district court erred in dismissing the two remaining certificates issued in the different peel into a sick stand or statute is a comprehensive limitations period that displaces all other time pars including repose periods nomura asks you to create a circuit split with every appellate court that has addressed identical language and we ask you not to do that the second circuit the tenth circuit the fifth circuit in the displaced by the comprehensive limitations framework set forth in the extender statute i'd like to just focus on a couple of points several years after a brief question does it matter that congress nowhere that the extended says you've displaces statutes of repose in those words basically a we don't think it matters because even the supreme court in the wallpaper case noted that the words statute of limitations have a broad meaning and in many circumstances in compas reposed periods as well as classical limitations periods and so what the court in walberg or did was it took a very specialized circumstance in which a study group report that had been commissioned by congress that noted in state laws there was this distinction and urge that congress displace both and congress chose not to do that and circling that was the basis on which the tenth circuit and the fifth circuit ruled that in the expander statute congress had not made that intention because what congress was seeking to do was to address the emergency financial crises and to empower the federal agencies that had taken over these failed financial institutions and give them the tools to go after the wrongdoers who had been responsible for those final financial institutions to fail and so when it says in the statute that it is creating quote v applicable statute of limitations for quote any action it was speaking as broadly and comprehensively as it possibly could have and those words ought to be given their broad meaning because on the other side there's no really good reason why congress would have intended to create what judge king in the fifth circuit called the russian roulette of having a federal agency take over one of these failed institutions and then have to scramble around in a matter of days or weeks to figure out whether it had a claim the whole idea behind the expander statute was to create a reset so that the agency could take the time responsibly to investigate and determine whether or not there had been any entities who should be sued because of the failure of those financial institutions that were federally insured and that was the way to end guarantee that the treasury which was making the monies available this was essentially for the credit unions like the that has been much talked about where the agency the n c u a had to borrow money from treasury order to keep the credit union system a float and these recovery actions are designed to go after the wall street banks who are responsible for the financial crisis and cause the largest credit unions to fail and it needs exactly the purpose and the language of the center statute itself and as i said the tenth circuit in the fifth circuit they have taken this issue very comprehensive very comprehensive opinions the tenth circuit both before and after wald berger and the solicitor general who had written a brief to the supreme court and wald berger specifically said this statute in she weighs ex statute should be treated differently fencer a club and filed an amicus brief in the tenth circuit after the court supreme court had granted vacated in remanded so that the tenth circuit would have the benefit of the solicitor  why walberg or did not lead to a different result and then the cert was denied and then cert was denied with the solicitor general opposing it served so we think that both by the plain language of the statute as comprehensive explicated by other courts of every appellate court and the purposes behind the statute that the other side does not have a reasonable argument as to why congress what is intended this particular form of interpretation now the the other side spends a good amount of time talking about implied repeal and their brief and let me just briefly address that there's not an issue about implied repeal what doctrine really covers is the more specific governing the general here is a more specific application is for the n c way in its capacity of liquidating agent and that trumps the more general application of section thirteen of the securities act which governs all private actions the whole idea here was to creating specific limitations period that would apply to the agency and so the doctrine of i think the federal government agents that's correct that's correct so they cover it so that section thirteen is not implied lee repealed it all it still has application and indeed if the private entities here western corporate credit union had a security faction that would have expired under section thirteen three year period before the insinuate took it over as conservator the claim would be extinguished all that the expander statute does is to create an exception to that general rule and that falls within this cour its decision which says that if there is a more specific statute that governs or over the more general one there's not an implied repeal here at all those were the key points i wanted to make in the opening argument judge reinhart if there are any other questions of us about the extent or statute that i can address at this time i'm happy to do so but otherwise i'm also happy to sit down and wait for a bottle thank you your honor may please the court matthew hellman on behalf of appellee nomura the district court got it right in this case because the extend are sponsored by its plain terms does not apply to status of repose and the best reading of the structure and purpose of that act particularly in light of the values that section thirteen of the securities act or tax shows that it was not intended and should not be read to affect statutes of repose account for why shouldn't we follow the tenth circuit well this court has an independent obligation of course to look at the problem afresh and i submit with respect to the panel in the tenth circuit their decision does not stand up to scrutiny we have the c t s decision i think in some level there's a forcing trees problem going on with the arguments my friend on the other side that works up to by the tenth circuit the main lesson of the c p s case is that when congress chooses to extend the time the statute of limitations to allow a plaintiff to discover claims that does not display statute or propose a left congress gives indication otherwise it is certainly true that it's not a mechanical inquiry you can't just look at the word statutes of limitations in a statute and know exactly what congress me however i will point out that the supreme court as well as the solicitor general in that case both said as a matter of fact by the time this statute was an act and act in the fiery a