brings to the court two specific issues one procedural dealing with jurisdiction and the other dealing with the merits of our petition the jurisdictional issues really whether under seven one two three think it's the federal service labor management relations act which i'm just going to call the statute here find that whether the court has jurisdiction to review the ruling of the federal labor relations with already  correct and the operative words are that it has to be issued under seven one one two of the statute and it has to involve an appropriate unit determination we don't think that the decision that we're talking off which is the ruling on the employee status of our agricultural specialists is falls into either one of those categories and actually the f l ira is urging that there be a very broad ruling on this special exception to review and the national agriculture employees says there should be a narrow interpretation of that particular exception which is consistent not only with the earlier decision of this circuit on our own motion dismissed but also with the leak case in thi think are versus the f l right and that court also endorsed a very very narrow reading of that interpretation and that's the interpretation that we believe is the applicable here and we find we don't believe that they presented any new arguments on the briefs that would warrant any kind of reversal of the particular decision reached by this circuit earlier well didn't really review the sudanese because they denied the motion to dismiss all what they have that i've got the copy of the motion i said emotions panels and i know what we do on them i don't think they decided the merits because we have to have jurisdictions always had that issue it has to be resolved my question is do you or do you not think this case comes within the purview of lead in versus kind we don't think it does we've never argued that it  special circumstance which i don't think apply in our case and we could not in good faith argue that that fell within that particular exception very because the reason i thought at least the sound of comparable to your case was suppose that the decided you know really in the face of the statute combine in face of the probation took an undisputed professional group of employees and put them in together with the undisputed  words they've basically violated the absolute direct prohibition in the statute you're saying you're saying that would lead him versus kind wouldn't read on that your hypothetical as i understand it your honor is that you're not giving those professionals an option to under the second one two three of the statute with because that is not an appropriate minute determination they are denying there saying this is an appropriate unit determination they just floor in the face of the prohibition of the statute that in making the appropriate unit you can't combine professionals with nonprofessionals with without a vote but it's without a vote has to do with the eligibility to vote and they're saying as professionals you get the vote because they do get developed they don't get that separate ballot that's available to professionals which so as you have an option to opt out and if you do opt out then you get to decide whether you want to you know and if so which union that's a that's a l g ability to vote if you i believe and that's covered by seven one one of the statutes not seven one one so in our view anyway and i think here that what we're talking about is if you look at the actual language of the decision itself it does not say that its determination on the of employees status is in any way related to it's appropriate in a determination it wouldn't make any difference in our case whether we were professional or nonprofessional the made an appropriate unit determination that everybody in c b p should be in a single unit that's what they said and it wouldn't make any difference whether we're professional or not professional to that determination and if they didn't make it any kind of a difference then you can't square with that with the fact that there were four hundred fifty professional employees that came over from u s customs that they put into that particular unit and there's just no suggestion anywhere the status of our people our results so we are in a status quo right now we have no idea when they're going to certify the results so i don't know it's not basically public if you will what the certified results are i assume that they were permitted to vote but i don't know that ok so coming back to reason i was lead in versus kind let's assume that there was a clear and arbitrary inclusion in your group under the heading of none for most of therefore they didn't get the vote brought in as nine hundred thirty they're in as preferred they are professionals in fact i don't have to mean but they were not given the opportunity to vote whether they wanted to be combined with nonprofessionals because the f l are a regional director concluded that they weren't professional enough professional there may be individuals may have that opportunity but i don't know how could possibly come up any e would lose the right to represent i know they were so i'm just wondering who's going to stand up for them if they're in to go to the district court under the holding of that case and and i say that's a lie no it's an old case it's not all the case and i think it's justice would have got i haven't run across the justice whittaker opinion in a very long time well in that one's been eroded away by any subsequent decisions form of an official written document it was a basically a certification of representation which they name the people that we represent as professional employees and that document has existed in one form or another for some thirty years without challenge and we don't we believe that that particular recognition constitutes a form of precedent that under the controlling law the rake simply either has to follow or if it chooses to deviate from that and the agency under which they were operating which would have been the us department of agriculture for most of that thirty years could very well challenge him now why they would want to challenge him i'm not really certain that the could be that their job had evolved  were if there was a reason to challenge them nobody did for they didn't with the now all of the so and the reason is that they're putting together what they've even appropriate you know under the new restructured v h s and that's certainly true and we in our brief we have cited a number of instances where this issue can come up about the status of professional employees versus nonprofessional in situations that do not involve an appropriate unit determination proceeding at all and there are many others we saw five sided like five or don't i can't tell you what the political motivation was for that i have i could speculate i don't think that that's just you know