don't apply to two diseases that were service connected after the expiration date of the a o l a so that that is part of the regulation and that is the part that the district court has held is inconsistent with that with the term create and frankly counsel when you're talking about a consent decree where you have a class on the one hand the department on the other hand and a judge who signed a decree why can one party construe consent decree without the consent of the other party and have that be definitive isn't really the judge henderson that should be construing what this means some sort of an ordeal it wouldn't it would not be definitive the question is which court with and determine whether or not that  you brought the the appeal issue up the other side is not there not challenging the regulations the court has clarified the meaning of the consent decree yet retain jurisdiction to do that right orange act not call it to expire it it's clarified that the intent the court in the decree was that it extended to the term provided by the new act why does that have anything to do with an appeal to the federal circuit nobody's challenging directly these regulations and that's all direction as to these regulations because the regulations specify that that the that the retroactive provisions terminate the the last day of the of the agent orange act of one thousand nine hundred ninety one and that was and the v a promulgated this these regulations and then it was only after that that the plaintiffs went back here it acted appropriately as an administrative agency to issue regulations and the plaintiffs then challenge them and because they were challenging them effectively no matter how and how  with respect to the merits under traditional standards for interpret in consent decrees because it was that understanding at the time the consent decree was entered into that must control not be not something service connecting diseases and so and said that should continue until two thousand and fifteen it didn't say anything about extending the retroactive benefits provisions of the consent decree and it's simply distraction and for miscible stretch under the law regarding interpretation of consent decrees or for a court to to to do that because it imposes substantial additional substantive as a final decision and as and under twelve ninety two a as as an injunction it's also reviewable undervote under the the practical finality doctrine that this court has recognized and and also good morning your honor just my name is bart stitch men i represent the plaintiff class of the non veterans and their survivors there are several statements in the v a briefs that highlight the issues before the court today the first is on page two of this reply brief with the da states that its interpretation of the consent decree is a quote final rule of general applicability unquote that statement is both important and accurate it's important because it's the only place in its brief at the v a recognizes that the jurisdiction of the federal circuit is not predicated on the mere procedures would not automatically give the federal circuit jurisdiction to review amir's staff manual under the section of the a relies on five o two federal circuit jurisdiction depends on the content of the matter not on the procedures used and that is the cost section five zero two provides the federal circuit with jurisdiction over an action of the v a secretary to which sections five fifty two way one or five your argument is that you obviously don't have that here that's right the v a is just try doing bad and interpretation of the consent decree in a directive published after notice and comment processes and that's not  dispositive for the federal circuit to have jurisdiction putting aside the conflict with the district court's jurisdiction the da would have to be correct in alleging that this is a substantive rule of general applicability which it's not interpretation of the consent decree for that to be subject to section five zero two it would have to be and the government alleges it is a subset of rule of general applica s that i'd like to address when faced with the issue that the motion for clarification required the court to address the district court which had presided over implementation of the consent decree for fourteen years reasonably interpreted the language of paragraph three which says that any disease which may be service connected in the future pursu my understanding of the law is that all existing statutes that are a quick couple are deemed incorporated by reference into the contract you agree with that general proposition yes ok time that this particular consent decree was that into the law provided it was going to expire i think september thirtieth two thousand and two zach correct not exactly there was a formula in the in the act which that under as reached as a brief talk about congress teddy especially the veterans affairs committee a history of creating a sunset date and then extending it thereafter and it did so itself in the agent orange act with regard to another provision nothing in the contract itself in the decree that talks about that that's correct and that's so it the v a is correct at least to the extent is it not that at the time  this was entered into nobody really considered and certainly didn't reduce to writing the concept that this was going to be extended i think the fact that the consent decree that it's express incorporated one subdivision subsection of the age of nine jacks relates to that the answer to that question because you didn't refer at all to the sunset provision it only referred to the authority of the v a to service connect diseases and therefore although it didn't expressly discuss what the impact of an extension would be the fact is when congress extended the sunset jurisdiction three or four times since the consent decree was entered and he expressed we incorporated the terms of the consent decree in the final judgment which would get which which is what gives him continuing exclusive jurisdiction to interpret his consent decree the v a also fall test let me just follow up this one thing the appeals that were taken with respect to the consent decree all went to the ninth circuit act and when did the right when did the statute referring regulations construction of regulations to the federal circuit when was that an act that i strangers know what i'm trying to find out is whether consent decree went to the ninth circuit before without objection and presumably from the veterans department it would at least argue that even though i don't know the regulations because that may be the issue here but certainly there was an understanding at that