under title nine under the federal war in your this court has been clear in the court of decision that a three year statute of limitations governs and those types of claims and if you look at the felder case which is the supreme court case it states clearly that notice of a claim requirement is statute of limitations but we thought it was so obvious to be quite frank we split it was so obvious that the three year statute of limitations applied in this case that we didn't go in  preemption argument i don't even think it's actually a preemption augie because somebody is free that means to succumb flipped in the war somebody certainly free to commence an article seventy eight receiving if they want to nothing is preventing from you doing that  if you look at wilson versus garcia and the court said if the choice of the statue of limitations were to depend on the particular facts of the precise legal theory of each claim different statutes of limitation would  applied to various one thousand nine hundred three claims arising and rising in the same action and multiple periods of limitation would apply to the same case and thus they decided and by the way that's what happened in this particular case ultimately there was a tour here statue of limitations with respect to the hostile work environment claim and a four month statue of limitations to one academic determination where it was alleged that the plaintiffs disability and sexual orientation why why should york be permitted to to to somehow do this as to federal claims i mean you know that's that's that's what you're basically asking the question yes that's precisely correct so but if this were if these were all state claims right limitations on intentional torts and said no three or statute should apply it has that you have to have uniform uniformity in the rule so at the end of the day it's your right here  what is the time and here you're trying to you're you're alleging some sort of continuing violation well i would rest on the there's two claims that one's a hostile work environment claim that started in two thousand  i would rest on the papers on that as my main focus here is the the determination which which would lead specific facts in the complaint that caused because of my client's disability and sexual orientation and ten and two thousand and eleven you're not pressing but i am pressing but it's already been breached and i have seven minutes and i was a two year two year gap yes and that's your problem there how do you explain that to your how does the two year gap why isn't that a problem for you or your analysis actually it was about an eighteen month gap because there was it was there's a some case law that says you could have x that occur even in a year and a half report where it's going to help to be a continuing a byelection now if you look at the two thousand and ten eleven allegations and the two thousand and thirteen fourteen allegations correct me if i'm i'm wrong there's there's only one of the named harasser is involved in both  is it your point that if if if there was no continuing violation that the later claims your your complaint alleges which of discrimination i guess is still based on disability and so forth could be informed by the evidence of the earlier period even though maybe that that would not be those would not be actionable that the earlier period might not be actionable but still the evidence from the earlier period would be relevant yes it would be relevant even though it's not before the court the only thing in leave that before the court is the statue of limitations issue but certainly any prior conduct would indicate that prior history we could be relevant to the ultimate question as to whether or not the decision not to reinstate reinstate him was due to his due to disability we think it's the statute of limitations period he the the failure to reinstate the dismissal and so forth fell within three years yes right but are you saying that the failure is now of failure to state a claim allegation as to that period well i think that that decision that's not an issue in the case no i don't think it is i think the only issue was is the court dismissed the case and held the four month statute of limitations applied across the board to both coins and therefore the claims were untimely and the whole action was dismissed ok thank you ok thank you decision would come up but yes we would be remitted to the district court of course yesterday our decision would go i'm just saying that as a possibility we would have to go back to the district court but may i say a few things that case right not that's one thousand nine hundred eighty three procedural due process case right yes and and federal and federal due process doctrine suggests that there there isn't a due process problem if there is an adequate state procedure available in article seventy eight proceedings are adequate state procedures under that doctrine but that's still apply clear as to what your question is there isn't one case that i'm aware of that can be cited by the plaintiffs and pardon me if we've overlooked it where a dismissal from a college or university which includes to the article seventy eight procedural framework which you upheld may not be true with regard to all federal claims that i know of in the specific i know of no case and their cases are legion u is a former student brought a discrimination claim under title six the supreme court yes the state of new york dismissed it so that both federal and state discrimination statutes have been dismissed in the courts and i would argue that the attala case is not only informative but it actually is the same reasoning that applies here i know  case where it was allowed to proceed the claim which had as a basis i was dismissed from the university because of discrimination all of the cases lend themselves to the fact that the university are saying that if if a complaint alleges that in the persons during that a student targeted i'm hypothesizing i talk about this case he's constantly targeted on the basis of those protected features by other students and then by the faculty who join in and ultimately he's discriminated against in various ways during the year and ultimately dismissed the worst possible set of facts you could think of is that if you didn't bring his claim of in four months you know you can't with respect to the  that's the culmination of his of the activities that that occurred one could argue that title seven or title knowing has been breached but with respect to the dismissal because we are informed by a university setting when he failed three different courses in his senior year argue about these facts and there may well be the only issue is the procedural framework that must be commenced within four months on oracle seventy eight and in fact plaintiff commenced this action in the supreme court fully informed that the procedural framework would be applied we removed it to the federal court because we understood the law to be that we this court decide whether in article seven the proceeding is the proper framework within which the dismissal should be brought what is your strongest second circuit case to support your  ur title nine claims have to be brought in state court have to be brought you know not have to be brought i can divert to a case right now if the substantive federal law might be that they can bring the federal statutory claim here but he brought them in state court  dismissed so that there'd be allegedly a due process problem in the case one can see how that would be you know part and parcel of what would be brought up under article seventy eight if he had brought this within four months he would be obviously free to pursue whatever he thought to be the basis for the dismissal so separate and apart however this whole body of law relates to this particular circumstance of a dismissal from the university a university and there are a number there are no cases to the contrary that i'm familiar with determining these kinds of issues no one is precluded from raising the issues but you must do so within the framework of a four month statue of limitations with the a legit discriminatory acts are directly related to that determination and that's the kicker its case which is the first department relating great struggles here in new york's city whether it's cornell i know it's upstate but it pursuing it five years later or more than three years later which is the circumstance here so he sued in state court i believe he was quite familiar with the fact that the procedural frameworks would apply we removed it and for this relates to the claim of somehow the supremacy of the federal statute again i know of no case dawson versus n y u is a claim for brought which relates to the same matter here again affirmed last year by the first department so that in that case the plaintiff alleges that he was subjected to unlawful discrimination but the complaint is actually a challenge to the university's academic and it ministry to decision it's directly on point at case i understand that i have read that case as well and doesn't correct me if i'm if i'm wrong it doesn't examine the