issue when i was in practice we'd always have affidavits of service where you get your secretary to swear that cheap put the paper to be served in the mail on such and such a day either by dropping it in a box or delivering it to the mailman as i understand it this government agency doesn't do affidavits of service it doesn't use the green certified mail receipts the queue to rubber stamp or service it just has a rubber stamp on the paper to be served it has that they and they rely on a presumption that it was mailed the same day that the paper was dated by the rubber stamp the tech wreck i understand that is correct in that this agency used to sort of by mail and have receipts and that the pot procedure at that time was to put a stamp the question here is all we know was when the letter was prepared we don't know when it's place the facts on which at present and in this record all our book produced my questions you can't tell whether you're getting a softball question or a challenge so does helpful if you answer i'm wondering whether we should strike the letter so i want to know if it was in the district court record i don't believe it was in the district court how could the letter not have been in the district court record produced below but for summary judgment relied on what was produced at some point was produced and what for the deposition produced as part of this covering pine was represented prior to the motion for summary judgment ok so it was in the record so it would have been before the district in some context the fact that it was not provided to the court in summary judgment and was produced in discovering a minute not that couldn't tell me my answer in discovery there commonly requests for production and parties produce documents in response to the request for production but the rules do not require them to file the responses to the request in the district court they're usually not filed in the district court and only ok and what did the deposition say the deposition was conflicted and on page thirty six she said i don't know it might have been mailed a day or two later she's not in a position to know what to do but but when she asked what the letter was she asked was presented to the district court all they relied on was the statement by my by the client in her deposition they didn't attach an interest in her statement though so there is evidence that the district court had that the letter was dated december twenty six mailing and then proceed forward five days and in the media it was the day it will arrive at the at the residence of the official residence and that's what started the clock but it looked to the date of mailing book i don't care when it was was placed in the mails and that's what this court looked through then we've had we've had a number of decisions from other circuits since then don't most of the other courts now hold that there's a presumption that the date on which the e e o c stamps that is the date on which it goes into the into the mail and then use either a three day presumption or a five day presumption second sorkin's decision of sherlock which is started that line said when not contested i think the most important decision is the one from last year twelve months ago incurred at the eleventh circuit decision her versus mcdonald's in which the court in which the eleventh circuit found that the e e o c doesn't always send it the day it was mailed it might be that day or a day or two later it's january that would have the implication that it wasn't mailed on the date that it was stamped at but that's under stand at there no such evidence but she says that i don't know when it was received i didn't receive it a few days later it was sometime thereafter she should say i did not receive it a few days later he did she did and i direct report to our tab twelve that's where her deposition is deposition testimony of pages thirty six thirty seven thirty eight where you can actually what out our practice is i stick it in the box somebody comes by and picks it up and typically these things go out on that day but there isn't anybody here in the agency or down the mail room that's going to be able to tell you a thing about this letter now now what i think there's other circumstantial evidence at the approximate amount of time also encourages recognized that the that the letters must be sent before the file closes and now is the ten day window and in the current case the court said well we know it was sent before we close our standard practice it may not be this case that we can rely on this dean of practice and he gave a ten day window they knew when they closed with i don't think that they would say our routine is to just turn them out the day that they're stamped and we have no recollection of this letter i mean i would think most honest officers would say that i think that's possible but if this court goes if these people came forward and said we have a law going to proceed here and we know when we close the file and that's what happened that's what the testimony was in terms of general practice of the e e o c last year we know when we close the file at a minimum that's a hard date that we can count from and that's what the court counter from the eleventh circuit county incur we don't know how that would apply to what they vary the burden of their affirmative defense and if they can prove that she's on time and then her case gets out that they possibly how could they possibly prove that that's not within their that's not within their control but that's that's when you're have a threat it goes on how much time circumstantial evidence to say at a minimum we can say that the case today or any way that we could avoid a trial on when the letter was sent i mean that's not really fundamentally what the case is supposed to be about i think if from day one th air market done it's really done what it was mostly do not