discussion this morning discussing the appeals that we filed on behalf of those parties who were dismissed below in connection with their claims about the rightness of their of their claims these parties are the dolly in this partnership the lower court's analysis needs to be taken into consideration by this court in that process the result of a regular briefing by the lower court the lower court look at these issues frankly for a couple of years before finally ruling on them we have questions with a way which  judge damage resolved some of these issues we think that as a as a legal matter when we came forward with our proof we offered what we considered to be admissible evidence both of respect to the testimony of individual owners all dealers who had in most instances own their properties for decades and had operated their properties and knew the markets quite quite well in addition we offer testimony from mr smith who was next for a very highly regarded in his field who had assisted some of these appellants and some of the other point is in our case in terms of preparing and submitting the various applications of the probation statutes to the right but but i guess my point is since and of course the government has been fighting and should have been able to conclusions but i don't accept this other conclusion with respect to the way in which the process these applications i will say that mr smith was is merely involved in filing of scores of applications under the preservation statutes we think we grounded them very very clearly on the nature of what he had done but the government offered no concert country gripping testimony they didn't bring in their own expert they made a number on the issue of of writing this there are other appellant who did not appeal because they prevailed on the issue of rights a lot we don't think those issues are proper before the court today because the government does not to begin with this is an issue that's not a judgment the judgment is a dismissal and on the dismissal i would have rejected the government's brief says across the p here had they filed it and insisted that they don't get a yellow pre and have remodeled grace that they have to go back period but if we accept your argument i mean you've seen that the nose themselves and even they used to prevent what the government does not have any reference to a right it doesn't your honor but i think the important no right to prepayment ever despite the fact that there was a regulation that would have allowed you to create a mortgage that could be approved by hood that would allow for prepayment a twenty year  had some note at the same time that had a right to prepay and some notes at the same time that didn't have a right to prepay expressly in the know so it's not as though you could claim that they work one notice that i know could be written that included a prepayment option  trump business relationship in reliance on what regulations said could could then argue this kind of taking every time the regulations were changed with the laws to clear and the regulations here were not where you got that from because the regulation that i'm reading two to one point five to four which does outline instances in which prepayment is possible is under the heading eligible mortgages and there are lots of different provisions like the one right after two to one point five to four says the mortgage may contain a late fee clause so each of these provisions in this regulatory framework are things that the mortgage note is allowed to contain that would otherwise still make it eligible under the hud program it doesn't mean the mortgage has to for example morrison have to have a test may contain a late fee clause so hud could approve a mortgage and it could satisfy hud whether it had a late to clause or didn't have a late fee clause why wouldn't i read the prepayment privileges section the same way hud is willing to approve mortgages that have prepayment clauses as long as they need certain conditions it's also willing to approve mortgages that have a no prepayment clause but they're only going to approve the prepayment clauses if they meet the conditions articulated in two to one point five to four so why since the entire regulation is set out listing the options that could be included in the contract and my suddenly going to say every one of these options automatically has to apply to every contract that does that with this regulation and what it's saying is that why you read it that way as opposed to this is one of the conditions that is allowed to be written into eligible mortgages since every other in addition surrounding it is such a condition what i think is wrong with if you look at what hud said about this consistently over history they disagree with my mind to potations that's important because certainly if the agency has express and interpretation of its own regulations that interpretations entitle to deference so read the note that way ok now if i agree with you and i think you have a strong case on what is actually written in fifty six federal register to do you are too dense to six to about what hud is saying here but an heiress statement made in a proposed rule that was never can't i can't figure out i couldn't figure out i can't tell that the rule was ever even adopted and i and i know what the actual rule was and we've done some looking but so is that basket it would not be subject to the prepayment probations in section two hundred one five twenty four thirty six very rather limited dividend distribute mortgage or which is not receiving resettlement assistance would be permitted to prepay its mortgage without  and there was no third alternative ok so i completely understand your argument now and i think it's a very good argument but one question i have for you is how does this regulatory stowed benefit the right to prepay which you expressly don't have in your contract and your contractual rights has no pre payment so the federal government has come along and whatever benevolence it have and decided to none the less allow you under certain limited he said provided you with the causes for the contract and the hud clauses said no prepayment so it can't be the case that hud had as an agency decided there were only two instances prepay under these conditions or presented these condition because they were providing you with contracts that said no prepayment so it can't be