arguments concerned the reasoning of jeevan yellow and thereby preserve those arguments for appellate review before this court and or the supreme court in the event that the district court found that in yellow for closed mccabe's claims and if this panel were to find that even yellow foreclosed mccabe's claims then mccabe having made those arguments again in his friess before this court would thereby have preserved those arguments for review by an on bank panel of this court or the supreme court neither of which would be balanced by jeevan yellow american pie though there would be neither of those two cases addressed the issue of whether american pipe towing continues or may continue after a district court's initial denial of certification those courts dealt with initial denials of certification by district court but the issue as to whether as to whether such tolling continues or again may continue after that simply wasn't before the court again does is argue that even you know does not apply to this case which is simply not true that was actually a small portion of the arguments that i presented on behalf of mr mccabe drawing distinctions or a i should say one distinction which  briefs between the facts and issue here and the facts at issue in jeevan yellow judgeable sarah stated that referred to me that i simply argued was arguing and rio arguing on the basis of basis of irrelevant as bright line test and added that mr bank also just rehashes arguments that he made when arguing to even you know and you simply cannot judge will sarah stated you simply cannot under the guise of preserving arguments we argue the same position over and over again but the making of arguments that are presented to the juvenile a panel and rejected by that panel is the very essence of preserving arguments for review the very purpose the very nature of preserving arguments for review is that those arguments have already been rejected that by definition there wouldn't be anything to preserve otherwise what judge boss or me just simply didn't make any sense he did not say in fact quite the opposite he did not say that the arguments that mccabe or if you want to say i made or substantively frivolous that which i dressed during the oral argument use in an extreme hypothetical just to make my point mind you said he actually judge baugh sarah actually stated the opposite he said but for jeev in yellow the arguments that i presented would have had or likely would have had some merit i forget the exact words some merit some utility some other similar words he did not address the substance of my arguments and again he acknowledged at the arguments were meritorious well if that's the case how is it even logical how is it even logical th will sarah can say you've made it into actually decent arguments whether he might i don't know i don't know if you even agreed with me maybe he did i really don't know you didn't say you've made intellectually respectable arguments the on bank court here and the supreme court have never addressed much less rejected those arguments but you can't make them that's essential he's he will that mccain and again he seems to before the district court and this court were for that exact purpose and and we cited numerous cases that supported our position some of those cases which were exactly on point saying that by l oh by the logic of american pipe and the purposes of american pipe towing that it doesn't make any sense to say that towing stops upon the initial denial of certification and the reason the made sense why would just like just like tolling initially let's say towing up to the initial denial of certification as opposed as opposed to no towing at all well let's say there were no tolling at all now and now putative class members bring claims and his own action well if there is now an appeal and that appeal reverses the denial then the actual is just a waste of everybody's time the defendant the plaintiff in the court and and that's why  one of the cases that we cited davis the court specifically said that the defendant argues that tolling should continue only on appeal only if the court reverses the denial the court said quote that argument has no merit well that's what i've argued and again the fact that jeevan yellow or assuming it to be a fact rejected that argument just goes back to the question of whether judge will sarah was correct in saying that he i or mccabe did not have the right to preserve arguments that in substance were not frivolous even debatably frivolous and one of the only retort i guess to our distinction between the facts of issue here and i jeevan yellow is that judge paul sarah stated that the denial of certification would more strongly serve to notify putative class members that they would need to follow their own actions and my response to that is why would a denial sort of occasion more strongly serve the purpose then as in jeevan yellow a case that was dismissed outright in any event we didn't focus on that we focus on the fact that hedge even yellow been decided dismissal of the action all the way through the appeal and then if the appeal is successful in the cases we mended from that time again until the initial and mischel denial of certification it's fine the judge will sarah didn't agree with that reasoning but there is case law that supports it some of which judge baugh sara said in correctly your view was abrogated but again that's goes back to one of judgments there was very clear misunderstandings he said we didn't have the right to cite what he i have in the bruce we talk about that a case that has been overruled or abrogated or what have you it unless it's a binding case of course if it's from the eighth circuit for example it can be cited this court has many times and we cite examples in the brief of saying we disagree with the our sister circuit we actually agree with the district court decision that that circuit overturn and we will follow the district court decision i mean again i don't know i don't have the