again a congressional intent at a concert or something is inherently contradict the public policy which we don't have here going to you can you just very briefly sort of housekeeping does the government concede that this statutes of repose to have a fraudulent concealment exception built into them is that is that typical you see that a lot of statutes of limitation there's always a fraudulent concealment exception but i wasn't aware if there is typically a fraudulent concealment exception to a statute  that's correct and but and then why do you say that congress did not intend to send it jurisdictional time borrow six years didn't do that they did not do that you know honor if they did not do that at all that came from nowhere helpful on december thirty two thousand and fourteen the secretary of labor suit against robert preston alleging violations of the employment growth retirement income security act which we all call a recess alleging various transactions dating back to two thousand and four but did the act at the risk of speaking for the others i think we've got fifteen granting the dismissal and again another or denying the motion for reconsideration let me just ask you this maybe so we can kind of jump into the issues do you deny that at least in these tolling agreements you purported to waive all of your timely time based defenses and i mean it's pretty the language is pretty broad not a certain any manner the defense of statute of limitations the doctrine of waiver latches a agreements willingly voluntarily knowingly no sir you were duped no i said i do not deny that i was so good so and then when you signed the tolling agreements did you know then without divulging any client confidences of course but did you know then that you would later argue that those agreements were on and forcible i was not representing the client until recently so i do not know what his bar to the commencement of this action unless you can show a statutory exception which in this case is fraud or concealment but i guess what i'm asking is that if that's true now  true then and if you entered into the agreement knowing that the agreement could couldn't even be expressly wave you were waving something that you couldn't wave what was the other side what was the department getting out of that agreement i had no idea what they were getting they were getting anything if they waited more than six years because the law does not allow them to commence an action after six years unless there's been fraud or failure to you know concealment  circuit the secretary subra pressed them for breach of contract you know so the contract is invalid if you look at the mid there's a public interest here of encouraging the secretary to act diligently and to do  job and not to keep putting this off and the kind the contract is invalid there's a i think the case is called mid state horticulture which is three twenty us three fifty six where the supreme charged with the knowledge that that's an invalid attempt to extend the time it has to commence an action what do we do with that bowling thing case you know which one when i'm  i've got no no we at we have that was ok that it was california pension cal perhaps but that doesn't quite get you where you need to go right because it's one thing to say that that a statute or oppose can't be told through some sort this you know sort of equitable doctrine in the era but it's different to say that it can't even be expressly waived what do you say to your opponent's argument that even constitutional rights are our wave of immunity under the eleventh determined that any suit for violation of a receipt of should be commits no later than six years and that cannot be waived or extended by agreement it's really a charge to the government to diligently pursue these claims and to protect the retirement system and in their brief they say they've got hundreds of these cases where they have not diligently acted they have not pursued these claims and they routinely asked for these extensions and they cannot do that because of statutes infected with the public and it just seems it just seems like an odd situation to be and to me that for instance the eleventh amendment you know that the supreme court has been very very very clear that the eleventh amendment is a is a right fundamental to state sovereignty and so on and so forth and yet with the appropriate you know sort of protections in place can be waked the fifth amendment is fundamental to the protection of criminal defendants and yet with the appropriate protections in place it can be waived but why is that your way to go this would be contrary to the intention cited in the breeze that there is a absolute statute of repose except for case of fraud or concealment now if it is said except for fraud concealment or an express you look at what judge punch said in his opinion that there have been many cases which have created the presumption that that's what congress intended an absolute bar on the statute of a pose i think this case of repose or a statute of limitations we look to see whether or not the limitation on provision is jurisdictional if that's what you say that's right yes or so we would have to pretty much just ignore our precedent in pew no sir because i've been so many cases saying that it is an absolute bar and congress has left the bar in place its judgment said you know presume you've flipped the presumption that it can't be waived to it can be waived and that's what judge john said in his ruling and that that should be affirmed that is not inconsistent w why shouldn't we assume your opponent cites a number of cases from state supreme courts not binding on us but state supreme courts i think from north carolina colorado tennessee texas mississippi court statute to repose is a relatively new there haven't been that many state statutes where that's been addressed and the only case i'm familiar in this circuit has the same notes on their service in fifth circuit to the mississippi case called brewster where the court held yes there is a bar and it cannot me way you express agreement if we find that we can apply legislative history is almost nonexistent you have to look at what you have have been a couple of statements made maybe in the application for the unlock a tory appeal but other than that the records  available to prove that one way or the other but again it has been make clear by the supreme court and it just was for to it is for mr president if this case just came out that equitable tolling is not and only exceptions granted by congress or fraud ok or concealment and that has not been alleged so it's an absolute bar you cannot use equity to say or he ought to be have stopped because there was an agreement or anything of that nature and it's a bar so that means people should be reversed i don't know that you have to go that far i don't think it's a i've said i don't think it's still flat makes it clear that it doesn't matter whether it's a statute of limitations or statute of repose but we look to determine whether or not the statute is jurisdictional that seems to be but the holding in th the congress if it was interpreted one way to continue that why had that showed the congressional intent no as it was a presumption in the presumption flips in this case so few  been overruled distinguished it's been overruled partially but by the equitable the ruling that you cannot use any kind of  because the label statute of limitations versus it is a statute of riposte it's been conceded by the government and i was face of it it's a statute m p l was a statute of limitations yes or and walberg or made it clear about sure you've read that case the walberg case the other supreme court case which we think is controlling and the mid south case are all controlling in this situation but it's some but well burger again is really and maybe i'm hung up the retirement private retirement system of this country they need to do their job and act with diligence and not relieve themselves of that obligation to go into the people involved and to make you sign a waiver and do nothing right well i don't want to be unfair to anybody i'm just telling you what i see are ok i understand thank you very much thank  available for the i don't think they don't say it's likely not it will they say that's one central distinction between the two categories see i'm trying to find out what do i do i like to put things in a label part statute or reposed this is what we do statute of limitations this is what we do you're telling us and you may be right it doesn't make any difference don't even worry about the label because it doesn't matter we're looking at jurisdictional apply even if we appl tolling would not be available but your point fundamentally is that this is you don't guys you don't need to worry about equitable tolling this isn't an equitable tolling case and then in the nature of things there's something different from that between equitable tolling which sort of happens through