of clear and unmistakable error to exclude intervening interpretations of statutes and regulations based on their plain meaning cannot be salvaged sir i'm sorry could you st address standing by i see i'm concerned about under the clear holding of da da against over that crime with the current status of the that claim as i understand it it's received an initial decision which has some believes is erroneous we do not represent mr hazlewood before the board and we don't know exactly what he believes of the erroneous about his claim we haven't looked at the medical records or into the briefing or anything like that although you know and as far as i know  he is not filed a cute claim because he doesn't even have finalmente on the initial claim is that fair to say that correct ok so what is the theory of the harm as it relates to finale was not a requirement in the standing holding of go over governor said that standing with established because the veterans were quote personally affected by the sea rules and quote have valid concerns about the effect of the rules and their ability to challenge the existence of this regulation is his harming him and harming his claim for a higher rating for mr headley is harmed because if his decision becomes final then attempt to employ in a q claim should in fact his initial claims go final and him not being able to get as full of the benefit award as he would like again your honor we don't represent mr hadley before the board and we don't know the particulars of what he believes is incorrect about his decision and we haven't looked into the medical records or the briefing all we know is that he believes sincerely and as attested to in our evidentiary submissions that there is  error in the decision to see rule for closes a congressionally established avenue of review for that c rate and under the clear holding of speed with all due respect of the pounds on the nature of the air law regardless of a change in the law the regulations of the bar that your honor mr haley is injured because of congress have foreclose an avenue of redress to which he is ask a hypothetical i assume you reengage on the basis that go over didn't didn't exist correct or that's concisely the question or that's exactly the question that judge chin presented to you perhaps you didn't hear with mr shulman what confuses me is that you came right out of the box admitting you don't even know the the details of what his claim is and what his current theory is on what the possible error is so i mean we have no idea whether he's going to in fact get relief in this initial claim and then if he doesn't we have no idea if he's going to file a q claim because of that and then if he does file it you claim we have no idea what the basis of his theory of clear and unmistakable error would be because of course we don't have a finality yet the initial decision which would have the the alleged error in it and so we don't know if that you claim would ever be premised on the notion that the initial v a denial was based on an interpretation that later got reversed a court i mean do you see the the contingent events that are all linked up in a long chain that make this feel somewhat tenuous or do you not claim or even have a i'm trying to figure out whether he even has a theory for for how this regulation would ever be applied against him well for example on laidlaw your honor once the his decision becomes final is enough to establish injury in fact in about article three standing then let me just make that make sure i understand right now you're telling me you're because you're not counsel for mr hayes lee and his benefits claim you don't and you don't have any idea what his theory is for what the da got wrong with his with their decision is that right that's correct ok go ahead and say whatever you want to say next received his decision in april of this year which is which is after the petition was initially filed and do we do we establish standing at the time that the petition was brought or after that well we argued for standing at the time the petition was brought on the basis go over the supplemental standing order did not exist at that point i believe the order said that any evidentiary submissions would be considered timely filed all question is open the question is open is the provider both the provider and canon and chevron are can is a statutory interpretation that are used to resolve ambiguities in statute but there is no single clear dispositive answer from this court on whether there is a hierarchy between the provider in canada and chevron and if so what that hierarchy is we think the best answer because it reflects i don't understand what you mean and we have  we have a variety of cases including both in the supreme court and from the circuit saying that the canons of construction apply if chevron step one to resolve ambiguity before any question of deference to the agency kicks in we also have a line of cases both in the supreme court and from the circuit did not i understand your honor is have question mr hastily standing and i believe that your honor is have it exactly right which is that mr hinckley does not have standing because he does not have a claim that's even remotely subject to q right now rather what he has is a decision that he is disagrees with from the v a and that is still within the period of time the one year period of time for him to appeal it to the board or seek other avenues of recourse hair as to another which which would necessarily even involve a decision involving another hypothetical claimant not just mr hayes laid there by i don't think mr hayes we have established personal standing i'd like to talk also about and the l s p standing and the l s p appears to mostly assert that it has rd party standing but it cannot establish pursuant to the factors that have been set forth in cobol ski by the supreme court that he meets these two rd party standing factors the close relationship and and the hindrance aspect and i'd like to focus mostly on the hindrance aspect here they and the l s p has not demonstrated that it has close relationships with many