you please the court my name is evan nelson i'm here representing the appellant eugene newcome your honour's this case is not about a veteran's benefits determination if it were the veterans judicial review out would preclude jurisdiction instead this case is about the v a s absolute failure to supervise its employee of the v a knew was making several mistakes and who then generated a clearly erroneous letter the letter which cause mistake and just the v a saying to a beneficiary that trend we made a big mistake and now we're correcting it as a matter of procedure what is the difference between tho determination and we're changing it isn't there an argument to be advance that there was no decision because there was no decision because at the end of the day the notice that was received although it's at notice of decision and then it said corey also aren't covered and that it said your current benefits will never change correct and so it's a big nothing which might not be really all that good for your client because your client was informed that its benefits would never change so i modest quest to find out exactly how this thing ever survives a motion for s judgment if you get that far but you could argue that there's no decision because the decision on its face was a decision to be no decision the decision is what we've always done right that the february letter did not change the benefits in fact has benefits never change there was no benefits the termination were not seeking damages for benefits being withheld but mr newcome holding the letter in his hands didn't know that at the time he held that letter he just looked at that to nation decision that your court also raisins are not covered and he thought they're coming from benefits next he his subjective fear in that moment is what caused the harm now if we can get discovery in this case proceeds and there's other issues to be  considered i agree with that but now we're and sitting whether that letter was ever a decision there was no decision because the siri said it was merely the product of error so if you if you can't rely this is this came from multiple and several errors made by the same individual employee and it doesn't it still become if if if it if it's a decision about benefits in a letter to a veteran isn't that what we can to review you you cannot review whether a benefits determination was correct or incorrect but the district court in this case does not have to review  has already come in and said there was but again if we don't rely on the sea that it's categorization is a c u l e if we don't if that is not a vehicle to get you to non decision world how then is that letter not a decision about benefits erroneous perhaps but a decision it's not a decision about benefits because there is no impact factual impact on his benefits they were not reduced he received his benefits of love put on the table what to me is maybe the most significant part of this day because it reads from your brief was just sort of a choice between alternative ramadans but in fact i to recover the damages that you're talking about this morning right correct if that if this case were to proceed before the board of veterans appeals and through the section five hundred and eleven regime mr newcome is left without recourse for the damage that was caused to him for the we ignore that congress has for this kid for it for a decision for a decision that is a result which includes decisions that are the result that are the product of a c you've got to go through a path through a decision maker that is precluded from a warning that consequential damages you while i think to me we would we i i would suspect the supreme court reversed u almost almost on it's face well and that's exactly right and that's why the see we came in later and said there that it's but it was still a benefit no it was it was not a decision there is as the rulin know i'm saying that the see you e as is was found in the roman council case says there was no discretion no reasoning no decision making whatsoever that it was simply an error in our cases how was this error allowed to go out to vulnerable that are and that is not a decision maker there's no allegations that john doe was a decision maker there is no allegations that a decision was ever made it's simply there was an please the court counsel you're one of the united states has not waived sovereign immunity for claims of emotional distress arising out of iranians benefits decisions and that's exactly what mr n judge erickson while we agree that the the february two thousand and fifteen decision didn't have any impact on his benefits it certainly was a decision because it changed and made a determination about the bases on which he could recover disability benefits so it did have an impact and it was a decision on those grounds i'm sorry procedurally the fact that it was corrected by the may t is unique in that it allows the v a to correct its decision at any time on any grounds on anyone's motion and it works as an enormous and of the prior decision there's no question that that retroactive benefits is that the way you have to get them retroactively applied as you can also go through the entire process and have a retroactive application of benefits to see you we provision is just a you know a safety valve  that sort of comes in and allows in the context of this veteran friendly claims procedure for this secretary to correct it at any time on anyone's motion without regard to where you are in the process if you haven't yet exhausted you know as long as you haven't gotten a decision from the federal circuit saying you're not entitled with those benefits the da can correct its error through the process at any time and that's exactly what they did said straight out jones contends there were no decisions in this case only mistakes that is wrong and the same thing would apply here but there was in jones there wasn't as two u e though that was an issue was the that's correct there was no no see they're just saying that was a mistake and we do not think that there's any logical distinction between those two things the two u e because it is the specific procedural mechanism that serves a very unique purpose within the the structure of the v j are a is a procedural mechanism for for the secretary to correct mistakes and to admit that they're running us but it shouldn't distinguish in any way that the court analysis that was set forward  have sovereign immunity for an award order of damages consequential damages resulting from erroneous decisions and nothing about the fact that the decision was corrected more quickly through the u e would change that that analysis the the the cases on which the court relied in jones price from the d c circuit those cases all say that when the question is about the whether the v a properly handled the benefits claim that that is squarely within the v j ari's exclusive remedy provisions and that's exactly what we have here we have a question we have presented a claim about errors in the process whether the supervisor should have reviewed the work before it went out whether the the decision maker who wrote that letter should have looked at different facts whether the propre facts were in the file and unreasonable delay in adjudicating benefits and claims about the process can go through the v j r a process can be adjudicated by the board of veterans appeals the court of veterans claims and then ultimately the article three courts with federal circuit and supreme court review and those courts are vested with broad enough authority equitably to be able to redress claims as judge lookin pointed out just because the statute did not express only provide for emotional distress damages does not mean that it doesn't provide the exclusive remedy and that congress is intent was not clear we spent a lot of time in our brief distinguishing roman counsel and i would just say here your honour's that we did make a factual record here in the district court about why this would intrude on the secretary's decision making and we think that that's one the procedure certainly doesn't waive and allow for the the imposition of compensatory damages any time it's used in a book by the secretary to correct a decision is part and parcel of the review process and this court has multiple times upheld decisions dismissing cases that should be funneled through that review procedures so we would ask that the court affirm the district the government points you tube universe is brown but one important consideration to make when looking into cases that was a purported class action challenging the entire decision making process decisions that would have been correct or incorrect it was just a matter of their not being timely here there has been no decision the benefits were never changed it was merely the conduct of the v a that we are looking at the conduct of the v a in not supervising it to get employee they knew was making successive mistakes and didn't stop and didn't review his work before it went out that conduct is not protected by d j ouray congress's intent was not to shield the v a from bad conduct congress is intent to have uniformity in decisions across the jurisdiction this case does not upset that uniformity this case is a narrow and unique set of facts that apply under the federal tort claims act as a negligent supervision claim and therefore we ask