good morning honors may it please the court my name is veronica manoir no i represent the appellant felisa to nec as i see it your honors were here for three separate consort of distinct reasons number one was that the government filed a motion to strike which i believe this court order we needed to address today we have a jurisdictional jurisdictional issue that the court asked us to supplement only brief i'd like to touch on and then i would like to also address the substance of the statute of limitations issue if that would please the court i would like to rebut two minutes of or reserve two minutes for rebuttal let me start with what i think is the easiest question and that is that the most the motion to strike filed by the government seeking to strike our excerpt of the record that provided this court with the report from august fourteen i think it's a very clear indication this court is always entitle to take public notice or judicial notice of public records i think there's also a very clear indication that the district court looked to the substance of the reports that we pled and integrated into our first amended complaint i recognize there was a complaint and a first amended complaint the first amended complaint did nothing but change the the defendant party to the united states so both in the original complaint and the amended complaint the zero id reports were discussed no i can see that the court did not do a heavy analysis of the reports but they clearly were integrated into the record i don't think that there's any validity to the motion to strike moving on to the jurisdictional issue i think that one might be equally important if not more important than the actual substantive case here on the statute of limitations and that is that we need a bright line rule in this one circuit as to what claims fall under the and which cases are not but are truly benefits claims and i think this case very clearly falls into a medical malpractise claim and is not barred or there would not be exclusive jurisdiction in the veteran entitlements to benefits or adjudication of benefits is the only thing that should be subject to i guess the five eleven line of how do you square that with veterans for common sense which is hard to read but does seem to indicate that delays delays or claims of systemic delays are also covered by five eleven so help me with that sure and i think that i'd like to be able to square veterans for common sense because i don't think anyone could even veterans for common sense was inherently inconsistent what i do think that for common sense do differently than our case is it was looking at a widespread systemic delay for multiple veterans and those claims were being attacked on whether or not the delay of adjudication of benefits was at issue the issue here is in our i didn't see that in e c s and it's seen there were a understood i still think your honor that the distinction here is the when you are looking at a widespread or systemic issue for an entire class of people and you're talking about are these people's benefits being administered timely that distinct from medical malpractise because we're not just talking about a systemic delay of timeliness but also once you once you cross the timeliness threshold is the right type of treatment being provided the reason i think veterans for common sense is not the great bright line rule that we need mr stiction is it doesn't go far enough it sort of dances and says well every time you have a medical malpractise issue at some level we're going to address veterans benefits well that's a true statement but if that were the rule that because there's a crossover we would never get to a medical malpractise case for any veteran you would never because they're always going to be intertwined so if you see a seems to preserve medical malpractise just us and tell us what what that means i agree different line that should be drawn look here's the problem and i'm sure i'm assuming this is why there hasn't been a bright line rule addressing this issue so far is because every time the bright line is created by any any district across the country that then go that sounds a little odd it doesn't quite work but the bright line rule to me should be adjudication of the veteran benefit do you get it or do you not clearly falls within the veterans court once you have an title meant to a benefit if the issue is not based on the benefit itself but whether or not the proper care was rendered it crosses the line into a medical malpractise action the bright line has to be if medical malpractise is the prevailing claim if it's the main component of your claim the claim sounds and medical malpractise now in our case and i am sure i put played this very distinctly one of the things that so troubling here is that the federal government told my client your claim falls under the f t c way they gave her a directive to file in federal court not in the veterans court whether there's a bright line rule announcing exactly what i think the bright line rule should be the right line should be if the general counsel for the veteran's administration tells you file in court you get to file in court you can't have general counsel again this is not an administrative or center of the equitable astop will agree type argument agreed but i think that as part of this court's distinction in this court's ruling it should make a rule that says you don't get to trick a veterans you don't get the basis of your complaint for medical malpractise the basis of the complaint thank you is is based on it's twofold number one that the v a in phoenix failed to timely render care to my clients husband more importantly the failure to render care and the un timeliness was hidden intentionally hidden by the members of the v a that included doctors and medical staff all the way down to administrative personnel who for several years were going through this what we call a very very secretive process of fudging records so that the officer of inspector general the duty of care it absolutely the circumstances it is and i will tell you when one hundred percent handor if that's where my client passed away i think my claims would be untimely because if it were solely limited to the fact that he didn't care it would be you knew then he didn't get initial care the problem was they gave my client a biopsy on december second and they know you are in end stage you this gentleman who served our country are going to die and they still set out his treatment for another month down the road but they mislead him and this is why we're here on a fact question they mislead him and his wife into thinking those are normal delays i know i'm running out of but your claim is that they merely should have done more for him they should have triaged him and put them ahead of other patients who had less timely needs and or should have said we cannot render this care timely enough the failure may cause you death you need to go outside the system and get help that's where the failure lies is that there's not a good mechanism in place for how you treat veterans when they need to be true and at least if there is it wasn't exercised in this case doesn't matter if the decisions are a professional a straight of decision and it may matter and that is exactly my point as why in this case the shouldn't have been kicked on a motion to dismiss because we may learn in discovery that it was just a front office clerk who made that decision than the medical malpractise happens because the person has the doctor in the back and doesn't walk to the front and say to the person making appointments this is true or put it on the notes or make sure you are telling people this patient needs immediate care but on a motion to dismiss there were ample facts pled that said this is an issue of discovery has to be done by a factual analysis under the iqbal standard did you  to say it was a medical decision absolutely i believe we did we did not just talk about a complain about systemic delays it was there were systemic delays but in this case it