claim to succeed despite finding that the court held against mr pitts for two reasons the first is that his attorney failed to plea harmless error corrected and this was fatal to mr pitts we had to discourse with first on the grounds that mr pitt had the fifth amendment right to effective counsel and that his counsel was indeed ineffective the second grounds for holding against mr pitt is that even if his counsel had led air correctly mr pitts was not prejudiced by the air because of the fact that he had previously appeal this case and had been represented by counsel and went back to to the hearing officer on remains our position is that holding constitute a legal error and we have this court to reverse it's in their back to avoid any of us so i'll just a constitutional issue first before you get into the merits of the constitutional question what are we to do with the fact that the constitutional issue was never assistance is that true that's correct so you're coming to us with a claim that has never previously been presented to the that it's cooling right correct the reason we come to this court is because the jurisdiction of this court over the veterans court is for constitutional issues and there is no mechanism currently currently in place at the veterans court that is analogous in the immigration context to raising ineffect context as opposed to an m s p the context which i want to characterize is ordinary civil litigation the reason is different is that an m s p being play the remedy there i think is like what other courts have said for ordinary civil litigation where you file a claim for malpractise against your attorney because what's at issue in an m s p claim is largely money and that is not what's at issue in an immigration case and that's not what is at issue congress has sought to the importance of health care for veterans especially in this context the veteran is applying for benefits because of an injury or illness that he was she suffered conserves that this country and congress did not think that they could just cut a check to a veteran and say go find your own health care they instead created an entire health care system to care for the kinds of injuries and illnesses that occur only in the service of their country well of course the then who loses a claim a disability claim doesn't lose access to all of the health care that the veterans in the midst of all of the v a provides a minute then has access to that to the health care system it's just that he loses whatever benefits are associated with that particular disability claim that was litigated right but not completely true your honor that if a veteran has no disability claim whatsoever he or she has to be indigent in order to get access to them to the v a health care and i wouldn't i wouldn't make the important point that a disability rating corresponds to the priority with which you can be seen at a v a health center with the v a health center has already stretched so the priority becomes a very important someone with an eighty percent disability rating will get a much higher priority than someone with a ten percent rating than someone with no ratings so i don't want to leave it to just a veteran to say well if you lose then don't worry about it you can still go to the v a health center but you may not be seen for  patterns if they thought not only were in the not going to be compensated but a fair representation might be attacked to the contrary your honor i think if this court rules that a veteran does not have a right to affect the council and that his remedy is instead to file a lawsuit against the ineffective attorney and state court i think that would dissuade pro bono representation as opposed to a claim of film do that i mean your theory doesn't the limit the opportunity for malpractise act now they can right now there's no rule against a being sued for it for malpractise if they are ineffective i don't think it changes one way or the other i think it would make it less likely that a veteran would seek would seek malpractise claim against  press the argument that in the event that a veteran has a lawyer and that lawyer performs beneath the level necessary to get over ineffective assistance who makes such a mess of the proceedings is it possible to say that that proceeding is violates the due process clause of the misconduct of the council even though the immigration context you have a right to counsel but the government does not pay for your counsel that's right in an immigration context as opposed to the criminal context where not only do you have a right to counsel you have a right to counsel at the government's expense but nevertheless the the  there is effective assistance of counsel for the workers the first of the fundamental fairness in the proceedings and the second is that the gravity of the harmony issues i'll talk about fundamental fairness first i don't think there's any doubt that what happened with m at the veterans court level was fundamentally unfair he litigated his case in the v a system for over two decades you finally get a day in court and his lawyer gets a lot completely wrong to the point that it was akin to having no lawyer at all he failed to plead commissaire correct it is it was addressed specifically in a supreme court case that was less than two years old and when it came time for the government to respond and the government laid out the proper standard and instead of mr pitts of lawyers reading the government's brief a veteran the gravity of the harm is it can if not greater than what an immigrant face is going to receive we're not talking about just one thing compensation we're not talking about just access to health care or just access to nursing homes or job preference is a bundle of rights that time versus put together for better as it is unimaginable anywhere in the federal circuit and we're not talking about access to health care in the sense that like medicare just because you're old here's a check go find a doctor and we will reimburse that doctor we're talking about injuries and illnesses that occur because of service jumping out of a perfectly good airplane is not something people outside of the military do in large measure while your best friend is shot in the face is not something that happens to most people so the injuries and illnesses that veterans incur congress created an entire health care system to care for them and that health care system has institutional knowledge i property rights benefits and this property rights guarantees them the ferengi education but this right to a ferret occasion only guarantees them the right to be heard in a meaningful time and a meaningful manner this  to guarantee or a constitutional right to counsel let alone the constitutional right to effect of assistance of counsel what do you make of the problems that we have this issue for us as a matter of first instance is that not a problem you think because of the nature of the legal issues or the issues that's presented