filing provision in section five thousand one hundred and ten b one of the veteran statute is amenable to equitable tolling we think the answer to this question largely depends on whether the urban presumption of applies because we don't believe the government can rebut the arin presumption if it cases we would require that even if we agreed with you on the subject and this can occur it would have to take the issue of yes your i'll be happy to do that i'll start with andrews and then of course i'll dress any other like me to we do not believe andrews needs to be reversed in order to reach the outcome that that we are urging here in andrews the court held year deadline and this court held that that type of argument which is based on the v a s duty to assist is not available as a basis for equitable tolling but that as you might i appreciate your  phrase that you've picked out of that paragraph but it's a long paragraph that goes on to i think at least act at least arguably suggests that we had the ruling was not it was a ruling which  court and that's the way in our court notwithstanding our skin color judge newman who's on the phone with us not concurrent calling out her reading but it was more limited nothing in any court opinion has suggested that it would be kept right i think that's fair your honor ok so but i think that that's probably the biggest issue with even if we would i'm going to try to answer your question by just referring back to andrews but if i missed the mark please let me know your honor ok what the c a b c really relied on here in andrews was not the person the judge prose was just referring to it was actually the discussion in the in the later part of the decision that distinguished five thousand one hundred and ten b from a true statute of limitations and for that that seemed to be the basis for to the extent that andrews has been read more broadly to more encompassing holding that portion of the holding i think has been abrogated by supreme court precedent i think that that portion of the holding has now been advocated abrogated by henderson which made  clear that the distinction between a statute of limitations or some other type of timing provision is not the deciding factor under her instead you have to go back to the to the the statute itself and determine congressional intent which is the urban analysis yes my problem with what you're saying i understand what you're saying i appreciate i respect what you're saying but the question is really whether there's enough  minimum would have to take the question your honor i probably won't be able to improve on what i've already said other than i believe that under erwin an order to in order for this court to actually reach a conclusion that a timing provision in the veteran statute is per se or are categorically not amenable to equitable tolling i believe the court would have had to gone through the  analysis in the court and andrew simply did not do that analysis it seemed to be looking more different than every other case other than the one where looked on a rock in every other case that i could find  different issue that has not been absolutely dispositive ruled ruled on by the supreme court your honor if i thank you for the question and i think your point is well taken i would point you to the young decision and that that case gets a little closer to the type of situation we have here because the the the limitation at issue in young was a three year look bacteria that controlled how far back in time the i r s could go to recover past due to assay taxes from a bankruptcy a state so that is what the government would now call a substantive limitation on the amount of recalled i don't disagree with you it's just that it conflicts the question is whether it same language involved in other types supplemental playing and all kinds of other claims is it your view that all of those provisions that they the date is one year after that  there's at least a dozen different provisions and you're also correct that the one year deadline is a theme that runs throughout several of them not not all of them to several of them have a one year a cut off with that from i think  not i'm not disagreeing with what you're saying your honor to answer your question i think that under erwin the presumption would apply the same to all of those provisions urban says that when congress passes a statute that includes a waiver of sovereign immunity for claims against the government the presumption is that congress does so with an implicit with an implicit equitable tolling provision applied to that so i can't think of a reason why arguments my my answer is a little vague i think it certainly could apply based on erwin but i do see that this that that language is worded a little differently i doesn't it doesn't jump out as a clear  time bar in the way that section b does so i guess i have to be a little equivocal and i apologize that i can't answer your question more directly and just one more and then i'll leave it to my colleagues  construed the language that you have in the one we're going your way is going the other way underwent i'm not aware of any that are exactly like the language and b but again i would point your honor to the young decision which i don't i don't think the court should overlook the young decision because if it is an important decision it gets i think it's fairly close to the situation we have here because it is i don't think the government would dispute that the issue the timing provision in young was what the government would call a substantive limitation on the amount of recovery and nevertheless the supreme court held that it was amenable to equitable tolling and it would just be an odd result in my opinion if the outcome is that the  government the internal revenue service can benefit from equitable tolling when it's going against a tax payer is a state and