[00:00:01] Speaker 00: Number 20-5365. [00:00:04] Speaker 00: William Turnbull et al. [00:00:05] Speaker 00: at Balance vs. Killalo Kejagazi in our official capacity as Acting Commissioner of the Social Security Administration and Social Security Administration. [00:00:15] Speaker 00: Mr. Bruce, for the at Balance. [00:00:16] Speaker 00: Ms. [00:00:16] Speaker 00: Sony, for the at Police. [00:00:19] Speaker 02: Morning. [00:00:33] Speaker 03: Mr. Bruce, you may proceed when you're ready. [00:00:36] Speaker 01: Thank you, Your Honor. [00:00:37] Speaker 01: Jonathan Bruce for the plaintiffs. [00:00:39] Speaker 01: May it please the court. [00:00:41] Speaker 01: Waiver of exhaustion in the DC Circuit is a disjunctive test requiring satisfaction of one of three prongs. [00:00:50] Speaker 01: In this case, all three prongs are satisfied. [00:00:53] Speaker 01: In the only other court to have considered the same issues, the Beeler case in the Seventh Circuit, the Beeler Court found that all three prongs were satisfied. [00:01:04] Speaker 01: To go to futility first, [00:01:07] Speaker 01: The Beeler Court found that this lawsuit targets a system-wide agency policy and practice that uniformly deviates from the governing law and does not depend on the particular facts of any individual case. [00:01:20] Speaker 01: This is precisely the type of lawsuit that should not be subjected to an exhaustion requirement. [00:01:26] Speaker 03: Your futility and collaterality arguments are really one and the same, right? [00:01:31] Speaker 03: It's that your claim is a legal claim. [00:01:34] Speaker 03: It doesn't depend on specific facts as found by the agency. [00:01:38] Speaker 03: And therefore, there's really no point in delaying and pushing the clients through the agency before deciding the issue. [00:01:46] Speaker 01: Yes, Your Honor. [00:01:46] Speaker 01: In this case, definitely, I would agree with that, that collateral ability definitely overlap. [00:01:53] Speaker 01: Yes, ma'am. [00:01:55] Speaker 04: Mr Bruce, could you just do you agree that the standard of review here that we have is abusive discretion. [00:02:00] Speaker 04: No find a waiver. [00:02:05] Speaker 01: No, your honor, the district course decision is not appropriate for that standard of review, but rather de novo the plaintiffs clearly meet the textbook definition of futility. [00:02:17] Speaker 01: It is a challenge to a broad based agency policy, resulting in an unlawful reduction and it is it's a facial challenge to this broad policy which is not bound up with an individual benefit determination as the waiver the waiver question in particular i'm thinking about. [00:02:35] Speaker 03: potentially irreparable harm. [00:02:37] Speaker 03: Under Avocados Plus, hasn't this court said that when we're looking at the non-jurisdictional aspect of the waiver issue, we do review the district court's decision under an abuse of discretion? [00:02:50] Speaker 01: Your Honor, the plaintiff's position is that de novo is appropriate here. [00:02:59] Speaker 01: Certainly, when it comes to the abuse of discretion standard, that standard is also met in this case. [00:03:12] Speaker 01: And I'd be happy to explain why, Your Honor. [00:03:16] Speaker 04: Beginning... If you proceed under that standard of review, that would be helpful. [00:03:20] Speaker 01: Certainly, Your Honor. [00:03:23] Speaker 01: The government attempts to distinguish from the Beeler decision for example by mentioning the fact that the Canadian pension at issue in the Beeler case is. [00:03:37] Speaker 01: is mentioned in the Palms Policy Manual and is partially subject to the windfall elimination provision and partially not. [00:03:45] Speaker 01: And it opposes to that the fact that there are pensions at issue in this case, which are not mentioned in the Palms, is if that were relevant or dispositive, it isn't. [00:03:55] Speaker 01: The only thing that matters is whether or not the plaintiffs are subjected to the unlawful reduction of their benefits. [00:04:05] Speaker 01: Everything that the government has said about two tiered pension systems, voluntary contributions, totalized benefits, a 30 year exemption are all distractions and are irrelevant to whether or not the plaintiffs have been subjected to this policy. [00:04:20] Speaker 01: And they also require a presumption that the government is right on matters pertinent to their substantive merits. [00:04:27] Speaker 01: That is to say, the division of employment into what is covered or non-covered. [00:04:33] Speaker 03: Mr. Bruce, on irreparable harm, and I understand it's your position that any one of the three grounds for waivers suffices, but on irreparable harm, it's your burden. [00:04:42] Speaker 03: And how could we know whether any of these plaintiffs are irreparably harmed by diminution of their social security benefits if we don't even know what their levels are, whether they're people who are really living hand to mouth or whether they're people really at the higher end [00:04:59] Speaker 03: have a lot of means. [00:05:01] Speaker 03: I mean that might make a difference on at least on that element and you're showing your proffered declarations are really quite scanty on those points. [00:05:14] Speaker 01: Your honor, this case involves senior citizens who by definition are living on a fixed income [00:05:21] Speaker 03: Well, no, many senior citizens are not by definition living on a fixed income. [00:05:26] Speaker 03: That's the problem is, as you know, in this country, people receive Social Security for their work, whether they're quite well to do or otherwise. [00:05:34] Speaker 02: And whether they're still working. [00:05:36] Speaker 01: Well, yes, yes. [00:05:39] Speaker 01: But I meant by definition, I meant the fact that the income from their social security is fixed according to governmental standards. [00:05:49] Speaker 01: We respectfully bring the court's attention to the declarations in the record indicating the very palpable harm that those plaintiffs have experienced and also a principle which is well recognized that [00:06:05] Speaker 01: that getting an unexpected reduction in those benefits, which the application of this provision presents to this plaintiff, presents a special kind of irreparable harm or special kind of harm. [00:06:22] Speaker 03: Mr. Bruce, do you agree that just generally, I mean, we don't have the merits before us, but just generally with the characterization in the government's brief at page 13 of [00:06:33] Speaker 03: generally the nature of your legal claims, what the nature of your claims is. [00:06:41] Speaker 03: And I know you objected to the amount of their briefing that focuses on the merits, but in order to pass on your collaterality ground for waiver, it does seem like we need to understand the nature of your claims and whether they are indeed [00:06:56] Speaker 03: you know, general facial challenges to the statute or whether they're much more contextual and turn on the kinds of factual determinations that are for the agency to make in the first instance. [00:07:07] Speaker 03: So I just wonder in terms of for our purposes in applying the collateral analysis, whether you have any disputes with the way the government rather concisely characterizes the claims that you're raising. [00:07:23] Speaker 01: Yes, Your Honor. [00:07:24] Speaker 01: The plaintiffs dispute that on two grounds. [00:07:27] Speaker 01: First is the relevance of those irrelevant criteria that the government evokes, which by definition are irrelevant. [00:07:34] Speaker 03: I'm sorry. [00:07:34] Speaker 03: I think I wasn't clear in my