section requires claimants to amend their complaint or their notice a claim before the agency denies mr rather than who was pro se at that time did not amend his claim before the dissed before the agency  saying that but there there's a wealth of case law holding the pro se litigants must be treated leniently and that you don't necessarily hold them to the strict procedural requirements that you would do to someone is represented by counsel and already filed the second form s s ninety five on january twenty second twenty sixteen as is every right i believe that is the date your honor actually i believe it was january thirteenth that it was mailed and it was received the twenty second ok was represented by counsel but he was still saddled with the problems from the claim notice that he submitted pro se the exhaustion require a substantive problems right he hadn't described the injury well enough it wasn't t procedural problem a number of things john first of all it's not even clear what was given in the claim notice it appears from the record before the court that the only thing the v a got was this the form ninety five form without the attached letter that's the record before the court and if you don't describe enough facts in the claim notice your claim is subject to dismissal for failure to exhaust and one of the cases that stands for that is the burns case ninth circuit seven sixty four foot second seven twenty two the point is when the amended claim notice was filed in january of sixteen the case would have been subject to dismissal for lack of jurisdiction because mr redmond had not exhausted had mistreated remedies because he didn't file the sufficient claim notice the first time so it actually was denied and july twentieth steen so he received a letter deny his claim if there is no at the point when the second form was filed it was already too late to file a  his letter denying the claim and when did you start representing him that's what's the only thing we have on the record is that the second claim notice was january thirteenth was written on january thirtieth of sixteen but your honor please i don't i think you're painting with too broad a brush to just say he was not pro se at that point because he was still saddled with the problems he created when he was pro se ok i understand your saddle argument but when you are represented by an attorney you're no longer pro se i think that way the normal english language works i would agree on and i did mit is that he was not pro se at that time but the problem was what was the functional tryst at that point if a lawsuit is filed at that point which could have happened that lawsuit would have been subject to dismissal for failure to exhaust because the first claim notice was inadequate it did not include enough facts for the agency that that's clear in fact based on the record there were no facts in the in the first claim those that claim notice would have been deficient as a matter of law that case reconsideration what's not clear from the record exactly when the representation began and again i think realistically it was a hobson's choice for council because of the deficiencies that  the statute the congressionally passed statute twenty four a one b does not limit the claimant to one claim notice it does not prohibit amending claim though this is mr repton did everything he was required to do within two years the amended claim notice was served within two years the district court action was served within two years so from a commonsense standpoint and really from a legal standpoint everything he did complied with the statute the issue petitions and again the second claim notice was served and presented well within two years it was that there was a second denial issued up the second claim notice and lot the lawsuit was filed within six months of the second denial so that we complied with the face of the statute that cannot reasonably be disputed the second claim notice was filed within two years we filed it was denied and we filed suit within six months of th denial so as in the statute doesn't say anything about amended claims this is or multiple claim those as the statute doesn't preclude that and i think on this record it cannot be reasonably disputed that we complied with the statute there's a there's a good faith dispute whether we comply with the technicalities of the c f r but not the statute and i believe when there's a conflict between the congressionally passed a statute and a regulation the statute has to control article one section eight of the constitution grants congress the power to pass laws congress did that when it passed the statute of limitations are you basically arguing that the regulation is an unreasonable interpretation of this that you know i'm arguing that the agency unreasonably apply the regulation such that contravenes the statute but it applied the regulation in a very straightforward way didn't it and i mean i think you must be challenging the language of the regulation because i don't think there's any oddness in how the regulation was applied by well the problem is that the agency like the district court did not treat the pro se litigant leniently and they they basically said the same thing the district court did which was you didn't amend your complaint before we denied the first time therefore you're out so certainly if district courts or reach are required to treat prostate litigants leniently the agency must be as well but again i think you know the statute says nothing in statute doesn't prohibit the second claim notice or third as a practical matter that typically won't happen twenty eight u s c twenty four zero zero zero one to be just the statute separate and apart from the regulations has two requirements for a claim to be timely the first is that the claimant must present his claim to the agency within two years of accrual and no one disputes that that happened in this case the second requirement is that the claimant must began an action within six months of the agency's claim denial that the you have to do one or the other suit is barred and less both of those two requirements happen as the court pointed out doesn't say and so as well as it's presented writing within two years after such a claim that both must be met for the action to be timely as the court previously pointed out to opponents counsel so the courts have interpreted the or to mean and they must both file their claim within two years of a cruel and also commence litigation within six months of the agency's claim denial in this case as set forth in plaintiff's own pleading as well as the documents attached to the a pelleas motion to dismiss the claimant presented a claim to the agency in january of two thousand and fifteen which was subsequently denied by the agency in july of two thousand and fifteen and litigation was not commenced in tel august of two thousand and sixteen to address the point that the first claim was somehow deficient first of all that argument was raised for the first time on appeal and