it please the court this case today is not about attorney err the united states is going to try to make it that what happened was the trial counsel did not follow response a summary judgment within that amount allotted by the local rules in the southern district of this county cases more about the errors that the district court made when evaluating the client's rule fifty nine emotion there's a number of things that this court and other courts have said that  i had a case i think i cited back in south using case ninety one but i think it goes farther back than that that if if a party follows a rule fifty nine emotion attaches evidence if that court considers that evidence and still denies it and still basically affirms its earlier summary judgment then the court has to evaluate this to no vote and there's a couple of there's a couple pieces out there the court this court has said before that the court below has to say specifically that it's not considering that evidence that's clear and it also says that if the court below refers to it will that suit the implicates this the view is now de novo in this case if it's it's a little weird but the court basically preface its opinion on well i've got the power under the local rules that i can i can deny summary judgment here and i'm going to in the end that's true that no one's arguing that then the court goes into looking at th has this one at one offs or statement about newly discoverable evidence but then it goes into evaluating that evidence is nowhere in it does it state that it's not going to consider it it clearly does consider and it doesn't sort of i don't want to say short shrift what with the power what is it you're saying the district court should have say she considered or didn't well factually simpson what happened here just to back up and give the fact that you say there's judge error here and not a lawyer that we don't apply that i mean well let's let's let's say let's live by do they have to do it in this case well in this case because there's the evidence here shows that that there's manifest injustice i don't know if you're going to say you manifest injustice well in this case we know in  it leaves open is legal issues and i think it's i've done some research i think it's relatively no although there is there is a case out there it is the lower court is a believe it's northern district of texas that has similar situation where somebody filed an the earlier and it doesn't include the some certain informations as well supplement one is filed as filed to the wrong agency in a timely manner but doesn't get to the right one and then there's other pieces so as per the equities we look into some there's a case here based on the northern district case and i think it's somewhat novel so i think this court would have to decide whether this would would meet sort of the standard i think that the the second filing even though it was untimely and went to the wrong that there are but there are cases that evaluate their actions in these cases and they might not have a duty but the lack of care might balance in the equity using generally when there's been this injustice just because they undertook to do  something on my temper saying well i think part of it is i and i can't speak to what happened obviously got lost in the wash with attorneys and then after this other gentleman released the case she had to find another attorney the other attorney appears on the record was diligent trying to get everything together they had an employee that accidently sent this to customs instead of the marshal service that was a mistake but you know you're the third attorney but i'm just appellate counsel so trial counsel is still in this richard i'm sorry united states also so some hit on this is there's still an issue we know there's open issues here and we need discovery on i was asked a couple times in different ways why this should come back and in my main piece is that th fifth circuit precedent out there that says you have to do certain things now whether they've got a bank of different what your best case didn't get to twenty thirteen could be amended or supplement you home well that's asking what your response to that position well in the fifty nine the motion i believe the standards manifest injustice standards also there's case law out there that says if the trouts order the district court misapprehen filed is all the district court had was the united states summary judgment motion there was an affidavit in there was a general counsel of the marshals office talked about not receiving the s f ninety five timely the second one the two thousand and fifteen years and she's asking you know what your best case in that would make you know was untimely council offices two years with or without an amendment and i guess your response to that is what you said   how riverview construct a filing that hasn't been this court i believe it's the seventh circuit this is you know what one sense been raised the lower court the district court has to explore that and set out the record for us to be able to review it here we didn't get that and i think that that's it equally as strong as the other and when i talk benteke because it gets lost in this is that when you're looking at the constructive filing issue you look at the equities and that's one of the reason i bring it up later just like you do under the manifest injustice so two thousand and thirteen might have been deficient other i think that it didn't have the some certain but it would be it says will supplement right so when the second one comes in with the records and the sum certainly that that is supplementing the earlier version