minutes my time yes thank you this case is clearly right over here the regulations and the guidance and hurting the regulation that are at issue are clearly final agency action the department of labor has been using the challenge rules daily since two thousand and five to make final labor certification decisions as to the wage rate that has to be offered or and  effect only cannot render the current use of concrete regulation final determination somehow and right and it is the current use of these regulations that we are challenging how is it how is that process and what they're talking about is nine months between publication so if they have a final rule if they propose a rule it would take from now maybe a year or so before you have a final rule and that is if they publish a final rule in already published not rule and because of a settlement agreement there was a date certain six months after the opinion issued by which a final rule had to be the leadership question here if we agree high where there was some there was definitely some problem with what was going hot and there was definitely a feeling of well there faith i should say you don't have that in this case that makes some difference actually your honor i think it's quite the opposite you think yeah i think i mean i don't want i don't think we need to choose anybody that well makes a difference and judy kagan i think the department is acting materials have to be regulated as solid ways then they published the challenge rule that said ok we're going to deregulate some of the secondary material well but we're not sure about the catalyst so we're going to study the catalyst as to whether we can regulate that so the regulation actually didn't do anything other than announce some future rumi but they continued to regulate it as solid waste whil study here the department is doing exactly the opposite they say they need to study whether private wage surveys are accurate what their economic impact is but instead of this a while going there while they study it they allow them they are all they are every single day certifying to the department of homeland security the private wage surveys accurately set prevailing wages that will not adverse affect us we're like it either way one step at a time so to speak but one step that is hard is find that what deal will do is doing here is putting the cart before the horse there saying we're going to make a final determination that foreign workers can be brought in with these wages but we really don't know whether they're causing an adverse effect so we want to study that that is is is arbitrary and agency can say if they want to go one step at a time what they should do is say ok you have to pay the government survey wage we will study whether private surveys are ok and once we  it they are we'll let you use them but what you don't do is say use them we will certify that they are valid but we really don't know whether they're valid we're going to make that decision down the road and you can't review whether certification decisions are made i think one hundred eighty days in advance right now the certification decisions for twenty fifteen are being me they'd be made on the basis of private private serve for those employers who can afford private service that part of the problem here is there's a government survey where the deal well says is the proper way and then there are these private surveys that you're well specifically around in two thousand eleven are invalid they give employers the choice an employer can afford private service then they get play a lower it if they can't afford a private survey they have to pay the government your your request is that we the two thousand and thirteen rule our request is true vacate the portion of the two thousand  private surveys whenever they want and that's because you don't like them because the labor department made an about face on the rationale for the rule it's it's because the cause it's not supported by any allowing private surveys where there was no government what happens if we did that but what do you have about what's left on the table for determining the appropriate wages number one there is the government service number two there is a prior argument on the part of the government that they can't justify the current rule and there is nothing in the department brief that suggests they can justify allowing employers surveys well whenever there is a gal government survey in fact the only thing they say is they make the argument that private surveys may be valid under certain circumstances namely when there is  especially if this further appropriation of problems here you're on a couple points on that it will not cause disruption there are there is the government survey wage the prevailing service the one thing the government sites that support that is a press release from senator mikulski which if you actually look at it cites to her support for the senate immigration bill which six months in advance or one hundred twenty days in advance so that right now they're making decisions for twenty fifteen if there is no pick and we have to wait until the well completes it rule making process that could take in minimum line one we're going to be talking about certifications for twenty sixteen and every single certification puts u s workers in the position of having to choose foreign workers but once you set the wage for foreign workers that operates as a tax on u s workers just because what it means is if a worker goes to an employer and says oh i'd be happy to do you take your landscape job but i want ten dollars an hour and the employer says well i've been certified for foreign workers at nine dollars and fifty cents so you either accept nine dollars and fifty cents or you're declared on of their will and i get to replace you more that's how it affects you right now the just want one more question the department of labor has if i'm not mistaken said that they had been requested by the partners of homeland security to use the private constraints imposed by congress through the regulatory flexibility act that is that you know you have to consider the costs and benefits on small businesses whether that's applicable there are executive orders that impose if the court does rules that the agency's decision in publishing a regulation is all very so contrary to the statute that it is the court rendering issue a federal law and it is the wall for all time that it would actually be the necessity for going back and reopening past cases and readjusting wage rates in the past if in fact this court's opinion were rendering an issue a federal wall that would be wall for all  time now far as the adverse effect is concerned i mean the the appellant's argue in their reply that and in argument today that the department is making right decisions every day because they're sort of employers applications that have requests for prevailing wage rates based on private surveys but they haven't shown that there is an adverse effect because apologize i think we were all caught off guard in immediately we hadn't considered the rightness issue by judge davis properly did suicide taken sort of the issue so as far as we're concerned the case is right now you know what i meant below upon further reflection wasn't the case is there's a fine a wait and see action that is true that can't be denied but the finality analysis in the rightness and the author of this thing you can have a finally see action but it's not right for review the tests are distinct right they did the matter is right regarding the use of prevailing wage surveys and is a legislative matter that is the agency below made legislative factual findings resulted in a legal norm if i still think that if the question is whether the legislative norm is right and this court can decide the merits as it's a question well that this court has no i should say the court below think it's a given it's going to be less than the prevailing wage otherwise they would do the their baby the survey for the world economic interest to some extent you've gotten over what human nature when they make