that you well it did title six of the civil rights act of one nine hundred sixty four so again i think the cases are clear and with respect to the two thousand and ten in two thousand and eleven well we did not get to it not only with time barred but i would argue of course that they didn't determination by an academic institution through an article seventy eight received it would preclude preclude all plate this from asserting their rights on the federal discrimination statutes such as title six title nine title three political federal statutes limiting them to basically an article seventy eight proceeding going in and as you're on it said going further in africa many american student who was clearly dismissed even though it's couched in the terms of an academic determination on the basis of his race what someone on the basis of their disability would be limited to an article seventy eight proceeding this is not the intent of the federal war plate the should be entitled to assert at least the claim that was brought within the three years regarding the failure to reinstate a related to his dismissal under the  statutes for for these reasons the district court decision should be reversed thank you for your novel or is this the first time your argument has been presented this court the answer is yes and ok and then reason why i say that is the the war was so obvious that i don't think it was ever been dismissed before in the federal courts i am not aware tallaght case basically they said they were as i think was correctly pointed out that if they say they applied for a war to that case in essence they said in order to have a due process claim you have to insurance benefits overlooked or ignored the only medical evaluation in the record and also failed to develop and interpret that record in accordance with rules that were designed to ensure that inferences about disability have a legitimate medical basis how would you respond to this that if if mr banja engaged in substantial gainful activity both before and after his date last ensured that  that means that under step one he was not disabled at the time regardless of what the medical reports or what the medical consultant w that's that's true in the abstract in other words if if a person is not disabled that's step one then there is no there is no resort to step two that's the end of the analysis but that's certainly not a determination that this court could make here because there are no findings for the court to rely upon and the critical piece here is that determination at step one is not limited to simply comparing a claimant's earnings to the earnings thresholds that are set out in the regulations that's the start of the step but it's by no means the end of it and here for example the the earnings that mr mr banja obtained from his work  at the the ticket delivery service there is ample evidence in the record that he could rely upon to establish that those wages were earned under special conditions and they were they would not then be counted against him at step one on page twenty eight of the commissioner's brief she concedes that this is a step two case it's not a step one case and it because of the doctrine because this court's review is narrow in the sense that it's either giv thumbs up or thumbs down on what the agency did there's no opportunity here for the court to resort to other steps that's the melville versus apple case this court does not resolve or does not address the steps in the first instance that's for the a l j to do the really the only question here is whether there is any evidence of a medically determinable impairment it's not so verity that's what the a l j determined so at page twenty five of the record the a l j says in her in the beginning of the step to discussion the l j says there is there are no medical findings there no medical science or laboratory findings to substantiate an impairment the entirety of her legal discussion is about the prerequisites to establishing an impairment there's nothing about severity on page twenty six she says there is no evidence of a medically determinable impairment she cites dr murat for that proposition and concludes that mr bonding is not disabled under the regulations because there is inadequate evidence of a medically determinable impairment that's the stated basis for the agenc determination and that basis is indefensible for precisely the reason that the court suggested in its order appointing counsel those school records and in particular the nine hundred eighty nine evaluations conducted by doctors safer and blumenthal are object of medical evidence they are in the record they were pretty determination that he was not disabled fired two thousand under the other provision  right i'm looking now at the term earlier determination that he wasn't disabled i guess was under title sixteen prior to two thousand so is that accurate that's not accurate you're out of the title is that what was the determination the determination is that he was under title sixteen he is disabled from may two thousand as of may two thousand and nine the date of his application so that that application that request was granted that ok was determined with respect to prior to two thousand but title two determination was denied on the ground that there was insufficient evidence of a medically determinable impairment the same ground that the a l j relied upon and so what but you have to show an impairment prior two thousand and four that you're going against what was determined before the two possibilities i guess i'm saying both at the very least the l j did not either didn't consider or didn't adequately address the only so in other words efforts were made to get the records and they failed that that's correct your honor in our view insufficient efforts were made and you're absolutely right that it is a dual responsibility of course the claimant has responsibility to present any evidence that he or she has to sit for consultation of examinations as mr bonny did and to attempt to assist in the obtaining of the records and of course mr barnett was represented by this court's precedents hold that the a l j is duty to develop the record does not wax and wane depending on whether or not the claimant is represented by counsel it is the l j's ultimate responsibility to develop the records that she needs in order to make a reasoned decision one with substantial evidence yes as are eighty three twenty yes my reading is that the council yes i think that's i think that's correct but it to the extent that your honor is implying that there's a waiver for failure to raise that argument i would strenuously disagree for much the same reason that i would disagree that it's  bonnie's fault that the medical records are not complete here the nature of the administrative proceeding is entirely different from standard federal court litigation it's an inquisitorial proceeding the l j is not experts no it does not it does not matter in in two ways first it doesn't change the ailed jay's obligation to apply eighty three twenty at the time in fact the new the new ruling eighteen zero one piece specifically says we expect federal courts to judge our decisions based on the rulings that were in place at the time we were to send it back yes or that for the two to follow rule eighty three twenty that would be amended current that's absolutely right your honor and that would not be a futile gesture because eighteen zero one piece still requires the l j to at least exercise her discretion over whether or not to consult with a medical advisor and here the commissioner has not even disputed our argument that the l j did not exercise her discretion in that respect there was no discussion of that rule no indication that the l j applied that rule at all and in that respect it's much like the johnson case where the court was presented with a situation in which it simply was not clear whether the a l j had applied at the treating physician rule and so the court said we're not going to speculate about what the commissioner might or what the  might have done had that rule been applied instead we're going to send it back because this claimant is entitle to have her claim decided by the a political legal principles and of course as you point out the a political legal principle will be eighteen zero one p and not eighty three twenty now but the new ruling is really not all that different yes the changes must to discretionary but the ail j still has to exercise discretion it still says that if a person is disabled the l j must select an onset date and it still says that  recognizes that the onset date may very well predate the earliest medical record and in order for an ale j to determine that onset date eighteen zero one piece says you should look at the nature of well i guess what i would what i would say in response that this is this is essentially the argument that the commissioner has has raised my my response would be that i think it's it would be entirely arbitrary to draw this distinction between in one circumstance if the state agency examiner says you are disabled now but you were not before then there is no resort to eighty