which member of the class been directly approximately harmed by lassie's breach of contract in that each paid more than was owed under the contract but that's for you do not allege that you ha  why shouldn't we accord at least some persuasive value to the way that the surface transportation board has interpreted the statute well you're right i think it's because the g congressional intent that shippers must give notice busy of their intent to contest the carriers bill congressional intent to attach to address a carrier and ship are still a contesting of billing was specifically the or limit unless it does so within one hundred and eighty dollars days therefore the district court's decision dismissing the palance complaint should be affirmed nd although the court is not bound by s t p s t v or surface transportation decisions that are unanimous in supporting the one hundred and eighty dollars day requirement as a precondition for contesting at least rape charges they are nonetheless we would say respectfully something that this court could consider as  like this court can use plain language approaches to support their views and they demonstrate the practical importance of the one hundred and eighty dollars day rule sir congressional intent behind the one hundred and eighty day rule as a precondition is evidenced by its overall scheme to address the transportation industry it's not necessary to get into that overall d attempt to to address the transportation industry but in the event that the court is trying to interpret this statute and adding context we believe that the context that is relevant and that this court should consider was the congress as it was deregulating the industry still wanted to have some portions of the transportation industry that they did regulate specifically the one hundred and eighty day rule why because at the time of the enactment there was a crisis that was president that was referred to as d the under charge crisis were some years after that though that bill had been delivered the freight had been delivered the shipper would show up scuse me the carrier would show up and all of us and bring new and additional charges congress looked at that and said the reason for having this one hundred and eighty d is to prevent that and they did not limit this statute does not limit the circumstances under which it would be applied in other words there is not a carve out exception within the language of the statute that says in the event of fraud or the allegation of fraud that the one hundred and eighty day rule does not apply to mr hill now could we could we back up to your st point about how you're reading  statute and could you address why southern furnitures scope of the subparts argument about the st and nd sentences in a three b why why isn't that persuasive sure your honor just as a procedural matter and i will speak directly to the court's question but just as a procedural matter i don't want to go too far down the road in responding without noting that that particular argument was waived and not presented to judge fragile and we would make an argument that the th circuit should not take up that issue at this time because it was waived at the district court level do you think that the that this court is precluded from using all the tools of statutory construction in interpret ina statute no your honor and i'd like to i'd like to go to this to to your question specifically are on the interpretation the th there are several problems with the sup parts argument the st is that to read it that way is to not actually look at the language that was involved you look at the st part the st sentence talks about the per missy's approach that a party may take on their own to decide whether or not they're going to they're going to bring the matter in front of the board but then they go to the nd part of that where it's mandatory language that says regardless of whether or not you're going to initiate this before a board or as we have otherwise provided and it just record you do have to preserve your right as a precondition and we believe that d the device or the sub parts argument completely ignores the congressional intent which was to require the parties to with a one hundred and eighty days to say to the others the other party in the transaction we have an issue with this and to read it would pre suppose would take it out of the context that congress intended in the st place judge mathis sentence as i indicated the parts interpretation is runs smack dab or headlong into the context for which congress was trying to what they were trying to do or what they were trying to do here was to require the parties not in a distant future when paperwork may not be present when there may be an opportunity to correct immediately the issue over the billing  immediately deal with that and it's a specific effort to respond to that under charge crisis that it was dealing with and in advance of the passage of tira so the way that we believe that this court can take into consideration the practical challenges associated with applying that interpretation it's not only practical it goes against the practical import and leaves the industry back in the position it was prior to the enactment of these two laws but more importantly this interpretation parts interpretation flies in the face of what congress was attempting to do cards out a very narrow exception when the false claims act is present and what the nd circuit is it carves out that exception to say that normally we would look for  this one hundred and eighty dollars day requirement to apply but because we have carved out under the usage of the false claims act and specifically within the narrow confines of that false claims act we are not going to bar the government from proceeding with the false claims act under the one hundred and eighty day rule we would argue that that narrow basis and that narrow interpretation is not  controlling here is not is not precedential here and that had congress wanted to have that they would have clearly looked at the false claims act and said that the exception that the nd circuit has carved out is in all of our cases in other words judge matheson in the event that they wanted to have a basis for the false claims act was in place congress could have well said we are carving out an exception  one hundred and eighty dollars day rule and specifically done that in any instance where there is an allegation of fraud or deceit they don't do that they simply have a very narrow exception that says when the governor's proceeding under false claims act the one in addition to the basis for looking at the presidential value of the s t p decisions which we respectfully would suggest this court ought to take into consideration for the following reasons st of all it's when there is some and that you it in the statute we're not agreeing with that but if the court believes that there is some ambiguity here in this statute and needs to go beyond the plain language there is law that suggests respectfully d that the s t p or the surface transportation board as an agency that regularly and for some time has dealt with this issue that any decisions that it has d made or any declaratory opinions that it has provided should be considered by the circuit court we believe that we have identified the unanimous nature of this  of the declaratory opinions by the surface transportation board that's consistent with how judge prattled dealt with this that is to say that it's a precondition for pursuing a cli you know your honor that's a that's a good question and if i gave that impression i wasn't trying to do so we read the chevron decision as the it in the event that we were asking you to affirm  this a straight decision or directly to you a decision of an agency we're not we're not making that argument with you today because the surface transportation board has not ruled in this matter we're simply making the argument that there is case law suggests that a court when reviewing a statue can look to the agency that's primarily responsible for administering that and can look to those to citizens and can look at how they've interpreted it and take that into consideration i think that's a little bit different than this chevron situation you in some ways end up in the same place which is you give deference under several onto the agency's decision we're not making that argument we're simply saying the surface transportation board which is most familiar with the congressional intent of this statute has unanimously said that it's a precondition to having a  that you're almost always going to be beyond one hundred and eighty dollars days before that fraud comes to light your honor with with all respect we don't agree with the argument congress which was well aware of the possibility that there could be a circumstance where later discovered information suggested that d in fact there was a basis for the client and there is i don't have it ready here but i believe that courts have looked at the issue that there may be circumstances after the one hundred and eighty dollars and yet congress knowing that went forward there is no basis in this statute to say that there is a carve out for later discovered information there's no basis for saying that if you in the statute that if you allege fraud or sound in fraud that in fact you are out from under the statute it says that is a precondition that if you are going to challenge as a basis for your your claim you're going to challenge the bill that you received you must do it within one hundred and eighty d great deal of time to look at its language and look at the fallout that occurred as a result of the narrow interpretation that s t b has in those decisions it also has had d time after the certain decision by by a district court in ohio and the jim ball pontiac case it has had the opportunity if it was interested and changed its law to provide some kind of exception to later d discovered information it did not and we would suggest that given the plain language of this as well as d the lack of standing that is necessary for the appellant to plead its case we would argue both of those and either of those is sufficient basis for this court excused thank you