court's transcript to prepare for today and looking at the district court's cork's records i want to make a factual observation that i think underpins each of the three arguments i attempted to present quickly and not one of which was replied to now this is an individual who for some reason great deference was given by the district court in way and has sworn testimony that he did not receive my one letter in the period that the administrative claim was open between march ninth one thousand nine hundred nine and march ninth two thousand and one there are in this court's records ten communications to the tru h not one of which he admitted having received not one of which is replied to after the claims period closed and in your record you have one two three four you have six communications from me to trivial griffen not one of which was replied to the lawsuit itself and this is not in your record but it certainly in the district court record was served four times without an appearance until in order to show cause was issue if there is a lesson beyond using fed ex your honour's it's that the postal department if it wishes can simply say i didn't get it that's all they have to do be it certified mail or anything else all they have to do is deny receipt the simplicity of their position i hope is underscored by the simplicity of mine if i hand all letter to the post man i have delivered it and i recollection of the method of delivery when you said mail and i didn't know whether this kind of case or not what you're representing to this is that if you're entitled if you get a chance to put evidence on you can prove at least you're offering evidence of a specific recollection not just a course go into further detail i point out the number of instances of communications with mr griffin and point out to you that it's that it's contained within the my letters as well  actual claim form ninety five from a royal is that the golden eagle in terms are contained within the transcript that you have i believe this shows more than a presumption of mere negligence th that the district court seemed to find i think it shows an attitude of of contempt it shows and a conscious disregard of repeated submissions of a claim on what ought to be a fairly straightforward matter so good beyond what i've put in similar deference ought to be made to officers of the court women make when they make a declaration under oath we're putting our license on the line and we're saying that a specific incident occurred and i i don't know that that should n i will point out i noticed in the district court's log yesterday i noticed that there was a letter returned to the district court addressed to me marc addressed the unknown we wanted to have you discuss this was a federal tort claims act case in which the attorney that i think yours that form ninety five had been sent  the post office employees sign that gratian is that they didn't receive it and we have all that was no jurisdiction and the case seems so close to the case the day before the two your the two year period ran and i remember the court deciding whether forty eight hours was enough for it to get from the mail box off to the secretary of the air force or the f a a there was another one where the issue had to do with the subsection of the of the claims act that said that if it's if a claim is delivered to the wrong agency so that agency shall transmitted to the appropriate agency forthwith that you can you can maybe you could read that during the time i think he's offering to sit down now and i will thank you very kindly hear from the government at this time i take it you got the order apologize to the courts of to the judges of this court that is the bailey case the case that was cited in this court's peppery sex order is controlling relevant authority and i failed to find it and i just didn't cite it and i think it is absolutely control and there is no difference in fact if you look at the facts on the bailey case it is a step more sympathetic to the plaintiff it was a wrongful death case and bailey and there was a lot of communication between the agency and the and the plaintiff in that case and yet the administrative tort claim was one that just simply was not received though it was  anything like this case there's at least the allegation claim that there was a long series of communications between a representative of the agency and the attorney for the injured party yes you're right if you look at the dissenting dissent opinion and barely it goes through in the footnotes there about some of the communications that were that were gone through and the dissent points out this is  a case in which there was at least one letter that was clearly received by the agency that said in this case of this letter should complete the file for all three plaintiffs related in in all of our litigation and yet that was not sufficient even though the agency admitted acknowledged receiving that letter it was not sufficient for the plaintiff to overcome the burden to demonstrate that b s f ninety five to one communication with the some certain and putting the agency on notice was sufficient for jurisdiction bailey involved the agency my understanding is that there was no there was an affidavit submitted that at least an affidavit submitted that there was that it had not been received and nothing else i'm asking mailbox rule applied to federal tort claims act cases do you think the mailbox rule should apply no your honor in this case the plaintiff has so many tools  troubles me is that it's simply simply a battle of affidavits we don't now there are no fact there's no fact finding on this issue normally it would be a clear case where we would require an evidentiary hearing why should we require we're dealing here your honor with a twelve b one motion affidavit should be sufficient and in certain cases perhaps they would not be but here there's nothing to suggest that there's going to be