mr henderson believes that the resolution of this case turns on the answer to questions the first is is thirty eight u s c seventy two sixty six more like a statute of limitations or more like a time for review we think that will settle precedent in this court answers that question the decision in a jake way deals with that directly and on but panel of this court concluded that seventy two sixty six is like a statute of limitations because it provides the first opportunity for a veteran to obtain review by an independent  the department of veterans affairs the second question that we think this case turns on is what the congress intend for seventy two sixty six the decision and  bowles directs the court to look at the intent of congress when considering whether or not a statute is jurisdictional and justice briar's opinion in john r sand and gravel is very instructive on this point there justice brier said that when dealing with statutory interpretation stari decisis is very important because congress always has within its power the ability to correct a perceived error by the cour that is to say that congress can always go back and essentially over rule a decision by a court in this case congress has had the opportunity to rewrite seventy two sixty six and in fact did rewrite seventy two sixty six after this court's available both or its own patients in turn purview provision right i think the reasoning of bailey is that equitable tolling is available for seventy to sixty six yes that's the ultimate conclusion but isn't my statement correct that the yes it's very explicit i mean as i read the decision it says that several times that there is no difference between them i think that that in several places the court does equate certain types of time for review provisions w seventy to sixty six is a statute of limitations who are just dealing with bailey would you agree that bowles calls it into question because it also reasoning in the question no your honor i would not because i think the reason it remained sound i think what the court polls is it not no your honor no no one because what justice thomas said of the bowles decision is that courts should look to the intent of congress that's what justice thomas did in interpreting twenty one zero seven and what this court did in bailey is also look to the intent of congress and this court is particularly judge michel's can concurring opinion not chief judge michel's concurring opinion made it very clear understand why you want to rely on the current opinion but i was talking about the majority i understand in the majority says something which seems to be inconsistent with ball the majority says that mobile tolling applies to pound new provisions also as it does so when the result you know might be justified on the ground maybe jokily change the reason but if you take really just by itself it seems to me you've got a problem that the reason you use inconsistent with oh well i think your honor if you if you plucked bailey out of time and space did in the bowles decision and that is to look very specifically at what the intent of congress was and i think that this court the majority panel of this court in bailey did exactly that they went back to look at what congress intended for seventy two sixty six and our argument is they got it right because congress had an opportunity to write equitable tolling out of seventy to sixty six but they chose not to do it so by its acquiescence in the statute we think the congress can affirm the decision in bailey for changing the rationale for well the language inject way this is very specific and if you give me a minute i can direct you to it i'm looking at page twelve eighty six of the opinion in jake way the court writes the final ng of a notice of appeal at the veterans court like the filing of a complaint in a trial court is the first action taken by a veteran in the court in a court of law and it goes on and it very clearly equates seventy two sixty six with the statute of limitations as opposed to twenty one zero seven or a comparable application here because the text of the statute at issue and bowles speaks in terms that made it clear that it was jurisdictional well the text of the statute issue here section seventy two sixty six speaks in terms that makes it most naturally read as through twenty three of our group the statute involved is most naturally read as a jurisdictional limitation because it addressed the power of the courts to hear an appeal it states no appeal shall bring any judgment before a court of appeal unless a timely filing occurs and it also sets forth limits on the power of the district court to extend that deadline given that language the statute in bowls is best read as a limitation on jurisdiction that does not permit any zero seven c specifically stating that district courts have limited authority to extend the deadline and it also referred to the text of the federal rule apart procedure and the heading of federal procedure it specifically says appeal in a civil case  think it would be an overbroad reading of balls to extend it to all time review provisions rather i think the proper note of these in said it said it after undertaking an analysis of the statute in the federal procedure the statutes you there stated that the accused may petition within sixty days again focusing on the the behavior of the parties rather than the power of the court and justice ever judge efron's dissent noted that artists article sixty seven b is not like the statu issue involved because of that very distinction and second judge baker's dissent emphasized how the military system is fundamentally distinct from the civil system and that applies here as well because of the weakly benevolent system for veteran rather focuses on what a party needs to do it cannot be treated as jurisdictional new principle in us in zipes applies with full force here because the statute here focuses on what a party must do it is not a jurisdiction appropriate given that this statute is part of the uniquely benevolent system to take care of