statute issue here congress did generally know the difference between repose and here and i suspect that this is a case of national commercial importance and it could very well be that the second circuit when it revisit this question as it has after c t s or of this court affirms in this case the supreme court will revisit that question and appropriately so given its commercial significance but i'd ask you to look closely at the reasoning of the tenth circuit because again with the tenth circuit this point we can talk about the specifics but i think the key lesson is they know where my friends on the other side what where grapple with what i consider to be the main point the c t s which is that the decision to extend the time to discover does not affect the statute of the hose if i could have the court's indulgence if you turn to page six of numbers red for you its primary response brief in this case the text of the section thirteen securities act is there and what that says is you can see it's in two parts that says no action shall be me came to enforce a section eleven or section twelve claim within one year of discovery or the time that it should have been discovered and then it goes on to say in no eventually any action be brought to enforce a liability more than three years after the offer that's the records part if congress had amended section thirteen to say to that is all the congress did with the express if if congress new thing with the center such as relevant here today that is all it did it expanded the time to discover it uses the word a cruel it's all about as my friends have pointed out the discovery of claims there's a separate interest at stake with your post that's tied and this is a point the government has made as well and i point is made as well when it has been a defendant in securities actions or taking the defense side which is that section thirteen is a balance of reparative there's if what if one part of a coherent scheme on the one hand although there were some talk about financial fraud from my friends on the other side section eleven is not a fraud statute this is not a fraud case you don't need to prove fraud for section eleven you don't need to prove alliance for section eleven it's a simple strict liability statute to have strict liability on one hand but congress recognized that bill the threat of lingering liability in strict liability meant that they wanted a short period of repose section thirteen used to have a ten year statute of repose congress cut that back after just one year in one thousand nine hundred four to a three year statute of repose precisely because the threat of lingering strict liability was causing trouble for business and they said this should be a three year statute or pose an extremely short riposte period for an extremely low bar for liability statute those two things go together and what my friends on the other side are asking this court to do is to jettison the protections of repose but to keep the strict liability that they want to proceed on in the lower courts and the question for this court is is that what congress intended to do here and i suggest to you that it is not and there are several reasons why that's the case and we can look at the structure of the statute and i think that they all point in the same direction first as on the pointed out during mr fredericks time of year congress used the word limitations they didn't use repos use the word limitations for that matter the limitations are framed in terms of discovery again it's a discovery statute just like the one c t s which the court said does not displace repose unless there's some reason to think to the contrary i should also point out that this is a very strange statute for affecting federal federal claims statutory claims what the expander statute says is you should use the state limitations period and left some other period as longer they did say state and federal there are twenty three other places in fire where reference to federal law is made expressly but they only said state here why because at the time that this bil acted there was a dispute about whether state law claims should be subject to basically the rule that the they adopted here or some other rule this is only about by its plain terms state law i think again my friends on the other side want you to read the stats of the sa limitations period if there is one but doesn't say if there is one nor does it say use the state or federal law as appropriate it just says state if you're going to give that term meaning then it should be read to be limited to state statutes let alone not affecting section thirteen statute or propose i do want to point out a couple more make a couple more points in regard to what i understand to be my friend on the other side's argument that this needs to be allowed lest the interest of the federal government not be served several points i want to make in response to that argument first of all the course this isn't the federal government here this is a suit taken out a private suit that's been taken out by a government agency but if the united states were the plaintiff in this case if the united states were the plaintiff if it had bought securities and were bringing an action under section eleven or section twelve it would be limited by the three year repos period of section thirteen so there's no discernible federal interest that i can tell that says that the n c u a and a couple of other agencies are the only plaintiffs on the planet that don't have that aren't they don't have to abide by propose secondly what was the purpose of the statutes well there are so many other causes of action out there this is unique in that this is the one cause action out there of all the claims that a has to bring claims but here there's a separate value a specific value a specific value tied to the particular form of liability and i think it's good background for the courts to recognize that this case is proceeding in the district court against other defendants on the very same certificates that are at issue here there are other claims to be brought in this case which theoretically if proven could allow the plaintiffs to recover one hundred percent one hundred percent of what they're seeking on claims the don't have the three year riposte period that congress made specially for section eleven and section twelve claims so this isn't this isn't turning section under statute into an oldie far from it it's saying that it should say that you respect and congress it simply says for the limitations period for the actions of money in healing well you know this framing of specific in general if i if i understand your question correctly i think it's a little bit off base the one statute or proposed that's been on the books since one nine hundred thirty three tied to the substantive provisions of the securities law that's the question and i assume it's you the question the answer the question is there's no reason