we have a similar parallel here for the regular ed students who have been abused by a teacher without the student have to go through exhaustion the answer is of course not we also know that if a student with a disability is not receiving part of hope for services or not receiving special education services that student doesn't have to grow foods often and if we look to the guidelines set for us in lance once again it's even a student who may be a five hundred and four student who was injured by a teacher does not now would you have your honor and i would start that off by saying i imagine the school district is going to raise the fact that you barely referred to fry when you have objected to their motion  very very purposefully did not include and language related to idea we've been met with we would include any related any language related to special ed we did not we include any language with the process hearings or not ask the court for traditional notice to that there is nothing in their particular motion to dismiss that alludes to any previous action so why should i have to answer to that in my response piece of facts that were that were addressed by counsel for the school district without the restraint he took the fact that the school if you're talking about special education and he took those was true and that's just something he cannot do any other at the outset you were you were helpful to parse out and acknowledge that the burkes facts would be subject to exhaustion you had multiple planes here one of them it seems most assault related is the th amendment one do you have a case that comes to mind that says that exhaustion has to be looked at claimed by claimant rather than in the whole boni and are you are you even arguing that actually maybe clarify the record the only thing we have g versus brother could take your order i may have to get back to you and i have my rebuttal period to give the exact site but the milk in case law does show that which is typical that there are some clients that do need to get exhausted and hartman's you have a companion case that doesn't relate at all to this one and what stage of that companion appeal are you under that's important whether things will never get a chance to talk about here not just the facts and not just the law but the lawyering so that question kind of intimate lawyer so early on we filed the case with the texas education agency for a due process hearing and one of the reasons we did that is because in texas the mediation component also sometimes have injury components we have been able to so many that i don't mind saying because it's something that i'm very proud of that over the many years i've done this and don't know how to do it is a long ms walker thank you my name is meredith walker and i'm here on behalf of apple a northwest independent school district the district court in the underlying matter correctly dismissed t p s claims for lack of subject matter jurisdiction due to tb style year to exhaust his administrative remedy the district court also correctly denied tbs motion for reconsideration the court should affirm the district court's decision in full what t v essentially wants this court to find is that anytime a student is physically hurt at school at the hands of the school district employee that the student never has to exhaust his administrative remedies under the idea the school district agrees and we acknowledge in our brief several times that there are some instances where exhaustion is not required for instance in the recently decided dover says dollars i esteem matter but here t d cannot escape his prior representations that the alleged physical assault related directly to t b s receipt of special education under the i d e a in making his argument in the reply brief i just wanted to note for the court that he raised several new arguments some that he raised on on his opening argument today and specifically with respect to the williamson case i'm not going to address those arguments because we believe that they've been waived but i will note about williamson that we don't believe that it is actually on point and it is not a proper gauge for what the court should be looking at here because when you look at williamson what the court's going to find is that the district court issued approximately a five page order ruling on a motion to dismiss under twelve b six and a motion for summary judgment so what this court said was it wasn't clear what action the district court was and ruling on and it wasn't clear what facts he was relying on was he taking the facts in the complaint as true for purposes of the twelve the six or was he taking the facts in the m s j and entering them to the benefit of the plaintiffs in that matter that's not the case that we have here we're looking at the sax that has been tweeted by plaintiffs by tb and the underlying deeper i'm sorry in the underlying complaint and when you look at those it becomes clear that exhaustion is required so turning to the st issue before the court the district court correctly and dismissed the complaint because t v st waved all arguments in support of subject matter jurisdiction because he didn't timely brief anything once the school district filed its motion to dismiss t responded with three arguments and i called them arguments but they were more along the lines of statements he said that his complaint did not identify t d as a student receiving special education and related services he said any inferences in the st amendment complaint and  his benefit and then he said subject matter jurisdiction is not right for adjudication but as this court no it's our nose subject matter jurisdiction is always right for adjudication because the court has to have subject matter jurisdiction before it can hear a case so because he didn't respond the district court looked at the school district arguments granted our motion to dismiss and t v then filed a motion for reconsideration but in the motion for reconsideration he raised all arguments that should have been previously briefed and this court has held that emotion a rule fifty nine emotion cannot be used to raise arguments which could and should have been made before the judgment issued setting the waiver issue aside the district court correctly determined it like subject matter jurisdiction based on the relevant case law when the court looks at freiburg as napoleon fry absolutely gave lower courts some guidance in determining the of plaintiff complaint using the q hypothetical questions and the court knows what those are could the plaintiffs have brought the same claim against a public facility and could an adult at the school have pressed the same grievance but the court the supreme court went on to note that the history of proceedings was relevant to this as well and it specifically said did plaintiff previously invoke i d s formal procedures to handle the dispute there by invoking i d s remedies before switching mid stream this court and dover says gol is specifically recognize that the supreme court did not limit its analysis of this question to answering or to the subject matter jurisdiction question to answering those to a less circuit less start hypotheticals so we believe that the nd test is more pertinent and more telling here because prior to invoking the district court's jurisdiction in this matter they filed an i process hearing now mr killen was about to go down the road of saying they wanted to do this they wanted to mediate but the fact of the matter is is that claim is still pending before the federal district court in the northern district of texas it's in front of judge o'connor and that or that case right now i'm sorry we consented to the magistrate judge and that case is pending on a motion for judgment on the administrative record so you can't escape the