present obvious opportunities to circumvent at those restrictions as the facts and solves itself well illustrate they are the motion was filed years after the judgment and well after the end of any appellate proceedings will fifty nine emotions are different they have to be filed within twenty eight days of judgment they suspend the judgments from ality and they result in a single appeal nd by dismissing mr bannister's appeal as untimely the th circuit affectively penalize him for following the plain terms of appellate rule for a there is no basis in the rule or an ad for retroactively re characterizing the timely rule fifty nine emotion and treating it as though it were never filed basic problem with that argument is there is no properly filed requirement in rule for ebay and we think this court should reject the government's invitation to rewrite the point terms of that rule which would significantly complicate what is supposed to be a clear straightforward jurisdictional inquiry and would have implications for all civil proceedings in addition to heebie us like to start with our st argument and on that issue are our rules clear if a motion is filed that is and it's made after the entry of judgment so if you read the king is is this certain yes it is in the sense that i but we think that can't be the test for what counts as being nd or successive the court has noted that nd or successive is a term of art so not any sort of thing that isn't literally filed after the st application will be treated as nd or successive for example an amended complaint is going to be presenting you know claims that could be overlapping again what if approach say within the twenty eight dollars days files what is styled as a petition as a nd petition we  dollars day deadline and of course that wouldn't have the sort of effect on the rule for a suspending the time to appeal because that to get that suspension effect it actually has to be an emotional basically what you're saying is that although  days i mean i think in our view or their view there's going to be a cut off time certainly as a petition i could file something styled as here is my nd hevia south location while the st case is still pending in every court which week that is a motion to amend the initial b s application so our position is only that while the district court still has authority over its initial judgment before there is a process to appeal you would apply the same rule and we have two rules here two laws here one is the a b s statute which was an act by congress the other is a rule governing hey b s proceedings which took effect under the rules enabling after they have equal stature no i mean of course the relevant rule here i think i habeas rule twelve which provides that the rules of federal civil procedure applies to fault unless they are inconsistent with within with the statute or any previous specific rule but since the hevia statute was actually in the acted by congress i it is a law under the constitution shouldn't we take special care to make sure that it is heated and not compromise it based on a rule that cannot alter a think i certainly agree that the statute gets precedence but you have to interpret the key term nd or successive and on that term this court has recognized that that's a term of art that basically carried forward to practice in precedent a sort of relevant to incorporating it so at the no doubt tighten the restrictions on when a nd or successive application could be allowed both sort of substantively in terms of when it would be allowed and procedurally you have to st go to the court of appeals and get pre clearance but in terms of what would count as being nd or successive in the st place that's a term of that basically kerry stewart and the other side has he has not disagreed with our proposition that there's just no evidence that will fifty nine emotions merely seeking reconsideration were ever treated as successive petitions why do the job what i'm sorry i don't know if this is the same question justice alito was was asking or that you answered were things that are styled nd he was but what if it is exactly the same thing i mean i think it may be  st as a rule fifty nine years a motion for reconsideration but how about a totally new claim one that indisputable e is not a reconsideration motion put a motion to amend basically to add a claim something like what happened in the one decision in those fifty years that did say that adding the due process claim was an abuse of the using to to raise new claims now there is a fallback position a chief judge bogs in the th circuit decision and his approach is then adopted by the th circuit which was to say that if you were basically use you use the title fifty nine dollars but it's clear that's not what you're doing and you're using it to raise a whole new claim we think that that would be potentially inconsistent with a and it's not in it would be jurisdictional i guess in the sense that we're not told the statute of limitations or the time terms of whether it's actually seeking to alter or amend the judgment and if it is also raising arguments that you just can't get under will fifty nine dollars i think that is different and this goes to our nd argument but our position is that even on the nd piece even if the motion were jurisdictional barred that does not mean that it was not filed and was not pending and was not disposed of as as to which used by before well before you get to that can we come back to what we can or can from practice in those days whether to entertain a nd or successive petition is within the discretion of the district court so how match would it be for a district court in that situation upon receiving a fifty nine dollars emotion to say before i get to this discretionary question about whether i would entertain this if it was a nd or successive