right our next case for this morning is thomas cents k against united states statement and you're quite right that the the that it has materially changed some of the aspects of so my question is this if the agency of the united states government that is the potential defendant that the united states would take over to be that to represent professional tort claims that happens to be a prison then why isn't it enough under the logic of this program statement to deliver the complaint to the prison the prison of course i printed out all the organizational charts the prison is under the bureau prisons which is part of the department of justice and then if you look at the b o p s organizational chart you find the north central region and then if you go to the north central regions organizational materials you find twenty one institutions one private facility five are field offices and it describes which states are in but under the twenty one institutions there's terre haute the option you know they have offices around but i understand this program statement which says delivered to the department of energy october twelve then d o j october nineteen then the central office october th tara tara the deal we effort doesn't count but as soon as it gets in the hands of the department of justice october th we have receipt so even if under the regulation we were to take a strict understanding of receipt i don't know why receipt wouldn't occur when the prison has it well that's right your honor i agree i think that is a reading that is entirely fair under the b o p s public facing explanation of their terms  honor i think it also gets really the core of this case which is that the f t c is not a regime written for prisoners it governs all types of claims for prisoners and for non incarcerated filers alike so the st time you get it to an office of the agency that you are concerned with whether it's the veterans administration or harder whether it's h h s or whether it's the department of justice through the b o p delivery to some agency of that group and to is what's called for that's right judge especially because under the government's contention of the way that they might face prejudice in this case any possible prejudice the government might face is alleviated as soon as anyone in that agency receives notice of the claims under your description your honor the warden in receipt of the claim at the penitentiary that mr since he was incarcerated and simply shooting e mail to the court office sort of the regional officer to p central office whichever and accomplish the exact requirement that the government is putting forth the sacrosanct under the f t c yang namely that the government have an opportunity to consider the claim to the application of the prisoner mailbox rule in this case specifically  honor as i said it is clear to consider that if i'd been struck by a post fan and breached the court this morning and i had wished to file an f t c a claim i could if i had wanted and deemed it necessary to ensure delivery of the claim hop in my car and drive all the way to the postmaster general's office to ensure actual physical delivery mr since he never had well could you go to the loop post office across the street while it might depend your honor on the post offices particular promulgated regulations if there are any as to the f t c say i don't know them but as to the b o p regulations and in this case your honor i can say they allowed for submission of the claim present meant as the statute requires by mailing we're delivering mr since he had only one of those options available to him which is why the counterbalancing effect that the prisoner mailbox rule has is this court has repeatedly remarked upon this particularly called for  of clarifying question you are also arguing that the common law mail box rule applies and what i understand you to be saying that correct me if i'm wrong is that under that rule there is a presumption of receipt so it's a receipt based rule a presumption of receipt within the ordinary number of days that it would take the mail to wend its way from you know terra haute indiana to central office so email december seven if we assume it takes it a week to get to washington which is probably generous with us and that it would there would be a presumption that the opi got it on the th which field he would then be entitled to  ration if that's exactly right and if the th section fourteen points to which qualifies the present requirement under the b o p s gloss as requiring receipt is a type of rule particularly primed for application of the common  rule because as your honor points out they're both receipt base the th circuit in barnett got this right this is just a traditional means of weighing evidence the common law is it's a means of determining when receipt occur court in this case misapplied the rule by misinterpreting it essentially district court viewed this through the lens of a false dichotomy namely that receipt may be measured either or rather that presentment may be measured by either receipt or by mailing but that ignores the function of the common law mailbox rule which is to use one to judge the other to use the fact of mail the date of mailing gives rise to some presumption that's right because we have this very particularly well suited tap leticia of the rule because it's even more than is your honor says the generous week that was available mr since he filed this submitted it to the prison mailing authorities nine days in advance  the because it's a rebuttable presumption going to the common law if for example the guard or somebody in terre haute sat on that letter for a week and it doesn't show up in rebuttable as i understand it and the reason it was adopted in the st place had to do with prisons keeping logs of outgoing mail as noted in the houston case so there seem to be several circuits against that position the nd circuit has ruled in favor of applying the prison mailbox rule to tort claims is that the wind up as you see it and yes it's so time for us to choose a time for the court to choose and in fact the facts as well suited as they are for application of the common law rule equally well suited for application the prisoner rule and this is a opportunity for the court  the timing mechanism language here is as equally let me put it this way judge the language here is equal in formulation to the language in houston and not the language in facts here is how so in houston the notice of appeal would be deemed to be timely file when filed with the clerk under the statute it was a federal pell procedure at the time that was a requirement filed with the clerk and yet recognizing the neck of all circumstances prisoners here present it is defined as received by the b o p s that's susceptible to the same formulation as in houston and calls for the same application in the same result in facts in contrast the requirement was that the detainee under application of the rule would be that the prosecutor