the st part is twenty minutes for the standing question which was the subject of supplemental briefing last month the twenty minute time frame will be divided equally with nova going st and mr martinez has reserved two of rebuttal the st two minutes for each side will be uninterrupted argument the remainder of the time will be open to questions from the court now in contrast to the nd part of the arguments today in which all judges may participate in questioning and we will be called on for questions in order and we're trying to keep this part standing a bit simpler so we have our judges judge jud toronto and judge chen will be called on to ask any questions they may have for one or both sides standing when the standing section concludes we will move on to the merits argument and i will which i will describ veterans by challenging unlawful v a action this case should be no exception for quick points about standing st no one has association standing here under any conceivable standard based on our veteran members m tangan and mr regis all three satisfy the injury in fact requirement when no the filed its petition in january and all three continue to satisfy it today and there's no doubt this case is germane to know the mission of helping veterans and their gober in this case gober took a broad view of veteran standing that we can win here under our narrower point that we have standing based on the concrete harms facing can check tangan and regis if you want to re examine in fact analysis you should do it in a case that concretely turns on that analysis you should also do in the case where the parties have fully briefed the gober issue which is nuanced and complicated that didn't happen here v a didn't challenge  standing initially in your supplemental briefing order to the parties didn't question gober solidity rd whether it's in this case or later down the road you should be clear that at the very minimum veterans with lives disability claims have standing to challenge v a rules that affect those claims including any procedural or structural rule broadly applicable to the disability claims process that approach is consistent with the result in gober and also with finding standing in the appeals modernization cases argued appeals monetization act cases that were argued yesterday and finally you should recognize that if the a standing argument is accepted it would be  two in the way congress invision to allow pre enforcement judicial review of v a rules before those rules inflict unnecessary harm on veterans article three doesn't require that result no has standing and this case should proceed on the merits standing when it has a veteran member who might potentially be affected by the regulations what with i wonder whether something more is required to satisfy the reiterate we think there is you know the b s raised questions about gophers breath and i think although those are questions that are fair questions to ask i don't think you need to reach that question but i want to answer the point that you're asking me about i just want to confirm that we don't think you need to reach that in this case because we clearly have standing based on our three veteran members with respect to whether go over was too broad i think the globe or standing whole thing was was clearly correct in finding that no the had standing in that case claims we think that's the kind of sort of broad structural or procedural type of rule that any member or at least any member who has a lot of disability claims should be able to challenge so we think to the extent that that's what gober how we think that's correct and to the extent that there are questions about you know maybe whether there was language in gober that went a little broader than that and we just don't think that that that issue is really squarely presented in this case and i think if you want to re examine that we would respectfully suggest that you do it in a case where it actually matters and where the parties have an opportunity to really brief the outer edges of standing and the outer edges of gober in a way that they haven't done so here representative to advocate for veterans can be a member even if not a veteran while a veteran cannot be a member if not an authorized that i think your honor that it's true that that that non veterans can be members of nova i don't know i don't want to to definitively say one way or the other whether a non advocate who is not near their lawyer nor a veteran's advocate can be a member intended practitioners before those two forums and being a veteran is the word happenstance is obviously not quite right since it probably is something of a correlation between being an advocate and a veteran but that one does not have to be a veteran and veteran status i'm going to then just assume for current purposes is not actually part of the membership criteria and that actually leads me then to the the question about whether that should matter for association or standing that is here the three nova members status as veterans with interest and benefits which would by assumption here give those members their own standing should it matter that their injury is in a role namely as veterans but not advocates that's immaterial to the membership criteria in this restricted membership organization and what case certainly support staff and law students and others who are not lawyers who can be members of nova just to ensure that that earlier question with regard to whether it's happenstance or whether happenstance is enough i think that st cause it's not happenstance because of the fact of course that that veterans who are advocates are drawn to advocate for veterans causes that's part of the reason why they take up this field of practice that's rather part of the reasons why they why they organization has standing and so the way that the supreme court's doctrine has set this up is there's essentially two article three requirements for association or standing one of them is simply that you have a member who has standing and that we would who would have article three standing in his own right i think the question of whether this is really an appropriate case for this particular organization to be advancing the interests that that that and protecting against the injury that those members would suffer talking about your main this or other particularly germane is make some sort of in court into possible divergence between an organization and and the individual members whose own injury would give the individual members standing and i wonder about whether there is at least in general or sometimes a divergence between an organization of advocates who are interested in the future pool of potential clients and those of might might have a divergence from the underlying interests member i will you know i honestly i find it hard to imagine that that would be the case but but i don't think we need to speculate in this case because it's absolutely clear that there is no divergence and we know that from the declarations that chant chadha tangan and regis have submitted i think the final paragraph or so those declarations makes clear that each of those three veterans have said if for whatever reason the court thinks that no but as it has standing we would like to join this case in progress and basically you know allow a lot you know allow us to join the case for purposes standing and they've also said that we're willing to adopt all of the arguments that nova has made and a both in writing and at oral argument if you require us to do that so even if theoretically there could be some sort of divergence of interest we know as a factual matter that there is no divergence of interest here because all of those veterans have specifically said they endorse our arguments and if necessary they would join the case and i think that's just the maybe the final point on this just to close that off i really don't think there's a tremendous problem there certainly not one under the precedent in gober and that aspect is not