with my colleague represent the appellant's in this case with the sports commission it will divide our time as follows i will be arguing the issues that are dispositive for both cases are nine minutes my colleagues will argue the issues individual free for case for three or the whole thing in that case was that when there was in that case because if dismissal and or failure to prosecute because the sovereign defendant refused to arm except surface and if the plaintiffs had other the marshal to deliver service on these or defended that case and the marshal refused to deliver the service because the marshal believed that he depended would not accept service in that case and the lawyer in that case failed to properly served good cause only exists if there is some outside factor rather than inadvertent or negligence what is the outside factor here that explains the repeated failure to to properly effect was in about ten seconds right i'm not sure how that's complex like there are additional requirements when you serve the united states but it doesn't seem to be either ambiguous or complex it's just additional requirements but we certainly agree that it is not difficult however it is complex and the fact that you have to identify and serve three separate individuals and that's what that doesn't make it complex is crystal clear what you have to do i can't imagine any lawyer reading that and getting it wrong if that lawyer was admitted to the bar you are it's certainly not excusing the lawyers below failure but why is my colleagues and pointed out the problem here is really just lawyers who didn't do their job well when you give us your best argument as to why the negligence on the part of lawyers in these two ca you yes your honor however we believe does that mean then that the individuals in both cases may well have a remedy your honor it cannot be the case that the federal rules remedy or  benefits that come from a plaintiff bringing their case in federal court there are also other benefits of having their issues heard of having their day in court that would be deprived if i think this were forced to litigate against their attorneys for malpracti so why i mean are these procedural rules should we read the federal rules of civil procedure to also be part of that waiver of sovereign immunity right therefore the government allows itself to be sued but only when people of federal litigation there is no indication in that statute that congress intended for an especially strict interpretation of the rules to apply simply because they were the subject of a lawsuit well i mean it's just so it is part of i mean if that is though i mean it is a war but passed by congress right and that is the way that the plaintiffs have to serve the government of any you know it could be that the government says you know we need this type of notice in order to properly protect our rights you know when we have waived our sovereign immunity to be sued your honor if congress had intended for that  file and they have the rules of civil procedure why doesn't the supreme court say in our own version of department of veterans affairs that once you noted states waives sovereign immunity it's subject to the same principles on timing statutes of limitations and tim would against the congress has already created a harsh and except for failure to timely act on their rights because after going through the e e o c process plaintiffs are given a ninety day right to sue letter so they must bring their suit in federal court within ninety to apply the heightened milan standard already applied in this circuit to avoid opening a circuit split with the circuit on that issue and because it's the appropriate standard to apply in cases like this one involving a minor breach of the federal rules that can be easily remedied by a short extension of time i am going to be addressing issues unique to the two cases grounds for reversal in the morsy case and grounds for personal and stevenson cases that are separate apart from the common question s morrisey there are two reasons there are two grounds to reverse the st that there was good cause to extend time in the morsi case and nd that the court abused its discretion the matter of law because the court drew an adverse inference from the which i think to judge rouse question is further evidence that the congress actually wants to keep these cases in court says that when partial service is affected under rule for i to that  because the attorney general has been served or u s attorney has been served all other parties who you are you are may end it you are you are given a mandatory extension of time to serve all other parties that must be  the court held that because this case doesn't fit that profile because he had served be named defendant rather than the u s attorney or the attorney general because he wasn't entitled to come under that mandatory extension that actually weighed against  there his conclusion to some extent however minor relied on that and that that because that's a legal error you would have to at minimum send it that way as like your honor faggots you're all right we think that the rule is absolutely clear and especially in can read in conjunction with the advisory committee notes to the rule that for eye for should not be read as a to draw a negative inference start just at a basic level it means that if he hadn't done anything at all to serve the government he would have been in a better position because there would be no factor made partial service i'm blanking on the other factor at the moment i'd like to turn to mr stevens and i think he has another he has another ground for relief here too that that's unique to him which is that if you look and this is very straightforward if you look at the december minute order the court issued dismissing his case the court says that he he is required to dismiss the case for failure effect it's timely complete service and makes no mention of any consideration of discredit his discretion to give an extension so that the minute order shows no evidence that the judge believed that he had discretion to provide an extension and a motion to reconsider reconsideration if you look at it he the district court extend view that an extension should have been sought in advance and that the failure to seek an extension in advance it puts the is a reason for denying any further discretionary extensions so further showing that the court is actually conflating two distinct concepts which would be the court always has discretion to extend deadlines except in very limited circumstances when asked in advance but rules for and good morning and may it please the court i'm matthew clover i represent the government and both of these cases in these cases the district court at every step of the way considered the facts that were in front of them the appropriate by the appropriate legal test and ultimately dismissed the cases and denied motions to reopen and for a hearing these cases are a result as mr lyons burke conceded of foot faults by plaintiff's lawyers below and now want to appeal they're raising new arguments seeking to do away with a service failure rather than a failure to prosecute where we definitely require war so a couple of points that your honor failure to prosecute is always a dismissal on the merits and so you know to invoke that rule you need to have actions in which you're acting on the merits and failure to prosecute just missile is a sanction rule for m contemplates that if you fail to provide service within ninety days the court shell and that provides to argue one program talking i should've been clear i'm talking here about the subset of cases where this is the end of there will be no merits where there is no time to refile i apologize but in this in this situation that seems like a pretty weighty factor in my view and prosecute is sanctions here there's you're always going to be able to say give me more time i could serve i don't know what a lesser sanction would be the failure to an order to show cause a fine so the rule for am doesn't necessarily contemplate at least i don't we get to contemplate anything other than a dismissal or providing reasonable time for service i suppose you could say if we didn't sanction attorneys who misbehave and that that may be the case that no matter you don't there are times when you don't have your i i confess i'm not sure i