agency and as such they forfeited that claim and nothing about these cases makes them so rare or so exceptional that this court should excuse that forfeiture first appointment cause challenges are not jurisdictional and are there  a claim not raised before the benefits review board and in turn are brothers with respect to a claim not raised before the department of labor and this court is not alone in those holdings the nd circuit and canela the d c circuit and intercollegiate broadcast systems the federal circuit in  procedures in fact the only court to hold otherwise was the rd circuit and serco recently but that decision was badly misguided and i'd be happy to walk through a few reasons why the st is that it simply rests on a faulty premise that i've just been discussing the panel assumes that the normal presumption in favor of administrative exhaustion requirements is simply in a political to appointments clause claims but we know that since luci it was decided five circuits including this one have all held that l reason that serco got it wrong is because the panel treated social security proceedings as though they were special in themselves explaining that forfeiture would impose a novel burden on claimants and yet claimants and social security proceedings are not  from the requirement to raise issues before the agency to preserve them for judicial review the st circuit held that in mills the th circuit held that in shively and that makes sense because forfeiture principles ensure that the agency has notice of potential problems at the time they arise and can take steps to correct them and make no mistake raising this type of appointments clause challenge to the social security administration at the agency level here would have done exactly that it would have put the agency on notice that these claims were city could you address why it should matter whether the claimant failed resample the issue to the failed j rather than the appeals council absolutely and i think it's important at the outset to answer your question judge that since you know acknowledges that there's something very special about the appeal council review it's a fractured opinion so we really have to look to justice o'connor's concurrence there and what she notes is that the appeals council really exercises this sort of p that particular level of plenary review over claims coupled with the fact that that the form that claimants submit to the appeal council really just includes a couple of lines where claimants can identify issues renders the appeals council level not the place where we would normally require a claimant in that circumstance to exhaust the court took great pains to emphasize that it was not suggesting or deciding the question of whether exhaustion needed to happen at the l j level and i think that's clear because prior cases in the court including freitag make evident that claimants do have an obligation that the plaintiffs do have an obligation to generally exhaust issues and arguments before the agency and so to answer your question about why it makes sense not to require exhaustion at the appeals council level as opposed to the ail jailable i think that comes back to the special nature of the appeals council review the fact that it is plenary and that there's simply nothing on the form that would really allow for an expansive discussion of what issues ought to be raised now it's certainly different from the burden on the claimant in front of the l j there is regulations that describe that claimants ought to raise objections to their l j at the earliest point possible for you know things such as their l j being biased against them and that you know there's a general presumption that claimants ought to be raising factual matters and other issues before the agency throughout their discipline on disability benefits hearing so just to sort of tie back to that point i don't think symmes changes this background understanding that in social security proceedings claimants are not categorically excused from requirement to raise issues before the agency and really your honor other courts have recognized exactly that mills in the st circuit said exactly that you've emphasized the the general principle of exhaustion in administrative proceedings but in the absence of a specific regulation or statute relating to social security agency proceedings did the district court here have any discretion to determine whether exhaustion was required absolutely your honor because i think as your question points out this is not a case where we are looking for statutory exaction where there is a statute or regulation on play on point that requires claimants to raise issues before the agency and that a reviewing court houses have to decide one whether that any discretion and then to if so if there are sections to that statutory exaction requirement whether this case fits into those exceptions this is a case of you know judicially imposed exhaustion requirements and i and so in that sense the district court certainly would have had the ability to look at decision as to forfeiture as to whether there was an exhaustion requirement for abuse of discretion that's your question your honor and we certainly have a brief that this is i would argue this is a question of law it's a question of whether these sorts of challenges fit within the doctrine and so in that sense this court might be able to review it on a dyno of a level but even if the review were abuse of discretion i think it's clear here that  you know based on this court's precedents alone that this type of challenge was forfeited and that in that instance there is and you know this court again could look at the facts and say whether or not there were any sort of circumstances that make this case rare or exceptional and or for a tag that would excuse it and there's simply no basis in this case to to exercise that discretion in that way but i do want to sort of tie back to a supreme court case with respect to the statute or regulation point if i may and what i'm thinking as we're sitting here having this conversation is i'm wondering the district court in this case found that there was no exhaustion requirement and i guess i'm wondering whether we would be looking to see if the district court was wrong as a matter of law that there was no exhaustion requirement as opposed to whether the district court a different