three twenty at all even though you have an established present disability one that in this case the l j heartily indors whereas in another case if you are asking to overturn the prior decision no it's a separate it's a separate proceed here is what you're saying and therefore if it doesn't there could be a fresh investigation that might be in conflict with your  might determine that there was an onset date that predated two thousand that's right what i'm saying is the question arises when you have a claimant who has who is presently disabled and then the question then becomes ok is that present disability did that arise when that person was covered by disability insurance right so what i'm saying is it doesn't make any sense to draw distinction between a case where the a l j herself finds the claimant presently disabled or a case like this one where the state agency examiner finds the ael j presently disabled i'm sorry the claimant presently disabled the nail jay says yeah i agree with that but i don't see any any medical evidence of any object of medical evidence of an impairment i just think that if the court in particular looks at the one thousand nine hundred eighty nine evaluations in conjunction with the rest of the evidence i see no way to conclude that  had no impairment at all on or before the d l i understand that there are other questions about his claim i'm not suggesting that this is a case where the court should simply remain and for calculation of benefits but those are factual matters medical questions that need to be addressed in the first instance to the l j on remand thank you say that for the sake of argument that we were to agree with you that the evidence suggested that  rule on one of the alternative bases in terms of how can you i think the answer to that is that she reached the decision that there was no disabling severity not in a bubble but looking at those the only records that we have so those twenty five pages and even in those twenty five pages we have glimpses of what he was doing at the time it's not just your medical records he's being evaluated by a psychologist for the purpose of being in the program so they're they're evaluating him in terms of vocation and what he can do and what his interests are and it what you're just saying right no and she doesn't have to under the law she referred to the the report she can carefully consider it there's no reason for us to determine that she did not carefully consider it because it's in her opinion and records from the rikers island infirmary least that's that was the drift of what she was saying and that the elder was saying that the o j was intending to do did that happen i did not find an indication in the record that that did or did not happen i did not see one or a other but i know that in that same conversation and i want to stress that during the hearing he was represented by a very experienced social and christopher said the records will follow him from institutions so i will subpoena the last institution that he was at and he had already she had already subpoenaed the  chateau de institution and i think he made the promise that he would look into getting the records from the lincoln center which i think was the halfway house so again it is a dual responsibility and she did send out ten step sending those subpoenas discussing it with counsel so this conversation is happening in two thousand and ten and they're talking about records from one thousand nine hundred three to one nine hundred ninety nine and during that conversation in the transcript nobody really seems like it's it's realistic to get these records they're talking about how you know your name disappears under the website and you can't even find the retention policy in  these institutions that is after a period of time they don't have to be retained anymore just as a matter of ordinary ministration i don't know each policies or each institutions or tension policy but i have seen it as ten years which would make sense when you talk about impairment and impairment as i understand it is a psychological abnormality that he expresses that as expresses profound personality disturbance you have dr blumenthal who says and i quote psychological so highly pathologic it does not reflect normal but that is not sufficient to be is year you know medically terminal and pearman i think the i q evidence is really inconclusive it does reflect borderline intellectual functioning but the regulations even recognize that persons with a lower i q may hold a full time job and not be disabled if their adaptive functioning is sufficiently intact  impaired so that he again it's really intertwined in the fact of of the work and here we know that at the time of the i q test he was working on the weekends in the year prior he made  i think it was in the next year working as a longshoreman he made eleven thousand dollars or eleven thousand dollars and i think that any determination about when doesn't exist and she wants some point there was a disability right right but it was after the date last insurance and you know when the when the onset date was i'm sorry i didn't hear that i'm asking you what the onset date was of the disability that was found well right i know that there was not a finding based on the bipolar disorder but that he isn't mental impairments that qualify as a disability as a severe psychological difficulty  what were the records that he had regarding school i hadn't heard of that lest you subpoena that very famous principle of psychological and psychiatric practice i understand so the school records definitely indicate that he had related mental health problems and i school is no doubt about that i think he had issues in high school and at some of which are not i don't think they're so conclusive on any mental health diagnosis they mention anxiety depression and i think those are common to seventeen year olds and the testing is not fully explained we don't know if if they use methods of testing that are still employed to this day so i guess what we're all getting at in different ways is trying to find out why the l j did not consult with a medical expert to determine when the disability likely there just is not enough in the school records for her to say this has been going on for the past twelve months as it must and you know and i think expect when you consider that with the fact that he had been working on the weekends and ere are contradictory statements in their record and you know the standard is that we don't we the s s a cannot rely on the claimant statements about their own symptoms there needs to be objective measures medical made subpoenas were sent to the institutions they came back saying that we don't have we never had an inmate under this name we the name is not piling up so i think an effort was made i think it was a sufficient effort and i think these records likely don't exist and on just a few quick points in rebuttal every single argument that is made in contravention to mr bioneers argument here is an argument that is different from the argument that the a l j made from the rationale that the l g gave the court would have to contravene johnson melville burgess colleville that entire line of cases in which the court has maintained a very disciplined separation between this court role and the role of the l j for important separation of powers reasons because of different institutional competencies and so on so every time that the commissioner talks about earnings or every time the commissioner talks about severity or talks about the durational requirement to establish disability not one of those things is a basis that the l j gave for her determination i understand the temptation to look beyond and try to predict how might this shake out but it's really not this court's function to do that the court needs to be specific concerned with the impairment question and chief judge katzman you asked about de minimus impairments under discords dixon decision de minimus is the threshold between severe and non severe severe sounds like it's very serious but it's really not as the court has interpreted that regular regulation in order for it to be a valid implementation of the statute it needs to screen out only de minimus only de minimus claims are only de minimus impairments here i don't see any reasonable argument that he did not have serious psychological problems as judge joe brown has pointed out highly pathologic testing testing indicative of severe pathology profound personality disturbance borderline i q and on and on and on so with that respect i urge the court to to concentrate its focus solely on the l g s determination with respect to the subpoenas yes subpoenas were sent yes mr bowser was enlisted to assist with gathering the records but if it's not too much to ask the l j to send subpoenas i would think that it's not too much to ask the l j to demand an adequate response shadowgate said we don't even know who this guy is that's not it's perfectly reasonable as miss apicella pointed out for her to delegate some of her responsibility to mr bowes he says i'll do this but i still think that she needs to follow up with him