alonzo factors the m s p be entered in to engage in a two factor analysis of mr fingers pro se status which was mentioned but not analyzed and the length of mr fingers the way the strands a month twenty years ago  or there have been at least eight or nine cases which were cited in my brief in which this court has reversed the m s p vs initial determination of no good cause and we're the mr fingers not asking you to replace the m s p b's judgement here but merely to reverse error where the m s p be failed to consider all the alonzo factors so the m s p b instead of considering all the mission kind of returning a little bit to where judge jury was bill can we give them discretion in how to apply this test and that be part of the discretion that we give them yes to judge the m s t be failed to consider excusable neglect when mr finger got the instructions he read them carefully and he conflated as a pro se litigant a lay person's reading of the instructions he conflated  p b review with the federal circuit review and he was confused about the deadlines and within his framework of understanding of what the deadlines were he timely filed with the federal circuit and he believes the timely found t it's perfectly what you're saying makes perfectly good sense it's first it doesn't look like he's off on a frolic anything like that the problem is that  have to agree with will judge one like i would i would posit that they were about the same level of clarity because at the end of the walls instructions think looted a set of regulations that defined days as counter days even included an example working out of deadlines and the waltz detention or op proceeding pro se like mr finger was confused and he diligently filed his briefs within his framework an understanding of what the deadline  and help me in taking up again on what judge wallach said what is the amount of leeway that we ought to give to a pro se i believe it's on a case by case basis how do we judge in this case in this case i believe that the m s p b should have placed itself in the shoes of a pro se litigant reviewed the instructions and recognized that the instructions were not infallible recognize that there is room for confusion and also counted all the other factors be pluggable factors which were ignored or given short shrift by the m s p b for example mr fingers pro se status this court in walls described the distinction late fourteen days he was fourteen days late he was timely at the federal circuit but he was fourteen days late it should have been several seconds because the case was not final if the bullet that doesn't come i think we definitely can see that he was not time determined that they were crystal clear and then nobody could possibly be confused that was a professional reading of the instructions they didn't put themselves in a lay person's perspective of how he would have read the instructions are crystal clear how come that part of the interior was twenty two days later the department of interior was twenty three days late not regarding these instructor i know her why were that they offered no excuse they offered no good cause and that's another factor that i'd like to highlight for this court this court has raised the broad equitable principles of justice and good conscience and under that heading the m s t be applied a double standard here it allowed the department of interior to file its brief twenty two days late and this was a brief filed by professionals who knew the consequence if it does your honor but we're not asking for a removal of the discretion from the board we're just asking that the court apply the apply couple alonzo factors and the broad equitable principles of justice in good conscience i mean if the m s b be had done more than just list the the the factors and then only look at two of them and ignore the other of clickable ones then i believe we wouldn't be asking you to replace your judgment here but the image should be ignored those factors they also ignored three other requirements of the administrative law judge rick sent to the part of interior they didn't appoint a representative they didn't serve initial discovery disclosures and they didn't engage mr finger in settlement negotiations and they suffered no repercussions they were allowed to repeatedly ignore requirements and mr finger when he made one minor procedural error has case thrown out based on based on a technicality as opposed to the merits this co has also pointed out that this is a filing date a technicality i found it is not a technicality but it's it's not to the merits so the distinction this court has made is whether the m s p b makes decisions on the merits or on technicalities and i would posit that missing a procedural deadline is a technicality compared to a merit all close call so what evidence do we have that the stringer was diligent in his effort to  pursue his rights he didn't miss any other deadlines your honor he as soon as he received notification that his petition for review was untimely he promptly within a week submitted a motion to waive and he explained all the reasons why he was tardy in his in his petition for review he didn't do what he thought it was supposed to do that is coming here and he didn't know the difference between the courts your honor i i've spoken to  him he was confused about the two he thought that he was here in this case right now on the merits if you look at his informal brief doesn't make any mention of his delay he thought he was here on the merits and when he filed his petition for review at the m s p b that also stated petition for judicial review he was confused and he got even more confused when he received a letter from the m s p b that was filed here in this court stating that the case below was still pending adjudication again the layperson's reading of that is going to be that when a case is pending for final due to cation it had been accepted on the merits he didn't understand that it was pending final adjudication of a motion to waive the fourteen day time limit and when the and when the federal circuit received the m s p be clerks letter it sent a letter to mr finger saying you can't be in both courts same time you've got to pick and if you're dissatisfied with the amas if you pick them s t b dissatisfied with the most people you can come back here to the federal circuit so i don't believe that was intentional i believe was it was an inadvertent situation in which the m s p b was notifying the federal circuit of  procedural defect but the unintended consequence was that mr finger lost his ability to pursue review on the merits in any court including that the timely appeal filed here  mr finger respectfully request the m s p b to reverse the final determination denying him motion to leave and alternatively so that mr finger has the ability to pursue his appeal in some venue we and i'm saying no reasonable person late person pro se or otherwise should have been confused because the message was clear it's clearly stated that became i think well that means there are some cases where it doesn't happen and certainly my situation where i'm on vacation and i have some up setting things occur thirty days after the date so that is the exception nonetheless when mr finger found his initial use p s r with the board and found with the court on the same date i don't believe a reasonable person can claim to and but