my name is ellen said and i'm here today on behalf of miguel perez mr prez who is deaf it's entitled to a decision on the merits that the district violated his civil rights under the a da by denying him effective communication for twelve years miguel spent twelve years and started public schools unable to communicate with his teachers and his peers he is here seeking money damages to compensate him for the emotional distress he suffered from his isolation and discrimination in violation a the district court erred in dismissing his claim for four reasons st miguel exhausted his administrative remedies nd alternatively exhaustion was futile rd alternatively his effective communication claim did not require exhaustion and finally having obtained dismissal of the a b a claim from the due process for the school district is judicially a stopped from denying him a forum in federal court for as a da claim well thank you your honor so the hearing officer was the one that made the call the due process hearing was not the right forum for the a b a colline the supreme court in for i was enforcing different legal rights the a b a being a civil rights statute for freedom from discrimination and the idea a providing a right to a free appropriate public education while there is overlap in now i have a question in all in fry justice kagan said we look to the grob of man to grab a man of the complaint to determine what you're bringing and that labels don't matter and it seems to me when i read your complaint here what your real complaint is about seems legitimate to me is that the school district didn't provide your client a fair and appropriate education and that seems to me to be a traditional ideate claim so why doesn't the not be exhaustion or karmic so i think that's a bad terminology for what it is because you actually don't have to and i'm sorry this is long winded exhaust your a b a claim you have to exhaust your idea of procedures to be able to bring your a the point so it's actually a bar of bringing me a point that if you don't exhaust put back to the question why isn't the grob a man of the complaint here the sa the for the effective communication claim as an eighty eight dollars claim there is no requirement that the student show that their right to sign interpreter was dependent on  having free appropriate public education dunces in the tustin case a student might have the right to have an interpreter under the a b a but not have the right to an interpreter under i d m because it might not be for free appropriate public education this court does not have to decide that issue here's your original complaint says different right your original complaint seeks inappropriate can get it out but i thought it sought in nature under both and an adequate interpreter i can't remember the exact language yes at the time that the due process complaint was filed initially at the hearing gal the the complaint was for both a free appropriate public education and also for effective communication and was seeking perspective relief in that case which was ach due process hearing is to revive smith v robinson and say that that the only way to get an eighty eight dollars claim in federal court is to exhaust an id a claim the statute refers to ideate percent every circuit that's look at this including the th and eight as sad and justice or six wrote for the th as that settlement is not exhaust right you haven't found any cases that say settlement is sufficient exhaustion of the i d e a procedures i think they do said actually in the st circuit which is more recent and which was decided since friday is actually on point because in that case the student obtained relief of the  a student can bring a five o four or other non federal claim in the idea of a due process procedure so in other words you could had miguel been his new gallo's i eighty a claim not been dismissed he would have been able to bring that claim through the ideate procedures as the statute contemplates this statute contemplated that a student could bring in eighty eight claim in ita claim either won and that the only requirement was that you had to exhaust the idea of procedures but the crissy jurors could be use the due process hearing with an administrative hearing officer who hears a record hears witnesses that could happen within eighty a claim there is no reason why the i d a claim has to be brought and in in other jurisdictions and that's in our brief students can bring the five hundred and four and other claims in the process hearing in this case the settlement in this case which was obtained by a ten day offer so it was which is similar to the rule sixty eight offer that offer did not explicitly require my client clear and you can the school districts here shouldn't be able to play heads we win tails you lose and like all other yes if you truly had to exhaust they would not have to ask for claim the grob amana both complaints complaints is the say just for my hypothetical if they offer judgement on id they don't have to ask for a waiver of the eighty to bar it if the bar would operate independently you agree with that i presume i think i think that the issue is what is grab them and mean because crompton does not mean the two claims are identical if there are claim if you don't exhaust your id the claim no no my argument is that you you have to when process proceeding and you know courts have been you know i mean part of the problem is that the case is you know they're the wise a bit confusing in this area  questions do distinguish the case because they claim about being denied effective communication is exactly the kind of claim that parent could make far against a school district to facility exactly and state might take against a college or a law school or even in court establish but isn't exhaustion of remedies an affirmative defense on which the decision bears the burden of pleading and establishing yet is