plaintiff and see construction this is a dispute over payment for construction work performed by agency building troops housing for the united states army on an air base in qatar ain she was hired by blackca requires a nd tier sub contractor like and see to meet two time requirements st it's required to provide notice to the prime contractor within ninety days from the last day of the work claimed in the notice and nd is required to file a complaint reasons why the court you find there is at least an issue of fact regarding the names you last their work was st and he continued furnishing his own equipment at an agreed monthly rate which blackcap continued to use on the project through under the miller act for the entire period when its equipment is on site and available for years so the sureties argue that there was no agreement between n c and black cat two we acquitted at least that's what they appear to argue but the evidence here to the contrary in the st place to look here is that the sub contract alliance agreement itself between a and c and black cat it's attached to the amended complaint docket number fourteen dash three and at page seventeen out of a one hundred and fifty three dollars pages of that exhibit it says that n c is responsibility if the sub contractor to provide the plant and equipment in the same sub contract on page fourteen says that agree to those rates the record also here is where is there evidence that they were actually leasing this equipment as part of your agreement project we also have the monthly invoices and we have the testimony from mr carter i hear and see that those inventions were sent monthly and the cost has been approved since the beginning of the project or the month and what he says you're referring to along with the monthly rate for work each item and at the bottom the monthly price for the for all of the equipment together which was roughly twenty thousand dollars per month is higher in the evidence so that you august th notice put them on notice and triggered payment with respect to all work done up until that point correct that's correct yeah but you did not make that argument  at the summary judgment stage before the district court you didn't raise it intil your motion for reconsideration why haven't you waived that well your honor before the district court we argue that this august th two notice was sufficient for all of the work that they can see you have performed on but you argued that that in your in response to the summary judgment or at the summary judgment stage not the motion to reconsider you argued that you should be paid through february of two thousand and seventeen not that the notice put them on notice up through that point so your dates have shifted which is date as to what the notice held them for sponsible two for the work period it held them responsible for well it's corrected in the district court we argued that the aug th the notice was sufficient for work claimed on the notice plus plotting additional post notice work is included in the complaint that's true and on appeal i can only that the notice was sufficient for the work claimed on the notice and then it would be clean but there's nothing the argument here wonder if there's any if there's any outer limit to the legal point that underlies your argument in the quest so the question therefore is in your view is there any limit on a sub contractors a judge got of the law but on another issue is that the work that can be claimed in the notice has to be pretty notice work and i think it's i don't know i understand that but what about sosa so they get let me give you a very simple hypothetical suppose they sub contractors working on a ten year project to construct an aircraft carrier for the us navy and they don't get paid after month one and they're they're worried about that it's a ten year project they're not getting paid after month one they're worried this isn't going to go well so they provide notice and they say we definitely want paid for the st month's worth of work but we also want to get paid prospect of lee for all the work that we intend to do for the next one hundred and nineteen months does that work under the statute it does work under the statute you want to but the notice would be effective only for the work that was performed within the st month and i think it's useful to look at the purpose of the ninety day notice that was set forth accurately and sure he's been ok now that different from your notice right because your notice here with not saying hey look we don't actually like to get paid for all of the work out to february th two thousand and seventeen but let's be clear at a minimum we want paid for work on or before this notice date of august th two thousand and sixteen that's not what your notice said is it hundred thousand dollars worth of notice i'm signing for work so the notice didn't he was very specific about the work that it was claiming for the amount claimed and that was the amount that was performed up through the date of the notice so what we're arguing on appeal is that that notice was switched sent contemporaneously with the continued provision of work and it does say that certain agency equipment remains on site but it's not projecting forward in those until they also want to later be able to recover for that work the nd tier sub contractor and the supreme court held that those employees couldn't bring a claim because they didn't have a contract with the st year sub contract which required have standing under the miller act but the nd tier contract in that case  y could have brought a claim for the work of its own employees even if those employees could bring a claim themselves flat bottom the court held that the law to act only protect against the faults two steps down the contractual chain but it doesn't mean that nd tier sub contractors can't recover for the work that they furnished through their employer unions as was the case in basin or through their subcontractors and we think that the district of delaware got this right in the sween richardson decisions when they held that both st and nd tier sub contractors should be able to recover for the work performed by their sub contractors under the no right to find arise what is more i just want to tell you a little over settled seven circuit precedent both requirements are strict conditions to says here is how in see describe those timing requirements and its response to summary judgment at page eight hundred and fifty nine of the appendix which is page five  response quote the miller act imposes two timing requirements upon sub contractors like n c who bring suit on a payment bond st that requires a written notice to the contractor within ninety days from the date on which a person did or perform the labor or furniture supplied the last of the material for which the claim is made nd it requires the suit be brought no later than one year after the day on which the last of the labor was performed the material was supplied by the person bringing the action both timing requirements run from the last date upon which labor was performed or material was supplied and see summary of the miller act is correct but in its response brief to summary judgment that is exactly how additional arguments you would have made or additional evidence you wouldn't submitted at summary judgment if that argument had been raised for the st time that the summary judgment briefing yes your hon if for instance if we had known that the argument was that was that notice that august th was some sort of somehow relevant date there may have been additional facts or arguments that we would have presented to establish perhaps for instance that the notice was inaccurate because they one million dollars doesn't account couldn't possibly account