thank you ron in light of the just records initial denial of the motion for summary judgment it appears that the sole basis for the court granting re the livery of a queen cannot under any circumstances constitute equitable tolling i believe that there is a material distinction between the here that would justify any sort of exception to the application of the rule that the sole issue that all respond to your honor is with regard to this delivery issue because the district court otherwise found sufficient disputed material facts so as to deny summary judgment with regard to the delivery issue the material distinction here is that there was a specific that was online from an establishment created by the executive branch of the united states government that first class mail would be delivered within three days that equitable tolling and concepts of equity necessarily involve the conduct of all of the parties the united states conduct certainly contributed to the fact that the claim was not received the united states you're saying the post office correct as so cited it's not the entire federal government this is the post office isn't that common knowledge that sometimes mail gets delayed there's a window of time within which you can reasonably expect that it will be delivered but you can't take that guarantee to the bank that is going to be there with the next number of days can you the post office on one post at a range from one to three days and the credo certainly not representation with binding legal effect but the credo posted on  let me ask you this the you're relying on equitable principles here are you not i mean is this yes you have and in the classic situation of equitable stoppel it's harder to stop the government than it is a private party now in this case we've said well you can't rely on fed ex but now you  saying we should stop essentially the post office because it's part of the government that does that make sense isn't that that your honor i'm not suggesting that there should be a bright line the other way where any time for governments conduct is involved in contributing to the delay that the doctrine of equitable tolling applies appellants position is that the district court should be specifically allowed to consider that information as part of making a decision as to whether or not equitable poling apply in response to his owner's question from a moment ago about well isn't it a fact that not always do things get delivered within the time that they state i think that's true but given i think what the popular perception for and so you're saying that's an extraordinary circumstance i believe it is your honor because if they post that on their website the post office knows that the public is going to be relying on that one of they have express mail they have expressed mail for delivery that i believe is within two days ok but let me ask you this does your theory assume or require us to assume that the united states be treated as one monolithic entity for purposes of equitable tolling that would include in that entity both the u s postal service as well as the community clinic only the united states is the defendant in the case your honor so i don't believe there's any legal authority that the government has cited which suggests which supports its position in the  separate agencies there are separate agencies but there are separate agencies of monolithic defendant in this case for example we would not have been allowed to sue dr myers other with what you're asking us to do here because this is a specific application of an equitable doctrine it's not for purposes of imposing a legal duty it's an equitable concept and the concept is that both parties conduct should be considered the fact that it's not the identical agency what about the fact that we have said specifically in the equitable tolling context that routine mistakes like a lawyer filing at the last minute or a lawyer putting things in the mail the last minute is something much more than routine  negligence run of the mill cases and that that wouldn't really trigger equable tolling what's the difference between those cases and here this was not a mistake there was a strategic reason to file as close as possible to the end of the statutory period which is that in a childbirth case even more so in this one where it was an extreme pre term extreme low birthweight paid it takes a very long time in many cases years before the opposed to two weeks or maybe a month before the deadline i'm not following the figure if you would have eyes if the ace counsel would have put this in the mail given the notice in the mail  two weeks before the deadline or thirty days before the deadline you wouldn't have lost any of the procedural benefits that you've just described and it would have been far less likely that it would have been untimely received by the agency hindsight wasn't it a mistake to not mail it to the agency a few weeks before as opposed to three days before and isn't that routine negligence it's a fair point you are but again the wider the w last regulate mail in twenty twenty hindsight yes that's it's a it's a slippery slope argument your honor in terms of medically speaking the issues of trying to predict the future for a child like this it's impossible to find a time certain when that's who dictate proceeding in this case proceeding on june fourth which was four days before based on a website put up by the united states post office seem prove to most lawyers under these circumstances file literally only you know a day or two or three days before the final deadline and if not when with the opinion going in the direction that you're urging basically encourage everyone to do that i can't i can only speak anecdotally your honor but i have a fair amount of anecdotal experience i was chair of the statewide morning your other assistant u s attorneys teach you love you have united states right off the bat your honor i want to respond to the point that mr siegel to raise regarding the united states postal service for the proposition that he relies upon that there is a representation in the postal service he points of the postal service website however if one goes to that website and beats through it one will see that on the