and it is noteworthy that the united states district court never got to the merits of the planets clients and the merits of the plaintiff's injuries damages i believe that essentially there are two issues in front of this court this morning one make a big difference to the outcome from your client's perspective in other words you can have non jurisdictional rules that are still mandatory as long as the government raises them and the government raises this from the outset so i agree with you we have to address whether it's subject matter jurisdiction some not being dismissive of the point but i guess i'm curious will you still have to when the other argument to get any relief from our right about i believe that we would then get a hearing on the merits of whether there was proper notice given the kind of overlays in the well that's what i'm getting at i'm not sure that's true if if even  requirement of a some certain is not jurisdictional it's still mandatory you still have to show that you met the some certain requirement otherwise there still be a dismissal it would just be a dismissal under twelve twelve he won and i'm suggesting that the district court did not do the research if you will into that question in the extent sort of a merits of evidence to be examined the individuals d who got the information for instance when the lawsuit was filed in the state court in this this lawsuit d originated your honor in state court that that playing time the  d in my humble opinion that never got to consider that as it should if it was in on jurisdictional matter and i believe d that there would have to at least be a look and i understand exactly the  that the d trial court would d have the d district court would have to do deeper dive on the very issues you bring up what is it what do you base that on i don't follow with respect i mean i understand your position which  not saying what the discover what right why you would be able to discover one way and one under one not under the other seems to me if this is a conclusion and you have an argument that what's in the record is enough or you have an argument of what's in the record it's not enough have that supplemented to the court or to to the defendant but is there anything in the record that shows that you supplement it with a some certain within the statutory term sorry other than move the complaint was filed seeking him out in excess of twenty five thousand dollars we're talking about argument that there might be equitable tolling or some other equitable reason not to enforce the two year claims process the moral and i think that gets into the substance of what is to be provided what's the ruling d behind it and that the the the requirement if you will upon the claimant is they give the agency d written notice that was in fact there's no question about that ninety five was provided they're sufficient to enable the agency to investigate and then we get into that we have an ultra strict interpretation of that and what is required in this case is the former is the substance that are at that point time you know i cite the court to the dynamic image faced and also the lopez case in lopez case that if i provided way back when to determine if settlement would be in the best interest of all it goes on to indicate that it seems very conclude that the f t c is quality intended to provide a framework took your argument to be this was enough under the statute that the standard form that we submitted was enough under the statute for your own and the government's position to be no it wasn't sufficient is that a fair characterization of the arguments it is ok so you're not saying it wasn't sufficient but we should be excused no so you're just arguing whether that should be sufficient and again the difficulty i'm having or the concern i merits of whether this is some of the cases i'm just trying to see what your argument would be different you're still looking at the same s f form would be in front of us the same cases would be in front of us the same arguments would be in front of us what would be different that despite your argument we could be looking at a missile but on other noted that one of those requirements is written notice of the claim sufficient to allow the agency to investigate and that the claimant identify the fallacy of the damages claimed a some certain this has to happen before filing suit in court and kelly and paul koeppen did not need both of these requirements prior to filing suit in court they did not miss us your question i asked you a question before we get it subject matter jurisdiction goin what is what prevents is there a time bomb that prevents them from just correcting this problem they have just a limited number of time and by the time this problem was identified that the time bomb had come into gone that time bar has come and gone but they were notified to the issue well before the time bar expired the postal service notified mr pollini who was representing the claimant at that time back in tw judge rogers was asking mr pleading how does the case differ in terms of outcome if this requirement is not a subject matter jurisdiction requirement i guess i just would have thought there's no difference except well we want versus twelve b six in other words if you if you had a mandatory rule about you have to file a claim with instead you know a year and you have a debate whether that's mandatory claim processing or subject matter jurisdiction doesn't the punchline changes the nothing else about it changes is it true that with this claim of the some certain point b there being nothing different except what the nature of the versus twelve and six is that true or not true that is true your honor and in fact the the two points st of all that i agree your honor this is whether it's a jurisdictional requirement or not it's a mandatory the government would be allowed not to insist on compliance and as the supreme court explained in the mcneil case it's unclear whether the it's not clear that the argument would be considered subject to forfeiture however and this case that would be irrelevant because the government did raise it at the st opportunity at the st opportunity right but it's a nice it's a nice safety valve point if the government has the option of saying this is kind of a closed case in terms of some certain we're going to let it go and let it so that's that's a really big advantage of not been subject matter jurisdiction to put to say nothing of the problem that you can suddenly identify the issue at the u s supreme court and three years of litigation is all for naught politiken it's clear from the very beginning that in the statute in the regulations that some that's that's been made clear and six circuit precedent and supreme court precedent so they just i want to i want to see what's the u s supreme court precedent the says you could not force at this argument i