these errors by definition constitutes an abuse of discretion so st district court significantly over emphasized the importance of their prior acceptance of the the in the st circuit that maybe the government had had withdrawn its appeal and i'm staking oh yeah forgive me or not you're you're right about that in the cases that arose out of puerto so beginning with the string of losses argument and the government lost and fiber guards for before this court and won on right now and this strongly indicates a lack of substantial justification there were four different reasons why the government's position as a sort of like trying to file your taxes at the bank on memorial day you're late you're in the wrong place and the banks closed because it's a holiday there's three different reasons why what you're doing makes no sense and that's the that's the situation here is that the interpret in the statute and yet the government proceeded forward and that was again in direct contrast to the position the government had taken after the decision before the district court in hicks and so the government's position there was just so out of step with the norms of law and in fact with its own prior positions that it strongly indicative of the lack is essentially just a question of specially when it comes on the heels of having lost on four separate issues before this court  resolves this case because the court found the government's position ran directly counter to you know decades and decades of supreme court precedent making clear the government may not deprive citizens of property without st giving them a meaningful opportunity to be heard government's position has to be substantially justified and that's been the band as whether a reasonable person would have thought it correct well it was divided decision in this court and  dissent alone is not dispositive and we know that latter point that's established in both guys oh and impossible lorenzo in public and so the dissenting judge noted that you know that his belief that the government's position was not only reasonable but correct in the majority awarded egypt he is anyway so i think this just goes back to the principle laid down in a wall which is that the merits are what matters i think it's important to look at judge rogers dissent and lay it against the majority opinion and sets out the reasonability of the government's position but they exist in such a dissent and this goes as well to the existence of district court decisions are great that the government is not ahead counting exercise it's about the merits it's about the substance the substance of the substantial justification of the  which those courts describe as illogical and so i think that there is room for identification that even if the government's position had not been i had not been substantially unjustified before this court by the time they got to the district premise and in the hicks majority found that the government had conceded both of those premises and so from that it follows that the formal education procedures were required and that the government erred in not providing them and so the government's position you know that for a five b one is cooked and so with the a p a and that for a five you does not itself specify a requirement for a hearing those issues are all beside the point if if all four of five the one hearings require procedures and all four or five you proceedings are for if i think one proceedings that i just follows that the proceedings under four or five you require formal education let me as i can tell the president tells us to consider how important the arguments were cite for example so you're right about those six argument there's not any precedent for separating that the unreasonable position and let the others and consider whether the position as a whole is unreasonable and light of the subsidiary issues sometimes expired any further question good morning your honor is janie late for the commissioner of social security and important to remember the complex and novel questions the agency faced when this massive fraud w discovered that agency was required to craft redetermination procedures in the face of unprecedented fraud and was required to balance congress's clear anti fraud mandate with the individual rights of eligible claimants and the agency crafted procedures when they when those procedures were challenged the government defended those procedures under longest abolitionist case law and doctrine and while this court disagreed with those procedures and rejected the agency's approach we're not here to dispute that or to disagree with the court's decision on the merits but the district court's correctly and unanimously concluded that the agency's position as a whole was substantially justified you have anything else that you want to say no your honor if this court has questions about the agency's position and crafting the redetermination procedures or  the the hicks litigation we would be happy to i'd be happy to address those expert in this case no your honor and i know the th circuit has a case are you questions and your honor those indications of course are about are not particularly relevant to the question whether the agency's position in this case was substantially justified and crafting the redetermination procedures and then defending them before this court you're aggrieved sounds like you are challenging the merits determination of the majority decision so i would like to clarify any confusion on that point our brief does not contest the majority decision in hex contests only plaintiff's contention that the clear that the analysis is holistic that it is can text you will and that it requires consideration of the state of the law at the outset of the agency's action and whether the result was for ordained at the outset we think in this case that there are many indications that the outs that the the outcome was not for our deigned to exist the presence of a judge rogers dissent just it may be your honor there may be dissents on any number of claims or grounds here where there was sort of a list which of course this was not frivolous to say no you're on but but it strikes me that your position analysis of the agency's position as a whole but does it matter that is go here does it matter that the district courts had also disagreed on this question before we  considered and decided it your honor as we noted that that is objective in desha reasonable disagreement among a large number of jurists about the complicated and difficult questions facing the agency and implementing the statutory mandate so yes your honor that the district courts in this quarter are fully within the exercise of their discretion in considering just how complicated it was and the objective indications that this was a complicated and novel legal challenge facing the agency and the government in its defense of those procedures one of the not taking the view that there is any sort of automatic to city to to the inquiry that the courts must look at how the agency crafted its procedure how it litigated in this case that it sensi chose to defend the procedure under the matthews test the reasons it gave for defending the procedure under mathews the the arguments it gave in favor of each of you have seven minutes if you refuse it no your honor but if the court has no further questions than we would ask that the court affirmed the unanimous district court's decisions me or other questions thank you supreme court's decision in pierce and pierce and also this christian and howard have said that a string of wins or a string of losses can be indicative of substantial justification but both of those cases actually reject reliance on that factor and in pierce the string at issue was a nearly under oaken string of wins i believe it was nine district courts in two courts of appeals had agreed with the plaintiffs position and the supreme plaintiffs and so what the what's been presented here is not a string of wins and so it's not an objective and desha and i think more importantly the ija is not a tallying exercise it's about looking at this it's about looking at the substance about the merits as this court explained in the wall and so i think this applies to both the district court decisions and judge rogers dissent the inquiry requires looking at the substance of those decisions at laying them up against the majority decision and deciding whether or not the government's position was reasonable it's not a simple matter you know of just counting the judges or or courts that have agreed with the government's position and finally  may not deprive citizens of property without getting them a meaningful hearing that includes the opportunity to be heard on all material facts so for those reasons your honor is that there's no for the question we would ask that district court decision