go to subject of the are asking for a letter briefs on whether it's immaterial whether the first letter counted to the second letter counted because it's undisputed that if we just go by the one you're filing in federal court need a letter fall within that one year and you filed a brief that went into a lot of detail  what was helpful to us though i will say that that print the fine she filed was mighty mighty small i don't know that that must be the super small put in the font where you want to hide something and i encourage you to use a larger font in the future i mean obviously we were able to adjust and adapt but it was almost unreadable but we got it and i read it and this is my question for you but you seem to be urging that because the other side didn't raise this they waived this point of original and exclusive federal juice stiction and you must file in federal court within one year fairly stating your contention that it well what if what if it is a jurisdictional question instead of the limitations question that can never be waived and what do you read into the use of both original an exclusive help you with your future with regard to the jurisdictional question we get a brief like that or a question the court like that's the type of things that can keep you up at night and we thought you looked hard at it and i think the issue comes down to  parties to the lawsuit by definition and cannot be held liable now there's about a case law and it does come from the federal treasury through a couple of steps into reimbursements but there is no direct action in this case or over for the need if you were to prevail in this case where would the money come to pay your client it originally comes from the check would be issued by national lloyds now that they do get reimbursed for it and that's how it invokes the federal question jurisdiction because the u s treasury funds are implicated to them how does it make any sense to say they're not really a party and as for this reason i let the reason that they were privy to it goes beyond that what four  seven two is doing is a waiver of sovereign immunity so you're saying this is a government act or the king cannot be sued but it can be sued exclusively in federal district court under these exclusions in contrast in the way downey presents it is the quote here showing the right we cannot look past the caption improve drippy pretend the director is actually a defendant in the lawsuit and unfortunately that's what some courts have done there is no doubt national lloyds is still a private entity now as a private entity it's intel protections to preemption but not through sovereign immunity and easiest way to show where that comes into play is this court's opinions in like for example in camp and more say this court has policy in those circumstances state law planes are not preempted if they are truly the sovereigns they would always have immunity unless there's a way of reading somewhere for how do we get around the fact that we have cases that say original  read the world and i think in that context i think that's just a little bit unfortunately of loose language and we're guilty of the same thing when did our original briefing on this topic we're talking about four o seven two as well at times and i think the key part of that is the actual part that applies to w y o carriers is actually forty four c f r part sixty one and that provision has slightly different language it talks about the carrier itself how can i see  it doesn't really trump in as much is what actually applies where as for zero seven two applies only to the administrator there is a specific policy provision the c f r is incorporated that's part of the policy language that language creates again a one year statue of limitations requires it be for filed in federal court but the key difference to it is it doesn't create original exclusive jurisdiction and in fact that specific language is left out of the part in the policy the r does not contain the same clause that's in four zero seven two it goes even further although it does need it for seven to says without regard to the mountain controversy so in any circumstance you always have to go to federal court once again that's not contained in the c op our provision so where the difference becomes is four zero seven two a waiver of sovereign immunity against the king strictly complied with has been federal court if you don't file their first you're in trouble as a policy c thirteen thirty one is the only one that applies in the first fourth and eleven circuits have declined to apply the jurisdiction of forty two u s c four zero seven to now you could join into the camp but where i think that logic breaks it creates a weird situation when you try to make these private entities into government electors they're entitled to protection they get protection but that text protection is only through preemption and s right the protection they get is they get reimbursed by the federal right restaurant and the federal government doesn't want these claims to come him except within one year of whatever the triggering event  so it still is protecting the panel go it is because the operative mechanism i think is to keep whereas one is a limited waiver of sovereign immunity through a condition or proceed and yes there is by a contractual clause it's required to be in there and that contractual clauses it is one year into in federal court is there any way for the federal government to if you were to prevail in this case would they have any way to get out of reimbursing voids we don't have access to all the time local cd agreements between the federal government and the w y l carrier a commission that was regarding the details in that relationship between the parties but what would end up happening is there is a reimbursement procedure it first comes from the under in premiums and then it goes beyond that premiums can come in from the federal government or the u s treasury to compensate for that make a difference to this analysis because if in essence national lloyd's is sitting here as the u government then your arguments hold less weight i other hand if they're sitting here and they have sort of an indemnity agreement with the government and they may or may not get indemnify probably will but my could not then the notion that they're really the government there's not enough that's when they get reimbursed so there is the potential that could happen most of the time they do have to get reimbursed in some capacity the limitations of what that reimbursement is