simplistic part of this situation is a which came st the chicken or the egg situation so we know that the complaint was filed in state court for two thousand six hundred and thirteen dollars and thereafter there was a default judgment that was  employee of the united states we know that they did do that because i mean you make that point your brief but the way i read their argument here that would have troubled me and agreed i'm troubled by this case anyhow as i think everybody uses looked at it could maybe the government i thought what they were doing was not necessarily contesting the not talk different sure i was a federal employee that were there or not it was appropriate to seek the mint after a default judgment had been true because the talks about a situation prior to judgment we have a situation here this after the judgment but that doesn't go to whether or not there contesting his federal status i'm looking at the statute forty two understand it this was a period of transition where the facility had just recently been taken over as a federal institution and nobody was very familiar with the problem you know you just recently when did that happen i was my recollection within that year doctor who is a federal employee gets shirty supposed to transmit to the united states attorney's office and they then say yes you are a federal employee and we're going to come in as the united states and that did not happen yet but we've had that in fact here there's been some undertaking on the pro to the plaintiff's attorney to try to figure out whether or not the doctor being sued is in fact a federal employee and that hasn't happened here maybe the most a federal employee that you should do things to make patients aware and unfortunately the person who experience the future is deceased and is no longer with us there was no knowledge never raised as an issue of you know and i think you're mixed and you're mixing words here it wasn't taken over by the federal government the statute a lot ploys of certain health services to be deemed federal employees for purposes of defense under the federal tort western funding and i do agree with that and that's one reason that i cringe or you did not have his own medical malpractise insurance but we're federal employee who k why did you voluntarily dismiss the action that and refile which would have put you to file your ministry of claim and then you could refile the action the united states attorney i think it has to be done with it thirty days under big so the big conflict comes from what the united states attorney did with it and impact who dropped the ball between doc supervisor because he testified that he gave d it to a supervisor and then dr fringe or did nothing the dilemma here from an equitable holy position is that the united states did equitably toll once that once the default judgment was vacated and said ok we're now going to deem him as a person that the united states was substituted for which left the plaintiffs without any equitable polling i certainly have i have some sympathy for your client for the estate i have some sympathy for the way in which this notification of deemed employees work but it seems to me that two thousand six hundred and seventy nine the five gives you an option even at this stage since your initial case was filed in a timely fashion to go in and present a claim if we would dismiss this was harsh judge fisher has expressed some sympathy for the estate here i certainly have some sympathy for the estate seems like a very harsh you don't know i'm reminded of the quote dickens mr bumble bee i guess it was with that and that's what the i've been involved with in the last couple years and you're familiar with the opinion and stewart likely but you know how i just don't understand how one finds out that somebody like doctor friend jerry is deemed a a federal employee it doesn't seem like you know here you are don and i were vinyl in new jersey  let's suppose that have let's suppose that happened and you already have no ministry of claim that was five you know there obviously it wasn't filed within the statutory time period of two years time i think in a subsequent suit the court should say that after a little it doesn't apply but right now for this case there is a very straightforward answer because this he says control then but he ha before the agency so i actually it ministry of process you know he can go ahead and finally new suit without waiting for the agency to decide that claim he can make the arguments he wants to make befor that by the time the united states was served it ministry of remedies had been exhausted and so they feast the argument that there was no point in dismissing that suit and requiring the plaintiffs to file in new suit and the supreme court are i understand you're saying this is all for another day and i for one understand what you say but i have some concern that these cases seem to sure this one has because you know there's so many different factors here where you know he wasn't a federal employee we're not going to remove because there's already been a trial slash the full judgment then back in two thousand and one theme the government comes in and brings it back in the federal court so this is a little different creature from the prior case  and it's an unfortunate circumstance t by the united states when he failed to comply with the clickable statutes and regulations and that's where the dilemma comes from it wasn't what the plaintiff did plaintiff didn't know he was a federal employee correct that's correct but he didn't do anything after that and most importantly didn't file any answer or present any defenses or have his attorney even say hey i'm a federal employee and i have this defense he did nothing except a fault and a judgment was entered and so if you look at an equitable poll the argument the floor has to come back to the doctor for enjoy and yet he was allowed to troll his claim to be deemed a federal employee it's only fair that the plaintiffs is a title to the same equitable tolling because the plaintiff didn't create this mr maule how do you get by mcneil i've been trying been help sorry and how do you get by mcneil on a weekend my mc now with the equitable issues that are presented it is factually much different and indeed neal i believe they did to observe this session i don't know if he's observing it or not but it doesn't really matter because i'm going to ask for a transcript of the argument and i asked the government to pay for that transcript and  you could conserve and send a letter a joint letter to us by the clerk's office say within ten days the days date just letting us know whether or not you're willing to meet with mr  turning out the lights cutting off the heat not along the bathroom privileges until you found a way to agree and i let you let's go to the bathroom st thing the shot of the room but it just seems like given all the equity she was i said this is an incredibly hard result then i don't want to put you on the spot but my guess is that you would agree that the result here if you take the legal technicalities as mr bumble said ways met is a really harsh result and i did do a get through with them about the transcript yes the transcript of what's going to happen is going to let carmen shoot the calendar clerk and she's going to send you additional information on how to file transcripts also give you a i particularly appreciate respect the way in which you made that argument a lot of worry hypertechnical arguments could be brought to bear here you made the high protective argument that you had to make without losing sight of the underlying hum