try to cut the corner a stab literally aramark that we're talking about at the agency right one asserting the affirmative defense if they want to come forth and develop the evidence they can do it a number of different ways they have it in the date that's on the top of the letter maybe on the next day if i get really busy and then i put it on the right hand side of my desk and then it goes in the mail maybe before the mailman comes that day and maybe the next day depending on what time of day it is when i sign it and put it on the outbox portion of my desk so that means that it would be a silly presumption to suppose that my letter goes out the they shone on the letter added it goes out that day the next day or the day after and my impression is that with government offices it's worse why kia my secretary doesn't hand it to the mailman the way she goes in fairbanks instead some guy picks it up from downstairs in the clerk's office and i don't know where he takes it and i don't know where it goes from there and i don't know how long it takes and three days and the judge kleinfeld that's not the way the e e o c operates and in fact we have more than just the date of the letter the second page under ta says this date should reflect the actual date of postal service acceptance for delivery the instructions in filling out this form say enter the date actually mailed and that's precisely for those reasons that other courts have recognized that the date of issuance of the date reflected on the date mailed starts the presumption this so let me ask you a couple questions now this manual you gave it to the district court clerk is part and it's part of the plaintiff that we're not there's not going to be a contest over that date and this case in other words here she's looking at the letter that shows the date she's asked you know do you agree with this and she does at the at a minimum it's a concession that we're not going to have to litigate that issue if she just said the lawyer didn't stipulate it sounds like talk to me her lawyer didn't make any stipulation that they wouldn't let it get it she was they asked a question for which she had no foundation and personal knowledge to give an answer and she conceded that she received a letter and the letter has that they were stamped on it and that's all she had personal knowledge for we take judicial notice all the time just kleinfeld of government that we had to prove postage and mailing is not an issue of somebody if somebody admits they received a letter in the mail you don't have to show as there was proper postage in order to prove it was mailed and of course then we go back to what how do we start the clock the e l c notice testified in her deposition that she she received not particular date that would be the date we'd be using but she did she said i can't say it's first you said it got there in a day or two then she said i can't say whether got there in a day or two because it was mailed on the record here and in fact the only thing she said in opposition to the summary judgment motion is that she had a witness who could testify that sometimes mail takes longer than three days it's part of the record you directed our attention t acknowledge receipt of this letter picks thirty six line ten and eleven says one sixteen it was mailed on september twenty sixth and then she says she she says first it knowledge that she received it within a day or two she then changes her testimony which is fine and says well i can't say that i got there two days you know because it was mailed because that was mailed out on the twenty second but i love thirty six that i can't find what do you mean lying nine she says that's correct and then on line twenty four of page thirty seven she says well i can't say that it got there two days you know because it was mailed out on the twenty sixth but you really don't know how long it took but three or five days that's what i'm saying if you don't than i received you know presumably or three days or five days after they get the money that was received at some other day counsel if we were to adopt a five day rule does that make her submission timely why not because it would still be two days too late and why is that for calculating from september twenty sixth right we have that she is the twenty seventh the twenty five or three or five as you can and ok but next you also get the benefit of january first because that was a holiday right so you're still tell us about it that's only that's only in terms of on the back end on the front end it's still it's five three or five doesn't make a difference we would have to file anything to anyone i understand that but your contention is that even under a five day it was still do when it was due the thirty first under a five day if we were to decide that we needed to adopt a rule here and we were to adopt a five day rule does that make her sufficient timely the september twenty six was a friday if it was mailed on monday as opposed  it doesn't matter whether we adopt a three day rule or a five day rule if we are determined to adopt one of those rules you cannot win if you're determined to adopt those rules we are seeking remain and i'd like to address the judicial notice for the document that was presented to me an hour and a half ago and i just want to know first of all before you do that she was pro se below she was not defended in her deposition there was no attorney there so i also like to direct the court's attention on page thirty six to one of the depositions you let me do on line six ten lines before the one that my my opponent direct me to she says it might have been mailed a day or two later she doesn't know and as to whether this court and under no media to recognize what could be out there in the record that could be fully developed and then potentially apply whatever mailing mailing presumption of three or five days this court term