court decision on this this that there is a divergence in the case when it comes to extraordinary circumstances now certainly does this case boil down to and then tell me your position on it if it does whether sixty b that both both parties pointed out the tenor case and washington case where a party may not be able to avail itself of that thirty day period now certainly there's nothing is extraordinary about this case as a prison guard you know grabbing some of these papers and and not allowing them to go through such that the period is missed but it is extraordinary in the fact that there was a thirty day period that ran and we readily admit we didn't understand was wrong we felt that everything had been found we filed in the united point we were that the clear decision of this court that that you didn't have jurisdiction at that point in time the case had to be dismissed and then we needed a witness to back to the trial court and attempted to avail ourselves of all sixty february twenty ninth you kind of knew something was propped problematic did we do have some obligation or isn't it reasonable reasonable to assume that you had such a sum up legation to pursue that further and if so how on earth with this come even if the requirement was that under extraordinary circumstances these rules can be overlapped we can use sixty billion how on earth with this case fall within that bucket into the first for a lot of question o jurisdiction to look at that motion first but we did prepare and if i could've if i could have seen that i could have gone back and filed a motion on the twenty eighth we did file that twenty third as soon as we learned of this through the government's motion to say that this fits into the keeping somebody from being able to submit their paperwork in the thirty day period ask for that extension but by the same token at some point i have to say that this looks like we're throwing ourselves on the mercy of the court and begging for that rule one just resolution of this rather than on a minor technical difficulty and that is ultimately where we are today on this is is placing this in the bucket in the hopes of finding justice and finding that when you remove one and you read rule sixteen you look at the circumstances of not understanding that you need to avail yourself of that thirty day period that the court would see that that is an exception and that and i understand we don't want to swing it so in those days while the it's very clear that in jurisprudence that that those are supposed to be very if we went this way know whether circuit is gone the way you're asking for and multiple other circuits on the opposite way there are that i believe that there is at least to some extent a circuit split on the extraordinary circumstances side that granted this is taking this one step further than just the extraordinary circumstances as i can see it if i notice this is not a prison guard the night somebody that what it is still looking at the justice of the situation and allowing somebody was a very very very small effect we're saying that there should be some very minor leeway to that rule that there is a little bit and i fully knowledge of that's where we're going but i believe that this is a case that certainly this court give us the opportunity to discuss and to the way out there must be something there and it won't this i understand we're kind of the first in this line of questioning and in this line of thought but there's nothing for the court here is a pass for cases that come after on the court's jurisdiction but as far as the thirty eight coming in within the thirty days i understood your friend to say that they really couldn't do that they couldn't fight go back to the court because there was still something pending based on the motion he would file with our courts the courts unfortunately for many years have helical tolling is not available in these sorts of cases but congress knowing that since that is the clear legal landscape congress could change that role precisely that is what their supreme court has said on this neither a legal nor an ethical obligation on the part of counsel for the united states even if we had known that there was a thirty day period of time running in which he might have been able to take advantage of the court's discretion to extend the time there again they both cases quite clearly holds that the time limitations set out in the amendments in one thousand nine hundred one to rule for which include the thirty day period of time are  excusable neglect is shown in other words had mr martinez filed timely the court would have been within his discretion to deny that much he did really i don't know that there's a lot of the added to this discussion today but it would mean just understand mr martinez's case is sympathetic and if we had the power to do what you're asking us to do the result might be very different from what it's going to have to be when we follow the law that we're bound by we don't we can't be broke you know i can't use rule one to overturn all of the rules in the federals of civil procedure or the federal appellate practice it's not the what it was intended for and so your argument i appreciate it i guess i want you to know that it's not a matter of personal choice for us judges we have to follow all those rules and what you're asking for is to break stride with all of the existing precedent in this area because of a sympathetic complainant and even though i may think it's sympathetic and if i got to choose whether i would have granted him a fifteen hour extension or not i probably would have hands down but that's not the way i get to review the case so i guess i just want you and since he's here him to sort of understand that that's the scenario we're in is an appellate court we don't have discretion and judge i very much appreciate that and we do understand that we understood the limitations of this we did see that there was the option of the to perhaps to situation here so i appreciated that the course i'm uncertain of the discussion today to examine whether or not there is an option here and thank you for the time again thank you we thank both counsel the cases submitted