a reasonable interpretation that they believe pretty prepayment could never be prohibited but the that's what that's what these excerpts that we've we've located  looking at the contract they were trying to figure out what the rights of these people were and they were not saying that we are giving these people something different than what they had at the beginning in one thousand nine hundred two the cost of general counsel made it very clear we are confirming what the right evidence of this is given in the by force well but i'm having trouble with that impression of yours that this i don't understand hud to be rendering an interpretation of what you manage a one ninety when you said the note may never be prepaid and you signed that document i understand them to be saying as they did in the federal register site you pointed me to if there is a conflict between the note and the reg the reg will supersede the prepayment prohibition on the mortgage note so they know and that the contractual right has  prohibition and they're saying the regulation is going to supersede the work to proceed means come after right and he has a natural meeting in the english language so if they're saying they're not saying i'm interpreting the contract as never having allow that they're saying we're going to read the agency as as in fact saying that if you look at the system that was put in place these notes on exist independently that they came from the program to the steps to twenty one program the i think there is another regular action i don't think that anybody has argued that had could not and after regulation which somehow affected or changed the contractual relationship in the power of the whether in fact a right was previously invented between the various contracts and regulation and whether a regulation can override a contract is o counsel explained what was happening what you know to the opposite well council did was essentially to say that for those people like these accounts who are persuaded to leave them in supplement program and come into the section program what happened at that point was this right was was built into all of the things the notes that we should buy house what i was saying in ninety two and ninety five when i look at this is that everybody in this program prepared by how they would be offering of god and how does the party who is you know clearly in the best position in terms of being able to say what the rights were that these notes conferred at the time they were they were created can i ask you something about the pay sort of throughout the paragraph you read to us at the bottom of ninety three the very end of that paragraph considered continues and says lipper requires an order for housing to be deemed eligible low income there must not only be the right to prepay without hud's consent but this is right must have existed by regulation or contract which was in effect prior to february fifth of one nine hundred eighty eight so isn't this general counsel's opinion actually recognising that you don't  obviously many other places in the and i'm going to case now below many of them have language that it follows tracks very closely this particular regulation this one does not and missed that but it would be very difficult for me to understand a situation two thirty six program would be deemed to somehow truncate a right that everybody else who participated in the program had pursuant to the terms of the regulations that that that led to the drafting of these notes because then you end up with parties who are argument is founded and we were having this argument about whether there was a contractual right because i think that we're all probably on the same page but i want to make sure that if the government simply bestows a right by regulation then changes the regulation and takes the right away that that isn't in the circumstance of taking right i mean if you didn't have to break unequivocally had no right to something and the government comes along and creates a race of say welfare and welfare you are not a welfare recipient you've never been  welfare recipient but there is a welfare program that you could be eligible for that would otherwise exist and the government has bestowed it as a benefit on people and then the government by regulation takes the program away suddenly you're in a situation where you would have benefited from that program to continue to exist you don't have a vested property right under that circumstance to claim the government didn't have the right to take that program away and write your great ok so we're in agreement that if the government the soda regulation the government changes that regulation that doesn't give you a basis for taking you know the creation of the white paste address if you would agree with that right that's right given to mr but this is not the case i understand your argument i just want to make sure that we're all talking about the same thing there are several other issues that need to be discussed which is the issue preclusion matter with respect to that person for it was once in the court was going to allocate certain time to on a case by case basis certain property specific matters i was two three four five six seven eight nine ten eleven separate properties that composed that first four and with eleven separate mortgages and eleven separate sets of circumstances only one of them  things has to be taken case by case because the circumstances the mortgage can be different the circumstances of the geography where the property is located can be different your future plans for the property to be different so when us courts had said that every one of these has to be done case by case how can collateral estoppel which didn't address all but one of the properties for fourth circuit opinion how can that be resolving the same issue that's our problem as well you know because the rules are there for collateral estoppel to apply the legal with factual issues must be  broad facial attack on that whereas pursuant to what the court told us to do when it issued its decision of this case in two thousand and six with the the issues now before the lower court as applied regulatory takings claims which are  going to whether or not you should have had to play this out before hud before coming to district court after being rejected or prepayment or whether you should be allowed to go straight to district court am i right