good morning your honour's and may it please the court david shapiro for terry who dean i'd like to reserve two minutes for a bottle and i propose to begin with the district court's basis for granting the motion to dismiss with prejudice which was substantial burden and availability of damages under referee and then turn to the basis for summary judgment in the same order which was exhaustion of administrative remedies as to substantial burden here you're welcome to go that route but if page eighteen of their brief that there's a genuine issue of fact as to whether the final stage grievances were mailed there's a presumption in the law that of mailing resulting in a receipt and if there's a genuine issue as to mailing there's a genuine issue of receipt but more to the point it doesn't matter because the defendant's own policy doesn't say that mr heene needed to do anything beyond mailing the final stage grievance in fact it said that he could treat the absence of a response in the also makes a new exhaustion argument that is not properly before the court because it was not raised by the district court that argument relates specifically to the twelve days of fuel if the court  e well the did if i think that the court would still need to reach the other the other issues but i mean because the district court also granted the motion to dismiss on alternative grounds well i find does meant as a finding of fact that he didn't mail it there's no exhaustion cases over i believe that's solely on the issue of exhaustion then the district court has already said that he didn't state a claim so that would result in the same dismissal simply on on other grounds that just report wouldn't necessarily even need to hold a hearing on exhaustion that the judge has is referring to if only if this court only reach the exhaustion issue the district court could simply say look i already ruled that there wasn't a substantial burden and i already ruled that damages are unavailable under there's already the district court opinion that says i'm dismissing with prejudice not only on the grounds of exhaustion but on the grounds of substantial burden so the district court in fact wouldn't need to hear he hold any sort of hearing if without prejudice that's that's that's so true why wouldn't we just if we if we determine that there's a genuine factual dispute over exhaustion why wouldn't we just the opinions that reach the merits you respective of an exhaustion issue and here there are good reasons to reach the merits because the holding is is frankly rather outrageous on the substantial burden question if a christian prisoner i had pled that exactly what mr dean pled that essential items for the practice of his faith whether it was a communion chalice or whether it was a crucifix for mass were confiscated and he was denied access to them no court would find that there wasn't a substantial burden as for the twelve days of you will he pleads and you are one forty eight that they are considered a central tenet of his faith these are considered high holy days  christmas for members of the christian faith and hanukkah for the jewish faith imagine if a prisoner of a different faiths said that passover or ramadan were shrunk down to one day no court would find the absence of a substantial burden and as for qualified immunity the law the contours of the law are clearly established there are any number of cases that have said that that confiscation of items and limitations on central practices impose substantial burdens and every court to reach the question has said that damages are available under referent second circuit earlier this month and tanveer the third circuit and the d t c i'll reserve the remainder of my time if there are for the please the court my name is natalie white i mean assistant united states attorney and i represent the government officials that have been named as defendants in this case that's former regional director that's former warden marion feather that supervisory chaplain richard quantic and that's institution chaplain daniel williams we started this litigation over four years ago i mean this is the me just get right to the heart so the issue  dispute that perhaps he mailed his remedies however your honor there were facts before the score when he was evaluating whether or not exhaustion was complete and that is the fact that th mail these three not one but three separate b p eleven's between a span of months three different times and that none of those were received at central office so the dispute is not whether he mailed them because for the purposes of exhaustion under the bureau of prisons and it's the bureau of prisons that controls exhaustion and how it's defined it has to be received that's not just a b o p policy that's what it is then what is that that's correct that's not  let's accept that so the fact of the receipt is not disputed your honor women the question is who's fault is that right or whether he did everything that that's reasonable to ensure that both to do that if it is not received if an inmate does not receive a receipt different from the response your honor you mentioned a response is indicated as exhaustion that is different than the receipt of the actual remedy so if they don't receive a receipt they are allowed to inquire with their counselor to resubmit their remedy and restart the clock in the regulation that talks about how they're prisoners to exhaust does it say that the general counsel's office will provide a requirement which the government could just deem them filed he's got the letters it seems unlikely is credibility was in question that he gin these up after the fact but he's got the letters he went all through all the procedures why couldn't the government just deem them filed and move on from there and we wouldn't be in the ninth circuit months years beyond when his complaint was could you do that well first of all that is not a certainty that we wouldn't still be here years after but when then we leave the talking about the claim and the issue that mr shapiro wanted to talk and that which was refreshing well response your question your honor the government could do that but that would be terrible precedent to set with two hundred thousand inmates being allowed to just assert that they filed the remedies even now the most as we see a lot of these cases and if you want to talk about what's common and what's not common we rarely actually see the letter that was sent on to a specific general counsel that's a very different you know be nine be ten now and be eleven land we rarely actually see the letter that was addressed to the general counsel so it wouldn't be a