does not resolve the substantial justification and i guess the idea from i take from that opinion is compliance with c a v c president without more isn't enough to agree that the existence of johnson one alone isn't enough to prove substantial justification with a court and an essay about it is that a yes or  however in the courts several decisions and the court concluded that that reliance on precedent or compliance with precedent and the steeple are very important factor right it is a but opinion below went on and said it it's not necessarily a controlling thing yet there's a taliban circumstances and needs to look at that and then in addition it said the pla the regulation is clear and that has and that's not just us saying that the federal circuit said that and johnson to and therefore  circumstances we conclude it wasn't substantially justified what would be the error there the error is that undermine the veterans courts conclusion about precedent is a conclusion about what can be a precedent and what can be the state of the law at the time it's undermined by conclusion that in fact when there is a dissent it isn't a presidential to avoid the word of friends in egypt case the secretary would have had to have already moved first day in a separate case and ija has defined the government position as an action a failure act by the agency upon which the civil action  that must be followed is one they could not do if a collective review of symptoms is is performed and that again the state of the law that the veterans court considered was based on deference supported the secretary's determination regarding the meaning of its own regulation and the  again the the state is a problem because because the secretary is not going to be able to know whether in a case where the and i'm sorry on or i have actually run into my  presentation and the fatality of the briefing and all of that the secretary asks this court to apply water facts the veterans court applied the correct to tell a t of the circumstances standard mind to one of their main arguments is to understand the regulation and that's the wrong time frame to be considering this issue and in addition to that the court didn't actually use that to tally the circumstances that even though honor that legal argument carries no water today because the court of appeal to the the veterans court did not just simply look at johnson to to reach a decision in this robust with cases it looked at the underlying joint motion for a mandate it looked at whether there should be a stay they honour's hypothetical about of red being green and stop being go is precisely what happened here their interpretation of the regulation was clearly and in fact this court noted was illogical so the government cannot be substantially through more than just what they did with it what the secretary is saying they did and so at the end of the day they did in fact run through a checklist of fatalities circumstances at the end of the day it is a judgment call as this court and the supreme court has recognized and so it is it is an application of a lot of  your honors point about patrick controlling as well the veterans court did in fact run through the entire tallit of circumstances test but one major factor as was pointed out in patrick is that the pla simple point that it's really more of a reinforcement of the point made by my colleague and that is in relationship to the basis for the decision in this johnson's case basis for the decision mr johnson's case was primarily the fact that of one was decided on the issue of ambiguity and it didn't have anything to do with an analysis of the v a s interpretation until such time as they made the determination that the regulation was ambiguous when they made that question or the determination that the regulation was ambiguous then the johnson one court looked at it through the lens of whether or not they were or were not required to give to the secretary's interpretation the secretary was given based upon a alternate concurrence by judge mormon a deference because he agreed ultimately that the regulation was ambiguous when this court addressed the question of ambiguity this court said without qualification that the regulation was not ambiguous on its face and once it is not ambiguous on its face it seems to me that the issue of substantial justification in all of the arguments that are attempted to be made by the government in this case fall assad that that's the exact hindsight argument you're walking into i mean the point they us but with respect your honor i believe that there is a significant difference at law between the question of ambiguity and the question of the substantial justification for the interpretation made that was given deference to what was given deference to is an interpretation that directly conflicts with the plain language it converts red to green it cannot convert red to green because the language is an ambiguous so the regular school be the interpretation relied upon by the government cannot be as a matter of law substantially justified because it goes directly against the plain language of the regulation and as the supreme court observed  rivers once there is a ultimate judicial determination as to the meaning of a statute or regulation that's what it meant the entire time from the one nine hundred thirty s to the present and whatever interpretation they may have given was never  subject to a binding general counsel's opinion and was never subject as the majority in mr johnson case said subject to an interpretation by the veterans court that accepted that interpretation of three the correct answer as a matter of law is in all cases not just the factor because as judge moore was just describing what we're talking about here is a regulatory process in which the secretary creates a regulation and then gives an interpretation as it applied it since the one nine hundred thirty s in this case that application or scrutiny that interpretation as ultimately determined by this court was found to be in direct opposition to the plain meaning of the words used by the author the author in this case being the secretary and as a consequence there needs to be that hard rule so the secretary does not get the opportunity to  maintain an interpretation of this court as i recall and gardner made the observation that prior to judicial review these regulations had had a lasted a long time without judicial actually i would like to see this case disposed of on jurisdictional grounds because i think that as this court has correctly observed the question of substantial justification is the quintessential application of law to fact if the court white found that even where a regulation was invalidated where there hadn't been any prior adverse reaction to that regulation the agency was substantially justified in in relying on it in taking that position believe that there's an interim station to be generally equal standard applied when the veterans court considers what is the proper time fine which is a question involved in what is the record an erroneous legal standard when there is a standard applied to the undisputed facts about the fact that there was a decision outstanding