does richard this isn't on the get to to the decision we are now proceeding with to take this discovery for a group of players in the lower court but all of this was in order to to do with the court asked us to do to come forward with fact based property specific at least the court before the court are as applied regulatory taking claims brought by the owners of twenty one moderate and low income housing projects the owners allege that liberal affected the taking of a contract right the taking claim of all of the plaintiffs as to all their properties are not right in addition the mortgage notes for six particular properties do not contain the contract right that was allegedly taken by the united states issue preclusion part of the claims asserted by separate for as to their properties and claims about ten properties owned by the for three and the third four are barred by the statute of limitations or at least they would be barred by the statue limitations if that that can't prove intelligent because we can't and we can't say as a matter of law that that's the case but they didn't decide that that these particular plaintiffs would never be able to make an acquisition the same i don't think that's quite for decision was it was not to take a case it was a due process challenge and the plaintiffs said we don't need to go to hud to assert a due process challenge as to us it wasn't simply everybody was as to have been and they said of course you have to say that as for me but their argument as to why that with so was because they said because no one could ever know they didn't say that no one could ever qualified if you look at the decision they say that we couldn't the qualified and that's what the court talks about the court talks about it they raised four different arguments as to due process as to why the district courts dismiss what they're to process  would be futile the fourth circuit why i didn't see them making the arguments that they make clear at all about futility so how i mean of course if you can recognize your completely unsubstantiated generalized arguing about futility isn't going to ever cross the hurdle so what i don't understand them having made the argument before the court that they're making here today which is these precise properties would never ha been approved for prepayment by hud on the basis of their historic record of refusing to prepay because the only properties at issue in the collateral estoppel are all ones that satisfy smith one or two these are not ones that three which judge damage found valid in one or two so i understand them saying these property are properties which we can establish legitimately i know you don't agree with that but legitimately can that was the property of the effort for put forth in that which so this is i'm going to ask you to question sorry to interrupt you but since none of the other properties at issue in this litigation were even at issue in the fourth circuit decision how the heck can we have collateral stoffel because we've made it clear you've got to have property specific case by case mortgage analysis so for everything other than south gate how could we conclude that a there are because what you have to address in looking at exhaustion is whether or not the fundamental question is not whether or not as you particular property would or would not approve prevent the fundamental question is could approve payment if the administration administrative process had been exhausted so it's looking at the possibility of what might have happened as opposed to a prediction as to what the plaintiff or what the court thinks would i stand that kind of morphed into your one into one and your complaints about mr smith and for now  just assume i mean we'll get to that in a separate argument or discussion but assume that missed one and two prongs otherwise stablished the futility such that these properties could have then avoided waiting for hud because these are all properties that smith one or two was relevant to so if you assume that then i don't understand how it's had all the same question that was resolved in the fourth that is because the process the reason for that is the process of stablish by the preservation statute and that's but the owner presented a plan to pop it wasn't an abstract candy prepaid for you and you're not prove the same that the growth allowed them to go back that is correct it's also important to recognize what this court did in the prior decision in this case and how the court handled cna get to and how the court handle greenbrier in the decision in this case the prior anaheim's gardens decision the court looked at the proceedings it was analyzing this case as a motion to dismiss  it filed a notice of intent and should have received a preservation of capital needs assessment within a certain period of time and mentioned other allegations of administrative delay and then this is it said because taking claim based on administrative delay could be responsive to whether or not they can argue before futility which wasn't decided by the fourth circuit which is the collateral estoppel point to tell me how the argument you just made about whether there could ever be a temporary taking by virtue of the ministry of delay which i consider quite frankly to be a separate and unrelated point tell me how your justifying the collateral stoffel holdings by the fourth in this case to be the fourth circuit on the basis circuit that as a general rule where there is a discretionary administrative process as here that exhaustion of that administrative process is required and exhaustion of the administrative process add to that for four will not be excused because of futility that's my understanding of what the fourth circuit did in fact for they said that the failure to exhaust and if that's how broad  just simply applied the bedrock proposition is if there's no dispute between the parties and the united states does not argue that the fact a specialist at a prior breach of has discretion to grant prepayment and that a sow's and different people have applied with identical circumstances and hud has denied every single one of them consistently the right to prepayments even know they could have within their discretion allowed pre payment most instances but huldah has really pretty clearly and categorically rejected pre payment under their discretion for people who have certain types of criteria so now