case that thread is the goal of each decision is to determine the intent of congress with respect to the statute issue in this case mr henderson believes that the answer to that question what is the intent congress is relatively simple and straightforward and can be gleaned from the fact that congress has chosen over the last ten years at least to that it did and judge judge asked me that question when we were here back on june fifth and he asked me whether bailey had a part yes bailey had been over and i think i'm going to  language in that decision which describes seventy two sixty six as a time for use and i think to the extent that bailey read seventy two sixty six is a time for review statute that may be undermined by the decision and b and i would agree with that in fact we were all here together when jake was argued we spent a great deal of time covering that issue seventy two sixty six is the first time that a veteran has the opportunity to engage that you dish will system to review what benefits decision indeed it's the only way a veteran can engage the judicial system to review a benefits decision but that is true in stone setting as well as not in stone which is i think that in that situation you have two options i think you can go through the hobbs act as a challenge at a court but at the horror appeals so i think you have two ways of going about that i think the other important thing instead of and right and really the more important thing  stop is that the court focused on the language there and the language of the statute in stone was very different from the language of seventy two sixty six isn't the real the harder question here whether you can distinguish what you think the scoop of bones is and why well i think i will but i'm not sure that i agree with your two your two choices i'm not sure that if polls covers us we lose i think that the holding  polls did what the court did in rock camp and stone and her when it took a look at the statute and it said if does this statute on its face precluded any extension of time and what judge justice thomas did there is he said look you've got a thirty day stay time for appeal and then you've got a fourteen day window to come back and cure a problem if you missed the thirty day window that doesn't exist in seventy two sixty six seventy two sixty six you have one hundred twenty days and what we know from stone and what we know from iraq here is where congress has not created exceptions to time her only  presumed to exist in the stand i began to believe that i made at the outset here we are now ten years down the road from the decision eleven years down the road from the decision congress has had many opportunities to modify so to sixty six and a fact has modified twice since that time and both instances congress elected not to either add a specific window of time but it's not a national judge it's not much they've modified that set that specific section on two separate occasions and there's a long line of worry in the united states supreme court and indeed it is that congress is presumed to legislate that this court has and so i do i'm not sure that we're reading something into congress's in action judge or i think we're actually looking at congress action and saying it should be clear h maybe if the factors if this were to use the factors that equitable factors stache should not run for that period of time there may well be equitable to all over the court clue there been some discussion already this morning about the court concludes in bay seventy two sixty six timing of review rather than a statute of limitations well what the court said is that we're going to have a period of time set out in statute with a specific exception or extension to that period of time by then you get no more time and we don't have that totaling of course means that the statute stops running and extension of time means that instead it has run it and you get additional time we're talking about a situation where the statute stop important distinction to make because this is the first time seventy to sixty six constitutes congress's waiver of the governess sovereign immunity against suit from veterans of this type and as one tells us when the government choose to wait its sovereign immunity like this equitable tolling exists there's no other place for a veteran to go if they disagree with it about the best about claims benefits and so you're exactly right this is different from bowles in the more equitable power than our gree only take the supreme court it's were the supreme court made very clear in its decisions that we do not the line of cases unless we say we're doing it directly the supreme court was presumed to be aware of this court's decisions in jape way and bailey certainly aware of the and i'm not sure that it's necessary at a private law i think that you can say that equitable tolling exists in this context even though there is no private for the very reason that a judge may raised a moment ago and that is again chait way follows but i think the analysis in shape way is is much more focused on the issue of statute of limitations i mean that is certainly the way that we read that case and that was the way this the argument in th language is broad enough to allow for equitable tolling and by virtue of the fact that congress has chosen not to change any of the decisions that this court has taken with respect to the statute  take into account things like the fact that i think it's a very large majority of the ligon for the word of veteran appeal not represented by an attorney and authority and you're absolutely right about the state of the litigants here and this goes back to judge mayor's point about the fact that this system is just different and this is the first