petition i have to decide whether it  is something that has to be considered that or can be considered a rule fifteen high emotion when there be a natural tendency for the judge just to jump to the final question about whether the judge is going to entertain the it in asm as a said you had to make a plausible showing of actual innocence in order to bring the success of petition even justice stevens in its concurrence of that the showing of actual innocence was relevant to whether at the end it's and of justice were satisfied i think it makes very little sense to think that  a petitioner would need to merely to seek reconsideration within ten days of having the order entered it's going to need to make a plausible showing of actual innocence to do that so it was not an open ended can that the judge could do it for any reason the end of justice really cabined that discretion and there's no reason to think that courts ever thought that that would be the standard that you would need to satisfy that merely to seek reconsideration mr berkus i'm understanding your argument right you're basically saying our definition of nd in successive years should be defined by whether you had a st full opportunity not just to receive a judgment but so there are courts that have taken that position that the st is not over until the whole appellate process completes right we don't think the corniest resolved that and it doesn't need to go that far to rely on neighbor because in our situation the court that mr bannister filed his petition within the twenty eight days when the district court still had discretion or still have the ability to revise the judgment we think that's important because as a result of the way rule fifty nine he operates in conjunction with appellate level four and a the filing of it suspends the banality of the a motion is filed at a time when the court still has authority to enter or amend its judgment before any potential appeal it's still part of the st he is proceeding rather than a nd application this is my recollection correct then please do tell me it's not it if it isn't that fifty nine motions are discretionary in terms of the treatment by the district court review but for abuse of discretion by by the courts of appeals that's the correct standard overview that's right in terms of like what the substantive standard is for granting rule fifty nine dollars emotion it's supposed to be stringent it is not a basis just to you have to show a significant error or are potentially an intervening decision so in your decision it's just an appendage repetition of the complaint side complains about the potential burdens that district courts would face but we think the way that the rule operates and the fact that the motions have to be filed within twenty eight dollars days to a judge who has just ruled on the merits of the proceeding the judges can be able to quickly determine whether there is anything new here whether there's any there there to the complaint that he or she made a significant mistake and in this case the the judge acted on mr bannister's will fifty nine emotion within five days before the state was even required to respond so we don't think there there between petitions sixty but asians that were filed within the twenty eight is and after the twenty eight days so what is your response to that is it is it a feature of your argument that a rule sixty b motion even within the twenty eight dollars days would be treated differently from the rule fifty nine dollars motion well you know we think that anything filed within twenty eight dollars days is subject to our rule and the reason for that  sixty motions that are filed within twenty eight dollars days are treated under the rules effectively as though they are all fifty nine dollars emotions that is the way the rules were adopted because prior to i think the one thousand nine hundred and three amendments there was real confusion about courts were faced with the question is this a sixty b motion is a rule fifty nine emotion and it's hard to tell the difference some courts have adopted a bright line rule that anything filed within the twenty eight dollars days is going to be treated as though it is a fifty nine dollars the motion and that's the position  rules committee adopted and it makes it clear in the advisory committee notes the rule sixty b is on the list with them for all courts are doing that now they're centrally convert it when i relabel let they treat it as a rule fifty nine motion certainly for purposes of timing to appeal the standards between them are quite overlapping and a lot of instances of course we're dealing with prostate petitioners who might not be able in either event they say motion to reconsider or or something to that effect and if it's treated as a rule fifty nine if it's within the twenty eight dollars days and does it bother you at all that say a rule sixty b a motion filed on the th day will be treated very differently from the rule fifty nine motion it doesn't because the rule set that up to have different effects that the motion is file after twenty eight days of district court no longer has authority to amend the judgment it's not going to be something that suspends the finale of the judgment and allows for a single appeal so it creates a risk of piecemeal litigation that i just designed to prevent that if something is filed within the twenty eight dollars day period would not when of course under either side's approach there's going to be a question of the day after you know what counts is being is the st proceeding having ended and the nd having started to need can you address the solicitor general  there are specific deadlines that are listed for different sorts of motions but rule fifty nine is not on the list that that means it should be excluded from the statute but that's not consistent