the statute at issue here defines final judgment as a judgment that is final and not appealable and includes an order of settlement the government's position is that that december two thousand and eleven order constituted an order of settlement for purposes of each other  is correct that the claims themselves were not dismissed because of that the settlement agreement what it contemplated and what the its only agreement that the court adopted provided for was that there would be a dismissal with prejudice of the claims as the particular correction of missal would be required for a final judgment however what the court said in that case it was a patent case not a class action for one but it said that in the next sentence after the one that the parties of the players referred to it says that dismissal acts as a quote full adjudication on the merits and in our view there was a full adjudication on the merits with respect to the claims in the settlement agreement of the court adopted it was a consent decree and substance because the december twentieth eleven decision the court entered it and i'll read from the the settlement agreement itself that said it stayed its stated purpose was to quote dispose of the claims without any further judicial proceedings without any trial  trial court error when it said that there was a general rule that required dismissal in order for a settlement agreement to constitute a final judgment we think this is much more like the country can consent decrees that the court the supreme court recognized rufo or this court recognizes w al gore where you have a consent decree that is the equivalent of a final judgment the ija statute itself in the legislative history history recognizes that a settlement agreement can constitute a final judgment you don't think th it's did you have something else you wanted to add know your i was just going to ask about the legislative history i mean it also says that you don't want these deadlines to become a trap for the unwary and it seems like you know  this is at least a very difficult close issue so you know i just wonder whether that legislative history on your mind your position it doesn't seem to be mean that there's a really clear answer here that's in your life it's it is a question as to when when it applies but and if we're also talking about a waiver of sonorous sovereign immunity which has to be narrowly construed but on these facts there is also not a trap for the unwary and as we noted in our brief when the parties presented this settlement agreement and they were operating under rule twenty three of the court's ruling class action they filed a motion for pulling every approval once the class members were notified of records for that procedure there was a final approval but when the parties presented that they specifically said that they would have thirty the plaintiffs reserve the right six that they carved out of the attorneys fees they couldn't reach agreement on that in the settlement agreement so but they specifically said that the plaintiff reserve the right to file something within thirty days of the court's approval of the settlement agreement and we believe that that demonstrates if anything that the plants were aware that there was not some open ended amount of time that they could file their fee application we don't believe in the sophisticated counsel that was representing these parties that there were some traps for the unwary that the planes fell into in addition to that when they ultimately filed their fee application it was some two hundred ninety three days later and there was no sort of triggering event to that and it's the other important point i would make that i think relates to your question just still is the trial court found that there were court does something that can first are changes to the legal relationship between the parties and the trial court goes on at some length i think it's a page twenty twenty nine of the appendix and saying why this settlement agreement that it was the doctor by the court is is the functional equivalent of a consent decree in order to reach the conclusion that the plaintiffs were prevailing parties but what it doesn't do is then follow the logical conclusion of that analysis to say well it's also a final judgment and in our view there that  that said that the plaintiffs had expressly reserve agreed to settle the release waived and abandon each and all of their claims so there were no more claims after that settlement agreement was adopted what the court was doing after the paragraph six of the settlement agreement expressly says the agreement says following final approval of the agreement and entry of judgment so you will draft of the settlement agreement correct the government your honor it was a negotiated settlement agreement but you participated in drafting  at the government tit and it has a condition precedent in itself so while certainly settlement agreements can constitute final judgments for each of purposes no doubt about that i don't know that this one does because of the way in which was drafted and the conditions precedent that each articulate itself so you're talking about big legal cases and you're trying to explain to me that planner ramo were all these other cases but my problem is that you chose particular language in this agreement and i don't know how to get around that when i look at that particular language it leads me to the conclusion that both parties understood this to constitute a final judgment only after there was a dismissal but your honor i think with respect to that particular language we don't read that  as saying that contemplating some future country judgment there's other language in paragraph twenty which was speaks to the court's reservation retaining of jurisdiction for purposes of an foresman accent or a and it's there that there is no mention of entering some sort of future the following final