here are so outside the bounds of correctional forty that quite literally the agency would have to be a second congress to to probably hate them if you look at their regulations the h s here claims that that alien employment may be authorized either by congress through statute or through regulation in other words their power is equal to congress as in that area in addition their regulations assuming assuming that is supported by the case law as a starting point what is the redress when you're talking about it's a third party type stanek a saloon case where you have to rely on the actions of believe that were correct that is a correct statement i believe that help to test three frames are not no no i'm asking you based on case law on his dress you're riding on the you're relying on the eventuality if you can knock out the regulation that employers would hire your folks as opposed to the people who you don't want in these jobs are right no that's not correct or are in the case of the injury is the exposure to competition in the market that yes if we  succeed these aliens are moved from the market to competition the third party is it the third party thing has been completely rejected by the circuit repeatedly you can't reject the third party concern of supreme court you can sort of sort of hear through what we're talking with here what i'm sending you with the mere fact that there is a possibility it's like the looming case the mere fact that that the agencies may or may not have followed the regulation the principal  will do not just you conceive of this is competition because another way to look at the case is in competition all these folks are merely folks that are hired if the employees are allowed to hire but they had nothing to do with whether they were your read those cases it was absolutely clear that they were competitors meaning there were more people competing for the same thing the question here is is that true what have you know what have you offered to show that if you win the regulations go on and no permits can be given your people will get jobs that otherwise would have gone to the interned you are with there's nothing to that because if you look for example  shalala case that the that consumers always decide whether what to purchase in a market place the injury is exposure to the competition by allowing these people into the marketplace and here they are explicitly in the market the plaintiffs here in this vendetta five plaintiffs are too computer programmers and a network administrator representing the union that represents technology workers here we have regulation that allows specifically allows people in those occupations to join the market and i would point you to the national credit the first actual bank versus national credit union case where one competitor was allowed into the market banking market the record through regulation they allowed one credit union into the national market and this court held that that admission was a was an injury and the supreme court went to review that said that there was no doubt that there was injury in fact away and that because competitors were allowed into the market so this is this court is reject repeatedly rejected the argument that the third party that you have to have someone that there's a specific the same thing and if you're not going after the same thing you're not competing we're in same we're in the same work i mean if you have if you ask the question what i hear your answer which is not enhance or i guess the question i would like is not necessary to show competitive injury no but the court has always assumed that what we were talking about was the same sort of work same sorts of work that both groups were going after and nots the question here is program you're are they are in the same exact same occupations that the h s has a list of fields they call the stem field list which includes computer programmers and system in this writers and sort of variance on what because you're also helps both you get a graduate degree you can be all that fair and also you're assuming that our people don't want won't take an entry level job be one of the big problems is in the industry is that is older workers getting jobs and in the market and he would clearly take an entry level job to get back into the occupation did he lose his job to someone's program he did not lose it of job we don't know he was just laid off so this is this is why we in when you form when you have formulated and the court knows there's no way to tell you know who a pharmacist is or prescribe on one drug or the other but you could tell that there are in the market and or in competition what do you think i mean it's crucial for your argument to be able to go through the statutory issue that the agency reopened in the rulemaking reopen the conversation about  the question of whether it's legal for them to work twenty nine months which is league no no there's a different picture there that this record the first time around so you clearly have not shown that the agency intended to reopen discussion about the  question used i looked at the federal register what is it you think that the agency said in the federal register to suggest to you that the whole question on statutory authority was open again one like the reopening is the ability to combine the two previous regulations dealing with this did not were made without medicine comment oh no that's not it's wash in the real printing doctrine goes to the agency can have  a rule making on a discrete portion of an existing rule that doesn't allow you to get to the initial inquiry as to whether or not they have authority to regulate in syria all they've done years extend the time pleaded that we had pleaded them sufficiently it was responded to whether they don't like response or not i you know i can't say it and that's a view but the district court said that there's that we didn't say anything when clearly we did say say something this record said we to publish the stem list in the in the federal register you know discretion i have won the world they were the humans talking about here i didn't have any idea where they were doing that until they did their response brief here when they were saying that that was something that we were saying that they out of the higher end cars and putting it in the hands of the at the age of the agency and the end the rule making here on the particular trip troubling that that direction here were done for the specific purpose of getting of circumventing the qu b to exist and the regulations were done in secret with not with no one even knowing that they were that these regulations were being considered at the time and they've been allowed to stand by the court may please the court i'm scott stewart on behalf of the federal government in this case the district court dismissed wash text complaint on threshold remove rule twelve grounds the court's dismissal and judgment were correct and this court should affirm the sentence out of context from the complaint to suggest they haven't said anything and what they said was we think the stock traders on wall fall because it allows folks to come in on commit the statute as it's not appropriate because their students if you look at the complaint all the way down not the one sentence you cite