something that v a has called into question or that they've cited any subsequent case that undermines that or anything like that we don't think there's a tremendous problem but if in in the event that the court concludes that there is a german this problem i think the solution here would be simply to exercise its discretion to allow us to bring those veterans who clearly indisputably have standing based on their own facts into the case and i think that would be  which we will certainly be story your two minutes but i wondered if judge chen had a question for you or if you'd like to weigh in with hold and ask the government a question yes to thank you i have many questions standing deficiency with your petition as file is there a supreme court case you have that supports that view of post filing date events during a standing deficiency  think what we did in the in the reply brief was rely on this court's decision impressed though i don't recall i don't think that there is a supreme court case squarely holding that but i think perhaps go is a good law in the circuit and i think it's consistent with what other what the majority of other circuits have in fact done i think there's a recent already article that talks about this and so i think based on you know that's another lot of precedents up for consideration in this case but i don't think press goes wrong and i don't think there's any need to to re examine that and so i think if you had to rely on the facts that occurred after the petition was filed i think the fair thing to do especially in light of the fact that you'd be reconsidering your your pre would be to treat our supplemental filings and declarations to do that i don't think it's necessary just to be clear because i do think that the veterans the three veterans that we've pointed to all of them had standing as of the time that the petition was filed mr ch had a new surgery apart from knee surgery scheduled it was certain that he was going to have that surgery and he's a veterans lawyer who has a long standing disability rating for his knee it was also certain he was going to file the claim as as he has now done the other two veterans as well had either a claim pending under the rule that were to challenging or a claim that had been denied under the unlawful rule that we're challenging i think even as if we were ok thank you we will be for you two minutes  power to challenge any agency action that might conceivably affect their pocketbooks however in directly zone of interests rules exist to prevent such claims and a precludes know of an organization of lawyers and advocates from challenging the action clearly concerned with veterans not lawyers i know but also argues the three of us attorney members happen to be better and with knee injuries but none of those attorneys had concrete certainly imminent harm traceable to the new provisions at the time the petition  stated purposes are not to do what is best for veterans but to serve the interests of its members who are attorneys and veteran advocates nova suggest nevertheless that its interests are aligned with the interests of veterans to notice bylaws make clear that focus is on advancing the interests of its members attorneys and representatives not as veterans did know but primarily argues that its members interests here is in their contingency fees but those fees are paid by veterans from the past to benefits so the filed a new petition and had a stablished that it or it had to wreck standing at the time of the petition that was filed the past ok's concern supplemental or amended complain thanks and it says that  filed a challenge to these two manual provisions would they have standing to do that mr chen's shabda i believe would because he has a now pending claim that is likely to be affected by the rule mr regis likely would as well because his claim is now before the regional office  tangent i think is a more difficult question because he has only d stated his declaration and intent to possibly file a claim in the future and that runs into problems laid out in the various supreme court cases  that that petition or complaint is filed but what it doesn't do is look to the evidence that develops later or later events to determine whether or not the petition has been those bylaws purposes are focused on developing its members understanding of the law encouraging high standards of service conducting courses of study and providing opportunities for an exchange of certainly would hold true that an association that has various attorneys should not be able to do so simply because they put into their bylaws a catch all provision that they rely  nova is arguing that there are members as attorneys and advocates have an injury in fact and the court has looked at whether or not the entity or the individuals in a challenge to regulations that govern attorney's fees because obviously there's more of an alignment of the zone of interests but here where the manual provisions the regulatory and statutory underpinnings do not concern attorneys fees understand a little bit better you seem to have this bright line rule that there needs to be a claim on file with the and if all the facts on the ground are quite clear that mr jenks had a about to undergo partial knee replacement surgery and now he's going and he says this is all related to his service and he intends to file a claim i guess what is needed it doesn't feel like there is the same kind of chain of speculative possibilities that the supreme court has criticised before and when it concluded there was lack of standing in other kinds of cases well i think there is still speculation built into one not just because he doesn't have a pending claim as of that date but he has not had the surgery simply being scheduled for the surgery doesn't mean that ultimately you will have it it doesn't mean ultimately that you will display  the necessary disability to to to make a claim so i think the speculative nature of it is still present even if there is an affidavit to the effect that you know i anticipate having the surgery and i just paid making a claim for benefits i think another point that we would make in response to the question your honor is that the declarations from mr chen chata and the other  y and i think that in most of the cases that we've cited the evidence has been more than simply a statement that i intend to do something or i have an exhibit in an injury and that's good government's seems to suggest that he should have filed a claim that would have been futile and foreclosed under the v a s existing interpretation of the manual that doesn't make any sense he was but he was suffering in january two thousand and twenty because he was being paid less than disability benefits and he deserved under again that no this purpose goes beyond helping advocates it also help it isn't no but also concerned with helping veterans themselves and that's not just a statement that's borne out by the extensive litigation and policy advocacy even addressed that request in its response and so we think it would be entirely appropriate exercise of this court's discretion especially given that under the fair reading of gober we had standing under that precedent that if you want to sort of reconfigure the standing requirements  argument and this is how don't work each side will have a total of fifty five minutes petitioner has reserved eight minutes of that for his rebuttal each side will begin with three minutes of uninterrupted argument followed by two rounds of questioning from the court the st round on each side will involve my calling on judges in order of their seniority in the st round each judge will have three minutes that time this plan to cover both the question and the answer after we complete the roster for the st round we will have a nd round for judges with additional questions again we will go down the roster and i will call on judges in order but on this round there will be just one minute allotted for each question and answer there may of course be