in michigan in tardy receipt of the detain or request would be forever for clothes for getting in the court here the opposite is true st of all we don't have an end determin all right mr ross problem it seems to me the government has a very easy way never to have to defend a federal tort claim lawsuit brought by a prisoner from the federal prison all they have to do is have a box where males designated to file an administrative grievance is placed where will then sit for the appropriate amount of time and then when it goes to whichever office or regional office a central office the b o p says up it's too late you failed your timing requirement number one hundred statute nobody's talking about we all understand the nd one was satisfied here  so so that's that and i don't think that can be right now i do think think that perhaps giving it to the prison which is an agency a sub agency of the o p actually satisfies every receipt requirement you could come up with he gives it to them it's you know the game is afoot and author everybody goes so to responses your honor st it's actually in the agency's interest to investigate claims when they're filed  think was it investigated here yes your honor they didn't see investigated the claim on the merits and denied it and without discovering that the date had been wrong and he was not in the correct prison at the date that not responded then the prisoner may proceed to court no i understand that i guess i'm i'm stuck back on the actually habited like the way the federal tort claims act operates in general i think it's an excellent model that might be used more by the states but the fact is for this particular set of claims the bureau of prisons as you can see did can receive it through any part of the bureau prisons and when in your concession it was you know you gave up the argument that had to get all the way to the north central region and it was ok to be in central office but i don't know why it doesn't operate in the other direction as well guard so both this court and the th circuit have projected an analogous argument as concern for the postal service so in this court in overstreet and the th circuit and willis both explain that simply if the plaintiff has a claim against a postal service say by injury by postal truck you can't simply walk into a postal service and deliver your claim and that i haven't looked at those regs wires would you go back to the b o p regs from the statute as applied to handing it to a guard excuse me prison guard that won't initiate the investigation process that will brother effectively that's a different conduit to put it in the prison mail just the same way as possibly someone injured on forest service land would not be able to give a claim to a for manipulation by the very people who are supposed to be helping them you have you know a nice sunny idea that you know they are they're eager to investigate these claims about  it's a great example of you know he puts this in the prison mail nine days ahead of time any rational person would think that a piece of mail can move through the continental united states within the scope of nine days and you take the position that you know we don't think it did but maybe he was on time and certainly in terms of the common law mailing rule if the bill key is carolus and loses it on home should does a prisoner need to put in he puts it in the mail a week a month just it takes six months to get to the the open you through the us mail you know for one it's worth noting that the district court in this case specifically found that there was an entire year period now that's different i want to know if somebody knows his deadline is december the th how far in advance does that person in a prison  have to give his complaint to the prison guard to be sure that he's going to meet the deadline now you don't have any theory of that that i can hear will even if it's for even non prisoners if you would not be able to present prisoners arse different the supreme court has made that clear we've made it clear they do not have the choice of hand delivery to anybody other than the guard i acknow appropriate official within the prison and that is taken usually within the same business day to mail us about fed ex or you the same logic that happens is it is the mail screened on the way out it depends on the kind of mail your honor so would something like this be screened so there's no facts in the record describing it i'm asking for your procedures you know when you get something that's not like a letter to an attorney's it's labeled legal mail when you get a complaint would that be opened to make sure that there was no anthrax in it or you know other  claim in which case they would not be subject to exactly the same screening procedures and would be given a special on the lope and it would be slightly more expedited but it would say that type of mail again leaves the institutions on a daily basis does the bureau of prisons  there any of the policy considerations that were decisive in houston that or that would not be applicable here now whatever the policy considerations that issue is used in the supreme court subsequently foreclosed d consideration yes so arguably that the same type of parties are at issue in a word issue of houston versus lack as in this case however the text makes clear that presentment means actual receipt by the agency so i take it then your of your argument is strictly textual and as the supreme court explained and exercise michigan both the majority and the dissent pacifically to the text i understood frankly i understood facts to be much more pragmatic than textual to simply the consequences were so different in a namely that if that is the agency never received the petition under under facts then the prisoner goes free and it's like a default judgment if in under the c if you you know if you fail to respond in time that would not make any sense for the prison mailbox who on the other hand in this circumstance it's much more like houston for a practical standpoint well anderson we can argue about text but  but but just so we understand the policy considerations some pretty much the same there's also the fact that the congress created the present requirement so that the agencies could investigate and settle claims the supreme court explained in mcneil that the vast majority what do you think are requirement do you know obviously if you file a notice of appeal in the court of appeals we expect the notice to be in that day we don't want to i mean of course this is pretty electronic filing but you know we didn't want to hear that you had put it in the mail that day we dismissed as jurisdictionally out of time anything like that except for the cases with the prison mailbox rule in the same thing is now true in the just records for virtually any kind of filing so it's not that presentment isn't very important to the courts to know what cases you're proceeding there it's important for statutes of limitations on what