question it would be whether the district  its discretion in determining that there was an excuse for not exhausting in these cases you see whether where i'm headed with that yes your honor and i think i probably did articulate that quite as well but that was sort of the very st response that i had to since dictates that these sorts of challenges need not be raised to the agency and so as a matter of law we don't think that's correct at all if i don't read the district court or the magistrate judge to have just simply excuse for which or the judge didn't discuss that at all and that may be a discretionary point but certainly the issue of whether this claim needed to be raised as a matter of saajan that's the st place that we think the magistrate judge went wrong and that i think is a question of a lot of this court review the novel and what just as a practical matter if this had been raised before the before the agency what could the agency have done about it because they   that would allow for the or that would have cured the l g s appointment but that's sort of the very point and the nature of exhaustion in the st place raising these claims to the agency at some level puts the agency on notice that these claims exist and of the accumulating litigation risk as described in l a tucker and as a result of the agency the commissioner is in a position to fix that problem and in fact we know that that's exactly the case here because after luci i came down the commissioner and especially in light of some of these challenges that been raised the commissioner went ahead and ratified the appointments of those sales days so this is definitely something within the agencies control and that's really one of the major reasons why even this court were to find that forfeiture implies that this court shouldn't excuse the forfeiture here because claimants were you know they were represented by counsel they had every ability to raise this challenge before the agency during their hearings and or you know to the to the appeals council on review and the claimants didn't even raise it in their complaint to district i don't believe so i think that's exactly what happened in the g o p she had timely raise the claim notwithstanding the fact that there may not have been around me at that particular moment or in or from that particular judge but regardless it's clear from the supreme court case law and this court especially maloof that there need not be you know the particular case law on point that allows you to to to win that king claim at the agency or even that the remedy exact remedy you seek needs to be available at that moment in the agency it's enough to put the agency on notice to minor argue in district court that either of them came under some exception to an exhaustion requirement that there was some excuse for them to  yes your honor thank you may i proceed yes please my name is paul mccartney jr i'm an attorney from tulsa oklahoma i'm the attorney of record for the apple e's in this consolidated appeal i'd like to thank you for giving my clients the opportunity to present their cases to the honorable court today i'm honored today to represent willie oral car and kim l minor the f believes in this consolidated appeal they both live in tulsa oklahoma and have been seeking so security disability benefits for several years the following points in this case are not in contention the social security administration has conceded that th were appointed in a manner that was in conflict with the appointments clause of the united states constitution furthermore the epa least concede that they st raised the issue of the unconstitutional appointment of the ale j s in their district court briefs that were filed on behalf of carr on october rd two thousand and eighteen and miner january th two thousand and nineteen the district court in both cases relied on the united states supreme court cases of luisita versus the f c c that was decided in two thousand and eighteen and sims versus f l decided in two thousand i think we understand luisita case is sim's was a case involving social security disability law and the exhaustion of administrative remedies the district court relied on that case the sims case and concluded that the claimants in this case need not also exist to exhaust their issues regarding the appointments clause the court looked at sams for the following factors number one the requirements to exhaust issues are creatures of statute and there is no statute that requires issue exhaustion before the social security administration two while it is common for agency regulations to require issue exhaustion social security regulations do not require it three the reasons why courts generally impose issue exhausting requirements do not apply in the non adversarial process of the social security administration and for the so security administration does not notify clients or claimants of an issue exhaustion requirement the district court noted that it had been nineteen years which is now twenty years that had elapsed since the simms decision and during that time so security has not enacted a regulation requiring issue exhaustion and that's also purity disability law is not adversarial and the claimants are still not notified of any issue exhaustion requirement a number of district courts and now one appellate court the rd circuit in the circle case have decided the issue and i went back and i've read the majority of these cases the and i believe that the st wave of cases were cases that had been briefed and argued and in some cases they tried to bring the issue in on a procedural matter at the end of the case such as arguing it for the st time in the  l could you address how sam supports the notion that claimants don't need to raise the issue before the agency at  there's there were three cases the th circuit on she all the case and in all of those cases  these were simple things it appeared to me these were simple things that could have been argued or should have been argued for instance in that  circuit case yaba there there was an argument they they decided to in the appellate part of the case they decided to challenge the vocational experts estimate of the number of jobs issue going around the country with the department the so security administration attorneys were arguing this and they were arguing oh you didn't raise your issues at the appeals