morning your honour's may please the court my name is stanley pena koski and i represent the petitioners who are all united states military veterans or the surviving spouses of veterans the veterans administration had a duty to assist veterans in developing the facts to support their is an orange disability claims the v a however did not perform a studio instead the v a threw up a roadblock in the form of the each an orange program guide and it did so without conducting the notice and comment rule making that the a p a requires after more than three decades of litigation this court can finally remove that roadblock so that veterans and their survivors can pursue the full sc congress has authorized this court should grant the request to release for three primary reasons first the petition is timely under tolling principles second the agent orange program guy was  substantive or legislative rule that was required to be but was not subjected to a p a notice and comment rule making and third this court can and should order the department of veterans affairs to open for passed therefore at that time the only limitations period that could have governed the filing of an action was twenty eight u s c section twenty four over a twenty plus years then pass and this court in existence and you had a place to challenge it your honor it is correct that in one thousand nine hundred eighty eight exclusive jurisdiction was vested in this court over matters like this however at the time there was strong evidence to believe that the conferring of exclusive jurisdiction on this court would not the fact existing district court cases there are statements in the legislative history to that effect the which this case lay dormant for so many years and without you are so if somebody pressing at it trying to do something to get it moving perhaps as gentle as suggested trying to move it over to this court but it seems like that might have been the natural effort by the plaintiffs in order to get this case right now you're honest there were several options that were theoretically available the plaintiffs pursued some of those options and did not pursue others at that time the plaintiffs did try to get the case moving again in the district court through the periodic filings of papers that updated the law in fact through a motion to expedite the proceedings they did not take some of the more extraordinary measures that the government now suggest that they should have such as going to the d c circuit to see appellate mandamus and that is for understandable reasons given that their case was going to be presumably that govern parole board the terminations that did not dictate the outcomes and which expressed the left intact a formula of a formula that allowed consideration of various facts and circumstances but which focused the decision makers attention until one particular fact above all others and the d c circuit in that case said that the reason why the rule was substantive is because it narrowed the decision makers of vision and that is exactly the situation we have here in acting a presumption for clear acne on the one hand going in a favorable direction for veterans and all other types of disabilit of any other known category of disease now that does not as i read it based on its face say that you're not free any claim it isn't free to come into an r o and say well that may or may not have been true and as of april of one thousand nine hundred eighty eight but here's a study or here's my evidence of why i i can show you that there was causation and the rest of the rule seems rule statement whatever it is seems consistent with the notion that in each of these cases usual employee of the normal proof requirements and procedures that would be applied in any other case i don't see that's as erecting a presumption at least on its face your honor you are correct that the except for correct the statement on its face does not establish a definitive standard and arguably does not even establish a presumption on its face you are also correct that inferi the claimant would be free to present other evidence however you could as we argued in our brief you cannot look at that statement in isolation and above all that stephen these to be viewed against the backdrop of the veterans administration zx duty to assist claimants in developing the facts of their case if we compare the world that we had under the program guide with the world that we would have had but for the unlawful act of the program guide one of two things would have happened either one there would have been notice and comment rule making where the public including veterans and organizations that assist veterans would have been able to bring to bear in the v a s rulemaking process the many scientific studies that existed at the time strongly suggesting a link between agent orange and a lot of the disabilities of iraq can lead very upset  that there certainly were studies linking dioxin with disabilities but i didn't see much at all suggesting the relationship between herbicide which it minutely has a small certainly potentially damaging but nonetheless small concentration absence so when you say it lots of studies linking agent orange with disabilities set aside for a moment the studies linking dioxin with disabilities and about what the state of the science was at the time and however one would characterize this studies that were available during the early part of the program guide era i think that it is clear that not only could there have been a different outcome if there were no succumbing rulemaking but there also could have been different outcomes in individual cases had veterans administration adjudicators instead of applying the program gu and actually perform their duty to assist the claimants or you in identifying these you are complaining about a lack of what you call proper rulemaking or about this particular program g honor it is correct that it this point in time the issue is whether the program guy was unlawfully probably gated and therefore what impact that has on claims and i go to the program guy and the time then the timing is of you raising it in this court yes your honor and i having difficulty with the the grier formality and the degree of that which the this and said you know agent orange is is is an upcoming to a group of veterans service organizations and said you know we recognize that age in our news and upcoming issue we are we stand ready to adjudicate claims regional office represent representatives your honor in that case i think that we've moved much closer to the effect of provocation of a substantive rule that required notice and comment rule making because that would have been a situation where the ultimate boss of the adjudicators was was telling them this is the official emergency view on the state of the science and the message that the adjudicators perceive