with their own position because they recognize that rule fifty nine dollars emotions are  permissible their position is that only if it is raising a clane within the meaning of can solace what it would it present a potential issue so the fact that they're not specifically enumerated there can't prove anything or it would simply prove too much because it's contrary to their own position  the way we would handle that is to be if twenty dollars to sixty six dollars whatever operationalized and if it's deadlines ever sort of went into effect one could reasonably make an argument that in that specific context perhaps it will fifty nine dollars emotions in all fifty nine inconsistent why is your position favorable to p b s petitioners in general is would it be easier for them just to ask for certificate of appeal below the certainly they can do that we think the reason you know this court is recognized in other contexts that rule fifty nine emotions are useful is because they provide an opportunity to quickly correct potential errors and to avoid the whole appeal process even in the you know we acknowledge that those actual orders changing the outcome are are rare but west where it a decision that clarifies the basis for the decision and might clarify the grounds for an appeal and make things go smoother i think the flip side of that i do want to comment on is that we believe the other side's position is much going to be much more inefficient sort of perversely even though that they argue that their approach is designed to streamline the behaviors review process because under their approach any time will fifty nine dollars emotion is filed a judge cannot just look at it and say i don't see anything here denied instead the judge has to make a threshold inquiry to determine is there something that constitutes a heavey is clean within the meaning of can solve in some instances that might be simple and others not so much and after the court makes that determination it then has to decide well suppose this is a mixed fifty nine emotion in the sense that it raises some things that are claims but some things that are not because it goes into the integrity of the federal proceeding is no clarity under the other side's approach how the court is supposed to handle that if it is something that raises a claim rather again rather than simply having the motion denied and moving on with the appellate process what happens is that the motion would be transferred to the court of appeals which then has to take its new independent work to determine whether the requirements of twenty dollars to forty four dollars be for satisfied and we think it would just be it's much more efficient for a court that has just ruled on a motion and that by its nature a rule fifty nine  has to be filed immediately after the judgment to be able to review it and if there's nothing there deny it and then the process can move forward with a certificate of appeal billet and if there is something there or if there's something that needs to be clarified the judge can do that as well and that can make the appellate process more efficient and was intended to move these petitions along quickly and it's full of deadlines but there is no deadline for ruling on a fifty nine dollars emotion isn't that an anomaly there's no deadline for ruling on a petition either we don't see any reason to think that a district judge who's just a bit invested the time to rule on the heaviest petition is for some reason going to spend a lot of time with a rule fifty nine emotion that has been just filed and again i keep emphasizing that it has to be filed promptly that cannot be chipped under rule federal civil procedure six b there can be no extensions to the twenty eight day deadline for filing a rule fifty nine emotions so there is no way to avoid it being something that moves quickly and to return to the point i was making at the outset that's quite different from the situation in can solace where you have a rule sixty motion that can be filed years after the judgement and presents obvious opportunities to circumvent at those restrictions by reopening cases that would otherwise be closed unless you could satisfy twenty to forty four and that's what we think in salis just that just does not speak to the key question here there  there is no doubt that the st proceeding had ended so the only question the court faced was whether the sixty motion could be close enough is similar enough to a new he visa application that would be inconsistent with the statute not to subjected to tw forty four dollars b here the question is different it's whether this motion is part of the st he is proceeding and it has always been treated that way and we see no reason for the no basis and put to displace that subtle practice i did wan queen and prevented the district judge from acting upon it it would not mean that the that rule for a did not apply to suspend the judgment and the reason for that is that the record the relevant requirement is that the the motion be filed not that it be properly disposed of rule for a uses the term disposed of not denied if it used to night it might be reasonable for the other side to argue that well the judge can't deny a motion that he doesn't have jurisdiction to entertain but he quite clear the judge quite clearly can dispose of the motion that was that was filed a few that the judge lacked jurisdiction to entertain and we think it does not make sense to rewrite the point terms of appellate rule for a in a way that is going to make it such that decides well this was actually close enough to petition that we're not going to give the benefit of rule for a day and we're going to treat it as on is on time we don't think that is consistent with the statute the court has now for the questions extend automatically his deadline to appeal and delay the