number you live in there six three eight zero deirdre clarke versus united states of america arguments not to exceed fifteen minutes per side mr hammack for the severe depression and its impact on her ability to file comprehensive twenty two fifty five motion in the first instance as a result ms clarke's motion to amend was improperly denied she should be permitted to amend her twenty two fifty five m either by this court or by the district court on remand with an evidentiary hearing as appropriate at bottom your honour's this case concerns a straightforward and largely undisputed issue namely whether severe depression may constitute  second that's correct your honor she did not file a medical record or a statement from an medical professional regarding her diagnosis she has since received her medical records and would be able to submit documentation of her diagnosis  treatment during the relevant period on remand but taking a step back your honour's it's important to to first address the depression symptoms which largely are again aren't disputed here it  can cause difficulty thinking concentrating remembering details and making decisions it can also significantly interfere with a person's thoughts and activities particularly with that individual's ability to work and study and in light of these symptoms that follows naturally that depression may sometimes count as a compelling reason if the illness impacts the petitioner's ability to think remember study and decide it may also impact her ability to fail to file a comprehensive twenty two fifty normal timing requirements is not new to this court as as we pointed out in the briefs this court has noted that mental illnesses may justify equitable tolling of statutes of limitations it should similarly recognize today that severe depression may count as a compelling reason to permit amendment and in its briefing the government accepts that depression may sometimes be a compelling reason to permit amendment it proceed however to quibble about whether miss clark has made the requisite showings in this case the important point here though is that because it misread this court's decision in more the district court altogether failed to evaluate ms clark's depression as a potentially compelling reason to permit and it never even considered whether miss clark satisfied the standard at the very least it should be directed to do so on remand and more to the point as discussed in our briefs miss clarke satisfies the standard here once again the parties agree about the a political framework to demonstrate that her mental illness is a compelling reason to permit and miss clark must first make a threshold showing of severe depression and second she must demonstrate a causal link between her depression and her inability to file a comprehensive motion in the first instance with respect to that threshold showing she stated in both motions that she suffered from severe depression and consistent with with a previous diagnosis and diagnosis this depression closely followed separation from close family members in two thousand she was diagnosed with depression after her father and grandmother died here she suffered from depression after an extended period of separation and isolation from her daughters as a result of was minnesota or wisconsin what about the time of her first motion to me she had been transferred to a facility in bruce in those west virginia which is significantly closer to her daughters who were in kentucky at the time and what about the time of her second ma quite that avenue and then before the second motion to him in with acted upon her time had expired is that right that's not quite right your honor your first point was correct she could have appealed at the time she filed her second motion to amend but that the court denied that motion only one day later so she still could have filed a timely notice of appeal as to the initial denial of her hevia petition and the denial of her first motion to amend but she didn't file her notice of appeal until i believe october thirty first eight days after she would have been able to file a notice of appeal that was timely as to those first two issues the initial twenty two fifty five motion in the first motion to it why is this not the second and it wasn't a second or successive motion because there was no proceeding that counted as the first and we point your honour's to the second circuit decision in in chain where the court said that the the parrot ignited case right is  when a petition filed a motion loses on the merits and either that appellate window has closed the time has expired or she's exhausted an appellate remedies and then files a second notion but but but your argument is not really it's not really limited in a timely way so your argument would they sickly is i understand it that if you found a motion to a me and whether true or second your third or your follower and it's identical to both your initial petition or your first motion to me and you can it and attach it to the additional proceeding with added the in labeled call it the same thing for the same docket number on it makes the same argument you've made before and you can make them over and over again and nobody's ever going to call that a second or successive petition well i don't think there's any need to call it a second or successive petition to protect it to protect against the kind of abuses your honor is discussing here  the issue i mean suppose we're governed by rule fifteen instead there are the mechanism is already established i think the big analytical different here because whatever the  considering depression in connection with if you're considering the solid part of one proceeding with the second or successive petition then we'd probably not be inquiring into whether she was depressed or not are  successive motion to to prevent the kind of abuses you were discussing rule fifteen already has a mechanism to prevent those abuses with bad faith tactics or undue delay that the court can already deny a proposed to amend that is simply repetitive or you know is the fourth or fifth identical motion to amend that your honor discussed and here it's also important to remember that the way the district court handled that first motion to amend was justifiably confusing to a pro se petitioner so in his let's take one step back for the she filed her first motion to amend and one day later the district court filed his his memorandum opinion and order incorporating the magistrate judges report recommendation and dismissing this clarks he vs petition all together he dealt with that motion to amend in the same  opinion in order in the same proceedings and initially he described it as a motion to amend but later said that he had construed that motion to amend actually as objections to the magistrate judge's order and it's our position on is that the treatment makes no sense  because she was attempting to bring entirely new claims that were not raised before the magistrate judge treating them as objections just it doesn't make any sense so that second motion was essential e a motion for the court to treat a motion the motion is permitted in the twenty two fifty five context under rule fifteen or presumably otherwise but otoh olson left open the door it didn't make a decision because it would have been dicta because the court rested on other grounds necessarily depression plays a part in in whether she was justified i suppose it had a compelling reason not to present the claims that she presented in her motion to amend at an earlier  things in addition to whether there was a justification for delay i mean we'd be talking about things like the whether futility and whether there was any crime she sought to m that she might have succeeded on or whether it was any reason for the district court to granted either of her motions to me and and now i guess it's not the proper time to talk about futility here the district court kind of jumped the gun with respect to futility quite frankly it ruled on her motion the day after it was filed without giving the opportunity without giving even the government an opportunity to oppose that for their factual allegations