are by no rational definition performing temporary work as required by the ins and this court can address d o l n d h s is clear violation of the h two a provision in the most straightforward approach implicates one of the regulations that well issued in response to mendoza v paris from this court that regulation twenty c f r six five five point two one five b two allows shepherds to stay in the united states for what do you well call is three hundred sixty a six twenty their deal well does three things first it recognizes that each to work must be either temporary or seasonal second it concludes that shepard work fits in the temporary category and third it says that the three hundred sixty four day period of need complies with the definitions of temporary in the deal well in the d h s s regulations and is consistent with the i and i as explained on pages thirty to thirty one of or on the next page they also talk about how that should should be required and quoting from the language of the comment right but that doesn't say you should never give a temporary or susan all pass it says you should separate into two separate seasons i think that what was implicit in what they were saying there is they're responding to a question that was asked by the department of labor in the n p r and they asked how do we make this visa program comply with temporary or thing in the middle thing then you would have something but your position is that they could never get a visa for a temporary or seasonal he's right that's not i don't with respectively that's quite right i think that they could have i thought that's what i asked of you and maybe i misunderstood your question with apologies they we believe that the shepherds could receive seasonally based h two a thesis or they could also receive the eleven fifty three piece that we talk about elsewhere but they could receive a seasonal visa for the landing season and a subsequent seasonal visa for the herding season we think that's the only way that shepherds can that that the  we think that it was in response to the question we don't we do not think that you need to reach that question either because of because the deal well itself raise the issue of who i'm twenty to a six twenty in the final rule deal well on that page very clearly these eases have to comply with a temporary or seasonal requirement they raised the issue they said that temporary that the temporary bucket is what we're using here and that is in compliance with the oil and v h s regulations i would point to the two thousand and fourteen energy see case which you cite on page forty seven of our briefs if you dio if deal well itself raises the issue that is sufficient actually that the facts of that case the two thousand and fourteen energy se the same waiver argument was raised there was a similar this court said you know what we're not certain whether or not that issue was raised in the comments but in reaction to the comments e p a definitely raised the issue as to whether or not the exemption it was using here was statutorily authorized so i think that you don't have to reach the question as to whether or not the commenters raised the issue i think that on two separate grounds actually the two thousand and fourteen that analysis what they did have statutory authority i'm sorry on page thirty one to thirty two of our opening brief the now alice is in that second full paragraph on page six twenty is flawed it's completely flawed the government is that that right there is the issue being raised it is squarely on point with talk about the the merits as to be oh well we think that the the analysis on page six twenty does not comport with is arbitrary capricious because it ignores abundant evidence the ministry of record that says that you know all these a choice shepherds are here for years or decades on end as one ranger says it's misleading to even call them temporary because call a spade a spade somebody who works in the united states in the same job for twenty years is not performing temporary so this marriage labor certifications with deo while the district court resolved that on the waiver issue we think was which we think was iranians especially given the n r d c case and the d h s s which the the page i'm sorry six six twenty it's sixty three thousand of the federal register the previous page you can read in full talks about here's our analysis here the different seasons that could've you know that that are you know available we reject that that line of reasoning we think that shepherds are performing temporary work but if you look at the framework and matter of r t in a number of these different cases that doesn't line up with that second full paragraph on this is i'm sorry  response to the idea that there could be separate seasons right this is i think that if you look at it what do you l is saying here they're saying and you know our position is right they said it in the n p r and we might have a problem is does this work comply with the temporary season requirement in the i and a response in the final rule is the issue is resolved in a flawed way on page sixty three thousand and i think we say the same thing on page forty seven of our government's litigation strategy or d h s s litigation strategy is deep it should be deeply concerning to this court it's defeats using bureaucratic constructs to sort of deny reality or defy reality here there's the reality is most of the shepherds are here a regulation that you're challenging is arbitrary and capricious you're saying there's an unwritten practice or policy of granting temporary status in a situation in which by nature the shepherds are not temporary that i believe that  is with one clarification i think that is what i believe until i received a response to the nose a supplemental authority last week there the government for the first time actually addressed the fact that shepherds are here