before she writes a decision saying we don't have enough records and that's particularly true in this case given the disproportionate not disproportionate but the enormous weight that she placed on the records during the d l i period miss apicella pointed out in part of her argument the prison records would be helpful they most certainly would be and in fact during the first hearing the l j said i can't do anything without those records mr banja i need those records and yet she then wrote a decision denying his claim without doing all that much to follow up on her demands for those records so with respect to the bipolar disorder three eighty five of the record dr morag who is the psychological consultant indicates his medical records substantiate a claim of  bipolar disorder and so to understand if you're if you are trying to figure out what is the onset of this man's disability we know he has one we know he has bipolar disorder he reported he wasn't reporting his symptoms in a shop your thought certainly he so he doesn't he doesn't merely report his symptoms he's reporting a diagnosis that he received and that diagnosis would be in the record had the prison records been secured thank you very much thank you thank you both for your good arguments the court will reserve decision will hear the next mental status and second the court failed to advise appellant that the sentencing guidelines were advisory and imposing sentence the quote was required to review the factors articulated in thirty five fifty three and most significantly it had the power to following the review of those factors to very above the advisory guidelines range the circumstances the plea here we can i ask you to looking at the record it seemed it seems to me that the district court did not a problem well actually the problem here is the unique nature of the proceedings the proceedings commenced with either this was going to be substitution of counsel or setting a trial date but yet in the middle of the proceedings or rather quickly into a two pages into the plea proceedings to the surprise of all in the courtroom the defendant elected to accept the plea or for that was being made so it was an unusual circumstance to begin with second with respect  client's mental state this was an unusual situation because mr de silver came into the courtroom in a wheelchair he was non ambulatory he was taking both anti depressant and anti anxiety medication as well as significant medication for purposes of the pain he was experiencing from the injuries to his spine the court asked and this is  no your honor defense counsel no your honor the court goes into an extended discussion with the defendant about his  medication uses when you take this medication does it affect your ability to understand what's going on around here the defendant sometimes yes how about right now not right now the defendant says the court you're able type dosage will full panoply of medication mr de silva received he couldn't tell the quote what it was the court didn't know what it was his client with an r q that was diagnosed by dr drobe as being one line levels love level seventy six and being diagnosed with both anxiety disorder emotional disorder inability to be able to coherently speak the propre time these were the kind of things that to rely upon what the attorney not knowing what the medication was or the court being in a position to know what was taking place with a person who was an object of lee ill and prior existing anxiety and depression issues mandated that there be a much further inquiry particularly under the unique circumstances of here where the individual comes into the court room in a wheelchair about to seek new counsel and instead the sides in the middle of the proceedings that he wants to enter a guilty plea resulting in a german so counsel could speak to him further about whether that's in fact what he wishes to do with the court was on notice a tap went to really make a detailed inquiry and they actually didn't rely upon the defendant's one guest of this past year where the time oh i was i was i was substituting the c g a counsel after the defendant indicated that he no longer had confidence in his district would counsel and that's when i reviewed the record concerning the events that took place what is it that you want from us that is what the what the created if you could fashion it yourself that we should enter brass king the quart to enter in order in this case extensive treatment both psychologically and physically that would place him in a position to be able to make a complete and informed election as to what he would like to do at what point did he raise this  with the defendant in the m c c before he was designated and that that's why me indicated you no longer had confidence in counsel and he wanted new counsel to be able to handle the appeal of the matter which is in this particular instance significant because just the previous sentence that was above the guidelines correct yes yes that was a surprise to him yes in fact it's rather unique here because the guidelines here weren't really guidelines it was a set sentence of one hundred twenty months  as a result of that there is an unusual circumstance and typically if you look at the record in that the parties are all agreed that nobody would move to either a departure or an upward or downward areas in addition i understood that it the court said that it would determine the appropriate sentence and the sentence could be different from what the parties at thought it well might be absolutely  however it stated in the context of an evaluation of the guidelines not in a context of a discussion as to whether or not the court sue a sponte would be able to vary upward up to what the maximum potential s a given his mental state or physical condition was not reviewing the minutes of the proceeding to determine whether or not it was effectively done more significantly he had been advised by his counsel the guidelines are going to be one hundred twenty months everybody understands it's one hundred twenty months nobody's moving for an upward or downward variance here the probation department recommended a one hundred twenty months it was so the only documents he'd actually seen in between was the p s r of the case so we had no reason to think in any advisory that the quote was required to review the thirty five fifty three factors and that it had the ability and the power to vary up would that was never stated to him and but for the fact that those things were in a sentencing commission and submission as evidence of his remorse and maturity he did in fact that was submitted months after the plea was entered and that was as a result of the fact that counsel for it was very important for the court to be able to see the report of dr drobe the forensic psychiatrist but reflected the fact that the pallant had a seventy six i q and had significant psychological issues but a quote to consider which are factors that certainly should have been taken into account at the time the plea itself came into play my final argument being in substance and summary that in looking at plain every view there is a clear error here if you look closely at the requirements that this court has imposed on the laura for a very strict scrutiny of what takes place in district court and that's not done in a vacuum it's not just on the record it's who's coming into court what's taking place every single plea is unique in of itself every single one is to a spontaneous and that's the reason why and it was too generous rather and that's why in every single one of the proceedings the court is required to follow very every just about every district judge in the country has a checklist of things to raise in the rule in a change of  what is it that she didn't have on her checklist what should she have vetted what is it that you would want her to do if we send this case back there i would say in the approximate twenty years that i thirty years now that i've been on the c j pa probably taken about since post book or two hundred please a portion of the colloquy that she did not include that i think should be included in all times all the three things that i raised one that the guidelines on not mandatory to i must review the thirty five fifty three factors and they are one through six and where they fall into play and i have the power to vary  only based upon that those are the three things not and not none of those three items or matters were part of this record at any time completely devoid wallet while the government is certainly going to get up and say it's in the pl my understanding is his are that they were was there a statement in open court by counsel and or the defendant that he had read the plea agreement yes that he understood the plea agreement yes again though that gets to the question of the rule eleven proceedings themselves on the laurel requires a very strict scrutiny of the actual proceedings themselves and to look very closely as to whether or not there are any deficiencies in the pleading in the court room itself and those are the reasons why i asked at the court to consider in its decision in this case setting