to the court of veterans shiels excuse me for veterans claims along with my notice of appearance which contains a certificate of service under penalty of perjury that it was mailed on november seventh of rule that postage meter marks do not challenge this post marks under the federal statute the history of this is that they believe but not received within one hundred twenty day frame and his case was dismissed and eventually congress looking at that result the side to change the actual statute  with regard to filing the court and in one nine hundred ninety four they passed a veteran's benefits approved an act and that public law provided that in addition to actually filing with the clerk within the hundred twenty day period you could buy u s mail send your notice of appeal to the clerk within one hundred twenty day period and th on the envelope would serve as the date of actual filing of the appeal but that statute says that that date is determined by the united states postal service postmark stamp on the cover in which the notice is posted that syria how can we interpret that when ited states postal service postmark when congress passes in that saying that has to be postmarked u s p s there's no such thing there's not those sentencing you mean there's there's no there's no regulations and there's no definition in the internal manual united states postal service there is a word that people use indicate the cancellation mark used by the sentence by this court because one of the functions of this court with regard to the veterans court is that you review what the veterans courts doing to know about to make sure that it's legally correct this is a legally correct appeal and the issue  i believe the statute is not only an ambiguous i believe that this court in its ruling in map of where this court talked about the difference between giving it to fed ex and having it delivered one day late but giving it to them in a timely manner and giving it to the postal service was that specifically  postal service and is the same math for all purposes just for all purposes or is it for the purpose of purchasing the appropriate postage to be utilized snows for all purposes the is the  the term postmark which you say there is no such thing as a cancellation mark nondairy i probably did that poorly by the post office on an item of mail to cancel the stamp and indicate the place and time of sending or receipt which is from the black well a texan area what's wrong with that it's not true blacks not authoritative for the postal service the postal service doesn't agree that such a thing exists now they do use similar terminology the cancellation mark for those of us old enough to a few stamps  the lines that you find on postage when you get your mail that prevent the postage stamp is up and being reviews so the original purpose of the cancellation mark is not to date or to certify when the mail was received by a postal system but starting with the british system when they switched over from the receiver actually paying for the mail to a prepaid stamp system  famous one penny black they needed some way to ensure that the stamp wasn't steamed off by the letter recipient placed on the next piece of mail and so the lines that are stamped through the postage stamp  cancellation mark in addition to that the u s postal service through its regulations have something that's called the dish ship the india ship or things that you recognise on the front of an envelope such as the date and that's part of what the postal service does with mail it puts in dishes on the top right and on are but the postal service requires that the manufacturers and restricted to any particular type of mark that might be applied by the postal service that a a postmark can be any mark relating to the the posting of mail in the united states mail system that would apply equally to the postmark applied by the postal service as well as a postmark applied in accordance with postal service don't think there'd be any argument from anybody one argument that you didn't make that i'm curious about because for me i think it's it's a very significant argument and that is that the statute not only says that the notice will be deemed to be received on the date of the united states postal service host mark but it goes on  to set forth two conditions says on the date of the postal service postmark stamped on the cover in which the notices posted if the notice is properly addressed to the court and is other two conditions that have to be met in addition to application of a postmark certainly so if a postmark is only the thing applied by the post office prior to the time the postal service has it in its possession id prior to the time it's mail is if it's applied by a meter or some other authorised the condition and is mailed would be entirely surplusage if the interpretation of the united states postal service postmark is limited to the thing applied by the post office ye order from the justice department representing the arm of veterans affairs is one of the most natural readings of thirty eight u s c seventy two sixty six is requirement of united states postal service postmark is that it be a post section seventy two sixty six when questioned if in fact and you know you have no basis for disputing that it was mailed to the postal service it didn't get a lark a postmark anything that could be used to apply  it means that the the way that was set forth in the statute and bible four of the veterans court to obtain the benefit of the liberalisation of the delivery rule seventy two sixty six which as opposing needs and balance and federal express despite there being no is it that the appellate in that case took the federal express on day one twenty and arrived there on day one twenty one it wasn't the way it was set up in the postmark rule again despite there being no factual dispute