these private surveys and the results of the private survey that's lower is going to become the prevailing wage i had a lot of foreign workers to come then because that could be certified that they can find that they that they government the united states workers would not take the offered price because the issue as far as harm or adverse effect has been equivocated by the the question by adverse effect has to do with adverse effect on the domestic labor market as a whole and that my prey has not been determined it is still percolating at the agency they are studying the economic conditions in  determine what the proper prevailing wage methodology would be under each facts and circumstances to determine whether there would be an adverse effect if you were if you were to acknowledge that any private survey is going to be less than the wage cadwallader wage collection every three years and your position is that a private survey will always at least the out of out work or a private survey could provide more accurate data or more appropriate that  employer provided services generally are not consistently reliable more over employers typically provide private surveys when the result is to lower wages below the prevailing wage rate such a result is contrary to the department's role may be a lower wage rate for a particular worker in a pitts specific case where an employer has elected to use a private survey where the survey rate is lower than oh yes that would be an adjudicator fact it would be found by the agency maybe even endorsed by the age that particular case what's an issue in this lawsuit is the agency's legislative factual finding process about whether overall in the aggregate there is an adverse effect in the domestic labor market fed thirty seven ninety two where the court can take into account the attendant circumstances and the regulatory history which in this case has been announced and several federal register notices it's well known as articulated in those notices that the department has been engaged with stakeholders congress and has been studying the economic facts and circumstances legislatively determine the proper rule in two thousand and eleven they attempted to resolve this issue globally by drawing a line and saying we're not going to use private surveys the reason is because it just appears that many of them are questionable and we're not going to expend agency resources case by case looking at a survey is some surveys could be appropriate accurate but we're not going to spend time on doing it so it was a judgment that was made at the time of administrative fissions primarily that was overruled by congress there was an appropriations rider i find it rather disingenuous that appellant's are not going to get up here today and say now that's not the reason why we all know that particular senators had a problem with the department globally precluding private surveys specifically in maryland for example where employers there traditionally used private surveys in the cr this i don't know that for a fact i do know like watson wyatt and other private survey companies to employ to see the point either have a current position and the use of the surveys report or surveys do you have a position  surveys but in part because of administrative officials see it takes a lot of times protonic each private surveyed firm whether the methodology was proper the universe that was surveyed was appropriate whether there was a proper margin of  argument that these from the surveys are not exactly the gold standard ask who what what what they're who is getting the true answer to whatever the question is they're not they're not the ultimate thing that they were like congress to do that for the next which is their budget they're sure but the fact is that the time pick they're being used to hire people who are being underpaid for their services as a practical matter what's the department to do it's faced with of course surveys so of course congress would fund this it was a problem with the problem the fundamental problem this inquire non if you will of the two thousand and eleven rule was the private surveys and the proper asians were withheld on that at least in times in federal register notices and they've transmitted their intent to the to the office of management and budget the president has a disapproved through the office of management budget for the rule making so we're collecting data interacting with stakeholders in congress and they're studying economic conditions and circumstances to determine what should a global prevailing wage rate be to protect domestic labor market but as it currently stands despite the fact the department does have issues with private surveys we just don't know as a legislative fact as an economic finding if there is an adverse effect overall to the domestic labor market because the u s routed servants there maybe and we're studying that and that will be resolved legislative through further rule making now and maybe unfortunately rulemaking may take time but that the time for the rule making is then determined by congress and by executive orders and frankly by the courts as well because the courts of the post standards on who make you have to consider significant public comments if that study the data provided rationale all of that takes time rulemaking process now is burdened with a lot of procedure and we will be following that procedure to make sure that the judicial review because you don't want to inject yourself and administrative process not one legal issues but when the administrator in this case secretary of labor is studying empirical facts there is there is no legal principle that allows the court to opine on wrong data if the agency is currently studying we're going to finish this rear it's just all i'm sorry last comment  that where wari decision is tended in the decision here these regulations are not and that they are being used every day but even with a tentative decision review is appropriate where there is immediate and significant  that's on page three three eighty nine of the opinion now the court found there was no harm here there is immediate and significant are us workers are having to accept underpayment or lose their jobs every single calling the department of labor issues on the lakers and i want to go back to a point with all due respect to my opposing counsel this case is not about some global department of labor thinking it is about a very specific regulation that sets wages for foreign workers and their bond u s work that regulation was issued in twenty thirteen the department says we don't know whether these these private surveys are harming us work well in two thousand about it and the department made very very specific arguing that judgment is quoted private surveys are unreliable that they undercut the prevailing wage and they result in wages that are fundamentally at odds with the department's duty to certified no adverse effect paul and i would do it exactly the way the department of labor did in its two thousand they have to go they have to go through other methodology before reaching the private service that they have to if there's a government survey available that has if you only use private surveys where in the unusual it is very or the government service cover millions of job the very unusual do that but only if it does rain was it is changing its mind about the fundamental fact that these surveys are unreliable and lead to wage pres capricious and contrary to law and beyond the department's jurisdiction because it allows for wages that adversely affect us workers that the two thousand line guidance that interprets that is contrary to the current definition of prevailing wage and is therefore unlawful and then what and because of these very very serious the department for further proceedings now it's my understanding of a p a law that when this court vacates the those regulations the twenty eleven rule then goes into effect and even if it doesn't the department hand as it did in march of two thousand and thirteen judge davis vacated the prior prevailing wage so you wouldn't have