haven't looked at district court rules with regard to sort of what process are required for a monetary sanction or something like that and i'm not saying that they don't have those equitable authorities i just couldn't delineate what the test is for when you would apply what process you would might be do before monetary sanction but on this i would also i apologize i interrupt you well in all different forms of attorney negligence including fail failure to prosecute by service where we have required a higher showing before we dismiss at least when we know that's go grounds and the federal claims on the grounds of a failure to effect service in one hundred and twenty day period the district court there considered the statue of limitations among other factors and decided that the fact that they had waited till th day to seek out a process server and the attorney explained his client had moved and the district court said well you didn't make an effort to you know stay on stay in contact with your not liking case where they had a full opportunity to brief the issue to the court they had a full hour before there was a dismissal and i was asked for a situation where there's not even an order to show or an extension just immediate dismissal so cases that i have found where you have to serve notice as we had in morrissey and then you have a  dismissal that follows purely on the docket typically there hasn't been a response and so you didn't take the time to explain i thought you had some other cases where you where there's been an entry me who are the times even going to be searchable when you have the scenario we're talking about and more a c they were initial minute order of the nd order was not a minute order those don't tend to have been picked up you can answer as i'm going to say that the united states government and we're talking about case in which there you know had not been ordered shall cause and and not an initial extension and it was appealed and that was the sole grounds for giving another chance on appeal i apologize i i took him to mean a holding of the court of appeal sending the scenario you were asking me about the district court back given that i haven't found that scenario i don't have a case sending one back i think you know how do you know have a case either way on this situation  and i don't recall if i was able to get i think it's from about two thousand to the district court docket but the dismissal was one paragraph and it mentioned that an affidavit had been filed after the notice but the affidavit didn't explain how they had served the united states it was a court was more  iful to the plane of all involved cases in which the marshals or some other factor cause the difficulty in service yes your honor and if i could argument from page three dollars to four dollars the court describes as judge rouse noted that that was under service under the foreign sovereign immunity as act and it describes that the court has a central role to play there and i think it slips three to four that is not about the court's failure it's about rose latest service attempt and he got something wrong but they thought there was a reasonable prospect so he looked at the woman to port fourchon here seems to stand separately dismiss and that allows you to dispute the motion to dismiss but it doesn't give you sort of an extended period of time or notice after the deadline that you get more time to serve so with the  in which the course describing and the factors that i began with i know that i'm over time if i can but you know the court was evaluating factors here the st of which was the district courts prominent rule and if i can step back and say this is a rule context and so there has to be some scenario in which when is the th circuit described into when a rule has a deadline missing it by even one day can be fatal and so here we see the district courts provide the required notice they the st circuit held that you could not provide notice dismiss and then allow them to file a rule fifty nine even that all the rule for am contemplated notice before sue us funny dismissal that was ok so long as you provided this after  this court there said given the pro se nature of the individual we think that the notice required for m is notice before you dismiss and so we're not adopting this standard where you can dismiss and then you know give an opportunity afterwards in both of these cases they gave notice judge whether it's an abuse of discretion based on how other judges may have exercise their discretion in the past i don't think so i would just say that we cited oklahoma aeronautics for the point that you subscriptions very flexible and i w cite a couple cases after that and i can't recall the other names but one described that abuse of discretion is when there's a standard of options that a court could act and i tried to make this point in my opening that you know the district court has a you know a range of things that it can do and we believe in both of these cases the way that he acted it was within that range if i could make one point i know i'm in the red light and i shouldn't be raising new issues but just to respond to the the rule for i discussion that the court had with my friend m e the court considered the fact that the rule did allow for an extension there is one factor it didn't say that it was a legal test it was weighing it as a factor and in man when this court describes the factors including statute of limitations in man that were being weighed in the discretionary that declined to give a discretionary extension the court described the requirement of the district court make a clear error in its findings about how to weigh those factors and so i i don't think it's a legal error to have considered the structure of the statute said the structure of the statute does provide automatic extensions in some cases it doesn't provide them in this case that's to say there must be some case in which you haven't served the attorney general in the u s attorney in what you could dismiss and close just to pick up on a point that judge rail made in the opening that the triple service here is important the united states because under twenty eight u s c five hundred and sixteen the department of justice is the only body except where otherwise provided by statute that can go into court and represent federal and cities and so serving the attorney general allows for national consistent management of litigation serving the local u s attorney allows for serving the department's office that's going to be closest to the court have most familiar with the local rules and it ensures that cases don't take a position on behalf of the united states for fear someone upstream of me in the department's authority would have views on it i am aware of irwin's discussion that judgment mentioned about equitable tolling i'm not sure if that goes that would incorporate also though st statute of limitations is different than service of process right which goes both to this court's jurisdiction and might go to the waiver of sovereign immunity yes your honor again i'm not sure and i haven't thought it through enough to take a point to sort of take a position on that if the court would like no briefing i can certainly you know think more about that and the government can present a and that we are talking about here we're trying to figure out what the discretion of the rule is yes i guess my point is that it might go to how we think of whether something is an abuse of discretion if the rule in part is designed to protect the sovereign interests of the united states policy of this circuit to keep cases in court if at all possible and i'd like to quote this court from english speaking union that were dismissed on procedural grounds would be to get now of a lawsuit and that its missile should only be used as a last resort we submit that the picture courts here use that as a st resort not as a last resort and these two cases and finally i would like to mention the fact that it judge rouse point and city point of protecting the government sovereign interests there is no finding of prejudice here the government does not intend on appeal that there be any prejudice from continuing these cases and it is the stated purpose of the federal rules and the committee notes for a rule for that case against the government should not be dismissed when it would result in