bypass or override the secretary's deliberate waiver in this case mrs dixon and the secretary agree that the facts warranted an application of equitable to dixon and the secretary disagree however as to whether the veterans court got it right with respect to the waiver issue we submit there's three reasons why the veterans court was wrong with respect to this waiver issue three and a related reasons the first reason is controlling precedent from the united states supreme court in the day versus mcdonogh in the ward versus miliard decisions which discuss the issue of waiver the second reason is the principle defined as principles of party presentation which mean the ability of parties to raise the issue that they were the issues defenses that they want the court to hear and to act as a neutral arbiter about and the third reason is the very nature of the veterans benefit system itself which this court in the supreme court has very been very clear in describing as a pro claimant provent trimmed system and it's for those three interrelated reasons that we believe the veterans court got it wrong when it said that it had the authority to bypass the secretary's deliberate waiver so address each of those reasons and turn here let me begin with the screen trolling supreme court precedents the day decision from two thousand and six and the one decision from two thousand and twelve in the what case which directly addressed a deliver deliberate waiver by the government the the supreme court there reiterated what was said and and today which is the court is without authority to override bypass or nor the deliberate waiver and here i think there's no question that the secretary has deliberately waived that would build poling defense i mean the secretary perry made that clear and it is briefing to the veterans court and and the the government on appeal here has agreed that that's exactly what the secretary did below so and the date in wh i believe that was two thousand and eleven or thereabouts in the bailey versus west one nine hundred ninety eight and so i think for that vote that reason the day and what cases are frankly controlling on this court  the second reason i would contend that the veterans court got it wrong is aside the of the principle of party presentation and as i was saying that that pres suggests that the parties and in this case the government should know and is knowledgeable and is responsible for knowing well they're doing they ring they make choices to bring those issues and those defenses that they want the court had this case this appeal was brought as far back as two thousand and eight so they've had a considerable length of time to consider the facts in this issue and they made the choice the strategic choice to waive this issue and  makes sense because what the supreme court has said in another case of vantage financial is that i'm in a straight of agencies are presumed to make their choices in good faith there's presumed to make those choices fairly they're presumed to do them correctly and they're presumed to do them with knowledge of the law and the regulation was about all of the concerns that chief judge coun pointed to and that's in this bill of decision and that in the underlying decision well i'm your honor respectfully i don't think any of those reasons were it one ignoring the precedent from the supreme court and two i think frankly that they're without a strong basis i mean one of one of the reasons he raises judge castle raises in in the order below and in the boat of decision which he wrote is that the secretary would have unwarranted discretion i know it as far as i'm aware aware waiver does not happen very often but where it does where the secretary has made a choice for the benefit of a veteran i don't see a basis why we wouldn't want to grant that discretion two to the secretary again for all the reasons we've been discussing it just it doesn't it just doesn't make sense and i think it also doesn't make sense in the context of the veterans benefits system i mean this this court has been clear for a long time and the supreme court has been clear as recently as two thousand and eleven in the henderson versus shinseki decision that decision that processing rules like this one are generally subject to waiver and forfeiture jurisdictional rules are not what what has been done in this case  by the veterans court is essentially attach the last piece in this puzzle to convert what the supreme court has already called the claims processing rule back in two a jurisdiction and there's no precedent frankly anywhere to support taking away the secretary's ability to waive this issue we're what we're asking for here and one last thing what what the supreme court said in henderson how they ended their opinion was they saw no basis to attach the harsh that there's just no basis in the record every we explained in our briefing and i can certainly touch on that more but we explained in our briefing why each of the reasons that he raised in the both decision in this order just don't have any merit so your honour's what we're asking for this case in this case is fairly modest we're not asking this court to find that court to listen to the merits of mr dixon's appeal and appeal that he brought i in two thousand and eight nearly eight years the case and thought that it was worth looking into but that didn't happen this is right well as far as i'm aware no i mean what happened the procedural posture of this case is slightly more complicated because what happened as mr jackson brought his appeal in two thousand and eight prior to henderson it was found to be would that the court was