like to start if i may with the jurisdictional question acknowledging the uncomfortable problem of coming to this court as the petitioner when the jurisdiction is not entirely clear we wish that it were and we hope that this case if nothing else will says that this court has exclusive jurisdiction over all rules regulations and final orders issued pursuant to section five zero five zero one and others five zero five zero one is the citizenship provision of the merchant marine act that carries through essentially all of title forty six if you look at the emmis piece that shoot the various defense and other subsidies statutes and so forth five if i will one is the recurring feature as it divides the world essentially into the mystic trade which requires citizenship and foreign trade which is not and that's a basic structure of the statute the question here the jurisdictional question here i think what is down are made citizenship determinations that some dispute so let me ask you both applications for these replacement vessels but the applications were granted pursuant to the said this expressed but the parties seeking approval one of the requirements is citizenship under five through one of two c and five you want to see define citizenship as five zero five zero one citizenship statutory citizenship  say it's lack standing he's standing he should correct so that's what he said that the issue that you've appealed no your honor we have not challenge the administrative standing we do take the position of the minister of appeal was sufficient to bring us within hobbs act period because the agencies where these have any success i mean the reason you lost before the agency is they said you didn't have standing right here on what why isn't that an issue  appeal because you're not a contractor fine then that then what they're saying is there's no exhaustion requirement for non contractors but that's not what the regulations of the regulations as you have to exhaust administrative remedies and of course the background rule is you have to exhaust  find you know we'll know that for the future but in this case i don't think we can be faulted frankly for having tried to exhaust administrative remedies given the regulation that said we had to have the order if you're appealing are the two decisions a warning or author authority is so already an exercise in the course of making the decision to include five zero five zero one when they decided that issue or does it mean what authority was asked for you to set up where you are i'm i got i got to struggle with this i'm going to lay it out for you so how do we understand pursuant to without looking at the party what arguments parties are raising the court is that we have to pick one or the other is that every where the court says essentially it's not enough that the agency recite the stat you know that the agency's rule making always list the bunch of things it's not enough that they're just listed in there is that the decision must actually have rested on or be made under that provision which i take to mean it that for your arrest outstanding that's my point it was issued pursuant to a determination of standing and that's that's not one of the categories that gets you straight to the court of appeal as to that the decision absolutely has to be awarded decisions however they did make the citizenship determination as a statutory prerequisite to the awards and therefore in that sense they rested on and that's the breadth question again this is an open question there's not been a lot decision suggests that if in the most recent cases that if the statutory provisions listed is necessary to the agency's decision that is within the numerated statute that would tend to suggest that this  court also said in the same decision that the presumption in favor of court of appeals jurisdiction doesn't apply when you have one of these enumerated statutes which is what we have here and so that sort of cuts in favor of the government in other words if the statute  literally ambiguous then we would have said under florida power and light of the tie goes to the court of appeals and now this report says the tigris the district court and that's again i think that's a bit of a change in the last instance we brought this case but that  told me the one hand on the other hand now what is the best answer so we think this court makes more sense because these are determinations that don't require an extensive factual record they're made within the agency often there are speed determinations right this is a competitor situation where the subsidy every day is eating into my client's business and it goes faster to come to this court it makes sense we think that congress having made citizenship sort of the baseline requirement for many things in the merchant marine the reason the hobbs is written the way it is for title forty six is basically to say if it's a citizenship type question then it goes to the court of appeals that is an eligibility question or a participation question rather then if it's a an operational question then it may be a district court situation and submit knocks these vessels out of the program that the statute says that the vessels must be set in gauged exclusively in foreign trade or exclusively in foreign and domestic trade under a registry container ship operators are doing mass in these cases was became aware during at some point during the first application process and was aware of the application only after the first opposition subsidy to vessels in the domestic trades and so it came as a surprise and then the second application why didn't you challenge that when a timely manner well your honor that they then had the second one pending we did jump in and put in letters in the administrative process so that may help you on the second one which doesn't have five or five one of it but that's the first one that does have five and five i want to think you can do anything for you here well the application of the second one could reference the first one and we challenge the untimely and the agencies rationale continue to change from the first award says nothing about next to mr trade simply said world wide services never having knowledge the problem of domestic trade i think it was because math and put in those letters during the second application process brought the problem to the uses of the agency's rationale the shifted became mixed foreign and domestic trade a registry indorsement that's what we challenged under the regulation and never has dealt with never has regulation to ninety six point two defines foreign commerce as exclusively foreign trade or exclusively foreign trade in domestic trade or registry endorsement it's identical word for word from five three five  eight one a so that that isn't eligibility requirement and the agency here simply failed to grapple with an important part of the problem i have worded subsidies to vessels in the domestic trades not subject to a registry endorsement not submit to any other stuff for exception and therefore not eligible for the program that's the basic of the substantive challenge getting so what we have delivered to this court as the appendix in this appeal is the entire administrative record compiled by the agency and delivered to us on our request that is the publicly available documentation  this transaction