specifics about my concern in that record do certainly have the capable of repetition but evading review doctrine but in hearing that doctrine is that a party can't prevent her case from being reviewed the party needs to pursue it in a proper way in the here like cunningham i don't see any sort of final decision from the law school admission council as to whether in fact you're quite would have an accommodation there was a request for documentation no documentation was provided and i didn't see anything in the record where your client said i'm standing pat i have no documentation i need my accommodation without documentation i didn't see so why did she ever tell them that she's she's pleaded that case that she ever tell the law school admission council you've asked for documentation i don't have it or i do have some but privacy concerns are not providing i didn't see doe school records are forty years old so she's not coming out and saying she told el sac but there appears to be some connection between she tried to get this school record and l  ok so let me take it up which i think was the nd your points i think a lot matters here on what we do with her complaint and how we construe her complaint and i don't think maybe the briefing his teased out as clearly as possible is  claim and let's walk through the complaint on what you say about it is it is she challenging the denial of her particular request for accommodation you see making a presentation challenge the r c t s requirement of all this documentation in the st place is she making both of these  think there's a precedent step it jumped over which is why aren't you trying to construe this complaint as asking for future accommodations i look at joint appendix thirty three the prayer for leave a is asking for free and accommodate in testing at the next available testing date there are some inconsistency inside the complaint there are places where she mentioned two thousand five hundred and sixteen but if this is a post say she wrote it herself then we construe it liberally as she's asking for those dates or going forward the next chance  documentation and she says here's my documentation then they then they pay her accommodation right there may be different things that could happen she might say here are my documents there view the documents to say you're all set here's your comedy another way it could go is i have no documents i have nothing to give you and then they were farmers and well our policy is as i understand it we'll hear from we're going there are policies you right she files the application next week she asked for accommodation if they respond in a timely fashion she said i would assume there be a two week or three week back and forth on the documentation and then it would be a right case where if they deny her the accommodation that she's claiming she's entitled to that would be a right case for the district court wouldn't hurt to have it right once she has applied and has been denied in the future but she start going to find herself in the same situation that she is a now where her kind are going to become moot in just a few short months because of the short nature of these claims here when you have to make sure that she applied every tax i mean i doubt whether she could have her i'm just going to keep let's assume that we agree with you that this is capable of petition and i understand this is we asked you specifically to brief capable repetition doesn't she have a problem on an injunction claim showing a reasonable likelihood of success on the merits if you provided no documentary evidence to us that on discovery from someone else for st showing a disability she should have something of her own to to to to show it she's not alleging that she has anything beyond her say so that she's disabled so how does she have a i like that i city stop preppers license those could be attained through maybe a subpoena power during the discovery process and some of these records are decades old and difficult from this doe who struggles with communication reading in writing to obtain on her own and further she's also quite that she lets tested previously an been diagnosed with permanent disability to your question your on or with guarding the cunningham case we think that is directly on point the rightness issue really has to prague's one is what was in the complaint whether or not there were  there that would suggest a continued intention to take the else at and request accommodations but to the problem it's been showed great well there are vermin it's in there that very liberally construed would arguably overcome the other a birman in our complaint that she was only complaining about past exams i mean she gets over that hurdle so we give her the benefit of the doubt she gets over that hurdle although we also have the fact that the district judge said to her i'm not sure what you intend to do here i'm going to give you fourteen days to amend your complaint so she certainly had the opportunity to the extent there was confusion to clean up that aspect of the case but if she gets over that we still find ourselves in a situation where ellis ac has never made a decision ok i have two problems with that the st one is on page ten of your brief you appeared to suggest that it was his he has a policy of not either granting or denying accommodation requests until one gets the documentation so if that's the policy she's kind of in a catch twenty two well i don't know that she's in a catch twenty two she caught and this ties into the other thing which is i think you can read joint appendix twenty five in her complaint he also says illegally denying this accommodation request because she doesn't have the school records you could read this client as a challenge to the po requiring so many school records i don't know that there are bills on the merits but if it is such a policy then you don't have to provide the documents before you challenge the policy of requiring the documents i don't think i don't think the promise that there is that policy is accurate what what eles a c s policy is is that in order to obtain accommodations you have to provide some documentation that you are disabled within the meaning because you respond with a when they will be able saying i have no documentation do you send a letter an e mail something saying well if you don't have any documentation we're sorry to inform you we're not giving you an accommodation we tell the candidate what documents they need to provide and in keep in mind in this case she identified but i'm time asking you what happens when they say i have no you tell them what to provide and then they say i have nothing i have no documents then what happens  well if ultimately they say i have no documentation and i do not intend to provide any more documentation because i don't have any at that point