trouble here with the volume is i guess to is this council seated in the room best place so that we can see every one i'm sure you can still are given a different chair prior trial lawyers or appellate lawyers have their favorite chairs but i promise you you can still argue and we would you just the volume on th less at the time his citizen spouse died mr quinn had been married two years and four months so he was actually in eligible for the program he didn't know that no one told him that and by the time u s c i s realized its mistake and revoke its approval it was was dismissed on the ground that he had not shown a private party analog now the tort claims act allows for the united states to be liable to the extent that a private individual under like circumstances would be liable the supreme court in  me olson has held the words like circumstances there do not restrict the court's in korea to the same circumstances but require it to look further afield to analogous circumstances for example the court said private individuals who do not operate lighthouses nonetheless may create a relationship with private parties or with rd parties that is similar to the relationship between a lighthouse operator and a ship dependent on the lighthouses speak by the same token the private individuals who do not issue visas nonetheless may create a relationship with rd parties similar to the relationship between a visa issuing agency and persons dependent on the issuance of a visa that's how we will that's just in the complaint paragraph thirty one determine such applications based on the correct eligibility criteria and that's all deriving from the basic court law principle that one who undertakes a to perform a job for another is under a duty to do it with reasonable care for example as in the shock use that we've cited on the bank and processing an application for a loan other examples would include a college in processing an application for admission of for a scholarship and ensure well she hasn't it with me and i'm sure counsel let me ask you this it assume it appears that the law that controls that well there's there's a dispute between the parties here whether it's the law vermont is why would you get a more advantageous result under the law of the marianas islands well i don't know that we would do and i think the result would be the same in either case i think both jurisdictions recognize the principle that i just functionally the same thing to the extent they're not they're certainly analogous and what we need to look for is analogous to most reasonable an elegy the most similar situation i think that's what we have here anderson and i love with when the rocket will case in response to judge callahan but he could've at the time he could have at the time also apply for workers permit he may have chosen not to for right reasons but there was nothing that prohibited him from doing that correct eventually there was at the time he st submitted his application no there was not he could have done he could have submitted at that time later on after the there was another number twenty eight was the date that he needed to by that point he needed to if you were to apply you needed to show advantage of the th circuit mediation program i know that there were talking isn't the record of trying to settle this at some point did you did the th circuit mediation program yesterday it was not successful ok that was after the appeal was filed do you did that yes we did ok so i have a question sort of along the lines of judge thomas this question my understanding years there was a this is her i don't know about the timing on that with a prior to two thousand and nine there was at one point a restriction on eligibility where you had to been married more than two years later that was struck down in a decision somewhere in the states and so a special the statue was amended to provide to allow for people who have been married for less than two years to to apply right and then the transitional yeah and that's where he picks up but the four prior to two thousand and nine prior to the change you're talking about in two thousand and nine it syncs me that i think prevented him from filing he would have had to file within two years from the date of his wife's death to lie seven thousand  before before that time before it became before the federal takeover of cinema immigration he never had any intention of applying for for a green card he didn't apply during the course of his marriage or any time after her death because his intention was only to reside in the  that the change in two thousand and nine didn't do is reopen a window for those claims that have already lapsed would be liable under like circumstances with respect to the grant that allegedly negligent grant of his i three hundred and sixty should be looked to vermont so in our opinion doesn't matter because under the el gamal decision which we and it's a little anomalous because because i think it says we look to where the actor emission occurred and then it just seems to be able to we would look at whatever state ins happens to have it's a processing center in right right so that's correct that's a little odd but ok let's start that way then right so yes we think it is remote law for the reasons you just said and that he loses because it's the district court said there's no sufficiently and now i guess vermont law that under which a private party could  and that is different from what private parties can do and it's sufficiently different because the grant of those kinds of petitions is heavily governed by federal immigration statutes which are so the courts have not yes that's one way to put it courts have said different things they describe this point in different ways are the way we look at it is there's no private party analogy that's available that's what the court this court in el  so several things to say about it st of all it didn't involve a fisa application is your are pointed out which is governed by federal law not state law and nd even if well it's not a remote case application by a federal official is exclusively governed by the immigration statutes which are again a closed in system that heavily particularly how officers are supposed to do this and there's no evidence that congress would have wanted  of fifty states to be able to determine effectively what federal officers do in applying this and i would say for the number of cases one is an older man a letter point seems a little wobbly to me because that's what the federal court claims act does it looks to the laws of fifty states and so can we go to your previous point which is this case as i read it it's a peer of court case and the liability is imposed upon a private contractor who is supposed to file this request this paperwork with the state