some flexibility in that timeframe if judges pass asking a nd round question we will follow this  process st with mr martinez and then do it all over again with mr brusque him we conclude with mr martinez's rebuttal time where judges will be free but on their own to raise any remaining questions that's the plan so  interpretive rules and policy statements in doing so five o two promotes the prompt and efficient resolution of pure legal questions with broad significance while avoiding the need for individual veterans to litigate those questions through the painfully slow  claims process here nobody's challenging to need disability rules in the adjudication manual both rules are unlawful one of them instructs v a officials to ignore this court's express holding in hudgins versus mcdonald the adopts an arbitrary and capricious test for assessing knee joint stability the a wants to block the court from even looking at these rules but none of its threshold procedural objections has merit st the new rules are covered by five a tos cross reference to foyer section five hundred and fifty two a one which refers to interpretations of general public ability the a concedes the new rules are interpretations and they are of general quick ability because they apply generally to anyone  just a particular named individuals that interpretation tracks the ordinary and administrative law meaning of general public ability that's been reflected in federal law for almost a century v a says an interpretive rule can't be of general public ability unless it's b but that argument has no basis in the statutes text or history and it's directly at odds with the supreme court's decision in alina house and with black letter administrative law in any event the new rules here are undeniably binding binding on the regional office staff who issue vs final decisions in ninety four percent of all disability claims second section five or two also authorizes review of interpretive rules through its cross reference to a p a section five hundred and fifty three which directly refers to interpretive rules twice section five hundred and fifty three does not implicate boies publication requirements and is the simplest and most straightforward way to resolve this case in novus favor rd although finality is not a separate requirement of five o two the new rules are final in any sense that might matter they reflect da's conclusive decision on how our staff must interpret and apply the new regulations in every case any veteran whose claim is denied based on the new rules has suffered an adverse legal consequence directly attributable to those rules finally this case is timely everyone agrees congress subjected five or two actions to section twenty four a one a six year statute of limitations because a can't hide behind threshold procedural objections this case should be heard on the final word is the b d a and the veteran can get b v a review of any determination if he if he or she wishes you point out however the facts on the ground you cited this morning in your argument the ninety four percent that is a practical matter for one million and a half annual claims only a minuscule percentage of those cases are actually appealed up to the day for the r o determination is almost always a final word hopefully the small numbers of appeals to the v a reflect that veterans are satisfied with our actions but leaving that aside would your position be different than if the numbers were flat in other words if ninety four percent of our own determinations in fact appeal to the with that change your view of this case i don't think it would change our view of this case because the ninety four percent i think it's a very powerful plot practical illustration of what v a is self conceit as were the far authorized empowered by congress and by the agency to issue final decisions legally final decisions and so i think even if the numbers were reversed if that statutory provision is still there which says that the r issue the final decision on behalf of v a that itself has an enormous effect in triggers legal consequences i also think the other broader point here is that the quest the whole question of whether the manual is binding either on the or on the board ability has nothing to do with whether a interpretation is binding on this particular agency official or that particular agency official and we know that because the history not only the plain meaning of that language but the history of the word  the phrase generalistic ability is rich in the administrative law context the federal register act in one thousand nine hundred and thirty five used that phrase and immediately afterwards regulations were issued that remains in the very st provision of the could a federal regulations honor i think it's true that any individual veterans to take advantage of of of the you know a victory for nobody in this case would have to file a claim but the difference is that if if we if we win this claim the case this court would have would have reaffirmed for example with respect to the need the knee replacement rule would have reaffirmed the decision it already made and hudgens versus mcdonald which means that someone like mr chan chatted with a partial knee replacement it's going to be a very easy his claim in the aro and it would then be denied because there are a has been instructed to ignore this court's decision in hudgins and so that case would be that claim would be denied he would then be forced to appeal to the board and he would have to litigate the issue in the board in front of the board through both the regional office and the board mr chance that it would be deprived of people like him would be deprived of benefits for that time and we're talking about the new role these are very significant benefits in the st year it's probably amounts to something like twenty five thousand dollars or so of compensation for a veteran who's been disabled and who's entitled to benefits both under the regulations and under this court's decision huggins and who is being deprived of those benefits simply because the v a has decided to insert a provision in it manual and mr change that is unfortunately not the only one this kind of surgery apart from the replacement it's very common and so i think it really does make an enormous practical difference whether they are always going to be forced to file a follow this illegal rule or not replacement rule which as i understand it was earlier published in the federal register and i wonder given that circumstance whether the republic a sion of that rule in the manual gives this court authority to review the manual as opposed to reviewing the federal register now that that might be solved in this case by amending the petition two if that's correct shouldn't be reviewing this rule based on the federal register notice and rather than the republic a should a manual thank you could check a couple comments on that s don't think it's the same because i think what the what the manual is doing is not only is it sort of instructing people to a plot apply the interpretation that was in the federal register but it is interpretating this court's decision in hudgins and you can see that from the analysis that da undertook when it put it in the manual i think it's at page one hundred and sixty of our appendix they are basically interpretating the hudgens decision to somehow turn on you know to basically create a different rule for claims that were pending before that federal register guidance was put in place and claims that had not yet been brought and so we think that is very clearly an interpretation its in its interpretation of the judge's decision of general put ability we also think it's an interpretation to the extent it incorporates the the the regulatory change that was in the code of federal regulations we also think it's an interpretation in that sense i think the nd point i would make though is that you know it does seem possible that we could you know in theory bring another challenge to the