it that  versus block the united states supreme court yes that is correct and if that's the case then where does the th fifteen l sit in and does it follow from that having been appropriately play it and established by the defense and then the case turns back to the plaintiffs to carry its burden to plead that an exception applies wri minimum yes your honor ok so we are at whether there is in fact an exception or whether exhaustion in fact was appropriately play it and proven do you have a position as to whether exhaustion in this unusual context of michigan law is even required are exhausted is not required but if it was required it was futile because my client could not was bringing an idea a client yes ok explain yeah explain how your prejudice argument works very quickly very quickly well because the hearing officer dismissed a claim we couldn't decide that case in the administrative forum and the school district made a offer of judgment under or what's similar to rule sixty eight under the statute a ten day offer and if and that offer did not require did not have an explicit release of the eighty a claim and if we rejected  free appropriate public education so that students could benefit from the free appropriate public education i'm miguel got the relief he was entitled to under ideate from settling his id a claim a case and then gone to federal court the school district would have said that we would have had to prove liability all over again under the eighty a statute that requires intentional discrimination so he would not have had it would not have been a case where there would have been collateral estoppel and we would have got just gone to federal court for the damages and the eighty eight dollars cases a came case where we have trial by jury we've requested a trial by jury on on the claim so there would have there's considerable argument taken i thought in the briefing about the fact that miguel is now gone from the school and that you're seeking money damages do i read that correctly that your side would say that even if the grab them and it is the same because you're seeking money damages and because he could not get any further relief d from exhausting you can bring your a claim anyway so long as those two things prevail money damages and he's gone oh my misreading your side there yes that's true this is a case where miguel true going to mislead jurisdiction you know require are required to provide educational services to those in their school district and they have to provide those school dispose services to special needs students until the age of twenty six miguel is not twenty six yet according to his due process complaint that was signed october th two hundred and one thousand seven hundred and twenty two at that time he is twenty five now he could continue receiving school or services from the school district until he turns twenty six and if you turn twenty well your honor we could have gotten a release but the whole point if they haven't exhausted they haven't done what is required under section one thousand four hundred and fifteen now which is exhausting i d e a d procedure and the courts have been clear about that that you m was different she could bring or he comes ari could bring a claim in federal court well your honor my answer to that is i wasn't representing the school district at a free appropriate public education what we learned friday is you look at all the facts together you look at the original reason why they came forward and asked for assistance in that is a two part claim it is they claim that to get walked into the school have no communication skills and they claim that the school district failed to provide any instruction on communication including signed english any form of communication for twelve years and then when they did provide him a qualified a s l interpreter that he couldn't use that interpreter and when they did provide interpreters he could communicate with you no access to building those interpreters didn't know how e s l those are am not concerned about that argument that is that direct your briefing you characterize the plaintiff's complaint of a as defendants as seeking relief for down one make sure i get it right seeking relief for defendants failure to teach  complete and if he wants to alleged that she failed to do something different in the context of the idea then that's the claim that's moving i don't see how you can reach characterize it as a failure part of the two clues the nd clue is to go into the history to see what the plaintiffs did to bring forward their complaint originally why they were seeking assistance and if not under that clue if it looks as though there is a litigation strategy d of trying to maximize the images then it would tend to suggest that exhaustion is required they cannot cherry pick certain parts of their original claim that would suggest a very litigation strategy that fried require i think everyone in the courts generally misunderstand the statute the statute doesn't require exhaustion of the a claim to british it requires exhaustion of the i d e a procedures if if you never brought  local a site to address the twain the parents the child and the school what needs to be done and resolved he wants the ten day offers which occur for the whole purpose of moving the case along and resolving that clunking then that is appropriate to dispense with any of the other clients that could have been brought because under your position a settlement does not enable you to go forward because it's not exhaustion of the procedures right so you have to go you cannot accept an offer you have to go however long it takes you have to litigate you have to hear it before the administrative agency you have to create a record and only they and can you pursue an idea klein it seems to me to be just so kanner to the policy of this act well i  disagree ron or st of all the requirements for