bad precedent and you can expenses and attorneys fees when you could just get to the argument well that's precisely argument on or is that this case could have ended at exhaustion and should have in fact the court did in the case at exhaustion it had facts before it there was no material fact in dispute which is the very important point that counsel is left out the law is not that there is a genuine dispute a fact it has to be material it has to be a fact that if found in plaintiff's favor he could prevail  the court in not so many words pacifically held that he did not exhaust that that the other inferences that there was mishandling either intentional or otherwise were not reasonable but he the district court said that he had to present evidence of mishandling which seems to be inconsistent with the procedural posture of the case well the law is that first the government the defense must first show the available of the remedy process but then the burden shifts right now and he protest heap submitted declaration his his wife's declaration his declaration copies of the of the forms of the was it number twelve or number eleven eleven well your honor this is and he did that and then the all about because o b l said there was a material tribal issue of fact and in this case there is not there is no material fact in dispute nobody disputes that none of those remedies not any of those three said on three different dates were ever received by the central office nobody disputes that there was no declaration from somebody in the mail room or something that explained how this all takes place there was a declaration by one of the keys councilors describing how the process occurs within the unit your honor scott  declaration was submitted to the court and so that there was nobody from the mailroom how they pick it up and did he put the stamp on the envelopes the inmates usually put their own stamps on the on the envelopes yes and then they pick it up and they take it to the mail room they know there are locked boxes within the unit and this is in the record where the inmate places that letter and then those letters are there taken out a locked box and then brought to the mail or they examined they are they are briefly scanned for contraband honor they opened up no your honor so it depends if there is legal mail there's a different process in place so but in the end the question is whether or not so there is some handling by the prison officials oh absolutely your honor yes and so in the in the question is whether or not there was in fact exhaustion which the plaintiff presented no evidence to show that he in fact exhausted all he said was that he nailed it that isn't he mailed exhausted but there are so that's why i'm worried i think we're kind of having a semantic passing in the night so it's not required that he do anything if he doesn't get a receipt is it also under the regulations deemed received once mailed absolutely not it is considered filed once received by central office that as per federal regulation and b o p policy and the other opportunity once received means that you send a receipt one it is filed and received by the by the other central office in this case that it is deemed filed in the clock starts well but that kind of misses the point the question is he mails that in his view it's deemed received in the clock starts you're saying well it wasn't received so my question really is what role does this receipt document play in the process the receipt docket helps ensure for the inmate to there is no receipt documents by the b o p then you haven't exhausted absolutely it's never been received you have unresolved exhausted according to federal regulations thank you yawn as the government says on page eighteen of their brief quote defendants agree that whether plaintiff mailed the three b p eleven's is a disputed fact and twenty eight c f r says that the inmate may consider the absence of a response to be a denial there is absolutely nothing in the policy or the regulation that creates any duty to follow up if the how do you think the absence of a response being deemed to be a denial that this other regulation about the receipt document well i think at the end of the day if if he hasn't if he's if he's mailed a if all of the documents if he's done everything that he has instructed to do that then he has  exhausted and if the b o p s taking the position that well it may be you exhaust maybe you don't depending on the vagaries of what happens in the mail then it's an unavailable remedy it operates as a dead end as the supreme court recently said expended here in this case this is this case was filed in twenty fourteen and if the district in if this court were to find that there wasn't exhaustion or that there was an issue of fact as to exhaustion the district court could simply say see earlier opinion i always i already said dismissed with prejudice on the grounds of no substantial burden and on the grounds of vaile ability of damages under referee and the court should address those arguments because otherwise it could come right back district court would conduct a hearing but then it might also say but in the earlier order i already determined i mean he concludes the district that assuming the district court concludes that there was exhaustion and probably fair to assume that he's going to go back to once you were in the district court in the district court said it wasn't exhausted at that point was there anything that would have precluded him from refiling his b nine on those same issues because it relates to the amount of time and the use of additional we really just items that recall so could he have just filed the b nine appeal at that point again his case there's a residue to caught a potential problem if that dismissal on the merits and with prejudice remains intact the second problem is that i think it's unlikely that the b o p at this late changes in the situation and it is by no means a sure fire process to get through the exhaustion process simply simply say by saying it is a continuing violation and so i think that i mean if i'm just you know the absence here are the government could deem these filed and maybe they'll go back to their office and reconsider whether that might be a reasonable means or another option  to look at your downstream options if there's a continuing violation under slightly different facts whether he could institute a grievance process on the current day issues that are before him  religion so those are options each of you could consider right the day they are we'd be talking about restarting the process from from ground zero in order to raise a point about