may please the court my name is eric to you and i'm appearing on behalf of plaintiff and appellant kelly wilson i'd like to try to reserve three minutes of my time for a bottle and i'll keep track on the clock mr wilson service country honorably in vietnam when he was awarded disability benefits in connection with his service defendants returned his checks to the v a without providing him any notice at all in violation of his due process rights when mr wilson attempted to use the grievance process to challenge the fundamental unfairness of these actions he found himself in a classic catch twenty two situation on the one hand the defendant said they were required by the a political regulations to return the checks to the v a on the other hand they said that there was no remedy they could give him within their political regulation process in fact defendants told mr wilson that they were powerless to grant him any relief not once not twice three times as mr wilson worked his way through the appeals process at the third level the decision could have simply cancelled for lack of jurisdiction but it didn't do that instead it bless the first two opinion and offer an identical justification for the end result and when that happened the substantive and the procedural issues emerged and mr wilson exhausted his administrative remedies what's your best authority for that lasting teaches me re is your honor to talk about that tell me why you think race supports that certainly so in re is what that the court found was that where you've issued a decision on the merits and you don't so you don't you did the court did not enforce the procedural bar in the the process but they can't rely on that at a later date and essentially here what happened is the third so we acknowledge the rares is not directly on point because there's a small step to get from ray as to where this case is because the the third level decision talked about both the merits and the procedure  and so if you if you look through this isn't first it says you know mr wilson was appropriately instructed at the prior to levels to go to the v a it doesn't say that these the for the first two opinions you know should have cancelled for lack of jurisdiction and so it's not a big jump from ray as to where where there was no enforcement of the procedural bar to get to here where they said look the the actual justification of the jurisdiction whether you call it a do not and they call it a denial of mr wilson's appeal or whether you call it a cancellation in effect because the justification was the same there's nothing we can do you have to go to the v a that mr wilson has exhausted his administrative remedies and to the extent your honour's suggesting that there were further administrative remedies available or there's there are additional steps that mr wilson should have taken  should not fall wilson for failing to take an empty procedural step of essentially asking the third level officer who issued the decision for to reconsider the opinion he had just given mr received you know three essentially identical decisions as he worked his way through the process and by the time he got the third it was it was clear that he was at a dead end and as the court is awar a dead end is where any further procedural remedies are available in theory but not in practice and here mr wilson had been told three times that there was a thing the canceling when it said cancellation on there he had looked at the procedures in the main your there are regulations there that the that the president puts out he would have found that he needed to appeal that and he didn't look and so i'm just trying to figure out why we would then say that's a merits decision and he would have exhausted his remedies i think i mean i know you're  versus blake and trying to make that fit but it seems like promote of the record here that wilson you know probably it's trying to more likely argue that he made a mistake or trying to figure out because he made a mistake in not appealing that and trying to make this fit into the process worse as blake exception but blake doesn't permit a reasonable mistake as you know and so trying to figure out how he gets around the non exhaustion here because i think that the and the answer that is the dead end piece because there has to be something that defendants could have given him through the appeals process and here there's no evidence in the record that there was any relief vailable to wilson even if he had appealed the cancellation decision and got guy who issued the decision to change his mind and overturn all three of the prior decisions saying there's nothing we can do you have to go to the v a yeah but there was something i mean he could have appealed his cancellation the cancellation decision and he didn't that's correct your honor and so then that goes to the substantive exhaustion in the situation where we're talking about a dead end that is that's an exception to the exhaustion requirement so even if mr wilson if the court should find that mr wilson didn't exhaust it can still reverse the district court because mr wilson was at a dead end and there's no evidence in the record and no authority to support the defend his position that there is and there was any relief vailable to mr wilson did wilson have access to the c d c your regulations it is your honor and there's evidence in the record of his appellate history they govern makes makes much of his purported experience with the appeals process in in terms of saying that he should have known that he had to appeal but if you look in the record at his actual there's a there's a log of all his prior appeals and that's that you are fifty three you can see that he'd never had an appeal canceled before and so i had the standard here is a typical inmate a reasonable inmate and so someone who goes through this process and says first level go to the v a second level go to the v a third level go to the v a but it's cancelled instead of denied i think that's an awfully fine distinction to ask an inmate to make and there's also evidence in the record and mr sacks declaration suggests that the c d c has typical practice in those situations is to inform inmates that there are additional procedural steps that need to be taken in order to exhaust and that didn't happen here and i'd like to reserve the rest of my good morning may please the court judge stegman about half of the defendants a pelleas the prison officials wilson did not exhaust remedies under the prison litigation reform act based on two independent reasons first he filed this lawsuit before he even received a decision at the second level grievance before he even received his cancellation decision by the time he received the cancellation decision the docket below will reflect eleven introduce there's been a lot of activity in this case so this case is very much on point with mckinney v carey you can't exhaust the remedies during the course of the litigation the second independent