fact that they're appealing their i d a matter on one hand and then saying this case has nothing to do with the student's receipt of a tape and judge jones noted earlier when you do a comparison of the federal complaint urban federal pleadings and t process pleadings you see that what has happened is all references to the id and the student's receipt of a fate has been completely scrubbed when you look at record on appeal citation two hundred and sixteen when you look at q sixteen it says that the failure to provide him a safe and non hostile educational environment resulted in him not receiving academic and nonacademic benefits which is the michael s factor the  and then when you look at five hundred and twenty three dollars you see that the failure to provide him a safe and non hostile environment now only violates the r a you cannot get around in escape these representations now mr kill and the student want to rely on footnote nine and as we addressed in our brief we agree there are instances when exhaustion is not required but joe is that example but this case is not because he ties disputant in the complaint ties his educational services and needs back to the alleged assault and not suffice that seeing and looking at the due process hearing it also is seeing when this court looked at the a vs houston it created a new standard in determining when a cause of action gives rise to intentional discrimination and it said that an inference or professional bad faith or gross misjudgment are necessary while the complaint doesn't use those exact words it refers to a i'm sorry did somebody it refers to a gross deviation from professional standards of care but then we also want to look at dover says dallas i s c because one of the things that opposing counsel at mr sir kill noted was that a student without a disability could absolutely bring the same claim against a school district without having to exhaust any administrative remedy but that simply is not the case because in order to allege a disability claim against a school district either under five o four or  da axiomatic that you have to st have a disability so we have to take students without disabilities out of this and if this student is alleging that they were denied a fate that somehow their educational services were your question earlier when you look at section elder rules of construction it specifically says that and before bringing claims under the constitution section five hundred and four the eighty a you have to  st exhaust if those claims seek relief that's also available under the id so i think that goes to your question earlier now with respect to mr kills argument that the school district never mentioned the prior case i want to record a little bit of background in that at the time that we filed our original motion to dismiss the district did not know opposing counsel was filing an appeal of the underlying due process hearing there was a service snafu and the district never became aware of setting that issue aside mr sir kills himself filed the underlying due process hearing record with the court in this matter and the fact that the underlying due process appeal or hearing the case was filed in this matter went further credence that this case is about a denial  mr killen plaintiff the student were given ample opportunity to him and this was their st amended complaint they didn't raise the arguments and when they should have raised them it's not an abuse of discretion for the district court to not take those back at yes  is correct in this case they pled and they pleaded that they believed that the and conduct of the employees violated his right to say that's the decision they made and not the past they went down and so now that is where they are left again joe versus dallas i s p and even forever says napoleon are the perfect example of how and invoking the i d f procedures doesn't necessarily mean that it the  and he didn't leave a man absolutely judge jones you're absolutely correct because it's the five o four in the a b a claims that invoke and the exhaustion and to judge chickens and question earlier and i'm sure that there could be claims brought under nine hundred and eighty three for a violation of a host of and rights that don't necessarily implicate a student and free appropriate public education for instance a and claim under the th amendment for bodily integrity if a teacher takes some proceedings that says basis to dismiss you know when you look at judge mcbride's he actually relied on the cues that you hypotheticals and fry is what he relied upon we at being completely up front when you look at our briefing we didn't brief the history of proceedings because by the time i realized what was going on our briefing was done or substantially done and that is that you see my difficulty though it's worth saying that he's for good good critical approach entire basis for judgment bride's ruling was fraught so it's very hard for me to say that a new legal argument is raised it's just a matter of reading the whole decision i mean this is the point that alito and thomas made and so i'm go you to assume he didn't before but it if he didn't forfeit it isn't this alleged action by miss adams almost verbatim with the th this is outside of exhaustion outside exhaustion i guess it depends on whether the court considers it a restraint and because there's facts in there that states that the student was a looking trying to get away and she was trying to do and get  that opposing counsel cited in his brief and that's p g which we do believe is on point and there are the court found that exhaustion was required when the plaintiff's complaints pertain to the inappropriate and illegal use of physical restraints and it specifically said that the mechanical restraint claim concerns an action by a teacher in a school setting in an attempt to gain control over a student and then when you look at the texas administrative code it's nineteen tack eighty nine one thousand and fifty three it defines a restraint as the use of physical force to significantly restrict a student's free movement is a restraint and then when you look that at the underlying due process petition it counts as birds  outside of the meetings and sometimes when the court house to determine subject matter jurisdiction particularly when you're looking at the previous proceedings those proceedings become relevant is there a film of this and was i of whether or not this is a constraint or of assault correct that's correct judge jones we moved to dismiss the nine hundred and eighty three claims and judge mcbride dismissed everything under twelve a one so he never reached our twelve a six argument and regarding the specific ability any other questions i guess i didn't have the just the legal and i think you may have already answered it but the is there any circuit law d as to whether exhaustion has to be looked at claimed by claim versus the whole i haven't i'm not aware of any and i ok no further question thank you very much thank you down put them in a cool down room or do anything to put them under control and any one of those could be alleged as a quote not on the exhaustion claimed by  your client never took advantage of the idea of remedy until the time of the lapse more than one year had a lapse but the two years for filing in the th for filing other kinds of alleged for cla individual teacher and i when we phrase this a little bit different if miss atomised was in the middle of operating the child individualized education and if she was in the middle of operating the child's behavior into place intervention plan during restraint and during the restraint itself it child was injured and you're absolutely right calm have to go through exhausted because it was an educational intervention but i don't think anybody can say dragging the