and there's there's a declaration h j a one forty seven from a former supervisor of regional officers who said that this was in fact the way the asian origin program guide was received it was a message that you don't need to make individualized to terminations on the state of the science you don't need to assist claimants in actually developing the facts supporting their case in compiling the studies rather the way that the message was received by the regional officers was claims we deny everything else and there was no evidence in the decisions that the juda cases were actually going out and helping claims to develop this evidence obviously at that time the  internet was i mean available i'm having a hard time i mean it's almost like i am reading this to almost say the repurchase of what you're saying i mean this this program guide explicitly says each case what we receive  if anything this goes beyond what they needed to do i think in terms of instructing people that there is a duty to assist so that's one point in that if you can respond to that but also my second which is if i'm an adjudicator and i'm seeing something at beyond the date it wished it was issued right your honor based on the language alone one might be able to draw that conclusion however we have not not only they've broader contacts of the program guide here in terms of a series of mandatory statements but we have the evidence of what the adjudicators were doing after issuance of the program guide even as these scientific studies suggesting there may be a link between herbicides and these types of disabilities was mounting we don't have any evidence of the adjudicators changing their behavior as time went on to actually assist the claim in compiling these scientific studies instead we have again to form a pattern of grants for correct me denials for everything else that they don't mention any of the scientific evidence and we also have the declaration those were individual cases if there was a challenge and there was strong scientific evidence then one would assume that going down the pipeline of you those petitioners would have prevailed on the merits of their claims right your honor they would not have prevailed on the merits of tho claims if they didn't have sufficient evidence to meet the standards for service connection and one of the reasons why they didn't have that evidence was because the juda cato's were applying the veterans administration official why did you do about the state of the science rather than taking into visualised approach but not only required individualized decision they were accepting you have to read this as they were accepting that one sentence but not the other claim is that develop the scientific evidence and service connection and to consider that that is correct they were not applying that sec in very general vague statement in a way that would have improper here they were instead applying the first more this court would be applicable to a regulation review of a regulation that is no longer in force and why isn't the right way to approach the problem to say let's look at the individual cases that we think were incorrectly adjudicated pursuant to what we think was an incorrect application of the rule or perhaps you know an over reading of the language of the rule whatever right  rather than say a let's attack the viability of a rule which is no longer in effect i know of no other cases maybe there are some but i know of no other cases in which we've exercised this rule review with respect to a rule that's no longer in effect you're out of the reason why this sort of rule review is proper is because section five are to press the score the jurisdiction to review notice and comment rule making had not been employed then we would be able to say well the rule is no good but the rule is no longer in it in effect and it seems to me all we're really talking about now is the past possible effects of the rule on individual cases which is ultimately where you are looking for relief why isn't seeking to reopen those individual cases the way to to what we've argued in our brief and as we noted this court has decided already i'll be at an anon presidential decision twenty four zero one a should follow the same rule as twenty five one which the supreme court resists is a civil action commenced against united states right but the supreme court seems to have consciously limited itself in the breadth of what it was saying to an instance of a statute that it itself had said repeatedly was jurisdictional and not subject to equitable tolling and to have pointedly said nothing about the applicability of that principle as a matter of analogy to other statutes which seems to a is very old such a limitation in fact i think it predates twenty one which is what makes it a little odd that the court has never had occasion to address it does it may just never of come up certainly early in its history twenty four a one day like most states in its predecessors like most statute of limitations against the united states was considered mandatory interest external per for many decades after earl and i think there were some differing opinions in the read in the circuits and some circuits still considered did not i'll admit the president is still unclear out there today on that but after sand i think the trend has been to follow sand particularly big because of the age of twenty four along the way and the language in twenty four one a which is this court course but if they were reversed they could reverse on the ground that i gather was was the subject of discussion at the hearing the argument in henderson on the ground that there's a difference between a court to court statute of limitations versus an agency to a court statute of limitations in which case this would fall on the agency to court side and therefore at least assuming the court adopts that distinction be subject to equitable to well i'm not sure that i would concede that your honor i would concede that obviously for seventy two ninety two it's a different it's a time to review statute but what they decide in henderson is about an appeals period and i'm not sure that that would affect the underlying  determination of twenty four a one a because twenty four a one a is not a agents it is not the type of statute that issue in henderson it's the same kind of statute that was the issue at issue and john are stand it's a statute of limitation from bringing an initial claim to a court now in this instance it applies to a petition purview instead of a normal complaint but that would be the same instance for a p i actions in the district court and i'm not sure that if seventy two ninety two is subject equable tolling because it agency to court that that would affect an interpretation of twenty four a want to a as applied in the district courts but again i recognize that this is not except for