interfering on behalf of mr leslie washington mr washington maybe he's going to request along with myself for a review of an amended fee agreement between mr washington and myself concerning the terms of representation particularly in relationship to the question of offset this request for review below presented the issue of the continuing validity of the inbound decision in carpenter versus principally this court has the authority to review a decision of the veterans court that rejects a party's statutory argument without discussion that is precisely what happened in this case the court reached the conclusion this court excuse me reached that because you had any courage of the police i mean you're not losing this case and the ability to challenge this or ever well i believe i am here are you are because the way in which this rule works is if the ija fees are paid and there is an ejaculation pending which is stated and then the outcome of this decision those fees are required by this rule to be offset if and when there is an award of past due benefits the offset is controlled by this rule this rule requires attorneys appearing before the veterans court to follow this rule and to impose a self imposed the obligation to  now the v a has in other circumstances in withholding contracts actually gone ahead and made the offer the fee in this case is a non withholding fee agreement so there is no place for the v a to enter into this process in order to make a decision on the offset i cannot go back to that that transport in the washington case because washington east will be closed which is precisely why we asked the head of the sheer agreement reviews to determine whether or not there is or is not ever going to be an offset because we don't know if you're going to earn things on the other rat right that your statement is correct your conclusion is mistaken the conclusion is mistaken because the rule is subject to a final decision pending the review of that fear agreement congress provided for a specific mechanism for the review of fear agreements and the review of fear agreements is authorized by statute to be conducted applies to the amount of the award of attorney fees it does not deal with the question this presented in this case was a question of offset offset is a concept that was created by a rule of law based upon an interpretation by the veterans or of both the aegis statute and fifty nine zero four which requires an offset for fees earned before the court and before the  question of offset wasn't decided below but it was your honor by the rule and it is the rule that controls the outcome and binds every attorney ethically and if i violently that rule without you are correct that that's what they decided to do and that was the grounds that they offered but they specifically did not reach the question that was presented to them in the motion for review of the fee agree specifically contradicts that rule and mr washington and myself were entitled to a review of that by the plain language of the statute that permits review of fear agreements by the veterans court they elected not to and by default resorted to their ruling in carpenter so what and what we need fixing they are a bit terminations by this court that the to look at in the first instance right well certainly i believe you have the discretion to do that your honor but i'm not sure that that is the most expeditious way to resolve this issue but if this panel determines that that's the appropriate way to handle this than then clearly i'll go back and and will argue it before the full court the there i mean this is a pure question of law about whether or not a rule of law that has been created by the veterans court that the work performed before the veterans court and compensated under the aegis statute can possibly be as a matter of law the same work as performed under thirty eight u s c fifty nine zero four d those are not the same or there are two fifth circuit cases that deal with this in the parallel universe of social security work in which to decisions clearly state that offset of court work versus work before the administration is simply not the same work of a different statute they have a different statute government they have precisely the same circumstances and those circumstances are that there is a statutory provision for compensation for work performed before the agency there is a comparable statute here in fifty nine zero four deep and significance of what has occurred since this case was decided by the veterans court is that in two thousand and six congress amended that statute and made crystal clear that the work performed before the agency is that is covered by fifty nine a full and if that's all that's covered by fifty nine zero four there is no statutory authority for the veterans court to allow a fee for work perform before the agency only the agency make that decision just as only the court makes the decision for the work performed before the court and and to leave this court in matters of a then the nature of a civil action an appeal which is the subject matter of application those are two entirely different things legally and therefore this court should recognize that the rule created in carpenter be principally is no longer viable based upon the change in law that when congress amended fifty nine zero four to make clear when congress originally created this statute with the veterans judicial review act there was in fact some ambiguity because the trigger for representation was a first final decision of the board at that point you only could go to court or go back and reopen with new material evidence so in fairness to the in bo decision in our air there was ambiguity that ambiguity has now been removed by the language that congress provided for in fifty nine zero four see fatah and in that provision they make clear that the attorney fees that are being paid are for services provided before the department which includes the four it does not mention the court there is no separate statutory authority for the court to award attorney fees on those grounds this rule is invalid and should be set aside by this court and the veterans court should be directed to longer comply with that rule preserve the balance of my time thank you honor i would say no in the sense that there could conceivably be a situation in which the carpenter offsetting issue that he is raising could come before this court however it would have to be a circumstance that would not be covered by seventy two sixty three d seventy question that is pending before the better in school so the parents were very well could reach it in the context of reviewing