approval of the agreement and entry of judgment so if you want me to read out one of the two terms you have to i don't see how else i can read the agreement in your favor because you just said no entry of judgment really to us means final in one document and we believe that that's what happened here when the court adopted the settlement agreement so you believe that the final approval of the settlement agreement in this case despite the fact that it doesn't constitute what you and i would normally understand is entry of judgment right i mean there's a typical understanding that you and as lawyers would have for what constitutes a night of judgment i as a judge i have a particular view of what that usually is but you think that final approval here constitutes entry of judgment even though when he doesn't say so and well your honor yes we do and even though the agreement been a one hundred fifty day period in which if the court had not entered some second separate document called entry of judgment it still would have been a judgment for purposes of finality and that if the plaintiffs have latched on to this nov twenty sixt document as being the final judgment and there are a couple problems of that with that first of all that november sixteenth judgment never was analyzed by the court incidentally because it was entered after the decision that you're reviewing so the decision that you're reviewing are really two but the july twenty sixth team decision with respect to boarding each of fees come seynt came some several months before the november judgment but the november judgment was entered after all of the claims have been dismissed so as we suggest in our brief there's real question as to what validity that particular document had if all of the claims had already been dismissed at that point in time players also offer no explanation as to why they filed their he japanese cation in two thousand and twelve if the final judgment didn't occur until four years later be filed there there's recognizer can be premature and it is true that a party can file before thirty days it's not a window in other words you can file early my point is simply that if they filed four years earlier there's no there's no connection to the final judgment they would need the final judgment or get the ija fees so they don't offer an explanation as to why they would do it for years before the ija fees could possibly become due in addition the the c the way in which this was much more like a consent decree in the sense that they were moving into an unfortunate phase the parties were filing status reports with respect that particular plaintiffs in the record for multiple years but really there was not a major cation on the merits of that particular point in time and it made a number of mistakes in our view one is that the trial court relied heavily on its interpretation of ten u s c twelve zero one as requiring the defense department to apply the v a schedule for one point two nine to p t s d terminations we think that  was incorrect the statute says that the these do disability determinations are to be made quote under the standard schedule of reading disability and used by the project there's no dispute as to that but that twelve sixteen the statute under ten ten u s c twelve sixteen and gives the secretary of defense rule making authority and the power to all powers functions and duties incident to making these disability determinations it's pursuant to that authority that the department of defense issued this instruction in one thousand nine hundred six which effectively said we will ply the v a schedule would respect of disability determinations but there are aspects of the vs schedule which we don't believe apply to us and one of them in particular are convalescent ratings that would be inherently temporary in nature and that's set forth in its one thousand six memorandum that we cite to the the it's not as if the defense department disavowed the v a schedule in its entirety and ended prior to two thousand and eight the practice was to based on then existing law was to apply for point one thirty of the v a schedule has five four point one three in arbor if ed pages out one four three seven fourteen thirty seven in the appendix you'll see that we cite to a number of cases involving the court of federal claims and recognizing the defense department discretion to apply these sorts of rating criteria and finally i would just note on substantial justification runners that after this case was filed the parties reasonably attempted to settle it there was a global set a resolution in terms of this particular case but also in july of two thousand and nine the defense department decided to retroactively apply four point one to nine all the way back to two veterans who had been discharged from the two thousand and one onward and that was on a voluntary basis so for these statute the thirty days begins to run when there is a final judgment in this case there are dismissals and there is a true final judgment but the government doesn't want to focus on those that focuses on the two thousand and eleven settlement agreement for that to have started the clock to have run you have to ignore the nature of that settlement agreement which is materially indistinguishable from the agreement that was issue in this court case and silicon image and the rule of kaitlin in the supreme court cases and other cases and there's there's two aspects that one is there a separate dismissed ok this settlement agreement you don't look at it and say is that is the court done there's a clear process things that are going to happen and there's going to be dismissals and ultimately judgment and secondly is it c do things have to happen now in the silicon image case it was a very simple conditionals of payment by one party to another here is a lot more complicated a lot more up in the air a lot more involvement by the court but they