cats so let me tell you my problem with this case history i would really like you to win it one day when he acted perfectly reasonably sending it in time to get there by express mail  appropriate to give deference to it the board never had the opportunity to apply that precedent so certainly i think the case should be remanded to the board and let them make that decision in the first instance based on their own intervening precedent we're happ important in this case what i found is that on march twenty third two thousand and nine a federal express cargo plane crashed in tokyo japan and the cargo burnt in the pilots were well you know you really don't have thirty days you have something less than thirty days you can follow it on the eleventh hour or at the last minute they use different language that suggests that understand we don't speak for each other we don't confer beforehand but i disagree with precedence and i think that would be appropriate when we ask them to do exactly do you really mean it is that the question form well i think what we'd like well from our point of view what we'd like to do since they've announced this is that this is the precedent decision we'd like to be able to address it more decision and it's attached the government's brief what you can see is the board and i'm going to flip through it quickly they only retain jurisdiction over the time when this issue that's already decided they didn't look to whether or reviewing this court i think it's kind of disingenuous because we've never had our forum to make our arguments it was kicked out of the time of this issue we did not appeal that first decision from the board we found the most to reconsider added the evidence from federal basically done everything right and it was just threatening to fall to the u s post offices fault that they didn't comply with their own promise to get there the next day well first in response kleinfeld i think that no that's not your section you mean there you're the state a claim upon which relief can be granted or later something like that fair enough your honor except that one we're dealing with the board's regulations and the board construing its own regulations which is a different more deferential standard because it's the under our it's not it's not even a matter reasonableness it's what it is whether the interpretation is contrary are inconsistent with the regulation counsel i asked mr stand what authority does the board have to consider an untimely notice of appeal that i think would be a legal question and so there would be jurisdiction are twelve fifty two eighteen if if that if that's the  issue here then i think that there is a there is there would be jurisdiction bite in the in the opening brief i think the the argument seems to be that the conclusion seems to be we've demonstrated rare because and this goes to the point i wanted to make it at first that is interested and the time in this issue and i'm i'm wondering if you're claiming that the discretionary decision at not to treat the un timely misses a rare circumstance is case in point but they love a good versus going salis a second circuit case and grass versus gonzales and a circuit case really recently so hold we have someone published opinions that so hold but i'm just i'm really confused by the government's position on this it's seems like you're saying that even though the board in order to get here and exercise discretion that we still have the ability to review the issue of the case as well we don't get to the other issues i think that that's i think that's correct i think if the court to look at what's going on here in this case the the board's practice manual  because she likes to close up the office at four twenty five instead of four thirty or can just ignore her coming in for twenty nine kenny because he couldn't end that might in there that might be one of those rare circumstances the board down the road could pick consider if it's delivery you can't remember if this one is fed ex or postal service express mail but either way but in this it would be the same result your honor if it was if you were spending and took it to the court of appeals from a district court decision and you got in one day late well he's a criminal alien and we're going to look at those facts none of those facts were looked at in their decision so i think it's premature i think we're to find just at the time when that time when this issue of what i did there was no review of any of this by and i j petition for review was based on the march thirtieth decision from the board on the timeliness and that's all you're saying that even though it's a jurisdictional issue and even though it's on the record you want to say just forget all that as far as your section is concerned we want you to focus on this