date was the case file that could be a do or die moment for the case so i don't know why you think this is more important somehow than the court deadlines involved and not necessarily that it's more important your honor but rather the texas clear the prison millibars what was unclear about the text it has to be filed by a certain date i believe the supreme court found that that was amenable to multiple determinations and that policy and equitable equitable considerations for prisoners militated in favor of a different rule however here so if i present something to judge hamilton tory text is unclear the regulations themselves explicitly require actual receipt and every court of appeals to act to wrestle with the text in this case or in this circumstance has result the case in favor of the government finding that actual present is for fire now the th circuit and barnett will there be quoting presentment with receipt those are not the same words so that the regulations as actually receives the claim effectively interpretating present actually i'm sorry your honor the agency receives from a claimant and edition all is that different from a court receiving something for filing in the case of filing there's not an actual receipt requirement per except prisoners there certainly is correct in that the term filing does not entail require actual receipt from prison or if that's the exception however it's also worth emphasizing that a statute of limitations itself as runs against the united states is a strict waiver of sovereign immunity and every court again to consider this statutory text has found that it must be strictly construed in favor of the sovereign and that's in the rationale of all those cases talking  the common law all right which applies equally to the prison mailbox rule you're right but the common law overall is something where there are facts missing in this record as well because there's been a presumption of receipt your magic word a presumption of receipt within the ordinary time it would take mail to get from terre haute indiana to washington and as i say even if we thought counterfactual of that that was it week there's a presumption that his  his mailing got there were going to be a life time so it's actually looking at the language of google for a one capital a that happens in civil cases the notice of appeal required must be filed with the district court within thirty days after the judge may be filed by and everybody has you specially if you go over and look at the at the mailbox rule it's a question of it's if it's in the internal mail system on or before the last day for filing with all these you know just sort of the teams filing to be when the institution g timely investigation correct right that's the point you're making but there is a way to rouse the mail from you know the local jail to the central office the regional office whoever needs to go without an eternity passing  right so it'll it'll tell tell the jailers get the mail out within a week or so and because we need to investigate this before all this stuff goes stale so it's our understanding that's exactly what happened in this case runner as i explained so they didn't bother to mail it right yes is what you're going to tell me because there's actual record in this case your honor is very thin but we are aware of the exact circumstances of this document but all we can say is that that was the and that's why the case for senator excuse me that's where the case is right for further factual development and just and by the way but unless we were to disagree with you either about the prison mailbox rule or the scope of further factual development might be idea that the prisoner might actually only get a year and a half because it takes six months to process the mail and get it out the door isn't what the statute permits in terms of the amount of time to get and especially here your honor where not only did it take two months for the mailing to go out the door and get to the office that prior to its change in legal opinion the government held as being the only office that could be in receipt of the claim we now hear although this isn't in the record that the mailing might have to the government's description not have arrived anywhere in two months so we are eating away at the two year amount of time set forth to get a criminal record which effects a collapsing of the prisoner government just conceded it can be easily established by conferring with their own animals as to when post goes out the door is a better solution here we are now up on appeal on the question of the mailing and at what point presentment is said to be received by the court to do away with the morass that we now have delved into by simply applying the straightforward language in houston recognizing the inequitable circumstances the supreme court in this narrowly well i think you need to read facts no more narrowly than exactly what it says judge here's an example in facts the supreme court appointed maybe it may be proper to read it narrowly the man and nothing wrong with that but i think fact stands for the broad proposition that you have to you have to just handcuff yourself to the text no matter what that's you you'd rather not stand on that ground i think well that's right judge but also fact says the countervailing rule matters o independent actual delivery is the time a mechanism for example i also read that fax had a comedy overlay the court was unwilling to shut off the ability of the state to bring a proper prosecution that to judge which again is not an  think about what might make sense here if we do not both sides agree you want to remain under some some extent and it sounds to me like yours might make sense to remain for fact  as to both the date of mailing the on the date of receipt with whatever legal guidance we can can offer but the in essence it would make sense to give the district judge the opportunity in the parties an opportunity to make a factual record that would be relevant regardless of the ultimate tool would support the judge if you're looking for the cleanest way to clear this up the answer is the application of the prisoner mailbox rule which doesn't require that factual remained well judging again the government can better represent the government's position but it is my understanding that the record is clear and there has been no contention from the government at any point in any filing that mr since he did not in fact time the mail his s f ninety five  december th that would be nine days in advance of the deadline which the judge hamilton's question obviates the need for this factual as you say that there are you thinking about a document or what are you just thinking about it well in the background of the case it's never been contest know i don't have in mind a specific verbatim concession your honor i don't similarly i do not recall any on the record rejoinder the government is levied as to that thanks to both counsel will take the case und