congress clearly states that  long before thirteen b was enacted and congress would have expected the new statute to be applied the same way as in fact it has been and if this court were to adopt a different reading now that would seriously disrupting force might not just of the f from the purpose of this statute and my recollection is that is as a canon of construction we really do need where the same language is used to look to a statutory b the f t c waited what five years to bring this proceeding is that a correct statement of the i wouldn't use the term waited five years but th bring the action until the f b i all right well let's put that in actual numerical terms because i had been wondering about that exact point which is to say what kind of channels of communication  there between these two agencies what did the f t c know and when did it know it and but like you said at the end of what is that and what's the period of time between then in the bringing of what happened after the year it will all right let's let's start shooting the argument you just made now let's look at the time frame between when the f d a rule and in fact if i recall the chronology here the f d a denied the petition and perhaps some all right so i guess my question which may answer the questions going back and forth my colleagues was e f t c even involved in actions like this against pharmaceutical companies before two is that was an answer michael and i don't believe there are other ship petition cases but i would need to check that with the that we brought up i would need to check that with the staff the answer however and let me step back a minute because i mean i you know i think you're very appropriately talking about the facts of this case but keep in mind here that the issue in this case is about the legal standard for bringing a case for injunctive relief and this is a step to the f t c uses all the time we're already and we are very much aware of that it's important not to use bit we are very much aware of that and in fact i explicitly referenced is or is about two minutes ago in trying to get to the name and to what that what that language means and it seems to me that it is necessary in the context of this case to understand what the timeframe was what the delay was for us to put some meaning to is all manner of case is more commonly an unfair competition my partner in in in second in five cases more commonly in cases involving unfair and deceptive bakaly but you haven't used it with any regularity court used which looks which looks at the severity of the past conduct like the company is and is is that's all you have been talking about i really read that entire fifty seven page complaint over the weekend and here is a long litany which i don't question about the history of i don't know whether it's pronounced bank cosen or banks but nothing that helps me understand standard and that's our interpretation of what is purports that the difficult certainly said is that alleging a reasonable likelihood of recurrence is not enough now if you think that we have an alleged a reasonable likelihood of recurrence i of deliberate misconduct a company that's still in the same business and thus has the same opportunities and incentives to all this miscanthus cuter that is all history it's reciting your complaint but judge mckee has refer i mean if the question is could an injunction be issued here absolutely nothing could be a few if the question is if you're gay answer here differ from the answer that counsel provided to the district court so i recall from reading the record there was some real difficulty in suggesting to the court at that time just what an injunction would say you know what i'm referring to i have to go back and look at the look at the transfer in my recollection is that one response was the injunction could say s person express my condolences to the court as a major loss thank you very much very happy to be here in order to insert your questions i'm happy to jump right into the jurisdictional question because judge mckee i'm not sure how do you answer your question about this appeal about which is it is fairly straightforward interpretation of statutory language that is plain and it is supported by statutory structure and legislative history the question is not whether we can establish th on uses the example of a ship that is about to sail or what we have here is a ship that's been in dry dock for now six seven years and it would be absurd to argue i think we're just a person might to state that ship was about to sa think we've lost sight of the definition of about two and a long line of it we're certainly dealing in the room with a temper and i don't see anyone can dispute that but i'm also not sure that this could provide a great deal of guidance other than to rely upon district courts to look at all the circumstances does that obtain and then make a determination whether or not something is about to occur that said about two would certainly seem to suggest something near term money assume you agree with that i do and i'm willing to allow that it could be cont and so you might might require something much more imminence that happens very frequently then you would something that takes some time but either way about you can't read the temporal meaning of about two out of the statute again this is first principles in statutory interpretation which this supreme court applied many many many times in this court supplied many times you start and often stop with the plane being a book of the wind which the congress congress chose here congress was very clear in its use of about there's no doubt that the plain meaning if you look at the dictionary that that has a temporal connotation the the what you hear from the f t c it's very interesting because they're not very direct on as they don't say that about two examples yes at least i didn't see it as i read them through their briefs and they don't say they don't say that it's ambiguous they also don't offer an alternative interpretation of those words of that phrase they don't say oh no it doesn't mean it doesn't mean on the verge it means something that could happen in the next three years what they do is they analogize it to the standard of proof that you're plied with requests for an injunction but again that that reason likely to occur goes to whether it will hook up it goes to the fact