or what defenses to it i don't know for sure and i'm wondering could the government take  you could that happen logically it makes sense to me i said i haven't seen the written agreements in where i would see that i'll ask them no more and the reason i see that possibly happening is theoretically that could happen on a client not even in litigation if they went out there and pa claim without a proof of loss without the administrator's approval i think the government could very easily come back and say you didn't comply with our regulations that's come out of your funds read as an application for seventy that's why i asked it in the context of a lawsuit because your whole argument against this you've got to you've got the waiver argument and then you've got the they ain't the sovereign argument and so i'm exploring the they ain't the sovereign argument because if they essentially are standing in the limitations on that reimbursement i simply don't have those details for now going back to the original argument that was brief would it be fair to say that your argument boils down to program a little bit odd isn't sharon's policies where you have to follow it's third way and i mean i know texas has said the thing about prejudice and all that kind of stuff but they don't have to do so there are certainly that notion does exist in insurance that until you have done x you haven't it says that if you fail to file a proof of loss even if they've already denied it you can't file suit you don't have a claim and that's really where all the cases until the one we have here today coming from down on the side of that if we're going to hold that strict standard there is no real claim until the proof of lawsuits filed in a preemptive denial a premature denial really has no effect and so when they deny that proof of loss and by way of example we could accepted their personal loss they said hey if you want three thousand dollars sign this proof of flood insurance claims people are kind of running around you're just trying to live somewhere you're trying to see what you know what are you going to do your houses demolished you know whatever whatever and being able to file some meaningful claim can be very difficult at that juncture if they just run down the street say with pay you three thousand pay you four thousand and that's the end of the matter you're really at a disadvantage there because you haven't even had a chance to find anybody who can help you to even you know get your kids unpack in school for for the full amount so it's not just a continuing ongoing process and you bring up considerations because it is a burden upon them especially they're trying to get their lives back in and out of time there are thank you very much please point there are two reasons why two different arguments to support one issue this case brought by mr clawson is tom bard that issue of limitations and tom barring of this suit was raised in the court below it is the basis of death row that the rosenthal's opinion that's come to you and it is based on one argument and is based upon the two letters and the dates of the letters and the proper interpretation  case and that whole avenue that we can talk about there is a second argument that has been highlighted by the court in the request for letter briefing which is that there is exclusive a regional jurisdiction that rests in the federal court in this case did not land in the federal district court until more than one year after even the later of the two letters once that issue is there of limitations arguments can be reformulated in fact vs city of escondido there can be a completely new argument brought up at the appellate level as long as it is consistent with an issue properly raised by the pleadings in the motions in the trial court that is exactly what we have here we have the issue of limitations tom barring this suit on one argument the caterer analysis on the other arguments an understanding of the exclusive in a regional just diction now to deal with exclusive and racial distinction and to try to adjust the court questions on that that i heard a moment ago this circuit took gibson in the right case and brought this analysis in and has consistently maintained that property is located that is what the statute says but as the director or the administrator the current version is administrator you are not the administrator we are not but we operate in the place of the administrator write your own carrier you answer the question if we were just go the other way rule in favor of your opponent and then the judge enters judgement for two hundred thousand dollars of say that could the government say oh i am now though you paid  the only way the government can do that is if the national lawyers to write your own carrier violated the litigation handling guidelines which they have not done i can represent to the court i'm dealing with a theme a case manager before i come to stand before you today and i'm interacting with the right your own carrier stands in the shoes of the federal government there is no way around that certainly if they get outside the parameters of what they're supposed to do with regard to thema they can run into a problem with  own working with thema to defend we go in with the position that we took the federal district judge agrees with us what if you disagree ok we're still there own famous nickel still being reimbursed by theme so that  in that regard i would respectfully submit if they took a different read a different course we would have bigger problems with them not recognizing the authority of this court to impose its will opponent i think it would be a different issue as from the write your own perspective you come the end on behalf of the federal government you have already collected your premium you've paid the premium over the federal government having kept out what you're entitle to keep out of your compensation for having placed the policy reimbursement  expenses and so forth you're the end reimbursed by theme of your claims handling expenses you're the end reimbursed by fema for every check that you write for claims payments all of this is federal money even if this court reverses and since back and judge rosenthal ultimately says yes mr class he's entitled to money that's federal government now with regard to the write your own carrier there is a body of case law there and i know the court is going with the downy case but the prevailing case law among the circuits where the third we have the six we have this circuit if you're going to sue or write