additional evidence that's going to be developed there's nothing that's going to get to tell griffin to say yes i did receive the affidavit here we have an attorney who said i put it in a mailbox and we have the person to whom it was addressed saying i didn't get it but normally it will be there just no disputing that well the one in twelve b six we have to be careful to look at the difference between them in twelve the one you're looking at the facts and this court should reverse it only if it finds that there is a clearly erroneous resolution of the facts by the district court here the district court looked very carefully at the trudeau griffin declaration and very carefully at counsel's declaration and went through line by line you should find only if that that and the analysts this was clearly erroneous that the district court made a mistake clearly around the clearly  claims there are facts that are being found here your honor under twelve b one and i think actually one of the cases the eleventh circuit case that this court cited actually points out the difference between the two and it's actually an interesting place to look  to to see how the the enter play may actually be resolved but in this case which getting back to my question which is on a twelve b one i just record can make factual findings on the basis of an evidentiary hearing and i didn't articulate whatever reason factfinder may make facts but it's often difficult to make factual findings without any sort of evidentiary hearing on it and the question is to me is there enough in the record here to just find evidence or hearing and i'm  yes but that's why i'm in this particular case or that we would just argue that there is no conflict between someone saying i mailed the letter and someone saying i did not receive it both can be true and in fact in this case when you have a consistent number of letters being written saying is anyone there at some point or at least four letters that are sent to trudeau griffin where there is no response at all we can almost presume happens from time to time that is true but there's nothing in the in the record in this case to suggest that anything like that occurred and of course the plaintiff may have requested an evidentiary hearing or is more something more but really the argument that was made in the district court only was i mailed it that should be sufficient why why under bailey with there being evidence your record bailey is clear if there's an affidavit says no that's it i don't quite understand what an evidentiary hearing would give you the two places that the c f r requires received those are the words bailey interprets received as a person having it and on the same facts they leave that the post office representative affidavit was correct even though the defendant said he mailed it now i don't know what an evidentiary hearing would tell you other than that exactly in this little different direction they've decided there should be a mailbox rule two other circuits plus ours and three have indicated there is no mailbox rule is that your are you ready to state for the on behalf of the united states government that you're ready to adopt a mailbox rule certainly not on the instances like this one where there is any evidence of method by the government acknowledging or stating non greasy no your addressed only that aspect of judge nelson's question in which he says is there ever a case where there may be an evidentiary hearing and in the appropriate case i don't go so far here is to say it never happen but clearly in this case where there is evidence submitted non greasy and it's an rebutted there's no reason for an evidentiary he i just wanted to take a moment to comment on a couple of other things that i heard as far as the additional communications with the government and the district court's order to show cause the record will reflect that that order to show cause was issued before the government was under any obligation to file a this month pleading this is because the government has sixty days not thirty years the typical defendant does and so when i received this case after thirty days of being served i also received an order to show cause from the government why we hadn't responded it's time was not even there the time had not expired for the government to respond  not only that but there was also not no service given to the attorney general so even if the government only had thirty days we were under no obligation to respond until another until the attorney general ha also he claims that there were no communications ever admitted by two dell griffin to dell griffin does say that she received something in in june of two thousand and two and she outlines in her declaration on paragraph seven that said tab forty two the communications but she did ultimately receive that it's not very specific as to when but she does acknowledge receipt of certain communications it's just not that there was a timely receipt of the s f ninety five that plaintiff claims that he mailed if there are any other questions i don't see any thank you cancel thank you barely case is i do recall it well now that you've had a chance to fill not terribly well but i do recall the case and my recollection was was as yes it is sort of the it is the rule i agree of the was both deposited to and received by united states postal service it did not have to go to any other agency the burden of the government wishes is seeking to impose here is is to show that the claim was received by a man or a woman one through dell refund and that's not what what is required by the regulations or the code it's required to be received by the agency and my position is simply that when it's the post office the post office box elevated consideration trudeau griffin admits to receiving some correspondence from two thousand and two that there would be after a lawsuit was filed and two years after i wrote to him or her thank you very much