website itself the post office says that delivery times are not guaranteed for first class mail the only type of mail that has any form of guarantee is as joe simon pointed out the sort of next day express mail and a guarantee that situation just says we will guarantee delivery or you will get your money  the government is not a monolith there are the government is very large their offices all across the country has alone has over eighty thousand employees twelve major offices thirteen field offices it is very difficult and impractical as cases have acknowledged to hold one branch of the government or one agency responsible for the alleged failure of failure or inaction of another agency when those agencies don't in fact interact with their employees are completely different located in different geographic locations further it is not even clear that the mail was in fact lead here if we look closely at the evidence the declaration that was submitted by opposing counsel in the summ judgment phase stated that the awful in question was created at three pm on the day june fourth two thousand and nine it's unclear when in fact it was mailed at three pm we're already getting towards the end of the day i entirely conceivable that it was not dropped in the mail until a little bit later and then not in fact picked up until the next day in which case the delivery would have in fact been within the three working days that we're talking about additionally to the post office website when one looks at the representations that are made the post office actually describes and says one has to take into account when looking at delivery times where it's coming from and where it's going here it's going from san diego all the way across the country to washington d c and then there are also possible issues with regard to whether and other situations that may arise so it is not entirely clear that the post office wasn't too late and in either event it is even if you know setting that issue aside it was still addressed to the wrong address it got to location that where the claims office was no longer located claims office had moved years before and this was advertised on the website it was not information that was hidden so there was no it would not have been difficult for an attorney seeking to submit this claim probably to locate number one the correct address remind me coun to again the incorrect address the park one building and there are some other cases in other contexts in which it says that postal business days include saturday yes so i can speak further to the timing issue if there are questions on that but it's also important to point out that as has been discussed it by this court's very decision and ok for in that case as has been pointed out the carrier involved was federal express we're all familiar i believe with the federal express motto that if it absolutely positively has to be there by the next day use federal express federal express many people we consider to be more reliable more of you know more quick than a postal service and therefore if you've been a allegedly delivery by federal express is not enough for a couple tolling then a fourth your going down with the postal service which is now represented that you're not even for next day delivery you're going a regular first class delivery it would be even more unreasonable to rely upon first class although this be a different case if the agency that allegedly caused the underlying harm was the postal service and then you used the postal service to give notice and they delete it so that's an issue point you're saying you're on of the postal service caused the actual injury yeah i think the answer is yes but it's not this case we've not had that situation arise you know it is not unusual for us to see the argument that well the postal service a branch of the government is now somehow complicit the typical postal service cases are you know vehicle accidents because there are i believe one hundred thousand carriers on the honor so that that's the issue with regard to the timing i mean not only is it late but is also late to the wrong address and even if we look at a plan of his try to argue push this idea that it was one day late but garden variety type of negligence and further we have again is going to the wrong address although there are political codes of federal regulations that state well even if it gets to the wrong address but if it still somehow gets to a federal agency that agencies to forward it on even in that situation if you click we'll see if our says the claim is still not received in till it is actually received at the correct address so then we would be even beyond one day we could be several days several weeks even and if one even looks at the claim itself which are rather at the return receipt which is that two thirty seven to thirty eight the excerpts of record the address on there does not even say t j h s he just says claims officer t says that the if it arrives at the wrong need to see that agency has to forward on to the correct address if it can do so it has to be able to make it out and in this case you know we submit there's not even enough information to do that so there are multiple has gone well beyond the scope of the issue that is presented to this court on appeal the circumstances regarding the wrong address the just for a court specifically found that there were issues  fact there that would have to be decided at trial and in effect kill people would be asking for some type of advisory opinion from this court regarding those issues before that the case is even been tried  additionally kilts with comments about what else is on the post office website i don't believe were in the record that i've looked at  that the delivery delay in that case does not involve equitable tolling reading those cases closely neither involve anything close to that issue thereafter and then made misrepresentations misrepresentations to the client about lawrence versus you donated states involved miscalculation of a deadline that's not here ok for really stands on its own as a single case that involves federal express which for the reasons that have already been stated in the brief and earlier this morning are mature really distinguish