the ija few applications how would that happen well if the stay were lifted following this appeal to veterans where it would be and see procedurally it would re carpenter the unbanked decision controls and then mr carpenter takes that negative determination to the board ok and the border goes the same court were to find it has to restriction as as in the morgan case it would be appropriate for the court to decline to reach these issue yes for production reasons and this court noted for she when you have a decision that is not presented were addressed below and tell them what your are my response to that question would be that the court would really need to find some error under seventy to ninety two what the statute contemplates is when you're reviewing the veteran sports decision you're looking for whether it's arbitrary particularly when you have another macin mechanism whether it's in this case where another case before the veterans horrific could actually raise this issue and put it before the veterans i do want to emphasize as well that the veterans court as  repeatedly reaffirmed the validity of the carpenter holding and we cited two cases there mason and jackson one was in two thousand and six and one was in two thousand and nine i mentioned the timing of the last one because that occurred after the congressional amendments that  question assuming the alternative course you're talking about travails and mr carpenter goes out asks very bank of you again by the veterans court and this time the veterans court the original carpenter decision and said we stand by it said it's good law would you be arguing we could not review that because of seventy two sixty three d seventy two sixty three d correct yes no other words if this goes back to the veterans court decides if the veterans court stands by its present day decision doesn't revisit it it will be the government's position the secretary's position that we could not review this offsetting question is not separate and distinct from reviewing an underlying fear greenman and in this case for example in order to really consider this hard question you have to look at the fee agreement you have to look at the language you have to consider whether or not it really is in tension with  carpenter decision so the veterans court would have to do that in this particular case look at the language and consider that would be an application of seventy two sixty three c which then would not be reviewable now as i said in the very opening question there could those the kinds of arguments that we could have cannot entertain if we had a veterans court a month opinion is just shot suggested that reinforce the existing rule well to the extent that those arguments would be made to support an argument that the decision you had a few agreement that did not provide for offsetting it went through the board unlike this case and went up to the veterans court was reviewed and the betterments court found that on the basis of the aegis statute and on the bait the purpose of the provision in just security act cases and that the changes to fifty nine o four we may well be back in the same place and can control one precedent of this court saying there is no jurisdiction to review so you can't obviously say exactly what will it will not happen but what you're there's nothing surprising in that i do want to address briefly a couple of the other arguments that mr carpenter mentioned which is one i think he suggested that there was some sort of entitlement to review of the fee agreement before the veterans court  actually get all the numbers you see three that would be the one that says the secretary may ponder sectors on motion or at the request of the claimant review fear agreement suit paragraph two ok yes and you're saying to us that that is the route that remains open to mr carpenter at this time with i believe that this court does have jurisdiction and i have outlined originally why the government responds that there is no jurisdiction because of seventy three or sixty two scuse me seventy through three days available to you like i do not believe it is because i do not believe that that statute authorizes the attorney to seek review it only allows mr washington to do that now mr washington may or may not choose to do that at the time in which all of this is done and behind him and he has received an award of past due benefits as judge approached pointed out ultimately it depends upon whether or not mr washing does or doesn't receive an award a pass to benefit the problem that that avenue as suggested by the government is to encourage me or other attorneys  law the government has basically said that that rule stands as a carrier for the review of the rule of law in carpenter one carpenter was originally appealed it was challenge the fee decision and this court correctly determined that seventy two sixty three prevented that review at that time this court did not have rule of law jurisdiction if it had been rule of law jurisdiction i believe that this court would have at such a jurisdiction but mayhaps it wouldn't because there would have been an award of a fee that was decided upon by the veterans court that's not what has happened in this case what has happened in this case is is that this question of law was presented originally to the single judge who declined it was then asked for review by the in bonn court the in bought court declined the problem with going through and replaying all of this and going through another three to five to ten years worth of litigation gets us to exactly the same point because the rule of law is controlled by the decision in  that so long as the ija contract is a risk of the songs the fee contract is in the position that it's in there is no entitlement to ija period now if the court makes that decision and agrees with the government and  is that each application then that is clearly appealable because that will be a decision under ija not a decision based upon a fee agreement and it will then be based upon the rule of law and yes we could be back court that the difficulty in getting this question before the court and i have tried on many occasions to do that is to figure out exactly what the right procedure is because there are so many moving parts in this that do or do not allow for us to get a final decision to come before this court i believe that we have a clear decision a clear statement from the that trans court in bomb that they do not wish to review this question i believe that this court can either exercise its discretion and send it back or can address the decision and we can get a ruling of them or we can wait for another day and