the fact that this court has decided in a non presidential decision which of course is not binding but certainly evidence of at least three judges view of the statute that that it is somewhat o unclear issue but we think the better reading a twenty four on a is that it's mandatory intersectional such a limitation we're moving if we could to that to the substance of of the  category of cases in which an agency must undergo notice and comment which is another way of saying what's the category that is excluded from those categories that are excused from the notice and come it explicitly in the in the a p a because i find that distinction to be elusive to say the least i just want to get the government's take on what is the category of cases in which notice and comment would be required i think the government's position is notice and common is only require if it except x if it affects substantive rights of the parties and that if it interpreted or merely providing information or guidance or the like that that's based on its statement of what the state of the science was right that's the that's the view i think the government disagrees with that you have based upon the entirety of the language and in the program guide i think that what they're asking the court to do is to pull out  phrase in the first in the second paragraph and say this establish presumption but if you assume which i think you must that the v a adjudicators didn't just follow one paragraph of this they followed all the paragraphs and indeed they followed all of the program manual itself which in its forward notes that it's not policy me making well is that assumption overcome let's assume there were evidence on the other side they got they got a representative sampling of all the into the caters during that six year period and they all  we construed this based on the general sense of how we're supposed to do things around here and we construe that sentence as being you know really strong guidance to us about how what we should do would that be sufficient to overcome what you're suggesting  no i don't think so your honor because i think what's important is whether the rule was intended to provide to be some kind of substance or rule limiting people's rights or providing the presumption not whether some adjudicators may not have followed it the letter but again i don't think that there's any evidence of that the fact that we have this one declaration from this person to me is not enough to outweigh the fact that this this rule specifically says you have to develop all of the evidence thoroughly in this case  but beyond that this is one page in a in a several hundred page program manual that itself notes that it's not policy me in and i'm it's not meant to be binding in that sense it's an informational got it's basically how to manual for the rules and regulations that are subject to notice and comment are another point on that really gets to the facts of this case you know we absolutely can see that the issue of agent orange was has a very difficult and troubled history and certainly during the late seventies and early eighty's there was a lot of dispute and debate and contention about how agent orange claims should be treated within the v a but the i think the most likely answer for why everything except for acne was denied as the answer we gave in our brief which was there just wasn't strong scientific evidence that would establish a direct causal connection between agent orange and a disease and it's really important  remember that that was the standard at the time to show service connection from one nine hundred seventy eight until the liberalizing law in the dioxin act a veteran can just show some correlation between agent orange and their condition they ha become service connected so even without this rule of the veteran to and probably have had a very difficult time showing the direct causal connection because at the scientific studies that are referenced and the like do not show a direct causal connection you refer to the issue of whether the promulgated the program of whatever is binding or not and i think i have always found that very unhelpful because these guides typically are pretty binding i mean what they say is here's the way you go about it judy getting these cases you do x you do what they're not saying do it the way you want this is one suggestion is how you may want to do it in fact this very night has this this very provision and several certainly mandatory sounding directives that can't be the teche can it because as you know manuals typically are just  what it really should be is the specific rule has to establish some kind of new substantive right or limitation or like and i do agree with you that this has some very mandatory language in it which is now you know every claim has to receive that there are development of all  regulation and saying you know there's this new issue out there or agent orange exposure you're going to get some claims on this here's what we know to date here's what you should do that doesn't establish a new rule it's telling that you decatur is about a new issue and what their obligations are under existing regulations and rules that is just isn't the kind of substance that rule should be subject to notice and comment rule making and if i could turn just last the relief issue because i think that's really critical here too it seems to me that the petitioners are asking you to through a five a to challenge which we think is untimely that it in any event even if it is of the untimely end of twenty four zero one or rule forty seven twelve well it certainly entirely under rule forty seven twelve we didn't make that argument because i think as the rule of the core i think you're permitted to waive your own rules when you the government's view is that even if you disagree with us on the statute of limitations even if you disagree with us that this is not a substantive rule the most you can do is say this rule is invalid and it should not have been applied in any of these cases you should not extraordinary at least that's not warranted here when they do have an avenue to get the relief they're seeking albeit we recognize a difficult one but if what they really are striking down the regulation of the queue claim i'm trying to think that and what  need to do it i mean you're saying the alternative is to claim what this have any effect on the you know i don't want to state to speculate what's going to happen in each individual case because i don't know what the evidence in each individual cases if it is has petitioner say that this rule was being implied as an inflexible presumption and if in each individual case there actually was evidence of a direct possible connection between an underlying condition and agent orange that was ignored because of this rule then they could make out a q client potentially but that's