and the judge is clicking for didn't think it would be appropriate for him to appear the other is working for a large new york city firm who unfortunately didn't think it feasible for her to appear but there were four central issues on appeal first was there a valid stipulation of dismissal consistent with the plain language of rule forty one a second if there was a valid stipulation of dismissal should have been vacated under rule sixty b third did the district court fail to fulfill its legal duty of inquiry to to assess yield and competence under rule seventeen and finally was the notice of appeal timely under the pr mailbox rule and usual address last because it turns on the other issues understanding it in full the great offensive we ask you to do address first since it has to do with whether we can even decide th that you want us i would i would take no one no offense but so first unless your honor decides otherwise under rule forty one the question is is there a valid stipulation of dismissal at all and the plain language of rule forty one a one hundred two states that in order to be a valid stipulation of dismissal first of all the parties have to to sign the document and bracketing that for the moment but the second essential characteristic is that the document must be filed by the plaintiff the plaintiff can't authorize an agent to file it if if musical else his attorney in the northern district had filed it in the western district then we would have a far different case it might be on his behalf authorize the defendant to file it is the is there something in the rule that says that either the incarcerated plaintiffs were his lawyer who does not reside in the western district of new york has to travel to buffalo or someplace to put it in the hands of the clerk where is it permissible for a party and or is the attorney on his behalf to authorize someone else to execute the physical filing your honor it can be mailed and so there's no question if i didn't ask for that i mean i suppose it could be mailed the question is is it the plaintiff must file it and this is not a mirror of it but we have already gotten past that because you told me that his lawyer could file it on his behalf what about somebody other than his lawyer could have proceeded litigant just ask a friend take something down to the courthouse plaintiff i'm sorry i asked the question could the plaintiffs authorize a friend who was not admitted to the bar to bring something to the courthouse and file it on his behalf yes because that would be the pla with the plaintiffs authorize an enemy to take it to the court house or an adversary to take it to the court house yes if the plaintiff is authorizing that party as a as an the what if what makes the person an agent other than the fact that they were asked to do something on behalf of someone else i mean in other words  i'm guessing that it's actually not that uncommon where people are both represented by counsel and there's a whole bunch of documents and they're all signed in some way at a closing type thing and then somebody brings the package down to the courthouse not necessarily the plaintiff's lawyer or the plaintiff herself somebody else who is connected with the case shows up and puts it into the courthouse i mean is there anything in this record that suggests that the plaintiff's lawyer objected to the filing of this in the western district we didn't want it filed in the western world in did not have a lawyer in the western district had a lawyer in the northern district right in the northern district and we've already passed the point of your agreeing that that lawyer could have mailed it to the western district or could have brought it to the western district and you would have a problem your honor i misspoke if that lawyer had represented him in the western district then yes why is that so why couldn't the plaintiffs say to a friend look i don't want to just mail this to the great house i don't trust the mails but i know you're going to be in buffalo next week i need this to be filed in buffalo can you bring it to the courthouse and file it on my behalf is there anything on lawful about that or anything that would mean it wouldn't be effective under rule forty one because it wasn't filed in the western district by an attorney who was had entered an appearance to represent the plaintiff in the western district of new york i mean not convince you your honor but i'm asking you what would be that what would be the rationale for that here's the rationale that rule forty one a one hundred two if it does not require any judicial approval or review if there is a second such filing it automatically makes the dismissal with prejudice there are important consequences to the filing  course there are consequences to the filing of anything but the filing is a ministerial act is it not i mean it would be different if there was some indication of fraud if it wasn't really signed if there was some indication that no one wanted this filed and somebody pirlo and a signed document that was not intended to be filed from the person who had signed it and then thought better of it and snuck it to the court house but there's no such indication here and  what you're telling me is that a rule forty one stipulation unlike as far as i'm aware any other document needs to be filed personally at the courthouse and of course you already said doesn't because it could be mailed i suppose it could be couriered right so if it was so some guy who works for fedex can bring it to the courthouse but an officer of the court who has been tasked by an adversary with filing it becomes effective yes that is the only argument the defendants of have raised is that there the single exception this court has recognized what it is said is otherwise the strict language of rule forty one a including plaintiff filing is that this co rule recognize that if in open court a plaintiff made an intelligent way for that was voluntary