it's like an affirmative defense delay can cause forfeiture in delay must mean something and so when the united states is called by the supreme court the richest most powerful and best represented litigant to appear before we have to take that and i assume that there were probably procedures in  place i can't imagine any usas office in the country that does not have a system in place already designed to flag immediately noticeable issues such as jurisdiction or timeliness or other things like this soon as the ca pacific that we briefed that for an affirmative defenses it must be raised at the first or the earliest moment possible in a case or at the latest that that was a trial but it was the general the affirmative defenses of preclusion it came up in the middle of the case and then it says that the latest at least the first reasonable opportunity rule is covering all of that and yes the government may but it's our position that if it delays if it waits till the entire merits of the case till everything has been done till the first reasonable opportunity is opportunity and before everything is done yes i think that the first operator reasonable opportunity as i was saying is when the cases docketed you feel yes in this court because that gives the notice of appeal the date of the judgment entered and all of the information that the government needs the government did file a motion to dismiss and the court held that it should have been granted however in that case the government acted in a month after the notice was talk processing rules are not jurisdictional and i think now we're getting on the spectrum of it being more and more not the first reasonable opportunity  plenty of case law about affirmative defenses and there's plenty of case law contrary ryan this court's us your or your terran that eberhard of all of those cases that say this is an affirmative defense and if you wait too long you several levels of generality above yes your honor but i don't think it's levels of general and generality allowing the government who is again the best resourced litigant knows w it's usually it's filed less than two pages in substance with a motion to suspend it didn't give it all to the court along with its merits on a sentencing and all of that it filed it very late just when it local rule seems at least quick reading to i don't think the government would be unjustified taking it means what it says which is that it can be filed it certainly may i agree but the real camera will also notice that if it's a motion to dismiss it should be as quickly as possible it should be done as soon as possible to avoid all of this waste to avoid all the that the government must act within a reasonable amount of time after it knows its claim before we have gone through the merits before we've in my my understanding your question j it's i do believe how to ask it i understand and i do believe the local rule which clearly is generally worded and says may i believe that is covering the jurisdictional powers all possible motion i know that the government is aware of these this line of cases from eberhard to contradictory right and to the wrong line nowadays there they're coming up more and more they know that any claim has noted untimely and beyond this for several years when they have been late this is less than four months is not appropriate but this is again not a jurisdictional rule and the supreme court  yes instead of it being dismissed when the government filed its two pager months ago he could have filed for a b s twenty two fifty five much much earlier and been farther along than now we have that we were supposed to hear this case months ago the government then team on and asked for an extension he is still waiting you still in prison own delay this is argument not just a clear  agree but as more you know martinez has said the sensing guidelines are complicated and it notes problems are going to sometimes be overlooked and by the time he got to jail in prison and had the time to think about it he alone pro se realized there had been serious errors and i agree with him and he filed a notice of appeal and it's not jurisdictional and it doesn't it must mean something more than the government being able to back and see the entire case thank you very much good morning thank you may please the court v j shanker for the united states your honors the question of what constitutes the government's timely assertion of untimely notice for a notice of appeal has been answered orphan it's right to raise a point correct your honor that's right but i think the question is still working here of what is a timely assertion so i do think i mean i could stand here and say at any time i do think if the government allows for example this court to reach the merits of a case and then moves to dismiss the appeal at that point one could argue that that's too late and that's i mean why would i would you argue well i don't which might be considered too late is when the government has addressed the merits in its answer and that i think coincides with the general notion that parties waive arguments that they do not raise in their merits briefs to this court it is understood and accepted i think that the government can be forfeit or wave or not assert untimely and so i do think it's incumbent on the government to assert untimely at some point and i don't think it's in anyone's interest for the government to wait until this court has reached the merits and then move to dismiss an appeal but that's why i think the language in man reeks for example where the got screwed court says the government timely raised on timeliness and then directly cited to the government honor and that's why i started with the premise that at least by the time of our entering the breach and in fact there is no requirement in this quarter other courts that the government even file a motion to dismiss an appeal as untimely so the court the government can wait to thank you very briefly i first want to make the point that it's our position as we said the government has defaulted this argument about forfeiture anyway has never responded to our response to the government's motion to dismiss where we go in to so under car thorne and other cases in this court we want to assert quickly that that they have defaulted this argument they have not made any arguments that they didn't or secondly and finally we are here now all of the resources have been spent in this case all of the time all the things that raising the affirmative defenses quickly are supposed to address have happened the government is that no more prejudiced now they've prepared we're all here so we would ask that you do in our case here i agree your honor and that is a twenty to fifty five issue but we're here now and instead of going back and go doing the twenty five and then coming to this court again we can hear it now and i would ask that this court keep in mind all of the cases that do discuss forfeiting versus waving yes they can decide to waive it but in action forfeits and that is a simple notion that is clear in case law that they must act when they know as soon as they know and if they do sit on it they may not always know hard and fast if they offer some excuse some reason if they fill it with the opening brief and the substance at the same time maybe those would come into the calculation so that you do really have this court has a full case in front of it but none of that happened here the government sat back and watched after many times that it had many opportunities that it had to raise it and didn't and then simply raised it in a two page motion after all of the expense and of the other side which is is not going