of the event not the timing of that and again i don't know how you read congress's plain terms and walk away with any conclusion other  time natters and there can be some debate and there may be future cases where the facts are a little bit more challenging for the defendant where whether a district court can weigh what that what what about two means in that context but here the c is expressed we walked away from that they have conceded that no byelection is currently or they have conceded that no violation is imminent they put forward a standard that doesn't have a time component and way inhibiting petitioning conduct by agency activity that is not bound by rules or predictable want i mean what you heard was an inability to articulate what the what the injunction would be that one satisfy will sixty five it would be void as indefinite but here where you have constitutionally protected speech at issue it also is pennington decision but the standard there is it has to be objective basis if these petitions were actually objectively useless you don't need an expert agency which wrestle with the issue for six years to tell you that to make that judgment yourself but appendix fifty four through fifty six what you see is that they allege the f d a decided the citizens petition on people in mind two thousand and twelve you'll find that appendix page fifty four they then discuss litigation that by reform of filed challenging that decision and the litigation that viral pharma file the content is part of the pattern i mean and i competitive conduct so after the  nine month period if they really had to wait until the f d a decided and i don't i don't i don't accept that that's true but accepting that is true for purposes of argument they had nine months when the conduct continued they read what the f d a said if they thought that there was this abusive practice going on and they thought it continued with that litigation they had nine nine months to go into court now what you heard is that it takes time to investigate well that's true they investigated for five years the fact that they investigate for five years and still can't point to any fact that would suggest that a violation is about to occur suggesting the they don't need discovery the fact that in the doesn't exist or they would have but right but in any event  but there was a criticism of congress hard that f t c often couldn't act quickly enough in fact the mystery of proceedings would not conclude before the harm would suffer and so congress and you'll see this in the legislative history that we cite in our brief and i'll note that the f t c doesn't have any contrary authority on you history point but what you see there in the senate report and in some of the f t c zone commentary is that the goal here this really was a stopgap measure raditionally in a competition context the if used to challenge mergers and what you see there in hershey medical was a great example here the news way up to this court and at least one member of this panel but there was a challenge to a merger there was an administrative proceeding brought in order to determine whether that merger was an eye competitive but they also use the thirteen b authority to go into federal court to seek an injunction to prevent that merger from happening and kill the administrative b in this situation and you have a situation where your client or a drug company like yours commits conduct which they did passed here five to seven years now passed what steps can you have to see dig jeff fisher i'm very glad you asked that question it's a great question because you have but in your question was an assumption that they couldn't use their team b and that's not my position evidence that you've engaged in similar conduct in trying to protect another drug yes and they have this alleged violation there and the f t c wants to take some steps against your client what can they  a policy if the language is clear as here to address the policy concerns it's really important to understand that not only does says the f t c have other options they can he does bring a three proceeding on a five day or they can portunate scheme in the united states the department of justice also has the ability to enforce the antitrust laws you have state attorneys general who can and and increase increasingly do bring actions as i know  bring an action in to get them situation and so and so it gives them statutory standing if without the authority they can't do it and i know the council cited other provisions of the code but really it's thirteen excuse me it's points to other jurisdictional statutes federal question questions or competition law but it's clear that before thirteen be a was an act of the f t c as they conceded their papers they didn't have the authority to do what they're trying to do now it's the real question is whether that's them with the authority and it has to be read in in conjunction with thirteen forty five you know if you also if you look at the language of thirteen b not only does it speak to what the f t c is authorized to do but it speaks directly to what the courts ma speaks directly to what this court may do thank you very much  i'd like to start with the question of why are we here and the reason that we the agency are here is because of the court apply a standard which is at odds with the way that cour the standard is imminent that means that as soon as someone gets wind that the f t c or the f c c or some other government agency is investigating them and this happens all the time in all sorts of cases they can stop the card up and under the standard applied by the court and under the stand advocated by that means that we can't do anything we have to wait until they're just about to do something again we have to wait until something is is really close to him and so the answer is you know unless someone is actually or a company from a very loose standard that would permit a government agency from becoming a roving commission that could file litigation without any evidence suggestive of any kind of immanency any kind of proximity in time to an occurrence that might be violent in the what's to prevent a government agency from doing so for punitive purposes just to harass an entity that had created problems for a government agency even though it got another government agency previously but so is the answer is we are not booking to