to think that's what congress is intending not only did they use the word limitations not only is it framed in terms of discovery where repose is supposed to take place regardless of whether there's discovery and for that matter they're talking about state tort and contract claims it's none of those pieces add up to anything that points in the direction of this exactly the same but they do do the same thing if this statute used the word statute of limitations and then said the period of repose for any action brought by the n c u a is x years i would not be here telling you that s limitations doesn't affect statute of repose that's not what congress did in the statute what congress did do in this statute was say statue of limitations that's a point in our favor not the other side and then construct a statute that by its plain terms is slowly only concern was setting a time period to allow the plaintiffs additional time to discover claims that's the first part of section thirteen but it's not the back half the back half serves additional values that are not that that would be overrun or limited i should say imply would be repealed really to use the proper frame phrase if the plaintiffs view in this case were upheld and again i don't think it's correct to look at a case like our dentist and say well i was just taking a little nick out of out of a more general stature this is the other way around you've got a statute that applies to any claim any tort or contract claim and the question is did they win such limitations period for that client the question is did they mean to repeal what's in section thirteen and that's another point you know if you're looking at the quality of the reasoning put forward in the tenth circuit opinion there's a lot of emphasis on the fact that it says any action or any action it does say those words but what did also says that sets the statue of limitations for that action and the c p s court as well made a point that my friends in the other side of said it as well that somehow or another this doesn't look back and actually extend a statute of limitations but zachary what it does it looks to a state statute of limitations and says use it and less another period is longer that is exactly the type of take one statute and extended out and by the way the state statute of limitations not state or federal not state if a political state that's the starting point of any extend or statute analysis start with the state statute of limitations and extended outward that type of reasoning that type of structure doesn't make any sense when you're considering the delicate policy balance that congress made and then adjusted in giving a first a ten year statute of repose for the strict liability claim and bring it on down three years three years back in one thousand thirty four and i think it probably everyone in this room has at some point we spent spent a fair amount of time looking at these two statues next to each other there's just no indication whatsoever that the extended statute was intended to reach that particular policy concern which the supreme court said in c t s is distinct from and by definition is different from the discovery issues that are issues that the sender statute deals with not i do want to close with a couple more points this is a statute again that begins with the phrase notwithstanding any contract saying any provision of any contract if congress had want to say notwithstanding provision of any federal law it would have said so just like it did elsewhere in fiery there is no one can search in vain for the clue that this was intended to apply to a federal statute and it's just not wants limitations to run as long as possible there's no special magic to the us a position in this case it just reflects a little getting interest this court i suggest is obviously governed by the tax and structure purpose of the  i want to start with why you should not create a certain conflict because that's the key point that my friend never addressed with all the appellate courts that have looked at every single one of these arguments it would seem the burden is a very high one to ask you to disagree notwithstanding the independent duty that you have to analyze the statutes very responsible course from judges reflecting a wide range of viewpoints have been unanimous in construing the center statute in identical language in the way that we have advocated and i would submit that they have not met their very hyper can of urging you to create a circuit split that would require the supreme court to intervene nor have they given you a reason why congress would have crafted the statute that they are imagining there are other periods like the clayton act that have been described as repos periods and their argument essentially is that nixon or statute ought not to apply to any federal statutory claims at all that have those kinds of characteristics that have been called by a different course to be reposed periods but why would congress have done that when what it was attempting to do was to give broad powers to a federal agency to protect the treasury the federal fisc at a time of crisis when financial institutions had failed and the statutory duty of the agency was to take over these failed insecure sions and to figure out whether or not there was a viable claim it could be brought the whole point of the extender statute is to appreciate that breathing room and they don't give you any reason why congress would have thought this some claims ought to be given hierarchical priority over other claims for purposes of determining whether or not the federal agency in this circumstance should be time barred he notes that by nine hundred eighty nine there had been some reference basically through the study group working report in the circle a case that there was awareness of statute  repose but if you look at the black's law dictionary from my hundred seventy nine repos means limitations and limitations in compas is repose there was no a fixed meaning that repos was distinct from limitations at this time and indeed several statutes and there were public acts that had been introduced but no one acted says she's so the presumption ought to deed that statute of limitations has its broad meaning to encompass any other time limitations and that's what the fist circuit in the tenth circuit has held the concede that the sender statute displaces other limitations periods but they never come to grips with what the words any action means and that is as broad as you can imagine a linguistic  formulation finally he says that the agency here is not acting in a federal government capacity i think congress would beg to differ that's the why there is a statute on the books that confers these authorities by congress for the n c u a to perform these very important functions of protecting the federal fisc at a time of financial crisis if there are no further questions will close at this point of the argument thank you