department of labor and basically left it sitting in a drawer i think right right so it's different also because this case involves the grant of the interchange of change of a person's relationship to the united states the change of status and that's different right and that strikes me as the important part where i i i think somewhat rudely interrupted to try to make sure they were understanding the word vsa the same way because this is a work permit this is a different i want to i want to express i want to express i want to express a little federal government skepticism or frustration in terms of i know it cost some money for you to come here this lawsuit all costs of money and the whole issue of whether there's a private analog or whether you should be sued those are all separate and apart but i know you claim that he quote did not recruit unlawful presence prior to his departure read brief at twenty one as points out you have never stipulated to this or provided evidence that this is true in fact it appears that the yawn offered to stipulate to this fact stating that it would fully resolve his nd cause of action but the government apparently declined so how can we actually be sure that did not accrue unlawful presence time absent a stipulation from the government or a declarator judgment so this is a little texas two step here so you know tell me you know i don't know why they if the government says you don't you don't have anything to worry about trust me why won't you stipulate  country pining on their potential immigration status if the government had to start doing that there was already completely all think they don't do it regularly and that when you have a lawsuit you're spending all this money on the lawsuit if it's the declaratory judgment case is in fact right then you're confessing judgment on that point i'm not sure i'd say it's confessing judgment i mean we would say you don't have the authority to do that but if you were to you were to say the united states says he did not accrue any unlawful presence we would not object to that that you know i'm i'm just picture now i'm getting some petty bureaucrat in coming and trying to do that and i go we've never heard of anything about this  know you're unlawfully present at the brief of the united states st of all the court of appeals which clearly takes that position that should be plenty and to go beyond that requires the agency to jump through hoops that  was initially denied but it was reopened and the government's position is the reopening of the i four hundred and eighty five dollars as an operation of law eliminated any previous or cruel of unlawful presence in the united states now here's this  important if i could say he makes a mistake a factual mistake in his reply brief the reply brief says that that the four hundred and eighty five that was there was reopened the fit was denied before he left the country that is not true what he what he was referring to is both ok so just official then his i forty five was eventually the reopened i forty five was eventually denied but it wasn't until after he had left the c n n line so for the entire  presence going forward so he's incorrect about that if that alone wipes out what even would make him subject to this so two different ways of looking at it both of which are clearly supported by the record and there are the it's important that the plaintiff there argued that there was a state law duty of it and sure must act reasonably and hand in handling an insurance application and this court sort of took that it took that for granted so ok we're going to just assume that there is this duty and the court said even though there's the studio it's not sufficiently analogous again to what a u s c i s officer does and granting or denying of these a petition and i think that settles the case is the court explained like the quote it says the relationship between an adjustment of status application u s c i s is not analogous to the relationship between an applicant and an issue or and i think that that is our basic basically bought a bank and then transitioned the bank that the bank went bad and the court said the again there was even though the court assumed that there was so a state law or duty that would be relevant if it transitioning these banks and he said there's no sense in which congress would have one of the law fifty states to direct the f b i see how to do these tasks you know through the medium of state tort law so again i think you'd have to go in a conflict with wood which requirements for coming back to the northern marianas there is no independent impediment for him to lawfully return to the northern marianas or the united states is that right so i think the way i would put it is that  know i don't think it is your honor because i don't think i think the this whole course a judah content of idea that's coming from according to its and from its from its predecessors is overlooking something important which it's overlook in part of the statute itself the exceptions matter are trying to solve through you know close construction of this like circumstances idea it's actually dealt with by statute where it says any claim based upon the act or a mission of an employee of the government exercising due care exercising due care in the exit execution of a statute or regulation or based upon the exercise or performance or the failure to exercise or perform a discretionary function on busy there is no liability to the government in that situation of the discretionary function exception and you have the executing a statutory lucian exception with due care because that's that takes care i think of the the the whole is so that's already taken care of by statute and why is that why is that exception in the statute because otherwise there would be liability under the tort claims act in it's in in its form without the exception there would be a liability that's why you need the exception exception that proves the rule it's built into the statute without the necessity of close or nice construction of what's meant by like circumstances but at this point in this case it hadn't reached the discretionary phase it just reached this ministerial act is it is it is a lesson two years or is it more than two years to the case of appleton that we said in our brief makes a nice point about that  that the granting of a license usually entails some degree of discretion that is not necessarily so in all cases particularly with regard to an initial determination of eligibility and it's quoting there the hopman case from michigan which goes on that  were you have clear standards to be applied to a fact situation in order to determine basic eligibility claim of negligence in the application of that standard does not involve a discretionary function so we're still at that