goes step further and the standard of care that was breached in this case is twofold the medical malpractise is not just did you give the right care but did you give the right care timely enough if my client had a brain tumor the doctor could have suggested you need to extract that tumor but he didn't say the timeliness counts that's where this case falls in the standard of care combined timeliness with the type of treatment that was provided thank you i'll give you a minute for it but i appreciate that thanks good morning honors me please the court i'm smart on behalf of the united states this this appeal is actually about what mr ms tonight knew and when she knew it the undisputed facts are she knew when her husband passed away in december of the line is drawn between medical malpractise and i guess this trait of benefits this is absolutely judging as you saw in our briefing i believe the proper line if you look at decisions that result in delay of provision of benefits is covered by five eleven i think with veterans for common sense held there are a lot of issues being looked at invented for common sense the pertinent one was the claim that veterans were getting and i think you have to read the district court opinion as well in conjunction with what was happening as part of the claims in that case where veterans were coming in for initial appointments general practitioner points and as a term they needed mental health care treatment so they had awarded and if it wasn't just viewed over whether they were entitled to exactly some of those veterans had actually been determined they needed a mental health appointment they just couldn't get one for a significant period of time and you'll note i think the court this court charged the v a about that but acknowledge versus a medical decision exactly and i think i tried to illustrate what would be an administrative issue would be using the dialysis example which i think we've heard in this case because that's one of the treatments that plaintiff has alleges needed so if the patient goes into the v a and is seen by a doctor and they say ok we have your biopsy results you're going to need dialysis we have twenty dollars to see those are full for the next month the fact that they don't get the treatment for a month is not a medical malpractise issue they've been told what treatment they need it's a systemic issue that would have what if the standard here is given the patient's condition you need to treat you need dialysis treatment today well if there's if they are to get it to them why isn't  that just to put them on fire isn't that a breach of the standard of care what they're sitting there say they show up in the emergency room and i think there's been cases where people show up for emergent care and the v a says no no we can't treat you right now that that's a different question the question is if you get the biopsy results back and you mr tonight said we got your biopsy result you need to have dialysis and says i need you to started today and then he doesn't go in or he says you don't need to start this for three weeks but  start at that date that is a medical malpractise issue doctor have a duty of care to ensure that the patient gets timely treatment in other words the doctor says you need it tomorrow but then doesn't go try to make clear the cases who's entitle to have their doubts this when you get into the issues that section five eleven says don't touch them with it would you agree that it is a medical decision and i would agree that it's a medical decision if the doctor would say you need to start dallas's right away they as plaintiff has alleged if the doctor were to say we can't fit you in you should go somewhere else as a we if it's an emergency i think that would be an acceptable meeting of the standard of care if they say well you need dialysis but i don't really know when you need to start it or just see when you can get in no problem that would possibly be a breach of the standard of care but that's not the issue we're dealing with what the court has said below and i believe the court below did a fair job of coming up with this distinction that a medical decision is malpractise if it's a systemic delay or an administrative issue that's not malpractise and it's bar by section five eleven but those are hard to distinguish i mean there are some of each and i mean it's not so easy to distinguish a medical decision from a systemic decision no that's that's correct and what we've said in our briefing and i think this pivot says that is that it appears that the court did interpret there to be some medical decisions in play in this case and so was there and nothing in the complaint i mean you said in your briefing well the district court interpreted it the complaint generously but we don't interpret complaints generously we don't defer to your court's interpretation complaints we go under the allegation should be well if there was no room for scheduling they should have told him he needed to go to another hospital or to a number to see room toward urgent care that i could suggest a different question of whether or not he there was a breach of the standard of care while i think the standard of care is what would be required in the  paragraph that just pointed to at least could be interpreted to say that a doctor should have noted it needed to be done immediately and i think at this stage that may be enough to get past that but the thing is obligation did the doctor have to notify they needed it right away but we can't get you and i think you should good for emergencies and that's a common so the veteran a veteran has the class representatives as  the no attempt was made to give me the mental health treatment i needed i desperately needed and i commend the my husband committed suicide i mean and you have a class of those people and so that would get around gave they did they couldn't give him us a quick enough appointment to provide him the services he needed right and that's not negligence if you don't have the ability to do it from an administrative standpoint how can that be negligence when it's a appointments or benefits so how do we know that this is a what because it's talking about scheduling so so what makes this medical malpractise and not if i reef reframed the complaint and yes i think it's simply the allegation that the doctor who saw mr to nag i think she said it in her briefing that well i think you can get if they couldn't get you in they needed to tell you to go somewhere else i don't think that's actually what was pla you should have told me i need to go to emergency some or else the allegation is you should have got me and sooner for treatment and i don't think that survives that's why we disagree with the way the court interpret it but in the complaint and allegations i thought it was the least i recently plausible interpretation that there was something there but i don't think the allegation that i was going to says you should've told me it was emergency and i need to go somewhere else it says you did you did not get me in soon enough for an appointment judges i know my time is brief so i make this is quick as possible we need a bright line rule in the ninth circuit jurisdiction if it's a benefits issue and a benefits analysis even a systemic delay it clearly falls under the veterans court when you have a  case that has specific allegations about doctors misconduct like in this case and like in the example you gave i personally or my husband personally couldn't get an appointment that led to his death that intertwines a benefits analysis with a medical malpractise when you have specific allegations of medical malpractise you have to be able to file in federal court it is more important that this court be able to distinguish once a veterans decision has already been made that this person is intitled to benefits but the failure to administer those benefits created a malpractise case it should be fought in court and not exclude by five eleven the last issue i want to hit very briefly is the reason this case is not b