fair to do so on this record but i believe that there was a political motivation to do so they wanted to have to bring within the bargaining unit they had to face up to whether or not because there is a requirement that there are going to be professionals and nonprofessionals they would have to make a proviso for separate ballots so they you're you're absolutely correct i mean you know where we have to say i wish there was arbitrary capricious and in all of those kinds of things in which i think we have done so on very i'd like to reserve  have seated four minutes of our twenty minutes of argument time to mr sharon it is of course axiomatic that we first look to the plain meaning of a statute in order to resolve the case and with that directive in mind i would like to look at the plain language of labor statute to assist us in resolving the jurisdictional issue that's before us today i think we're all in agreement here that the starting point for our analysis of section seventy one twenty three eighty two of the statu now section seven hundred twenty three eight two says that any person that is agreed by a final order of the authority unless the order involves an appropriate unit terminations under section seventy one twelve may have chain review of that order and i'd like to take  time would apply if this had been brought as a lead in suit and i suspect that we would have sought to dismiss it let's look at the facts and leave them and leave them the n l r b had a situation where there was a unit of professional employees and it conceded by all concerned including the board there was no dispute that this was a unit of professional employees it was another union that had some nonprofessional employees that sought to include them in the professional unit the board knowing that it was dealing with professionals within the definition of the acts said well this unit still retains its professional essence so a few nonprofessionals is ok that was the situation and lead in that the court struck down we do not have that in case law does this we have to distinguish between a garden variety legal era let's just assume for the sake of discussion that we have that here that substantial evidence does not support our holding we think substantial evidence amply supports that whole thing but let's just assume for the sake of this discussion that it did not that would be something that would be a garden variety legal error that lead him would not address in order to have a good lead in claim here we would have to have an authority decision that's you know yes we know that these employees agricultural specialists are in fact professionals within the meaning of the statute but nonetheless we think it's ok for some non pros to be in there and we're not going to give the pros the vote that is legal and if the language we don't i think is fairly well established you have to have an agency that is basically exceeding its jurisdiction congress has weighed out the line that you cannot cross and the agency has nonetheless crossed it and lead it was designed has jurisdiction to make a garden variety  right for these employees who problem with that argument is that it puts the cart before the horse these employees were determined not to be professionals and there's no dispute in this case that professional employees if they are found to  statutory right but based on the record correctly these employees are not so we can't put the cart before the horse and it really does not matter that the other point to be made here i think under section seventy one twenty three eighty two it does not matter what the collateral consequences of the appropriate unit determination are in terms of granting rights extinguishing rights maintaining rights the only thing we care about under section seventy one twenty three a to the pla  the title of section seventy ones where twelve is a determination of appropriate units for labor organization representation this is all nothing of trying to refute mr man's arguments  everything that takes place in section seventy one twelve that is covered there pertains to an appropriate unity determination now let's look at subsection x subsection a is what i call the organizational component to it appropriate unit determination which parts of an agency should be put together to form a bargaining unit based on a community venturous criteria the efficiency of dealing criteria under a set of that's one type of approach the end of the terminations now let's take a look at s section big subsection begbie explicitly says the authority shall not to term any unit to be appropriate if it contains certain types of employees this is what i would call the employee content dimension to an appropriate determination so the authority cannot certify as appropriate a unit that contains one of these employees and significant for our purposes is section seventy one twelve b fox which deals with professionals and says a professional c with the gun well again your honor i go back to what i said before if the authorities decision explicitly says yes we know that these are professionals but we still are going to put non pros in without giving the to stay away from professionals because the supervisors you know talk about bright lines are pretty easy because of the great salary grade level to find who supervise pretty clearly the whole job description goes into one of the prohibited employee into a bargain well your honor i think we have to look at what the authority did the authority said the status of this employee is the supervisor has been challenged and there are authority decisions on these issues and the status of supports a finding that the employee is not the supervisor therefore the employee is in there would be no review of that that's what section seventy one twenty three of him is all about now is the authority on the other hand says yes we know that this employee is a supervisor it's not there's a precondition to before you can make an appropriate union unity terminations is that there has to be an employee who can be put into a unit that's already been pre determined by congress what the appropriate unit is and there are certain classes of employees you cannot combine professional has this quirk of the vote the confidential employee supervisor seven you want twenty three eight to clearly made the choice and a decision that the authority would get to make those calls but they would not as in the private sector be subject u g g judicial review you s authority cannot determine if a unit to be appropriate if it contains these employees or not could not make it clear a connection between this determination and an appropriate unit determination i don't think that would be possible to have a clearer connection and let me a lewd further on the score to the legislative history of the statute which the authority has recognized in its case law i think involving thirteen decision we started at page one thirty