believe between regulatory and ministry to have requirements and statutorily mandated administrative requirements here we have a statutorily mandated administrative requirement that is not subject ask you now the subject matter jurisdiction sit you you can't say that it's subject matter jurisdiction because it's exhaustion because we have cases that say you know exhaustion requirement is not a serious subject matter jurisdiction that doesn't i have exclusive jurisdiction so that helps you because the word jurisdictions there and subject to starts to make it look like if you don't satisfy me as you haven't satisfied subject matter jurisdiction requirement but what's the idea just seems like that argues too much given all the things in chapter one hundred and seventy one i assume you're not taking the position everything in chapter one hundred and seventy one is a subject matter jurisdiction require mix if you go look at that you're going to find some pretty silly things court's ability to hear a claim and a claimant ability to seek relief in court does relate to subject matter jurisdiction well where's the clarity so it's the combination of the two states unless the claimant has st presented the claim to the appropriate federal agency and the two statutes taken in combination one that does a limiting the jurisdiction  of the district courts to compliance with the terms of compliance with the provisions of chapter one hundred and seventy one and a requirement in chapter one hundred and seventy one that refers to the claimants ability to bring their action in and sixty one talks about exclusive jurisdiction so i don't understand how you can't just say every mandatory rule in chapter one hundred and seventy one is subject matter jurisdiction that's that's where i just i'm struck of a track of the position well not every not every statute in chapter one hundred and seventy one refers to the ability of a claimants to pursue their claims in court and statutes have to be given their logical reading they can't be read to compel an illogical result so here it's the combination of the two statutes one that expressly conditions jurisdiction on a particular chapter of the revive of the united states code and a statute within that that chapter of the united states code that talks about a claim its ability to bring its it in court and in any case whether  available to me and that's ok all right thank you so much and i ask you a question miss ash right i think i know what the answer is going to be clear that that's what the government's is there any difference is there plaintiff does not identify any other evidence that he would have introduced to show that he submitted to some certain and in any case that any such evidence would be in his client's own possession and he would have been able to produce that evidence at some earlier time in this litigation so your position would be to some certain was not provided within to your statute of limitations on what it's done that's personal injury claim no some certain was provided the cases that my colleague refers to the dynamic imaging case in the lopez case do not compel a different result both of those cases expressly held that the son certain was required and in both of those cases the plaintiff did provide us some certain separately for personal injury separately from property damage so those two cases actually support the government's  you get is six months there was never a denial made in this case not sixty days six months and there was never denial made in this case and within that six month time period the forty five thousand dollar some sorry what's your explanation for not using the full period of the statute of limitations to get the some certain identified the believe that based upon the fact that the claim was except that the property damage d aspect of the claim was out there in the communications d back and forth that you know we're talking about a bodily injury claim which is not necessarily susceptible to an actual dollar figure the way damage to an automobile may be that to say that some nice back her in the nat hurt and how is that susceptible saying that is twenty one thousand two hundred and fourteen dollars twenty cents and again it gets equitable matter here that every step of the way the government has received notice of the claim informed ninety five dollars is not mandatory it's not the be all the end on in council doesn't claim that it is and that information was provided information was accepted that they the government absolutely know the bodily injury claims were being asserted in this matter that there were medical bills that there were injuries that they went to the hospital and all that was  provided received and accepted the full expectation that they're on or in my mind playing on open in this matter and that it becomes a later that ok we didn't have a specific from one thousand three hundred and forty six dollars sixteen cents so the equities enter into it i think that they do and do you know we give it to them and question judge rogers to your point before if this would be reversed on jurisdictional you're appreciating about judge roger's question is his question is suggesting if judge adams was wrong in dismissing of the trial he won but our court still thinks you failed to comply with the some certain all that would happen is you would still have you have a firm and the motions to dismiss it would just be under trial p six an alternative ground judge writer says trying to he's trying to give you a chance to say no we can't do that or there's there's something about a trial the six to spend so that sufficiently different that gives you another shot i haven't heard the answer that suggests you're getting the shot i think that's what he's asking you that the ability to make an equitable argument to be able to make the argument that all of these things i just talked about that were actually received by the government or tantamount to receiving as close definition as you can get to a some certain in a bodily injury claim that is not a jurisdiction based dismissal it would have to be more merit based decision and i do think i understand his honour's position on the matter but that nonetheless to give it affords the opportunity to have the merits looked at to determine whether equitably did everything that the government get everything that they received they accepted they paid out in this matter that this that rise to that level that they knowledge that in a body injury claim knowing that they've got medical expenses that they there are certain injuries that were in there were treated in the hospital is that rise to that level to satisfy what is a requirement in again it's not to be on the endo for ninety five dollars and i would like an opportunity to to be able to make that argument but in a jurisdictional dismissal like we have here we never get to that point