good morning may please the court john later on behalf of appellant anthony kyra booth i'd like to first address the waiver issue because if the court finds waiver obviously everything else is moot and believe that the waiver issue should be case resolves the waiver issue it's almost identical factually to this case it involves marley under which under ninth circuit law equitable tolling was jurisdictional until the wong in june u s supreme court cases and the guy out court expressly rejected the same waiver argument that the government makes here i believe that congress intended minor claims to be told to leave that for two reasons the private person mandate which is set forth in the federal to then i think you're sunk right no judge because i think those cases go to a cruel in a cruel and tolling are separate legal concepts you can attribute a parent's knowledge to a minor and still told the minors claim tolling occurs regardless of want to claim a cruise legally ok but let me tell you why i have difficulty with that if you i mean and fact that mine that doesn't have a who said i'm familiar with the cases your honor and i've read them and again i believe if you look at twenty four a one day the statute of limitations it actually refers to both concepts twenty four a one b refers to a cruel twenty four a one a talks about disability and tolling their separate legal concepts and they're not necessarily inconsistent and i believe you can have a case where a plaintiff's claim accrues but that the statu clue i i would first point out in this case judge that there is absolutely no evidence of what the minors parents knowledge was there was no discovery there's no evidence even if we accept as true the concern your honor has no deposition was taken of the plaintiffs mother and there's no evidence what knowledge she had and so i believe on that reasoning it would be improper it was improper for the trial court the district court to grant summary judgment because there's no evidence on that point but i believe even if there was again i believe that the concepts are distinct and different and i truly believe that congress intended that minor claims be told when the action of any person under legal disability and i would point out that minority is probably the most recognized legal disability in american jurisprudence the action of any person under legal disability or beyond the seas at the time the claim accru may be commenced within three years after the disability ceases and i think this answers your honour's prior question about cruel and tolling there are different concepts twenty four on a says even if the claim accrues you still told because of the disability and that's the situation but all of those cases were based on the premise that the statute of limitations is jurisdictional which is no longer the case and because that premise has been reversed all of the cases your honour's referring to have also by necessity been reversed it's no longer jurisdictional all  those cases are gone this is an issue of first impression and it obviously if your honor believes that a cruel and tolling are not independent then i believe your honor is correct that i lose but i believe legally they're separate and distinct and again a claim can be the statute can be told even if it's crude that's because there's a disability i would like to point out to the court there is adverse authority there's an one nine hundred fifty six ninth circuit case  home so what does this case that you have so glen says the twenty four a one a which is the general statute of limitations for any case against the government glenn says that doesn't apply to federal tort claims act cases and that only twenty four a one b plus it was a two to one decision based on not statutory language but legislative history two judges believe the legislative history compel that result but one of the judges disagreed and felt the legislative history compelled a different result that is that twenty four a one a also applies because twenty four a one a is the statute that says in every civil action a person under legal disability has three years after the disability ceases and others if you apply twenty four a one i'm sorry just you can tell opposing counsel we're going to be talking about this here i did not we've been courteous so she can be prepared it would have been your honor but i didn't do it i did not but if if federal common law is out of step with what congress intended for the federal tort claims act almost every american jurisdiction tolls claims for minors and federal law does not do that under the federal tort claims act and this court has an opportunity to do that all of that has nothing to do with wrong i disagree with equitable towing i disagree ok well because all of the cases that previously for bayed tolling of a miner's claims were doesn't like who you really don't have the special imitation doesn't begin to run so is deals a complete of the from issue well there's two ways a statute can commence one is with the cruel if it's not told but even for claim a crues if it's told for example because of concealment it can it tolling can apply i'd like to also briefly address the private person mandate in addition to twenty four a one a and this is covered in my brief your honor the private person mandate which states that the intent of congress in passing the federal tort claim act was to hold the united states liable in accordance with the law of the place where the act or omission occurred it's not a limitation on the substantive law of the place where the negligence occurred it's the law as a whole subsequent us supreme court authority makes that clear point is that in every state in the union i think except to again this claim would be timely if minor claims are told so the private person mandate i believe requires the tolling of minor claims and i believe that the language is one of those a private person mandate applied person mandate does not apply and with all due respect i disagree to the extent that congress has made it clear in twenty four a one a that minor claim should be told and i agree that the statute of limitation procedural not substantive and that federal law applies but in gleaning congressional intent for one isn't the provision the congress enacted that doesn't apply to private persons so the private person mandate as the united states gets treated as any private person under state law would get treated does not apply and nothing you've said is contrary to that if i get twenty four one has something that sort of similar does not make it the private person mandated if the court is correct and that's a promise if the premise is correct that the private person mandate doesn't apply to stretch limitations then you're correct i believe the private person mandate does apply and i believe the language of twenty eight u s c thirteen nine hundred sixty one makes it clear that the private person mandated last but if your honor is correct that it doesn't apply then we loose but i believe that i'm not sure you move those you know the many other you do