three the authority makes reference a house report on a bill that became the statute and in that house report he said as the definition of a professional employee has primary relevance or appropriate unit determinations under section seventy once well again we could not link these two concepts up more closely in direct leak if we tried so when we talk about section seventy one of three a thing definitions now occasions that's just a definitional provision which is in talking about section seventy one twelve that's the significance of that and in fact i believe part of mr man's argument in this case is well the authority never says anything about section seventy one twelve when it's talking about the fact that whether the authority says it or not is really not even the most significant point of the point is that's what the statute says that's what congress intended and that's what the authorities it is carried out and we think that the court should if the court on howard stern or from the department of justice representing customs and border protection customs i think the case here you have have to look at seventy one twelve the five is the court date the only place professional employee ever shows up other whether in fact these employees were professional employees and not was only in an effort to then determine in connection with the broader appropriate unit principle which appropriate unit they would fit into remember in this case there were just a group of border patrol employees who were going to be left in with the same grouping the customs was seeking a clarification as to everybody else and was seeking a clarification that there would be two broad groupings an appropriate unit of nonprofessional employees and an appropriate use of unit of professional employees and wanted to lump into the appropriate unit of nonprofessional employees those employees that are called agricultural specialist and of course that's the merest issue which we didn't brief but we support the authority on this and i think the authorities position is it was not adjudicated understanding between agriculture and the union that they would be treated this way but in two thousand and two everything changed with homeland security act and the changing of the duties of all the employees that then merged into what became customs and border protection and these employees from at that were with agriculture formally  that's right and that's why customs and border protection filed and this is at page two hundred of the excerpt of record where the authority some sums up that's right cause some sort of clarification of the appropriate units in this case that had the merger of of what it turned out to be three or four different agencies before getting parts of all those agencies into a single agency customs and border protection all of the prior employees who are being merged in represented by three and four unions that's why customs actually then sought the clarification of the appropriate unit and then an election and that's what happened that's the cart that came before the or the horse that came before the court in this case was the clarification of the appropriate and professional employees on the one hand nonprofessional police on the other customs was seeking essentially to have one union represent each of those separate groupings but if under the election ruling as it unfolded if the professional employees agreed to be represented in a unit with the nonprofessional employees which is in fact what happened with the election then so be it but it would still be one unit one union and that's what customs was seeking to have a clarification a consolidation erroneous leak determined against the standing of the individual to file the seventy one eleven petition and this court said no at the first instance that's where you made the error you never got to the appropriate unit determination and i think or the courts employees and that was upheld in the context of that case but what happened was the union filed two different work tried it undertake two different tasks one was to file something before the authority a petition under seventy i wan interest and under the under seventy one twenty three that says any person aggrieved by any final order of the authority rather than an order under section seventy one twelve of  separate orders no wonder then that did the hot new course before the cart namely before determining ultimately what the appropriate units would be have to determine whether employees in connection with that were either professional or nonprofessional was  the correct about that it was all one order actually there are two separate decisions and i think that the final decision of f m r i on february of two thousand and six is the order that's under review at this time and the regional director did not try again the ninety nine thousand employees who are nonprofessionals of course c b p the rest the c b p of the other twenty thousand are made up of primarily not professionals except for as i indicated earlier four hundred fifty employees who are i think the terminology was the employee content but if you look at the decision itself there there's never any mention of section seven one two three be the only mention is of seven one two three a so it's appropriate unit determination was the election because of the result that we're challenging here i couldn't say for sure now in your hypothetical judge if if the supervisors were determined based on an  let's say nonprofessional and they disagreed with that determination you've asked well what is the remedy of that unit that would like to represent those people that are now taken out i think the situation would be the same as we have here today i think things would be able to challenge it under seven one two three i think that is still available to them and i think that while we can't point to any situation where that has arisen but i know no reason why it should now  employee may come up and he primary is the correct word but you can't come up in other situations and we have cited a number where it has but let me also quote something from that report and this is from the conference report  that says in connection with seven one two three in that this is quoted i think are then they're talking now about what is this something that is in involves an appropriate unit determination and they said with respect to that as in the public sector there will be no judicial review of the authorities determination of the appropriateness of bargaining units and we are not questioning the appropriateness determination they may the fact that they have decided there will be only one unit we're not challenging that that they have denied any ace petition to have a separate appropriate unit just for the people we represent the agriculture specialists in agriculture technicians that was denied we are not challenging those appropriate unit determinations just this one