latter and to the former yes in the context of preserving an argument for further view obviously the reason i didn't did not ask that mckay did not ask the district court to overturn jeevan yellow and it's the same reason why i am not standing here asking this pendleton overturned even yellow because we can't the district court and this point it's bound to the extent that our arguments challenged even you know i recognize that it would be futile to ask this court or the district court or reversed by a circuit it basically has no life you can make the argument if you want you can adopt their reasoning but the fact that a reversed decision or an apple here challenging the fact that you got sanctioned and that's what this argument is about that you had a good faith basis for thinking these arguments because there were these lower court cases even though they'd gotten reverse  ok but let's say they did for the sake of discussion ok right and i'm suggesting to you that i don't see where an attorney has a good faith basis in law for a particular position based on a lower court decision that was reversed by a different circuit as i said you can make the argument i mean if you want to adopt the rationale of any number of reversed cases but i don't think you can say well i have to i have a good faith basis to think position because because again and i think that's where the confusion is i'm not a to b i want to be as precise as i can because this is subtle to me a very fundamental issue of how the whole system works which is this an of circuit decision one that's currently within that circuit or that's been abrogated or overturned in that circuit it it's not in any way the law in this circuit it's the reasoning and again i get i provide examples for further review and persuasive authority i agree with you you can cite persuasive authority you can argue for a change in the law but what's the basis i think the magistrates judge point out there's no dissent and she and anally no circuit has a contrary rule who disagrees with its principle so i think the judgment is made you could preserve an argument for further days but what's the basis for thinking you only do that if you think you're going to you have some basis for believing you might perhaps up again there have there are a them and five of them dealt with it in dicta but again let's say like in the central bank of denver case where every single circuit had ruled a certain way whatever the issue was was eleven out of eleven service had addressed the issue will the certain way and the supreme court went the seventeen rubenstein when the judge said the play different one of the parties is making an argument that was defeated all over the country different circuits what have you but the argument was not i don't know the exact wording but the arguments were not and therefore even though it's a long shot anyone of even though even though those arguments were foreclosed in the district court they can still be made how does it serve three minutes for a bottle yes use it now or you can preserve it  court was very clear that it established a bright line rule that applies regardless of the basis for the denial of certification and even as in that case if certification had not been reached frankly i'm not sure i quite understand mr banks efforts to distinguish this situation the mccabe situation from juvenile  his individual claim is clearly time barred and by the way under china agora tech there is no question that the class claim is time barred so the only thing we're talking about o applies in this case and i think as judge both sarah found and as this court made very clear in she of an l o which mr bank argued and in two thousand and thirteen when this court applied the bright line rule mr bank had every opportunity then to appeal the decision and saw in bank review this court denied him bank review he had the opportunity to seek certain cases well i don't understand how he could claim that that case is not completely  reversal in the law but the statute but the rule itself provides that that argument has to be a non frivolous argument and that is an objective standard of reasonable this there is nothing that mr mckay presented below that was not considered and or argued before this panel this court in juvenile o he conceded that it was the same arguments that had been made before that were being presented here so leavens frivolous standard which as i said is an objective one has to have some meaning otherwise sanctions can never be appropriate you're giving a lawyer the opportunity in the face of binding clear bright line press to say i know i lost below i know the second circuit didn't grant him by review but i'm still entitled to make the exact same arguments when there has been no change of in the law and in fact to the extent he points to the seventh circuit the seventh circuit could have been clearer it says as a general manner matter the consensus view among the circuits is that one certification is denied the limitations clock immediately and the seventh circuit provides emphasis there starts ticking again we've been in phatic on this point so there has been nothing since g of an l o that would give mr mccabe the opportunity to come back to this court and say hey juvenile oh it was wrongly decided essentially you you should not it should not be applying to mr mccabe in this case and that we are making non of frivolous objective reasons why that case that case doesn't apply in europe circulate that opinion to all active judges on the court and announce that we're changing the rule so how does mr banks get access to that process if he can't even apply well he did not seek in bank review he did not argue below and is not are you in here that that is what he is seeking a reversal of of juvenile or his arguing that zion do stand it that either it doesn't apply here and he is not cited anything since this court's decision and i would say that china average attack if anything which is the supreme court's latest