time it well it is a benevolent system a system in which anderson at least and most parents up until two thousand and seven were completely and represented because attorneys it could not have attorneys by statute up first come into contact with each additional system where there language in opinion putting it but what would you say about that well i say a couple of things i think your honor is referring to the language in bowls where justice thomas says today we make clear that the timely filing of a noticeable appeal  this sentence has to be read it context it has to be read in the context of the rest of that paragraph which goes specifically to the unique circumstances doctor and we're not here arguing that the unique circumstances doctrine applies in this case it's a different intended to overrule the warm line of cases about the way in which the government should treat better i did i miss anything this opinion would suggest that and i see my time is running out i'd like to serve the rest of my time for the right thank you  on throughout this opinion to state a very broad rule and note the age of this rule so yes they spoke in terms of the extension of time in twenty one of the seven they do that and in many cases where they examined particular whether statute of limitation as opposed to a time you were in provision or not but the further point i would add your honor is that yes that meet the additional support for why you shouldn't toll a particular time period but the lap of an extension shouldn't be necessarily an indicator that congress meant to imply an extension particularly where time that you provision if congress wants to create a statutory timing  a for example you go to a district court and it's not an appeal but what you're doing is you're reviewing an intensely action on the agency record and yet that would be governed not by the  statutes of appeal type rule so why isn't this more like that and it is like the statute that's issued at issue with bill well first i think because it is important that congress created the pensions for its court of appeals board of veterans appeals and you have an uphill to a court of appeals and then a much more limited review by this court and discretionary review you by the supreme park rangers the veterans for the court of appeals for veterans claims the primary think so i mean saying well is it helpful for us and to the extent that it really stands for the proposition that you know congress shouldn't be intended to kind of subsequent trio over role you know hundreds of years of president holding didn't address that argument head on certainly be clear implication of goals is to reject that argument and hold it for that time to review provisions such twenty periods of appeal to words of appeal are different than the statute of the importance of it is this system wide structural importance that the work knows when a case is finished and when the time for appeal is wrong the decision is final and as well as the court of appeals for veterans claims of course the more important answer is that polls makes those time periods jurisdictional so hard or not under polls the veteran sports simply does not have the authority to act to entertain that appeal and respond directly to the chief judge is hypothetical about one hundred twenty days versus one hundred seventy days it's very hard thing for governments make a case that the extra days is hard absolutely that was what i think i was trying to get at is that when i said we're probably  polling has resisted it on the basis that well oh we have delayed memories going to paid and we won't get a fair result we won't really be able to reconstruct what the truth was but to the extent that these pieces are mostly iowa or new cases that concern or where witnesses disappeared her documents disappear or other prejudice of the work it perhaps could on an individual basis but again that's not a sufficient reason to depart from the very clear argument that changed the city law the government certainly would agree with that position but now that pulis has reissued we clarifying at the very least to our early doesn't apply this time we were in provision that would be the main factor i think that would make it stronger but i'm not going to argue with you at all that the government's view was that stone was certainly good at stone in missouri are certainly good enough president to but i don't think that which we believe undermined by both overruling bearly does not automatically require overruling kirk and all kirk and all is a different factual situation it's an appeal to m but second even if that we do get into the specific language distinctions but was didn't rely on the specific language just stinks since it certainly discussed that language and doesn't rely on it and indeed if you compare language in the various timing of the appeal provisions that are out there the universe of them a lot of them look a lot more like seventy two sixty six than twenty one zero seven if you accept that there is some  mandatory nature in twenty one o seven that should be enough to appeal period in veterans cases to this court in seventy two ninety two uses very similar permissive language but seventy two sixty six likewise the language and vaguely recall that there is something out there on that you know i would have to provide some supplemental briefing on that specific point but that would be a statutory requirement would it be any basis for work and will exception it would render the appeal the decision not to file for instance the veteran score it's specifically to this point but analogously the veterans court is held in a lot of cases that because of the duty to  in seventy one of four i believe to give notice of the words final decision and