question. [00:07:39] Speaker 03: Just to understand that the way that the windfall elimination provision works is [00:07:48] Speaker 03: a little bit obscure. [00:07:49] Speaker 03: And in order to understand your claims, whether they're categorical, facial, legal claims, it's helpful to have a little bit of a sense of what it is you're challenging. [00:08:01] Speaker 01: Yes. [00:08:02] Speaker 01: Yes, Your Honor. [00:08:04] Speaker 03: And I'm just wondering whether if you turn to the red brief at page 13, there are three bullet points there that describe what the government, I think in quite good faith, is trying to characterize as your claims. [00:08:17] Speaker 03: And I just wonder if you think that's fair, and if not, how you would characterize your claims very succinctly for the court. [00:08:26] Speaker 01: We characterize this claim as an attack on a single simple policy provision, your honor, which is applied to all plaintiffs and which is unlawful. [00:08:37] Speaker 01: The government, by contrast, has brought to court's attention various contextualized agency policy criteria, which by definition do not pertain to any of these plaintiffs, as if to suggest that they are relevant. [00:08:56] Speaker 03: And beyond this, I think you're fighting a softball, but it's your case. [00:09:04] Speaker 01: But your honor, the plaintiffs do not. [00:09:11] Speaker 01: It's what I like to make clear is that the plaintiffs do not expect do not accept the government's characterization of this case. [00:09:20] Speaker 01: in such a way that would argue that it is required for the application of irrelevant agency criteria to be necessary in order to effect an orderly agency process here. [00:09:36] Speaker 01: The plaintiffs are attacking a single provision applicable to all plaintiffs [00:09:42] Speaker 03: Are you arguing on the merits that the windfall elimination provision shouldn't apply because your clients' foreign pension payments are not based on earnings alone, but are based on earnings for which there were also residency requirements? [00:09:57] Speaker 03: Isn't that part of your case? [00:10:00] Speaker 03: The fact that there might be residency requirements on some of the work that your clients did abroad renders them not subject to the windfall elimination provision? [00:10:10] Speaker 01: You know we are arguing that their employment is deemed covered employment under the windfall elimination provisions statute. [00:10:22] Speaker 03: Right under various theories right. [00:10:26] Speaker 01: No, on the on the plain language, your honor of 415 a seven a. [00:10:33] Speaker 01: requires that the service that is designated as employment in an international agreement, by definition, all of the plaintiff's employment has been designated as such in the international agreements. [00:10:50] Speaker 01: So the government is, my understanding, if I understand you correctly, I just want to respond to your question. [00:10:56] Speaker 01: by pointing out that the government's invocation of these various irrelevant criteria, which present exemptions from the application of the windfall elimination provision by definition are not applicable in this case. [00:11:09] Speaker 01: And they require the presumption of the lawfulness of those irrelevant criteria, which is America's position, which is not something which has been briefed yet. [00:11:19] Speaker 01: And it's not something which is an inappropriate presumption to make at this point. [00:11:25] Speaker 01: When one does not presume the lawfulness of the government's divisions into covered or non-covered employment, one cannot go ahead and simply just dismiss this case on the basis of a presumption that its merits are flawed. [00:11:46] Speaker 03: Do my colleagues have further questions? [00:11:49] Speaker 02: Yes, Mr. Bruce. [00:11:55] Speaker 02: The elephant in the room is the government's argument that there's no venue here, that you don't have proper venue for 31. [00:12:01] Speaker 02: I think it is of your 33 plaintiffs, a simple argument based on the straightforward reading of the venue provision. [00:12:11] Speaker 02: And as I recall, [00:12:13] Speaker 02: your responses to that all have to do with what would be good policy. [00:12:20] Speaker 02: Is that correct? [00:12:21] Speaker 01: It certainly does include that, Your Honor, but in addition to that, we would point out that really the only that there is precedent in the Beeler case for establishing venue for those who are outside the jurisdiction. [00:12:34] Speaker 01: In the Beeler case, there was one plaintiff for whom venue was appropriate. [00:12:40] Speaker 01: The lead plaintiff and others outside the jurisdiction were also included along with that plaintiff under the venue provision at 405G. [00:12:48] Speaker 01: And the government did not contest that at that time. [00:12:53] Speaker 03: So it's your position that as a legal matter, venue only need be established for one plaintiff in order for venue to be appropriate. [00:13:02] Speaker 03: And your best case for that [00:13:06] Speaker 01: Our best case for that, well, is Jewish war veterans versus the United States, Your Honor. [00:13:13] Speaker 01: And we also point to Weber versus Norwalk and Califano versus Yamasaki. [00:13:19] Speaker 01: It is true that this court has not specifically addressed whether under 405G, if venue is proper for one, it's proper for all, but it has addressed whether that is the case under 1391. [00:13:33] Speaker 01: and 405G has the same statutory language, the plaintiff, which has been construed to mean a plaintiff, and to reach opposite conclusions on the basis of the same statutory language that violate principles of statutory construction, as well as those policy concerns that Judge Ginsburg mentioned. [00:13:57] Speaker 02: So the Beeler case is on the Social Security Act, and the other cases you cited are on other venue provisions, correct? [00:14:05] Speaker 02: Yes, sir. [00:14:07] Speaker 02: And those were all Supreme Court cases, I believe? [00:14:13] Speaker 02: Dealing with the statutes? [00:14:14] Speaker 02: Or two of them anyway, I think. [00:14:16] Speaker 02: Is that correct? [00:14:17] Speaker 02: Two of them, Your Honor. [00:14:19] Speaker 02: Yes, sir. [00:14:20] Speaker 02: So I'm not sure why you think it's open to us. [00:14:25] Speaker 02: to depart from the plain reading of the statute when the only counterindication, well, not the only, the principal counterindication is that the Seventh Circuit would disagree with that on this statute and that the Supreme Court has broadened the reading of the venue provision on other statutes, but not this one. [00:14:52] Speaker 02: I mean, it might be a good argument for the Supreme Court [00:14:56] Speaker 02: since they've been receptive in some of these other cases, but I don't see, I think it would take a bold circuit court, let's put it that way, to advance, to accept your position that the means A. The district of Arizona, [00:15:19] Speaker 01: Uh, your honor. [00:15:20] Speaker 02: Well, the seventh circuit tells us more, it's more important. [00:15:25] Speaker 02: I know that's your, is that whatever the cases that's your, uh, that's for me, I guess. [00:15:31] Speaker 02: Yes. [00:15:31] Speaker 02: Right. [00:15:32] Speaker 02: Yeah. [00:15:32] Speaker 02: That's that one's, um, right on point. [00:15:36] Speaker 02: And there's that pending appeal. [00:15:40] Speaker 01: I'm sorry, sir. [00:15:40] Speaker 01: Could you repeat that? [00:15:41] Speaker 02: Is that case pending appeal or is that, oh no, it's long settled. [00:15:44] Speaker 02: Sorry. [00:15:45] Speaker 01: Okay. [00:15:49] Speaker 01: Well, thank you. [00:15:50] Speaker 01: If there are no further questions at this point, I would rest. [00:15:59] Speaker 03: Right. [00:15:59] Speaker 03: Thank you. [00:15:59] Speaker 03: We'll give you a couple of minutes for rebuttal. [00:16:02] Speaker 03: And we'll hear now from Ms. [00:16:04] Speaker 03: Soni. [00:16:09] Speaker 05: May it please the court, Sushma Soni, Department of Justice. [00:16:12] Speaker 05: I'd like to clarify [00:16:13] Speaker 05: One thing initially, which is that my opposing counsel's references to the Bieler decision that went in their favor were all district court decisions. [00:16:25] Speaker 05: And because the government won on the merits, none of those initial decisions like class certification or venue were decided. [00:16:35] Speaker 05: When plaintiff refers to [00:16:39] Speaker 05: what happened in Beeler, Beeler was a class action. [00:16:42] Speaker 05: And the general rule in class actions is that only the named plaintiffs need established venue. [00:16:50] Speaker 05: So it isn't necessary. [00:16:51] Speaker 03: And or exhaustion as well, right? [00:16:53] Speaker 05: Yes. [00:16:54] Speaker 03: But they filed as a putative class action. [00:16:57] Speaker 03: So wasn't it error for the district court not to treat it as a class action unless and until he crossed that bridge and decided the class issue on its merits? [00:17:07] Speaker 05: No, Your Honor. [00:17:08] Speaker 05: In this case, the plaintiffs did not, they styled it as a punitive class action, but that has no legal consequences until they have actually, the district court has certified the class here. [00:17:22] Speaker 05: They never moved for class certification even after a year. [00:17:26] Speaker 05: In fact, when the court disposed of the government's dispositive motion, there was no pending motion for class certification. [00:17:35] Speaker 05: So, in this case, it was irrelevant, they had to all establish venue and then. [00:17:43] Speaker 03: You refer to to Bealer as sort of sweeping away what the district court decided on venue but what about on exhaustion I mean Bealer really shows that. [00:17:56] Speaker 03: The legal issues are facial and susceptible of decision without getting into the weeds of administrative processing on the claims. [00:18:04] Speaker 03: I mean, you don't think there was any error in the Seventh Circuit decision in Beeler, do you? [00:18:09] Speaker 05: Your Honor, the district court was the one that decided on exhaustion. [00:18:14] Speaker 05: The Seventh Circuit never addressed it. [00:18:17] Speaker 03: Right. [00:18:17] Speaker 03: But they didn't need to. [00:18:18] Speaker 03: I mean, that's my point. [00:18:20] Speaker 03: So first, you don't disagree with or find flawed any aspect of the Beeler decision by the Court of Appeals? [00:18:27] Speaker 03: Do you? [00:18:28] Speaker 05: Not by the Court of Appeals, but the government did not challenge the exhaustion decision by the district court because we want on the merits. [00:18:38] Speaker 03: Exactly. [00:18:38] Speaker 03: But if the merits is susceptible of accurate determination in the absence of exhaustion, the question is, why isn't the Beeler decision, Exhibit A, [00:18:51] Speaker 03: why these plaintiffs in this case should not be required to wait many more years and flounder through the administrative process without the guidance of a decision from our court akin to the guidance that the Beeler case offers in the Seventh Circuit. [00:19:09] Speaker 05: I think the best way to answer your honor's question directly is to give a concrete example of what would have been the benefit for Mr. Pezos, one of the two individuals for whom venue was proper, if he had gone through the process. [00:19:24] Speaker 05: What kind of information could have been elicited that would have been helpful here? [00:19:31] Speaker 05: And I know that my opposing counsel says that this is all irrelevant and a distraction, and none of it applies to these plaintiffs. [00:19:39] Speaker 05: but you'll notice that both in their reply brief and on appeal and here in court, he does not cite the record to support this assertion that it's all irrelevant because there is nothing in the record for these individuals. [00:19:55] Speaker 05: So let's take Mr. Pezos as an example. [00:19:59] Speaker 05: He received an initial determination, that's it. [00:20:03] Speaker 05: All it says is how much money he is going to receive per month [00:20:07] Speaker 05: that they took into account, he worked an additional year and that his payment is reduced because he is also receiving a pension that was based on work that was not covered by social security taxes. [00:20:20] Speaker 05: That's all it says. [00:20:22] Speaker 05: And then it has additional information about how to apply for Medicaid and other things like that. [00:20:28] Speaker 05: He then goes directly to district court. [00:20:30] Speaker 05: So what we have in the record is that one four page document for him. [00:20:36] Speaker 05: If he had gone through the process, the agency would have looked into what type of pension he received because the initial determination doesn't even say that he's receiving a Greek pension. [00:20:50] Speaker 05: And as it turns out, there are several types of Greek social security payments, just as there are for other courts. [00:20:57] Speaker 03: So they don't just sketch for us where I thought the fact the flushing out of the facts and the close questioning that you refer to. [00:21:05] Speaker 03: happens at the first stage is that wrong, just if you would sketch for us the administrative process and when the details of what kind of pension is being. [00:21:17] Speaker 03: is being received from abroad and what's the nature of that work and what is one of the terms of the. [00:21:25] Speaker 03: of the totalization agreement with that country, that those fact-intensive determinations, they don't happen in the first stage? [00:21:33] Speaker 05: No, Your Honor, that's the intake stage where the individual meets usually with a representative and provides the information that they have. [00:21:42] Speaker 05: And there is close questioning at that point, but it continues throughout the process. [00:21:47] Speaker 05: So for instance, additional information is provided [00:21:51] Speaker 05: with the reconsideration decision. [00:21:54] Speaker 05: You can see some examples of that in the record for some of these. [00:21:56] Speaker 03: So step one is the intake stage, and that's the stage that Mr. Pezos has gone through? [00:22:02] Speaker 05: So the first step is, of course, the presentment before the administrative process. [00:22:07] Speaker 05: The four-step administrative process starts with the initial determination, which Mr. Pezos received. [00:22:14] Speaker 05: And it had just the information that I listed to you. [00:22:17] Speaker 05: In fact, it's at, I believe, 215 of the Joint Appendix. [00:22:22] Speaker 05: So you can see it. [00:22:23] Speaker 05: So the next stage is if he had sought reconsideration, [00:22:28] Speaker 05: At that point, he could say, here are the reasons why I think that you were wrong. [00:22:34] Speaker 05: And the agency would then look closely at the information on his pension. [00:22:39] Speaker 05: What type of pension did he receive? [00:22:41] Speaker 05: They would look into whether it was, in fact, earnings-based, residence-based, citizenship-based, based on voluntary contributions or financial need or anything else, or some combination of those. [00:22:55] Speaker 03: So the determination that's been made with respect