forth for further use on pleat provisions and at the time that will leaven proceedings take place that the specific questions that you would ask be included in that good morning america please the court my name is hagen scott and i'm assisting united states attorney in the southern district of new york i represent the government here and i also represent the government in the court below because the district court fully complied with rule  end because the defendants plea was knowing involuntary the judgment should be affirmed i'll start briefly on the medical issue i think largely for the reasons reflected the colloquy there was a full discussion of any medical issues and any issues with the medication itself should it have i don't think that's necessary or honor and in fact in the cases cited by my adversary for example in t n and resell oh what the court says is the district court needs to inquire as to the effects on the person who is it belittled to understand the inquiry is do you know what's going on not a catalogue of medications here i think in fact the inquiry was was one better although neither the district court nor the defense attorney knew specifically what medications were being taken on page sixty six the appendix you can see the defense attorney had actually spoken with the defendant treating physician and was able to give the district court assurances both as to the medications of fact and as to the fact that the defendant al suffering from depression and anxiety wasn't suffering from some more serious mental illness that would really cause perception problems so you know having a defense attorney recite medic medicine names doesn't add anything because neither courts nor lawyers or medical experts i think it's actually far better here for the for the attorneys that i spoke with his doctor i have no concerns about his ability to perceive based on consulting with somebody who is a medical professional so i think here the inquiry was entirely sufficient moving on briefly to the guidelines issue just  of walk through that i think that the district did say essentially all of the things that mr nelson suggested should've starting at page seventy three of the appendix the district court says by pleading guilty or exposing yourself to the possibility of receiving any combination of punishments up to the maximum that i'm about to describe six lines later the district court says the maximum term of imprisonment for count for the county was pleading guilty to is life do you understand that yes then moving on four pages to page seventy seven the district court reads rule eleven b one am almost verbatim makes it a little more colloquial to include a specific reference to saying in which the district court said she would determine a reasonable sentence for you based on the sentencing factors contained in a statute called eighteen united states code section thirty five fifty three a do you understand all that to which the defender replied yes ma'am don't see how that could be plainer than continuing on on that same page and i think you're on to refer to this the district court judge says both that nobody can predict your sentence and you may be surprised by it only i'm going to determine your sentence and further cautions the defendant similar what about your adversary's view in response to judge who promises questioning that with respect to the section three thirty five fifty three a factors that there needed to be more  discussion more detail as to each of those factors i don't believe that's a requirement it's not in the rule i'm not going to speak from experience to you but i certainly this is this is the checklist that judges use again and again i think it's permissible as judge nathan did to say look if you discuss this your attorney have you gone over these factors in detail with your attorney there certainly is room for an attorney to explain things and then to finish up consist with judge his inquiry at page seventy nine of  that the district court did indeed ask have you read the plea agreement have you reviewed it with your attorney do you understand it and that is important because the plea agreement also says that the officer is not promising any sentence and that the defendant offered use to writing day of pleas were not uncommon in this court firm many of them here however the this appearance was scheduled as a change of pleas hearing a week in advance the plea agreement as judge processed was reduced to writing and you can see the date on it is a day in advance so this is not a spontaneous decision to plead guilty it is true that on the day of apparently mr de silva had a second thought the government filed a quick letter to judge nathan and said do you want to postpone this but when mr civil showed up in court and had a chance to speak with his lawyer he said you know i want to go forward with this plea i scheduled last week that was reduced to writing yesterday so this is not a spontaneous or last minute decision not that i think it would matter if it was i'll rest in my research  in rather brief response to the government's position on this case was indeed sui generous because of the procedural history he had requested new counsel he then stayed with counsel he then requested new counsel again he didn't want to play he wanted his plea he didn't want his plea he wanted his plea he said the minister capacity wall the government points to the fact that questions were raised concerning medication and that the attorney in the case did that he spoke with the doctor concerning his mental ability the attorney very clearly spent state to page a sixty six that oh i do not know the specific dosages what types of medication or the panoply of all of the medications that he's taking and that's where that they have a medical here is can he understand what's going on at the time i thought nobody in that nobody in the room would be capable of saying oh my god it's sixty milligrams that that causes a person to be unable to  function you know away so what difference would it have made just knowing knowing either the you know the the the name of the medic medication or the or the dosage it's not the name of the dosage it's the combination of them when you taking and thought a minute ago says that if you are taking antidepressants medication anti anxiety medication to that end significant pain medication it's at the same time for you that everybody knew that back and they relied upon counsel statement that this is fine and the defendant who is of the who has changed his mind three times in the last four days i understand very clearly their lives and so our position that under the circumstances here was a reasonable probability that the defendant would have really thought closely about what he was doing but that wasn't stated rather what was stated and i'm going to look at the thirty three factors as well thank you thank you thank you both for your arguments the court will reserve the session will hear the next case transmitted from the debt collector to the to the point of bank on appeal the second reversed and said no the occurrence was when  the bank froze the account because at that time there were two things that were satisfied first that there was a complete cause of action and second that the plaintiff had notice of the problem or the actual violation of the if the c p a scans were frozen but all of that occurred on the thirteenth december thirteenth the what happened actually and was it was found that citibank placed a block on the account just with their bank what's going on here trying to find it was going to happening and the bank said we don't know you have to call this number tomorrow the next morning he called the bank that was the fourteenth the bank told and told him the details the next days i think it was the actual the actual imposition of all the sequester he actually was the next day the fourteenth was filed in the forty's all the documents say december fourteenth it was lifted on that i think was the fifteenth she was  ed and the actual service of the strain i was on us was even later it was mailed by city back on the fourteenth so any way that there was no way did not have an actual knowledge of the facts be versus policies which says that the occurrence does not occur until first the cause of action is completely injury and second there's actually notice of the f t c p a violation say it's plainly states that the c p a violation does not occur for the purposes of section sixteen ninety two k d until the prank freezes the debtors account and that says nothing about notice did not occur until citibank froze benjamin's account because it was only then that he had a complete cause of action and notice of the f t c p a violation and and so that leads to your argument well we have also have a very clear statement by the quarter to be understood say that knowing they would not have occurred prior to the actual the start of the period could have been prior to the actual freezing the account because that's the injury that's the final element of the cause of action but we don't have all the knowledge of the cause of action the cause of the cause or actually the