now that the burden then it must file a motion must file answer to the complaint and plead an affirmative defense a motion dismiss pursuant to section rules twelve b six is not appropriate in this case because twelve b six talks about the federal court's jurisdiction when you look at pain in conjunction with the albion no another ruling from the circuit i'll be you know says there's a procedure that needs to be followed when one argues exhaust in an exhaustion case pursuant to section  proposition that courts may dismiss for a failure to exhaust under club b six in the rare event that a failure to exhaust is clear on the face of the complaint well your honor for that proposition it does pain does them for that proposition be you know does not be you know stands for the proposition that there is a particular procedure that needs to be filed and bad proceed or requires that the litigation reform act where the issue of exhaustion is factually complex frequently and there are exceptions to exhaustion under the prison litigation reform act and shouldn't we consider that context in which i'll be you know was decided judge bolton when the circuit ruled on now be you know it make clear that it was looking at pain also it spoke directly about pain and realize that the ruling said it made under the p l r a were also being used by the district court to look at you decide whether or not to look at and exhaustion issues it said what should happen is follow your as an affirmative defense number one and number two there are no disputed issues the fact the affirmative defense may resolved in a motion but your honor here are the only facts in this case because it is on a motion to dismiss the only as a matter of law why does it matter that no pleading has been found out by the defendant but your honor that not what was done what was done in this particular case judge the honorable district court looked at our allegations in the complaint the allegations in the complaint was that there was a policy in practice that discriminated against children with disabilities that has nothing to do with the exhaustion issue in a way it does your hon because you can't just look at the procedural aspects of a case you have to look at what underlies those procedural aspects that's not absolutely correct because a complaint can't be dismissed procedurally without ever looking at the merits on the sta limitations are many other personal procedural mechanisms may be used to dismiss a complaint without ever going into the merits and that some meritorious complaints are dismissed on procedural bases so i'm having difficulty understanding why the district court in erred by granting the motion to dismiss if the facts are undisputed well your honor what happened was that the defendants argued in near brief that this was an issue involving this was not an issue this was an issue that could be resolved because it involved communications between home and school and back could have been worked out planters argued in your complaint that this was not just about communication because there had been ongoing communication through out that school year between now and the school plaintiffs argument was that there was a problem because of the person of the rule discriminatory rule that said the age could not talk to the teacher could not talk to the parents at all i guess that is about because you're saying a can't have to be at summary judgment and ordered a motion to dismiss if why would the result be different and what might discovery produce that would be relevant to the issue of exhaustion why isn't it all already here well your honor because in a summary judgment motion you get additional facts you have the opportunity to bring in additional and from what what would you bring in that would make it different here your honor we could bring in affidavits and testimony from parents who have been in the same situation we could bring in the testimony from the aide who was the aide in question in this particular situation how does that how would that affect the exhaustion whether you have to exhaust or not what you're on of the court and i understand my parents don't want to have to exhaust but i'm just having i'm having a hard time seeing how any of that would make a difference and rolling on exhaustion yes you're on well in exhaustion has to be clear on its face but i'll be you know says you don't have to plead exhaustion that there is no requirement to plead exhaustion so we did not plead exhaustion of section  now because it's not required under me have been you know standard but didn't you plead facts that made it clear to the trial judge that you didn't exhaust yes your honor we know not exactly we  there was a a dispute about the admission of a settlement agreement in this case that goes to the issue of exhaustion in that settlement agreements mission of the settlement agreement really talked about the idea and there is a difference between exhaustion pursuant to an idea a claim and exhaustion when you're saying we're not pleading  know your honor this case is not about fate beating up a child having a child physically abused in a classroom setting has nothing to do with the provision of educational service s isn't that your state law claim no one no your honor it is an eighty eight dollars claim because the discrimination in this case is on its face the rule that they have in place that forbid any discussion with the aide and the parents and all but when it isn't that the very type of issue that and id claim would resolve that is the appropriate way that communication should be made about the child by the school to the parents no your honor just like in frog if we take a look at fry the issue in fry was whether or not this the wonder the dog could be an accommodation for the child in fried the court took a really great leap when it said look we're looking at this not as an idea a issue what we're looking at this is in a d n a accommodation it would have been a simple matter if the if the school napoleon school district had turned around and put into their eye to the child's i e p and said you can have a service and don't what do you do ip stack you talk about five core claims and i do and i mean they're all talked about as to what what faith is for a particular student right isn't that what they do and i well in and i had p t a meeting that the discussion doesn't go to to what faith what it goes only to what faith is it doesn't go to what discrimination is and the policy conduct had occurred at a public facility that was not a school two couldn't adult at the school have pressed essentially the same grievance and three the history of the proceedings in this case why don't all three clues indicate th she was looking at the requests were reasonable comment lesion that has nothing to do with the ada here with the i d s support and services there was a request for reasonable commendation but the school denied just denying that request gave the court a choice between saying ok this is about the a d f a or this is a support and service justice kagan decided it was a big decision but no this is about a denial is a discriminate discriminatory act because it's refusal to provide to succumb let's say we are not let's say we don't agree with you and said that exhaustion can be dealt with on an a is a settlement exhaustion i'm sorry it's a settlement exhaustion what are your honor because here there was a settlement right there there was a settlement your honor that settlement settled