see action given the fact that there are various levels of review within the agency up to the level of the secretary which haven't been exhausted yet how is it whether this is an adjudication or will make either way there's a finale or and how is it that we can possibly would view this at this stage in the proceedings when these other steps situation have notice of proposed rule making you can't go to work to do that you've got to wait till the agency is acts finally on the rule and here or even if you view this as a rule and it was a big question as to whether it is the agency isn't finally acted on because of the secretary could say you know this is it's not right or your determination here is incorrect i have a different view of statue why don't we have to wait for a decision of the secretary before we can do anything before we can review this there's no separate decision of the secretary to come out that's what the  letter talks about whole procedure within the agency for review that's right and so what's wrong with that procedure is there is a procedure whereby for the st the director of the regional office makes a decision and secretary a letter then the committee process that's described is not some separate review of of the room or the determination about whether there's been a violation what it is is a group of people who got together and they provide recommendations to the director about what sanction not so everything that is to be done about what interpretation of main campus applies to control what arizona state approving agency can do that's that's dot and that's you know among other reasons why we're not sure that i understand why that's the case why doesn't the committee you know the authority to determine whether there's been a violation  kinds of sanctions that are described on the letter and there's and i don't see that that's limited to sanctions and we want to make that determination as to whether there's been a violation here as well this is a war that has no authority to make online programs nothing to do with the committee then the committee comes into play and the committee will assist me in making a determination as to whether educational system should be discontinued for all individuals a lot and all the online courses and if appropriate it goes on to describe other sanctions that may be imposed and so talked about review by the director education service and the director of education service who's a superior officer within the agency  what this v a regional processing office director says does wants to do isn't the final word inside the v a it's this other person the director of education services that may be a soviet setbacks i think there are tw two points up to be made here one about about final agency action and the other and the other about rightness which is actually where i think this the sort of fault so finally agency action once there is once  that's and that's been revealed and revealed in the form load it once there's a rule has been adopted by the agency just that the fact that some lower level official as announced it will have subject to review within the agency doesn't make it let's assume that leader is in fact a review procedure within the agency to determine whether there's been a violation and that the superior officers within the agency have the ability to make that determination that this letter as you put the statute is correct or not correct isn't of the case that if there is a review within the agency there's no final agency action   and that doesn't happen under this letter until further procedures are followed if that were if that were how finally agency applies in this context there would be to consequences which decision to the board of veterans appeals up to the veterans ordered up the house that avenue of review is available to you and they're always to avenues of review available when there is when there is a role that is later a plot when it's  announced and this is true not just in the five hundred and two contacts but think of under the hobbs act or any of the other special agency review statutes the will comes out you you know or it's revealed sometimes in a letter sometimes informally improperly and the parties affected is you know we look at the following circumstances we give more weight to this mess and we actually think that as a prodding matter you know in general terms when you see costs or you see prices this far of a cost it's going to give rise to a violation if they an agency can't escape the rule making requirements of five to three by proceeding through wyman gordon says the same thing and i think justice kagan is point of the same understanding yet again but it is not the case that just because in the course of a so we're limited here to enforcement actions the enforcement character one that's defined two if the in for if the nature of the legal interpretation is separable from from the facts and three if it's has to confront a novel legal issue and then has to make a call on that question in terms of applying the law to the facts of the case not in all of your view that that's a rule and not an adjudication and i don't is thinking about quite different circumstance where there's where they say there's been no we know there's no order because there's been no adjudication we're we're say ok there's there's no order here for a very different reason  quarter because it's not a final disposition a final disposition is part of the a p s definition of what an order is what is happening here by the way to within the agency i mean is this just sitting there th properly before us that you have a chance to raise the merits so let's start again with ten minutes or so is there anything else you need to tell us about the substance well so yes a lot of going to substance to interpretations of law that are given the force an effect of one by an agency and there's pretty much no clear example of giving force in effect a law to an interpretation and saying you must follow it or else to the state of arizona a sovereign state to the seven thousand veterans at ashford and to any anyone eligible for g i bill benefits who may be thinking about wind ashford i think that's plenty of you know people take it in general to generally applicable but even if it's that definition that comes from a certain regulation that the main campus that that automatically turned this letter into a rule or to i mean if they haven't made reference to that regulation then it in your view d it would d have been just an order if they had relied on a preexisting statement of law one that and you know if they had made this if they had said if the day before they sent this letter once for the interpretation