disposition granted by the district court as the complaint was timely filed in this matter because the sixth month time limit to file suit did not run when it's undisputed that the notice of denial of claim was never delivered in this case argument that the six month time limit starts running even when the notice of denial of the claim of the f t c was admittedly never delivered over none of these cases are on point with the case before this court let me go back to what you started with did you did you not say that we should reverse because the notice was not received because the notice of denial was not delivered and the ok so you say delivered as i don't remember the you when you said received so we've either got received or delivered the statute doesn't say received it doesn't say delivered as mail i appreciate that your honor but the interesting thing here is that we're going to have to look at the e what you say is the purpose against the fact that the federal tort claims act itself is a waiver of sovereign immunity and the cases are clear that when we're interpretating a sovereign in this case the federal sovereign waiving its sovereign immunity we interpret that strictly they mean what they say your honor i'm not an interpreter i'm not putting my spin on what the purpose of the f t c a i think there is two cases that i've cited my brief and starr case is one of them that in the van foss cases the other that the purpose of the f t c is not to set up these traps for the very end i guess my position with the court would be this if you look at each one of the cases cited by the ellison in every one of those cases they did say that the time limits started from the time that the notice was mailed but in every one of those cases the notice got there they had some stu along the way in a couple of those cases in verity they sent it to an attorney for the attorneys regional office not unlike in this case the attorney had moved be the certified letter came back still back to how it seems odd that we that you're complaining about the conduct of the government when the statute says mailed they did mail it and they mailed it to the address that they were given by the only registered attorney in the case on behalf of the claim i go back to what do we look at in the prior cases where these situations have come up where the letter was not actually delivered in the government knew it and in this case they knew it i find it amazing that the government continues to start sentences in their brief or paragraphs in their briefs with the scenario of if the plaintiff really didn't get the notice there's no doubt that the notice was not delivered there's no doubt we didn't get it and there's no doubt we're not clairvoyant so there's no way that we could know that the six month time limit to file suit had started running because the notice was never delivered and if the government didn't know that maybe we'd be talking about a different situation but the government did know that they had met that they got that certified letter back and then through the file it didn't do anything further to place anybody on notice of previous phone call had been made to my office what they could certainly do then book where do we look to you to do something further after they've complied at least with the literal and in that case it was sent to the attorneys office it came back they re sent it to another office for the attorney and then they sent it to the plaintiff themselves in so in that case they did everything they could to make sure that the notice was actually communicate one more time on sorry where do i find something that imposes a duty to do that i'm not questioning whether the government has or has not done more than the statute requires in other cases eyes and that they have but where do i where do we look to find a duty to do something that they failed to do in this case i think that if you are asking me if you are you if you're asking me where in the statute is that duty i will tell you that that statute that statute does not set forth that duty i think you have to read the statute in the so the act together and say what do we do we take from the cases that have interpreted this act in the end what's the purpose of it and look at the situation and say this is this what the government required to do and then you go to the not in the statute is there a regulation that imposes that duty but it's not a regulation that i've been able to find to impose that do not in the statute it's not in the regulation is there a case that says they have a duty to do that not a case where the facts say that they didn't do but rather a case that says there's a duty to do it pretty simple yes the agree that certified letter sent to the council was returned undelivered and they've indicated that it did not count to valid notice or trigger the six month time limitation to file suit and the lightfoot case i think also supports that reading of the or the like could case stated that the mail box rule does not apply to the f t c and that's effectively what the government wants you to this court to adopt so say as long as we put it in the mail once and it comes back even though we know the notice was never delivered and we know nobody could possibly know that the six month time limit to file suit had been triggered that's sufficient but hamish you or your client and his lawyer or whoever it was at that time knew that if it did happen in it went on for another i would say that if i'm looking at the time frame correctly if i remember when the notice your name was on and probably a year and a half you're actually right and but the case law is very clear on this point that without the notice of denial then you can wait indefinitely to file suit and it's appropriate under the f t c a but we did not wait indefinitely to file suit the suit was actually filed within three years of the claim with the best case on that and you were just wiped oh and vanity if it if it's not received the i've cited two cases in my brief your honor that says that you can wait to file suit actually