repose of his sentence that result is contrary to the text and purpose of at pup and this court's decision in sol as the nd or successive bar applies to rule fifty nine dollars emotions for at least three reasons the st is text just like rule sixty b motions fifty nine dollars emotions are post judgment vehicles to present he be disclaimers and when a rule fifty nine dollars emotion presents claims that have already been rejected a final judgment the motion is necessarily a nd or so of habeas application for the same reasons that a rule sixty b motion would be nd is precedent there is no sound reason to have one rule  finality and to streamline proceedings by moving cases along to their next stage that's why the b s rule eleven allows the petitioner to seek reconsideration of the district court's order denying a certificate of appeal ability but it also provides that such a motion for reconsideration does not extend the notice of appeal deadline yet according to bannister he could thwart that rule by simply attacking the merits of the judgment and thereby grant himself an extension that rule eleven what otherwise deny for these reasons the court to hold that a that the nd or successive bar applies with full force to fifty nine dollars emotions and that rule requires a dollars in motion other heaviest petitioners may get much longer extensions bannister's fifty nine emotion was thirty some pages and it asked the district court to redo its work on fourteen different claims that he had raised in moved on the same thing and had no problem and in this case justice ginsburg it's true that the district court was able to dispose of that relatively quickly but it's worth noting that bannister's original motions practice in district court totaled almost a one thousand pages of material much of which was stylized as a stage play complete with stage directions if he'd simply refile that one thousand pages worth of material stylized as a rule fifty nine emotion it likely would have taken district court much longer to go through that and figure out whether there's any or might have taken the district court no time at all i mean you you file a stylized play a one thousand pages of a stylized play twice i would think the nd time around the district court might be righteous of that this is more efficient than allowing the court of appeals force in the court of appeals to have to you bounce it upstairs and you're asking a district court judge instead of ruling on what he well knows to be a very overlong and bad play for a nd time sending it to the court of appeals to decide what to do with and the court of appeals and has to decide whether it's a true rule fifty nine dollars or a fake one i suppose and that  the sixty be context has proven to be a not inconsiderable burden so you tell me who's got the better of the fish and seize justice gorsuch we've got the better of the efficiencies argument because at is about moving cases along to the next stage and by burdening the district courts with yet another motion presenting a whole bunch of habeas claims many of which have been rejected already is simply delaying the process further because it's granting him an extension on this and a way deadline  that is a requirement that the motion satisfy the preconditions to filing for example we see an f c c versus league of women voters that if you file a fifty nine emotion that doesn't go to the objects of all fifty nine that it's not actually filed and it doesn't did not comply with rule seven is pleading requirements is not actually filed and does not have any effect on the notice of appeal that's settled rolf ocean cases like morse which this court decided a number of decades ago which are your defeating your own point do you have any statistics to show how long fifty nine motions actually take to adjudicate i mean i can't rely on my personal experience but mine was not different than what happened in this case very quick that they were decisions but do you have any proof that there is actually an abuse of fifty nine dollars isso that it extends the appeal time in ordinally well just to sort of my  rehashing of frivolous arguments the courts have already rejected and there are many district courts that cite that decision to express their frustration with the good and i hope we can find that out but i mean intuitively that i have do not have that experience but there are judges on the bench you do have the experience of being a district judge so i guess they'll have a view i absolutely agree i'm thinking bruce there's one appeal it doesn't give you an extra appeal of fifteen and so the you agree i take it that the judge says we're not going to have fifteen witnesses because of next day lawyer says judge you forgot the word not in there oh my god now everybody agrees you should be able to do that right because ok before a final good well is that the reason or is it because it's an efficient way of getting the judge to correct his own errors you don't have to answer that but what i'm thinking of is you're right that if the fifty nine dollars does about the same thing after the final judgment in twenty eight dollars days most of them will be dismissed twenty eight dollars day extension twenty day extension but let's look at the ones that are granted now the judge says my god i made a mistake it's true which is more likely is it more likely if you keep th cases out of the court of appeals that the system is all going to take much longer because the guy's going to bring it up on appeal and everybody will have to deal with this kind of thing or is it going to be sure or if the person who made the decision deals with it initially that was the last argument you heard and i would have thought to have the judge who made the initial decision very quickly corrected we'll save time rather than saying judge you are forbidden to