regulation that was put in the federal register which again was and it was this designated as an interpretive rule at the time but that just sort of proves the kind of absurdity of this case with because that exact regulation was considered by the court this court and hudgens v a came forward and said look you should agree with us in hudgins because we have this regulation that's in place and you should defer to it and the court looked at the regulation it said that the regulation was not entitled to because it was inconsistent with the agency's past practice and it said that it was also wrong because based on the language of the regulation of the underlying regulation that the diagnostic code and the pro veteran canon the correct interpretation the best interpretation of of the diagnostic code is that it is a benefit certain are granted to people who have partial knee replacements and so in theory we could we could bring another challenge to that regulation but we think the court has already conclusively looked at that regulation the regulation do you agree that the simple republication of a rule doesn't create a new opportunity for judicial review i think that's a harder question i think if it were literally just a republic a sion i think maybe not but in this case as i was saying i do think that you have more than that because this is really about an interpretation of hudgins which goes above and beyond just the republic a sion of the interpretive guidance thank you  consider finality from the perspective of from the perspective of the board or i think your honor the finality question needs to be considered from the perspective of the agency action that we are challenging and whether that satisfies the finality requirement now i'll just bracket the fact we think respectfully we disagree with ashford holding that this the two prong bennett versus spear test for finality applies here but even if assuming that it applied i think the way to apply that test are to consider it would be to ask yourself whether the the manual provision reflects the consummation of the agency's decision making process and we would say absolutely it does because it conclusively constructs are due to caters to apply the unlawful unlawful interpretation and there's no question that that is be a suffici position and then the nd question is whether legal consequences flowed from that and we think legal consequences plainly do flow from that because as i was saying earlier the r o decisions in the vast majority of cases are legal are legally considered final three i guess your honor i think the way that i would conceive of it is is is whether whether under bennett this manual provision is the consummation of the agency's decision making process with respect to what are the what interpretation to storrow have to apply and i think the answer to that would be clearly yes and then the legal consequences that flow from that  important is if the court deprived of an adequate legal factual landscape upon which to determine cases in congress as an escape the harm to the better honor a couple points on that st of all i think this the fact that that v a makes a lot of changes to the manual shouldn't concern you presumably i think v a would probably say that that those changes are are are legally valid and so it's not clear to me why we should imagine that every one of them is going to be challenge i also think that many of those changes may have to do with things that don't fall within fifty five to a one so i don't think that's a concern i don't think that point necessarily hold with respect of what would help veterans i think the  answer is that the way veterans would be helped and what congress thought would help veterans was creating the ability to bring these kind of pre enforcement challenges to agency rules to v a rules and the reason that helps veterans is because the challenges are always going to present here issues of law that don't turn on any particular veteran's facts and so they're going to be teed up they're going to be right for review and this court can decide them essentially on legal grounds and the reason that helps veterans is because you will get a determination earlier after the unlawful rules promulgated which will then allow veterans and the v a when it's adjudicating individual claims to apply the correct rules earlier in the process if you don't allow that then each of these things is going to have to be litigated and an ad hoc basis case by case as we've talked about you know it's five and a half years to get something at another year so if you're going up to the veterans court and if that's the mechanism by which these poor legal challenges are if you do kate you're going to have you know five or six years worth of educations and precedents in our own decisions and board decisions that are built up that could very well be under an unlawful understanding of the rule and so that's a lot of eggs that are going to have to be unscrambled if at the end of the may be a you know an up tick a little bit in this court's docket i think you know this court was been empowered to protect veterans in precisely this way and think by doing that you're going to streamline the kind of litigation that's going to have to happen in front of the v a and in their disability claims process say that every filing within six years is timely and a rule requiring a filing in less than six years is not inconsistent with the meaning of twenty four ones words and without inconsistency rule fifteen is authorized by twenty seven to one so i think your twenty four a one inconsistency argument sensibly enough depends on characterizing two hundred and forty one as going beyond it literal meaning and embodying a congressional judgment that any filing with in six years is timely that's exactly the kind of characterization that the supreme court in a trial and s which is a general default limitations provision applicable to the entire range of actions against the united states government not covered by another provision where congress wasn't making a judgment about any specific context at all such as a rule challenge context in which as far as i think anything i can nothing suggest congress and normally if ever six years or anything close what your honor a couple points on that i think most importantly i think it is fair to look at the six year statute of limitations as embodying congress judgment and i think that's why this court has said that that that six year statute of limitations applies i think there's to look at the time what congress did there and say that they understood what they were doing and they understood they were legislating against the backdrop of going to court when i can i interrupt make it impossible for lawyers to hear when judges are trying to interrupt them i'm afraid but  let me let me try to refine what my focus is it seems to me that the plain meaning of the words of twenty four awad say only that if you file beyond six years your untimely they do not say that everything within congressional judgment in that underlying this statute that everything up to five years and three hundred and sixty four days is being declared to be timely which is what i think the court the supreme court here was clearly trying to essentially create a mechanism for a ph like review of the agency actions and so i think in addition to the general presumption that congress was aware of that provision i think it makes perfect sense for congress to apply the same you know a p appears in twenty four a one day to this kind of claim i think the only last thing i'd say is that i do think that that these types of arguments could have been made based on the text and were made based on the text in both the trial and in and se a and i i make the point that in those in those cases the statutes appeared within the patent statute within the copyright statute but i don't think there should be any difference here given that two hundred and forty one a is the background and a twenty four a one a is almost