the thousand and one person comes along with the identical fact this is not our case don't worry i'm not trying i don't know that it is but the thousand and one person comes along technically it does have the discretion it would be awfully home heard it seems to me for them to grant that discretion in light of number one thousand and one given they rejected it for the first cells than what theoretically they have the discretion is that a circumstance in which futility could ever exist to allow the thousand and one person to get the administrative process and go straight to district court would your position which seems to be whenever there is discretion you c never have futility your position would seem at this for this point to trump futility even in that queer case so i want to know where exactly you want your opposition to do that you would have results there and i would point you to be of course called decision at this point short it wasn't quite as extreme as the hypothetical you just gave me but in course called this court rejected the argument that the agency's position in other matters  stablish is futility and it's said that it said if you are seeking relief off and this applies to you you have to go you have to convince the agencies they've done it that the agencies position to others matters showed that they couldn't prevail in that case and the court said no you patients your honor we're talking about right here as to the statue limitations you're looking about the underlying transaction and you really are getting into the merits sort of analysis which is somewhat different than what we're talking about purely on the rightness issue the terms of at that and you look at the merits of these claims not whether or not the claims are right the rightness aspect of it is very similar because you do have to apply to protect but the merits of the claims when you start looking at the penn central factors and you start looking at economic impact you start looking at investment but the expectations those things are all very different because you are dealing with different properties you're dealing with different sounds towns and cities you are dealing with properties that were developed at different times with distinct mortgages and with their own preservation history although frankly the preservation history is similar in that none of the plaintiffs here did seek permission to prepay so that aspect at least is similar they went to different improper for the united states to file a cross appeal where we are not seeking to change the judgment the judgment here as to all of these places that are before the court today is a judgment of the permissible and we are simply providing alternative grounds for  instance in bailey versus dark container corporation this court said it is only necessary and appropriate to fire across the field when a party seeks to in the largest on rights under the judgment which we are not attempting to do or to lessen the rights that it's adversary in w going to the right on this issue which we believe cuts across all of the cases here the fundamental question is what could have happened if  process had been exhausted not would what would have happened where there is some possibility of obtaining permission to conduct the activity at issue is option of the administrative process is necessary and some possibility exists whenever the comparable and affordable housing discretionary judgment was available if the owner's plans up to displace tenants and hud was to evaluate whether implementation of the owner's plan would materially affect the ability of affordable affect the in which the court was talking about discretion the competency to get to talking about them obviously this the court said the parties agree that hud would not be would not allow prepayment under the that's why the court said that there were certain facts that stablished matilda because the fact would say that under the statute  there's an important argument that was not presented in sienna get to that i want to to mention the court and it's an argument that the united states did not make them because you are talking about implementation of the owners plan of action the owners able to craft a plan of action that ham satisfy the statutory criteria not all plans that the owner could submit would be busy disapprove of the court and see any good to was talking about a plan of action where the owner went in and was going to immediately raise rents on for tenants by more than ten percent of what but the fact that they could craft a plan that hug would approve is not the same thing as them having to do it right like subject in the mcdonnell case and williamson county and other cases where the supreme court has been talking about exhaustion and utility the supreme court has said that where you go where the project owner goes in and said i want to build two hundred houses on this plot of land and they are rejected they actually applied and they rejected unless the record establishes that they couldn't the ball couldn't a built one hundred houses on that plot of land they still have to apply a apparent but that doesn't that doesn't answer my question because my question was supposed to still recklessly or was clear that they wanted to put up high income high big expensive condos million dollar plus condos a piece that is clearly something hud would not have had the discretion to approve because it would have absolutely modified dramatically the availability of low income housing in the area because none of the current tenants would have been able to stay so if that was their plan and if theoretically they have a right to do whatever they want with their property after twenty years i don't understand how the fact that they couldn't put in a moderate maybe i don't understand how that affects the futility analysis that we're discussing it affects it because the fundamental thing that the supreme court has said that you h in exhausting is have the responsible agency to start with what uses of the property would be allowed now you're postulating a plan that would have denied there can be plans that would be denied process where the property owner is going to spend the entire rest of the mortgage period going in incremental steps trying to get what it wants out of hud and being rejected time and again that can't possibly be what the supreme court contemplated  the the onus is on