correct what you see as a mistake of yourself and we're going to go to the appeals court well just prior that was his argument i think and i think it was brought up again roughly and i want to hear what the answer is well just a things in response number one to the extent there's a policy judgment that needs to be made here congress has made that in twenty to forty four b and that's conclusive to the extent that there are errors that the district court needs to correct no twenty words nd or successive and the issue in front of us is is the fifty nine b nd or successive or is it part of the same case during the twenty eight pure day think was the last point raised here and certainly was what my basic point was just prior to concern is efficiency in correcting errors rule sixty eight allows a district court to correct clerical errors the rule the revocation today i don't think would touch most of those cases to the extent you're and the difference between sixteen and fifty nine is a dichotomy it's pretty ancient and that trial courts have since time out of mind i guess have the authority to amend their judgments to correct errors not just clerical ones but other significant ones that they made the decision that whatever the history might have been it wants this going to the court of appeals and but does not just simply codified all the old abuse the writ doctrine as justice thomas wrote for the court and for the for his opinion mag would justice scalia's opinion not the precedent of this court mr harkins that with respect to the meaning of nd in successive as compared to many many other things that the did that were departures from what had preceded it but that with respect to the meaning of successive this court has said multiple times that we are going to look back to the history and the history suggests what just discourse which says that that rule sixty motions were treated very differently from rule fifty nine motions well your christie and it results in a separate appeal from the ruling fifty nine in a so tightly tied to that st judgment i mean if you if you if the motion is deny then that that disposition murty into the final judgment and you have one the same time issues final judgment this court has to say whether it's granting a certificate of appeal ability or denying a certificate of appeal ability now that i think is a very important clue from congress that congress viewed the final judgment as the turning point that's when we're done in district court and we're moving the case along to the next stage which is in the court of appeals to every the pretty had pope practice was to treat fifty nine dollars sixty cents differently so you would expect some clear indication i think from congress if they were going to up and that longstanding practice in repeating the nd are successive language and you started your argument by saying there's no difference between fifty nine and sixty but there's the twenty eight day time period and there is created by history where the lower courts really did the stand wish the two in this context so how do you respond to that justice kavanagh i think that congress successive habeas application because it comes prior to final judgment our view is that the final judgment of this record is the dividing line between cryer or nd and that makes sense to congress the text the statute says you've got something that's prior and something that secular society has got to be isn't the dividing line when the court has power over the case the court still has power over the case at this point it doesn't lose it until the time to appeal runs why isn't that the natural dividing line this court still has dollars is filed but you can still file a notice of appeal immediately that's covered by fraps for a for b so the notion that there's any suspension of finality i think is a misnomer and it's not the correct way to look at it the rule for simply saying that if you and ninety your deadline to appeal is suspended but in all other respects that judgment is still final it's still the basis of all the things that i indicated earlier and within the meaning of rule levon that's the turning point when we're done in district court and it's effectively something this court doesn't have jurisdiction these here is that your is do i have this right or not in your in your view on day forty two after the original complaint was filed and they had a trial and hearing it and so forth judgment comes in the lawyer reads it next day he files a piece of paper your honor the judgment says x all the evidence was the other way you must have skipped those pages and if you go back to the state court it was the opposite the judge looks at it and says my god he's right i would like to change this and you're saying too bad too bad you can't change it the only thing to do is to go to the court of appeals on the st one on the st judgment before he wants to change it and he can't and will have a court of appeals changes is that what your view is not quite justice prior my view is this that then you see what the point of my example was that this is a pretty good waste of time and that's why we have rule fifty nine to prevent those wastes of time that's my argument and that's what i want to hear you respond to it that marriage sponsorship to her well your honor as this indicated earlier to the center is a policy judgment being made here congress is clearly determined that it wants she is going to the court of appeals congress will surely aware that there may be instances in which the district court could quickly and easily dispose of a nd or snyder mr chief justice and may please the court just inspired like to start with out the last question that you asked and i'm not entertain any other questions to the extent that what you're doing here is you're making a practical determination i think it's