they cited a clear legal claim and cited thoughts that are undisputed that is the folks who that the government's not disputing that that's what's happening in the program there aren't any more facts to please and there is this weird charade that goes on below that they haven't played facts to support what more do you have t just a little bit of color about what do you think they're saying everyone understands these are not students who get the benefit of these permits we read the statute you say that's impermissible that's your claim now why do they have to see anything more than that at the pleading stage well your honor i think the district court has trouble on her you know understanding i don't have any trouble well i think you know we put this into issue when we when we move to dismiss your honor and you know it's really here's the that it's limited to students this program clearly goes beyond students and gives a benefit to folks who are not students we think that is unlawful and the fact about what the program is the fa in contested and everyone knows that and so we're now in court let's get to it and then you come in with a motion that they've conceded because they don't respond for the what more than a reference back to their complaint one question but it sure enough to get you past the motion to dismiss for failure to state for failure later claim i don't think so in the context here i don't think that's quite what they say in paragraph sixty three they do they mean they don't they too much to ask here and that you know it's not that we're not asking for a huge burden for wash me just you know some notice you know we gave them a in additional opportunity where they had an additional opportunity to shore up anything they wanted to shore up when they oppose the motion  was sponsors on this and other counts were extremely short i mean again the response frankly on counts two two three and four was challenging the policy of allowing elliot's to work on student visas after completion of their course of study to remain in the united states after completion of the course of study to work or to be unemployed is in excess of the age of forty two and want to just say well maybe we're wrong and that i'm getting fewer but it's just it's really kind of offensive  and that's really as as my friend on the other side pointed out our conceded we don't know whether they would and then the problem there it is a failure of pleading on this issue we don't know what they would accept the issue with the with the o p c program is  the the three folks who watch it has identified and on which they previously submitted affidavits have many more years of experience you know mr mr black for example has three degrees he's been applying to jobs you know for it l competitor standing but it's it's something where the named members or the identify members there needs to be some sort of cleaning to show that they are really in competition in a possible way i have to mentions mention exposure to competition but the thing is is that that sort of short quote doesn't capture is the direct and current competitor point and it's sort of like you know presumably somebody who's you know one year out of law school is not a competitor of you know somebody who's fifteen years out of law school for example yes they're in the realm they're in the legal market kind of writ large but they're not really you know unless we know something more have some kind of possible recently they're not really competitors they're not you know increased effort to like enabling one to gain you know an entry level job doesn't really mean that the fifteen year veteran out of law school is a competitor of that person o just bear out that that part but i don't think we really have that much here especially and this goes to sort of another point about just sort of a causation problem what we have here allegations that and appreciate the new rule and you know they're based on you know this this complaint was filed very you know days after the new rule issues issued so we have kind of a stale record so to speak limited record but a record as to whether these folks are actually directing current competitors as mendoza emphasizes is important but not necessarily the bustier i think is the most on point your honor i mean i think you know these these cases tend to be said you know as you know it is your honor no you know fact intensive and the reopening issue the response a i give there in this is you might my friend emphasize public citizen public citizen at page one hundred fifty emphasize discords explanation american iron steel institute that we didn't even see you know open use or rule making for a particular purpose for you know a limited focused purpose a commenter can't just comment on something it's not if you go the agency into a response and then claim that the issue been reopened you have a problem but you have a problem here that there was no notice and comment in the first place i don't think so you know i mean and i think the other the other point of his eyes here is that in this court is his and comment on statutory authority so it's not really the typical reopening case it may not be the typical case your honor but i think that this court has also said that you know when you have a rule that doesn't squarely he hasn't said whether or when there wasn't wasn't enough an opportunity to challenge things then to raise an authority argument that's sort of an issue so i'm reopening i'd emphasize that point as well as just that you know it looking at the rule even c was was resting on the local rule that their failure to respond to your motion means that they can see i don't know what they conceded they failure to respond to your motion means that they've conceded the point ironwood point that  is is going around in circles is that the point that you think their complaint was inadequate is that what they conceded i see that that you quoted saying the problem here is they didn't despised emotions and nonetheless this court has been forced to do but it's not like summary judgment where you're saying something your motion wasn't saying anything your motion was just saying well we're going to file a piece of paper hopefully they won't say anything more than t complaint and then who will under the local rules when the real issue is whether the complaint is adequate when you look at the complaint is absolutely adequate and i think that's what we still don't we alternatively you know in addition to the  rule because they didn't say something more to your motion you're right i think the problem here is that the response was very very generic and terse and it's kind of i would be to have already thought i did what you said i didn't we did that i think they referred back to the complaint if i remember correctly white on this point your honor i just referred to point to page forty three to forty four of their response on counts two three and four they responded very generically to up to a lot of counts for a second time so there's no think nothing in here that says they have to be that these are all entry level workers that's just some sums that they've thrown out without tax in the basement those are the people weren't even in the industry they had been driven out of the industry and they were trying