said it was without chart jurisdiction because it was untimely it brought it again in asked the secretary also submit a briefing at that point on equitable polling actually i'm not quite sure if they submitted briefing at that point i'm pretty sure they did and the court ruled that that declaration and mr dickson statement and medical records were not sufficient to warrant equitable tolling and that case was brought up to this court because the the secretary had denied mr  one in two thousand and twelve said yes you're absolutely entitled to a clarifying declaration from your you're treating psychiatry just and you should have been granted an extension of time was reminded back and at that point  didn't discuss with either no and the reason your honor is there's a very simple distinction between wooden day and what we have here and shackle and then distinction is the fact that wouldn't they both dealt with statutory time  is what we believe is the critical point of chuckle in the critical point that we make in our brief excuse me the timeliness for filing an appeal to the veterans court as prescribed not only by thirty eight he will see section seventy two sixty six but also by rule four of the veterans courts rules and so what we're dealing with us chuck are recognized is a time limit that functions as a matter of court rules in addition to the statute and it is the authority it is the court's authority to enforce its own rules that makes this kind of suicide that makes raising the time this issue so sponte appropriate and also makes deciding it on its own with the veterans court be the only court that you know from every other court and every other context in the land and its ability to do this given the unique scheme and yes i think it would stand apart given the unique scheme that's  this time period important procedural rule it's important procedural rule and for that reason i think the time period is much more analogous to something like the rule thirty one of the garden variety claim process chappell recognised that this time period one of the reasons that it can be raised to a spontaneous is that this is a time period that not only exists in the statute but also exists in the rules and in the veterans courts rules and check itself explicitly stated that speaking statutory time periods are statute patients are affirmative defenses are owned by the parties when something isn't a court rule the court has authority and has increased power to control it docket and that's why i analogize this case to instance when a party filed an untimely brief in a court for example this court's rule thirty one for scribes the time period to file a brief a party misses the time period filed  motion for leave to file its brief out of time with this court at the government so that i don't post but that is not controlling on the score it is the court's frogger to its inherent authority to manage the cases that are before it and to the secretary could you know laterally require the veterans court to hear a case that under the veterans courts rules is on time with because i think another thing that's important to remember here is what  statute they absolutely echo the statute your honor that is true rule for parallel the language of section seventy two sixty six but i think the fact that the court went through the process of of incorporating that language pursuant to the thirty granted to it by congress pursuant to authority granted to it in thirty eight u s c section seventy two sixty four a demonstrates that the in doing so the court makes that time period part of its own to actually something that it owns and it should have to start that be true for any quarter other ministries of tribunals where it takes the claim processing limit from a statute incorporated into some kind of regulation now that court her tribunals owns that statutory time limit in a way that it can now discard waivers of than one type of case and so statute of limitations differ depending on the substance of the case that's presented that's one to the supreme court has made it clear that generally the time periods to appeal from a district court to a circuit court is  it's actually not actually not that different that that's why i say that that henderson treads this this middle ground between the kind of waiver that happens under the federal rules of civil procedure the veteran the secretary of veterans affairs never saw the initial decision of the board was wrong we need to reconsider that or anything of that nature what the secretary said was based upon your circumstances you should have another tribunal look at this but but the secretary can't look at it again and the secretary can't force the courts to look at it again when clinton secretary the kerrigan but we really haven't seen quite often requests for other considerations i think i was i apologize i think i was imprecise the secretary can ask to have something hard to get to reconsider something but in this case of not believe that the board's decision was wrong so there was no reason to rip for the secretary to voluntarily go out and say please we want to reconsider this what the secretary was trying to provide and sister better than obtaining is a further level overview to which the veteran would be read the veterans court's rules it appears to us that chuck owes language gives the veteran court the discretion to manage its cases and by not only raise it but also if this were a case of whether a certain presumption should attach i think that characterization could could have have power but because we're dealing with sensual with a procedural rule of the court the question