and it's going to i'm very pleased to make a movie admission of daniel francis roland who is a member of the bar and is in good standing with the highest courts of the district of columbia and maryland i have knowledge of his credentials and i'm satisfied that he possesses the necessary qualifications i would just add parent that equally these are sort of the magic words of the official words that have to be spoken i would just  a tiny gloss by saying that dan has been working with me as a clerk since october he's done an excellent job and i'm sure that he will be an excellent dish into the bar of the court and i look forward to seeing him before mr alter disability to do certain things extinguish the connection between the extraordinary circumstances and the late filing the fact that the veteran could do certain things on autopilot after experiencing three family tragedies does not answer the question of whether the extraordinary circumstances prevented him from filing following the supreme court's recent decision and for how many tribes of wisconsin vs the united states will agree for purposes of discussion today that it would be appropriate for a litigant to show a generalized connection or nexus between the extraordinary circumstances and the late filing the only other dence and this record is that there was such a nexus between the three family tragedies mr all judges in suing grief and the late filing there's nothing contrary with the veterans court was looking for was full incapacitation and short of that showing it seems like nothing would have  what i think you refer to as kind of a hybrid test that asked whether the circumstances directly or indirectly prevented his appeal from being time that's what you say and you take issue with that as imposing some kind a causation requirement as opposed to the robotic requirement but do i have a right so far i think that is correct and i think that that accurately captures the focus of the opening brief which amended prior to an army unit shoot and that's what i'm saying i mean you've you've labored well here in representing your client but i'm wondering if the nominee doesn't make it clear that causation is kind of the name of the game i think that after many i mean there were some additional clarifications and that was one of them that there should be some of that generalize showing between extraordinary circumstances and the late filing the issue that we have here is there were no findings as to whether the circumstances were extraordinary the veterans court just jumped straight to the prevented from filing element and i don't think that you can separate them i think you have to first make a determination where the circumstances extraordinary is the answer is no then the inquiry stops but here we don't know whether the circumstances were extraordinary to the extent we want to i'll accept the generalized nexus or connection i wouldn't agree that it has to be some sort of direct result or proximate cause ation but we believe that that showing was made in the record i think eight thirty six three thirty eight the veteran submitted quite a few statements about how his depression and his brief caused him to miss the deadline and it looks like the veterans court just ignored that and wanted to look these other things in function effectively in these other areas of his life there was not a causal connection between the grief of the hardship of the loss of the three individuals i believe that that is an error because another player catered to the that's what the court did yes manami also clarifies that when you're looking at the extraordinary circumstances element you're only looking at affairs outside of the litigants control the external factors that would not have been whether he could take care of his father or whether he was going to work those are matters within his control and i mean he says that matters with little against control would focus  properly be anywise on you that diligence problem so in addition to skipping over the extraordinary circumstances analysis there is a conflation between the two elements that i believe is a separate legal error that would warrant remand for the analysis to be done under the proper circumstances and at the very least a threshold determination that whether the circumstances were extraordinary because only when you know if they're extraordinary can you know if they're connected to the late filing time oh so we'll do just thinking about this i don't think anybody can really argue that the death of your mother your sister and your grandchild all  period of time when the family was supposed to be made was anything other than extraordinary well it wasn't the concern that better and showed that he was able to cope and to handle all of these extraordinary circumstances and therefore the delay in filing was something that can't be excused was there any argument before the veterans court of that the problems when they can be accommodated all that we have here is the dilemma in filing there were a couple of things you said your question to jim and some one to try and take them in tandem here at the first point that you made and i would because the veteran wants a book to handle all of these circumstances he should also have been able to handle the six six month filing period that is the argument i think what the better and can handle what he could do what he couldn't do it might fit within the diligence process which is specifically looking at things within the litigants control where is the extraordinary circumstances and prevented from filing this focused on external factors things that the universe you know puts in your path and they do have to grapple have i don't dispute your characterization of what the veterans court found here in terms of the argument about whether a veteran should have i think the case law or the statute the legislative history says you know when in doubt the tide should go to the better and when it's a reasonably close situation  their service to their country and their sacrifice for the life and liberty of assault does weigh in favor of letting the tiger the better and so that argument was made below it's made here i think it's unclear in this court's precedent how much weight that is given and i think the veterans court at least the majority opinion didn't focus on whether veteran should be treated in accordance with their special  the i forget what the phrase was with that that the depression began to fade or something like that right there is not an explanation of that in the record i can tell you that mr  very difficult time with dates and kind of keeping track of when things have been for your review your understanding of the reason for the question this hour that happens to be one hundred nineteen days before the filing of race if it had been june twenty eighth and even your argument about one hundred twenty days would have made a difference it seems for two it is the june thirtieth was the date identified and i wondered if there was a medical report or something that indicated june thirtieth as distinct from june twent the day where he would approximate he started to feel like he was no longer in a period of extraordinary circumstances authority to discuss think about rule on questions about whether particular facts amount to satisfying equitable tolling either as a matter of about the federal circuit their review is really focused on even if the standard was not in dispute was that apply to narrowly and that was really the thrust of the analysis and snead is that they conclude that if you look at these facts as a matter of law they compel a finding of equitable tolling and that would come with me and i think the narrowest possible meaning of so broader questions about really mandating to figure out the application if the standard were corrected that's not really what here arguing here i think this court has the discretion to look at the record it is just as well positioned as the veterans court to do so and to apply it and to make a legal conclusion or determination but i also ruled out is the bit that that assumes that it's a legal conclusion being well positioned not the same thing as being statutory often