universally acknowledged to apply to a p a cases  sort of like the ones that the congress authorized here judge can thank you i'm interested in two different questions but my st question i think is a follow up  position from which legal consequences will flow and i understand that you're identified that ninety four percent of the time when the r o denies a claim that is  created a system of two level review and what were boring right now is how the manual really only binds the st level view and so what i'm trying to understand is why is it finally to see action to have these manual provisions when they only control non final st level adjudication you can't get your own decision becomes final so i guess what i'm wondering is why can we say that these manual provisions represent final agency action when they don't control the final adjudicators the board is that the way that the structure in the statute sets up the scheme the entry level educators are also final adjudicators by law not just by part not just by the fact that that they happen to be the last person who issues the last word in ninety four percent of cases a judy caters review that st level decision right that's right but that's also true in the context of ordinary litigation and district court i don't think anyone would dispute that a district court issues a final decision with with legal consequences flowing from that even though there's an option to take an appeal to the court of appeals and even though the court of appeals might not be bound by the rules that were applied by the district court in the same way especially if the the court of appeals is on bach and so i think ordinary principles of finality recognize that when the the adjudicator here the the r o or by analogy the district court has the ability to finally and conclusively resolve the claim on the back half of the agency that that finality is is good enough  and and i think i don't see any reason why i want to depart from that from that principle here ok my other question is there's a lot of agencies out there and they all have manuals and i'm just trying to explore what are the limits of your position on how much of all these different manuals have to be published in the federal register can you give me identify quickly several examples of provisions in the v a manual that don't have to be published in the federal register that are not interpretations of general likability sure i think i think the easiest and you know there are a lot of them and there there's we could go into the weeds very quickly but i think if you look at the beginning sections of the m two hundred and eleven manual a lot of those beginning sections are just like identifying the the legal rules that would have would govern benefits claims and so you know for example there's a section to talk about due process and it kind of reproduces the due process clause of the constitution and there are other sections that basically do the same thing with respect to statutes and regulations i think that would just be an easy example i don't think that's an interpretation of anything and that wouldn't have to be certain forms when when you know dealing with appeals there's a whole list of provisions but i don't think everything would need to be published i think that that's the way to figure out what we need to be published is just by looking at five hundred and fifty dollars to a one and if the the the particular provision of the manual announces an interpretation of general quick ability under the normal meaning of that phrase then it would need to be published can i just make one point on this over publication concerns that think it's an important one there is a the general counsel to news need to be published it doesn't actually publish the full text it just puts a short notice in the federal register with a cross reference the the p p o does the same thing with its m p d p examiners manual it just puts a notice there and there's potentially  across references to a website and so i don't think this would be burdensome at all if you read the publication requirements for what it means because there ways that agencies can adapt that will not require them to publish too many things that that maybe don't really need to be published because they're available elsewhere thank you thank you mr martinez i just want to follow up with but just like with asking you earlier and just because my time is short can you just please assume that i disagree with you think in that case i think it would probably be more likely to fall into the category of a statement of general policy as opposed to an interpretation because at that point i think based on the hypothetical it wouldn't actually be interpreted anything it would just be sort of reproducing the interpretation from elsewhere but the policy the general policy that would be embodied in the fact that it appears in the manual would be a policy of instructing our educators to follow that interpretation despite  think that would be fairly qualify as a as a statement of general policy so it would still be covered by the publication requirement by five hundred and fifty to one but i think it would probably be under that different process ok let's take hudgens out of this because i think you're not  register is that manual provision separately reviewable under five o two or is the instrument for review a challenge to the interpretation and now it's in the federal register i think i think probably i would be careful not to concede anything here because i haven't fully thought this through your honor i think if it were literally just purely a restatement of a rule that a piece that appears elsewhere and that hasn't come under question there hasn't been litigation about it there's no life policy judgment that's being exercised with respect to it other than just putting it in the manual i think that would be a much harder case for us but in a circumstance in which there is a question about how whether  see me but you keep saying that would be a harder question and then back can you answer the question if the manual provision simply go look at this regulation because it's what covers this condition it doesn't have any for the situation we have here for the reasons that we've talked about and why is your answer yes my answer would be yes because in that circumstance the manual is itself announcing the interest and interpretation of general portability limitation i think maybe i misunderstood the hypothetical i think if it's just a cross reference to a regulation without like reproducing it reinforcing it then i think that would probably not qualify but if the manual is itself playing it out  that interpretation again and especially you know again by i don't want to exceed the bounds of the of the the the premise is they've asked me to accept but i think by putting it in the manual that the agency is actually doing something that goes beyond just adopting the interpretation it's it's instructing the our adjudicator to follow that particular interpretation i think the combination of those things would would make it reviewable but again i don't think that's this case under another statutory provision that's the kind of language we usually see and what i want to know is are you aware of any statutes with similar wording to what we see in five hundred and two and in particular just to make it clear i'm talking about that too which honor i had a little bit of trouble hearing the question but as i understand it i think it was a reference to the the comment in the legislative history of the two thousand and eight legislation that seemed to make reference to the sixty day rule statute of limitations apply you know this supreme court has said just recently that arguments based on subsequent legislative history and this would be subsequent legislative history of course because the two thousand and eight legislative history which would post state in and eighty eight passage of the judicial review provision that we're talking about the court