carpenter appearing on behalf of still wagner veterans court in this case we believe made three errors first in its refusal to enter judgment and mandates on its prior decisions awarding each of fees on the original the statement and the question is your honor whether under the rules below a mandate should have been issued based upon the separate judgments that have been issued on the original application and on the supplemental fee application because the government government now argues that they've moved it your judgment fine by entering judgments but you don't have the money that's correct or has the mandate issue up let me ask you this do we have to construe in order to get to the question of whether or not they should have issued mandates at earlier points in time or for that we have to construe your appeal at least in part as as a writ a petition for isn't that really what you're asking us to do is to to order the court to take a judicial action probably i'm sorry i am i confess i did the judgment mandate issue what do you want us to do we want this court to interpret both the statute and just tell me what what you want us to say we want to say that that when a judgment the decision is rendered on the question of the amount of in each of feet whether original war supplemental and the government chooses not to appeal that that that becomes a final judgment and mandate is required to be issued and those piece of the june twenty twelve order that denied the motion for an issue of judgment and in particular its rationale was incorrect as a matter of law and second i think you want to say that this is incorporated in this appeal that it was incorrect in the one word denial on separate that night on february twenty seventh twenty ten in denying your motion your january twenty third and motion to issue a judgment based on the october fourteenth two thousand and nine award reduced award of fees on the original application that's correct or ok i understand and i think i don't think there's any speed of that if the government can see that the june twenty of eleven judgment covered both the original application and the first supplemental on page three you ok it's not just the original application and no out that there has been no payment of those fees and will not be a payment of those season till this matter is resolved going forward however we believe that that error as you just described should be corrected by this court because it is inconsistent with the law at what point did it become clear maybe the government needs to answer this that the government was not going to challenge the october two thousand and nine award on the original application  to get it further reduced at the three hours or something that it didn't succeed in convincing the veterans court to to reduce your original application i think when the sixty day period ran on on day sixty one it evident the government certainly could have taken an appeal to that decision and they chose not to and they could have taken that appeal notwithstanding that you had in the interim in fact i guess under the rules within twenty days filed your first supplemental application that's correct because they're they're really independent tracks one is the determination as to the first application and there is a separate track the deals with the supplemental application and the supplemental the resolution of supplemental application has nothing to do with the judgment that was granted for the original application i just want to pursue this a little bit more i  understand what the rationale is for saying that the june twenty twelve refusal to and to grant your motion to enter that judgment anderson what the rationale for saying that legally wrong because acquires that or his claims actually stated a rationale it would impair the government's appeal rights and say that's right or the that's what i'm put that aside and look now back at the february twenty seventh twenty tents damp and night mostly i guess misinterpret in entering that denial back in the february twenty third and one because i think it's at odds with their own rule as to what happens after they enter judgment on their own rule after the judgement has been entered and the time period has elapsed then for an appeal then a mandate should be entered as to that unless unless unless the corners on one unless the court order orders otherwise and and i would take it if you would say yes but they don't have unfettered discretion that would be correct them and that this case is a perfect example of why that unfettered discretion needs to be resolved by an interpretation from this court to determine as to whether or not it it's proper to simply hold hostage those judgments based upon the appellant's exercise of his right to appeal when the government  if it had been articulated if it had been then i think this would be a much more difficult appeal it would be a nearly impossible appeal if that judgment had been articulated in their rules but it is not articulated in their rules i mean for example in this case if you were to prevail here and you go back and you ask for some more you're still not going to get that regional twelve thirteen thousand votes until the very end quote i'm not sure i'm prepared to go that far because that prickly seems to me to be inconsistent with the intent of the statute and frankly i think it's inconsistent with the supreme court's admonition in his lead that this is not supposed to be a second and or third major litigation  these have blossomed into that and that it seems to me that lines need to be drawn to limit the very discrete actions into the discrete dispositions that exist and that if the government chooses not to appeal of and that's the government's decision not to appeal and that claim is over and if there is something else that is going on a supplemental petition that's a separate matter and we essentially have lack of a mandate and the only thing holding up a mandate is this appeal well it's interesting you say the fairest way i mean really this does seem like a series of punitive acts it seems like what the veterans court is doing is saying you have to stop asking for supplemental fee you're never going to get the original fees that can't be affected by yourself in the press were just the whole the money and you know keep you from getting your money to keep you from earning interest and and chill you decide to stop you can't get any more money and doesn't that seem like completely inconsistent with the whole purpose of the a j c structure is your honor he is going to get paid all the money that's been a and then they would go back and they'd hold it they get right again it would come to you on the first issue since that's before the score but you were against them on that issue that's correct in other words at the end of this case where you don't know whether or finality of the of the judgment and it specifically said that if there's nothing that's occurring in that later activity that later motion that could impact the awards already made that that that means that original award is final and the judgment should be executed mandates an issue how is this not directly inconsistent with that concept because any supplemental right to supplemental fees can not impact at all  steeper titian's so on supplements or amendments that relate back to the original petition if this court were to answer a mandate on that first petition alone that would get rid of the only thing that he's able to relate all his subsequent the petitions act to and nine ruling on the original application which gave you almost everything you asked in terms of but not quite everything in reducing the that request at what point could you have appealed if you wanted to appeal to the veterans courts rejection of that small piece that it didn't agree with you i'm sure and i would like to clarify one thing that was omitted from  date at that time there was no pending first supplement of the partition why would that be a basis for denying a motion for issuance of judgment on the original application order of the which is what that motion was it was a motion to enter judgment on the october fourteenth two thousand and nine order with respect to the original application because i was are both part of the same case of controversy and there is more for the court to do besides merely execute the judgment  in that particular case so your view is actually that as long as there is some supplemental whether it's first second third or twenty seventh that is pending then it is proper to deny case that says the parent actually really exercise discretion in enough itself an abuse of discretion other words even if somebody has discretion to do something they have to explain they have to explain that discretionary act they can't just arbitrarily be paying out any money so we're just going to delay all mandates in every case for ten years but i have the discretion to do that that would raise obviously due process concerns because at that point you're starting to impede the ability for them to have a hearing on a case with respect to your contention that the j f k case and has to be filed within thirty days of that judgment wouldn't a supplemental application wouldn't the judgment that gives rise to the right for a supplemental application be the say that when you have a supplemental petition that that the merits determination that that is relevant to the supplement is the original award of c s not the underlying act where then you get back to our argument that under that reading on he would have been pre mean it's more than just double counting i mean so many hours were rejected as i understand it mr gerber with brian argue the first appeal ferber's celebrated litigant in from this court and so he needed to get up on the case so he spent some time