thing we need to find out and then  think if we just don't want as this is fully read i think as maybe maybe you're appreciated we have also the judge addressed to the discovery rule which is kind of interesting applies to toll the start of the two tish's period until the plaintiff has the facts which form the basis of the cause of action that's the the general expressed rule on some situations  fighting about the injury is the that's the last thing and then you have the entire cause of action and those are some cases then and there also were some cases they were cited which have a different discovery rule for a special situation like under rico which is a kind of complicated froze the account and second if it was determined that the account was frozen on december thirteenth two thousand and eleven whether or not the sky every rule applied and gave life to this action with respect to the first point of re it is now crystal clear after having subpoenaed the operation manager for citibank and deposed her and she stated unequivocally and this is in the record that the account was frozen on december thirteenth two thousand and eleven in addition we have a declaration from the appellant which he states that he knew on december thirteenth two thousand and eleven that is account had been frozen how did he know his wife told him he had a heart palpitations he tried to access the account he couldn't do so he contacted his counsel two or three times that very day and he knew that there was a legal issue here that he had to attend but yet he didn't do so and in the claim wasn't filed until after the statue of limitations had run so there is no dispute here really the record is crystal clear that the freeze occurred on december thirteenth two thousand and eleven the case was commenced not until december fourteenth two thousand and twelve as putting his argument in the best light i think is that he had to have all the details that he would want to i'm aware anywhere he knew that he was injured on the thirteenth and that's a that's that starts the clock the facts that he had the facts upon which could be based on even though he didn't know the details of who the who the defendant might be that's right that's right and the record is also clear that this is not the first time that this had happened i mean it happened before in that and the appellant concedes that his counsel concedes that so they knew on the thirteenth that or on the social security numbers etc yeah and apparently the brother was using mr benson in this case the men's room in this case his his social security number and that's how there was there was a false client's attention he directed citibank to remove the restraint and it was done you know that and the contact was made with my client i believe on the fourteenth and my client then immediately contacted citibank and citibank remove the restraint so this was this was you know clearing a mistake but the time to move on to the f t c p a for a claim based on that mistake was it was time barred because they waited too long in terms of the discovery rule  there really is no no issue regarding the discovery rule doesn't the court doesn't need to decide it as judge michael said below because the knowledge of the freeze and the freeze itself occurred on the same day there's no daylight between the two so the discovery will doesn't come into play because the plaintiffs discovered it on the same day that it was frozen so your view is that  end that case if it's if it's decided differently then then this court decided in baen's i'm into it it could potentially undo the whole thing because there are i believe it's a third circuit case with third circuit said that the statue limitation starts to run when at the last point in time when the debt collector put under under took to do the act that allegedly violated statute so yes i mean  if there's a potential that this whole thing will on wind if the supreme court agrees with the third circuit unless the court has any questions i'll rest on my false document which is that's that's what's required i'm doing this is trying to point out the differences between your your position and your ever served well to characterize the elements of the cause of action as details is a little bit starts a period of diligence and then you have to take action when you learn having been diligent and that was the next day or statute of limitations for purposes it seems to me that the harm once you're aware of the harm and you have you it's legitimate i hope i mean it's not just the c p a violation every time the fact that i have a once in the past doesn't mean that you my client would have known for sure and in fact i think the court assumed that m that the court has them in mind one is procedural and the other is substantive slash practical the procedural one is in full view at pages sixty six and sixty two of the record at page sixty six then district judge sullivan and rules of here and they make very clear when one wants to make a motion what steps one has to follow and what one is not allowed to do no party shall submit a reply letter affidavits in exhibits are not permitted in connection with promotion letters without prior written request and permission i was nonparty seeking to intervene and i put in a promotion letter i followed up with the court by calling a few times i was told no other papers to put in by me there were papers put in by there were letters put in by the other parties the parties were already in the case i was told do not put in any more letters if the judge wants oral arguments a judge will let you know and i think it was about a month after i first made contact with the court that the judge issued this decision and i'm page sixty two there is language there that was particularly striking to me it says indeed  such knowledge and yet offers no explanation first delay in filing this motion to intervene nearly two years after the original complaint was filed and that struck me because i was given no opportunity to respond to anything that was put in in those other question you can affirm that as a substantive matter the court found my motion untimely and therefore i'm not allowed to intervene is that your question yes absolutely and i'd like to get to the point here if you could help help me understand this  r the record reflects it seems to me that s a s had constructive notice of griffin two when it was filed in july of two thousand and seventeen  griffin one after all had a lot of media coverage which would establish constructive notice of that action and you don't  respectfully challenge that your honor first of all there's nothing in the record that says we had notice griffin to being filed and in fact were we allowed to proffer we would say we did not actually know that griffin two was filed the news or the news articles that are referenced in opposing counsel's letter to district judge then district o'sullivan were about the first case so i do not think that the fact that there had been a first case that we knew we concede we knew it was filed and we knew it had been voluntarily dismissed doesn't put us on notice that a second case was filed sometime later i don't think you were aware of that second suit since at least  late two thousand and seventeen by the time you know we we we would proffer and my my we put this in a reply brief but again there was no opportunity to proffer to this we did not learn about it until late two thousand and seventeen that at even been a second suit and at that point one i was not involved yet but when one looks at the docket from that time period the docket showed that the case had gone to mediation or was being sent to mediation that it did not appear there was anything active going on from the docket i didn't personally do not involve the twenty eighteen and that's not the issue here but just from my own perspective once we did get involved we saw what we're able to see from the docket we did not have access to the expert reports we didn't know what was in them or what had been argued in them so from a timeliness standpoint we do believe we we believe we were not untimely as such in addition we think that the timeliness has to be looked at in the context not of it was mentioned that you know we knew we had a claim well certainly we knew we had the percentage ownership of the song from the beginning so that is something we of course concede but in terms of knowing that we had a case into which to intervene i think is the key question they would argue if the two if the two years knowing about our claim is the standard they would have argued that if we tried to intervene on day one of the second case it also would have been  timely i don't think that's the case would it be a different set of facts it would be a different set of facts absolutely and if i could i ask you to help me understand how the denial of intervention  pieces of the infringed work however there are differences in the approach that the other plaintiffs of taken in their case that are on full display in fact in a different context last week  opposing counsel said the only thing these two cases have in common is the alleged infringement