has said that that kind of subsequent legislative history should not be taken seriously and that's from the boss talk decision and and i think you know the fact that a committee staffer may have written the report that included a reference to the sixty day rule on the assumption that the sixty day rule was consistent with the law i don't think should should matter in your interpretation of whether the six year choice to express a preference for pre enforcement judicial review and we don't think that at that time of course the sixty day time limit didn't wasn't in it was in existence yet it didn't apply and we think that congress legislated against the backdrop and three but not to our argument based on the cross reference to five hundred and fifty two and the reason for that is that the only real dispute i think between the parties with respect to our five hundred and fifty three argument is what the meaning of the  agency says those are entitled to our deference i think the fact that they make that argument just simply confirms that the agency views those interpretations as final as meaningful as creating legal consequences that that would make them review we can talk about if you like a specific new rules here we don't think that either interpretation is reasonable we don't think the knee replacement rule interpretation is consistent as this court said and hudgens so we don't think they're actually entitled to our deference but as a general matter i think they usually assert that it feels like what might be happening here which may well be absolutely correct under the statute is a large shift where we're deciding many legal issues without the benefit of rulings on the issues by the specialist veterans court that that although there's a lot of tricky administrative law questions here i think ultimately this case really does turn on the ordinary meaning of the cross reference to five hundred and fifty two it's reference to interpretations of general public ability i don't think the government has come this case the court must decide if it can review interpretations in the manual under section five or two which congress designed in the v jr a as a limited route for veterans to challenge binding the actions like regulations and presidential general counsel pinion e is generally applicable and so it must be published and can be reviewed but for over fifty years courts including this one have grass grapple with the notoriously difficult line between a one d and a to b the reason this line is so difficult to is because there is no clear line drawn in the text of oil notice textural approach to a one d does not lead us to the right answer because it leads to silly results no argues the general interpretations and general policies applied to more than named persons and so must be published whereas policies and interpretations directed only to particular people need not be published nervous argues in this reply is a must that there are policies of particular uplink ability that are covered by suggested test the court should decide whether publication requirement attaches by looking at whether the agency action behind the agency intent therefore and as an objective matter adversely affect a member of the public doing so is consistent focus on ensuring the public is made aware of agency actions that will or can adversely affect them fifty years of precedent in the supreme court's decision and more than the release it's also most importantly consistent with the v j r a which is designed to channel most challenges through the administrative claims and appeals processes up for the specialized veterans court with a limited exception for director view of regulations and presidential general counsel pains which are binding on the entire well i think the legislative history of the v j r a makes clear because there's references in both the house and senate side that what they had in mind where that rules like regulations and presidential general counsel pants which sets forth how the entire agency interpreted a statute or regulation would be reviewable by this court on praying for some review because there is no reason to require a veteran to go through the process of  a decision when you know how the b v a is going to interpret the law because the agency has set forth any findings statement but where there is no such binding rule on the board and the board is going to take it to no review of things the v j are a set forth a very intricate and important administrative channels that channel each of those challenges up through the board and through the veterans court not only to build a record but to gain the benefit of the expertise and the knowledge that the board judges and the judges of the veterans court bring to a question before this court steps in to review it so i think it's entirely consistent with the v j r a to limit this court's review and channel and i think the sixty day period is recognition of the fact that most review through the v j are a would is designed to go through the v a st and then to the veterans court and that the option for coming to the federal circuit should be limited it's both limited by congress with respect to the cross references in section five to and this court obviously believed in one thousand nine hundred and three that it should also be limited in its time period which makes sense because what you don't want is a situation i think that mr tangent represents here where a veteran has an opportunity to appeal the application of something to their claim they have a chance to appeal to the board but instead they don't they let it become final and then they show up and ask for pre enforcement review and claim they have standing because they were harmed i think that really perverts the mechanism set up in the b jr a through which mr chandan had the opportunity and should have availed him the opportunity to  st is you have consistently argued for our deference to provisions in the manual and i do not understand how that position is consistent with your reflecting perez it's not the agency's interpretation that becomes the final word on what a statute or regulation means is the court agreeing with the agency and so i don't think that  asking for deference because the agency has long interpreted something in a certain manner it isn't isn't their position that the manual provisions were represent the official position of the agency which should earn our deference inconsistent with the notion that that's not the final agency action well to the extent that the secretary of agrees that that position should be entitled to deference and that argument is made in court but i would point out that at that point that manual provision is subject to review by the court and so it does not hurt other manual provisions into  final agency action or make them otherwise binding simply because before a tribunal the agency asks the tribunals to take a look at how the agency has interpreted this one statute or regulation in the manual  my nd question relations supreme court's decision in talks where the court suggested and is this then repeated very circuit decisions also that the court has taken a pragmatic approach to possible reputational damage so if in fact we have to take a pragmatic approach erick to this question analogy as a practical matter isn't this  does state that there should be a pragmatic approach there's been inconsistent interpretation of what that means in the d c circuit so there are cases like appalachian power in the n r d c case and and although that is about reputation of the harm the court and joshua's was relying on the reliable sprinklers case which in which the the party at issue has who voluntarily complied with the action at issue or to go through the board process and appeal to the veterans court if a veteran chooses is somehow renders manual provisions sufficiently final somehow it is practically binding on the veteran but that is exactly what the v j are a finals out the point is because so many of these claims are