rein in the misuse of the term jurisdictional by lower courts and yet that's exactly the sort of area that we're here today appealing because the lower court mistakenly understood the central merits question in this case which is how you interpret action and provide subject matter jurisdiction that's right your honor why isn't this one of them especially since the statute is she says the district is that where the cause of action overlaps with the jurisdictional issue the court essentially should with what judge agree to said francis on the th circuit is that the court should assume jurisdiction treat this as a merits question because saturated has a similar sort of overlap where the issue of whether an issue arises under federal law one might say if you don't actually have a cause of action then there is no federal question but it as here the issue is should have to repeat the citizens provision in that way even given the nature of what a citizen sued provision is i mean do you think congress could grant a citizen supervision against the executive branch for a discretionary and b that's it can't i want to be very clear that it cannot be that that is an entire intersectional question because otherwise the court would be going through this exercise interpret things cleaner if you do that in these cases where there's over a lot where you turn the cause of action into the jurisdictional question it makes every statutory question and one of the citizens is jurisdictional and that can't be right what the court can do to decide it is your assertion is look you can't be right why i mean if if if there is if the statute is jurisdictional and that's what it does and that's what it does but there are lots of statues citizen suit statutes that are jurisdiction understand something so in the district court there was discussion about what the five year deadline means in the statute subsection you who said that that was not what you put in your notice of suit so i'm assuming you put in your nose of suit that the non discretionary duty was a two was too promulgated that within two years that's right or out or so are you saying that you are not pursuing suing relief if they're past the deadline if we conclude that the deadline is a five  i could get hit by a bus tomorrow whatever so is going to tell you like it is where i see the statute is that congress definitely wanted a deadline they wanted a deadline receiving that stately and to give it an approval or disapproval if it were a disapproval it's an approval fine then that plan will require compliance with in three years right or no later than five years after the guidelines if it's a disapproval this isn't the state can resubmit a plan but the way i see it is that if they don't resubmit it within basically another six months after they get the disapproval from e p a they're out of luck because that two years means in the statute means that e t a has to submit has to promulgate its own plan unless they get an approval play and meaning that the state has submitted a into them after a prior disapproval within the two year deadline you know i don't see there being a hard deadline for the fifty other than the five years when congress is very clear that says that that such plan meaning the federal plan shall assure compliance by five years from tacoma geishas of the guidelines if that's not a hard fast deadline i don't know what is but you're saying that if that's the way that we read to statue you're not seeking mark but it needs to do a plan because there's only one federal plan and all you could is doing there is essentially adopting the model that it creates when it evolves the guidelines isn't this one of these exercises are they have to do something for each state and go through a whole s which lays out the e p a will be in creating this planet after that initial submission that i assume is and the state fails to submit something and i agree if the state submit something later th seven o two is not a back door to jurisdiction over another statute so if we're talking about another case why title x or hear the clear act you can't use seven o two to increase the scope of the jurisdiction or the waiver of sovereign immunity the answer there was the supreme court said no but they're very clear here that they haven't brought any claim they've brought a clean air act non discretionary do to claim they're not they're trying to use the ag is reverse are immune to expand that we have a but they have sentence of b three says such plans shall assure and so that's the that's the mandatory requirement what the plan has to require now i understand everything else and this is a deadline for doing something as and doing a plan you're saying that five years doesn't mean a deadline for when the plan must be done it's a it seems some sort of toothless content requirement that says you know comply and within five years that we can say that ten years after the guidelines you know as long as we say they're in the we've written a play and that complies with the statute that is that your interpretation of that so i don't think that's accurate because it's realisations choice it's not like they're read only through b three they read it all and they said here's our plea two years that's it you have to do it in two years if you look at the opening briefings thirty six to thirty seven a double down on that they say here's what we're we have this potential extended back and forth and it doesn't make sense to flatly mandate that the two year mark when that back and forth it's still going on that the that the federal government to come in the face of a final federal plan from the guideline is the last time when the state may submit in the provable plan of their st claim was disapproved i don't agree that the state is to do that by the two year mark the same plan without addressing a b and c in that gets disapproved again for the same reasons the state could keep keep resubmitting the same plan and keep this plan exactly that's what i was trying to get you to concede ok so i think you can see that then then what does the last sentence of the three mean that doesn't mean that that plan after the guidelines so long as that plan rode in it hey you're supposed to comply with in five years of the go home there's no deadline are reading this actually there's no deadline that applies to the federal plan they can bring on reasonable the lasik in one of the factors they look at for such a suit and they have it year that's clear one factor they look at is look at the contacts and then ones that aren't that nondiscretionary harker here and use those to inform how much delay is a reasonable and you also look at agencies workload of resources and all the other traffic actors but i think you could in deciding whether to the way is a reasonable or not look at that last sentence of p three and have i consideration but but we don't think it's a it's a it's a it's a horrible line and when the federal plan has to be developed and implemented in force so if i were you know i used to be a district court days you don't think the e p a would be in violation of my order by coming back you know forty five days later and say well we intend to you know comply with  think if you said if you you must do x and then you said when you do x that actual assure compliance with not later than five years after the date of some other action we would say well questions about this argument i don't think the court music addresses language wrong because they didn't leave it there clear in their brief that they're not making the argument in fact they agree with our interpretation and the court should leave for the next lawsuit around reason with the lagos who are they can bring a essentially balance congress's desires against competing demands on the agency they can blow past five year deadline and say well we had a lot of other stuff the congress also wanted us to do if they're under this unreasonable that the scheme there's a also want to be clear that this kind of this notion that you can need to have this extensive back and forth is a bit of a fallacy yes it's a free to submit plans later but again if you only have one thing to develop and there's a number of states you can actually se