issue is what is the statute of limitations us to win a title seven claimant must file title seven a claim to preserve her rights the second issue is whether equitable tolling would apply under circumstances where a title seven claimant was not provided with adequate notice as to when to file or title seven claim the respond it was placed on notice and no prejudice would be caused towards the respondent if the title seven claims were to be prosecuted your honour's here miss filed  ms scott's claims on note on june third two thousand and fifteen the e e o c issued misc aat a right to sue letter advising her that she had ninety days to file or title seven claims on june twenty second twenty fifteen miss scott and the statute says title seven claimant has ninety days to file her title seven claim after being issued a right to sue letter it's i think it says within ninety days after the giving of such notice so the question is does such notice refer to and your argument i guess would be the e e o c right to sue letter that is correct your honor but i know you also make an equitable towing argument which i think is your weaker argument of the two because your client basically didn't do anything for what eleven months or something so yes right i'll address that argument now when we look at the equitable tolling argue that and you're being advised that the federal agency is processing  investigating your claims there's nothing there's nothing that could be referred to that misc op was required to do other than making herself available for the investigation the e e o c was sponsible for processing and investigating  these type of cases your client has to do a couple of things and one of them is exhaustion right that is correct your honor so it's well settled that a title seven plaintiff satisfies the administrative exhaustion requirement when she becomes eligible when she becomes eligible for the right to sue notice even if she hasn't received one on my right on the law so far  yes your honor so i guess the argument is that why should there be a separate date for when a claim is exhausted and for when the ninety day limitation period begins because she clearly  exhausted at that point with respect to being eligible well i mean you have to do if you can get knocked out on a number of things you can you know here you got knocked out because you said they denied you back a couple tolling and they said you didn't file within the ninety days but had you not exhausted that's another way people knock you out of lawsuits right that is correct you're out and it seems that it's well settled that the exhaustion attaches when a person is eligible for the right to sue that's pretty clear that's clearly established is it not it's established with the case law your honor ok that's what i'm saying so here we don't really have a case on point right about whether there should be a separate date for when the claim is exhausted and when  allegedly comes after she gets the right to sue letter correct that is that is correct ok so does the right retaliation claim how do you still have a retaliation claim because you didn't go back to the sea with the edition claim because it happened after the right to sue letter that is correct but however i think it is a continuing violation based on the case that side cited in the brief in terms of if occurrences happen after act discrimination yes and harassment as well but it's part of the ongoing conduct is your business that is correct your honor so it might be a discreet act but it's still  in the language in that case the stifle language and start and stifle there was an there was no discussion specific discussion with the language of the governing statute it didn't focus on the actual language as to whichever date is later or when someone must file a title seven claimant when you may become eligible for one so the later if if the case was published in this instance i would focus on when a title seven claimant must follow title seven clay now it's a question whether it's doctor or not if it's dicta then maybe we're not but if it's if it's actually part of the whole thing then we can you know a three judge panel can overrule another three judge panel right right so we're bound by our ninth circuit precedent so if stifled held what the pallies position is then we can't do anything about it it would have to be an on backcourt that if it was dicta and stifled and it was dealing with other issues then possibly we can and it wasn't actually interpret in the statute that we can interpret the statute but you know we're not you know we can't just do whatever we want if a prior three judge panel decide something i agree  you want to save two minutes maybe you want to think a little more about your answer on what how we deal with stifle thank you are ok thank you limitations the issue is when does this josh imitation to begin to accrue right and to address the last question answer stifle is directly on point and it's not dictate your honor with respect to when's it really interpret the statute it doesn't say that forty two u s c says that within ninety days after the giving of such notice it doesn't interpret the holding seems to they don't really deal with that and that situation was similar to the facts here but they don't directly interpret the statute but respectful your honor i don't think i agree with that because there were actually two holdings in stifle on this issue the first was consistent with surreal and edwards that the filing of a complaint with the department for employment housing is one in the same as filing with the sea under the work sharing agreement now as a result of that holding this stifle the court citing the statute said quote after receiving an e o c right to sue letter for becoming eligible for one by the commissions in action a plaintiff's generally has ninety days to file suit that is the court saying when the statute ninety days after either of these today it's ok either or so if you want to sue it ninety days after you've submitted it then you can if you want to wait until ninety days after the suit is or after you get the e e o c letter you can right now i mean isn't that the interpretation of that's the statement the reason why i don't necessarily agree with your honor's because what after making that statement what the court did in stifle was it then went on