those who are injured serving their country it's hard to imagine that congress intended the harsh and unforgiving rule of balls to apply to veteran seeking judicial review on the ground that they've been denied the care the law and titles to it entitles them to if congress did to have that intent it knew how to say so for example it could have used the kind of language found in a statute in was but it did not rather it used the language of a statute of limitations prescribing a time period for a veteran not a limit on the power or scope of the court's authority but i see that my time has run if you'd like to address the second issue s representations been changed but my recollection is of the time seventy two sixty six was passed was not allowed to have an attorney until after the first board decision  my recollection of up our current yes your honor with the copy i think the better may have been committed to retain attorney he could not get attorney fees for an asia and also he was entitled to representatives from service organizations which in fact mr anderson was represented by a service organization at the board law sort it was in the notice of appeal process at least as my reading of the record but he was represented at the board at least court's decision that there was no right to counsel until after the boer concluded its work unlike the usual situation with respect to a district court in a court of appeals  not dealing with a situation where somebody would have already retained counsel and the counsel would be responsible for the following notice of appeal you're in by statute you're basically dealing with a situation in which the better and it's going to have to do it on his own in the appropriate the more demanding when somebody is at least able to retain counsel then when the person is pretty much from didn't have counsel up until the board decision is rendered well that's true your honor but but the fact is as you say you may obtain counsel after a final decision so it is not as if  on notice of appeal him or herself and that the veteran can and engage counsel as soon as that negative or decision is reached so they can file a notice of appeal with counsel but beyond that that's essentially an argument i think for the fact that this notice of appeal provision should be accepted al because of the unique nature of the veteran system and i don't think that there's anything in bowls that would permit that and there is nothing else in any of the other supreme court precedent or this court precedent in date this core and the supreme court upheld that when interpret ing rules of law that are common across the jur the time for appeal or like the harmless error will it has to be interpreted in the same way just this term the supreme court decided the harmless error rule that's applicable to the a p a should be applied in the same way by the veterans court so the uniqueness of the system i think is my opponent's strongest argument to be can it i think that that certainly it plays into effect there but the fact is congress enacted in seventy two sixty six a notice of appeal vision that is much like almost any other notice of appeal provision the megace wants to make some specific language distinctions between twenty one o seven and seventy two sixty six they may hold up when you compare those t but when you start adding in other notice of appeal provisions like the one to this court for veterans cases in seventy two ninety two it looks a whole lot more like seventy two sixty six and twenty one zero seven and certainly there is no suggestion that the time to  likewise the language in seventy two sixty six looks an awful like well like the language in the time to file server titian which is supreme court very and batek least that can't be told in civil cases as well so the attempt to kind of  language and statute by statute is something we were ject and we think that the supreme court has rejected that approach and bowles rather in its first paragraph justice thomas in its decision said we have long and repeatedly held that the time limits statute of limitations and decided that one stash should be applied to all time and provisions and that's why it reached the result it did and bail also has to be read any speculation and certainly the government would have none of them may be true it's curious meaningless i was it was you know that it was or you know recall whether there was anything you knew opposition are you doing that this was the wrong vehicle or that there was  out to address the other main point raised on our argument that some need to sixty six is more like a statute of limitations and the timing of your provision that's really just simply belied by the language of the text it's a notice of appeal to a court of appeals that exercise of the option the fact that it's the first review in a federal court doesn't turn it into a statute of limitation or a trial court this court in fact would your base best case for that proposition where there is a number of them i think first the supreme court pacing doesn't own is very good and then this court's precedents which recognizes that an appeal from them is p p is the first time it claims got this correct right i think that they correctly concluded that olson requires reversal and you think they were right on the merits but i think in the sense i get from you proves you would agree that in order for us to affirm that decision we would have to take the case back i think in this panel whatever assume for the moment we we were no because this court's precedent recognizes that although it's bound by prior precedent when that prior precedent is over all supreme court precedent will certainly were clearly overruled i mean there's no question we would not have to if they said the  cases overrule we obviously don't have to do that but here i think the court said it's it's abrogated the reasoning is cast into doubt now you know you you have arguments on your side mr henderson in the amicus has arguments on the other side in their argument certainly while at the end of the