three that mcallister case the that you can wait you could wait indefinitely to file suit but we didn't do that we filed within three months of when we would have had to have filed had we ever gotten the notice we filed within three years of the claim and i found within one year of the phone call to my office indicated to me that they were still considering the claim in the purpose of the f t c as to settle these matters without getting into court and so when a phone calls made to my office indicating that they're still interested in talking about this matter are still looking into this matter i'm going to let that process run out that was the same call where they asked you to send in they ask you to send something in right that's true they want to send in another notice of claim which i did not do you didn't know because it was past two years at that point so i'm not going to open the door to an argument that i sent it a notice of claim that's untimely because it would not have been within the two year period and they clearly had my information that was not the import of the phone call reason you didn't respond to what they asked me to do they wanted me to send another notice of claiming they already had a notice of claim you did send the version i did not send the first one out i work with that firm all the time that in this case was turned over to me to handle the no fault claim and then assume the third party action against the government so there they had my information my mindset was you could you have to have an information i'm assuming they call the person firm and got it because there's no other way they could know i was involved in the case you call my office and so with his  district of puerto rico two thousand five decision i haven't found any other decision on this point one way or another to be honest with you your honor not in support nor ignore it nor criticizing it i think this is a relatively unique situation i don't think it comes up very often and i think that in this particular case where there is no dispute where the denial letter was never received by anyone why should the claimant be treated any differently than the government is treated in reverse if there isn't any evidence that the letter is read that the claim is received by the government then the mail box rule doesn't apply for the government and it should go the same in reverse but i'll take that as my opportunity because my time is running out turn into the  second part of this is quite honestly even if the court finds that the six months time limit ran because they simply put in the mail and it came back on delivered even though we know everybody knows that there's no way we could have known that that notice was deliberate the government tolling it's the same thing that happened with the douglas case it was also six circuit case that position was adopted by the third circuit in the are to get case in the second circuit seventh circuit in the santos case these cases represent the position of the  government's only response is to urge this court to rely upon the rogers case which was overruled and clark in fact even the ninth circuit has now aligned with the circuits opinion in larder is a recently over route marley versus us which was a case cited by the of tolling set forth by the supreme court or when versus department of veteran affairs so we look at that situation as my time's running i'm going to jump to one of the what are the standards then for equitable  has a case that shows that equitable tolling takes place when the government sends it to an address that is not used anymore like our situation here or it's a base case on it i don't i have not been able to find another case that i think goes to this issue and i don't believe the government has either i think this is a unique situation because i really believe that in the majority of the cases the government does what they did  a pastoral a case they get the notice delivered they either send it to another address for the attorney or they send it to the plaintiff themselves in all of those things could have been done here and i understand they don't tempt us and  did a change of address as you can imagine a law firm is not going to simply pick up a movie have a lot of attorneys in their firm they don't just pick up and move without doing a change of address and the government's position is that it came back with no ability to to  address and no ability to send it to them in my seems more curious to me in terms of the second bill tolling that not only didn't they notify the government they changed their address but then arguably at least more importantly when they were no longer handling the case and it was transferred to somebody else apparently you that neither they nor you ever documented that with the government i don't understand that i oftentimes work with that firm your honor and i will do that in where i will step in and work with them on the case and may be the primary attorney handling it and if in information material will still go to them in my point but wait but wait a minute so were you then did you replace them as not only the primary attorney but the only attorney after they passed the case off to you or were they still the primary attorney and you were helping in the helping them out i would say it's the other way around which i was the primary attorney and they were still involved in the case it was their case they signed up and i was primarily and we get along with that firm that's that's the situation and if the notice hey i was that environment would have him be was the guy was their case its case was their case they were going to have us assist them and between the two of you they would notify the government that you had replaced them because because you had right we'll work on those cases together but you're saying i work under their feet remit i deborah change that scenario i'm sorry ok i'm getting confused i thought your claim is that something they must have told the government because the woman called you they had to have told the government that i was