years in prison before certain information was learned and ultimately resulted in the dismissal with prejudice of the charges the criminal charges that were against him mr west is here today to seek justice for the wrong conviction and incarceration the standard of review is the novo since it was dismissed by the complaint counsel i have a concern about our own jurisdiction in this case can you tell us whether the appropriate notice was that whether whether that would be an equitable under the circumstances they did get notice of it by the complaint i want to be ultimately did do that your honor but i can i can see your point on that issue i'm going to i'm not i'm just stating what i think two series by which you could cure that one of them is to say you sort of got your place in line in the district court and then you go exhaust you found something in one of the under the law and what do you have support the tolling argument we do have to support the tolling argument that agent board when had concealed this information and ultimately he was found out and told the united states what he had done and despite the fact that mr west was in prison during this time the united states did not come forward and let us know what had occurred here that there had been the sequence of events would be you present your client's claim to the agency then come back to this record once having exhaust that and then make the equitable tolling argument on that point well regardless it shouldn't have been dismissed with prejudice you know there's a big difference between allowing us to come back again and dismissing it with prejudice on certain these lines because we do believe that is that is very critical to what's going on here that these claims should have been dismissed with prejudice if we didn't exhaust the administrative remedies that should have been a without well then there's no jurisdiction over him or that claim is there now there shouldn't have been but the court dismissed him and it was kind of some extraordinary things in this case and we don't think they should have dismissed it with prejudice nation of done anything with mr  some and yes you certainly can but i assume you would be relying on the actual notice you did file which you claim is within the appropriate statutory time yes yes and we would likely dismissal without prejudice with lead to a that that was an intentional infliction of emotional distress and it was a continuing violation of his rights and then in fact mr west suffered greatly by that he went in with one hundred twenty i q and came out below up substantially below average and he has been claim against the united states i think that's correct your honor so that i should have been dismissed against the united states with quite a yes now i mean i was completely taken aback by what we did but there this well you're actually that's a that's a wonderful segue to the rest you dakota argument that we raised before one does not apply to those cases that were decided in west  district judge said you and i draw your honors attention this is three court decision of federated department stores versus my white four fifty two us three ninety four and powell overseas holder which is this court's decision in two thousand and eleven six sixty nine after nine eleven are these cases referred to either in twenty ha or in the briefs no they're not your honor i anticipated the argument after reading plaintiff's reply and what they stand for the courtroom aware of these cases unable to look at them and study them it makes it difficult for any of us to follow along so you can talk but it doesn't advance the cause it doesn't give you pause and counsel a chance to good to respond so evil for this is just the night before and lawyers say that to me all the time oh i only discovered last night so in the days when we actually had people come here on horseback then  reflect a change in the law at all like what in west one the court correctly held that counts in that case four seven eight and nine which are identical heretofore seven nine and ten on was a joint task force your honor so the federal the feds and the local police were working in concert for this gang task force and if you if you know and there was a dirty cop on the fe any statements were less that that he knew of the affair if you read the the transcript for the post conviction relief hearings jeffrey jacobs testified that he was unaware of the affair until the indictment and investigation supervisors and the f b i many of the claims in the s f ninety five that wasn't submitted until august of twenty thirteen were determined untimely in an initial motion to dismiss and that matter that matter has been adjudicated in favor of the united because they arose out of the same corpus the same cause of action the judge in west of one determined that mr west became aware that those claims accrued especially the false arrest  imprisonment at the time of his conviction under arizona law as to the knowledge of mr gordy ones most would have been wouldn't he have been bugged by houston this  is no hack only applies to the malicious prosecution and that was addressed both in fact case and in this court's appeal so those cause of actions were never deemed on timely those cause of actions were remanded because they will they will  claims correct your honor hack only well i don't know if it bars hec allows the malicious prosecution and those claims to move forward because it requires the invalidation of the underlying conviction whereas the wrongful arrest and false imprisonment claims under arizona law accrue at the time of the conviction which would have happened in two thousand and three in this case now mr gordon was indicted in two thousand and eight may twenty eighth two thousand and eight july of that year is when mr west filed his petition for post conviction relief citing the false statements in the indictment and this was raised in our appeal and in the matters below so he was aware of these false statements under getting back to the rest judicata we don't even need to address that because those specific causes of action have already been adjudicated by the district very want to and affirmed by this court in this court need not look at them again much go back to the colloquy that we've had with your opposing counsel if we were to dismiss on the basis of lack of jurisdiction is it your position that i don't think my position your honor would be i don't think you have to dismiss for lack of jurisdiction of the case law cited in the government's moving response of papers judge snow in west who was well within his right to deny leave to refile if it if something is untimely and cited on page nine of my brief judge snow's decision as to when a claim accrue to the factual determination for jurisdiction and what he did is he cited this court's determination from west one that those claims accrued at the time of conviction which was true two thousand and three at the latest two thousand and eight and the claim wasn't file and the the actual notice which resulted in west three the claim initiate in february two thousand and fourteen did not include the counts which were dismissed with prejudice they were entities involved between mesa and the us government additionally the theory of equitable tolling does not apply to the claims necessarily against the city of may so that is not a federal claim type of situation where those those equitable tolling arguments come in arizona is a little different standard and different things to be addressed under those circumstances your honor since those were all dismissed as uncommonly well so i thought some of them were dismissed on the were dismissed on the merits but most of them were most of this cases been dismissed as untimely the theory being that he had to file while he was in prison i guess which was difficult and mentally ill russian ok thank you