your own you have exclusive original jurisdiction in the federal district court that is what this circuit has said that is the prevailing law ever addressed it as an actual issue or is that just been a statement in passing as we you know we have our little section on jurisdiction i'm not saying that makes it irrelevant i'm just asking whether we've actually ever address this issue directly like that the state courts don't have jurisdiction over national lloyds in a case like this i think that you have in the context of everything except the procurement if there is misrepresentation or some sort of a tort claim from the procurement of the flood policy then that for and i think that tracks gibson yaks i mean they all i looked at all the citations in our court of gibson but they all have to do with this preemption of these other claimed kind of situation they don't have to do with which court hears this and they don't have to do with the limitations that's key i mean that they didn't address the exact question here which is if you fall in state court and then the insurance company removed to federal court which date carries the date of the state court filing or the date in federal court but i believe that there is a believe there is a case that specifically deals with is a six circuit case so i mean i prefer i respect six circuit no several of the judges terrific circuit it's not binding on us that's what i'm saying in the cases of the maybe i should be clear in our refers to that this circuit i don't exclusive original jurisdiction in the federal district court we then see the ferraro of the liberty mutual in twenty fifteen this court coming in with strict compliance with those seven to as a as a method of handling these cases we have construction funding versus fidelity national destruction twenty sixteen which does discuss the exclusive jurisdiction under four zero seven two but do think we have a body of law developing in the fifth circuit that four that may be enough to get you where you're trying to go i'm not going to argue that point but is not addressing that in the context of the state court doesn't have jurisdiction or if you filed it steak order was removed we only consider the time fall unfair i mean it was simply making a statement like we always do because if we don't have jurisdiction we should be here we have jurisdiction now let's talk and we went off on something else again that may be enough i'm not going to debate that with you i'm just saying is that all we have circuits then it will and frankly the analysis you have a four zero seven two already what you do have in a right it that when you look at specifically it things related to procurement ok this isn't planes handling this is an insurance company doing its job to go try to sell a policy it's got accountability for that wherever there's accountability for that but once you get over into the claims handling world you're now coming to federal court the federal preemption applies for seven to apply and we're here i do think that that reasoning leads you to you're here for a write your own you're here on behalf of the federal government you're in federal court you're dealing with federal nothing if the lawsuit w classy family saying you lied to us about what would be covered to get us to buy this policy even that could go to state court i think so i think going to the prevailing law in this circuit yes if that's the only claim that they're going to say the flood policy covered what it covered and it didn't cover what you two has set up this process because it is federal money that brings us to federal court and it brings us here within one year of the date of a denial a partial denial of your claim and as that applies to the a classy case that did not happen we didn't get here until fifteen months after arguably the the later of the states without even considering which of these two letter should apply argue that all the letters because i'm having a lot of trouble understanding the argument that i can have a denial of a claim when i don't have a client well i did a lot of insurance work as a lawyer so not this kind of insurance but a lot of insurance and i just don't remember saying oh yeah because i'm going to deny when you know i'm applying but you have a claim the insured has a claim and they file their claim now there are certain components that have to be met certain activities that have to be done and they didn't do that to later within the timeframe given by the extension and then there was a denial why isn't that the denial of a claim if we're looking at statutory construction of what claimant means claim means not just i called up to go  the filing process because you would have had to do squat if that's all i did is call up and say my house has been demolished by a flood but in every instance that i can locate until the tater opinion and progeny that is exactly what has happened cater is the first instance we can find where a district court has said that we're going to mail separate things and you don't have a cla district court actually looked at haider and do it just rosenthal did distinguish it on the basis of its factual scenario for the first time you had prima exactly what the court pointed out a moment ago you've had the catastrophic event happen you've got to get your kids in school what are you going to do how are you going to get a proof of loss thomas out of sixty days so famous steps up and says you know what we're going to give you a year to get your proof of loss on file well in that moment the federal government dealing with the limitations of when the federal government wants to be sued themis as your prerequisite to suit your proof a lost can now get filed a year out but your denial can be here and arguably the statute of limitations can a woman before the deadline can be before there's any proof so you in these cases we have this an i q of one member which are again there was a lot of debate about was it there's no debate houses demolished care i can stand there look at it we don't need an expert but there was a lot of debate about whether that was because of wind which would be covered under flood insurance on a regular homeowner or flood which would be covered  flooded not regular homeowners and the debate was often between the two carriers ok your point seems to make the proof of loss irrelevant so while i'm sitting around trying to find a hotel live in put kids in school all of  that i'm getting a claim deny that i've been at a chance to put together i mean a chance to have experts come out