primarily handling the case because there's no other way she could call my office but why should the government have a duty to send something to use if the other firm is still the one that's primarily responsible for the case whether you're going to do them with the lion share of the work or not that is just not the way the law works i'm not saying that you're on i'm saying that if the government had sent the notice to the gerson firm i would have been notified immediately if they sent it to my client i would have notified immediately and we would have taken the steps to file their complaint within the six month period of time and my complaint is not that they didn't send it to me my complaint is it didn't send it to anybody ok so you just i mean we know that it came back on to live are great absolutely the government admits that ok so they did send it thing they didn't send it to anybody's prosperous they sent it you're calling that it what they didn't do something when it came back under liver i'm sorry for mixing words it wasn't delivered to anyone and that's the point i was really trying to make i did not attempt to mislead discord if the new mode brief you will read that i said it was not delivered ok was it communicated to anyone because they were only sent one letter and the answer the only other address they had was your client that is right that's correct and although we're certainly both firms or in the bar journal the person firms in the bar journal the attorneys in the bar journal they they had the phone number they certainly could have called them but they certainly had mr jackson's address in as in the bertie case or the past relegates they could have sent it right to the client and at least communicated notice that that's the only case that i've been able to find and i think the government's been able to find that that is on point with this scenario because in the other cases like this they gave you know you'll have your rebuttal to the letter  your honors and or leave and see on behalf of united states in this matter so if if something comes back on delivered in part of the claim form includes the injured address why not send it i mean what how do you just sit on it knowing that it wasn't delivered well there's nothing in the record indicating that it was necessarily sad we've  been out of it's unable to locate the paralegal who handled the claim and while there's nothing in the record saying she did something you know there's nothing saying she didn't but to answer your question as to why we didn't send it to the  claims are adjudicated within the office of general counsel or whatever the appropriate term is for the counsel's office for immigration and customs enforcement the individual adjudicating or handling the claim is a paralegal specialist the ethical obligations of the attorneys for whom she worked apply to her as well as a general matter the immigrate the immigration customs enforcement does not communicate their legal office with a represent that would be that sending the notice of denial or sending a copy to the claimant would violate the code of ethics i'm not saying it would i'm saying as a practical matter in this situation that's why they jumped out of concern for communicating with a representative part yes and when if you look at the notice of claim submitted is that is there a practice when something comes back until the immigration and customs enforcement or any government agency so and i guess the short answer to both of those scenarios is i don't know and there's nothing in the record on that point nothing in the underlying affidavits or evidence submitted before the district court touched on what the general practice might be in a hypothetical situation when a letter is returned undeliverable argues that there aren't any other cases because he believes that the government routinely does something after it comes back on deliverable to make sure that it then gets delivered to the claimant or somebody else your position is that's on the record correct nor is there any nor my aware of any regulations with with ice or any other agency perscribe being what the agencies to do in berti the case from the one nine hundred eighty s when the a did sent to the claimant i would note that impaired tede the first thing they did was send to the the lawyer of records new address how did they know the lawyer of record had a new address because when it was returned to them the new address when it came to just say well here's the address here's a certified letter in this situation with the firms involved that's probably true but you have to understand you know lawyers close move change address they may be large firms or small firms this is a paralegal in washington d c with no familiarity with these firms who is handling hundreds if potentially thousands of claims and it gets back to on the issue really i think the issue that judgment keep touched on is is the is the most important want to really on the issue of equitable tolling not as to whether the government as a matter of statutory interpretation complied with the statute but whose duty is it whose burden is it to know that the government agency knows the proper address for the attorney who signed on the administrative claim form that that attorney in that firm represented the plaintiff in that in this case the appellant in this case is it that attorney's burden to inform the agency of an office move is that that attorney or new attorneys burden to inform the agency of a new attorney of record handling the case or is it that agency's burden to familiarize itself with the bar journal of the various fifty states or to inquire as to changes of address or email address or telephone numbers and i would submit that it is on incumbent on the claimant to provide that updated information to the agency so what if they had had a change of address that didn't work on this letter that it didn't get forwarded yeah well th that is what happened here and again i guess  when it got returned when it was returned to the agency you know in some instances affording