resolved as a practical matter at the board to creep into what congress had in mind in one thousand nine hundred and eighty eight when they set up these review mechanisms and the fact that ninety four percent of claims are not appealed to the board without any insight into why  the vast majority of them do not appeal does not give an indication that a and otherwise limited decision like a manual interpretation that's not by and the ultimate decision makers somehow is transformed by the decision by certain veterans not to appeal to the port ok and my final question relates to the six year time limit and we have various other federal statutes including the high backed and other provisions that compose a specific sixty day time limit on review of agency action doesn't the fact that congress didn't include that sort of sixty day limit in this statute suggests that the general statute of limitations govern well i think it suggests that the twenty four a one a certainly applies and we don't dispute that but i think as judge toronto correctly noted two thousand four hundred and one a only sets out an outside time limit on when cases particularly for interrupting but i don't think you're answering my question the question is when congress and other statutes imposed a sixty day limit and didn't do so in this statute isn't that evidence that the general six year statute governs and i think that's reading too much out of the congressional silence and there are there are many examples of times when congress does not include a statute of limitations and where a court finds a twenty four dollars a one a does not apply and the courts are instructed to in those circumstances borrow statutes from other analogous situations so i don't think that their support for the notion that congressional silence should lead a court to adopt a mean i'm not familiar i suppose enough with what they put in the federal register certainly to the extent that they were changing a regulation making a substantive change then they would have to put fifteen would we object well i think as we raise in our response to the petition for review there are processes that the court typically goes through to change internal rules of that nature which permit repealing the rule and permitting that or and like a mr tandjung or or the veteran like in hilarity to you know sort of partially goes through the chapter seventy two process has been allowed things to become final and then many years later come to court that requires a rivalling in less than the time beyond which congress has set the filing is too late and related really any cases addressing some of my recollection is that neither side brief  so uniformly understood to declare everything timely that is less than that date that no court has ever thought that it could make a rule to  other courts have not undertaken what the federal circuit is a specialized court has undertaken with respect to this unique system is not i don't believe overly persuasive evidence that other courts twenty four dollars a one is likely maybe even uniformly accepted to apply to a p a actions and if that's right has any of those cases indicating that view involved an effort to demand a filing and less than a six year period the answer the st question yes i do agree the cases that i reviewed showed that it are looking to explore the board's relationship with the rest of the agency and my initial question is why is that the v a would create a system in which you would go through all the trouble of it made sense to put together a manual clearly it didn't need to put all these things in one centralized manual and it could have required regional office adjudicators to call back to headquarters and get marching orders in every single case and do those board members not follow our elect to not follow the manual provision is that we on an extremely uncommon do you know i don't know how to how to categorize it as common or uncommon we do under those circumstances when it has the board from time to time electing not to follow the provisions set forth in the manual in fact doing something contrary to us put forth through the manual that leadership of u p a and dva would need to sort of determine and i think that would be the right situation perhaps for a general  a or reconsideration of a final board decision that's correct and if it is beneficial to the veteran the v a cannot appeal to the veterans court is about to make the exam make the board members  far and i'm going to ask to a hypothetical because i don't want to get into a big debate about what the role actually says or doesn't say or how you have to go is that assume that an agency recognize don't want to concede that would be true in every conceivable circumstance but i think if there is a substantive change to the rating criteria then in the diagnostic  think the answer would be yes your honor that would be something that should be undertaken through notice and comment so then i'm going to ask you the more specific and this isn't hypothetical   interpretation in the c f r or in the federal register that it would have been revealed on your five to yes you know i don't i don't know the reason why the agency did not follow through with the wasn't and therefore should be put into it can be put into the manual what i would point out though is that we are not suggesting that a veteran affected by this could not have come to court and said hey  seven your interpretation of it in the manual is a subset of rule it should have gone through notice and comment and federal circuit i want you to invalidate it for failure to do so now of course no one has not made that argument which  noted suggest some possible divergence between the veterans but again i think the federal circuit does have jurisdiction to consider whether or not a rule that the v a has put into the manual it's a role either a substantive change or even a an interpretive rule that should have been published it should have gone through that process and it hasn't and so the rule announces deficient as compared to what i think you would say it's a different circumstance would allow the agency to hide provisions that should have gone through notice and comment or otherwise been published in the federal register and therefore would have been challengers all under five to to hide them in the manual and under your manual doesn't hide it from review it's still subject to five o two and the argument that it should have gone through notice and comment and the federal circuit can review that and say yes the should have gone through notice and comment and so it's invalid and invalid is that way and also just by putting it in the manual does not suggest that the interpretation in the provision is somehow hidden from judicial review because the other chapter seventy two process will eventually shine light on that judicial provision if it is in fact erroneous that the government in kaiser apparently agrees that four decisions are not entitled to our deference as compared to manual provision is that your position that board decisions are not question following up on my earlier question it sounds like in the manual the v a secretary sets forth interpretation that it then later seeks our deference on but at the same well i think because of the desire to give veterans multiple different bites of the apple to demonstrate that someone has made an error and then the term potations and so for the vast majority the board is not bound by the view of another part of the agency that takes an independent look and this provides multiple layers multiple sets of lies to make sure that the agency is making the correct call how something is interpreted and how it is applied so i think it is part of the paternalistic system and i believe the v r a lead up to it there was consideration of doing away with the board but it was decided not to do that and that was it was adopted as part of the system to ensure the veterans have multiple opportunities and multiple people who look at their cases to