counsel your position as i understand it is that the thirty day filing period for the ija action doesn't begin until the time for taking the appeal expires that's right ok and you've got a sixty day period for that you can tell the government has sixty days to file an appeal that's right beyond your time doesn't your thirty days doesn't begin to run until after the sixty day period expires the strike out of how could the government take an appeal in a case in which the commissioner had control you can either the time for filing attorneys fees by deciding whether to file an appeal in a case in which you've won you know not in the typical social security case even when the good morning my name is john custer i represent the apple the joy in born heart commissioner of social security the issue the court must consider is whether the full access to justice act the a j application here was timely filed the commissioner's position is that it was not timely filed we contend that the entry of judgment either one or the final and not appealable judgment as  appeal or own decision but frankly i must admit to the court that neither the district court below nor counsel in this case considered that earlier judgment  district court's egil order even refers to the earlier judgment you know isn't this a good illustration of why the most sensible thing to do might be yes to take the supreme court literally and mail kone and construe it as adopting a flat rule for section six cases so that you won't have these problems depending on whether the appeal period runs now if you read it on the appeal period runs as referring to what the appeal period is when there is an appeal and that sum to rule for that period runs it doesn't say what happens if there is no appeal here in the particular case but if you get a judgment and the time for an appeal you don't have to determine whether you who could have taken an appeal under what circumstances and the of that you just have a nice flat roof with section six cases as they say as i understand practically if we adopted your rule what the court didn't  come back to the court with two possible outcomes it could be a decision that's favorable to the claimant or could be an unfavorable decision if the decision is unfavorable to the claimant is the commissioner's decision still has to be filed with the court along with the transcript of record and so forth and then there may be litigation and the outcome may or may not be favorable to one so i'd of the other and then there would be the possibility of appeal and in most of the cases that deal with this matter we're dealing with cases in which there is still some possibility of further litigation and a possible appeal but in this case but in the cases where the government where  time you have the extra sixty days is if the government has one if the congress had wanted to allow a ninety day period for the filing of read your piece they would have said so but what the congress said was that it had to be filed within thirty days of a final judgment that was not appeal because the government itself has said yes it's time to work benefits here that's true one of our position would be most strongly that once the government had consented to enter your judgment whichever judgment it is that we're talking about it is clear that the government could not withdraw that consent and then appeal you also said you can't appeal a decision and favor of the claimant is that correct that take a case is never appealed where the commissioner has issued a decision i don't see how the commissioner in good faith could contest around the city saying is that in section six cases cases possible with the commissioner to deny even if it come back to the district court and lose following section six three man yes in that case then the government would have lost that is that the commissioner would have said we don't think the benefits are owing here the district court would  disagree and that he's then the government could take an appeal and word of back to the district to move back to the commission of the commissioner says what's a good thing we took a look at second look at this record because you're right on the claim that his entitled to benefits here and there's nothing for the government to appeal it over at that point because the the commissioner has that benefits are owing that's true and i just want to finish by saying that this case is clearly distinguishable from the precedents from the cases that  counsel should have realized posen counsel that this case was not appealable and that under the rules of the statute itself that the time for filing egypt titian began thirty days after the entry of the final mean you still let what the appeal period is right and even if you can't appeal or it's doubtful or we don't know what you can appeal or whatever you wait till after the judgment and the been ordered by the court but it still nevertheless sept fourth the rule to section six cases it set forth such a rule but it was not necessary for them to consider on the facts before the wife may not be necessary for the supreme court to do a lot of things that we generally follow it anyway true but i would argue that the statement should not be taken literally in light of what the statute itself says  taking it literally would simplify a lot of problems and make it a nice clear rule for author x and six cases in accordance with what the court said but i would argue the one reason that this matter has not is that there really is not much cause for confusion out there further there's nothing in the statute that says that a party has to wait sixty days even when there is a proper appeal not that's permissible very well they can properly wait sixty days for judgment that couldn't be taken is precisely what's the issue and i would argue that the court should not be rewriting the that consent terminated any possibility of the commissioner contesting the judgment if we were referring to the one below i don't believe that the u s attorney  thank you use your term but we'll give you one minute if you want