to be decided in each individual case for this court to when the finality and say these claims should be still considered pending as of today and get the more liberal laws and the law as it existed between seventy eight and eighty four i think that that's still in permissible because these are final decisions and this court has held that even if there's grave procedural error which certainly if not following those and come out rule making could apply to that that's not enough to create a judicial exception to finale and congress has created two methods to challenge final the a decision and that's either direct reopen most of the petitioners in this case ultimately did get service connected benefits by reopening their claims under the more liberal eyes and what's what they're trying to get now we're talking about is the additional incremental no clear indication in five of two but the better rule would be that it doesn't because the purpose of five o two is to subject decisions of the secretary to review under normal a p a standards before five zero two some of the district courts would allow a p a action some of them wouldn't either to created a procedure but the whole point of that is to for in place ongoing rules and regulations to subject this court's review to a regulation that hasn't government's view of twenty four on one hand i think it would have been too late six years after the ruling in place so i think mr block is in an unfortunate situation although would note that mr sorry not mr block mr block actually ultimately that mr mr burns who is the only existing mr block if i'm reading a cartridge is not one of the original plan it's mr burns that's the original plan up mr burns is the only one of the individuals that i believe has actually never shown service connection for agent orange even under the more liberalizing law so although yes he may have become time barred as a result of congress's transfer chang the day that this court obtained jurisdiction under five or two then the timeliness question would be wrapped up and then totally equivalent to the question of whether this court would have jurisdiction over preexisting regulations going back and i said there's no presidential decision on that and there's no indication of a two there is well there's a non presidential opinion out there but it's not really suitable so for these reasons and the reasons for bringing the petition her should be thank you your honors early to make four points in response to the government's argument first it is not petitioners who are simply taking language in isolation rather petitioner's argument is that you don't need a smoking linguistic gun to show that something is a substantive rule this court in paralyzed veterans of america said that the definition of a substantive rule is broad and it's clear from this court's precedents and the such precedence that one must look at the entire context and here when you look at all of the facts and circumstances starting with the language of the program guide stemming through its context the state of the science the abrams declaration and actual adjudications the most reasonable conclusion is that the asian origin program guide was the substantive rule actions speak louder than words second your honour's the government says that the petitioners would have had a difficult time establishing a direct actual causation but that was not an insurmountable hurdle at the time it did not require conclusive proof and when you consider both the veterans administration is duty to assist claim situation where a football team is trailing in the last few minutes as the ball on their own ten yard line and they're facing the greatest defense in the history of football on the other side and then suddenly the referee says you know what i'm changing the rules it's a fifty eight minute game the game's over and then when the team complains the referee says well you wouldn't have scored anyway well the they might have swore and at a minimum they were entitled to an opportunity to do that your honor is related to the equitable tolling argument related avenue for finding the claims of its timely would be an extension of this court's decision in bright and finding that class action tol applies here to extend the limitations period on this this case was originally filed as a class action in district court and the disher court never ruled on the plaintiff's class or if occasion motion the supreme court in irwin referred to that american pie principle of class action tolling is admirable tolling this court has since called it statutory class action tolling under under either rubric that would be another route by which the petition is timely and finally may still need to prove their claim under the substantive standards that were in existence at the time however they would be able to do so an income were by the unlawful rule of agent orange program guide but i ask you one question about is there a way of looking at this case as if even though i reckon i was not transferred and it was refiled in effect in this court is the way of looking at this case as a single ongoing proceeding in which congress head directed that a new and different court not in existence at the time of the original pleading and therefore not subject to six hundred thirty one  acknowledge the on availability of sixteen thirty one but nonetheless anticipated that the case would continue in effect in a different four and therefore that we should respect the judgment of the d c circuit with respect to its expectations of how the case would continue your honor it is possible to view congress intent in that way it's very clear that congress had intend that cases like the one that was pending in the district court should continue to be litigated after the passage of the v j r a the legislative history indicates that they believe that that should happen in district court however the d c circuit apply in the supreme court subsequent decision in language have reached a different conclusion but i agree that it would be consistent with congress's fundamental intent in knocking the v j ouray that this court now decide the petition for review we're now having spun out that theory i'll ask you that perhaps an unfair question is it is there any what's the closest case let's support for this very that i propose to you your honor i'm not i'm not aware of any any case law that would speak that directly to this circumstance i think that's probably hollandia to by analogy to this sort of situation i'm looking for something in the law of the case type principle that the d c circuit in effect handed off the case even though it didn't have the statutory power to transfer your honor i think that the principles of of comedy and law of the case would certainly support that type of decision here ultimately i agree that it needs to be anchored in congressional intent and