that is not what we have here because the language is clear i can see on the situation where the words of a so forth of the border of the agency that provides instances today evidence thing in your notice of wouldn't he be confused as to which is which and didn't as miss and mr anderson points out didn't that seem to be that he was confused you know as i administrative judge has want latitude in terms of conduct and a hearing at the an issue of state and the administrative judge that time frames for the parties to bring in certain types of evidence th administrators judge also wants to have a record from which that ministry of judge can make a decision then minister the judge may return the nation that the evidence and the materials that  the department of interior submitted were needed in order for that ministry a judge to make a determination is it's now we move up to a petition for review stage at that stage that is something that the board has regulations for the board have a regulation saying what time and the timeframe that you need for our filing a petition for you mr finger violated that particular timeframe and i don't believe you can if they didn't they they moved to file it late when they found it at the time and the ministry's was just common procedure well it's in some cases yes or in the government the government is often way i'm sorry i evidence right and sometimes they were never required to show good cards as to why they were late they were never shown required to show what the new evidence was for the well is not in the record however the there is there is there is no evidence to show that the administrative judge did not know what that evidence was in the reason it's just not characterized in the initial decision now as to whether the administrative judge do i'm not aware we can only deal with the four corners of the record that we have the follow up on answer is it seems just looking at the record quickly that the highly trained government attorneys are given a break without even a requirement of showing good ca the pro se confuse claimant here is cut off very quickly is there a disparity there well no sir i don't think it is because if you look at the record in this case m should've read it more carefully if you look at the appendix at a level he said the instructions on additional things and left me with the impression that i needed to wait until a decision became final pri i would have been able to really read this was all went well i would have been able to reread the original document dated two hours since and i would have either found one extension if i was unable to locate their prob to file documents that he needed to complete the record is comparable to the board requiring that a petition for review be timely found and on another point that was raised that the board did not circumstances you you can't look at just one item say ok he's pro se and we go out of the person's excuse you don't excuse the late hours you look at everything that he said that is why the board says that it looks at it when he found his motions the thing of motion over there and they have we have quite a lot of case law that talks about if a delay is minimal i didn't see that the board gave any consideration to whether this was a minimal delay the board said it was not minimum this makes a statement that it was not a minimal delay and i think you look at the lake in the context of all the other circumstances surrounding the case if they give any reasons why it was not minimal or to check they just say it's not an animal well i'm sure the board has its reasons i mean if you look at the case and you give the board the authority to use it discretion to make a determination as to whether a person has made a good cause statement or has presented good cause evidence as a wild something with late i don't believe this court use this discretion the board may not only occasionally go through china twelve pages explaining all of its reason it said these are factors to be considered when the board look at the facts to be considered as they looked at the time  finger had to file a his motion they looked at the time of the singer had to present his petition for you and found that he was late and found that he did not make a good cause for any i don't know if it's the did not specifically say this is minimum or two days would be minimum or fifteen days would be long term because you have to look at a number of days in the context of the thank you very much granderson you have the minutes you must p b s entire case is predicated on the infallibility of the instructions at the end of the initial determination they're imposing a standard upon mr finger which ignores this process status and says that it's virtually impossible for anyone who is reasonable and reads this to be confused your honor i i believe that that's not the standard here finger had ample time he he read it thought he understood it and then operated under that assumption and yes you know if you if you were a professional heat he probably should not be taught the slack that a pro se with again should be cut here but the of all asked he could have if he'd knew he was confused but i mean one doesn't call a court asking for clarification when you think in your mind that it's clear so it's not a question of whether he had enough time to file this thing which is what the m s p b seems to be focusing on as well is whether he was genuinely confused and the m s p b attacks mr fingers credibility they emit at points in their brain that he was confused but then believes that his confusion lacks credibility and essentially what the m s p b has done is said it is collapse the multi factor alonzo test into one factor which they will accept factor number six unavoidable casualty or misfortune couple factors judge well like i think they should probably lay out all the factors and then discuss the of likeable ones here excusable neglect the fact that the delay that mr finger was diligent throughout the proceedings and the lack of prejudice were factors that are applicable but were considered up mr finger did admit that he made a mistake in his motion to wait but that's after the court pointed out after the board pointed out to him that he was wrong and he repeatedly in his motion to waive explained that he was confused if you look i'd also like to point out something that that my co counsel pointed out here was that the department of interior is excuse was that it it had a lot of work if you look at eight fifty nine the agency says it had just received information that was not readily available and the only information of the agency included were agency documents every single document that the agency cited and attached to its opposition work was signed by the department of interior they also claimed that the appellant never served the agency representative with a copy of his statement concerning jurisdiction which somehow factored into the untimely response that's because the agency never designated its representative as it should have if they designated the representative using i believe form thirty mr finger would have known where to mail it to instead he mailed the generically to the agency at the address where he believed he had to send it your honor i believe that at worst this is a close call whether mr fingers confusion was was provides an excusable neglect or not and good cause