clear explicit and unequivocal that sufficient that's what defendants argue and that is not present here first of all the open court discussion was in the northern district and whether it could have been tantamount to a stipulation in the in the northern district arguably but a discussion open court in the northern district  the discussion the northern district could conceivably have been tantamount to a stipulation in the northern district but it could not possibly be tantamount to a stipulation in the western district why i mean as part of a global settlement why couldn't he have agreed to dispose of both cases he arguably agreed in the northern district to a term that included the dismissal of his western district but what he didn't do was stipulate in open court in the northern district in a way that would automatically be a stipulation of dismissal effective in the western district so under rule forty one a there is no dismissal defense can argue that a binding term of a northern district settlement is the dismissal of the western district case but that's not the same thing  stipulation of dismissal and i ask you about the competence issue is there anything what in the record indicates that mr elden did anything whatsoever in front of the judge that would lead the judge to question his competence there is certain behavior in the record that might arguably lean in that direction but even if even if there were that would be totally irrelevant this court in for really essentially established two different buckets one is the litigants behavior in the litigation even if bizarre is totally irrelevant the judge is subjective perception of that behavior the judge can undertake a will seventeen inquiry but there's no duty there's no legal duty  on the other hand is there is there the converse what if the person acts in a way that gives the judge utter confidence in his competence like correcting the judge about the details of what the lawsuits are and which one isn't which district and so on the second bucket is whether there exists outside the law suit objective we verifiable evidence that a mental health professional agency or court has made a determination of mental illness and treatment for mental illness suggesting incompetency and is there any of that what he is confined as is a visual sexual offender is there any anything about that designation that suggests that he's not capable of understanding the proceedings and making intelligent to lock somebody up forever but it seems to me there's nothing about that diagnosis that would suggest for a second that somebody isn't perfectly competent to make decisions to understand and make decisions about a court proceeding play out that that's true what the fact that someone is subject to the extraordinary restriction that without a crime they're confined because they can't control themselves in society such that society is willing to tolerate their presence suggest that their inability to control their conduct me will resist anything is anything about that diagnosis that suggests they're an able to control their impulse to sign stipulations in court that there's no way there's no such thing right i mean what has any court and he's had lots of other court proceedings right including criminal proceedings was there ever any indication in any of those proceedings that his competence was an issue that we don't know and frankly the district court didn't know the legal duty of inquiry is the powell in the third circuit expressly adopted this court's decision for ellie and what powell holds is if there is some evidence suggesting possible incompetence then there's  ordinarily and it may well have happened in this case and we'd suggest might well happen on remand the district court undertakes a minimal inquiry and says you know what looking at your behavior looking at verifiable objective documents i don't find there's any issue of competence maybe the district court says i don't know i'll have enough eventually hearing maybe after the other entry hearing the district court says you know what i find you competent all of those would be subject to review for abuse of discretion there may well not be any issue of competence  what's required is a legal duty of inquiry to make some kind of discretionary decision which the district court and partly failed to do here that's true in any circumstance it's true in any circumstance if the district court doesn't make any if there's an objectively verifiable evidence suggesting possible incompetence and the gist of the question for us is whether this kind of sex offender commitment constitutes what exactly constitutes evidence that someone might be incompetent to represent himself and his own interests in court that's the that's the issue as we have to decide is whether this kind of commitment is the kind of thing that triggers the rule that you are disabilities that as far as i can see are not related to his intellectual functioning or his ability to make decisions about of the sort that are relevant to competence to proceed in a court proceeding tell me why i'm wrong what is it about that the fact that society thinks he needs to be locked up or he might commit some form of sexual offense again relates to co again we don't know the district court didn't know the district court had a duty of inquiry which could have been for you know the duty of inquiry is triggered we've established you agreed by the some evidence of a certain kind of mental health diagnosis we know what that mental health diagnosis or condition or commitment is about and what i'm asking you is why should i believe that the restrictions that are placed on his liberty severe as they are out of a concern about his ability to control certain sexual behaviors relates in any way to competence because the issue is that's what triggers the duty of inquiry so what is it about that that makes one think that a person might not be your honour's is of course absolutely right