honor i have told miss johnson who will be arguing the rebuttal that i would leave her about ten minutes i promise to leave her five i'll do my best and i will keep track this is our second visit to this court on behalf of mr winter mr winters claim arises out of a program in which he became involved in vaccine cleveland many years ago it's a federal tort claim the issues about the injury that he claims to have suffered are not relevant here so i won't go into them we're here on a very limited issue this case was dismissed once before by judge rosenbla came up here and this court overturned judge rosenblatt's decision and grief returned to the district court for a trial on the merits and on an issue that was on resolved in the earlier appeal and that was the question of whether the lawsuit had been filed within six months from the date of the final denial letter a federal tort claims act has a number of limitations and statutes in it that are different then the ordinary statute of limitations that an injured party faces when he suffers an injury and as a result of a harm performed by a to mr winters statute of limitations began to run when he knew or should have known that he was injured as a result of somebody's negligence and he filed a claim and then he became involved in the federal tort claims statute federal tort claims act statute scheme procedures he was first given a denial and told he could request a reconsideration which he did the only issue for you now is whether he filed his lawsuit in july of one thousand nine hundred ninety seven within six months of the date of the final denial there were two supposedly final denials in his case the first one was in argument we conceded that apparently the letter had been mailed the question and probably it was mailed by certified mail as the statute requires  certified or registered you can see it is that you can see that it was mailed we can see it was probably certified what is that he did it was mailed certified we get we agreed that that's what the it runs from six months on which notice is given the statute requires that notice has to be has to be given you know when we talk about whether sent taking him a letter to the mailbox or to the post office gives effective notice took me back to law school some forty years ago when my perceived your professor told us to talk about something called the mailbox rule and the nail box rule that we've discussed in the brief is a rule that says that there's a presumption of notice evidence rebutting receipt by mr winter mr winters address of record with the veteran's administration when the ninety six letter was mailed was on laurel there are two street addresses that are important in this case attorney from the justice department arguing in a case a couple of about an hour ago that the defendant had not to the point of had not perfected service of process in that case because they couldn't prove that there were receipts received if they were signed receipts a certified letter receipt i think that was the right now a case that was argued that's the position that we are taking here that government when they said it found out that mr winter claimed he did not receive the letter they didn't investigation not only did mr winter not sign in the post office return the receipt but the post office did an inspection and they found no proof that this that the letter ever made it to mesa arizona the statute of limitations the six months and begins to run when final notice is given is different in a federal tort claims act case than it is in the statute of limitations in an ordinary tort case an ordinary tort case somebody runs a red light and hits me i know i've been injured i know there's a tortfeasor i know that there's two years in which the files to the federal tort claims act gives the discretion as to when to start the statute of limitations running so the government the government notice and that tells the injured party ok you have six months from now after which time you will be barred forever so the government's in control and not makes it doesn't make sense that simply putting it in the mail when it's required to be done by certified or registered mail is enough they do it that way it's sort of like get the receipt back to prove that there has been notice given  notice at one point during his testimony in the in the trial court as you it was a discussion with mr vidal mr bell didn't remember where whether he told him that there have been a final letter note it's sent in january of ninety six block i guess i want to know if it doesn't say it was a final letter doesn't say that you were barred then the reason we conceded notice in september of ninety six only to reach the stoppel argument which then flows from that issue if you'll recall when mr winter was talking with mr beguile in one nine hundred ninety six he told him he and mr winter told mr bell i didn't receive any letter in six the date is a day when time begins to run for mr winter because he has notice of the earlier mailing of the letter at that date then the government's conduct becomes important then what it does what mr send me some more information and we'll talk about your case which mr winter does and mr pradelle then has the government embark upon its investigation as to whether they can prove that mr winter got a letter in january of  address mr winter was not guilty of any misconduct he kept that as the address and he had a careful way in which he could receive notice notice him in the statute must mean actual notice because of the peculiar difference in this kind of situation where it's the government that begins that time period running by the sending of its letter  the trial court in his decision his failure to apply the equitable tolling argument that we made in our decision below and hear only on the fact that the trial court found that actual notice is not necessary that can't be what the statute means it says you get noticed by certified mail why would it say certified mail unless it required return of the receipt to prove actual notice it's true when you're didn't get actual notice that his case had been declined until january of one thousand nine hundred seventy when the notice letter for which he signed a receipt which which it was returned to the government was done i would submit that this case has to be overturned and sent back again to judge rosenblatt for a decision on the merits that issue was decided by this court in the berkeley decision and it expressly said exactly what you just said your honor and that is that the statute means what it says twenty opponent is not when on that issue that he doesn't have any other issues well because he he presumes to look at such things as equitable tolling equitable a scalpel waiver but only if we get i don't know what that means having once a government waves in court they file a