what is your evidence that this is been accepted i have we've gone back and looked at these different forms that have been put in the record and now one indicates that else has done anything with your untimely appeals except to tell you that they've received the appeal and that it's pending and i think there was before the district judge a notice of transfer but i see nothing that supports your saying there is some category called accepted appeals accepted late appeals yes  right with that and that sounds like a retro activity argument in terms of how to interpret that intervening case it does sound like you are however they are stating they were never and accept an appeal and that it is then i but again you have no evidence that they've been accepted no you are that was not your description of your status is incorrect and we have the provision that says an appeal doesn't delay the execution of any decision i can see some reason none the last year entertain your case if the agency yeah keep these position that the language that says that any appeal or review or whatever doesn't affect the execution of a decision that i don't understand how you can ignore that that's what the d h s is saying gives them the authority to collect on these bonds yes you are you are not ignoring that particular statute  it referred us to any situation or are you aware of any situation in which an agency order is final the time for appeal has run and it then becomes no so that's all you if that situation lets the people at have been decided yet is your fail rate affected no order at that point you have no fighters determination of the breaches occurred and therefore the seller is not good morning and may it please the court i'm matthew globe are and i represent the government unless the court like starts somewhere else i'll start with the final agency action question that was raised by the court the government's position which is longstanding by the department of homeland security is that a final bond breach to terminations is final agency action because under eight c f r one hundred and three dollars it creates a claim in favor of the united states that claim can then produce an invoice the invoice has legal consequences you have a certain period of time in which to pay that invoice and so under the traditional bennett rhesus spear test the final bond a breach of terminations which comes after a ruling on a timely appeal or after the time to appeal expires is the agency's final determination that the bond has been breached and it has legal consequences because it allows for collection and it has created a claim right then in favor of the united states judge henderson i guess i can expand on the final agency action point or i'd also like to point respond a few questions that were asked  understand you pointed out that there is no evidence of an accepted bond for a late late filed appeal and i think that's clear from the record and i would point the court to i believe j a and thirteen to one hundred and fourteen which was in a touch to a declaration we submitted a list of the i believe three hundred and ninety one then pending bond bond breaches that they had allegedly filed a late filed appeal on it notes that i believe it's ninety one or sorry seventy two we have responded to i guess the declaration at one hundred and ten paragraph forgive the total number and the seventy two that we've responded to and then at page j one hundred and fifteen it gives our response to one of them what happens if you file a late late filed appeal the agency gets it and when the agency acts on it it's going to either give you notice like it j a one hundred and fifteen dollars that your late filed appeal is dismissed because it was late filed or if it's treated as a motion to reopen reconsider you would get a ruling if that's a meritorious motion to reopen reconsider that reopens or reconsiders the case or you would get a notice that your motion to reopen reconsider has been rejected but as the regulations make clear the filing of a motion to reopen reconsider doesn't stay collection and it doesn't stay any activities or the finality here and so the other thing i would note on j one hundred and fifteen just for some factual context if you'll note there  that bond was appealed i think over one hundred days after the final determination but the appeal was filed september th two thousand eight hundred dollars and the notice that the appeal was late and it was being dismissed for not being late didn't come till january th twenty  there's a four month gap during that four month period that late filed appeal was not accepted as a motion to reopen reconsider it was just lag in the agency getting to that appeal and ruling that that appeal was untimely and given notice i'm client counsels weren't aware of the agency sending something saying we've received your appeal and we've decided to treat it as a motion to reopen or reconsider instead it's treated as your filing of a motion to reopen reconsider if you merely filed one under three o five  two or a three we would acknowledge the receipt on the same form that we send for the filing of a late filed appeal and we would rule on it and you would receive a ruling on the merits that explains our reasoning why we have rejected or accepted it and give you notice of sort of the further proceedings that might be available because you can appeal the denial of a motion to reopen reconsider judge ginsburg you're correct that there's no evidence in the record of any  reopening that potentially creates a standing problem although i think the district court after some initial arguments in these cases came to the government's view that these essentially a breach of contract that they would be asserting and so they have a contract with the united states we've declared it breached they're saying that we failed to follow our regulations and how we declared it breached i think it's plain from the just recourse rulings from the face of the regulatory provisions and as explained in our brief that we followed all of the regulations but  that's about all i would say on that i'm happy to address the merits of some of our arguments if the court