veterans that they are injured for protecting their own interests and i think the main arguments they make which is that the veterans system overall hinders veterans and that  rd party standing therefore there is no cause to to to see to continue with the merits of the case having said that i will of course address the merits i know we've already seen a little bit about organizational standing and i believe in the court's order it only asks about rd party standing having said that because i believe that work and the l s p did address organize organizational standing and it's in its supplemental brief i'll that shows how the cube rule has inhibited its daily operations in fact it has admitted that it is representing a felons that are seeking review and it also has not demonstrated that there has been a drain on the  directly tied to secure role i think the only specific thing that they point out is the only specific thing that they point out has to do with i think a screening cases but this is insufficient to show a drain on decisions to see whether to represent the veteran or service or surviving family members accordingly this is just part of its daily operations not been specifically affected by the cube roll so unless the court has any other questions on spending i'll just turn briefly to the merits and regarding the merits i'll try not to be tread on what we already discussed and the n b a case because of course that you will is an issue in that case as well and everything that applies to that he really seems to think that it does and i'll just quote that exact phrase from the statute that this word is used and that's subsection see where it states reviewed to determine whether clear exists in the case may be instituted by the secretary on the secretary's own motion or upon request of the claimant so the nature of the word exist here is completely divorced from whether the judicial interpretation will be the one existing at the time of the q assertion or at the time of the and actual decision in which he was being alleged rather we're just saying here that there is that certain party m initiate review to determine whether a clear and unmistakable error exists and that's to say that regardless of whether this alleged error is based on the record evidence so based on a factual issue or based on the application of law or even based on  interpretation which of course we don't think constitutes key to that error would still exist in the present day and that's all that existing care has nothing to do with whether the changes in interpretation should be applied retroactively to final decisions which  very much if not be finally i would submit in response to counsel's argument regarding the veterans cannon st that your honor was is correct that the veterans can and does not come into play during chevron's stuff one but i think more importantly this court doesn't even need to breach the issue of how the veterans can and is construed with regard to chevron deference and that's because again here we have binding precedent which governs this case and we have clear understanding from russell and go over which russell and berger which states that the law should be assessed as was the law at the time of the initial decision so unless the court has any further questions we respectfully request that this court either dismiss the petition for lack of standing or deny it thank you mr any chance in the past you came to learn what a department of veterans affair issue this you know protests of the wrong word to secret relief against this blocked avenue of redress just as the the environmental and animal rights organization peta had standing in that case because the agency action there actually was an action that was challenged was a general affront to its mission to protect birds i don't believe that any technical difference in the two situations it would add up to a clear q apply except where there is a change in law or department of veterans affairs issue or a change in interpretation of law or department of veterans affairs issue so that has always been part of this regulation even before congress adopted q and as i understand it adopted this very regulation and this regulation says you may not have q if it's based on a of relying on cue for a change in interpretation of law your honor a later interpretation of the law based on the law of plain meaning is not that sort of a change in interpretation of the law and i think this is clear if you look at russell apply except where there is a change in interpretation of law that's not has anything to do with the plain meaning change in interpretation of law we would say it refers to an agency  show interpretation i'm just saying it says change in interpretation of law which now you want me to read and change an agency interpretation of law and i'm just wondering why do i get changing the interpretation of the law the claim that the law is not and again i'll go to ruffle which says which you know gives an understanding of seaweed that the agency itself later incorporated into its later regulation either the correct facts as they were known at the time were not before the due to care or the statutory or regulatory provisions expand at the time were incorrectly applied when a court like in the situation the for copia goes back and says no this is what this term always meant it's plain that  an instance of something being incorrectly applied and that's the way by the understanding of russell and indeed by the agency's own understanding until it passes new regulation if actually trying to rule that out difference is that congress has specifically passed a sealy statute that allows for the retroactive award of benefits going back to the date they were they were awarded the supreme the congress ordinarily legislate against the ba time were incorrectly applied if that means anything it means that a later declaration that this is what the law always meant only only means that if you use the doctrine that says what the law was later submission and this court now goes into recess the honorable court is adjourned until tomorrow morning at ten a