that in fact they went through the act of using federal express on day one it's what this is can anyone apply any kind of a postal service notation using a postal meter without the authorization and approval of the united states postal service it's our understanding that the postage meters are licensed to search corporations in this case was pitney bowes the current are regulations setting or what have you have to do in your in setting your postage meter but in any case there's two problems with using that here one is it wasn't but there bought a post office well that's sequestration is it not because the question is the means the united states postal service postmark mean in this that you could mean a postmark applied by the united states postal service but maybe it means a postmark applied by or authorized by the united states postal service there are a couple factors there when we think the most natural reading is a postmark placed there by the post office but to the extent that the core perceive there to be any ambiguity in what the statute requires we don't have to stop there we have a rule for the veterans court which was on the notice of appeal that was filed by a pound i believe that page seventeen of the defendant's appendix which very clearly states rule for the veterans or states that where we have a statute authorizing and i believe section seventy two sixty four authorized veterans or to promulgated rules you have a rule clearly set forth to enforce the requirements of section seventy two sixty six and certainly based on a a logical reading of the statute there is no reason to find as appellant claims that the rule is in derogation of the statute merely because at the at most it in force is one so wouldn't that suggest then that the extent that this affects a jurisdictional issue that we don't necessarily defer these rules we think that the rules reflect a the courts and foresman of the requirements of the statute and are based on in that the most natural reading statute well let me let me address that with you for a minute and i want to suggest to you that you would that you listen carefully and be very careful in your answers to my questions of first first know i asked your adversary about the language of the statute and particularly what i perceive are the two conditions that are the date applies is the date the postal service postmark stamped on the cover if the notice is properly addressed and is mail i noticed in your brief on page six you cite this statute oversight and troubles me because frankly i think these conditions are our op consequence in our assessment of how this statute should be read and i find it quite disturbing  the barry conditions that i think have some some consequence here are missing from the quote in your brief how could that happen not only is text missing i can sort reading says in which the notice of appeal is mailed the statute reads in which the notice is posted come up if the notice is properly addressed to the cork and is mailed i don't know how it happened not all of us to the court for the oversight however i don't think that that changed language and i've apologized for that being misstated there was no intent to deceive the court and how we stated that with respect to the court's question regarding it is maile our understanding based upon the regulations that were cited i how it was that there's a random spot checking that would occur if there is it isn't moral isn't mailing putting it in the mailbox or giving it putting it in the post office world in which the postal service can post mark whatever that means a item before it is mailed i don't know if there is legislative history on this and is possibility where someone takes an item to the post office say please put a postmark on this to confirm that this is today and then wait for some reason and delivers it by other means other than using the postal service you use i don't know i requirement makes no sense because that vision that what the post office can fix the mark in the end and year later somebody can drop it in the l i mean we wouldn't want to allow the this an exception to apply in that circumstance right  that's why i believe the structure of the statute requires that the there the be the postmark and the mailing and the dresses to the court are there any or would be entirely superfluous if the only time if this statute only covers a postmark supplied by the united states postal service as opposed to postmarks authorized and applied on their license from the united states postal service then the requirement postal service postmark and they didn't go through the procedure and about how to turn even not all of the procedure to your conclusion that it did not their united states postal service postmark rests on the interpretation of the statute as only applying to that mark which is supplied by the postal service as opposed to a mark that might be applied by a meter licensed by the postal service correct or order and that is also the distinction relied upon in the cases cited by appellant for example the boehm decision from the ohio supreme court dealt with in ohio unemployment regulation that are only a postmark as opposed to a united states postal service postmark oh we would have to determine whether it was based upon a captain permissible construction of section seventy two sixty six and then that's a question would that continue based on a permissible for instruction some hesitant to say whether there's any instruction where i would be permissible but certainly based on this we think the most natural reading the statute is that that is not a correct interpretation of the statute and that so is there so give me a case i mean is that i mean limited the postmark rule to the conditions set forth in the statute we think that similar logic it would not be permissible to construe the statute to