has further questions can you mr glover can you talk about the case claims that were final and closed and i guess i have the same question for you so your honor i believe he's referring to prayer versus sessions and below the government made clear that purpose of sessions which pertains to notes defective notices to appear has no bearing on this case because a notice to appear is issued directly to the alien it's not part of the bond contract in the bond contract provision g one the notice use them and that we would have a breach of the bond so the notice to appear pertains to immigration court proceedings which are conducted by the executive office of immigration review or your which is a part of the department of justice the bond is  contractual agreement between the united states on behalf of ice and the obligation and so a defective notice to appear simply has no bearing on this i would also point out just to get into the merits a little bit of pereira every court of appeals addressed the issue since pereira has held that the initial effect of notice to appear because it didn't give a date and time does not strip the immigration court of jurisdiction you just aren't allowed to apply the stop time rule because the immigration court didn't let you know then when your hearing would be and i have some circuit citations on that issue again that issue doesn't pertain here because notices to appear don't have any impact but i'm happy to give the court some sr circuit citations on that the st one i would point to us or to santiago versus bar it's nine  determination we made because typically when the government is issuing a notice to produce it's because there's a final order of removal and they issue the notice to produce to have the person come to an ice location to be removed  rejection of a late filed appeal and so in this case the final agency action is the bond bridge determination and when they fail to appeal i think it says you have thirty three calendar days within wh mailed on march th we mail it to you it doesn't promote so thirty three days or thirty four days from march th this particular bond it which ends in five hundred and ninety eight this particular bond to the bridge determination that was mailed on  march th that's the initial determination it becomes final when no appeal is received within thirty three dollars days of march th so if my math is right i think that would be april th or april th somewhere in there the failure to timely appeal makes the initial determination our final determination and that creates a claim on that date in april in favor of the united states that's the final determination from which which serves as final agency act i think you're drawing a distinction between their theory which is that the late filed appeal states collection and what the regulations make clear and this is where the regulation concerning motions to reopen or reconsider i think it's three  and it also includes in some cases the notice of departure for an alien the best analogy i could think of in preparing for argument i guess two analogies one would be a district court ruling so there's a court issues an order a memorandum  order in this circuit they can be in the same document in the th circuit they have to be separate but from the issuance of that order you have a final decision if it's a money damages claim the prevailing party can collect their money damages from the issuance of that order if you were to file a motion to reopen or reconsider rule fifty nine dollars in your rule sixty b motion the district court would need to rule on those motions but absent the district court granting you a stay or you seeking a stay from the appellate court the district court denies it the collection continues and so that's the situation we have here we have a final claim in favor of the united states if they were just just directly file a motion to reopen or reconsider rather than a late filed appeal that wouldn't stay our ability to collect it wouldn't alter the claim in favor of the united states and the other example i would give is in the board of immigration appeals which you know hearings appeals from immigration judges on asylum withholding cat you can appeal one of those under eight u s c one thousand two hundred and twenty five directly to a court of appeals now i know this circuit it doesn't tend to have those cases i'm not aware of any in the circuit but other regional circuits get a lot of these petitions for review well your petition for of us pending at in a court of appeals you can also file a motion to reopen or reconsider with u b i a or with the further recognized that if the motion to reopen is granted and they reopen the case the court of appeals loses jurisdiction because you'd be appealing from your removal order that's no longer final because they've reopened your case but the court of appeals are split on whether the grant of a motion for reconsideration by the board of immigration appeals would actually stay the case or would merely moot it given that the reconsideration may sort of reaffirm your final removal order i realize it's not a perfect analogy but it is a situation in which you can file a motion to reopen reconsider well the case is pending in another court and it doesn't impact it until there's actual reopening or reconsideration that gives you some sort of relief that would make that prior determination non final similar to i think a sixty motion that was granted that altered the judgment or amended the judgment and erased the money damages the collection would have continued but there would no longer be once the sixty dollars p was ruled on that prior judgments not a final judgment if the court has no further questions you know we think for the reasons stated in our brief and in the thoughtful opinion of judge posner work that you should firm and before i sit down i would just like to extend my condolences to the court on the passing of judge williams this is the st time i've been in the court since he passed and i had the pleasure to argue in front of a meeting many times and you know it's truly a lost ball to the court and to the legal community so thank you thank you mr hoover