about the legal question but we know that it's only a matter of confinement for a sexual offense the district didn't know the district court didn't make a discretionary decision all the district what the district court knew was that he had been civilly committed because he was incapable of living safely and conducting himself in the world and what we argue is that that is enough to put some kind of burden on the district this report did not know what kind of institution he was in or why he was there knows he's in the central new york psychiatric center and that there are six different reasons why someone might be committed and what it all it might have taken if the district court had said send me the reason your their initial court said i don't find there to be a will seventeen issue here i probably wouldn't be standing in front of you but the district court you very good coming up his northern district attorney was never authorized to settle or even represent him or do anything in the western district and yet she apparently did both participate in negotiating and drafting and signing the western district stipulation of settlement under sixty one this court and gomez held that if there is any colorable question about attorney authorisation there should be an evidentiary hearing about what was what the attorney did to defend its argue that well she may have done something wrong in the western district but it's not an issue why because he ratified what she did because he himself signed the document ratification however requires that he knowingly authorize the previous decision even if it wasn't originally justified that he leader knowingly agree and his in the western district before he ratified i thought there was a discussion in the northern district about the terms on which the case would be settled and one of the issues that arose was that the other side wanted to dispose of both cases at once then there was a discussion of that with the magistrate judge another that's taking place in the western district that's a discussion about the terms on which this settlement is going to be and one of the terms comes to be you'll dismiss the case in the western district that's fully explained to mr yelled and he agrees to it now what happened previous to his ratification that was an authorized behavior in the western district it  may not surprise you ron or i have a different take on what happened in northern district what happened was that apparently miscall wells negotiated a settlement that encompassed both the northern district case and the western district case yeldon that was part of the negotiation and he understood that at the time he did not understand that at the time he repeatedly in his papers in his discussions with us he says i'm in the northern district and settling in northern district case i mean for northern district judge with the northern district attorney this has absolutely nothing to do with the western district i had not the i had no idea that anything was going on with the western district going on with the western district is a different question than some on authorised behavior by the lawyer  negotiate things all the time then they come back to their client and says this is what the deal is that's on the table now i don't know what rule requires a lawyer not to talk about anything in the western district the problem isn't that she talked about it the problem is she apparently psion the western district stipulation on his behalf and there's obviously a factual dispute maybe she will say i talked it over with him he authorized me to represent her there he says she didn't we need  a hearing so we have you signed but western district speculation he signed it and what he says and there and the western district had absolutely no evidentiary hearing said i dop the northern district here he says i had no on the table then the magistrate judge did an excellent job of going through each if you go in and recognise that yeldon had no idea the western district case would be dismissed you can see why he didn't understand that the magistrate judge says the northern district case that's going to be dismissed without cos now your western district case they're looking they want they want you to dismiss that you know then thought that the judge was giving him advice about his western district case and then later on judge arguing the western district case is still good which would be totally irrelevant if he knew these western district police would still disappear the open discussion on the record in front of him in which one of the lawyers says i'm not it tourney of record in the western district so the stipulation is going to have to be entered and signed by the attorneys of record in the other case wouldn't i mean how could it not have been obvious to him that th stipulation covered both cases that after as the hearing is ending in the lawyers are talking amongst themselves themselves about how to effectuate the filing of the stipulations that statement is made and you have a president he's present and he's shackled and in great pain and would that be relevant to an evidentiary hearing about whether he understood certainly is it enough to show clear unequivocal explicit hearing proof that he clearly voluntarily explicitly unequivocally agreed to release his western district case so you well well well over your time as you can see the government will have plenty of time to respond but would you give us one minute please as to why we have appellate jurisdiction and why the notice of appeal is not untimely yes very briefly riving us  yes and i'm sure the government will address that and then you can use your two minutes on rebuttal to respond to what they're going to tell us yes three reasons first forfeiture the the government argues that the compliance with says that the second circuit among other courts was misled why because the stream court says timeliness is mandatory in jurisdictional but in hammer