we aren't as as you know our jurisdiction to veterans cases not the normal view of agency action where a second tier court limited in quite constrained w i would agree that this court could do render judgment but given that there have been no findings on the diligence process i think it would make sense to send it back to the veterans court to up to make findings one of two components as a matter of law and he's satisfied yes i think one either whether it's this court or the veterans court i think there are determinations to be made i think this court has some discretion and i think that the normal practice is typically to send it back to the veterans court and we would be asking for such a leap really what i think is important is that there's a threshold determination under the supreme court's standard just simply stated and that's really i think what we're asking for here but i don't know are there other than we do the standard review and i wonder whether the primary question for good morning your owners and then please the court i'd like to pick up on the very limited jurisdictional scope of this course authority to review and reweigh facts on the application of law to balance our position is that aside from cases where the veterans court sets per se or very categorical legal rule this court is sexually limited wrong re way of reviewing the facts below so in the  acknowledge the regrettable and sympathetic circumstances that mr aldrich countered and it it looked about a credible told me as a possible remedy in other contexts that non veterans in ordinary civil litigation would special solicits him in in these matters then they are entitled to try to show up at a hotel if the issue here is that the veterans court concluded after weighing the conflicting facts in they were sufficiently resolved for him to turn to his own circumstances now that's been raised perhaps as a matter of diligence but i gather that those facts were not fully explored on the theory that having put all of these family obligations first showed and and intellectual competence and physical competence to handle things that needed to be but the court also considered the fact that he was able to administer the estates to family members that he continued in his job that he even during the period of his depression he was able to review the law for literature pertaining to his claim and to submit to fill out a form and send it back to the law firm and i think the court below helf that based on the circumstances mr alter just suppression and the but that's that cause that the person did not prevent him from reweigh those facts and giving them a different which are ok so what you what i understand you're saying is mr holmes it's possible it's within our purview to determine whether it was correct for the veteran scored to assess whether these factors caused him to be unable to file a time to qualify for  tolling other words but we can't we can do that you would say but then he would say we can't go in and second guess the way the court went about it and said well this properly didn't hold him up and so forth zechariah that's correct  so and that causation standard is required by the supreme court and by this court's precedent there's a little bit of a moving target because the opening brief said that there was no causation standard required i think now they concede after the menominee decision that used the actual word cause that there is a causation requirement here the veterans court used a fairly broad construction of causation  it quoted the supreme court language which talks about an extraordinary circumstance standing in the way and preventing and it said that either directly or indirectly in these circumstances did not prevent the filing continued so i guess i'm a little puzzle why causation came into this appeal from the beginning i thought i'm tell me if i'm misremembering i thought with the veterans court said was that mr and we should stop applying that standard and that the veterans court said we interesting argument but it has no effect on this case we're not applying the causation standard we are applying the holland prevention standard indeed we're being slightly more generous in holland because we're saying he didn't even show in direct prevention not just direct prevention and so we just don't need to consider this case whether causation under separate prong is no longer valid causation has always been a part of equitable tolling it has been phrased differently as this prevents that the extraordinary circumstances prevent the time of five minutes especially saying that the extraordinary circumstances cost the late filing that but the menominee case clarified that and used you know the word causation so that this is just a semantic difference there's not a substance of dispute as to what the standard should be like our position is that the veterans court correctly chose to focus on the causation prong and does not need to examine at the outset whether the  just try this again because like i say the more you talk the more confused i am i thought that the veterans court said we don't care in this case about causation is completely irrelevant we are deciding this case by applying holland to say his circumstances mr alters the circumstances did not directly or indirectly prevent him from filing the notice of appeal since we're applying the holland standard we have no one cation whatsoever in this case to consider how that standard relates or doesn't relate to mccreary as causation standard so we every time you say they focused on causation i about whether the extreme circumstances prevent it and there was some discussion earlier i didn't remember anything to do with the veterans court essentially assumes that these circumstances are in fact extraordinary or did correct and that our position is that that is permissible veterans court does not in every case need to make a determination that the circumstances were shortly before continuing on to the other problems  june thirtieth that that got the reflects there's a declaration from mr alteration this is at eight thirty seven that he identified the end of june as the period of time when he was more capable of coping twenty one barry court has a parent article talking about it again this talking in the context of mental illness preventing untimely finding it says it is clear that merely to establish a diagnosis such a severe depression is not even though it took mr aldridge at his word that he had severe depression during that period he did not show that the depression prevented him from filing the appeal  about the barrett case the barrett case talks about until illness and mental incompetence and i think that that is distinguishable from we have here anyone in this courtroom could lose people that are important in their lives and be extremely sad about it it does make them mentally incompetent and makes them overwhelmed with grief with some emotional limits i would argue are very different from being mentally incompetent and i think at the beginning of the argument there were questions about whether this case was like sneed the shinseki and whether there was a requirement for an exclusive type parameter i think that the reasoning that the veterans court the majority applied here was that short of being incapacitated there was no showing that mr aldridge could have made that would have convinced that i will tolling was available because he was still going to work and taking care of his family and doing things that people do on autopilot when even when they are experiencing extraordinary circumstances so even if things were to have gotten a lot worse i think the veterans court based on the reason they applied it would have come to the same conclusion and that is fair because i don't think you can separate the first question about whether it's in extraordinary circumstances from the question of whether someone was prevented from fallon whether he was prevented from filing does not turn on what he could or could not have done the standard is not was it impossible for him to file the standard was did the circumstances stand in his way and the undisputed record here shows that they did thank you thank you