various appellate rights in the light that if that notice of final decision is not sent to the betterment the board decision is no longer five and that's because of that statutory violation i would although i don't want to concede a point for the secretary right now i could see a similar argument being made if they work had a statutory duty to point somebody to watch out for the veterans ok i can't tell you your honor if i did or not i seem to think i did but again if i did i'd be honest it was not a proper ration for today's argument the reason i ask is that both you and mr stover have asked us to accept certain presumptions about what congress intended when they did do this if you didn't do that and i'm wondering if we're implicitly being asked to presume that the supreme court is there any reason anywhere to believe that any one of the nine justices had in mind in the course of considering and decided in bold anything about right or i'm not aware of that your honor but we are not asking you to decide that the supreme court intended to affect that trips cases we are asking you to target congressional intent at the time of the enactment of seventy two sixty six in the d j all right when congress did that   but it's not that it changed the landscape it clarified the landscape between timing are you provisions and statute of limitations and whether statute of limitations can be tolled against the government is really important  to recognize that erwin is in a way a very limited decision it is not about whether statute limitations at large can be told or not it is about whether it gets the government right when sovereign immunity is in play whether statute of limitation can be told this position you know we didn't come back to actually do that since board itself undertook to look at polls and decide whether it should revisit this question and it it we had to make our best legal argument and we have made our best legal argument we that the subsequent amendment never really dealt with that specifics subject to the extent it did when congress enacted the mailbox rule it's reciprocal in the legislative history an act in the mailbox rule noted can presume that congress knew all about all the case law and therefore when it legislated and said this or that or the other thing that we know that they meant were nothing they meant because they didn't say all right it just seems fact that we look at the plain language and the plain language of the statute says you have to take an appeal with one hundred twenty that if we take congress at its work in a hundred twenty days it didn't need a hundred twenty days with a good cause exception if you want to put in a good cause first and only opportunity to have judicial review and the v a basically squash so that's point number one point number two there was a question i think chief judge show us that you know what's the harm here what's the harm to the government and  the question i would pose is the other way around what's the harm to the veterans if we read seventy to see if we equitable told out a seventy to sixty six and let congress take action if they really want to be there well the harm is this mr bailey apartment mr henderson another client of martin about sixty or seventy different cases pending bill currently before the c in d c waiting for a decision in this case all of those veterans and probably a couple hundred others will never have an opportunity to have their case heard on the merits even if congress corrects and writes little tolling into the statute in the next legislative because time is going to pass and these claims will be allowed to be dismissed and it will never have an opportunity to review now if the government is serious and they want equitable tolling to be in seventy to sixty six when i was through justice department of veterans affairs has in its power the ability to drive to capitol hill and sit down with a few senators and  disability rating because of schizophrenia paranoid schizophrenia was unable to file his nose peeled for the very thing for which he is seeking benefits and he did not go to the v a the v a did not tell him we'll file your document or anything like that he's just sick and his doctor said it was sick and his doctor said it was too sick to meet the debt and in my view that should be a basis for the tolling of the statute of limitations so your hypothetical doesn't congress intent i didn't hear anything from the government other than the notion that acquiescence is a very weak candidate statutory construction and there really countered the fact that it's been ten years it's kind of remarkable in fact i thought about this yesterday that it's been ten years since the decision in bail has congress not acted but as far as i'm aware the veterans administration has not acted if they haven't gone to congress and asked th statute be changed so maybe the acquiescence isn't just congress's maybe it's also the v a s i also want to be clear about something i don't think that this is so much acquiescence as it is actually saying you know we understand that this doctrine back tolling is out there we've changed the statute in significant ways on at least two occasions since the doctor was read into the statute we're not to change it we like the federal circuit stuff i think that is every bit as reasonable a reading of what congress has done here and is certainly much sort of supported by the case law from this court and from the supreme court then saying well you know congress is busy and maybe they don't know or legislates with respect to changes rather a statute with respect to the timing of filing it is presume to know how the court's applied that statute mr point of interest not relevant to the decision but just a matter of curiosity