all  court there would be no question that you would have to do another jump through another hoop here you have a little girl who only because of her disability was this rule in place this rule place for anybody else it was only for the children in the school who are children with disabilities the parent had another child who attended that school there was never any such rule or restriction about people at the school opposing counsel one i think paul g this court's opinion within the last several months as by the process of precedent for causes the question of does a settlement with an always two process proceeding constitute exhaustion in terms judgment what does that mean if your orders and you know i think part of the concerns well let me to ask that question let me start in part with the original question to opposing counsel which is what it painted albino stand for and mean before friday pain said you could proceed with an onion numerated motion rule twelve motion to seek dismissal even under the the change standard for exhaustion of administrative remedies a reached in the end and dog pain occasion on the face of the complaint you'll still be able to utilize it as a troll b sixty two dollars to dismiss the complaint now the reference to the i d e a with an albino there's there's a fair argument that that was dicked i know this court and other opinions exhaust is that issue then you can proceed with that with that mechanism and fry makes it even more clear in our view to the extent fry says you we look at the grab them on of the complaint we look at what has the plaintiff alleged and does the allegations in relief sought derive from or seek relief that in essence is something that could be addressed through faith in the idea that it's subject to dismissal for i was a motion to dismiss case just like this one well i think clearly  i guess here i am clearly sort of at school districts don't really want federal courts telling them without how they should handle a student without any knowledge about what they're not having the expertise of having to percolate through the system so i get where you're coming from but i guess hypothetically let's say if a teacher of the student with a fake were to assault the student could the student state a federal c against the teacher without exhausting the administrative remedies referenced in the i d e a or would the student be limited to filing a civil action in state court i'm trying to think of my pathetically  appalling unjust callahan i think it depends on the a the totality of the complaint in the context in which the potentially legit assault occurred and i want to answer your hypothetical but also bring it back to what's actually the issue in our complaint in a in a minute  to be clear what the exhaustion requirement of the i d e a does it do is for close ultimately fifty dollars for an eighty eight dollars claims that relate to those idea claims from eventually making their way to court and in fact judge footnote ten and fry really does well to address some concerns that judge alito had and kind of address this issue that it's not about of limited remedies it's just some of the idea a remedies that are specifically reserved for the five hundred and forty eight or state law claims for such as assault or negligence etc the in terms of the federal claims that can be limited by the i d e a exhaustion requirement because the states or claims are in fact they'd be told during that interview process proceedings occur in which those allegations were at issue and so the impact of requiring the parties to st exhaust is actually in the long run not only better as a matter of educational expertise as to how own absolutely al and be an example of that so students on the playground and unrelated to the students disability are unrelated to implementation of the students i to a to a tree that's the type of physical injury tortious or even constitutional in nature that is not a matter that would be in one thousand nine hundred and three not in need a right rehabilitation act claim right agree and that would not require exhaustion that there is a degree of tort unrelated to a student's well i could see i could still see the pain on the fact that exhaustion mites might still be required in that instance too but there is there are there can be a form of of tort or harm plaid in a complaint that doesn't necessarily require i d e a administrative exhaustion that is the complaint we have here clearly does relate to the student's i p services supports implementation of those services and supports implementation of training that the parent believes should have been implemented better by the teacher and aides the relief sought in the due process complaint which by the way judicial notice was requested of that complaint along with the settlement there was no objections by appellant when those report before the court on the motions to dismiss at the district court federal court the original st amended and then the nd amended complaint and they all really do tie back to issues that can be remedied through the id am before age which was established by both it's decisions that the district court had before and cited and which are cited in the brief before this court today i would also note that with the the issue of what's at issue what's claim is the concept of segregation of the student from non disabled peers segregation and in the world of special education means lack of inclusion i e least restrictive environment it's a central tenet  an issue litigated regularly in the o h due process context as well as before this court opinion is the one that kind of drives that analysis that's unquestionably an issue that could be resolved through before age then there's the issue of communication adequacy of the communication program of policy between the student special education aides and the parents again another issue regularly and repeatedly addressed in a due process complaint before  as the remedies that fall after that and both claims there's out of pocket expenses if you look to the due process complaint same remedy was before oh age those attorneys fees and any other relief that's available we don't even have a situation here in which the actual core of the actual relevant facts as allege in the complaint and the claims themselves directly correspond to claims allegations and remedies that would need to be exhausted under frye under pain and  your honors if i could director to attention to footnote nine and fry footnote nine and fry is is is consistent with judge noonan the late church noonan's ruling in the dissent in pain when it when the court said that there is no educational purpose for assaulting a child the i d e a is about educational purposes it's about the the impact of providing faith to a child that has nothing to do with the physical assault of a child this court has rob in which to look to and robin with our two cases that predate pain and under both one says yes you're entitled to to not exist you don't have to exhaust but all these exhaustion issues relate to i d e a exhaustion there is a difference here that i cannot express clearly enough to the court it seems the issue here is if you have a child who is being discriminated against discrimination you do not necessarily need to go through the hoops that are required under i d e a thank you counsel thank you thank you both counts the case just argued is submitted for decision of the court we going to take a brief recess we will return t