june twenty fifth two thousand and seven a fully prepared petition was entrusted to federal express for delivery to the clerk of the federal court against the if the crux of the issue before us is the question of equitable tolly whether equitable tolling applies whether there is room under the circumstances of this case not necessarily on our it's our position that we never reach the item of  petition for relief filed by their clients on behalf of their trial was filed more than thirty six months after the first nonsense they said that as well as saying h h s was timely served with the petition the petiti in this case the special masters dismissed the right your argument about substantial compliance i understand is that the service was timely affected on the secretary correct and if it was but it was not timely affected consider and bryce's a situation such as this which has never come before the court before where everything has been done prior to the statute of limitations and all efforts were made to file it and the and h h s was timely served so that there is no prejudice to them and price was a constructional argument of what congressional intent was the program was created to assist injured children they could not and you realize we can't overrule price we're just a panel service on the court you can argue that there was substantial compliance of service on the court true but substantial compliance would mean that there was an element missing and the element missing was that it failed to reach the court in understood but john our sand is a community it's also a case with precedent of over one hundred twenty years worth of cases this program is merely twenty years old there is not that precedent before the court for it unpriced did not consider a situation such as this and this this case the facts in this case are nothing like anything that has come before the court before i agree with you the situation was dramatically different there was no evidence of the good faith and the activities that the titians and it took in this case but judge newman even in her dissent embrace really points that out that the majority opinion embrace for closes the door to just such the person that you have here hard for us to interpret price any other way under stand and that and that decision came down in two thousand and one occurs so it's not no one was aware of this strict standard situation here is obviously the client didn't get to you know within a reasonable time have to avert means that often happens your honor i've had filed petitions twenty four hours before because somebody walked into my office and the case was a viable case and i didn't even have the records but i got that petition to the court in time in reliance on federal express which ironically the government relies on as its exclusive carrier where whether you have a morning may please the court my name is heather prominent i represent the government section sixty eight two of the vaccine acts states that no petition may be filed for compensation under the program for such injury after the  express is there no room for some substantial compliance exception here we see no room brace is a bright line so it's late is late if you file more earlier really the equitable tolling has to fit into that that inquiry is there no room for the government to make an exception in a kids like this i'm not so good that another words the government recognizing that the deadline has passed but that would be an at the circumstances that would be an equitable consideration and that is what price and we believe congress so to avoid looking at the facts of a particular case takes a lot of resources and a lot of time that need to be spent on the fifty eight hundred claims that we have pending timely filed claims and in this case there is no doubt that the the claim w filed late to be filed it needs to be to arrive at the clerk and stamped by the clerk neither was done within thirty six months for the claims time barred it's unfortunate but even in bryce they realize that sometimes harsh results would occur and i guess i'm not i'm not necessarily disagreeing with you but if yes exploring whether there is any leeway on the part of the government do make an exception sachs the knowledge of the secretary mr have because the secretary has to go to congress and ask for money and if judgments you can come against that the secretary has to go to congress to ask for funding to maintain the program and all that  articulated the reasons to protect defendants against sale or until we delayed claims but sometimes statute of limitations seek to protect not just the case specific interests but broader system related goals and they specify such as facilitating the administration of claims limiting the scope of government waiver of sovereign immunity or promoting judicial efficiency and i believe those three reasons apply to our program well do we have i mean how h if we have a statute that congress is allowing the government to be sued they that they strictly defining who and in what time period that lawsuit can come wouldn't bet against go to the question of what once once the defendant has been timely and then from a sovereign immunity point of view i guess timely notice to the court simply just gives the government another or w well i think the bright line deadlines service serves the purposes of not just the defendant but the core and what congress intended and if you look at price and if you look at the statute it clear that they did not intend for equitable tolling to apply and that bright line rule makes it very easy for a petitioner to know the date on which their claim is due and it must be in on that date or or else they can't proceed with the petition with the program did not meet the statutory requirements for filing a petition under the act therefore the court of federal claims lecture stiction to hear this claim equitable tolling is not available under sixteen section sixty eight to the facts of this or any other case  just i find it interesting in your honour's question that if the petition had actually been filed on the clarke and not on h h s who was the party of interest so to speak as the respondent in this manner that it would be considered an improper filing yet rectifiable but in this matter where it didn't reach the clerk but did reach the responded it's not rectifiable there's an inconsistency there in the position taken  statute any more than i haven't seen any severe cases that have actually dismissed a petition because it didn't reach h h s on time but reached the court on time but that's what the statute specifies understood and i will bring up though i recognize that it was long before bryce the special masters had recognized previously in the raspberry matter and skates very similar to this where the kharia lost the package that were due diligence was done that the program itself being remedial program should allow a petition to go forward and it did actually allow the motion for review to go forward and it was one day late as well and just as far as the going to the government for funding this program is not funded by the government it's funded by a fair a tax on vials of that seems it's actually funded by the public that's what keeps the program going thank you ron thank you very much they get counseling for both sides the case is submitted