of main so taking all that into account we took with d that yes in fact the way it's been representing itself to different institutions and agencies that its main campus is in fact in california with that have been if the issue that topic here is that what congress skews to the state approving agency the authority to make determinations about approvals and according to you and this is three thousand six hundred and seventy two according to the state tangled here what or what i mean to say and you know and our fundamental position is as if there is an interpretation separable from that so you know what i wanted to focus on i wanted to focus on is that the shift of authority that we don't think that's a rule but the question always is going to be where that will come from that's not being enforce discussed that there is the possibility of a hearing following this letter and then ultimately the director for education making a different decision if he disagreed with this letter so i reckon the directors decision something similarly we know we definitely understand that students could bring a challenge it before the regional office in the board in the veterans court based on a denial of their benefits for attending ashford as you point out in our what was the point we were trying to make that congress would have intended these closely related questions of the authority of the secretary to go to the district court was provided and i would i would argue back to your own credit when the provide seem to think that this was an acceptable path well no we asked for dismissal because we don't believe that this is a rule that out falls under five or two that's why i was trying to explain that part but not as a matter of being premature it is being contemplated well the reason why we didn't commit to ashford having that sort of review through that process your honor is because the benefits here to veterans benefits are not for asher ashford is not a vet or they are a rd party who's was only an interim step in the process but if if there was a final decision on the funding that has to be subject to judicial review and they have to be able to go someplace whether it's the district or or to the veterans so i apologize but i can't give a definitive answer on that today if the court would like us to file a supplemental answer that we could but it's not information i have in my fingertips right regarding i agree with the court's questioning that what ashford position would do here is recently to make any statement made in an adjudication susceptible to five o two review there is no distinction between what's the regional director did i this letter and what a regional office does on a daily basis when determining service connection for disability payments what we have here your honor is a letter that is mandatory under the statute is the idea in general that this letter can be set and is there is a statutory basis for it there's no new rule announced in this is part of an injury kotori step regarding the main campus question again your honor is this is in applying regulation to the facts of this particular case there is nothing in this letter that is announcing a drop broad principle that applies to every school crossing the nation this is a letter by regional office  that is one of four in the united states and applies only to the s s a ashford and the so you are saying that if another similar fact pattern arises the director could freely choose a different understanding of the term main campus regulation defining the main campus to borrow from and the director simply said you know from this point forward this is my conception of main campus that i'll be applying to this case and all future cases relating to whether to stop payment on educational benefits and it's a four factor test the two st two factors the most important thing here is the here's the test y interpret regulations doesn't turn the adjudication in never will that is correct if you look at what happened in the snyder case that cited by ashford in that situation you had a presidential general counsel opinion that was binding then would decide that a particular issue that has arisen is significant then what would they do they have to put it through the notice and comment procedure would they not and assuming that that adjudicators looking at the amount that an individual can a veteran can move there me both moving at forty five degrees but getting different ratings under the existing schedule i think that in that scenario it's very clear this court is pointed out that this is an adjudicator matter it is not an issue of rule making by those are zero and judy caters regarding the neat schedule this is the same idea here we have a regional director california explain to us or to corrective action this is this is entirely every step in here education none of it is rule making that apply us to eight different university whether this is before and only then can you have a review whether it's an order or a rule making i don't see how anything in this letter could be reviewed at this point your honor could there have been something else that was written in this letter that could trigger a rule in the fifty town i think the question is do they have to wait until there's final he's and see action yes your honor because it is not finalist agency advancing this particular argument that we can't even come in they can't even come into court and question whether this is a rule making until they get right review from the final officer inside the agency that can make a ruling  able and if it is a rule whether there is a final rule here in no way or shape or form that we think this is a rule that's a mouse in this so therefore we cannot argue that there are any rule would not be would be not final using that as a basis to say that my client is subject to enforcement actions and a suspension again i think you know and then the the sort of extreme consequences of the government's position  apologize but but i think you know again that it's the enforcement her that really drives this conversation and you know and then there's the arbitrariness to of what happened here the government's position as well we factor found kind of consideration but the rules have to apply the same to everyone and what they're doing is saying yes we're here interpretation of this regulation applies ashford maybe maybe not applies to other people and and we're going to drive in in force national threat and just think that's an awfully extreme position by the government to say there's no review of that will you know we'll continue the suspensions and the fact well i know the process going on and they're now saying there's no