make sure that they get it right would agree that it would have been proper under five of two to challenge the federal register notice is there anything in your view that would prevent them from amending their petition to challenge the interpretation is announced to the federal register notice as opposed to the bando provision and therefore allow us to review it in this case after that amendment i think is a general matter under five o two no they would not be prevented from from making that sort of adjustment i think part of it might deter land on where the court comes down on its full fifteen s and they put the application there saying you know before answering conclusively i need to see exactly what and fifty three even by way of exclusion and of course no no no decision from this court has ever read five o two in that way and we would suggest it's an illogical reading because there was obviously a choice congress made court to essentially review everything that the v a publish any statement made by the v a whether interpretive whether only a particular ability and i think there's there's really no support and i think it reflects the sort of attempt to isolate in a vacuum the words of the statute and make it surely textualist argument as to how it should be interpreted the court is here to interpret the v j r a and so it's important to keep in found that there is no section five a to review for interpretations that are published in the manual thank you thank you mr martinez you have eight minutes remaining for a bottle which you may or may at the bottom of page twenty two the criteria that five hundred and fifty two a one and a to establish overlap overlap in other words there's not a clear line between a two and you can have things that fall into both categories secondly with think it's you know the the the weirdness of that is exacerbated by the fact that the board decisions once they come out they only apply in that individual veterans case and so although mr ruskin says that it's accepted administrative law practice to issue you know  broad statements of law in adjudications that's true but any statement of law issued by the board is not binding on anyone it's not binding on the regional office the next time around it's not binding on on v a and litigation it's not binding on the board itself the next time the next case come across and so i think it's a mistake to think of the board as being some sort of superior agency that is entitled to reflect the real position of the v a what's really going on here is that the real position of the v a is reflected in the manual and although they they have created a weird system in which there appellate review body is allowed to ignore certain interpretations i i don't think that changes the fact that the manual provisions are binding on the regional office adjudicators and beget final decisions and i think you know this this sort of wrinkle about the the board's role and the the effect of its decisions i think just plays up the arbitrariness of the a's interpretation of section five hundred and fifty two there's really no reason to think that congress would have thought that a rule qualifies as being of general quick ability if it binds the regional office in the board even if it doesn't bind other agencies entities within the agency like the general counsel the secretary the secretary and so this whole binding this requirement reaching and so as a practical matter as a pragmatic matter in the real world everyone knows that the manual provision is enormously significant both because if it has lead to the final decision ninety four percent of the time and i would say because it exerts a powerful gravitational pull on board decisions with respect to the statute of limitations a couple of points your honor judge newman asked a number of questions about the sixty days limb and i just wanted to clarify that that sixty day limit did not appear in the original statute in the section five hundred and two it didn't appear in the legislative history of that statute or in its text if you look at this court's brown decision from the late one thousand nine hundred and ninety s what the court seemed to imply is that it is an act in the sixty day rule as a matter of its local rules because it was under the impression otherwise there wouldn't be a limitations period and what the court's later decisions make clear and what v a has conceded is that in fact there is a limitation period here it's the six year limitations period in section two hundred and forty one day and so i think it's important just to clarify that and i think the court was not you know the court was operating and what it may have thought was a situation which it needed to borrow a statute of limitations or come up with there was no other statute of limitations this case is different finally i think on that on the time limit i think mr preston conceded that v a has looked far and wide for precedent for something like this where a local rule sort of unilaterally cuts back on the statute of limitations that's been enacted by congress it could be a was not able to find any such rule we haven't found one either so we think this would be a totally unprecedented situation if this court were to uphold a sixty day timeline limit in the face of a command from congress we also think it would be a recipe for some chaos if that rule were adopted more generally as we've discussed the six year session invitations applies to all a p a actions unless there's another statute with a different specific s limitations so under v a s approach every district court in this country every circuit court in this country could by a local rule adopt a shorter time limit that would create a different a different rule that would apply to a p well that argument is completely at odds with the government's argument on standing as i understand the government's argument on standing the only veteran the only veteran who is able to bring up who has standing to bring a five o two action is a veteran who has already filed a claim and has that claims pending in front of the are the government's position is that once the clip before the claim is filed you can't you know standing after the claim is on appeal to the board you don't have standing and so their argument is essentially that the only person who's actually able to bring these cases is the person who already has the claim and that can't be consistent with their with their other theory which is that you know you don't want to let you shouldn't let section five go to trump the ordinary disability claims process finally your honor a policy point about would have the force and effect of law that would interpret diagnostic codes that would apply the diagnostic code fifty dollars to fifty seven dollars in response to that notice it got negative comments from a lot of people the agency then apparently decided that going manual and it did that because it wanted to have its cake and eat it too it wanted to essentially have a rule that was defacto bind even though the technically not binding and it wanted to have a rule that under its theory would not could not be challenged in court under section wanted this court to protect veterans when v a loses its way when v a passes the legal rules and we would respectfully ask you to allow this case to proceed to the merits thank you your honor thank you before we conclude i would just like to express our thanks to the two advocates this morning for their cooperation in working through this process with the clerk's office and the court contribution is very much appreciated and of course i also my collect and burn for busy everything they did in making this proceeding go smoothly and indeed also for their her plea and efforts for these many months which is allowed our court to continue to operate at full speed during these challenging times and with that the case is submitted and this concludes our proceeding for this morning thank you all the honorable court is adjourned until tomorrow morning at ten