there and say no this shows that it was flooding or no this shows that it was winter that shows it was something else and and yet you're allowed to deny it start my clock running when i haven't even had the opportunity to get any experts to come in and help me make the right claim if assuming i'm going to be a person of integrity and want to go after the correct insurer for whatever but i'm just a person i have no idea what caused my house to be  just want my house back and i need to go on living and that just makes no sense at all to me that you can deny a claim i haven't even made and even an opportune make when you've extended the time when he has extended the time for me to make the claim it just i file something that is is something you're allowed to ignore by law by law if i just call up or write a letter and i say my house is demolished and it looks awfully where i think it was a flood you guys could just ignore that absolutely have to respond until i did the proper things to make it a proof of loss or to it whatever else so how can you treat that as a claim when you could as a insurer ignore it and you're not allowed to ignore claims as an insurer you have all kinds of saying when we're trying to interpret the word claim and we're trying to do it consistent with this scheme that favors you all a lot but needs to do what it's supposed to do which is protect people from disastrous floods we can't give them a complete catch twenty two which is what you're you're really essentially saying that insurance come to get walk down the street go three thousand dollars four thousand dollars five thousand dollars and write letters and all these claims are denied and that people are still sitting there in a hotel somewhere trying to figure out where when the next meal's going to come from that to me makes no sense if we're looking at statutory interpretation but the statutory interpretation is what is a claim it is tendering to your carrier a claim they determine that this is covered this is not they sent a partial denial on the uncovered portion and they send a letter that says send us your proof of loss in this and as we get it we'll tender payment to you that is just spits directly in the concept that perhaps when i've had time to put a proof of loss together i might could persuade you that this was caused by the flood because again a lot of these disputes aren't really i don't think two hundred thousand prisoners three thousand is as proof of loss there is a letter that comes his statute of limitations we look at it under what we think the statute is the claim being on the claim the request for payment was turned into the carrier and there is a denial of partial denial which is october he had until october of that year to fall as lawsuit and he waited until the following january we do think there is a provision there is a time line there for the insured to be able to file their lawsuit if they choose to counsel you've been repeatedly relying on the right case look through the briefs i don't see it cited that doesn't mean i'm reading correctly give me the cite to write for fifteen  are three eighty four fifth circuit two thousand and the question is you began your argument by saying that you raise limitations below you just raised on one problem instead of another problem as if that means you can raise the second prong here that is not waived what's what's another basis for your claiming that even if normally we would apply a waiver say well you  present this below if we assume it's not jurisdictional if we assume it's just limitations what would be your on the basis of saying well i didn't argue below but you ought to consider it now because what would your basis be because it is a second viable argument that applies to the exact same issue if you look at the u vs city of s can dado case which is a us supreme court one twelve supreme court fifteen twenty two thousand nine hundred ninety two once a federal current in twenty two yes once a federal claim is properly presented a party can make any argument in support of that claim parties are not limited to the precise arguments made below and that specific instance it was over a city ordinance a takings ordinance and the court held that taking in that case was argued to have occurred in two different ways physical occupation and regulation two different ones one race below and one raised above but they're both different variations of the same that raise it about we raised  linchpins the argument is the idea that private entity is effected something forty four c f r sixty two thirty three section g prohibits exactly that type of an argument soley responsible for their obligations to the insured under any flood insurance policy issued under agreements they had to enter into with a federal insurance administrator such that the federal government is not a proper party is you'd mr the polls you sell the policies you your own policies and procedures all these different things that go about you may get reimbursed but you pay the bills and i think that's an important aspect of it when this court decided can't and then affirmed it more said it said this is a very limited pursuit preemption those reimbursements only apply in the context of adjusting if it was truly the sovereign you couldn't have procurement claims and by his own admission a claim not against the southern is proper in state court and so whether there's a waiver or not if it's simply plain federal question jurisdiction under twenty eight u s c thirteen thirty one the claim is probably filed in state court but with an absolute right of removal that's what happened here we should not only the debbie whale carrier we had t to it is and where all these cases come down is if you file a lately in a wrongful if you sued fema and state court i agree or seven to applause but it doesn't apply here and not when a party decides debating the federal court so we're not having a jurisdiction question today the only question is how the potential jurisdictional question intersects with this limitations question in terms of when with the lawsuit quote filed for purposes of ending still get the preemption they still can remove it to federal court unequivocally no one disputes that the difference being jurisdiction can't you wave jurisdiction can't be conferred by an agreement by a simple choice of form clause that would be in state court if for some strategy reason they want to pursue those claims there they could if my time is up thank you thank you thank you both we'll take a brief recess before the next targ