pronouncement on american pipe could follow in this case that were guard lists of why certification was denied below there is no tolling so yes there is always the theoretical possibility that you could circuit court that their decision from four years ago was incorrectly decided and they incorrectly did not grant in bank review even though there has been nothing and mr mr m cites to nothing that would lead this court to conclude that since two thousand and thirteen there has been any change in the law and in fact as i said the supreme court's latest pronouncement affirm as the correctness of juvenile oh and as i said rule you know in theory you could always argue that you know a prior case was wrongly decided but the standard in rule eleven as i said is an objective one you have to put forth a non frivolous argument and the only arguments that he makes or arguments that were presented to this court in juvenile o were rejected and there has been nothing  since then that would question the objective the objective reasonable nys of that prior holding and i think judge bill sarra you know exercised his discretion appropriately judge korman appropriately affirmed that that finding that in this case the mr mckay were mr bank had provided no reasonable arguments for a change in the law wall this circuit recognizes that possibility and citing to the east way construction case there has to be a reasonable argument that can be advanced for the change in the law and here no such argument has been presented thank you thank you yellow are basically that the rationales of american pipe tolling don't end upon an initial denial of certification and again one of the reasons or the reason why on bank review wasn't sought from the outset that like time emphasize and i think judge will sarah as well that those petitions were denied but again and we cited in the brief that's black letter law that one cannot use the denial of those petitions to have any meaning whatsoever  it does not necessarily reflect on the merits or lack thereof if that's the case of our arguments but again you want to make a point essentially judge both sara is saying that in light of jeevan yellow and yes both not that's correct why isn't that that makes it even more difficult it would seem to me for you to say you've got a good faith argument that this panel  a numerous reasons separate from the merits of of a position there are numerous reasons why an on bank paddle might as it usually does we judge the petition saying with the supreme court that if the supreme on bank and the supreme court neither have even been presented with these arguments other than through the petitions which again to use that loosely don't go as far as this goes i don't understand given that we cite in numerous cases and reasoning not  from a southern district court once a decision has been filed it's in the public domain its influence is based solely upon reader's view of readers views of its merits whether vacated or not so let's say just for example sake ok for the sake of example let's suppose i cite a case from another circuit a district court case that we all agree we might not agree but let's say we agree that that case in that circuit is quote normal or good law and this court or this court let's say sitting on bank found we think the read as has happened we gave it a gave examples this court found that we think that the southern district of iowa for example was correct and that i think that's in the six circuit i think that the sixth circuit in reversing or abrogate in that decision was wrong and we here by adopter follow the reasoning of the dish to court i gave actual examples of that now how is it possible or even logical that this court can do that but i can't i am any sense it's just someone's opinion but if the opinion is reasonable and i quote it i'm allowed to do that it doesn't matter it doesn't matter whether nine other professors follow and they think professor number one is wrong if the argument is substantively reasonable then it's reasonable and again here and i know you want to mention with the supreme court yes even a supreme court case the mere existence of it and again we cite examples of that too does not preclude someone from challenging it but we're not even doing that how is it to me it just makes no sense whatsoever that that that sanctions are even even debatable when we went judge knowledge we had good arguments yes we know that some of those arguments the both were precluded by a panel of this court even yellow now which i assume you did it did work was not persuaded so once once you've presented your arguments to a panel of this court has rejected them i'm not sure you get to keep coming back to other panels with the same memorized but they're in the briefs there was nothing to be a her pitted or assume from the denial of an on bank petition if this i suppose i suppose if this court had the bank had wanted to say we think any similar application in the future would be friendless and juvenile is so overwhelmingly logical that it can dare not be challenged i suppose they could have said that but it just simply was a a short order form saying we deny which way the score probably does in ninety nine percent of similar petitions it so you're saying your honor is that that something ought to be assumed or read that denial and or the supreme court's been ok and the again i'm frustrated because i've absolutely done absolutely or by the supreme court i'm not allowed to make arguments that have been accepted by courts throughout the country not all of which were have been abrogated but so what even if they have been it's the reasoning it's the reasoning that counts this whole system is supposed to be based on reasoning at least when it's not one that reason does not come in the context as as beyond the precedent that particular stand by any district court or circuit court like the seventh circuit in a minute a minute as a case that said that totally would have continued if there was an appeal of