justification for a failure to exhaust here is that he did not appeal the cancellation decision at the third level  and he was obligated to to expand on the first point wilson's file now exhaust later approach to the litigation is contrary to the  requires someone to exhaust before you follow the litigation the p l r a itself says a prisoner may not bring a federal suit about prison conditions unless he first exhaust all available at a dead end because he asked for numerous items of relief for instance he made the staff complaint in his in his third level as well as a second level appeal they were not exhausted there's nothing in the cancellation decision that talks about a staff complete he asked for information and documentation from c d c are they could have been provided  that was within the jurisdiction of c c r so he could of obtain this relief with regard to the v a payment issue there's a suggestion by the supreme court of an example of where a dead end could occur in the supreme court and blake says suppose for example that a prison handbook directs inmates to submit their grievances to a particular administrative office but in practice that office disclaims the capacity to consider those petitions now i recognize that that's intended for a slightly different situation but don't we here have a situation where the office has disclaimed the ability to resolve this matter with the idea that it has to be go taken to the v a that is only one aspect of his appeal and he he was directed to go to the v a he did go to the v a he did get his benefits eventually  employees you can ask c d c or for information as well as documentation that that you explicitly asked for in your in your third level and second level complaints library he appended copies of title fifteen to his complaint that he filed three months before he even received cancellation decision he had access and he was directed to the specific regulation the provides for the cancellation appeal in the cancellation letter he could have gone and looked up the regulation and he would have known what he needed to do and did this to us never end up getting his money did he receive his money yes he did and he still receiving it today so what's left in this lawsuit terms of what damages from the time that he didn't have it i'm trying to figure out what well he did receive the back pay as well so he's received all of his benefits there could be and this is speculation i don't i don't believe there's anything left in the case but there could be due process claim and did the prison make any did it's not in the record but the local operating procedures were changed and that came out in the course of depositions but that related to it was a result of the litigation  had nothing to do with the succession process and now the policy is you don't hold on to the you don't send those checks back i would you describe that policy and this is regulation under title fifteen thirty one forty b any government benefits that come in for an inmate prison officials will go and make sure they're entitled to that they didn't receive them through fraud or otherwise so they checked with here the a or the i r s if it's a tax refund just to make sure that they should be receiving these benefits here the v a said you better return those he's he's president you should return these benefits so we can make sure that we're doing this right and eventually they they responded given this benefits he receives the i just conclude unless you have any further questions you should dismiss this case because he filed suit before he even reached the second level decision so when did you file suit can you give me the date on that when he filed suit and when the ok he his complaint february ninth two thousand and fourteen as under the supplemental excerpts of record fifty nine through sixty two he received a decision on the second level grievance march twelfth a month later of twenty fourteen i does it excerpts of record sixty three suits through sixty four he received the cancellation cancellation decision may twel fourteen three months after he filed suit so you don't even have to get to the cancellation issue you just filed suit before he exhausted and that's as far as you need go  and just to address the additional remedies there were available to him he did have an opportunity to appeal the cancellation he was in no way for closed from exhausting his claim cancellation decision directed him to the regulation addressing cancellations and appeals of cancellation decisions he had access to the regulations and he had considerable experience with the appeal process so there was another dead end under ross nor was the appeal procedure opaque because while he says it was unknown to him that he could appeal if you look at blake the court was concerned about what is to first address the dead end point that mr segment made and he said you can expect the c d c are to address relief that's within the v a s jurisdiction and i think that right there close up the dead end issue they've been that according to defendants their hands are tied and there's nothing they can do by the a political regulation but the political regulations to grant mr wilson any relief so there's no relief that's available i think that really ends the angry right there mr steadman pointed out the c d c are could not afford or cannot provide mr wilson any remedies regardless of whether he took this further anti procedural step of appealing a cancellation decision there's nothing that they could have done for him in that instance so he was at a dead end because those remedies are not available and there's no evidence in the record to support that there's anything mr wilson could have done or anything that the defendants could have done for mr wilson to address the filed before exhaustion claim this court recently issued an opinion jackson we also cited a case called can know is the operative complaint that that's the yardstick or the touchstone for considering whether exhaustion happened in here mr wilson exhausted mistreated remedies as mr segment said in two thousand and fourteen and the second amended complaint which is the operative one before the court was not filed until two thousand and fifteen so there's no substantive exhaustion issue there and and further this issue was not raised or passed  on so it's not properly before this court to address your honor's concern about what is left in the lawsuit mr wilson is seeking damages from deprivation of his benefits and he's also challenging the constitutionality of this regulation the regulation is still on the defendant's and finally to get to the the opaqueness point is i have just a few seconds left there's no so even though mr wilson could have read through the regulations again just wanted to reiterate that the standard here is a typical inmate standard and mr wilson he's not a trained lawyer so you shouldn't be expected to sort of parse these finally worded statutes and figure out what to do