us addresses provided in some instances it's not  are you asking whether the burden should change in that circumstance or you had i'm saying so let's say you have a situation where the law form gave a change of address form to the post office and ninety for seven ninety seven percent of the mail was forwarded and this was part of the three percent that wasn't forward and i guess that goes to the issue of whether they were reasonable in remaining ignorant of the filing requirement if it is i would concede that it is one factor in amongst the others that i've already mentioned on the issue of duty or burden it is one factor for the court to determine whether the claimant pelletier was reasonable or remaining ignorant of the requirements whether they were reasonable in relying on that forwarding order verses  affirmatively notifying the agency of an address change i also think though that your question touches on whether the claimant appellant was diligent in pursuit of her rights in this case because after some after the claim was submitted they waited they could have filed suit within six months they chose not to twenty months passed and they still chose not to when was that phone call that phone call was in approximately february of two thousand and eleven and which was well over the six months ye over correct almost a year and a half in claimants still waited more not only six months but months seven months in september of two thousand and eleven the time period expired they waited until january of two thousand twelve and so when i know your question was about what happens when the postal service doesn't forward even if a forwarding order is in place it will soon one wise for purposes of this case i think that is one factor for the court to consider amongst the others on those two issues also that there's also a practical reality that some of these a disease don't get around to it for well more than six months and if you're you know if you don't feel that you need to push the matter maybe your damages are still developing whatever there's no need to push the matter you suppose you have a right to wait until six months afterwards in this case when was it sent in march of two thousand and eleven ok so that's almost two years after just i mean yeah i guess not unreasonable to have waited well the question on that issue is whether they were diligent not the reasonableness of their if they had filed within the six months they would have been diligent well if and if they would have filed them in late two thousand and nine or at any point in two thousand and eleven or for nine months in two thousand and two or two thousand and ten or for nine months in two thousand and eleven that's true and what's the standard of review on the question of equitable tolling abuse of discretion so what's your best case what's your best argument that this is not an abuse of discretion by the judge finding that equitable tolling doesn't apply in this case assuming that equitable tolling is available in the in requirement and whether there was a diligent pursuit of rights you know as the district court noted on the first point purport the claimants purported ignorance was not reasonable since she fails to establish that such ignorance resulted from the errors of anyone other than her own counsel and what's the case that attributes the errors of counsel in this context or well i would point to the key in the bagley case which both parties scientist saying that the failure to meet a deadline unavoidably rose from circumstances beyond her control here what were the circumstances that led to the failure to file her counsel's well whether it's prior current counsel mr shafer who didn't inform the agency of the was that beyond her control well i would prescribe the beyond control to the to not just the claimant herself but to counsel and when you take on a matter like that you in many ways stand in this shoes of of your client your client it a civil case aren't there are literally hundreds if not thousands of cases in the civil context that attribute errors of counsel to the client you pick the client actually you pick the journey the attorney screws up you bear the consequences yes that's just what the losses in the civil arena may not be fair about what it says that's that's my point yes that it's not so much whether the claim it did all these things but or to the common council the council i mean where the car looking in the context of equitable tolling where basically the lawyer messes up i can't i can't cite to a case i guess i would make two points one is in applying the factors of for a cool tolling courts do look at the distinction between represented counsel and proceed counsel and i think implicit in that is a recognition that that i forgot my second point but i think that's the the principle point is that it's is that that's as judge nikki pointed out that's the the fact of the matter when your representative an agent o claim of the other point i was going to make the remedy then becomes rightly or wrongly potentially in one of malpractise against the council and that is another way that claimants in case of errors by counsel are protected even if they lack the actual knowledge  circuit split i understand the night circuit recently reversed itself on that issue but it's important to note that's an argument an alternative for me i would ask that the court if it chooses to reach that issue  in reverse i would suggest to do so in the alternative if equable tolling is applicable that the district court did not abuse its discretion in declining to apply it here where a panel will get to reverse other panels you want us to say that john r renders globe or in a pluggable because a supreme court has ruled in the interim correct that there's been intervening case law from the supreme court that's correct and and jurisdictional argument will only only if only if it's a jurisdictional requirement it's not well on the issue of whether applicable tolling is available that's true but the principle issue of whether there's been a waiver of sovereign immunity