for the fire suppression work which was also unkindly so there's a there's a number of arguments and facts that would have been highly relevant to the district court to consider including that and see had never once events that argument in any way shape or form so it would have been particularly surprising that the dish records and see had changed its last day of work at the fisher court so we were aware that  cutoff date doesn't work under saddle miller act precedent extent there is a question that's exactly what the miller act anticipates and requires and the reason for that is to make sure that the taxpayers aren't don't just face limitless liability from sub sub contractors because  bears the cost of these claims the surety ensures that the taxpayer pays for the price of the contract and so the statute expressly anticipates that a sub contractor will continue to provide notice within ninety d or the last day for which the work is claimed and that is to make sure that everyone is on the same page just a lot of so know nothing prison for a minute and see from doing so they simply didn't do  that the nd focus of my argument this morning will be that it even if some factual dispute exist about agencies working until february th two thousand and seventeen and the district court got that question correct but even if there is some factual dispute n c s claim still fails because n c did not provide notice within ninety days after the day on which a person did or performed the last of the labor or furnished or supplied the last the material for which a claim is made as in the act plainly requires before jumping into those arguments i'd like to make sure make one point about the standard there's been some mention that's another act as liberally interpreted and that's correct in certain instance should not use its view of the best ways to achieve the legislative ins to override the legislators specifications of means and specifically the notice requirements that we're talking about here turning to the waiver point seeks reversal of the district court for allegedly committing a legal error in interpret the miller act n c represents that it is simply one owing or narrowing its argument that's incorrect as i quoted earlier and see expressly argued for a different interpretation of  the act expressly stating in response to just summary judgment that quote both timing requirements run from the last thing upon which labor was performed or material was supplied and see only advance its novel interpretation in a rule fifty nine dollars emotion it would be patently unfair and completely inconsistent with the th circuit precedent to reverse a district court's decision based on an alleged error and interpret the miller act that ain see itself advocated for prior to losing its summary judgment the motion here is followed extensive litigation multiple years numerous depositions written discovery and millions of documents produced in exchange in that entire time and see never argued that it was entitled to recover for work prior to its august th two thousand and sixteen no i cannot it because it soon within one year of that notice and see never argued for partial recovery and never once even hinted at the legal theory presents to this court and cite a single place in the record to suggest otherwise and interpol i bring fancy quotes jones v barnes a supreme court decision dealing with whether appellate counsel must raise every non frivolous issue requested by the client client that case has no bearing on this case and see also mentions that waiver is not to meant to be quote an overly technical hurdle citing this court's decision and fox behaved that's true but foxy hayes deals with how i want to tell an address qualified d immunity on appeal following trial and no one claimed in that case that the appealing party failed wholesale to present an argument n c is not presenting some nuanced difference in its approach it's a new legal theory and in that respect all the credit court the resolution trust cited in our brief is precisely on point just like this case the party there lost on summary judgment and then seized language in the district court's original summary judgment in order to advance a brand new legal theory this court confirms that a party cannot present a brand new legal theory after losing on summary judgment and that's exactly what n c is attempting here the district court should have the opportunity to resolve these issues in the st place and since it's not this court should have firm on those grounds to prosecute its new theory for the st time an appeal both creates perverse incentives and would make that last for the incentive despite several years of discovery and he did not give the district court or the surety the ability to brief argue or should not modify important statutory rights under an important contracting statute like another act based on an argument presented in the st time an appeal particularly because that argument finds no support in the tax plain language turning to the to the substantive argument i honor ok is there any what i when i wonder about is whether the statutory language doesn't permit a contrary interpretation that there can be pre there can be pre completion notice if you will but what i worry about is that it is the statute would not seem to allow pre completion notice to just run indefinitely hence that aircraft carrier hypothetical so in other in other words there's nothing there's nothing wrong with saying in a notice we want paid for work that we have completed on or before this notice date we're going to continue working and we're also going to want paid for the work we do in the next ninety days but i don't see it going out into infinity why is that why is that construction of the of the statute mistaken or incorrect in here out to that may th two thousand and seventeen date i'm not so sure about that as a legal matter that's what i'm trying to ask you about why can't it be the other direction why can it be said be wary two hundred and eighty two thousand and seventeen minus ninety days and your honor in the in the correct case i actually don't see any problem with that nothing illegal about it so if you want to go ahead and sign that notice on august th and say we want paid for any and all worked on from this day you know back in time fine and we're going to continue our work and are also going to want paid for the work we do in the next ninety days so a fine too but february th two thousand and seventeen is beyond ninety days correct and then back to that i have to address that point in the context of this case i do think it's important to keep in mind that that sort of novel interpretive theories we're grappling with here was not something that was presented to the district court until after a post judgment motion so to the extent the court is concerned about clarifying that issue of law this case would not be the right case to do so because the district court didn't have the chance in the st sentence to grapple with days looking forward or backward from any notice provided by  address judge scudder's question and it's really the question is is pretty completion notice timely as i understand it the surety haven't cited a single case in which pre completion notice was found untimely with respect to notice  work performed prior to that notice and the statute doesn't require that notice be given only after final completion of all the work on the project only need it to be given within ninety days within the work for which the claim is made there's no ff provides notice prior to the completion of the project so james you haven't made any new legal or factual argument appealing factor in to rely on the same substantive case law as the parties relied upon and summary judgment in all those