presumably the decision will be your request is denied you have not demonstrated the need for  i mean that's well i think this gets a did give us a sketch way to conserve because the issue has to get joined at some point as far as i can tell you you've got to tell that now if you say give us documentation and they go silent on you i don't know how you could be held liable or blameworthy ready for just not doing anything you've got a lot of people ready right applying for your test but when we respond to you to your  demand let's call it for documentation with i don't have any or i'll give them to you in two months or something it seems to me you need to join the issue you need to do something to make a decision one way or the other or engage in the interactive process is quite common in these areas yes yes there was referenced in the complaint to a consent decree under that decree what does is engaged exactly in that interactive process it required to identify the documentation that was missing and to give the candidate the opportunity to provide that documentation which is what it does now if the candidate does and i don't think just know i ever did this in terms of saying to us i don't have any documentation i'm never going to give you any supporting documentation that at that point issue is joined and i think ellis ac would say that you're not your request for accommodation instead of telling you something in responding she went to court she did instead of amending she went to court she went to ok but but help us with capable of repetition yet evading review how can we have confidence that i to morrow she applies for the december test seeks an accommodation response to your demand for documentation how can we be confident that that can be litigated in time for her to take the december test either with or without accommodation  it if she assuming for the sake of argument that the allegations in her complaint are adequate based on great she of burns that she wanted then she's gotten she's gotten over the hurdle at that point she's she's with what we said in our papers or what was missing here were allegations regarding her future intentions if she gets over that hurdle she'll be able to litigate this case many of these cases are litigate which would give us some examples l vs national board of medical examiners exams are clearly moot because the only relief available under the a d a s perspective really but as to future exams her claims are right and she has claims going forward to challenge any action by l s a so relative to those requests now in order to get a right to spew that is capable for meaningful review by the district court there should in our view be a decision by us i say on the merits of that request for accommodations be no movement well there will be movement if she says i'm not giving you any further documentation at that point the request is denied but she's she's got the ability to get documentation it's not just a question of all so you can through the complaint that way this case continues and doesn't get dismissed for lack of subject matters or so those that deals with the right pissed piece of things depending but but i do think that the right person else is different depending on whether we understand this to be a request to take a particular test only or whether we understand it is a challenge to the documentation policy and if we construe the complaint as challenging the policy requiring so much this may well fill in the merits but i don't understand how she has to do more if she says the eighty eight forbids erecting these documentation requirements in the st place the most i've heard you say is that presumably at some point tell us to say we'll give a formal ready denial but according to page your brief in the way you started out your argument seems that ordinarily you just sit it out and wait until you've been given the documentation your response and argument just now was well she can hire a physician pay five thousand dollars get an evaluation now again that might be enough of a defense on the merits but her complaint can be read as it is discriminatory against the disabled to require me to spend five thousand dollars dollars busy i don't have maybe that fails on the addition to her failure to accommodate now there's a separate question whether a plaintiff who has never established that he or she has a disability within the meaning of has any standing to challenge a policy in that regard but that's a separate issue she can make that argument we would of course why wouldn't she have surplus constitutional standing because she is being adversely affected by not being able to take the test is there some well her claim is i want her claim that in the lawsuit currently as you failed to accommodate me you violated the eighty eight by failing to accommodate right and and and argue and as the court appears to recognise in order to have a likelihood of succeeding on a such claim you have to establish that you're covered by the idea but but but isn't there i thought your argument was we didn't fail to accommodate or because we haven't even made a decision on accommodation we have not been able to accommodate the case we've got a difference of opinion here ms bruce our position is we have not had a decision made a decision on the merits of whether she is entitled to accommodations and would be able to do that if she documented her requests for it but to get back the judge gave us his initial question it's eas confident that within the thousands of accommodation requests they have gotten candidates who provided no documentation were told your request is to go but of course it's not self executing as i understand it you don't say you don't have a because we have been instructed we need to be as interactive as possible with the candidate and give the candidates information on what they need to provide and then the meaningful opportunity mr should not have to approve her disability to have her day in court she simply needs to allege in the facts that show she has a likelihood of success if they were substantiated or proved your discovery and but it shouldn't shouldn't we have a final mr work to continuously apply to them she does not have these records does it well all right what we're we're going back and forth but i don't understand why she didn't tell them i don't have any documents right can't get them either to old or they're  e but anyway why is this a very clearly this is capable of repetition because we've seen that she's been appointed a variety of exams but why does it evade review the typical case in the eastern district of pennsylvania for example from start to finish last five  typical injunction case would last a lot shorter than if the typical case that's not an equitable action where there's emergency procedures why couldn't a district judge have a