relevant that while petitioner says that this that his rule will allow courts to correct obvious errors he has not identified a single case since that was an acted in which a district court has actually granted a rule fifty nine dollars motion in this posture and he's a meek you say that this happens regularly but that identified just three cases in more than twenty years in which it's actually occurred in one of those cases the district court could have actually granted that motion under our rule and in the other two that the court of appeals could have entertained exactly the same arguments so the benefits of his rule are largely hypothetical and quite minimal and on the other side of that ledger you have rule fifty nine emotions being followed regularly in that last year was twenty two thousand any of these arguments over the entire course of those twenty two thousand cases that burden is going to outweigh well the fifty nine ease not wildly successful in any context so your argument is really an argument against fifty nine dollars t man i don't know that there are statistics that say it's any less successful or or significantly less accessible in this context so you're i think that the key distinction is that in the context of hey b s when you're talking largely about responsibilities to their clients to move the case along to the court of appeals and so in our view that's what congress was doing here congress looked at hevia slid a geisha in prior to the an argument of at and recognize that it was flooding the federal courts with repeat filings so the purpose of the nd or successive bar was to prevent those repeat filing fifty nine dollars emotions had not been considered nd or successive before just as common i don't agree with that the only case prior to that had asked whether a wolf fifty nine emotion could qualify as a nd or successor petition held that it could now my friend on the other side says that courts entertain to all fifty nine emotions but his justice alito pointed out it made perfect sense in a prius world to say there's no jurisdictional bar with respect to nd or successive petitions the standard that i'm going to apply is a malleable ends of justice standard i'm just going to cut to the chase and say however you want to think about this motion i'm denying it is not  more rule sixty b motions in the pria but period and one key reason for that was that at the time it was acted you had to follow rule fifty nine motion within ten days so you had motions filed within ten days and then all of the other motions so it makes sense that you'd see a much broader array of sixty b motions and those motions might be filed years and years after the case were doing the analysis under sixty b or the rule five thousand nine hundred standard would require you to go back and completely immerse yourself in the case and so it made sense to look to the standards that courts applied to abuse of the written nd or successive petitions whereas for rule fifty nine dollars emotions you could just sort of cut to the chase and that was perfectly appropriate i think it's significant that what congress did in ad was change that actually won bar all fifty nine dollars emotions right it wouldn't bar all fifty nine dollars emotions and the argument on the other side is therefore the district court's going to make a threshold jurisdictional determination which could be complicated and mixed there might be mixed questions there and what's the point so your honor in guns all of this court said that making that determination in most cases would be relatively simple that's at page five hundred and thirty two dollars of the opinion and i think that's been borne out there are a couple of reasons for that one is that this goes to the mixed petitions argument as the court said i'm going sol is the question is whether the filing can or the submission contains one or more claims so you don't have to go through the entire submission and figure out is is this a claim is not is that a claim once you find one claim then you have an application that has to go through the nd or successive bar the other thing that i would say about that is that my friend has suggested that perhaps rule fifteen on motions that present or excuse me new claims would somehow be treated differently from other rule fifty nine motions so once you make that concession i think the idea that their rule is a perfectly clear rule sort of goes out the window because you're going to have to decide whether the arguments that you're making in the world fifty nine dollars emotion are so similar to the arguments that you made before their main argument was i would not be a proper fifty nine emotion and it would not be a successful i'm sorry fifty nine emotion i think that was their main argument in response to that i think that's fair your because you had a prior one and then you have the nd one filed that makes the same arguments and what my friend on the other side said and what i think you will find every single time that he touches on this point in the brief is he says no it's not a nd application because the prior proceeding a prior proceeding and so here there clearly was a prior application that application was denied and then mr bannister submitted a nd submission that was an application under the understanding that this court had in his and i don't repeat what you already said and therefore the question is not answered in the statute because it's still part of the same case or is it a new thing well your honor though you're allotting again respectfully or aligning again the distinction between is not the same case it's whether it's part of the same proceeding excuse me it's not a proceeding it's whether it's part of the same application so the motion for summary judgment says you should grant my complaint in this case you should award me relief