to Mr. Pezos has not taken into account these basic things like what type of pension was it? [00:23:06] Speaker 03: Was it based on earnings or residence? [00:23:09] Speaker 03: None of that has been considered? [00:23:10] Speaker 05: Not yet, because all he did apparently was say, [00:23:14] Speaker 05: that he was receiving a pension that was not from non-covered employment. [00:23:19] Speaker 05: So then at that point, Your Honor, all this additional information comes in and he can request to go before an administrative law judge. [00:23:27] Speaker 05: As you know, the whole process is not- That's the step two reconsideration. [00:23:30] Speaker 03: I just like a quick, if you could just quickly sketch for us. [00:23:33] Speaker 03: So step one is the intake stage. [00:23:35] Speaker 03: Step two, you said if he seeks reconsideration, then that goes to the ALJ? [00:23:41] Speaker 05: So step one is initial determination. [00:23:44] Speaker 05: Step two is the reconsideration decision, requesting reconsideration. [00:23:50] Speaker 05: Step three [00:23:51] Speaker 05: is the hearing before the administrative law judge and decision-making. [00:23:55] Speaker 05: And step four is review by the appeals council. [00:23:59] Speaker 05: And at every stage, there can be additional questioning and there will be additional investigation of what the evidence that the individual has put forward. [00:24:10] Speaker 05: They will check whether this was a payment that was pursuant to an international agreement. [00:24:16] Speaker 05: They will look into whether sometimes individuals, Mr. Pezos could say, [00:24:20] Speaker 05: For instance, I worked in Greece before there was an international agreement with Greece, and therefore I was subject to dual taxation. [00:24:30] Speaker 05: It's the kind of thing that can come out. [00:24:32] Speaker 03: But none of that is looked into when the agency on its own makes the initial determination. [00:24:38] Speaker 05: No, because for the international side, we are initially reliant upon information that the individual brings forward. [00:24:46] Speaker 05: Now for the individuals covered employment within the United States, the agency does have a record, and that's also quite important because there are exceptions that apply. [00:24:58] Speaker 05: for instance, for an individual who has worked in 30 years of covered employment. [00:25:03] Speaker 05: So the agency would, if you look at some of these reconsideration decisions, you'll see reconsideration decision. [00:25:10] Speaker 05: We'll typically have a listing of covered employment by year and the amount of the earnings. [00:25:17] Speaker 05: And so then you can see did the individual work for 30 years in which case they are exempt from the from the windfall provision, or if not, you know, this is typically where an individual can say, some of my years earnings are missing. [00:25:31] Speaker 05: And there will be some back and forth because it is non-adversarial. [00:25:35] Speaker 05: They can say, I have payroll stubs that show that I actually did pay social security. [00:25:40] Speaker 05: I don't know why my employer didn't put this in. [00:25:43] Speaker 05: And there will be some back and forth. [00:25:45] Speaker 05: And it may be that the individual is entitled to a full exemption. [00:25:49] Speaker 05: Or if you worked between 20 and 30 years, you get a reduction in the effect of the windfall provision. [00:25:56] Speaker 03: But this is actually slightly shocking to me, just to be candid, that given the fact that the information on the foreign income is not in US databases, at step one, when the determinations, the raw determinations of benefits and the application of the windfall elimination provision is done, it's done in what is admittedly a very over [00:26:26] Speaker 03: over inclusive application. [00:26:28] Speaker 03: You just take all foreign income and assume that it's subject to the windfall elimination provision. [00:26:32] Speaker 03: And only if the individual seeks reconsideration and presents more granular information is that carved back to exclude things that would not cause the windfall and therefore aren't properly counted against the U.S. [00:26:50] Speaker 03: pension. [00:26:51] Speaker 03: Is that right? [00:26:52] Speaker 05: Yes, Your Honor, because you have to look at who has that information. [00:26:56] Speaker 03: I understand that. [00:26:57] Speaker 03: But there's not a, the person has to take initiative. [00:27:01] Speaker 03: If they trust the government and think, you know, the government's expert on this, I had foreign earnings and I had US earnings. [00:27:08] Speaker 03: And if it turns out that the foreign pension is not the kind that triggers the windfall elimination provision, the person is never the wiser that it's on them to raise that. [00:27:21] Speaker 05: Your Honor, that's why this is the first step in the process. [00:27:24] Speaker 03: But the second step depends on someone objecting. [00:27:29] Speaker 03: Is that right? [00:27:31] Speaker 03: It's not something that the administration would take you through and say, here's a questionnaire, by the way, we don't have this information, you need to let us know these chapter and verse. [00:27:42] Speaker 05: Your honor, if you look at the initial determination, you will see that there it says, you know, do you have any questions if you want to appeal, it gives it lays it out. [00:27:51] Speaker 05: The expectation is that this is the first step in the process with the individual. [00:27:56] Speaker 05: And so even if at the end of [00:28:00] Speaker 05: this entire process, the individual ends up with the same benefit or maybe simply gets a little bit more. [00:28:08] Speaker 05: Maybe the windfall provision is not completely removed. [00:28:12] Speaker 05: Nonetheless, what you have at the end of that process is the agency had a chance to correct its errors. [00:28:18] Speaker 05: It had a chance to reconsider how it applies the provision. [00:28:23] Speaker 05: you end up with a reasoned and usually much more elaborate decision explaining why it applied the provision, and you have an administrative record, which you do not have for these two individuals, Mr. Pezos and Mr. Jones. [00:28:38] Speaker 03: But what again I go back to the question I started with, which is, [00:28:42] Speaker 03: In Beeler, the general decisions about the law, about whether the definition of employment is consistent throughout or is broader under what is 410 or 411, those are high-level legal determinations that can be sorted out and made clear as they were in Beeler. [00:29:06] Speaker 03: application of those, it would seem to me would be much sort of surer if our circuit, like the Seventh Circuit, had a definitive legal ruling on the facial challenges now. [00:29:21] Speaker 03: I'm just trying to sort of understand why [00:29:26] Speaker 03: your triumph isn't making you want the same opportunity now rather than many years down the road. [00:29:35] Speaker 03: I'm not persuaded yet, although I'm open to persuasion, that the details in the individual cases bear on those general legal questions. [00:29:46] Speaker 03: They certainly bear on the individual's takeaway at the end of the day. [00:29:50] Speaker 03: But does the answer to those questions as a statutory, regulatory, and policy matter [00:29:56] Speaker 03: turn on how it's going to affect the pensions of these people? [00:30:02] Speaker 05: Your Honor, I'd start with the fact that this is a very different case with respect to the individual plaintiffs than Beeler. [00:30:10] Speaker 05: I don't believe any of the [00:30:13] Speaker 05: If you look at Ms. [00:30:14] Speaker 05: Bieler herself, she went through, I believe, almost the entire process by the time she filed suit. [00:30:19] Speaker 05: And I believe she had exhausted remedies by the time it got to the question of class certification. [00:30:25] Speaker 05: Here, the only two individuals that we are concerned with, Mr. Jones and Mr. Pezos, took no further steps. [00:30:32] Speaker 05: And therefore, we have no information about whether the provision, whether there were reasons why this provision would not have applied. [00:30:43] Speaker 05: The plaintiff spends a lot of time saying that this is a blanket, one size fits all application of the statute. [00:30:54] Speaker 05: And we spend the same amount of time saying, no, it is a highly individualized and very context-driven determination for each one of these plaintiffs. [00:31:04] Speaker 05: Now, that is why in virtually every other case challenging the windfall provision, and there have been cases in almost every circuit involving exceptions to the windfall provision, like the uniform services exception, which was recently heard in the Supreme Court, in all of those cases, [00:31:23] Speaker 05: These proceed as individual claims that go through the administrative process and then go to district court. [00:31:31] Speaker 04: Miss Sony, can I just ask you maybe a more legal question? [00:31:37] Speaker 04: So is it the is it the Social Security Administration's consistent position that for waiver of exhaustion, you need that the three circumstances are disjunctive? [00:31:48] Speaker 04: Is that a consistent position that the government has taken in these cases? [00:31:54] Speaker 05: Your honor, the different circuits have different standards on this. [00:31:59] Speaker 05: So for instance, in the seventh circuit, you had to show all three criteria were met, but they were satisfied under state law by a lesser showing than they are in this circuit. [00:32:12] Speaker 05: So we have to go by what the circuits, the way that the circuits approach this. [00:32:17] Speaker 04: That's an open question in our circuit, whether you need all three or just one. [00:32:23] Speaker 04: So if we were to find that one of the circumstances applied here for Mr. Jones or Mr. Peisos, then would we need to decide whether all three circumstances needed to be met? [00:32:37] Speaker 04: Would we need to reach that question? [00:32:39] Speaker 05: It would depend on which of the factors you thought was met here. [00:32:47] Speaker 05: For instance, the only case I'm aware of, I believe it was Tataranovich, in which the court suggested that perhaps you only needed to show one factor. [00:33:01] Speaker 05: That case involved futility and the court expressly stated that the purposes [00:33:09] Speaker 05: of exhaustion would not be served by requiring the individual to go through the administrative process. [00:33:17] Speaker 05: And that's a question the Supreme Court has asked in cases like Matthew versus Eldridge or City of New York. [00:33:26] Speaker 05: Here you reach the opposite conclusion. [00:33:28] Speaker 05: You would say, [00:33:30] Speaker 05: Here, it would have been very helpful for the plaintiffs to go through that process because we would have a record. [00:33:37] Speaker 05: It ends instead they went directly to district court with a record that for these two individuals Jones Mr Jones and Mr pays us consists. [00:33:46] Speaker 05: of one four-page initial determination for Mr. Pezos and nothing for Mr. Jones. [00:33:53] Speaker 05: And the district court is expected to evaluate the agency's decision-making in applying the windfall provision to these individuals [00:34:04] Speaker 05: with no reason, no explanation, and no record. [00:34:10] Speaker 05: That is one of the reasons why. [00:34:13] Speaker 03: But Ms. [00:34:13] Speaker 03: Stoney, one of the things the plaintiffs are challenging is the definition of employment under Section 410. [00:34:19] Speaker 03: Same issue that was one of the issues that was up before the Seventh Circuit in Beeler. [00:34:25] Speaker 03: There was no problem in that case of the district court and the court of appeals saying, [00:34:32] Speaker 03: plaintiffs are wrong about their definition of employment under Section 410 and that's not going to be illuminated one way or the other by factual development. [00:34:42] Speaker 03: In fact, they have a class action so we can be confident that some members of the class are that it's a live dispute because some members of the class have employment that would be [00:34:53] Speaker 03: We did one way under their theory and a different way under the government's theory. [00:34:57] Speaker 03: So I guess I'm just not really understanding why this isn't collateral in the same way, because it's raising the same claims that were raised in Beeler. [00:35:08] Speaker 05: So just to be clear, Your Honor, this is not a class action. [00:35:11] Speaker 03: They're raising it as a class action. [00:35:13] Speaker 05: Yeah. [00:35:13] Speaker 05: But it is not a class action at this point. [00:35:16] Speaker 05: Yeah. [00:35:16] Speaker 05: It's these individuals. [00:35:18] Speaker 05: So the, and now I've lost my train of thought. [00:35:22] Speaker 05: I apologize. [00:35:23] Speaker 03: It's the question why it's not a collateral legal question. [00:35:26] Speaker 05: Okay. [00:35:27] Speaker 05: It is no more collateral than your honor, heckler versus Ringer, where likewise the individual there said, I'm not challenging benefits. [00:35:37] Speaker 05: I have a pure legal question. [00:35:39] Speaker 05: It is whether in fact this surgery is necessary and appropriate. [00:35:45] Speaker 05: And what the Supreme court said was, [00:35:47] Speaker 05: That is, in essence, a claim for benefits. [00:35:50] Speaker 05: And here we can look directly at the plaintiff's complaint. [00:35:55] Speaker 05: What did they ask for? [00:35:56] Speaker 05: They asked for recalculation of their benefits and an award of back benefits. [00:36:02] Speaker 05: This is not related to a claim for benefits. [00:36:04] Speaker 05: This is a claim for benefits. [00:36:06] Speaker 05: And claims for benefits have to go through the administrative process. [00:36:11] Speaker 05: As the Supreme Court has said, [00:36:12] Speaker 05: This act channels virtually all legal challenges through the administrative process. [00:36:19] Speaker 05: And at the end of that, the agency gets a chance to refine the issues maybe reduce the number of issues that go to the to the district court. [00:36:29] Speaker 05: and maybe the plaintiff actually, his claim is resolved. [00:36:35] Speaker 05: There have been, as the plaintiffs themselves pointed out to the district court, several non-plaintiff individuals who prevailed during the administrative process and one plaintiff. [00:36:47] Speaker 02: So it's not- Council isn't also possible that the two persons here may, after full determination, not be entitled to any more money at all. [00:36:57] Speaker 03: That is possible. [00:36:59] Speaker 03: That's always possible. [00:36:59] Speaker 03: Even under their own theory. [00:37:01] Speaker 02: Yeah. [00:37:01] Speaker 05: Yes, Your Honor. [00:37:02] Speaker 02: We just don't know anything about them. [00:37:04] Speaker 05: We know nothing about them. [00:37:06] Speaker 05: We know a very small amount from the complaint. [00:37:10] Speaker 05: But for instance, for Mr. Pezos, just getting back to him, neither the initial determination, because it never contains this kind of information, nor the complaint even says how many years he