the district court erred in dismissing a lawsuit a complaint based on federal rules civil procedure twelve b six in essence your honor the district court decided that your honor turning to the to the government's briefs at page thirty eight i think they said it best on page thirty eight the government argued reliance is misplaced because the agencies position regarding inappropriate start dates was well publicized known throughout the industry in dates back several years even the government acknowledges that there were other issues as to whether or not that was a arbitrary decision or at least whether or not its decision was based on a rule that was in their words well publicized and known throughout the industry and date back several years year is not something other than the fact that it's the fiscal year the start date itself is not part of the code of federal regulations in other words control there was  can be granted in a fiscal year so if they take applications in the middle of the fiscal year they've either use them all up or at it and there are none left or they can plan how many for a year that's what i think the will make sense but convince me otherwise your honor so fundamental tenet of our argument your honor is that there is no rule as the government describes requires it because the and that's part of the federal regulations so if the labor certification can only be valid prior to the start of the fiscal year the question becomes how is that logical that you could deny somebody the denial itself i don't believe that there's any dispute that control there filed its petition or that fiscal year if you look at the language and it's a brief amount i s received your cat subject h one b titian during this filing period in your petition was selected towards the cap so i don't think there's any factual dispute that the petition that was submitted was for that lottery that was filed and it was toward the cap i think the issue then becomes whether or not and we've laid this out in our briefs is whether  out the government can say we know we want you to certify to a start date on a labor certification which is a prerequisite to even finding us in other words we haven't filed the labor certification we want to be filing it would have been rejected for not having labor certification in that labor certification you have to swear that everything is true that the started but then the government has this other rule different agency and it's not in the regulations is not in the it's not in the statutes not in the regulations and it's not in the rules and it's not in the form it says you just need to put i told her st and if you put october st we're going to accept it that makes absolutely no sense and what that really says is that you need to be disingenuous on your labor certification i think the bigger issue that the government has anything there's no rule the faith is they have to be identical there your honor there is a rule because the if you and we've laid this out in the appendix if you look at the forms themselves you have to certify that those statements are true true but a date is not necessarily true or false your honor in last they were crossing your fingers behind their backs in saying well you know we're going to say one thing on our labor certification and say to you that this is our star day but we don't really mean it i i will ask the government  the date the start date is consistent all the way through i don't think the regulations are really telling people that you need to have you know one thing down on labor certain something different on occasion i think it's just important i know i'm running it over my will not be sort of left in the lurch and that the temporary foreign worker will not be substantially underpaid any sort of way as to depress wage rates in the united states is not i know anything to suppress just out of interest that would prevent he's actually well but the larger point is just as well his question there isn't anything to prevent them from filing the next fiscal year cycle so in april this coming april they can reapply again provide the department of labor with a time frame so that they can do a snapshot in time it's a predictive judgment it's not always accurate but the point bear as the aleutian capital partners panel correctly summarized is really just to do a front regulations with respect to the six month window and the h one b visa lottery d that is much more beneficiary focused ringback specifically to the point of whether the beneficiary could qualify for that special you have to do that occupation position because it is supposed to be for specific specialty degrees jobs that u s workers could not have all of that is to say for the purposes of us yes when they do an accounting each school y and if he gave a starting date different and what was on there it would make it untruthful i think that's the argument can you respond to that yes so there isn't actually anything untruthful was said in my period temporary be for the department of labor to do a prevailing wage determination would begin august recess but my actual employment start date for the beneficiary would begin on october st because obviously those two time periods well petitioners and this is the other larger background principle here there are literally hundreds of thousands of h one b petition accompanying each cycle so each april st april bit is an extremely busy time for us yes apparently hundreds of thousands of it will be petitioners usually understand this process and know that the st date that they can actually began a twenty employment for their beneficiary is october st of that coming to school here so what it would have been exhausted were done we had to deny your your application and we're going to stop processing your application because we have literally tens of thousands of other applications the process prior to october st twenty one  short we actually think that the district court got it fundamentally correct with respect to if you're listing a and amorphous start date in the agency it's impossible for the agency to actually count that towards the correct  his question was getting at and that is a perfectly rational basis to deny an occasion and of course the petition has allowed to file another application for the next the next fiscal year cycle along with others who we do not select in the h one b in lottery or others who have been rejected for various reasons you'd also like to point out that we we agree with to i just want to emphasize with the court that you know i think the issue of whether or not there are two sworn statements is an uncomfortable issue for the government and i don't think they're splitting hairs on whether or not their articulated on appeal what the rule is that says it has to be fun you have to list the start date of october st it just doesn't exist we're all is that they're discussing and what they discuss in talks about the lottery system you know by their own decision control they're made the cut they made the lottery they have their position the next question is can they subsequently deny that petition because it doesn't list october st as a start date there is no rule that allows for that if anything from a lot looking at the regulations logically so that they're not in conflict the big issue preceding the actual issuance of the visa it would make sense that the start date would actually you know would to a certain extent preceded the start date of the visa because you have to get the petition approved st once the petitions approve then you apply for the visa in their brief the government tries to make this tries to distinguish well these is really a broad concept and a term it's really not it has a u s code and it has federal regulations that govern that visa those visa members he's in numbers which are subject to the lottery circumstance is not just as easy as applying for the next year it's there i look at i ask you that why wouldn't you do that well for one thing your honor and i don't want to go outside the record he did apply for the master camp this year it was not selected i mean it's a very competitive us s he's in trying his best to hold onto a legal status the best he can you know so he's back in school continue his education but to just presume he can go and file and he'll get it next year it doesn't it doesn't really work that way i think the bigger issue your honor is whether it was fair it controlled there was denied this petition and if you look at why they denied it you can't tie it out if nothing else if the panel itself or doesn't necessarily reconcile with the parties i think if nothing else this needs to be developed further in the court we have a stipulation that protects is status which is part of the record temporarily while this litigation is ongoing and if nothing else he goes back to the court if the government believes that this is well known and as attorney press just told the court it's just known well now let's see that how was it well known because in this case it was a tips page where a october st is the st available date your honor the one the if i leave the court with one thing is that that six month that they're talking about relates to the lottery the selection process it's not to the substance of the petition i know the stuff is is very convoluted but one is talking about the selection process control there may be the selection process it met now the next issue is whether or not the start that's basically is some of our argument is that if you look at what's required you know i'd ask the government whether or not they want stale l c s that they're going to be approving as the basis of h one b british ns because there's no way you could