is not properly before the court the record coronation anyways and i thought the his explanation for why they were in this bind was more just an explanation for why they care about all this than a separate claim that the original pleading or regional complaint with the agency was  yet so so the argument seems to be that the first claim is somehow analogy because it was deficient so first of all that argument was not raised in the district court it was raised for the first time on appeal if we look at what is in the record before the district court we see a claim form from the from the appellant that was submitted on january seventh of two thousand and fifteen the claim form is in the record with the date of injury being september of two thousand and fourteen and a time stamp that i believe was nine sixteen am if we look at the subsequent claim form submitted by counsel and on january twenty second of two thousand and sixteen we see again a date of injury september twenty fifth two thousand and fourteen a timestamp of nine sixteen am that injury is the same in both claim forms to address the attachments that appellant alleges the v a did not receive again this issue was not raised below so there was no opportunity for the a to put in additional documents into the record that would show the v a did in fact receive all attachments to the initial claim form the district court record has the claim forms because they have the dates of the submission which is pertinent to the statute of limitations argument which was the only argument before the court as it's only an outside guard i'm sorry i'm sorry let me ask you this much of your adversaries brief is devoted to the c is that a pro se litigant should be cut a lot of lot of slack i guess is it any view of the case where perhaps the fact that the person was pro se i guess most of the time should be a consideration in terms of how we evaluate everything that's transpired here not in this case in this case the record shows that the claimant was represented by counsel at least by january thirteenth two thousand  what if he would not if you were not represented by counsel i believe the result would be the same i think that the supreme court in mcneil explained that pro se litigants are held to the same procedural deadlines as those represented by counsel although they are afforded leniency and interpretation of their pleadings so that's where you draw the long the trials proceed to equine it's you're saying that it's a matter of red letter or the pro diligently pursued his right and that extraordinary circumstances prevented him from satisfying the filing deadline if we look at the record in this case there simply aren't any facts to support  tolling this argument was raised by the government in its motion to dismiss the plaintiff did not respond to it in the district court so there's just not a record in this particular case to support  underwater for the court to apply applicable tolling there's just the record is silent on that issue because the the appellant did not respond to the government's argument in the district court on that issue other argument that's the time frame and i think the government sides rome and cancel to say no it doesn't but they have we ever ruled on that issue i think that the decision and  claremont speaks to that issue in claremont aircraft the ninth circuit and this is in one nine hundred sixty nine opinion but the ninth circuit addressed whether subsequent in queries after an  communications with the with the claimant so in that case i believe the court came as close as it's come to addressing this very issue and they pertinent deadline is the final denial of the claim which in this case happened on july fourteenth the two thousand and fifteen and subsequent communications with the agency do not toll that deadline if the agency responds in reiterate that denial the key deadline is when the agency first denies the claim in a final denial i mean is nothing new because roman council holds open the possibility that terribly new claim in this case i think there is not a fair argument that the second claim which has the exact same date of injury and even timestamp of injury is is different from the injury claim in the first submission by the claimant so so in this case i don't think that question is presented to the court and to to look briefly at the other arguments that were presented by the apollo and i think if we look to the regulations as they were applied in this case it's it's consistent with the letter of the regulations but also with the case law interpretating them to the extent appellant has argued that a january thirteenth two thousand and sixteen submission that was not received by the a until january twenty second two thousand and sixteen is is somehow timely contradicts the plain language of twenty eight c f r fourteen point nine but also the ninth claim we come to the same place whether it's an amendment a request for reconsideration or simply a duplicate of claim both the letter of the statue the i believe the roman case does leave open the possibility of a new claim and the second claim was in fact a new claim the first claim he said you didn't medicate me when you put the chest tube in and it caused me pain the second claim notice says you inserted the chest him into the lung per income and caused permanent lung damage they're vastly different claims they are not quibbling claims that's one of the reasons this case differs from claremont in claremont the two claim notices were equivalent and in claremont the ligand was never pro s claremont is distinguishable i'd like to call the court's attention to the language from the district court order dismissing mr rhythms complaint here plaintiff did not file his amended administrative claim until after the agency deny the original claim thus the court holds the plaintiff amended claim is not an amended claim for twenty eight c f r fourteen point two does not restart the clock the district court held mr redmond accountable for what he failed to do when he was pro se not only does twenty four a one b not preclude a second claim notice the c f ours do not preclude a second claim notice the c f rs say when you can file an amended complaint amended notice of claim you can do that before the agency  r don't say you cannot file a second to claim the roman case leave that possibility open that's what mr redmond did and as as a practical matter he needed to do that do that because his first claim notice was deficient and probably would have been dismissed on jurisdictional grounds this is a jurisdictional issue i believe it was raised in the district court but if it wasn't jurisdictional issues can be raised at any time and it's jurisdictional because the failure to exhaust is a jurisdictional requirement or exhaustion of administrative remedies is a jurisdictional requirement and if you don't provide adequate facts in your claim notice you the district court does not have jurisdiction because you haven't exhausted so there's no waiver issue here