starkly presented is whether the court should have authority to manage its cases in this particular way we are not you were going to  give me a quotable quote from anderson that you felt like gave us all a hint maybe this court this veterans court could do what no other court can do in reaction in the face of a waived equitable defense what is that question i have i have look at it so at page five sixty two us for forty there is a disk question about the distinction between veterans litigation and ordinary civil litigation and the court is discussing it to to distinguish waiver i'm sorry not waiver to to to distinguish periods of appeal in ordinary civil litigation from  from the periods of appeal at issue here and so there's a paragraph where the court talks about the contrast between ordinary civil litigation which provided the context of her decision and bowl setting this the jurisdictional limit for appeal and the system of congress created for the adjudication of occurrence benefits one of the things that the court mentions is that these cases are really not subject to the federal rules of civil procedure there's there's an entirely different  i'm looking at your honor i was not suggesting that there are some particular the particular sentence what i what i was suggesting is that this discussion distinguishing that trans veterans cases from ordinary civil litigation which quote one hundred twenty day limit is nevertheless an important procedural rule it's a procedural and procedural rules can be something that are prescribed by the court that ministered by the court and are not just owned by the parties in other words what the court would henderson did a distinguished this time period from an affirmative defense and so this is not like an affirmative defense of affirmative defense functions under the federal rules of civil procedure chaco itself recognized that these cases are not subject to the federal rules of civil procedure waiver in under those is a claim rules is not appropriate it's something it's something else it's some sort of in between system and i think that the way that we look at  between wavering on waiver and that's why both initially brought up this issue that the time period is not so it's what occurred there does not occur very often and certainly one last question as a general matter is  the court looks at the filed petitions for appeal and identifies any that are untimely and then gives the parties there's the parties are presented an opportunity to either raise you're on as you had it my colleague here had a number of points about the difference between the statute that controls seventy two sixty six and the rule that can be as i think he was saying rule for the can't be any daylight between that statute in the rule that that the veterans court can't certainly can't say oh the statute says one hundred twenty days but we're only giving you sixty days like you said a judge still they can and they can maybe interpret that rule tell our equitable tolling but they certainly can't interpretate or interpret that rule to make it more difficult for the veteran to bring his notice of appeal and of and in fact the court has another rule the veterans or actually the federal court there's another statute that governance that governs that that actually limits what the veterans court can hear seventy two sixty one a says the veterans court can  issues when presented when the secretary waived this equitable tolling issue that issue was no longer presented to the veterans court there was no basis at that point for a number of reasons but also for the reasons stated and seventy two sixty one a for it to continue on and to assess that that question independently and respectfully as you were saying judge newman and judge chen and i think you as well just will there there is no ambivalence whatsoever in the henderson decision i don't think and the henderson decision left anything up to chance yes it's an important procedural rule but it is also a quintessential claims processing rule and it is not to carry the harsh jurist jurisdictional attributes as a jurisdiction yes that's correct your honor but with with a jurisdictional rule you can jurisdictional you cannot waiver forfeit a defense but with a claims processing rule you can and what i think we've learned from day and would and from another other other opinions like a eberhard contract is you at a party has every opportunity and every right to decide the issues that they want to bring forte and waiver especially we agree with you are we going to have to accept late filed briefs that the other side doesn't oppose it does the distinction i believe that we discussed judge john between waiver and forfeiture so if and i think my colleagues right that typically the veterans court will raise the timeliness issues to us on to a ask the parties the way that way and if the secretary said nothing and i'm talking about the fact mr sort of off pointed out that there are times where people don't file their briefs this court on time and then maybe the opposing party says you know we certainly don't oppose that they filed their you know for a brief ninety days late and then under the same reasoning that you have when that mean that we would just have to accept that bra very clear difference between the rule governing equitable pulling and a motion for extension a time a motion as to work limits those latter issues extension of time work limits that's all end of it you can't have your appeal heard if you have for example run over the word limits ok that's not the end that's not spaza issue so one is truly just the court rolling with its own docket