on my complaint but it's still going to that complaint once the case is once that complaint has been adjudicated once you have a final decision on the a b s application gonzalez says that a subsequent filing that says that that determination was wrong is also an application and i don't know how you can think of that as anything other than successive application because you already have i guess i don't know how if you draw the line there you deal with an amended application an amendment can be you know significantly different that's true your honor and the statute expressly provides for that in section tw sure i get to the section two thousand two hundred and sixty six dollars question that you asked about just coming up because i think it's related in that section congress went through and laid out it looked very carefully at capital cases where it wanted to move the proceedings along and it laid out deadlines for every one of the motions that i thought could be filed in every case just incredibly detailed there and it said nothing at all about rule fifty nine now you know my friend says that our argument is over inclusive because it doesn't say because we acknowledge that you can file rule fifty nine emotions in some cases where they don't actually make a b s claims but just to be clear our argument is more modest it's not that because section two thousand two hundred and sixty six doesn't mention rule fifty nine emotions they're categorically prohibited our argument is that when congress looked really carefully  this and tried to set out deadlines for how this system should work in the federal courts it would have been really odd for congress to leave out rule fifty nine emotions if in fact you could file in every single case it will fifty nine emotion that asked the district court to all of the arguments that it had already considered because we know in that provision that congress was trying to light a fire under the courts and make sure that those things are just are decided congress would not have wanted to say you have to make the initial decision the initial final decision on because that would incorporate amended complaints as well and everyone agrees that that would not count as a nd here because advocation the fallback position that i think texas is forcefully advocated is that it should be the time of judgment but that too is inconsistent with the structure of because in that if you follow that logic a petition for rehearing which clearly is something that is in the courts which clearly something that was filed after judgment after the court of appeals has reached a determination is asking them to say hey you got it wrong we want you to revisit that would not would also behaviors application their answer to both of those points is that well ed post specifically contemplates amended complaints and specifically contemplates a petition for rehearing but i think that  acknowledgment that their test is inconsistent with the structure of the statute and they're having to develop ad hoc exceptions in order to to read them in and remember under rule rule twelve the federal rules of civil procedure as a default apply in proceedings you have to demonstrate inconsistency with the statute so the fact that at that doesn't specifically call them out and recognizable fifty welshman's does not establish an inconsistency the other point i wanted to make i didn't hear a response from the other side to justice course which is question about why their process is not going to be much more burdensome in practice a lot of the other side's arguments go to the theory that there should not be rule fifty nine dollars emotions in it all but of course that's not their position and they can't get there as a matter of text so it just is going to be the case that in every instance a district court is going to need to make this threshold inquiry about whether something is presenting a claim mr snyder said that that inquiry is going to be easy to determine and maybe in some cases it will but there certainly are going to be hard cases and i think that circuit precedent alone bears that out for example the th circuit considers a motion that argues to the district judge hey you just missed this argument you didn't rule on it at all the rd circuit considers that to be an attack on the integrity of the judicial proceeding which is distinct in their view from arguing district court you got it wrong similarly the th circuit takes the view that alleging a conflict of interest by proceeding the point is not whether the th circuit is right or wrong about those classifications but that there are boundary cases and that it can be difficult and to require a th of the district court to make those threshold determinations and then potentially to have a court of appeals make a different determination about it is going to be much less sufficient is going to create real uncertainty about rules that are supposed to be clear and are of blink to the time to appeal the last point i'd like to make is with regard to rule a texas argument about that their argument as i understand it relies on examples that exclusively involve instances that are not seeking genuine rule fifty nine and he relief you need to look beyond the pleading to that say i want to extension but you don't actually asked ultraman the judgment it doesn't satisfy the plain text of the rule but texas has expressly conceded this is that page forty four of their brief that mr bannister did file a true role fifty nine emotion they just think it should be subject to section two thousand two hundred and forty four b but even if it is that doesn't mean that the motion wasn't filed that it was a true will fifty nine emotion seeking that relief and that is all that rule for a requires the court has no further questions we ask you to reverse thank you counsel cases submitted