worked in the United States and how many years he worked in Greece. [00:37:25] Speaker 05: That information just isn't in the case. [00:37:28] Speaker 05: For Mr. Jones, we have no information in the administrative record because the plaintiff's counsel did not provide his social security number and the agency was unable to pull his records and compile them into the administrative record. [00:37:44] Speaker 05: And in fact, that was the case for several other plaintiffs as well, which is why their information is not in the administrative record. [00:37:53] Speaker 03: If these claims are dismissed for want of venue or for want of exhaustion, presumably they could be refiled in the appropriate court after the requisite exhaustion work was completed. [00:38:07] Speaker 05: It depends, Your Honor. [00:38:09] Speaker 05: If the district court had simply dismissed those 31 individuals for improper venue, that is usually a dismissal without prejudice. [00:38:23] Speaker 05: and the individuals are free to refile in the appropriate venue. [00:38:28] Speaker 05: Here, there was also a determination about exhaustion of remedies from Mr. Jones and Mr. Pezos, but the court dropped a footnote saying that its analysis on exhaustion also applied to all the other plaintiffs except plaintiff Merkel who never presented a claim. [00:38:46] Speaker 05: So it would depend on the preclusive effect of the different parts of the court's judgment. [00:38:53] Speaker 03: Why would a failure to exhaust determination potentially be preclusive of an ability of that individual to go in and then exhaust? [00:39:02] Speaker 05: It might fall within a line of cases, Your Honor, where if the dismissal for improper venue is coupled with another disposition, that then it is treated as a dismissal with prejudice. [00:39:16] Speaker 03: And are those cases you cited or that you can cite to us? [00:39:20] Speaker 05: No, Your Honor, I don't have them with me. [00:39:22] Speaker 05: This is something I looked up after the briefing. [00:39:27] Speaker 03: So what I'm concerned about, obviously, is if these plaintiffs are sent back to the administrative process to work it through, especially given what you said about the initial intake stage and how incomplete that is and how much the accuracy of the Social Security Administration's determinations of application of the windfall elimination provision [00:39:49] Speaker 03: depend on the full process, these people are not just going to be precluded and or time barred by their participation in this case, are they? [00:40:01] Speaker 05: So for some of them, there will be timeliness issues. [00:40:05] Speaker 05: I mean, I believe Mr. Lunt, his initial determination was in 2004. [00:40:10] Speaker 05: So that was a considerable amount of time before they filed suit in 2016. [00:40:15] Speaker 05: Other individuals actually were much like Mr. Pezos himself. [00:40:18] Speaker 05: were received determinations in 2016. [00:40:21] Speaker 05: He was actually within 60 days of the filing of suit, and several others I think as well are more in his shoes. [00:40:30] Speaker 05: There are mechanisms, regulations that the agency has for reopening the administrative proceedings, also for excusing missed deadlines. [00:40:44] Speaker 05: The plaintiffs would have to apply and they claim that they fell within the regulations and it's very fact dependent. [00:40:54] Speaker 05: So one could not speak to whether any of them would qualify, but those would be paths that would be open to them. [00:41:04] Speaker 05: But as I said, for many of them, I think I counted in the administrative record, perhaps two thirds of the people in the administrative record, their last contact with the agency was before 2010. [00:41:16] Speaker 05: So six years before. [00:41:18] Speaker 03: If I'm receiving today a pension that's unlawfully low because of an over elimination of [00:41:32] Speaker 03: offsetting of a foreign pension against my social security payment. [00:41:38] Speaker 03: I'm still receiving it today, erroneously. [00:41:40] Speaker 03: I can't go back to the agency and say, it's only come to my attention now that this is unlawfully low. [00:41:47] Speaker 03: And at least going forward from now on, I'd like it to be corrected. [00:41:52] Speaker 03: Is that not an available, timely administrative course for a person to take? [00:41:59] Speaker 05: I think one that seems to me, Your Honor, would fall within a request for reopening. [00:42:04] Speaker 05: And you would give your reasons why. [00:42:05] Speaker 05: I can't state with any certainty whether those are grounds that are permitted by the regulation. [00:42:11] Speaker 05: I would point the court to city of New York where the court said that there were a number of people who I think were erroneously included in the class whose claims had lapsed. [00:42:23] Speaker 05: And the court said that its ruling was not going to apply to them. [00:42:27] Speaker 05: So if you let your claims lapse, you do not pursue the administrative process. [00:42:33] Speaker 05: Generally, even in a class action, you're not part of the class that gets relief. [00:42:38] Speaker 05: There is some onus on the individual, Your Honor. [00:42:42] Speaker 02: Indeed, as I go back to the initial determination, counsel, at the top of 217, I see we have enclosed a pamphlet, your payments while you are outside the US. [00:42:53] Speaker 02: It tells you what must be reported and how to report. [00:42:56] Speaker 02: So that is, of course, why you described the initial stage as not including any of that information. [00:43:05] Speaker 05: And in fact, Your Honor, all along, there has been information available in the regulations. [00:43:11] Speaker 05: The agency's regulations on the windfall provision were published in 1987, and there's been information online for as long as the agency has been online. [00:43:20] Speaker 05: So it is not, this information is not hidden from individuals. [00:43:24] Speaker 05: It is provided to them. [00:43:26] Speaker 02: Is there in general a Hobbs Act type 60 day period for appeal? [00:43:32] Speaker 05: There is a 60 day provision that the individual has to appeal after receiving the final decision that's in section 405. [00:43:39] Speaker 02: After getting the final decision. [00:43:41] Speaker 05: Right. [00:43:42] Speaker 05: But if the court were to, you know, judicially waive some steps or the secretary were to waive completion of some steps, you would still have to file within 60 days. [00:43:54] Speaker 02: Of the court's decision. [00:43:55] Speaker 03: Right. [00:43:55] Speaker 03: And how about an administrative timeline? [00:43:57] Speaker 03: What's the... [00:43:59] Speaker 03: from, for example, an initial determination. [00:44:02] Speaker 03: If you get an initial determination and you are trusting Seoul and think that the government must have gotten it right, as omniscient as we all know the government to be about affairs, domestic and foreign, then later you realize by reading news of Mr. Bruce and his colleagues' cases that maybe you have an issue. [00:44:26] Speaker 03: You'd have to move to reopen your case. [00:44:30] Speaker 03: What's the basic time limitation on between initial determination and when you'd have to? [00:44:36] Speaker 03: question it. [00:44:37] Speaker 05: Well on page 217, which Judge Ginsburg has just referred us to, it says you have 60 days to ask for an appeal. [00:44:45] Speaker 03: Got it. [00:44:46] Speaker 05: I see it. [00:44:47] Speaker 05: I don't know if it is 60 days at each point, so then 60 days after the reconsideration decision to ask for an ALJ hearing, [00:44:56] Speaker 05: I think every single time that you, the claimant, receives a communication from the agency, it's going to tell you exactly how much time you have and what you need to do in order to take that further step. [00:45:08] Speaker 05: That's part of it. [00:45:08] Speaker 03: Is there anything in this, in what's sent after the initial determination that describes the kind of more what I referred to before as the more granular issues about kinds of foreign payments that might or might not [00:45:23] Speaker 03: have appropriately been taken into account, or is that something some there is. [00:45:27] Speaker 03: Oh, do they do they get, do they get you know the, the two pager on the windfall elimination provision or anything like that. [00:45:35] Speaker 05: I apologize your honor I miss I misunderstood. [00:45:41] Speaker 05: I took your question mean do they receive anything further from the agency in this form of the agency decision and the reconsideration decision will often go into more detail on things. [00:45:51] Speaker 03: I was just saying, you know, because it's on the onus is on the recipient to realize that the initial determination is really a very rough cut. [00:46:04] Speaker 03: given that the agency doesn't have the information on the foreign income unless and until the recipient provides it, is there anything that's routinely given to someone after the initial determination that alerts them to that fact? [00:46:18] Speaker 03: Hey, by the way, this is a rough cut. [00:46:21] Speaker 03: We don't have anything more on your foreign income than what you tell us. [00:46:25] Speaker 03: And here are some of the issues that you might want to take up. [00:46:30] Speaker 03: Nothing like that. [00:46:31] Speaker 02: as it tells you what must be reported and how to report. [00:46:35] Speaker 03: Where are you looking, Doug? [00:46:37] Speaker 02: 217. [00:46:37] Speaker 03: 217. [00:46:42] Speaker 02: Very tough. [00:46:46] Speaker 03: Your payments while you were outside the United States. [00:46:52] Speaker 02: In the next sentence, yeah. [00:46:54] Speaker 03: Yeah, so we don't have that, but we could presumably look it up. [00:46:59] Speaker 05: Right, like I said, your honor, I mean the regulations and the regulations and the manual provisions are included in the addendum to our brief. [00:47:08] Speaker 05: they provide a pretty, as you said, Your Honor, the term granular description of all the kinds of information that's relevant. [00:47:17] Speaker 05: And then they are fairly easy to look up online. [00:47:20] Speaker 05: And they go through all the different steps as I attempted to do with Mr. Pezos' case, all the different ways in which, you know, the different distinctions between different kinds of [00:47:32] Speaker 05: foreign social security payments and what is relevant and you know for purposes the windfall provision and what takes it out of the wind the realm of triggering the windfall provision at all so there is a lot of information out there this is 32 pages but i gather it's not one doc no this is assembled from different documents or different portions of the palms yes your honor at least half of it is [00:48:03] Speaker 05: If, if your honor would like I can certainly ask the agency if there is anything that is routinely sent. [00:48:09] Speaker 03: Well we see this, it appears that it is this this pamphlet. [00:48:16] Speaker 03: about payments. [00:48:18] Speaker 03: Well, your payments while you are outside. [00:48:20] Speaker 03: I think actually this goes to sending payments overseas. [00:48:25] Speaker 03: Actually, this is a different, this is a different issue. [00:48:28] Speaker 03: So this, this goes to, you know, if you're living overseas and you want us to send you your [00:48:35] Speaker 03: social security payments as a result of the initial determination, we can't send them to you if you live in Cuba or North Korea. [00:48:42] Speaker 03: We can't send them if you're in Azerbaijan. [00:48:46] Speaker 03: So it's actually quite a different question. [00:48:49] Speaker 03: Although this is the kind of thing I'm looking for is whether there's any reason for the trusting Seoul [00:48:56] Speaker 03: who has an initial determination to realize what a rough cut that is, or before the initial determination, if there's any routine way that the Social Security Administration tells people before intake or at intake, look, if you got foreign income, here's the questionnaire of the kinds of things we need to know. [00:49:17] Speaker 03: you know, is the foreign pension because you live there or is it because you work there? [00:49:21] Speaker 03: Is it because you work there for a private employer? [00:49:24] Speaker 03: Did you pay social security taxes in the US on your foreign income? [00:49:27] Speaker 03: That kind of thing. [00:49:28] Speaker 03: Like obviously that's what's eventually needed in the administrative process. [00:49:33] Speaker 03: And I just wonder when that's elicited. [00:49:35] Speaker 05: I think that information does come out. [00:49:40] Speaker 05: throughout the administrative process. [00:49:43] Speaker 05: Again, there are many opportunities for questioning. [00:49:47] Speaker 05: If you read through any of the ALJ hearings, you'll see that a lot of times the ALJs will question the claimants quite closely and generally to elicit information that ends up being to their benefit. [00:49:58] Speaker 05: So that kind of information can come out there. [00:50:02] Speaker 05: If your honor would like for me to find out from the agency, I can do that and send a letter to the court, but I think this or this court does not necessarily need that information to affirm the decision of the district court. [00:50:14] Speaker 03: Right. [00:50:16] Speaker 03: It's all about trying to understand how the how the administrative process interacts with the claims here. [00:50:22] Speaker 05: Right, it is conceived to be, you know, a multi step process that is highly interactive and highly collaborative and non adversarial with the claimant. [00:50:35] Speaker 05: claimants generally do not like having their benefits reduced and they generally do question and they do take their appeals. [00:50:45] Speaker 05: That has not been a problem. [00:50:49] Speaker 05: It's not like there's no dearth of appeals going on. [00:50:53] Speaker 03: And this Mr. Pezos, this is the result of the initial determination, this JA 215. [00:51:01] Speaker 05: Yes, Your Honor, that is the only document for him in the record. [00:51:04] Speaker 03: And that's the result of the initial children's donation. [00:51:05] Speaker 03: So they do have an alert at the bottom of 215. [00:51:08] Speaker 03: It's a different citation, but to the to the windfall elimination provision at the top of 260 to learn more about why we reduce. [00:51:16] Speaker 03: So we did reduce based on your foreign income and to learn more about why there's a there's a site there. [00:51:24] Speaker 05: Right, so it actually does not say that it's reduced based on foreign income, just to clarify. [00:51:30] Speaker 05: It says it's reduced based on your receipt of a pension based on work not covered by social security taxes, because the windfall provision also applies to individuals for an entire time in this country. [00:51:47] Speaker 03: I wanna be sure and address that. [00:51:48] Speaker 03: Work not covered by social security, yep. [00:51:50] Speaker 05: Yes, your honor. [00:51:51] Speaker 05: including federal civil servants and state and local employees, firefighters and police officers. [00:52:02] Speaker 05: Railroad workers. [00:52:04] Speaker 