day they may or may not prevail or certainly not frivolous to say the least and isn't there enough here to really compel in bank consideration if one wants to in order to prevail i think there is your honor i think the reason i said my first answer was the difficult one is that it obviously would be a difficult choice i think for the court to determine the polls directly overrules belli i think that the reasoning in all of this and that it enough that the court could do it but certainly the more conservative course and probably the more consistent approach with the court's precedent would be good reason from from both sides on the issue that we've been talking about today well to the extent the court has any other questions that it might want to pose and an on back order certainly we'd be willing to provide additional reasons i do think that the veterans court decision directly confronted the conflict between bowles and bailey and i'm comfortable on the government's brief that it directly come confronts the conflict as well and we do  essentially outs for for billy to be overruled so although that an opportunity for additional briefing wouldn't be objected to of course i don't i'm happy to stand on the brief that we presented to the pan off and one final perhaps in view of the special situation veterans legislative still applicable to the veterans court and say equitable totally or whatever or coley had a statute of limitations circumstances would you favor the veteran this is something that's being considered or are you waiting to see what happens in the courts i don't know of any pending legislation that would allow any equitable ex fees for their attorneys if they prevail so it is no longer the case that a veteran is required to go through the work process without an attorney and therefore also would have the opportunity of having an attorney prepare the notice of appeal in the light so the situation that's how often does that happen how often are our veterans for tea council during the v a process of any answer i can give you on that i think is probably pretty speculative it's a fairly new legislative fix maybe in the past couple years my guess is because it was very much pushed for the veterans community in the veterans are that it's happening on a fairly regular basis i don't have anything to back that up if the court  us to provide some additional information but the fact is that opportunity is there are there is a very active veterans are and the meek circumstances of this case where mr henderson was not represented by in question well just i don't really think i have a specific response there because i don't know that we know one way or another are there is a veteran's consortium that tries diligently to provide counsel but the same lack of counsel problem or the choice not to take counsel is is applicable to all other time in the review provisions and all other instances in which somebody may be deprived of life or liberty because they failed to type file a provision should be interpreted in the same way not uniquely for the veterans context i'm thinking the answer to that is largely found in the analysis that this court did in the berets and arbus decisions many of these individuals are disabled many physically disabled many mentally  ill and many of them have very meager means and they are either not able to hire a lawyer because they don't have the faculties to do it or they're unable to hire a lawyer because they don't have the means to do it and whether further briefing would be require your honor i would say that with respect to the parties i've answered that i would give would be the same as mr hughes if the court has specific questions obviously we would be happy to have the opportunity to press those in for the briefing the only copy i would make to standing on our existing briefs is i suspect that if the court does decide to hear this on that there would be a number of veterans organizations who would like the opportunity to come in and file  i was i was thinking just in terms of the parties i mean i think probably if you know if the court did take the case in a box there would be the opportunity provided for me to come in and i think you know again unless you had specific questions you court does decide that it should go up on bach i would hope that there be an opportunity and i'm sorry judge i thought you might have had a further question not the the reason i think that this issue of whether or not veterans are represented the court below is important is because i think the issue of context is very important and i'm going to take mr hall's cue and argue what he's described as my best point and that is that the benevolent paternalistic veteran system is in fact different it's very different from the merit systems protection board which was and it's different largely because veterans are not represented as a general matter in proceedings oh they're not represented at the veterans affairs regional offices they're not represented at the board of veterans appeals and they're not are represented at the court of appeals for veterans claims and as a result that context is different and when you add to that the layer of the long line of supreme court precedent well recognized  about the benevolent and protective nature of the v a system it seems to me there is no doubt that seventy to sixty six has to be read as broadly as possible to allow as many veterans possible to appeal their cl to go back to that point your honor i was just going to go back to that point and i will tell you i must confess my statement was too broad my statement was too broad what the jake way court says and what we say in our brief is that the clear implication of the decision in jake way is that seventy two sixty six is a statute of limitations and the reason why i say it's a clear implication is because the court points to the to the net case was a case in and it says that seventy to sixty six is like the statute in in that case and that was a statute of limitations so bad is why i made my enthusiasm got the better of