argument is national labor relations board versus enterprise leasing mr selden you're ready let me try to try to clear up something both of enterprise leasing and huntington are relying on little under packing case that's correct your honor i think that is distinguishable in the motel you why i think it is owners face it is just cases if that is the board's position in this case your honor i agree i believe that position is incorrect based on three sources of law the first source of law that we rely on is the actual text of the act and the text of the access that once the record is transferred to the court of appeals the court of appeals has exclusive jurisdiction over the full the full matter and its judgment shall be final someone this court issued a prior mandate that stated enforcement denied and didn't in did not include any language in the prior opinion implying that a mandate should occur that in the language of the lengthy packing case it came to that the case is closed in all respects it was short which we certainly anticipated and expected  without well does not preclude the board now properly constituted from considering this matter and issuing its first valid decision as a second circuit acknowledged and don't see trading we expected that seven the tonally carmi case makes very clear that the issue before this court is the question of not what the panel expected when it wrote those words enforcement tonight but what the objective meaning of those words is so the  that all premisses on we there will be a revisitation of a marriage determination that is being considered in the marriage determination has to come at some point for the system to work doesn't it here i'd say two court clearly said the really is no such distinction between a sort of jurisdictional issue and a merits issue when it comes to the actual view of agency decisions that distinction can be drawn when it comes to the review of district court decisions but there is no  germination by the board and once the courts have passed on the merits determination then that merit terminations stans that distinction between merits determinations and on merits determinations is no were found in the text of only filed with respect fine with respect to that particular issue and other issues merits related issues that we haven't yet decided are open for reconsideration though in the organ a case below when you wanted the agency and there was you on hearing only within twenty four hours of the now they you would already that's correct your honor your honor and but they can't go back in and force the marriage germination that we want on it would depend on what the language of the courts mandate was which is an object of question the mandate in this case reads enforcement denied enforcement and i cannot plausibly be read to mean we manned it with instructions for further mandate language of this both of those because lundy was a mandate interpretation case and there's another factor of it no but i as it is yours rests on the objective determination of what was said in the mandate of this case correct it you don't objective reading theory which i think is the bad theory generally which you don't need you just think it's still for to say what else record is done and there's no other court case that would say we couldn't do it in this current case that's what your unit would be wouldn't you say objective really i win and there's no the case law that would by this panel say otherwise i certainly would say that your honor and then i would add that it's helpful for the reasons that are discussed in our brief one of those reasons i would point out there's something there's a unique factor in this particular case which was also present in the monday case also present in the miller case from the from the eighth circuit which is that the board in this particular case unlike the past as far as i can tell the vast majority of the other cases board that was simply prolong it you understand what i'm saying i do understand the point you're making your honor i know the court has not done that so far i believe that would be an extraordinary action for the court to take having already denied the petition for a hearing that's already been filed in this case so my understanding is that once the minting issues prior panel opinion enterprise one is completely terminated so they would have to the board would have to move to kind of reopen the prior case in order for that to occur and i don't know if there's any legal authority for that i don't agree with your exceptional circumstances can exist for recalling the mandate and in this case those except to think section circumstances do that your honor and maybe this may address your concern about exceptional circumstances in this particular case there is the exceptional circumstance that cuts the other way that circumstances unlike the vast majority of other cases in this particular case the board never asked for  there's a been a mere determination and that maybe was different but if in fact we feel we have the authority to recall the mandate and issue the remain and then under those premises i want to outline at the outset first of all we believe the essential facts are set forth in the record before the hearing officer and a hearing that was conducted back in february of two thousand and eleven and the hearing officers report are fully supportive of our position with respect to three objections and we'll get to those the second thing we have to remember is that the election that was conducted in the summer of two thousand and ten there are approximately one hundred two eligible voters forty four voted for the union forty one voted against the union and they were to challenge ballots in short it was a razor thin election in there were twelve eligible voters who did not vote in that particular election and those were would have been determined so that co of that could be your honor but the fact of the matter is that that does get us to the first objection i'd like to address and i'm glad you like me to that and that objection is that in the record it illustrated this before the hearing officer on the dates and questions december working i asked that to you to get a response because i know you did stay open and you did what did we did and i thought i'd answer that question and i apologize if i did i wasn't trying to avoid it yes you're on i don't know why you want to go there because in a prior powell opinion we address all of these issues very painstakingly we did so because we wanted the panel of the board to have our view assessed what we felt about the merits of this case and in a detail we presented that in the prior p then yes you did your honor in all candor there was some discussion i recall you asked me questions in the park case about whether we should have had evidence or not had a at events as to why certain people did not attend or participate in the election in the board cases in particular re ip limousin indicates that we're not supply your id you're wasting your time we are going that to me to this panel because you you haven't taken  challenges to our prior panel opinion we haven't yet you back up here again we did take challenges to your panel opinion your honor the board in their october second two thousand and fourteen decision indicated that this case was you that the record doesn't support any of your claims i appreciate your position your honor the applying the