document they say we waived and then they come in a week later or a year later on appeal and say you know we made a mistake when we waived the other side consent but the government's question is the government as a government could waive the statute i don't think waiver can be used against the government i don't know i don't even be able to tell so i don't know what it means you can't use it again that that is a different matter entirely i think what about affirmative misconduct by the government in this case knowing that they thought the statute of limitations had run but they need this guy on you're going to get an attorney getting to was within the six month period that that is correct it was and it was a call by mr winter to the local v a asking about possibilities for settlement in april was no communication between the two of them about time limits now in september as mr friedman has already indicated mr winter did learning that his claim had been denied right at that point but at this point his six months had already expired the six months that he had from the date of mailing somebody told him his claims have been it already had been denied that's right and i'm not sure whether it was a statement as to what date it was denied but you would expect that someone when told i would say well when you want to find out what is important the birdie decision and what was said in the bertie decision by this court is as follows twenty four a one b designates the date of the certified mailing as the starting point for the six month statutory period bertie would have this court impose the additional requirement that the mailing result in actual notice to the claimant we refrain from adopting bertie's proposal now that may seem an equitable but that is the law record your honor what is important here is that when they made that statement mr winters claim was dead this was not a situation where the here the one from january of ninety six with the one of ninety seven all they did was put in the same language as was in the first one shown which is the standard letter that they send out to everyone it was not thought out not carefully done it was simply hashing together a letter isn't there testimony in the record that they weren't sure and decided to make it a little bit ambiguous but still to say they had six months they they said that they didn't know what the law was and that was why they put it together as they did and the important thing to us is that when they did that they didn't have any right to open up what was then a dead case and let me make this comparison and that is with the rules governing this court district courts send out copies of their opinions to the litigants that have appeared before them and those people have either thirty or in the days of going to or in the case the government cases sixty days within which to to request a reopening of the case if they don't act within that time it is gone regardless of their coming before the courts and saying i never got a copy a copy of decision against me now if that is the rule in the federal courts surely there cannot be a rule that allows an open ended situation to exist in federal agen cases that was decided one way and the new administration says hey let's open up all those minestrone decisions and we're going to redo them want our own our own look you can't do that that is beyond the receipt that came back to the government and one thing i would like to note about that is that those receipts are not a necessary part of either certified or registered mail that is something entirely separate it is something that it's paid for with and and there's no amount of money the only only thing that the sender of certified or registered mail knows absolutely is that it was sent that is the thing that has been one way is this case we're dealing with a statute that requires mailing congress must have meant to do something differently by having this different language here now one thing i would like to mention about the birdie decision thank my opponent distinguishes bertie from this case and that's a tough thing to do because they're so close he says the difference is that bertie had a notice actually being given before the six month period was over and in our case we have noticed occurring after the six months is over in the birdie case indeed notice was before and what the court said was the date is still the initial date of mailing whether you receive that document or not and that left them only a couple months now if you buy my opponent's argument and you have an individual who inquire the status of his appeal with the agency if he appeals if he calls and finds out that the decision has already come down and he find this out one week before the end of the six month period he only has a week within which to file but according to the corollary the mr friedman suggests if he calls a week after the period has expired it starts over again and he has a full six months and when i said earlier that really that's what this case is about and it doesn't have anything to do with waiver or equitable stop or equitable tolling this is what i meant because first you have to accept that you get that additional six months after you get on a new letter and a new letter or after you get actual notice before you can bring in these equitable tolling equitable stop thank you thank you your honor if you're encouraged my opponent hit the nail on the head and that is that principles of fairness and equity apply even when mitigating against the federal government's this case is about statute there they're requiring that the plaintiffs comply strictly with the statute or that this court follows the precise lettering of the statute well let me read to you that statue where it does say well i'll limitations and fail to act upon it in this case we do not have anyone receiving actual notice at any point not even within the system within the statute of limitations and then you have that the defendant which by the way i  find it extremely hard to believe and there is not even any testimony to support that these attorneys who have a combined experience with the v a alone sixty years just acted ignorantly they purposefully attorney who says i requested that the new denial be noncommittal concerning whether mr winter ever received the first one and if not whose fault it was they understood at that point but they failed to communicate that to the pla and they purposefully for an entire year did not act upon what they knew in january and then at the very least in april of one thousand nine hundred sixty that the claims have been denied mr but and drafted and then they put at the bottom that these three attorneys find it well i'll tell you what that is what mr pradelle called that last line where the three attorneys thought he called it the blame line the blame line we asked him if he thought