to us in effect of assistance of counsel or was because this was never  this is and as we as we know and the court as called attention to this issue was not presented before the matter as far and it was not presented for whatever reason it was not presented this court yes this court could say that it was not presented before the veterans for it would have to go back to veterans for a pint and it would have to be presented in the first as is the veterans for it and therefore we want entertain issue yes this court could say that because the very warrior who is going to be ultimately the target of the attack even a lawyer who not only made the presentation before the veterans court but presumably would be at least initially responsible for filing any motion for reconsideration and frequently you would suppose as a practical matter the time for filing a motion for reconsideration passed before some other lawyer had a chance to come into the case then it would seem to need to a fairly strong consideration perhaps arguing against having a requirement that the issue be raised in the first instance before there is court even by way of of motion for reconsideration when you think yes you could make solution to reopen however at present it they got the right to effect of assistance of counsel does not exist as a constitutional friends of all the due process right that your friend on the other side been around the compelling argument that the not that this is not just about the job it's unlike an m s p case for two reasons one because why congress created this whole system context in which it to criminal proceedings in the nature and the petitioner liberty interest is at stake the interest in employment does not imply here literally although veterans are special and do have a need for health care and benefits and do deserve recognition for their service their liberty interest is not good implicated and that is why there is no constitutional right to counsel let alone effective assistance of counsel given that you know of hand whether this issue and by this issue i mean the ineffective assistance to has been previously decided not in this case but in other cases by the veterans court as far as we are aware we have no case where there veterans as as you said the right to effective assistance of counsel has rarely been recognized in the civil context and the fact that it has been recognized is recognized because those proceedings are like criminal proceedings they implicate the petitioners liberty  that there is a split well maybe you can you can correct me if i'm wrong a split in the circuits on the question with respect to immigration cases is an unfair characterization of where the circuits are yes your honor it is a fair characterization it is not universal but it has been largely recognized solely in the context of deportation because it implicates the immigrant liberty interests his right to live and work in this land of freedom do you know accepting are you and know that those cases are correctly decided which we're not contesting they're wrong we just we are in distinguishing those cases where the right to effect of assistance of counsel has been recognized in civil matters yes the veterans have a property interest and their benefit but the caring procedures are sufficient to ensure that they have a fair education and there's been no the consequences to the extent that that mistakes are made there the consequences likewise on the besides the fact to mr pitts a second argument that there was no legal air in the veterans for suspicion they have private property the proper legal standard prejudicial air yes mr made a mistake the fig which resides in it doesn't rise the constitutional levels and effectiveness but in the man didn't say but the veterans court corrected for that mistake and applied the correct harmless error standard the standard set forth by the supreme court  occasion he had the opportunity to participate as a veterans court found the record was complete and there was no indication that there was additional evidence to be gathered and presented the errors that created the remand in the first instance w acted for so the veterans court made this harmless error terminated based on all these facts and circumstances and concluded that mr pitt was not harmed by the hearing officer's failure to articulate the violation however the court can look at the veterans course decision including what they cited and know that they apply the proper legal standard but inc but is it to get to something i'm clear on what your order of preference is for disposition are you saying that you think we should affirm based on a ruling as to the overarching the constitutional question or that we should dismiss because of lack of jurisdiction and we get by the dismissal of the jurisdictional question do we reach the constitutional question which of those is your preferred course of proceeding for us as you see in this court there are two issues on appeal and i think this court would have to deal with all of this court would have to i find that it had no jurisdiction and it would have to the extent that mr pitt is challenging a harmless i think your honor first i'd like to address to the second issue the overturn in jurisdiction issue quickly what the court did by signing over to it and so we say you completely mis read over it and in effect error is because he interpreted the case completely incorrectly and in effect created a new legal standard what happened the first time at the veterans court was not the joint the joint remained was not something that created a remand in a box it's not something that the court has said and we're back down to the hearing officer if you believe that the other side's if you believe the government's response on this is important that if the government c the case back to the hearing officer the hearing officer could say nothing and the veteran would not be prejudiced because everything was done at the veterans court level but that's not true what was done at the veterans for them was a list of things were noted rule on the issues find it constitutional right and then going forward create some sort of credential mechanism that the the right has to be raised at the veterans for before it comes here and it's completely analogous to what happen in the immigration context with the laws out of principles and immigrant cannot race for the first time an effective assistance claim on appeal he has to raise it where it went the first time but i think it's an end point for this court to recognize the right and then create a mechanism that the veterans court can hear motions for reconsideration or some sort of mechanism to create a a right to appeal that the veterans for level before it comes up to this court that would be a pretty truces course of action for us it would seem to me for us to be telling the veterans court to create a particular mechanism you describe the mechanism that they should ploy a seems to me that that