05: Beg your pardon? [00:52:05] Speaker 05: Railroad workers. [00:52:07] Speaker 05: Yes, your honor. [00:52:08] Speaker 05: There are quite a number of exceptions. [00:52:09] Speaker 05: And that's why we want to make sure, the agency wants to make sure that if people are entitled to an exception, that they get the benefit of it. [00:52:17] Speaker 05: But you can't [00:52:18] Speaker 05: Give them the benefit of it if you don't have any information on them. [00:52:24] Speaker 02: So a remand in this case, which is what the parties asked for, would be a remand to make a proceed to continue further on the basis of an administrative record that is devoid of relevant information. [00:52:38] Speaker 05: That is correct, Your Honor. [00:52:39] Speaker 05: I mean, on the part of Mr. Jones, there is nothing. [00:52:43] Speaker 02: OK. [00:52:45] Speaker 05: I want to make sure and answer any questions that the court may have, but I've run way past my time. [00:52:51] Speaker 05: I apologize. [00:52:54] Speaker 03: We have a habit of doing that. [00:52:56] Speaker 02: No need to apologize. [00:52:56] Speaker 02: You're just answering our questions. [00:52:58] Speaker 05: Well, if there are no further questions, I would ask the court to affirm the decision of the district court. [00:53:04] Speaker 03: Thank you. [00:53:07] Speaker 03: So I believe we ran through Mr. Bruce's time, but we will give you, Mr. Bruce, a couple of minutes for rebuttal. [00:53:16] Speaker 03: I did have one question, which is, am I right to think that your clients are proceeding through the administrative process, even while they're seeking to bring this case in federal court? [00:53:27] Speaker 03: We don't have a group of people here who have foregone the administrative process altogether, do we? [00:53:33] Speaker 01: Some of them have had ongoing cases during dependency of this case plaintiff William Tran, and I'm aware of that case, how about generally the other plaintiffs will know your honor because they're outside the 60 day window. [00:53:47] Speaker 01: And those plaintiffs, by the way, had no idea that there was a possibility of being able to successfully appeal this case. [00:53:54] Speaker 01: So when the council claims with reference to nothing in the record that there's no problem with bringing appeals and that they do it all the time and that the agency welcomes that, that is not supported by the actual declarations that are in the record, that in fact, that there was no understanding at all that there was any possibility of prevailing in this agency policy. [00:54:17] Speaker 01: But beyond that your honor, I would state that the Council's characterization of the appellate process and the agency as being itself simply identical to the initial fact building process is wrong. [00:54:33] Speaker 01: support for that in the law, in fact, or in logic, when we only look at the initial documents that are uniform sent to every single plaintiff in the record, which they say the very first communication they get from the agency says you receive a non-covered pension, you are subject to a reduction, you have 60 days to appeal. [00:54:54] Speaker 01: Of course, an agency's appellate body will look into facts. [00:54:59] Speaker 01: There's no indication whatsoever, because it doesn't exist, that this process is merely provisional. [00:55:05] Speaker 01: And as we go along, we are going to actually determine at the very end, possibly if this windfall elimination provision is applicable to you. [00:55:14] Speaker 01: And it may not be, no. [00:55:16] Speaker 01: We need only look at the record to see that the opposite is true. [00:55:20] Speaker 03: Well, I think the implication of the government's position here is that if you picked a plaintiff who was timely within the administrative process, who raised each of the types of claims that you're raising here, like, you know, is this employment within the meaning of Section 410 or not? [00:55:40] Speaker 03: And that person went through the administrative process and then that person could be the impact plaintiff and a challenge [00:55:48] Speaker 03: to that provision, and you could get your legal determination over just a court and a court of appeals. [00:55:52] Speaker 03: And so I guess the question really is, why isn't that the way to tee up the issue? [00:55:58] Speaker 01: Your Honor, I think that we're deviating from the standard that the circuit gives us. [00:56:03] Speaker 01: Has the agency adopted a policy or practice of general applicability contrary to the law? [00:56:08] Speaker 03: But let me put it this way. [00:56:09] Speaker 03: You need a plaintiff withstanding. [00:56:11] Speaker 03: And we don't know whether the plaintiffs that you represent are or are not potentially benefited by the reading of, for example, the definition of employment in 410 that you advocate in contrast to the reading that the government has adopted. [00:56:30] Speaker 03: And unless we know that the facts of your client's case are such that would implicate [00:56:37] Speaker 03: the provisions that you're seeking to challenge, that person doesn't have standing and we couldn't hear the case. [00:56:44] Speaker 03: Why isn't that an additional reason why exhaustion is necessary here? [00:56:47] Speaker 01: It is beyond question that they are subject to the windfall elimination provision. [00:56:52] Speaker 03: Well, it's a general matter, but the specific things that you're trying to challenge. [00:56:59] Speaker 01: Right. [00:57:00] Speaker 01: They are subject to it only by means of a single binary policy applied from the beginning which exists in the palms and says that if you do not satisfy any of the exemption criteria, then you are subject to the general policy. [00:57:15] Speaker 01: And the fact that there are foreign plaintiffs who may not have been able to provide certain documents is not to turn the presumption of the rule 56 on its head and construe that fact in the light most favorable to the moving party, as opposed to the non moving party, your honor, we know. [00:57:33] Speaker 01: by looking at the agency's own statements, why anyone in those shoes has been subject to that policy. [00:57:40] Speaker 01: And it is because they had been deemed to be recipients of non-covered wages, which you can locate within the policy. [00:57:54] Speaker 01: Your honor, council pointed to the fact that there were actually some [00:58:00] Speaker 01: recipients of foreign pensions who won in the agency process, and this somehow supports their argument. [00:58:06] Speaker 01: I think it's useful to look at how those ALJs in the record actually arrived at their decisions, had nothing to do with any of these irrelevant agency criteria and this supposed fact-finding process throughout the reconsideration progress that in fact does not exist. [00:58:22] Speaker 01: No, those ALJs simply looked at the governing law [00:58:27] Speaker 01: And they looked at the policy and they said, this is no. [00:58:31] Speaker 01: I mean, the agency just said no to the policy. [00:58:34] Speaker 01: It violates the governing law. [00:58:36] Speaker 01: We have a situation, this indicates, this is perhaps the best indication that we're not even talking about an orderly agency process. [00:58:43] Speaker 01: We have governing law saying, do one thing. [00:58:45] Speaker 01: We have the agency doing another thing. [00:58:49] Speaker 03: Do my colleagues have any further questions? [00:58:53] Speaker 01: No, thank you. [00:58:54] Speaker 03: All right. [00:58:55] Speaker 03: Thank you, Mr. Bruce. [00:58:56] Speaker 03: We'll take the case under advisement.