there's a very different strategy being taken by plaintiffs counsel in the first case and we do believe even if it would not be collateral stop and we don't believe it would be but determinations in the first case are going to affect us as co owners of the work as just a practical matter especially in the same court in front of the same judge  only the first case more difficult to litigate a work complicated to litigate the question is and this court said it in the row it's about did my delay my delay to intervene in the second case did my delay prejudiced them and back when i tried to intervene they made the point that they were closing out discovery they were moving for summer and they wanted to move for summary judgment and if i were allowed to intervene it would throw the summary judgment off the  my intervention motion was denied they moved for summary judgment i believe it was still district judge selden at the time judge stanton then ruled on it and he denied summary judgment of not infringement across the board saying that the jury needs to address this the jury needs to understand that to work the jury needs to decide substantial similarity there is nothing ing that my new facts that i would bring into the case and i'll get to a very limited request as to what i would be allowed to do but that my additional evidence that i bring to the first case is not going to make their summary judgment posture better than just the court has already found there are questions of fact i need to decide internal questions of fact that need to be decided by the jury therefore were i to intervene it would not have impacted that summary judgment motion in a way that would have let them prevail on summary judgment they're now past that summary judgment motion i can't imagine to making another one going back to our very first letter our only letter to the judge sullivan we had said we wanted to intervene but we wanted to do it as quickly as possible and with very limited additional discovery specifically we were going to take the fact discovery that had already been conducted we're going to take the parties as we found them  and we were going to we wanted to put in our own expert reports as to the music issues and an expert report on damages because plaintiffs in that case had strategically decided not to put in an expert report on damages that was our ask  d we said that we could get our expert reports out very quickly we put specific timelines in the letter judge belvin use discretion and denied but again looking back at the the prejudice that they would have  felt it would not have affected their some rejection motion it didn't because they've already made it as far as the prejudice to me precious to me and to my client is there's going to be this other case following a strategy that we do not agree with proceeding ahead of us that is absolutely going to have ramifications in the mind of the very judge who's sitting on both cases at a minimum about the merits of the case and we want to the full opportunities to do that we do think that the court should  not at this point send it back for a full determination in the richardson greenfields case that i cited from the circuit a little bit older than the others in that case they said that the district judge had usurped the power by effectively not allowing an effective motion to be made and at that point they said to send it back and have the motion be made would be wholly artificial at that point we're in the same posture here it's the bill can't be unrung it's too late but if we were we still to this day even though we have a second case proceeding our preference is to be in the first case to intervene in the first case with the additional discovery we asked for and to move forward to a trial explain exactly what you want deeming our motion made and denying it vacated with instruction that we be allowed to intervene in the case and to allow us to take the limited additional discovery that we asked for which is these cases ready for trial apparently right this case is ready for trial but is not scheduled for trial until september we asked for we're going to put in our expert reports on the music which are ready our expert reports on discovery we need to damages excuse me we need to receive the damages discovery to to run that report but we are committed to doing this quickly as possible your friend through really asking to reopen the fact an expert discovery in the case we are not asking to reopen fact we are asking to reopen expert key issue in this on this appeal is whether the district court abused its discretion in denying intervention on a case that was first filed in two thousand and sixteen the appellant's do not take issue with the fact that they've known about the first case since two thousand and sixteen they just seem to want to selectively choose what publicly filed on the docket they knew about and which ones they didn't know about but that is why courts in th we're talking about the second one was your notice for sure but the first case did put them on constructive and actual notice as they admit that a claim had been brought they then admit that they are no longer in court sure but then they admit that they knew about a second case being released by the end of two thousand and seventeen i would propose that they were on constructive notice that the second claim had been brought as well given that they can't learn about a claim know who the plaintiffs are and then play ostrich and just you know say well how am i supposed to know there's ample opportunity for them to know by a simple google search or a pacer search but even even if we were to just put them on constructive notice or even take them at their word which we're not required to do that they found out about griffin two in late two thousand and seventeen by that point the case management plan had already been filed it was a publicly filed document that case management plan provided for an unusually early stipulated exchange of expert musicologist rip courts and i want to take a moment to explain how important that is in this case this isn't like you know damages expert ports that are just you know usually at the end of a case under the federal rules where you're arguing about the calculation of damages these are expert musicologist reports they go to arguably the key issue in this copyright infringement case it is there it is the plaintiff's expert identifying analyzing the two songs that issue identifying what that expert believes or musical similarities between the two works and dealing with the issues about whether those alleged similarities are original to the plaintiff song that is a key evidentiary issue that is a key expert report that frames the case and frames fact discovery in the case and because of that are the plaintiffs in the griffin two  case agreed to an early exchange in fact it was really the first thing that we did in this case to frame the issues so under the publicly filed case management plan the planes have served their expert report in december two thousand and seventeen my client served their ex for reports timely in january two thousand and eighteen so by january to january two thousand and thirteen based on a case that they admit they had knowledge about expert the experts had framed the issues expert reports were closed because  parties did agreed that no rebuttal expert reports would be provided by the plaintiffs and the parties also agreed that all fact discovery would conclude a few months later by march two thousand and eighteen and then any other expert reports whether it's as of october two thousand and seventeen and in fact it's it's in the record before this court as well the counsel on this question of the plaintiffs counsel well they're happy to have them appellant seeks to seek entirely new categories of damages on touring on merchandise things that the griffin plaintiffs did not seek and it's not simply a matter of just engaging in discovery there would be motions undoubtedly  directed towards both the damages that they seek because we do not believe that a plaintive is entitle to see touring revenue or merchandising revenue as it's way too attenuated there is there is the prejudice that could come our way should the court allow that to proceed and to allow the jury to hear factual issues that were never supposed to be before the court and it's that we would have to be related gating essentially potentially the entire case because we don't know what the experts going to say because despite the fact that his client has told us since october since august two thousand and sixteen that he has an expert report ready to go for two years before he sought to intervene we have yet to see it so we're left to guess as to what actually would have to be litigated but there's no question that we would have to serve a new expert report in order to respond to their expert report we would have to take their experts opposition we would have to re evaluate what potential additional defenses we have what additional prior art we would need to research based on what hypothetical similarities they might identify there's a lot the other prejudice that could