are a conditional and there is a dismissal and this court held in silicon i smith applying well settled law said that is not a final judgment and at the end of the day that's the beginning and the end of the story on the time issue now the government says three things about silicone image first they say it doesn't arise from a court approved consent decree was sure did it was an m o you between the parties that the court adopted and it was a closer case this one because the court when it adopted said this is a final judgment but the court didn't look at labels and looked at what had to happen there was condition and it was going to be a dismissal so that's not a valid distinction secondly the government says arose from the trial courts and force majeure stiction up i confess after all the briefing i don't know what that means ok courts clearly have the ability to enforce waters that are not final judgments of discovery or take it up position in the next thirty days and if you don't take that the court can jump all over the party and make that deposition occur and impose sanctions courts and for supporters all the time when those orders are not final judgement so to say that this court wasn't letting the parties go they weren't done yet things were going to have to happen monthly status reports i got calls from the judges clerk we want to have a status conference offer that doesn't happen after there's a final judgment so this notion and distinction between a forstmann and pre and post final judgment i think is a fallacy and if and it's a fallacy to say that because the court is implementing or enforcing that necessarily means that was a final judgment just not the case and it certainly the government says well so the quantum it wasn't a class action there is no case anywhere ever that has said there's a different finality rule a different each of time in a rule for class action cases versus individual cases they cite double in which they didn't cite below devlin addressed a very limited set of circumstances involved who can appeal not when you can feel and there is a non intervening class member in a twenty three b one mandatory class there's a split in the circuits even to this day over twenty three b two and three cases where there is an opt out right there is no case that i'm aware of that's ever applied devlin to an opt in class which is this type of class unique to the rules or photo claims so with respect to the timing again couple of other points to make on that is there is no tension as the government tries to suggest between the settlement agreement approved by the court establishing prevailing party status but yet not being the quote unquote final judgment for the timing provisions that happened all the time it happens and again examples in the haitian refugees center case in the eleventh circuit because all this case cited by the government the legislative history and the government you can file a each a petition early and to dispel one bit of mystery here why we filed the petition when we did this because we were involved in settlement negotiations with the government and ultimately those broke down and we weren't going to reach a settlement and we went ahead and filed the motion at that point because we realized the court was going to have to resolve it so it was  it was never conceived by certainly the plaintiffs or respectfully by the parties that the settlement agreement when approved by the court started the thirty days we addressed that proposal in our brief i directed the courts to one other point of  judgment that was in the joint motion for final proof will the government signed off on that language the court adopted that language in its in its order so when you look at was this settlement agreement  trigger for each of you look at the language of the statute says says final judgment there's nothing looks like a final judgment here you look at hornbook law the more subtle practice treatises says when the dismissal start to occur those didn't happen for another year and a half look at the case law and includes a settlement agreement how would you translate that i would acknowledge that there could be a settlement agreement that would be a final judgment and again that's not a silicon image approved settlement agreement that's conditional and it be expressly by its terms for refers to other dismissal so you get it for example in the rufo in the cases that institutional litigation cases where the court you know enters the consent decree and that know there can be posts judgement of force made there can be things happening but but you look at the the the effect and language and intent of the agreement and it's not again like a silicone image conditional and doesn't expressly contemplate a separate dismissal that kind of settlement agreement sure and that language is added in eighty five again to make clear that parties don't have to you know continue to litigate to the bitter end you could you can have a settlement agreement that is approved and then  about the potential justification first the government fares the burden of both free and post litigation substantial justification secondly it's a highly deferential abuse of discretion standard and third the chairman ocean must be made on the existing record in the civil action under twenty eight u s c twenty four twelve d one b here on the pre litigation substantial justification of the main argument made by the government chevron deference was not made thousand and eight statute says crystal clear the schedule the veteran schedule the vaster the veteran's administration schedule for disability ratings shall be applied and you know one of proof positive about a not be for below so to answer your question just what we don't think there's ambiguity but the government never argued the ambiguity below we lay it out and i'm trying to articulate it here right here right now why there's no ambiguity