i've got perhaps my colleagues can tell you whether they were behind the scenes discussions or memos or anything else but this is the the publicly available record that a non party competitor has access to we are aware there are confidential material administration decision here was not issued by reason of the authority of any of the statutes mattson his challenge to two vessel replacement applications issued pursuant to forty six section one fifty three one of five which was based on  debility determinations under section fifty three one of two as my colleague was explaining in his opening remarks that statutory hopscotch only underlies why those decisions were not issued pursuant to section fifty fifty one seventeen which you know where cites section fifty fifty one and in manson's administrative appeal nowhere cited fifty fifty one votes did not challenge i mean you've got one decision this wasn't where you had this was the same decision maker th understanding of how this works in a situation like this when it's the same decision maker but mattson didn't have the ability to bring it administrative appeal in the first instance as the agency explainers the question is whether you have they're authorized to come to this court that the agency can't say only one side of all these disputes can have an administrative appeal and therefore only one side the contractor the applicant can ever go to court anyone else who's disagrees with the contractor is for clothes from going to court by our here correct mats and we have had to come here that's correct on the gobsmacked all right so that it doesn't matter what your administrative appeals regulation says about a good deal or not your answer was they wanted review they didn't need to bother with the administrative exhaustion they could have filed suit immediately when they issued and let's just start with the guam decision drought statutory authority that they actually cited and if you read it there's lots of the m s p fifty three want to one etc authority that's the big the big decision but there's six times they say they sat and they are a citizen under five zero five zero one does that mean that they were acting under both statutes at the time they entered their think they made their decision so at the time that the agency with issued its october two thousand and fifteen decision it would meet the citizenship determination to determine the vessel's eligibility and of the replacement for the replacement applications however i keep saying october two thousand and fifteen because the hans act also provides in twenty eight u s c twenty three forty four that there's only a sixty day timeline forward i'm going to side all those issues i just want to understand it so your position is if they had filed a timely petition for review of the quantum decision they would skip the administrative process feel process and they would have within sixty days filed and they would have had to file when they were making a decision about citizenship how would they challenge that but the agency's decision as to citizenship was only one of the issues addressed it would also be a question as to what the actual claims brought under the party challenging the agency's decision issued its just made its decision in october twenty fifth teen had to be exercising some statutory authority correct correct and whatever statutory authority it was an exercise in doesn't and on what someone might argue about later doesn't not necessarily mean that that doesn't all right congress can and act a statute under the commerce clause and the bankruptcy clause and that's what it's acting under regardless of anyone whether anyone later action and in making that decision they clearly exercise their power under fifty three when the m s p program clearly did that but they also made citizenship determinations under five zero five zero one correct correct so were they in doing an exercise and making those citizenship determinations and your five zero five zero one were they exercising their statutory authority under five zero five zero one yes but i will express that if the court were to matters at all and if you're agreed that that decision and five zero five zero one the october twenty fifteen decision was exercising both powers damaske power and the five zero five zero one power court should also note that the if that were if it were to read the heart so broadly that would be an insignificant tension with the supreme court's recent decision in national association of manufacturers the department of defense and there's also the purpose of reading of itself which grants this court exclusive jurisdiction to review these orders now citizenship determinations under section five but when you see these orders what would he be referring to in this case the october two thousand and fifteen and december two thousand and sixteen orders i why i get is that's a great argument there jim beauty i'm not sure you've identified ambiguity but let me ask let me ask this another way because you're worried about sweet and i understand that argument  i'm worried about the other fish there's two back problems here going to broadly and right in five zero five zero one out of the statute right if you look at five of five i want to get as just a definition it has no operative provision it has no it doesn't provide a procedure for just asking for citizenship i could find no case where anyone just said hey i'd like to be a citizen under five zero five zero one it's always done through other programs congress wrote that as a definition that was going to apply in other parts of the statute so then what could it possibly have meant when it said agency action orders pursuant to five zero five zero one there's never an order pursuant to a definition it's always going to be applying that definition another program suggest that the text of the homes are also set except weeps in large sections of the us code for this court's jurisdiction by listing some titles chapters parts and some titles or some chapters of title forty six and in this case congress easily could have written chapter five thirty one of title forty six and would solve this question quite simply because it didn't do so it must have limited review in this court to determine nations strictly under five hundred five one which i never made requirement is jurisdictional and not subject to equitable tolling so it says may file administrative appeal correct right yes and so because the had no ability to file an administrative appeal pick would not have told the hobbs acts the timing requirements which this again this has court this court has held are jurisdictional that problem only arises where the court to decide that there is hops actress diction again it's the government's position that a challenge should simply be brought in federal district court under the administrative procedure act when none of these problems are at issue petitioners have not filed any course it's possible for other parties other than to protect the particular applicant in a proceeding to submit materials to the agency and the agency would consider them yes i  know about it is it depends on the specific circumstances well i'm dealing with this case right mary difficult to understand what happened here who knew what when all right but i gather from what counsel told us i can say conclusively