as to whether the government has complied with the federal tort claims act in the date of mailing that is still jurisdictional the twelve and twelve b one motion because there's no waiver of sovereign immunity to suit beyond the statue of limitations well either or it's not and you're asking us to say that is no longer with law but yes the jurisdictional arguments relevant to whether good law or not is is only one of the factors relevant to whether the court should revisit clar in light of the char sand case before that the issue of sovereign immunity is there's a jurisdictional is a twelve b one motion i would submit that the alternative be a twelve the six not a rule fifty six summary judgment issue would be a failure to state a claim if you you know i don't agree that it's the sovereign immunity issue in this had actual constructive notice of the denial of the family requirement there certainly is no indication in the record whatsoever that we had any any actual notice it i think it's admitted by the government that we could have had it and we certainly don't have constructive notice of it the phone call from the agency in declaring the claim was still being considered does not give you any can do cation that the that they were ready to issue a denial that was not the point of the phone call fact why would you even ask me to submit a second claim although i didn't quite understand it if you intended to just go ahead and summarily dismiss the claim and deny or deny the claim i guess is the better way to put it and i'll take it what why wouldn't it have been appropriate to ask you to submit another claim to show that you were the attorney of record if if in fact that's what they understood you to be saying i wouldn't i mean confused all along i thought first of all i thought you were saying you took over the case you're the attorney of record today you're saying no no you're not the attorney of record the other the first attorney was still the attorney of record you were just handling the case for them i was primarily handling the case and i had been since i took over the no fault case but my point  is that really is not i don't think the issue here the issue here is that it didn't make any difference the gersten from didn't get the notice they didn't send it to them and they didn't do anything to follow up with them they did send it to them well they didn't i'm sorry that they didn't firm of record did not notify us that they had moved is that a legitimate factor in connection with the abuse of discretion standard the district court employed i i don't believe so because postal service were to suppose that was required that they they put in they put in a change of address with the u s postal service and for whatever reason you know i apologize i didn't say this correctly for whatever reason the u s postal service didn't put that change of court record was that that firm was continuing to get forwarded mail at the time frame that this took place and i really can't explain why the postal service did not put that indication on the let's go back to the question the question is in tolling and whether the district judge abused his discretion in this case is the question of whether the law firm had a duty to do something more than rely upon the post office a sent that out to the government one would have to honestly with integrity say probably not but that's not the only scenario where this is this is taking place  think most firms do they send they put in a change of address and the mail gets forwarded that's what ends up happening i think that's what they did in this particular case with the affidavit indicates and it's reasonable for a firm of that size to do that  they did they notify the state bar yes absolutely and in fact i would submit to your honor said that the conversation that took place that had to have taken place  and did in fact according to have to take place with the agency took place after they moved and the agency had a phone number for that firm and had a phone or from my firm it's not a call asking the agency to go to be familiar with the state bar fifty states they but all the time it was was a phone call and not just a second to to make sense of this when they sent in the notice of claim they would have had a phone number right after they moved i assume they kept the same one who didn't leave they did so if then for whatever reason this paralegal calls that firm they're now at at a new address at that point if somebody says i don't think about this call at no it at no point in that does that put anybody on notice as to what your address is or whether you're the new attorney of record or they're still the attorney of record doesn't i can only give you my experience with that situation because i had a lot of files with their firm in my experience is that they give my information out in total not just the phone number but my name my address my firm name it's given out in total to those individuals didn't change who was the attorney of record with ice i agree with that and you're contending that you are not the attorney of communicate the notice of denial so interactive will tolling how could then we'd be placed on notice that that night that that six month period of dying began to run and i don't think that that's fair and it does believe that it complies with the purposes of the  i don't think that there's any case law that says that your honor but i think that you look have to look at it is a fact by fact situation of the four points set out in the interest case and i think that if you look at those four points under these circumstances this is not to dismiss this case  ny this woman or daily court in a nine disputed absolute liability in the government accident where she did not have notice and no one could possibly have known that that note at that time it had begun to run does not support the purpose of the the one last question do you have cases the talk about when you're applying equitable tolling what you do about attorney or i have not seen a case that really focuses on that issue as brother