for three years and in that at the end of that supplemental authority they say at most we have all these ass is now taking the litigating position in this case that three year shepherd he says are legally authorized that is interpret the law that is the equivalent of an agency rule and i think under the casino case that gives you final agency action to reach issue in the regulation i sort of that's part of the argument that fails to regulate so we should there is no regulation that the regulation is if the regulation were actually enforced as it should be under a matter of is that the regulations are fine it's just that they're not being applied they're not there there's an unwritten exemption or there might even be a written exam a written rule that we haven't received right that just to clarify the position of the h s below is our is our argument is confusing and join the twenty fifteen rule who the other twenty five so where is the cause of action that you're raising here that is a policy of permitting especially permanent of a tension between the reasoning of the denial of the motion to dismiss and what the district court says that summary judgment is not really at that unusual one happens very early on in the litigation what happens later h s was taking these illegal actions that they weren't on sufficient notice of the policy that we were talking about we responded that yes we are we are you should be on sufficient notice because we are ou policy of rubber stamping the labor certifications in the visa petitions after the labor certifications were approved by by by the oh well why don't we the complete say anything about rubber stamping i guess  term of art that we used in a complaint we said you know d h s s is a fact of lee authorizing these these is in accord with the two thousand and fifteen rule because it hasn't announced any sort of its own polic sixty eight sixty nine and can you just say which it's it seems like it's one twelve and one fourteen and mention v h s and all issue here if we had if we had been told that we had provided sufficient notice to d h us about our claims that these allegations we would have amended but the district court agreed with how can we find evidentiary support for this and we did what was done in the r l our case and judge those were also looked at you know well it seems they were going to have to litigate the existence of this policy before we decide whether or not it's the product of reasoned decision making and we did that as best we could because it's hard to prove a policy without without having sort of any written document you can see the policy in its effect we've submitted five or six different declarations from you know from actually to a shepards one of them has worked in the united states for nine years you'll be a u s citizen today if he was given the right the first time around by d h us we've all these different equations for american workers who are asking for work on these ranches and they can't get it because the ranchers can pay four dollars an hour and they can rely on year round then it goes to his exact same process to get the extension i didn't see much discussion of the extension process which seems to me that's really the crux of the problem isn't that the issue three hundred sixty four day visas the problem would seem to be if you're going to the employer go on day three hundred sixty or something labor yeah i mean as a practical matter they generally go before you know they want some lag time so they'll they'll renew you know say two months out from the end of the first labor certification and then they'll belt they'll start that process that it's the same process for the mining process the same process for the renewal as it is for the engine and do you have evidence or one opportunity to and they're all working here for three years so if if the question is do i have those pieces of paper that say this is renewed in front of me i don't i'm not sure that it would be  did and finish a casino and that questions very simple questions a summary judgment question is there a genuine disputed material fact the shepherds are here for three years answer that question is now there's no genuine dispute we've put forward you know there must be you know we've pointed to at least two three hundred different instances where these shepherds have been working for three year periods and the government has never put any factual support in the record to rebut that i just i do want to ask that's for you to get summary judgment your employment is about other jobs it's from moving from being a straight peach picker to being an apple picker so that doesn't authorize three years of work in the same employment we provided that analysis in our opening brief the government didn't on a genuine issue of material general then you dispute a material fact on whether shepherds in fact are here permanently then the grounds on which the district court may have granted summary judgment against you might not matter because if you don't have any evidence and there's no that we would have to do that because the it in order to i think this is a point potentially in your favor i'm not saying that we're necessarily there but which is that for you to get the summary judgment grant against you overturn you would have to prove that you're entitled to summary judgment you just have to prove that you raised a genuine issue so that if you go back on the question of whether i would have to have like a trial on whether or not you know or whatever i mean nasty court just hasn't looked at it in the way that you think it should be looked at yeah well i think that is wrong that necessarily directly relevant but i'd like to understand it so i understand why fairies represent both american shoppers for sure that's correct and an organization with both i understand but how are the interests of the american  win for both the american