that the agency in its final record would address the particular argument made to it but the agency would certainly have investigated in good faith whether those allegations were true because in this particular case the agency is government's side i'd like to start there we think that this order was issued pursuant to thirty five to fifty three one of five after the vessel replacement decision we also think that it is not enough for a decision to the fact that it sort of references or zero one provides the general definition i know as to the subchapter no no five zero five zero one provides a particular eyes definition of citizenship for certain types of entities partnerships corporations these types of thing doesn't cover cross doesn't cover individuals there's lots of ways to be citizens as apparently from this side and case that don't involve five zero five zero one so if those other statutes may at times involve five zero five zero or one but many other times won't and there's a perfectly sensible reason for congress to live because it's sweeping all decisions and whatever the source is not a fair reading i take that point i think there still would be an overwhelming amount of redundancy into sort of the  question about what would fifty five to one be doing and we think one thing one thing that would clearly be fall with under it is if there were awake a regulation issued by the agency in marietta citizenship well sure but i got it ok that's all then they would just say regulations as you well but that but there's never a five zero five zero one decision by itself is not that i'm aware of but the statute says all wills regulations are final orders a political to a broadening racial category so i don't think it is exceptional think you know it's relevant here that the stat the particular session under which they're operating is that the vessel is a decision about vessel placement and there are criteria that need to be met it i think it would among other things would avoid the problem that you decision from the eastern district of new york as we read those decisions they did sort of rely on that and the question of what is the party raising and so that doesn't mean it's practically right no that's right so but we don't we think if the court were persuaded by those decisions they wouldn't apply here they're easily distinguishable because it's positions sort of have their peculiarities but we think that is a much more sensible on the whole reading that avoids a lot of the problems with the other side's position was that i was a practical matter and fifty three one zero five f where are the issues about vessel replacement rather than usually the b op or a change in the who the operator is in the contractor usually citizenship isn't going to be at issue i mean in these instances it's a company has an existing operating agreement it's already has to satisfy all the citizenship requirements in order to to do that and it is simply asking you know we want to continue that operating agreement and replace it with another vessel we have to show that the vessel needs all the requirements for eligibility for a vessel but in the ordinary circuit in one of those further that's that's my understanding your honor that that is the final order and appeal i mean the risk or sauce on the record the recommendations and the sort of whole process that led to it but that is the sort of combination of the order issued by the agency and there's a r process that includes the secretary of the defense department stuff and mrat that sort of companies in this decision but that is the actual border that is that is that provides us provides our ability to transfer the ves table one is that we think it is clear under the statute in the agency's regulations that an eligibility determination whether vessel is eligible and whether it is and gauged in foreign commerce is quite distinct from the question of whether it is followed there are the requirements that are impos fifty three one of five a for an operating agreement and there's several features of the statute that make that clear for example the penalty for not being in compliance with fifty three one of five pay into the operating agreement is not rescission from the program so make a judgment about whether this is going to be in the interest of the united states in the interest of the military and the extent to which it is actively engaged in for commerce can be drawn into that i mean it's worth noting again because this is a replacement decision the agency has deep experience with b p which has been a participant in this program for well over decades has not that's also seems to have a procedure that it doesn't give people notice about and doesn't let people come in and be parties to say let's not get it's getting your side of the story what's getting our side in the sense that it is aware have to hide the ball in that respect given that at the next very next stage they're going to have to be part of it an operating agreement in that they're going to have to certify annually under fifty three one of six feet that they are in fact in compliance with now with percentage compliance so that's right in a cup with a few qualifications one of less than one hundred eighty days you get kicked out of the program entirely also and this is a separate procedure that the big delta between under navy i'm sure but the government also has the ability under fifty three one  citizen trust must charter the boat to a us documentation citizen the directors and management of wished must be five zero five zero one citizen so section c two also requires a five zero five zero one determination it's not expressed in the rogers you asked my colleague about exhaustion from the justice department he said that these oss requirement doesn't apply to contractors that's not with the regulations us to ninety six point five zero has two sentences one for refers to appeals it does start any contractor and then has a second sentence at the end says such appeal that is the previous appeal is a prerequisite to administrative exhaustion not limited to contractors and we should note that that presupposes that minister of exhaustion is required as this court is who they almost always is required and somebody would act at their peril to go to court without exhausting and trying with as often as we do and finally on this side and point the statute says exclusive exclusively in the foreign trade or exclusively in the mix foreign and domestic trade or a trade or cement and it is in the red in the regulation two ninety six point two which neither one of my colleagues even mentioned that is picked up expressed leak in five three wanted to be the eligibility requirements so it's no answer to say this is operational federal let where it works is when the vessel goes into the program it must be exclusively in the foreign trade if somewhere down the road these are ten year agreement because of weather or operating exigencies or contingencies it might drop below that for four operationally for three hundred twenty days they can get at the dock but on the date of admission it has to be exclusive and these are the only vessels in the history of this program that an ever operated in the domestic trades this is a rare exception that the agency did not document and did not follow those that were thank you thank you