come to us which this anyway that's correct we will have to but just so the record is clear here the other case that they brought not only have they named additional defendants they seek to add six additional defendants in that case four of which are based in the u k four of which they have not they have yet to serve and they you know obviously are pursuing all the different damages discovery etc so the notion that these cases are you know the same expand the that case in terms of parties or other possible interven it's not that i'm aware there are co owners of the copyright errors of marvin gaye who have known about this case from the get go for since for now three years and they've never sought to intervene they don't seem to be particularly interested in it is the converting a pre motion request for a conference into a motion where the moving party didn't effectively have an opportunity to respond but we have cited cases in our in our brief dealing with the the letter  motion due process issue standing here right now i can't say whether any of them dealt with the specific issue about a reply but let me just address that in a different way there was a month between when they filed their initial letter and the judge decided deem the motion made and decided if they truly believed that we had misrepresented a fact or there were some fact that we had incorrectly stated that needed to be brought to the court's attention they had ample opportunity to seek leave to do so they also have their appeal briefs here they have yet to proffer anything to this court that would have any bearing on the decision on intervention much less show that judge sullivan abused his discretion there is i thought that they say that there are additional arguments that they would have made well they have yet to articulate them and i don't think anything would change the simple fact that where you have a case first filed in august two thousand and sixteen you have the second case filed and in july two thousand and seventeen you have them admitting that they knew about the case shortly thereafter you have a publicly filed case management plan in october and the simple fact is that discovery had closed and experts had been exchange and dealt with at the time that they sought to intervene in and of itself there's absolutely nothing that i can think of that could possibly change the fact that judge sullivan did not abuse his discretion given the facts in this case i would respond to conversations or on sworn statements and not evidence i think i have three responses to that one is that it's not hearsay because we're not offering it for the truth of what what was said were simply offering it to show that these conversations took place and these are conversations simply to show that mr pullman the fact that he did contact defendant's counsel and did discuss the case we're not talking about the merits of his claim we're not talking about whether or not he was truthful in saying that he had an expert port of the time or that he was thinking of intervening it's simply his general awareness that the fact that these conversations took place is not hearsay second of all you can ignore all of these conversations if you want in fact judge just sullivan really did he didn't rely upon these conversations in denying intervention he relied upon publicly available information publicly filed cases that what was on the public documents certainly mention those on sophisticated party that according to defendants was aware of this dispute and its interest in this litigation at least as early as two thousand and sixteen to me to say according to defendants could simply mean that we pointed out that it was available in the publicly available docket and that we pointed to press that is constructive knowledge and again courts of the circuit have repeatedly held that it's construct that it's it's objective criteria not what they say they knew because they could always deny it you look at what was publicly available and should they be held to the fact that based on the publicly available docket and the press that widely reported on it that they knew that that's really the only place that i see a possible  those statements and again i don't think that he necessarily considered it i don't i think you can ignore them and absolutely reach the same result and i also think it's quite telling that they to this day still don't deny that those conversations occurred seven you'll see the docket from the second griffin case and you will see that on october ninth two thousand and seventeen a documentary thirty two the case management scheduling order was entered  people trying to settle cases all the time mediation is i mean there's still alive mediation may fail why why does that matter i agree with you and again and again to be clear i'm not saying that i looked at the docket at the time and b when you want to be part of me it's a very good question the answer is my client given the opportunity would proper he didn't know about it he didn't know there had been new case that was filed and we certainly think that and that intervention had to be denied and that was untimely but again as i point out in my brief even the things that counsel says happened related to the first case the press that they cite is from the first case to child and then cites it himself but it's press about the first case there is nothing in the record saying that the second case was widely publicized if you'd want to toohey i suppose he could have cited public articles about the second case but he didn't he said the article about the first case that mr saccharin had put in his proceeding we weren't in the loop on anything but we started talking to the plaintiff's counsel in that case as to what they were doing and where they were going with it and my client again mostly before he even contacted me started  to represent him and then intervene in the case because he felt that a matter of record as to when you had discussions as to when we had the discussion of the plaintiff and not in this record i certainly could dig it up if the court was interested but i don't know when those conversations took place standing here right away ready just shortly before over a period of time well i can tell you and again i'm going from memory here i did not meet my client probably until late march early april of two thousand and eighteen and my letter was in may eleventh and that was after several calls that i made to see if i can get consent to would not see any activity one way or the other but any activity to speak of to understand where things were going a forty four i wanted to point out was my letter which i'm sure you've seen in my letter in which on the first page of my letter i'm sorry may tenth not me eleventh i speak exactly about what we were looking for there and i say all deadlines regarding fact discovery to remain unchanged and all deadlines regarding expert discovery to remain unchanged with the following exception and i described the exception many of the things that this farkas mentioned now about how we are expanding the scope are in the other case which i absolutely have to do because i can't count  honour's granting the relief i'm seeking here if i don't get the relief i'm seeking here i need to make the most of the other case that i can if you do grant me the relief that i'm seeking here that is our preference our preference is to have been in the first case taking it as it was we would rather participate and limit ourselves in the manner that we specifically asked for then bring the full blown case without any limitations that's our preference remains our  preference so the references that ms farkas made about adding defendants that's true we are trying to add defendants in the second case that's another strategy that we differ from plaintiff's counsel in the griffin case on we have the freedom to do it in our second case we don't have the freedom to do it in the first gate where we have nothing to do in the first case but we have under our request we would not be able to at parties we would not be able to exact discovery so that's what's happening over there you conclude you client here on the same sort of posture i haven't found one either what i did find is that the law really case which i cite from this court in two thousand and fifteen and the ridges in green shields case from two thousand nine hundred seven both of which i cite in both those cases  it was found that the application of the individual rules and the pre motion process and deeming things it wasn't that those rules are wrong but the application of them in one case it was called a hobson's choice and the othe case it was called the usurp of power and i would refer the court back to those two cases and then also in the case in the cat's case both of those cases found that in the intervention context specifically because of the short trips that have been given by the court below the second circuit when it got to those cases had insufficient facts to make any kind of determination i think the same thing applies here as well thank you thank you on and off your arguments the court will reserve decision the final