yet a veteran can't benefit from equitable told lang during a period of time after service when they're not represented by coun not having broad equitable powers your honor i've read burris and i think that burris largely falls in line with the richmond decision in the sense that at least one of the claimants members was very clearly asking for a freestanding equitable damages award that had no basis in any statute and that was also the situation in richmond and i think that's a very easy decision there because as the court in richmond said you can't the court just doesn't have the power to grant something where there's no statutory authority for it i think our case is different than both richmond ambers in the because the what mr ar the prior talked about it was the iraq god knows how many times and dates they have there and how confusing it disruptive to the administrative procedure it would be what about the veteran i mean you know like a lot track but there are probably argument could be included in the government's attempt to rebut the urban presumption here i don't think taking that argument at face value i don't think that's enough to rebut the presumption because there's a difference between saying that a statute of limitations or a limitation provision is amenable to that is not saying that it is necessarily going to lead to equitable told tolling in every case it's still the veterans burden to show entitlement to litigation but if the extra issue were inserted into the proceedings right your honor i guess i would have to say that under erwin the arguments should be available but it would still have to be it would still have to be tied to some  evidence that that was actually congress's intent i think there have been a freestanding policy argument that doesn't tie to a piece of legislative history or something that actually shows that that was part of the car congress isn't and i don't think it would it would fit the bill and something i mean so what is your response of the say we we disagree with you and we agree that that answers was just to the extent answers has been read by the by the  veterans court to say that this is a categorical limitation on the exercise of of equitable discretion here and we so and that that is how we think andrew should be read if we agree and was was wrong can we as a panel say that anders was abrogated and just move and bailey the interaction of those decisions perhaps a little stretched by mr ion of greed because so bailey says that the notice of appeal deadline to the veterans court can be told because her one says everything i guess i would need to take a look at that and i may have missed that but the and most what appears to be reinstated is the explicitly expressed holding ability which is that notice of appeal that line is not there as to whether the attempt to use it term to use you know successive bankruptcy filings to create a new poll in the statute is substantive in the same way that those certain limited circumstances are limited to one year look back from very specific originating event so i'm not one of them has a lot to do with it may have something to do with ethel a sec sorry and what about what  running recovery running from the date of receipt of the application even the date of receipt i don't i don't even understand how it could be told because there is no timing provision stated it simply stating that when the potential for life for finding an equitable exception here to do violence the language president in there seems a warrant start out with unless specifically provided otherwise effective date of an award  psychological disorder is easy but equitable trolling for thirty you based on that is so it gets to be more complicated and it would be  you your honor of course i'd like to answer judge newman's question about the thirty years but before i did i also want to point out that bailey has been recognized as being reinstated and i would refer the court arc whether or not a quote one court is different than an article three court for purposes of processing a claim against the government in the administrative adjudication really not directly they certainly got is that in henderson and bailey i don't recall that it was necessarily article one versus article three i think bailey applied urban and declined to draw any distinction between the fact that the provision i did you was a timing of review statute as opposed to a statute of limitations and that that's what ended up getting tripped up in in the in the henderson loop that went up to the supreme court and then back down that's my recollection  medical to equitable tolling and then of course has another discussion after deciding that that's that she was in fact amenable to equitable tolling about whether equitable tolling should apply based on the facts of that case and your questions judge newman really goes to that nd prong and what we're trying to get at here is we have a what we consider to be an error being propagated by the c h p a b c and this interpretation of andrew's and we're trying to make sure that doesn't continue to propagate i think that the ca v c i think there is a very well developed body of law regarding whether equitable tolling can apply to a particular set of facts and that body of law will continue to remain in place visions are amenable equitable tolling it's the exception that aren't and yet we don't have we don't have a flood problem in terms of equitable tolling swallowing civil litigation swallowing  other benefits systems and so i don't know whether that fully answers judge newman's question but that's the way we're viewing this that it's important to fix the st part of the irwin analysis before we even look at the nd part your honour's unless you have any other questions i don't have anything further thank you very much we think sorry for the disruption and the case of it and that