the use of discretion review is at issue that the district court is limited to the material that's in the administrative record and cannot stray from that record i don't think there's any question in this case that when the district court used evidence from outside the record remain and so that the record can be developed in the district court said i acknowledge and this argument about intoxication but that isn't the same as considering it or relying on it there's always something that you can assume remains to be done outside the record and so you you would say where you find an abuse of discretion if the either side really has you can't strictest insurance companies and say all the insurance companies get to raise these new issues if either side can raise a hypothetical situation that might lead to a different result than you must remain and what the district court did here though is really look at that line of authority that he had submitted and said that's why because we have this situation where we've got to misapply plan now here's where the court shouldn't fall for that because those cases are distinguishable very simply because number one in this case it was conceded the eligibility issue that was the only issue that the court was asked to no it was a question of well what on us pay will make it so in all three of those cases the reason the court couldn't step in and make that call is because there's a factual dispute in other words the evidence is already in the record and that's a very  city taft cited to jones which cited to hicks which cited to trust cases of the district of columbia and those trust cases in the district of columbia said that where there's a factual dispute you're entitled to have the trustee make the call in the first instance however where there is no factual dispute it doesn't offend anyone if the district court makes the earth the court makes the call in the first test it's because there's no factual dispute that's what we have here we don't have dispute and i would suggest that the court you know when you get to thinking about how would you renan this case and what legal basis there really is none it would be creating a basis for re man that has not previously existed either in this circuit or any other because your remained in not for planet or petition not for a fashion dispute present in the record you're remaining for a completely different proceeding on a different issue you know you given the second by the apple this is what claimants have already been prohibited from doing all over the country in every circuit and i guess but you know the way to illustrate that would be if a client came into this court and said i claimed disability because of a back injury and then the clear recognizes i'm going to lose  on that issue the client will withdraw the issue and say i want to claim it's a neck injury is that the same as me not a back injury well if that evidence is in a record number one it was raised so if that position had been taken with reference to an incorrect claim you would s are you are you saying that then the claim might it's just stuck with having made its pitch based upon a totally incorrect plan i don't quite understand the question because when a claimant tries to switch the grounds the incorrect plan really doesn't come into play well i mean if the claim is arguments an incorrect plan is a completely different matter but clearly you chose the hypo i didn't so i mean i'm just trying to see what you're really saying you saying that it doesn't make the slightest bit of difference that there was an abuse of discretion on basically well i'm certain that the parts were limited to the record and if you let them go outside that record even on a hypothetical basis and that is that there must be another issue out i don't mean that in a disrespectful way it's just not something you look at when you're limited to the record if it's it's not if the court then really becomes a part of the process which it shouldn't be and secondly i just briefly want to close and try to say two minutes for for  remainder order is that it's not a final judgment and this court doesn't have jurisdiction unless the randleman factors are met to meet that exception and unless the court has any questions about the jurisdictional argument i'll rest on the research stuff to point out that part of the policy behind the final judgment rule is that we have the time the case reaches the three of you obvious truths have been addressed it's been percolated and court can handle it in one one form and you've already heard the phishers counsel say we're going to litigate we have a number of other issues to litigate this case is going to go on forever and that's exactly why it's not timely for this court to be hearing this case because there are other issues that could potentially be addressed and should all come up on in one action that we were in have that if the district court and  taken hadn't acknowledged the existence of these other issues that were not in the ministry of record is true to a certain extent the district court judge magistrate and the judge acknowledged the existence of an issue and i think that's what happened here and the reason that's important i don't think so your honor because in the vast majority of kit look let's take a step back the claims process here you have a claims administrator who has discretion to adjudicate claims in a way that is economical and efficient i not on that basis i don't think so because if you look at it under mr you have ninety days to assess the claim to make a decision but the plaintiff is arguing is that aetna has to go through every potential issue assume that hurdle and i'd like to give the court an example where is there for at the district court level trial court level and the trial court says statue of limitations has not been met early on in the stage dismisses the case goes up on appeal on appeal the court says statue of limitations was wrong and then the plaintiff gets up and says ok you have to decide the rest of this case based on the record at that shortly after we got the case realized that there was a mistake made that and try to do the right thing did the right thing so we made a mistake didn't we the gate the eligibility issue on the wrong policy and if you think about what the plaintiff is arguing if he's saying look you're stuck with the administrative record then what he's saying is that you can't step up and do the right thing we have to actually proceed on this case on the wrong policy which means we should have argued the eligibility issue on the wrong policy and we we would be doing that right now because that's that's was what was an administrative record the wrong policy the wrong eligibility provision and in fact when the parties exchange draft rule sixteen missile joint reports the issue was framed was the other bill eligibility issue decided right was the date of employment that the that the employer submitted the right date but at a tried to do the right thing and said hey wait a minute we used the wrong to pay attorney's fees but when the plaintiffs decided not to agree to remain and we knew that there would be attorneys fees issue at the end and so we decided to hold off on resolving attorney's fees we were in front of the district court and in that process a which is what they did on a robinson in the fifth circuit which is what all insurance companies do when they when they realise they can't sustain a position ultimately i think you have to distinguish other southall in this game on the grounds that they weren't sent back for a different issue the also back on the same issue on the same record there is no authority that permits what it is requesting here because ultimately what we're talking about is deference and i would just ask that the court not show deference to actions not taken and you know we started