and the foreign shepard's what would happen is one of two things you rule in our favor and deal well india chess have to go back and figure out the seasonal visas and i think that if they do seasonal pieces they have this idea right that we can do this monthly wage with a monthly wage wouldn't work for certain seasons especially the lambing season so they'd have to do an hourly wage and that would raise their wages or what it would mean they could say for three years well i think that it would be i think it's hard to spec i don't think this reasoning and it you know doesn't cross appeal here if these workers had green cards they would vote with their feet to move to different employers right because they wouldn't be so stuck with the visa sponsor they could go work and i think that the rising tide there would raise the ships of both workers sure in the long term maybe some of the h two a workers would be displaced by american workers because it would cost less to you would have to fly them up from peru for example  don't think if what your question is driving out is whether or not we have the sort of some sort of article three problem with representing about this that i really don't think so i mean i think i might as a problem here class action but not a problem for us right now for a big of a class action as in  address correct in that you never issued for more than three hundred sixty four so that's all right so my question is this suppose suppose it's true that shepherds are essentially permanent permanently that they're not temp then it should be should also be true that these are petitions that are presented on an assumption that their temporary shouldn't be approved because in fact a permanent yet i  this is a regulatory regime that's supposed to allow for temporary visas but really it's a sham because nobody nobody's really thinking that these are temporary they're actually permanent the everybody understands that the shepherds are coming here for a more permanent basis than three hundred sixty four days and so whatever the h s and roland is in authorizing these supposedly temporary petitions the h s should be doing something different they should be denying them because they're not actually temporary they're in fact permanent so they couldn't be getting these a petition it's interesting that nobody of the five hundred  n comments that were submitted during the making proceeding nobody raised this as an issue that at three hundred sixty four day period a maximum period would be a problem and weight workers over the years yes and that that could be we don't know that and they couldn't possibly can consecutively given that you can't get a sort of case in for a full year we don't know what the temporal period h s piece of it i guess i'm trying to understand what you think plaintiffs are required to do because if they say if they just start with a legal premise the legal promise of which is that if these workers are in fact permanent they shouldn't be getting approval on a temporary basis that seems to be that correct me if i'm wrong with that there seems to me to be a good indisputable proposition that seems just right as a matter of law that if in fact there permanent they shouldn't be getting approval on a that's the question so that's that's what i want to get to so that that now we agree on the legal presumption the assumption that there's at least in theory a potential claim here then the question becomes what are they supposed to state in order to get that claim heard and if they say look we've got some people that with who for whom we have declarations who say that they just got out about it we renewed so it seems to us that they're basically permanent and if the allegation is that he is just as a practice of just rubber stamping this the to see whether these folks are in fact temporary or permanent and they just assume that they're temporary when in fact they're not and maybe da just has some you know secret memo in a file somewhere that says we're going to approve these even though they're in fact what what you're not saying that you know silly wrong in saying they need to do something other than that i'm just trying to understand what you're saying that that would suggest that deal well is violating its own regulations here that said that they're not going to i the argument they are saying that da just is not acting in compliance with its own regulatory framework in terms of what so there would never be a period of more than three hundred and sixty four days approved that would go in the wall and i say so as far as it goes to the back to back with the three hundred you know i don't have i'm sorry i musta missed understood your question i thought you meant consecutively without the extra day that must be temporary and will not be more than a year except in extraordinary circumstances and do you have a sense of what extraordinary circumstances mean what is a deal setter sorry sixty four day piece of by the way we're going to we're going to just everybody understand what's going on here we're going to get it will be twenty seven times in a row we're going to do that and you know that we know that everybody understands that this is just going to be basically an automatic renewal twenty seven times in your view is that that's perfectly fine by my view that the h s has not spoken to this because this had presented it as an issue to them and nobody presented this as an issue during filled with come on this is god and i still without evidence from the range association and it's filled with evidence from shepherds and so i find it a little livelihood d l l and h s wouldn't in the course fact that most sheep are in jobs are neither temporary nor seasonal in nature as an issue to certify these petitions for up to three hundred sixty four days at a time during the roll making and so the department put the question out to the public and asked