in which is one thirty eight supreme court a forfeited because there was a motion for the notice of appeal to be untimely made more than a year before a separate different ground by the nose of peel was untimely also under rule fifty eight that there's a requirement that there be a separate judgment for any order except a few narrow specified ones one of those specified ones is rule sixty b but here the motion motion repeatedly and explicitly says he's looking for relief under forty one a and it's not that forty one a itself is a basis for a leaf but what judge baxter in the northern district said is i'm going to resolve this under sixty b and in the alternative i recognize that he's saying there's no valid forty one a dismissal so in the alternative i'm also going to construe this as a motion to oppose enforcement of the settlement to recognize there's no there's no actual valid dismissal to separate grounds because analytically the first question is is there even a dismissal compliant with forty one if there is then there's a separate question of whether it should be vacated pursuant to sixty b he raised both of those arguments the judge in the western district expressed the adopted the reasoning and the analysis of the northern district which recognised those two separate arguments there's no separate judgement here despite the fact that there's an argument that there's no valid stipulation of dismissal under forty want to a and then the separate argument that if there is it should be vacated under sixty be therefore his time with his filing is timely finally one sentence at most there is a dispute a fact we've explained in our briefing that defendants arguments should be remi romack good morning your honor and with this court's permission i'd like to start with our motion to dismiss right where we just left off we stand by our argument that this is an untimely appeal mr yel seven cents in our motion we produced an affidavit from a mail room employee at c n n why p c describing the process by which a patient would go about getting his mail metered at sea and why p c and critically here it is the patient with that fills out that request it is the patient who signs the date in the upper right hand corner says where it's going to and we have a request dated february twenty seventh addressed to the district court that is an exact match with the on the look that we received it's approved for sixty seven cents our mail room employees searches through the file finds no other posted requests in the vicinity of that time frame if you went to the district court docket you would find no other metered for sixty seven cents within that time frame i understand that my adversary says that there's an issue of fact because in his affidavit of service he says that he served it on february twenty first now there's a question whether even a conclusory statement about serving would be sufficient under the mailbox rule but if it is that is the bare minimum that it would take to trigger the mailbox rule basically what this argument would translate to then is that the bare minimum to comply with the mailbox rule would also immunize against any kind of attack that under the mailbox rule the appeal was nonetheless timely filed  we need to do is to either formally remain and to the district court for an evidentiary hearing or decide that we will undertake that factual inquiry which we would typically do by referring it to a we should be undertaking this kind of inquiry pretty much in every prison mailbox case where the prisoner has something that looks a little suspicious as to when it was dated and that's that's the way to run this railroad employee and discredit what the hell it says that seems to me to create an issue of fact you're saying this is like a summary judgment of all things that the fact that he swore to this  that he did this in a timely way we just disregard when they're not giving any kind of elaboration we don't know what he means by service to comply with the line that out when we have been cross examined in an evidentiary hearing and maybe it will and then we can make some kind of factual finding but i don't see how we get to just say no issue of fact when someone has sworn that something happened on a date that looks like maybe it did well i think it's also important to take notice of the juncture where this is happening this is on a motion to dismiss at this stage mr yeldon is counseled he could have easily put in something that was that contradicted our specific factual scenario for example where saying  discovery or something to do that how does he know what you are procedures or i mean he knows what he did or claims he did he doesn't know what might have gone on in the mail room but your honor he has our motion to dismiss and he has the assistance of counsel they could have gone to mr yelled in said here's what they're alleging you tell us your side of the story and he could have presented a competing affidavit telling his side of the story and we simply don't have that  the twenty first his side of the story is i served it on the twenty first we explain what do you want it on the twenty first and he brought it to somebody i guess that's the clear implication and i don't know what happened after that but any rate that's just a question of if there is an issue of fact we need to resolve the issue of fact i suppose it goes to our jurisdiction that's correct your honor rather than accept his representation which what usually all we have in these prison mailbox cases and then go on and decide the case in your favor and be done with that's correct you now i'd like to address that point as well your honor about jurisdiction my adversary brings up the hammer case i would direct this court's attention to park to be the hammer case haim that part of it centers on the fact that the seventh circuit there was interpret inter breeding a purely judge made rule had no anchoring whatsoever in the statute the mailbox