them to keep applying until you finally say yes and then we know where the boundaries are and only then can they go to court to complain about the fact they couldn't do what they wanted to do to begin with no your honor and i would point you to the pal decisions i would point you to the tech decision in this court and the mcguire decision in this court empowers although the owner didn't fact have to apply before the supreme court said we have established how this property can be used and you don't have to apply it must submit multiple applications when the manner in which the first application was denied makes it clear that no project will be approved so if you apply and you learn from that application process where the bounds do and not let you do if you can't do what you want to do because of to establish the taking here or when you get to the mare so that it damages the south utility i don't see how that is relevant to futility i see how it's absolutely relevant to damages right because well they wouldn't give you everything you wanted but they would have actually given you ninety percent of what you wanted so i totally see how that is relevant evidence i just don't see how it's relevant to the point if you tell it the reason the reason it's relevant on why belittle your honor enough simply to what just compensation is is because under pen central you have to evaluate the economic impact of among other factors whether a taking has occurred at all it could be that hud said you can't prove your pay your mortgage at all and in fact this character the government action there is no take but i once again i understand completely how that goes to liability in the marriage just like it could also go to damages both both but i don't understand how it goes to futility because can you can absolutely bring all of that out in the course of the actual proceeding but the bottom line is it's still totally futile for them to go through the application process that hud because they can't get what they want and then they want to argue that by not being able to have what they wanted an unfettered property right to do with their property whenever they wish that there's been a taking now you and them can both bring out all of these facts in deciding whether on the merits there's been a taking but i don't see how that impedes their ability to get into court but that's exactly what happens in cases like williamson county and mcdonald your honor where the court says that submission of a grandiose plan that is denied does not necessarily make your claim right now it can under is that you can proceed under this statute if you are what was defined as eligible low income housing and that's what's discussed in these letters what is eligible low income counseling and look for it defined the term as projects developed under section twenty one two three or two thirty six that quote under regulation or contract in effect before february five nine hundred eighty eight is or will become within twenty four months eligible for prepayment without the approval of the secretary the key language there is under regulation or contract you are allowed to proceed under liberal it's pretty one thousand nine hundred eighty regulations w allowed it or if your contract would have allowed it and so even when you didn't have a contract that had the right in it if under a pug's regulations superseding that contract language you would have received you're allowed to proceed mortgage notes the ability to prepay after twenty years but as to six properties they had no such contract right and the regulations didn't change that it was in the contractor's plain language in the if there was some generalized understanding at the time these contracts were entered into that you had the strength through regulation it would trump anything in the language of the statute with that because it's a contract right that is allegedly  that it didn't have a right to prepay or admission that expressly procure precent you see the difference i'm drawing the difference i'm drawing is between a contract which absolutely prohibits certain pre payment and a contract which is otherwise silent regulations could i understand the distinction you're making here your honor but in this particular case the distinction is without difference and the reason is that all of the contract expressly addressed prepayment and so statute had not changed at that time to directly answer that question that said we're not talking about interpretation of the statutes in regulations where you might get chevron difference talk we're talking about a letter about one specific property for instance in the one to ninety five letter that is not one of these particular properties at all so yes there is that letter from from hud to that pointed i know they're new tell me what about them and this is this analysis completely wiped out by that seems more than the change to leave in place the very specific part that he was discussing no regulations allowed so the prior break i saw i don't i didn't understand that sir appreciate about the fact the prior regulation didn't allow unilateral prepayment it was only the new regulations that came along and for the the statement of the proposed rule the federal register statement created an understanding about what the regulations allowed or didn't allow what i didn't hear you say and i want to make sure i understand your argument though is that all of that is irrelevant to whether there is a contractual right i just want to make sure i understand your argument and i haven't missed it that is absolutely even if he is one hundred percent right about what the ninety two and ninety five projects and was personally responsible for processing under the preservation statutes in their declarations they talked specifically about mr smith's tests one test to test for it they talk about all up and as to test one mr smith's first test he created an affordable areas left and his proposition was that if a project was not in one of these affordable care you would have denied re mr berry and mr east both said quote you fordable areas list was not used in a value way to requests to pre pay pursuant to the preservation statutes and they went on they said project located in metropolitan areas that were not on the affordable areas list remained tendulkar and it is for prepayment directly contrary to mr smith so called pest we have testimony