know should these be certified on different seasons based on the landing season and the more open range says and there wasn't a clear consensus on whether the maintaining them as seasonal and temporary even though they are not well and that shade determines that three hundred sixty four days or less did that meet the temporary standard and nobody challenge that and to allow around a little over two months after the comment period then raised it in court you know the whole purpose of notice and comment it's to provide the agency an opportunity to respond to was to put the agency i noticed but i don't know i should think the agency would be on notice of what it's doing so it's not a question of an argument as it was that the agency on notice that was not only doing pretty hundred sixty four day renewals days but then renewing them routinely for three or three years that we know already because we're the ones doing it then we renew that all the time and so when we say three hundred sixty four days we really mean three years that someone have to say to you that or are you not charged with knowledge of the practice or engage in it if you're not doing it case i think somebody would have to suggest that that would not comport with the regulation but either way it d h s s whatever the department of labor decides on a particular application t h s has the full authority to look they've decided the three years are temporary and it seems to me as either of those the agencies on notice of what is still on what we don't i didn't we don't know they could be asking for periods of six months on an annual you know once a year for  six you all have the extension process it's your extension process and so you would know already whether you're doing a lot or not and what types of require you know what kind of showing your need extraordinary circumstances before you're going more than three hundred changing everything with respect to land use he said that was no more identifiable as an agency action as the weapons for german program or the drug interdiction program here it's a very specific action that's being targeted it's the two time renewal of one year at the best these us that's a lot narrower than what was going on in the hot but it if they could bring a claim like that then they should have at least the evidence show that fifty percent of the visas are renewed at least at least twice so that shepherds who supposedly are coming temporarily or seasonally are actually here widespread attack on a government program it's a very specific claim that there's a violation of one specific statutory section by one specific kind of action namely constant renewals but that to get there you would have to  on the fact on the labor market whereas d h that is the most of them are an arbitrary as an empirical statement by deal well that that's what is happening it's not a question of assessment it's saying that there really aren't any temporary or and they could certainly petition death for a separate specific regulation that they believe one is necessary they could but of course they could do that but the question is do they have to or can they bring this litigation and if you focus on the you just and you don't have the argument that n taken at his word that he says he's been here for three years but that would be consistent with the provision that allows an age for a worker to remain in the united states claim can't be asserted because they're they're bringing something else proposed by lu han their bridge they're bringing a challenge to an unwritten rule they're doing something that makes the claim of by nature flawed as opposed to saying they have a claim that by nature actually could go answer i don't i'm not positive on the answer that is that is what i believed to be the case that i would have to tell him that i know that they review these their positions on a case these citations are throughout our brief but i just want to put them in one place for the court there's ample evidence in the administrative record that shepherds are here for three years and we just give you the list j a four seventy eight a factual finding by the district court that they're here for three years the district court says  some ranchers employ them for twenty years judge garland you're referenced ninety fed reg six to ninety nine talking about how they're reemployed over the years day seven nine five it's the comment that we quote in our brief about how  rancher saying calling these isas temporary is quote misleading we have employed people here for twenty years j a seven seventy seven is the city way comment and that comment talks is heavily relied upon in the rulemaking in that comment city way says that all of our shepherds come of labor and then if you go to the industry comment it's j a six ninety three again there's a talking about permanent need for these for these workers that's from western range and from mountain plains the two chief needed discovery in light of what seems a pundit leigh clear an essential element of being an age to a shepherd is working here for three years if we're showing the renewal pattern would be pretty powerful evidence what you want to talk about on the showing that it's all these individual decisions are again and again and again making the same renewal decisions without any evidence of  class class of permanent shepherds not some seasonal or temporary so this person here and that person there seems to me evidence but a pattern of renewals with me right i mean well i here's one thing that isn't in our briefs we said you know for the wages you know we said the district hospital case on page fifty four you know the at you have to have accurate you use accurate data and we think that the core problem with you know the wage calculations here both as to the wage figure and as to the the eighty hour the forty eight hour figure is the accuracy of the underlying data