that the court could consider in determining futility because the court ruled when it did this court just doesn't have the briefing it doesn't have the issues teed up properly for for the citizen and please the court good morning my name is brian and five i'm here on behalf of the united states this case boils down to a really simple issue and it's just that mr clarke has made has not made sufficient assertions on the record on the record to support her claims of the depression and to rise to that compelling reason to allow amendment there are only three references anywhere in the record to miss clarke's alleged depression and all three of those hinge entirely clarke there's a reference in the initial in the initial motion to amend there's a cover letter in the second motion for the second motion to him and and then there's a reference in the pre sentence report that mrs clark told a probation officer that she was once treated for depression but those are really the only the only allegations the miss clarks made there's nothing else on the record to support that there's no affidavit tying her alleged illness to her inability to follow a conference a petition there's there's no judgment i mean it's there within the text of the rule and so in this particular in this particular instance it shouldn't apply that's something you mean even if you even if it even if it were to apply the motion to mention still be denied  upon statements made by the sensing judge at at sentencing and that transcript is on the record as well i mean as a as i mean the entire basis for those additional claims is in the record and those i think are very clearly her new claims alleging kind of the archetype of example of of discrimination on the basis of a protected class or anything like that all she's alleging is that there were some folks that were involved with the criminal enterprise that either weren't prosecuted or didn't receive sentences close to what she has  for but in this particular instance i mean just to go back to the to the to the issue i mean there's just there's nothing in the record that would support this motion to him in and while those records may be available now they're not in the record and i mean because of that lack of information i just don't think that there's any way that you could the could be an allowance and a motion to amend without opening the floodgates for other litigants once you have any authority that supports your argument equitable tolling for sexual impatiens mcswain add to those cases there are in those cases there are ways for the individuals to show what what it was that they what it was that was cases all of the individuals in those cases that we're asking for equitable tolling were able to demonstrate that they had suffered some sort of incompetence due to due to other mental disability but even in those cases the court was even if they were able to establish that they were in court that they're incompetent somehow that they were suffering from sort of mental dress mental incompetence while they were filing they still had to tie that incompetence to their bill to to to file conference petition so they had to demonstrate both incompetence and kind of causation that their incompetence somehow limited their ability to file and in this case mrs clarke is not even demonstrating competence at least based on the record and if she has been treated hopkins it would be very difficult i think for her to demonstrate any sort of causation on that front but how should we treat this case should we say as a second success of your petition or should we say that it's too late to mend once the judgment came down or is there some other way that you would have us through i think it is too late to mina for the judgment came that i mean i think i think it's arguably a second successive twenty two fifty five petition and as such we would be too late to mend what now when it are you is it too late to me and is that one argument or is that is the only argument you have that it's too late to me and the confusion i mean i think this could be treated as a success of twenty two fifty five and under that it would it would be too late to him to allow any sort of amendment in the circumstance but well but if it were a second or successive petition the reason it wouldn't be allowed would be because of the  there would need to be some allegations that would be sufficiently specific to under under or under out of there have to be some some allegation that was specific sufficiently specific to justify a a an evidence you're hearing and record is inconsistent on this while there were only three three different references by mrs clarke to her her to to her mental illness at this point there were also instances in the record for example ms clark at rearrangement told the sensing judge that she had never ever been treated for any sort of mental health issues which is inconsistent with what with what she had told a probation officer during the preparation of the pre sentence report so the record  is inconsistent on this matter and certainly does not support an evidence you're hearing they do your honors i just have a few points is to make first that is the distinction between that the government is trying to make between demonstrating and providing an allegation and and proving  her allegations may merit further evidence cherry development you know that there may be a reason here for an evidentiary hearing and we argue there is a reason here for an evidentiary hearing namely her her allegations are sufficiently specific first she alleged very clearly that she suffered from severe depression and she did tie that depression to her inability to file a comprehensive motion in the first instance she said in each motion to amend but her non comprehensive income inconclusive initial twenty two fifty five action was quote due to her severe depression in other unquote in other words it was because of that depression that she was only able to file these claims in a timely manner and then in a cover letter to the second motion she further explained that she was quote not in her rate right state of mind to have properly submitted them unquote again tying that severe depression to her inability to file in the first instance and nothing in the record is inconsistent with those claims she she did suffer a previous instance of depression after separation from close family members that's a consistent trigger here and with respect to an evidence here hearing i mean that's all you need all you need is sufficient specificity and nothing in the record refutes the allegation you have to have more than just bare allegations you have to have at least an affidavit or medical something or other to back up what you're alleging nothing to her severe depression and she says out the arguments were not presented an issue only and then and then she pursued if that's just the bad i mean you now and then she doesn't really seems to not be the work of someone who is able to pursue things in court and her second motion to him and parrots you know that sign language and there's just nothing there's nothing about tab for a there's nothing descriptive there's nothing to indicate she sought medical treatment so even if you've even if you say well it doesn't have to be evidence there's there's hardly anything on the face of the pleadings that would say that would provide a basis for taking a second look at what the district court did as saying i disagree your honor i think it's important to remember here that she was a pro se petitioner she had no reason to know that she needed to provide detailed medical records or that the court would disbelieve her diagnosis and treatment for severe depression and it's also important to remember doesn't appear anything other than a thorough characterization from the mud and from it even if that were true your honor that the allegations are sufficiently specific to warrant evidence you're develop g so the question then becomes can she actually support these allegations which you know the government has called self serving allegations but can she actually substantiate those allegations with evidence can she put forth medical