apply it to waive or cool judge i suit me i have a very short time i'd like to reserve what i have left rebuttal if i could ok thank you please the court my name is and harwood i'm an assistant united states attorney from the district of arizona and i represent united states in this matter this court should affirm the district court's ruling below because limitations while also denying minority tolling in finding that equitable tolling and minority tolling are two different concepts correct correct judge ellis and the point is this that the f t c a is governed by federal procedural law the f t c a is also governed by state substantive law the the appellant in this case has conceded on page seven of his reply brief that federal procedural law governs this case and wanted nothing to eliminate the mandatory requirement that a claim be filed within two years of the statute limitations and in fact your honor i want to join some time  your rights diligently and that's extraordinary circumstances stood in your way when in this case neither one of those apply there was nothing about we don't know that the court simply refused to look at me for a reason this struck me as bizarre wouldn't you find then in that instance that the fact that the child is an orphan would go to the equitable nature of equitable tolling and have nothing to do with minorit that the child had no one to stand in its in his or her shoes and proceed with whatever case there was you know that but you're not going to buy that how you know i  think because i mean obviously there's no reason for anybody to stand this child's shoes unless the child is a minor so you know the premise is of course it doesn't matter but you know we may have some excuse for it you may have an adult g has has in has an element of looking at the particular circumstances my understanding in the north he told him was that it was just kind of an absolute based upon the age of the forty four you will note that the plaintiff which is which is why it is is the docket sheet from the state court action where plaintiffs where mother filed an action in arizona state court suing the state of arizona and some contractors for this very accident so booth did have someone representing his rights and was aware that he had a claim but yet that claim was not pursued against the united states at that tolling you would have to be able to show that you were pursuing your rights diligently and here when the child says look i'm a minor i'm got an incompetent found i wasn't able to pursue the rights and she would you get the idea that but given that we already held that the statue imitations can't be told why isn't all of that in nineteen sixty five we held this is joyous that it can't be told so what does what we then say about the parents i mean as best i can tell what they're saying is look this is they play in those cases we have to go back to the legal analysis of what is procedural and what is substantive law this court and the supreme court has held in kubelik that statutes of limitation are procedural law and under those circumstances the f t c to your stash limitations is procedural plaintiff isn't concedes that in his brief and this court has to follow that just because we are now allowed equitable tolling under in chambers i mean says it is well established this is on page five seventy nine that minority does not hold the limitations period prescribed the federal everything from cases that's something cases and say it's a holding it has to do some work it has to make a difference in the case and it seems to me that all these cases talk about how the knowledge of the clear it considered tolling for infancy and did not include it and if you look at twenty eight u s c twenty four zero one there are two parts to that statute there's an eight part that applies for a six year stash limitations for suits against united states that does include a provision for tolling for three years but then you have twenty four a one b which is the statute that applies to f t c cases that is silent on tolling for  if congress had intended for there to be tolling for a disability or minority or whatever it would have put it in twenty four or one b it did not to has no effect one had only thing wanted is to provide an equal remedy for plaintiffs who cannot meet the two year statute limitations for either something that was extraordinary and they were pursuing the right exactly that's all want it why isn't being a minor such a circumstance because the status of being a minor is i don't think anyone consider that an extraordinary circumstance and counsel are there any not so much to your status as a minor but to anyone whether you're an adult or a child we do want to encourage the parents to bring the action correct so that it can be heard in a timely manner ye a it's a corollary of the principle that we that the parents have a duty to bring the action yes that the work that the parents have a duty to bring the action yes the fact that it's that it's not an equitable circumstance element of equitable tolling is that you need an extraordinary circumstance that are that that was the cause of the end timeliness and there's nothing extraordinary about being a minority there may be something about being a minor there may be something extraordinary in that the circumstances where you had no one to step in as a next friend that  two year old go to the federal courthouse that would be for me or even a twelve year old i don't know how to go to follow courthouse when i was twelve except when i went for my immigration check to get my gre anyway thank you thank you calling in line or tolling are different legal concepts but one over rule that we have a clean slate on whether minor claims are told under the f t c a because under all of the kaypro night circuit cases going back to hungerford which was the first in one thousand nine hundred sixty two all declined to tall minor claims because it was considered jurisdictional so there are six separate issues so even if you conclude that equitable tolling does not apply to minors it is still an issue of first impression now in light of wang because wong reverses all the cases that refuse to toll minor claims it is an issue of first impression now so why wouldn't the congress have included min telling and twenty four zero one b because it didn't need to because it's included twenty four a one a and by the express wording of twenty four a one a it applies in every civil case twenty four to twenty four a one it doesn't say we apply it in all cases except for cases discussed in b twenty four a when a says it applies in all cases and there's no reason to believe they didn't intend to include tort cases if they had intended to exclude toward cases they would have done so and b are in harmony they're not inconsistent you can apply both so again i  that i don't actually have any additional comments if the court ask questions i'm glad to answer but i truly believe this is an issue depression and congress intended congress intended to toll minor claims because it's a fundamental element of american