to explain why the ninety days had not run in that case and the reason the ninety days had not run that case is because the first lawsuit in stifle told the ninety day run so the court was clearly taking the position that but for that first lawsuit and the tolling of that lawsuit that ninety days would have run and that is clearly part of the holding in stifle well i don't think the court and stifle they didn't have any occasion to nor did it consider whether the ninety day limitation when to be ken's one hundred eighty there is that that that statement and stifle which sided stifle side of record is not necessary to the holding and the case does not appear to be made after reason consideration we're i don't know then why stifle would have to go into the  issue of whether the statute told because because there was a previous lawsuit filed that's all right but it had to it had to make that analysis and make that holding another would stifle was was assuming that but for the tolling the statute had been triggered even no difference for the purpose of determining whether a plaintiff has exhausted administrative remedies which is different than what we're talking about here well yes or no your honor it is different in terms of where the vos admitted remedies but of course as a general rule once you have  right to file a lawsuit ok once you have that exhaustion your limitations period begins to run and congress if it's going to create two separate limitations periods one that lets you trigger when you've exhausted and ninety day limitation period to the giving of the right to modus and the accompanying regulations talked about ninety days to sue from receipt of the authorization to me if you look at the pla square because other sections of title seven specifically authorized c e o c to designate other state agencies as its authorized agent which through work sharing agreements is what exactly what we have in this case so where you have notice comes from either the c or the appropriate state agency which is also language contained in the statute ok generally the period the limitations period begins to run now whether it runs one hundred eighty days after the e e o c itself has failed to act or whether it runs ninety days after actual receipt of a state right to sue letter would be would be something that maybe the court could clear up but either way in this case we are well beyon any of those limitations period and if you rule otherwise what this case would allow is a plaintiff to obtain a right to sue letter from the from the department for employment housing follow a lawsuit you know three hundred sixty four days point the u s is willing to investigate the claim and certainly in this case while it may seem like a hypothetical prate of her horribles remember is just as posner said the seventh circuit there are back to back pay rights to plaintiffs in title seven cases which is why they're short limitations periods in the first place because every day that delays out before a lawsuit is filed is a day that the exposure increases for the employer so these short limitations are here for a reason and viola and simply allowing a plaintiff to let this rol for months if not years is in effect of call to the purpose within the statute to have a short limitations period well but they have to exhaust to so i mean and your employers are the very first to bring up if someone doesn't its investigation issued the letter well certainly the e e o c has six months to do that and an a and a plaintiff that doesn't have representation you know what it would be better for a plaintiff to have the seat decide in their favor than to have to file a lawsuit and we know how much you know even though we're all the lawyers we can't afford to hire a lawyer but in this in this case i think as you noted in terms of the actual tolling there was plenty of opportunities here for the plaintiff to educate herself on her legal rights and in fact she misconstrued the letters that she was even getting she didn't even believe that the e e o c had a claim pending for the eleven months in between the filing of the d f each letter and her lawsuit even after that she didn't realize that you know he had a claim so there's the is it your position though that that she had to file with both the d m v h and the e e o c to exhaust her administrative remedy absolutely not your honor the filing of one one is all she is the same as the other and what your position is one she got the right to  that point on the deal the e e o c had one hundred eighty days to issue its own decision so now she got the now she got the ninety the right to sue letter she she she could have filed then but she certainly could have waited for the e e o c to continue to investigate but after another hundred eighty days went by that ninety day trigger that limitations fear triggered and she had another three months to file so which she did not and the statutory language what does such notice apply to them early enough that the e e o c complaint hasn't been sitting for six months then what happens to the point of the plaintiff has to do it within the ninety days after getting the right to sue letter from the state agency no i believe that the plane of can wait for the other hundred eighty confirm as to when a title seven claimant must file a title seven claim now the statute governs and the statute says ninety days after receiving e e o c right to sue notice so section out such notice point or a police point regarding the e e o c has one hundred eighty days and only one hundred eighty days to complete its investigation there's no law to support that there's no statute to support that the purpose of the e e o c these rules are to investigate any wrongdoing that's claimed by title seven claimant however long that may take there's always not always but there are at times uncooperative employers possibly lawsuit destruction of evidence they have to be dealt with so t give an arbitrary one hundred eighty day timeframe for the e e o c to complete and process it in its statutory investigation wouldn't be consistent with the with the legislative intent behind the statute and  because the lower court did not apply the governing statute with respect to when a type of seven claimant must follow title seven claim i believe the lower court's ruling should be reversed or equitable tolling be applied