from two but individual sworn affidavits that say his proffered test is simply flat out wrong and it's more problematic still because mr smith's test doesn't track the terms of the statutory provision that showed what hud had to analyze in terms of a plan of action th test number one and we have to put officials submitting the declaration saying that this test does not show that a project couldn't pre pay this christmas second test has much of the same problem that mr east and mr berry spoke to this test the second test to evaluate whether the rental market containing the planet's property was soft as the term soft was used in herds interim guidance for the so called all because we're dealing with summary judgment if we're actually dealing with what i would have done i don't think that the correcting where we've been could should be what could have done but we're dealing with what it would have done a summary judgment stage the court supposed to give all reasonable breaks except credibility and except the reasonable inferences from these declarations now these declarations at a minimum show that simply adopting mr smith test is inappropriate on a motion for summary judgment we have declarations controverted his test and his approach and so at at a summary judgment motion that that shouldn't win the day if what we're really talking about is what that the windfall profits test was not a proxy for prepayment and that could approve prepayment irrespective of whether a project passport failed the windfall profits test more overt and the court found as mr smith disregarded nine of the ten factors that hud's regulations said you have to look at in evaluating whether a project was in an area that was soft to have any idea what a nightmare it would be here in our court every single time there would be a cross appeal in every case because they didn't like something that would have made them win for a different reason than the one they actually won for that's not the rule of how to decide what before i could exercise any discretion and that is clearly not what mr harrington is what the government is arguing before you think he wants to make an argument that something else should be the standard this court should follow he understanding of futility was reaffirmed and we don't see any basis for the court to adopt any other ruling here it's very clear that it's less the statute the very strict mathematical statutes the standards of the statutes are satisfied but can't do anything and cases such as the head case of the government sites are really about what happens here to make a first application what that the impact that might be on subsequent applications and that i think what the heck is really a question about what constitutes a final decision on one application for purposes of understanding the impact that might have on later decisions but it doesn't in any respect the other situation of creating an alternative rule but to be except that the government is claiming that we don't demonstrate that hug would not have approved prepayment on these alone because they don't follow the regulatory standards that's what public using to decide whether prepayment what's appropriate like what how do you going to be who had knowledge on this and if we didn't have the opportunity to pose him before his declaration was received but if you look at the declaration as the lower court found the total its principles are we think  especially in a positive there's a lot of discussion about what might have happened what could have happened if somebody somewhere some kind of some point had come forward with an application that allowed for prepayment but in terms of understanding or attacking the government says that no one of these plaintiffs petition has requested permission to prepay how does one reconcile rooted well because your honor if congress wanted to property knew the market and also knew with the regulations and the statutes of the presence of such is required they came forward that we couldn't meet the standards we were unable to do so because the standards required us to prove that which we could not prove they require under test one test to could in fact satisfy the statutory requirements of prepayment so that's why the owners didn't do didn't come forward to the agent who did not ask to prepay because they knew that in order to do so government would be required to essential ignore the requirements in the statute and indeed that's what this court said in c n a got in two thousand and one that those statutes were extraordinary stricken had had no discretion that couldn't do anything if you couldn't satisfy those regulatory i'm sorry the couldn't satisfy the yes and but i would also say again your honor that if you look at the regulations at the time under which these notes were drafted and remember that the sporting greenbrier made the point that the prepayment terms in these mortgage notes were derived from the hundred relations so this court has already tied the language of these notes to the regulations pursued to which they were drafted and that's not an unusual thing in programs that that involve sets free programs that are implemented by an agency that have been carried out through the government of the private sector through various forms of contracts that rewrite cases already concluded that the language of with respect to prepayment this in these notes derives from the statute program among other things you will be allowed to present it so in the summer of eighty seven they wrote to too hot and how do brought back in january of one nine hundred eighty eight saying we think the statute could be changing but right now it is true that we do allow the owners to reliance on on government only granted rights whether it be by statute are regulation you always act at risk because the government could change the statute or regulation well but i think that the answer is  this case when the government raised this issue about the right to repay the government has consistently said that these notes even if they don't specifically say that there's a right to prepay the note has to be interpreted to allow them to allow for that it's now the other fifteen all by my count had a clause in the mortgage that expressly allowed the mortgage holder to prepay is that right that's return or make sure now i just want to make sure i have the numbers right so you're talking only about the six