exhaustion are explicitly stated in the act and they have to be followed you have to have the hearing you have to have the record you have to have the findings in decision which is the terms that are used in the cases in you have to have an aggrie party that's that's not true as to an eighty eight dollars claim that doesn't have the same grab a minute of the complaint correct brecht so you can bring other claims even if you sat as long as they aren't barred by and fifteen hour yes i guess an example of that would be if there was a student who was physically abused in the classroom but just coincidentally had a disability and receive special education services i think the court has made that clear in covington and f h vs all that the physical abuse they claim would be a constitutional claim would not have to be exhausted but this case is different because their claims are interconnected in the dismissal i should point out which is important the dismissal was something that was agreed to by the plaintiff it's in paragraph three of exhibit twelve dash three the plaintiffs did not object to this dismissal based on at the trial that was resolved at the time that procedure was ongoing the idea had already been dismissed isn't that correct just the legal theory yes not the facts underlying that claim that was never dismiss and i guess to me a player that gets ready is how do you answer the two frog questions doesn't the request for a for access for ability to  to be provided a service doesn't the doesn't the answer to the fries question suggest that that could be brought by a parent at the school or hearing impaired individual at a school and at a public library or some other facility authorized by the government no your honor and this is why we are if you're just categorizing it by looking at the magic words and saying in effect of communication claim versus d an id a claim that's not the proper way to examine the question a question is looking at the plaintiff's particular facts in their particular facts are so interconnected and this interpreter plaintiff cannot say that that would satisfy an effective communication claim under the the claim the substance their claim is a two part claim that he was never taught a s l or any form of communication in order pick out others then you're talking about artful pleading which the supreme court fries said cannot do you have to look at the whole ball of wax here and see why it is the plaintiff came forward in the st place seeking relief seeking out it's almost a non legal only available under the and isn't that a of the distinguishing factor in the case no your honor because it can be that is a distinguishing factor in every case where there is an exhaustion  not an issue because the eighty eight dollars always allows for money damages in the i d e a does not allow for money damages in congress still required the exhaustion requirements take place so regardless of that fact you still have to exhaust these procedures now the up they ended up abandoning our argument because they acknowledge that it's really what's the substance of what we're looking at here are you talking about argument regarding relief for emotional distress are you talking about something else  in this case and to go back to judge by question the record in this case shows with the declaration of carolyn jackson that miguel perez was going to graduate from school in this past june which he did graduate from the school so once he had his merit diploma he there is no longer any education from the school district  i would also note that there really is also no dispute that the school district deny me go faith is soon as he was had an advocate they agreed to place him at the mission in michigan school for the deaf where he was able to receive sign language interpreter this is a statute it's statutory exhaustion and ross the blake says judges can't create futility exceptions to statutory exhaustion only congress can your honor the courts have said that there have consistently found an exhaustion the futility applies to exhaustion under idea in addition big cases of i'm sorry to interrupt i promise after th your honor would you would you like me to submit subliminal briefing to address that question that's fine i mean we can read the case either way is fine with me whatever would be fun for you to supplement he would like ok i would like to supplement to address that and i think it's important to note that the grob i'm in of this case what distinguishes the eighty eight case from the id a case is the issue of damages which requires not a difference in the liability stand or the snell case makes clear that even a victory on an id a case is not established liability under the a b a case so the two cases while they may overlap they are not identical and miguel was willing ready willing and able to litigate this case this is not an artful drafting case because miguel was ready willing and able to litigate the a b a case in the context of the due process procedure which would have given all of the all of the benefits of exhaustion the statute specifically provides that it is the that the eighty eight dollars procedure shall be exhausted to the same extent as would be required had the action been brought under this subject after that use of the conditional language makes clear there not requiring an id a case to be brought merely the eighty eight case and i think the th circuit and also there's a pending case before the th circuit from denver where the student was barred from bringing the a da claim because he had not in the district court because he had not pled the and they cannot hear fight he isn't title to a forum one place or the other to bring his claim and since he was barred in the district court on the due process procedure by the school districts motion to t the case will be submitted and an opinion will come in and in due course you may call the next case