ip the limousine the weather was severe in a determinative number of people did not vote in that election and based on that board law is that that sufficient to conduct in a rerun election you want to go back and conduct an election or do you want to conduct one now because of the composition of the group may have changed you can't do that you've got to live with what was decided back in that election that there's not what you like to revisit today at this point we can't reconstruct at election what what the board is going to seeking to enforce you are pee in our point of view is that there can't be any obligation to bargain where there wasn't a properly conducted election and that's the problem here there wasn't an election that was appropriate for three separate reasons one of them was the weather i know i've gone beyond my time i know i've been instructed to stop we had two other issues on th good morning i'm heather beard and i represent the national labor relations board i will be addressing the threshold issue of the board deciding the case and new and then for the last five minutes of our twenty minutes mr side my colleague will dress the merits of the unfair when read the way that mandates are read construing them reasonably in light of the judgment and the opinion is that the mandate as it stands allows the the board to go back and decide the case in new because there has not been a valid board decision on the and so construing the mandate in light of the judgment which clearly states that the reason enforcement was denied in this case was for the sole basis of the constitutional recess appointment issue because that was the only basis for the denial of enfor is that the mandate then allows the court to go allows the board to go back and decide the case and and that's exactly what the board did here and when you read the mandate we're not reading the mandate as the lubrizol versus exxon case shows in a vacuum or in isolation the mandate important tonight is read in the context of both the judgment and and so we believe that when you look at the judgment opinion but that's all that the board asked for for the order to be inforced you didn't ask for the alternative to remain and that is that that make all the difference we believe it doesn't make a difference your honor for a few seasons the first reason is that the  goes in front of these courts and brings cases and a lot of times even without asking if we lose we want to remain and the courts retain the equitable discretion to grant remained and so we did not in this case ask for a remained with regard to the unfair labor practice issue of losing on the recess appointment issue that is correct that is not necessary ask for it in the petition for rehearing yes and the petition for rehearing was denied the petition for rehearing was denied without any comment yes and we would argue that the case law on that is pretty clear that when there is a summary denial of a petition for rehearing that that does not answer whether or not it was denied on the merits and indeed in the petition for rehearing we set forth the position that we believe we don't need to have an actual explicit re mand from the court for the board to go back and decide the case in new and in that petition for a hearing we set forth those reasons construing the mandate that we have from this court as well as relying upon the whitesell of the sit in from the eighth circuit which is the closest case that we have to what we have here when there is a decision from a court based on a quorum the court in relinquish jurisdiction the board was able to go back and with a constituted make a decision on the merits of the case and so our position is that we do not need to have this court go back and and get rid of the old mandate we believe that the mandate is sufficient as it stands and we also as we point out in our brief one of the things in reading mandates is the equitable  sorry and the equitable principle would show that after new process which was another quorum issue that was decided by the supreme court and after normal canning every other court that has examined cases that were not decided on the merits by a circuit court has allowed the board to go back and take a look at the merits and new and that would be exact same thing that we're asking to happen here in in the enterprise and later in  brief that that we submitted makes clear why white cell is good law and why the mandate construed properly allowed the board to do what it did and i'm i see i have i have a bunch more time i'm more than happy to to continue unless you all have any further questions i can leave the merits to my colleague no further question i thank you very much thank you vacated effects were carnations were vacated but you've gone back in your process which you can challenge but in that process you have in fact made those thanks will find its again your honor that the board's ultimate determination that has been made  if you hear you say anything you think your honor i will trust but some courts i cheered by i returned to the question that you left me with which had to do with this court where there would be a proper exercise of this court's inherent authority to withdraw the enterprise at least two reasons number one is i believe it would be an extraordinary step for the reasons that judge baca was indicating in her questions out to my colleagues which is that there was a clear appeal that way for in this particular case this case is it may be unique it's certainly that the board which is a highly sophisticated litigant who had been down this road two years before or after new process steel was aware of this issue of remaining for whatever reason either strategic or inadvertent never asked for remained at any time prior to attorney saying look i don't want to ask for e mail and as an alternative disposition if we were to lose on the panel the no canning panel constitution issue because that might signal the court that we're not confident in our position we don't know when in fact i think it's probably irrelevant what the reasons were for the to waive that but in n r a cases this court and other courts of appeals in the supreme court have treated that as a critical fact when the packing sent at no point to the board ever asked for remained as an alternative disposition to consider a merits requested that in this particular appear as an alternative way to get what they want which is unfortunate this particular order so i believe it would be an extraordinary step for that reason as well it would be extraordinary because it involved a s case he said in the specific context of appellate mandates under the n r a there must be either an order of remains or some express qualification and the judgment contemplating future proceedings for the meaning of that mandate to be that the board may continue to resume jurisdiction that is the meaning of the exclusive jurisdiction provision in section twenty of the act and we request respectfully request that i'm sorry your honor i would suggest you that is into this question of this cour a merits issue out there that had been left undecided and that could cause great inequities i would direct the court's attention to the eagle picture case in the eagle picture case you know there were two hundred nine mining employees that have been wrongfully terminated they were reinstated with back pay they were granted great council and go right to the next