point that the ninth circuit had jurisdiction absolutely around or pardons after passage of the federal circuit jurisdictional statute agreed to this consent decree and agreed that the district court would have continuing jurisdiction over for relying as an aid instruction on the remedial purpose of the consent decree this court held five years ago that it didn't interpret in the consent decree to apply to prostate cancer whose association with age image wasn't recognized until one thousand nine hundred ninety six that that interpretation serves the remedial purpose of the consent decree by helping ensure that any delay in the effort to determine agent orange agent orange is devastating effects due to the issuance in defense of its earlier invalid regulations shall not be borne veterans the district court's ruling on l serves the exact same remedial purpose well before the initial sunset date the v a secretary asked for the day and its next report as of the date asked the national academy of sciences sunset date but by which time congress had amended it so that it was two thousand and fifteen the fifth report found there was association between c e o alan agent orange based on seven scientific studies published because it's consistent with what this court agreed five years ago was the remedial purpose of the consent decree finally the v a focuses on exactly what i'm saying your honor that was me even if congress had an extended it which of course they did in part probably because before through the report was delayed the parties expected you know the v a is relying here on the expectations of the parties back in one thousand nine hundred ninety one when they entered the consent decree now i think the parties knew that car it was possible for congress to extend the sunset date but let's say that wasn't a possibility even then the party suspected that the da would service connect diseases based on five full national academy of sciences reports because that's what the original act said would be required and that's where they are relying on the language in the future and the correct agree on that argument yes he did he agreed with us that that also supported his construction of the finally the v a relies on says the consent decree or at least the district court's interpretation of it transgressors the california contract law principle that changes in law which add a burden on a party to agree existing contracts cannot alter the terms of the contract unless the changes apply to remedial or procedural provisions which i believe the consent decree is a remedial per provision but at any rate there is no transgression of this principle because the extension didn't add a burden on the v a that it didn't undertake when it signed the consent decree to pay retroactive benefits for all diseases service required five national academy of sciences reports before the initial signs that date and the v a fully expected and under took the burden to pay retroactive benefits under the consent decree for all  ability service connected as a result of the five reports or any extension thereafter consulting or going to filing a rule sixty b motion or even a motion for clarification with the district court judge now they have to live with the consequences of their actions and so i don't want  to i suppose argue go back to the judge and say we'd like to take these benefits back from the people we gave them to but that's not very practical fair to get that the next words back that of that's why i don't think the case will come back doctrine still apply where the case was a marginally final or we certainly have that here dispose of an unsettled issue of national significance we certainly have that here three it reviewed implement a reviewed in review implemented the same policy congress  promoted top ninety to be here and the phenology of the issue was presented to the appellate court until argument on the merits thereby ensuring that policies of judicial economy would not be served by remanding the case with an important unresolved issue does not really fulfill all the prongs necessary to find practical finality in this case i gather the v a ankan concurs that it does i guess i can say of all three arguments the v a s making that the federal circuit has jurisdiction that if it doesn't this court has jurisdiction and the argument that the district court was wrong that second argument you're focusing on focusing on is the strongest of the vs three arguments so you have  and there's no there's no requirement that it be a substantive rule of general applicability as long as it's a regulation within the meaning of the statute which is something under covered by five u s c five fifty two a one or five u s c five fifty three and that is  we have i we have rules of general applicability here because the the regulations make generally applicable v a s determination that as of that the that the the consent decree does not apply connecting service connecting diseases and that would go on regard that that goes on apart from the name or consent decree that is simply that by virtue of the of the benefits extension act of two thousand and one nothing in the final stipulation order is intended by the parties to waive arguments concerning the court's jurisdiction after august sixth one nine hundred ninety one except that the parties agree not to dispute the jurisdiction of the court to enter final judgment in accord that didn't involve regulation of the prior case didn't involve regulation there was no challenge to regulation that was strictly interpretation of the concert degree there was no at no no relevant regulation involved you provisions the service connection by the a provision eleven sixteen the expired a year before the last the deadline for the last n a s report so clearly contemplate congress did contemplate that kind of lag and it was built into the statute so and no new farias and no no nefarious purpose or anything can be interpreted by virtue of the v a or can be suggested by virtue of the v a s position here for treatment under the consent decree before the original agent orange act expired you continue to dispute that well yes your honor that that they that those would have the n a s itself did not consider them sufficient because they they they did address as we pointed out and i reply brief they addressed c l previously and yet never determined that in their view it's a suspicion scientific and medical connection had been made normal standards for construing consent decrees because that would be totally open and even the district court recognized that under the it's the it's in the party's mutual expectation the retroactive benefits at the approach to the consent decree