liberalize this adjusted for day even though federal regulations provide that they must not say that is a possibility we're not alleging anyone did anything here we don't have the facts on that but certainly if you compare a post which meter which is totally in control of a person with in some cases and it's sent of to make sure that a post which bears a certain date to the use of federal express which has no such incentive and has a system set up to establish the proper date it becomes logical that the intent of the congress in seventy two sixty six was to put the placing of the postmark in the hands of the postal service which has no incentive to place a particular day in which has the system in pla and isn't there a system by which they're supposed to monitor and if the date is wrong they are supposed to put another date on so they have this whole system set in place so that that won't happen right the current regulations require the party doing the mailing to correct the date if the date they're putting is wrong or in other cases if the post office during their random checks should find a piece of mail that is incorrectly dated they correct the date but that is putting the burden on the postal service to change an incorrect date if there is one as opposed to the system the statute and rule for which provide that it is the burden of the party seeking to take advantage of the postmark rule liberalisation of the notice of appeal period you take it to the post office and i could pick up with that last question a long time ago it was in the sixty's when i was in college majors were mechanical and people picked them up and took them to the post office where a postal employee took the money and adjust and at that point in history like black and white televisions that was the state of the art and you could at that point in history actually set the date mechanically on the meter because that's how it was set i don't like the date stamp where you do receive it in your office as opposed to a date stamp now that you can get the electronic and use that wants tell it you know recognize daylight savings time and it does time and date electronically there hasn't been since the late one nine hundred ninety s under postal regulations mechanical meters in the united states they don't exist you haven't seen one learned counsel hasn't seen one this court doesn't have one you have a postage meter but it's works over the phone system or the internet and hooks into pitney bowes in the modern world with electronic meters when you want to put post to join your meter you either pick up your telephone actually do you pick up your telephone still miss its hook through the internet on your computer and you say to pitney bowes i want another thousand dollars of postage and as you watch the meter has another thousand dollars of postage on it the only difference would be you could go online and give them a bank draft and you could watch it happen at same time using the internet as opposed to the phone service who was accused of setting the date that section pop can't do that now you can set the date in the other direction my older sister told me to be careful using post in predating when i talk to you all you can take the meter on today's date and you could set it for friday coming up and you could run five thousand pieces of mail through the meter intending to mail it on fright so modern reader would allow my office one of them for seventy two thousand and seven to set the mirror to november eighth or nov ninth but not to set it for november sixth and not on for example liberate the set it back to november seventh you can only go forward when you tell the machine to reset itself it sets itself to today's date it is there is there is no possibility of someone by one of the things that troubles me about this case if we were looking at this case and we just had the statutory language i think your argument would be so i would i would view your argument somewhat different this veteran  fairly construe the statute in a way in which is reasonable and therefore we did that what makes this case so tell me if you disagree it seems to me one could argue that this case is different simply because the c a b c has rules so there's not any ambiguity here every practitioner and clock person knows you look at the court's rules for there are rules and there's no disagreement is there that the c a b c s rule is unambiguous that what you did here was not permissible it was not going to be accepted right that's absolutely true so that's what doesn't that make this case a little different among we're looking at just the statute we're standing well with this affair construction of the statute at least in terms of note this and what at  in my local district courts around florida you can file your notice of appeal just online and eventually assume the veterans court sometime in the spring will get to the point where you can open a case online enter your parents and do all that stuff so for practitioners this isn't going to be an issue in the future but for veterans many of whom are pro se as they get to the or it's a big issue and null the court does not have the right to write a rule that no limits what congress intended the veteran to benefit from congress not if congress had wanted didn't the point of liberalizing this was so that the veterans in the various states around the united states would not be disadvantaged by one hundred twenty day rule to file their notice the as counsel said was to liberalize the process congress could have as it often does when court decision rule against citizens go ok that's how it's going to be a war just like congress recently did with regard to pay differential sex discrimination cases congress and say you know we don't like what the court it and we're going to change it and so i believe that the court of it in its claims is