rule on the other hand is an interpretation of what it means to file a notice of appeal under twenty one o seven houston v laughed at the supreme court case which first articulated the mailbox rule recognizes that as much because one of the defenses there was twenty one zero seven and they said that the mailbox rule is consistent with twenty one of the seven so we're not bringing up the mailbox rule for the mailbox rule sake we're saying that in the context of a prisoner filing a notice of appeal has to comply with the timeliness in order to  crazy jurisdictional rule because it is in the statute and the only way and clearly he didn't if you look at the face of the statute it's only by virtue of the prison mailbox rule that gives him a certain prisoners who wouldn't be able to go to the court on their own like it's not like the court or the federal rules created an obligation for him it's the federal rules create a help with the jurisdiction al requirement that's why it's for a state that's correct your honor and i'll add just because i know it's one of the issues that we we were directed to brief the defendants don't dispute that somebody in mystery  position a patient that aside catterick hospital could conceivably avail himself of the mailbox rule we just argue that with or without the mailbox rule he didn't do so here and that that's a jurisdiction all issues that we could raise at any time and that is because the rule refers not to a prison but to an institution and it refers to institutionalized persons and the advisory notes go to think extraordinary where the word prison which makes pretty clear that they intend institutions to be construed broadly that that's correct your honor and in the course of researching that issue and eventually eventually conceiving that it would apply theoretically we discovered that c n n y p c they have these details mailing procedures where we can verify when they requested the mail to be metered and when and that's what gave rise to our motion to dismiss now if he had timely made the request you we wouldn't be here having this discussion that's correct your honor and i was he would have gotten it into the institution's mailbox absolutely honor and we would say that the postage request because it is the patient who fills out that date so of that was dated on the twenty second or even on the twenty third the deadline but it wasn't postmarked until the twenty second oh i'm sorry the twenty seventh then we wouldn't be making a motion to dismiss we would we would concede that that is complying with the mailbox rule but that's a question and time that in that case he would have gotten the request in in time and they run their mailbox that's correct your honor but here every day down there is the twenty seven four days after the deadline and it's an that the district court itself received which is why we're here making our motion now if i may your honor if this court disagrees with the timeliness issue this appeal still left merrit i think during my adversaries portion of the argument  i unfortunately i thought about that as as my adversary said it and i suppose we could scour the record and maybe there would be something in one of the earlier filings saying that he is at  is part of the the sex offender treatment program but i don't know one way or another right now i would say however that regardless what we're talking about is whether or not the district court abuse discretion and so what the district court is faced with this goes to the competency issue is is a patient who has c n n y p c on his return address when he's making a filing and it's clear that mr elden is arguing that that in and of itself would be sufficient to trigger this duty to inquire into competency in every single case and we argue that that's completely inconsistent with for early in for any of this court noted that district courts are already overburdened with pro se litigation and that it wasn't going to articulate a rule to overburden them further this is a narrow duty of inquiry and what mr yeldon is arguing is that in a broad number of cases his rule would be status based basically everybody who is filing a lawsuit from c n y p c would need some kind of duty of inquiry and the court would be abusing its discretion if it didn't conduct the duty of inquiry i'll add we argue that the standard of review is abuse of discretion here i understand that in their brief they say it's  but one doesn't determine whether a guardian ad litum is necessary under rule seventeen unless that person is incompetent so a competency inquiry is the same thing as rule seventeen inquiry and that rule just far too broad if that was the case courts would which are already flooded with this kind of litigation would be shorn of their discretion to view for themselves mr yelled in as was pointed out has been in any number of lawsuits any number of legal proceedings there has never been an adjudication of incompetency in any of them of course had there been that would be judicially noticeable i will add that if either of the parties had any kind of reason to believe that he was incompetent that would be something that we could bring to the court's attention as well so the information doesn't have to come from yeldon himself he doesn't have to move to be declared incompetent however it's not uncommon for it to happen in this context for instance here mr yeldon did move for counsel and he said he's that c n y p c he wasn't sure if he would be able to handle this him self had he accompanied that maybe with some psychologist notes this would be a completely different case but those notes are the kind of medically verifiable evidence that really was talking about the is a duty to inquire based on the evidence that the district court has it's not a duty for the district court to go searching for evidence that it doesn't have and for that reason we would ask this court to reject categor by the time all the important events take