reporter was served with the denial based on failure to provide supporting materials i thought the end i thought the position was your client's position was that he got notice that he needed to pursue the claim and that he intentionally  of responded to it and then he brought it to us and we had no idea it was going to be because no one had submitted and if you see a claim ok can i back up about the litigation because i looked and looked but i think i finally found the claim form ninety five so there's no it hasn't been argued at all in the briefing so i'm assuming that it's at least for what we're doing today there's no concern that it was untimely or not not not filed prado i do not believe so your honor i believe the only issue before the court today is the jurisdiction this case strikes me as a classic case that would be appropriate for mediation because clearly there is some injury clearly were appears to be negligence and it's just a matter of bouncing it through the door a b and i assume that your client would be willing to do that and when it's time for the government i'll ask lam whether they'd be willing to do that we have always been open to trying to resolve this playing amicably  whatever it is seems like a self contradictory because in one place it says no this was not in performance and duties but in another place it says the hours of work are eight am to eight a which would essentially make him an on call employee at all times so on night shift or something but we can't we can't we don't know what that is it's at the end it looks like the district court didn't notice the eight am to eight am is that right i'm not sure i do not ever every man to have some of these case some of these issues determined and i was really have no objection to that either year and i'd be more than happy to brief this for the day at the district court level and argue the case there are so many facts district court that's not a decision for the secretary of labor that's why we are you there it would be our position that the reason the way that the test is written it has to be in performance of your job in terms if you look at most you look at reap both those cases i believe it was she was actually on duty and fled when the gunfire you know and in reply was actually walking into his i think police station to change don't know we don't have that record here that's what last point and we but we do have this statement of his supervisor saying was he on duty and his supervisor says no and i understand the court's if it's almost circular going back and forth your honor but in terms of he's job performance his duties took place apart there was nothing remote there was nothing he did on line there was not an hour long call phone for him and his there was an emergency at the park as are you giving us all kinds of information that we don't have and i do understand that you're going to be part of the problem that is this case was dismissed so early on that very little discovery an exchange took place between the parties right if you wan your argument or any hearing or anything on this case or was it just on the briefs submitted and again i might almost lean on the united states for that because the attorney in question is not with my firm anymore but i believe that it was dismissed by c claim part of the issue here is that plaintiff's factual arguments have evolved as this case has progressed look how so it seems to me that there's a lot of game playing on the part of the government it looks in this case and possibly i initiated the claim and i took the appeal so the evidence before the district court was at least at that time the plane well that doesn't answer my question is stands to why this could possibly be colorable given what is in the record in front of u how is that coverable don't tell me what they said well i want to know from your lips why it was potentially claimed that falls within the statutory requirement of being while in the performance of duties so he's alleging physical injury that took place understandably i hear the court's hesitation because the form isn't signed there the only evidence is that his work schedule was twenty four hours a day monday through nothing that suggests that either way council n e r fifty two there is something that contradicts there's the eight am to eight am as you indicated you interpret that i think reasonably that it could be a twenty four hour schedule perhaps but just below that  the form indicates that the employee was at his residence not on duty right and that he was a park ranger correct he's a law enforcement officer whose duty hours are twenty four hours a day that so so so just if you could return please you just said i think there's nothing to contradict the data twenty four hour schedule and and he was on duty but it says right here he was a non duty status the form is internally inconsistent going back to the draper's very first question and i'm not sure i understand your response to that i don't disagree that it's internally inconsistent i can't answer who made that statement why it was made i don't know the circumstances of that but the case law is clear that that determination that coverage in and of itself question that question of whether was this done in the performance of duty that's a question for the secretary of the cli right crack typically yes is that mean the court can't make it and if so could you give me that authority so unless as a matter of law the court of duty within the meaning of the statute it's not the government in this case isn't taking a position at all what mr porter was doing at that time that's not answering my question if you would like to think of it as a performance of duty within the meaning of the statute or not i don't want to not answer you but i think it would depend specifically on what was going on if you were getting up to answer the phone because he got a call and if you're not if you're just going to the bathroom because you need to go to the bathroom yes or no courage under the statute you are not it doesn't seem likely but that's a determination that the secretary of labor would make ok and that's position that the judge could not make this determination you said both you said should you said typically and i'm asking you is it really your position that the judge could not have made this determination and if so what you're thir so yes it is is my position that the judge could not make that factual determination the authority for that is the figure on a case again the repaints they all talked about you know if it's the secretary should make the initial determination of coverage to provide uniformity if you're doing the should think again should typically but i'm asking whether or not he really lacked jurisdiction that's a black white or black and white question on off switch yes what your strongest authority for that position please authority for that position is the fact that plaintiff admitted he was actively pursuing the claim that the case law makes clear that that determining sounds i'm asking for the legal authority ok so that would be the the judge cited moe right do you want me to rely on or do what is it you want me to rely on for the notion of the judge didn't have the jurisdiction to make a mo rebut figaro and they all say the same thing ok this i think what we have here and if the court looks at the plaintiff's opening brief is really an attempt to electronic right and that's what the district court found as well you don't get to have this election and remedies between i'd rather pursu something and that goes back to the question i asked that i'd like you to address there's there's clearly an injury here that's significant there's clearly negligence here and so is there a willingness on the part of the government to this is now is the government going to entertain mediation at this time sure ok but just to clarify the election of remedies point we understand that worker competence is an explosive remedy and he doesn't i think that you have a strong argument there ok and i think the evidence shows that the plaintiff really did intend to pursue that claim until the united states filed a motion to dismiss and then thought she had rather have the f t c a recovery summer to drop  he cites in his opposition in the trial court the fact that the district court did have the authority to stay proceedings while that while the process wound itself out he knew that instead they elected strategically to drop the speaker claim and try and go down document didn't provide any evidence they sent him where he says he didn't file the now document that's not signed we don't know who filed it it wouldn't be unusual for employer to file file one for sure but is it right to go back to judge would last point that he didn't participate at all in the worker's comp letter saying you didn't provide any supporting information which obviously you couldn't yes but let's difficult for you in this argument as i think the government has a has a fair point that it did seem to be shifting sands you took inconsistent positions to get appeal is right it's a pretty inconsistent picture again your honor we weren't trying to be inconsistent we had initiated the f t c a claim before we ever knew there was a fee claim out there we dismissed the fee can claim because we had initiated the