but this is all being fleshed out before this court on appeal for the very first time and that's not the way it's supposed to work the government's going to seek a reversal it is to make the argument to trial for it didn't do so here turning to the post justification post filing justification the government has not once but twice affectively conceded our arguments about the lack of substantial justification namely their their failure or refusal to live up to the representations made to the court and to the class expedited review the first efforts to try to resolve this which cost these twenty one hundred plus veterans two years and many many many hundreds and hundreds of hours of counsel time try to pursue this process that ultimately the representations were and again because the government who gets the last word here and will have the last word after me but in its reply brief does nothing about that they set up a straw man they say well the court couldn't order this anyway and so romantic the board was was ok in our efforts to do that we're ok that's not what we're attacking what we what we say that the lack of post filing and substantial justification consists of is the failure to do whatever it took to live up to those representations and that when you the careful and thorough findings of the trial court we think the substantial justification just burden has not been met by the government here could you respond to a couple of the government government's arguments today one wa four point one two nine wasn't always consistently being wind that there was some back and forth between that and four point one zero so yes so let me take the last one first so four point one three zero is a schedule for when you do a medical won thirteen thirty two point three nine is paragraph six point ten point two expressly directs the services to apply minimum ratings one four point one to nine does and it's it's that it's a minimum rating if you're so severely suffering from p t s d that you can't be a soldier or sailor or a marine anymore what the vaster do requires is that you have a fifty percent disability rating for six months and then you get a medical exam and the medical exam will then rewrite  pursuant to four point one three zero whatever your real level is but the first six months is a minimum rating that both the d o t directive and again the case level in that fifty years for required the government to so that's four point two nine zero point one three then you have convalescent ratings ok convalesce ratings as the trial court held there's no mystery about what convalesce ratings are they have to do invariably with hospitalisation the the two that exist here are four point three zero and four point one two nine there they are on their face called convalescent ratings and the temporariness that the government latches onto it doesn't matter the  this kind of wants back around to just hold your question his was if we were doing a full blown chevron else this year would there be the requisite ambiguity no help for it with the government's position conflict with longstanding d o d guidance yes it would thirteen point thirty nine point three nine would conflict with the statutes yes it would would conflict with fifty years of case law going back to the whore to check in mchenry cases yes it would and again that so there's nothing in the record that would warrant a different result read read it into the record just to illustrate something which is it says following a final approval of settlement agreement order and entry of judgment the parties will if necessary submit briefs regarding the attorney's fees and cost application as indicated indicated above we believe as i said before that that's consistent with our position but it's also inconsistent with the plaintiff's position here because what they did was they filed an ija fee application after the two thousand and eleven w describing as the consent decree the two thousand and eleven order and then and now they're arguing that the final judgment didn't occur until twenty sixteen so if they were relying on this particular provision they didn't comply with it under their own construction of that of that language  but even if they didn't comply with it you do raise that argument as a reason that the each of you should be awarded at the time they were awarded below your honor no i don't believe we did but i don't maybe they didn't comply with the section of the thing that you didn't like anybody or complain about but what we know about that in this particular language we don't believe was controlling the focus of our motion to dismiss for timeliness was he was focused on the thirty day timeline that focused on that that the final resolution of the merits of the case in the settlement agreement we weren't really focusing on that particular language we don't believe that it really cuts one way or the other mr fact referred to that the parties had never conceived that there would be some sort of deadline limitation we believe that that's refuted by by the record page eight forty eight in particular where they said that may apply within thirty days of the court granting final approval of it there is this distinction that you referred to between enforcement jurisdiction and jurisdiction over the merits we don't really believe that that's really the key issue in the case but it is true that into sent the cream and the consent decree situations the court will have jurisdiction over the merits of the case and then after a settlement agreement is entered into it turns into more of a hundred foresman type stage we believe this really follows settlement agreement is reached and the fia wards is not part of the settlement then the thirty day period would commence on the date when a profound proceeding is dismissed pursuant to the settlement or when the adjudicative officer approves the settlement we believe that that sort of refutes the