council so therefore you have waived them and as far as the exact issues and sims i can tell you i don't know but this was good this had gon several years simms answered the question now here's what happens with the appeals council in some cases pro se claimants or even  attorneys follow form you can do the form now electronically but they file a form it's a you know it used to be like one of these pull out forms that carbon was in it  and they the form gives you three lines to put the reasons why you feel the error was made and i believe justice o'connor in the sims case concurred and mentioned that that there was you just had three lines to two to argue well in many cases that's all that's sent in and then it's it's left up to the appeals council to make a  opportunity is that correct that's correct that's correct bias and it's a tall mountain to climb i think i believe it's a tall mountain affirmed the denial of your client's disability claims on the merits assigned or stand but you don't you're not contesting that ruling on appeal has that correct that's correct then well i suppose my question then is if you're not contesting the denial of the claims on the merits do we what's our what's our  case or controversy at this point the fact that the decision was made by the judge who was not constitutionally  it does go back to the beginning as if it didn't happen ok i think i understand the art and i just i was just interested in the fact that you  you haven't challenged that decision that still stands at the district court level that your clients aren't entitled to benefits i don't know what more i could answer on that other than the court did order it to order remain and with a different a l j as part of the remedy the circle case if you if you go through it i think it provides a much better roadmap than i can in terms of the law and it goes through the fact that there was no statute no regulation so security also his rulings that it makes which are also a roadmap and i note that they did that in this case are not in this case but they did it in this  th two thousand and nineteen and as far as i know that was the only writing only procedure that so security had actually set up they did have an emergency notice that they sent out to the rail j s sometime before that but in my on march the th two thousand and nineteen they provided us with a bed and their administrative law judges and and the appeals council judges of a procedure and i've seen this that it actually has worked in cases that are at the appeals council it's not going to work with the a l j is because this this whole system this whole situation has become very narrow it's only for climates who had cases that were decided by administrative law judges prior to the date of july th two thousand and eighteen people can come in today and say that unless there are some cases i'm going to admit they're buried at the appeals council that were decided before that re long as you have a minute i'm going to ask your question this is judge mathis and to what extent are you relying on the supreme court's decision and lucienne as a reason for not raising this issue before the agency i'm not i'm not because luci did not provide a bright line test as to what was timely and the court had that put in time they said that must be done timely but they didn't tell us what that meant and in the context of the lucida case it was timely so i'm i'm not relying on it i'm rel on it on the which a point that's that's really not part of the case it was the the secretary of the commissioner conceded that their judges were not appointed in a constitutional manner and that's not an issue here that could have been an issue that we would be arguing for thirty for you on you can hear you sorry your honor is i am on mute and i am back i just want to make one point with these final few seconds which is just that picking up on judge mathis is a question with respect to the district court affirming the denial of the merits this is the exact sort of situation of the equities that we find ourselves in where allowing claimants a do over here would really just be at odds with not just the reasoning of this court in a majority of circumstance circuit courts but would create perverse incentives sand thank you counsel in our in the new district of new mexico judge browning recently had a case in the crazy versus social security administration where he adopted a position that's contrary to your and one of the things that he primarily relied on that i guess he basically poured out your argument on every position he could but one of the things i think he primarily relied on was the idea that it would have been futile to present this argument to the agency because they couldn't have granted any relief and i brought that up with you before  do you i mean what what is your other than just saying gosh they could have all they could have raised and they could have gone in to have the have the commissioner appoint everybody i mean what legal grounds relied on to grandstand easily if this had been raised so a couple responses to that your honor and i know we're over time so i'll try to keep it brief i think the important question is not whether at the l j level or at the appeals counsel there are some available remedy but whether the agency as a whole can can give a remedy and that's true from cases like alley tucker and it's especially true from this court's decision in lieu of because it's important to bear in mind that when this court is thinking about this type of futility argument maloof the standard is whether presenting the claim to the agency would be clearly useless and there maloof said in reliance an alley tucker that so long as the agency as a whole is put on notice of the claim that's enough to render raising the claim not clearly useless and it's enough to defeat any futility argument and that's of course true here because of claimants had raised these claims to the agency even if the l j couldn't have ordered a new hearing before another pointed l j or even if the appeals council hadn't done so they could have tracked that claim and notified the commissioner the commissioner could have just been aware of it merely because it had been raised and we know that the commissioner had the power to fix this problem because the commissioner in fact did so in two thousand and eighteen right after which it was decided