place that are at issue in this case he already has counsel right i mean the yes your honor all this discussion is of the settlement takes place he has  party has a doubt as to a party as another parties competence that's something that needs to get brought to the court but your question raises another interesting point if we were to assume that there was a duty of inquiry here we would say that that duty of inquiry attaches only from the point of the rule sixty b motion on words because the duty of a sewer spondee inquiry necessarily has to happen in real time as i understand  arguing he is saying that the duty of the district court in the western district abused its discretion by not sue a spondee inquiring into mr yeltsin's competence in that earlier northern district case but he of course was in front of the northern district the northern district found no problems or at least implicitly found no problems with is ability to settle the case because he didn't appoint a guardian ad litum so if there was any problem with his competency that should have been directed in an appeal from the northern district aspect of the settlement thank you thank you thank you your honor may i please the court robert roush for defendant we certainly request the court affirm the decision of the lower court in its entirety with regard to the arguments regarding setting aside the stipulation of dismissal we certainly submit that the proof in this record reflects this was reached knowingly intelligently competently in court with assistance of counsel on the record i have nothing further to add to the co defendant's arguments i will adopt those arguments with regard to that issue i merit to the underlying claim under sixty b party cannot have leave from a judgment if there to fifth there is no merit to their underlying i'm sorry cannot have leave if there is no merit to their underlying claim or defense here we have a decision we're going back to two thousand and eleven now this case has taken a bizarre procedural trip up and down the courts but we have a decision back in two thousand and eleven which is still the law of the case this point dismissing his claim against dr to receive based on medical malpractise an eighth amendment due to not just failure to state a cause of action but expiration of any a political statute of limitation that's the decision that is still standing we also have the matter that he never served any any response to the report and recommendation of the magistrate judge once it went back down even if this court were to set aside the discontinuance were put back in this position where it still would automatically result at some point in this report and recommendation being upheld for simple matters of saving time money and your dish will economy the court should consider the lack of minutes thank you your honor so first on the timeliness part the first reason why it's timely and all the other arguments don't matter is that because you know the ins motion raised both the sixty b issue about vacating dismissal if he existed and raised is there a valid dismissal he repeatedly says there is no the dismissal and a rule forty one a is invalid and void and further i object under sixty  and judge baxter's analysis tracks exactly the same things as i look at sixty b and in the alternative i assess under forty one a whether there is a valid dismissal it raised both the sixty b and forty one a issues forty one a conceptualise really is there a valid stipulation of of dismissal therefore under rule fifty eight o'clock there's one hundred eighty days to file he timely filed all the other time in this issues are relevant second under strictures of twenty one zero seven or is the dispute is did he comply with the mailbox rule and with federal appellate pursuit procedure for if the dispute is about compliance with a federal rule which cannot alter jurisdiction if the dispute is about compliance with a federal rule whether it's restriction or whether it's a federal benefit then under hammer it's not jurisdictional the supreme court for decades and said it was but a hammer it said oops we're wrong and we misled courts including the second circuit we have to take a look at that if you but you don't need to because of the first reason that he moved both under forty one a and sixty b he said there's no valid dismissal and the alternative if there is vacate not there was never a judge where there was just the stipulation there was a stipulation and then in his motion for reconsideration and in his motion to set it aside under forty one a and sixty b in his motion for reconsideration there was no judgment entered and his notice of appeal was unquestionably timely within one hundred fifty of there's never been a judgment and toured by the district court in the western district correct neither at the first and pursuant to the original stipulation were later in response to the orders that were entered on the rule sixty motion and effort to withdraw the rule forty one stipulation never has there been a judgment that's definitely true about the motions which makes his appeal timely and virtually certain about the initial forty one because once it's filed because it has to be filed by the plaintiff i would argue then there is nothing further for the court to do in the northern district it was so ordered and another reason why this was not a valid stipulation why it has to be filed with the plaintiff is because it was intended to be a forty one a two stipulation as a place for it to be so ordered the northern district if you wish it was so ordered in the western district the judge said i'm not going to so order it if you meant this isn't a one a two you've done it i don't have to do anything that's the end of it if you mean it isn't a two i can only do if i review the terms i haven't done it i'm not going to so whether it unlike the northern district thank you very much thank you thank you all three of you will reserve decision