washington where she previously served as chief judge and very distinguished judge rothstein also had the honor of serving as director of the federal judicial center which is the education and research agency for the federal courts created by congress in one nine hundred sixty seven to promote improvements in the administration of the united states courts we're very grateful that i see mr goldberg is here ready to go and this consumer is here for the school district and mr goldberg you may  place color i'm ralph goldberg i represent fillion bay this is the second appearance of this case before this court the last time it appeared it was on appeal of the dismissal for failure for judgment on the pleadings this court reversed because no answer had been filed and it's opinion the court said the facts of this case is drawn from the complaint a straightforward richard brown six year old daughter lillian attend school at the gwinnett county school district lilian suffers from extreme food allergies her allergies are so bad that her parents don't want her eating the school meals prepared by the district instead each day they prepare a homemade allergen free lunch for her to eat lunch at school the homemade meal it gets called before lunch time meaning it is an appetizing the potentially unsafe by the time lilian has chance to eat it so her mother wants to bring a microwave to the school and have them sheet the allergen free lunch that her mother provides us are now and then so the district court looked at the complaint and says and has come to the conclusion that the complaint doesn't really have any abbott allegations to establish that duty on the part of the school district to provide something that the law doesn't require honor opted out as if she opted out of the school lunch program well your honor she has an opt out opt out implies that what's being done already meets the standards in this case there is no record whatsoever to show that the school district is beating the standards weschler lost by pointing out what the court had said below i mean before because i think that it was a signal to this district court that she didn't perceiving it quite right we what we actually do is look at the complaint and i don't see in your complaint any allegation that  the school did not offer allergen free lunches to be prepared in the cafeteria your honor what is in the complaint is an allegation that after the father learned that his that the family's agents were not heeding his food is daughter's food or observed her eating and the point that he was making was that there is no disturbs me that in the red brief on appeal it pages three nine and ten at the top and ganton at the bottom it repeated that been no allegation that the school district refused to provide allergen free lunches and even before the first appeal the district code had adopted that position page sixteen of the docket sixty eight pa four and five of docket sixteen ways the plaintiff is not only she's being denied access to the school lunch program but notwithstanding all of that you did not either in your amended complaint docket cafeteria so my assumption is that the school district did in fact during the negotiations say we can provide allergen free lunches and but your client wanted to be absolutely sure and want to pack it themselves was around with my mom well your honor i think that assumption is wrong because it reads the complaint against my client instead of in favor of my client and it reads the complaint without taking the necessary inferences from the complaint if in fact they were providing allergen free food in and ensuring her safety this this case would not have been required by a number of statutes and regulations and and what they what they focus on is he did food and the regulations do and statutes that they cite to require that but all the regulations and statu to not discuss allergen free food there's no there's nothing in the record in the record in the come in the answer to the complaint that says that they provide hell or gin free food well c are you willing to take that your honor i think i think the complaint goes broader than that i think the point of the complaint is that the food is not necessarily safe because of the way it is handled that because they do not insure you know that i mean we're talking about a child who's at this point six or seven years old so so would it be a reasonable accommodation if the school said we're going to provide her with the weather hot and nutritious allergen free lunch that would be a reasonable accommodation that would satisfy the liar client your honor it would be reasonable accommodation if they were also provide someone to watch the child eat what why is that necessary because you know students who are that young are always sharing food mark my client's daughter does not eat alone and because are always  you know the child has something that looks better than what you have let's trade well here your hypothesis is that the matter would be cured if the microwave were provided and her food was heated up and she's not eating alone she's going to take that same food and go into the lunchroom with the other children and wouldn't that still present the same problem well your honor i think the fact is that she'd be eating the food that was sent and i think that that's the difference of the thing she would be eating the food that her parents sent and she would know that she should be eating the food that her parents sent that i think is exactly the point and why does that food have to be heated why can't she eat the food that was sent and just eat it without the microwaving part well you're already allegations of the complaint are there by the time she gets ready to eat it that it gets cold and it becomes an appetizing and potentially unsafe that's the allegations of the complaint but that's why she can't do that it's absolutely clear as a matter of but then we get to the situation where students who do not have our our g deed heated food and she doesn't and she doesn't only because of her disability i think if you go back to the regulation which talks about maximizing maximizing to the maximum extent appropriate to the needs of the handicapped person in question she is not relegated to cold food all her life as punishment for the fact that she has an allergy that what cause her harm if in fact sheets the wrong food that's the difference she's not supposed to be treated differently because she has that allergy and if you're saying that everybody else can get hard food and she has to have cold food that's what you're doing you when you go on your fishing trip get to make that decision she doesn't if under your hypothesis she would have to eat cold food or take the food  school office assuming that they did in free lunches take the food that the school offers assuming that somebody from the school but watch the student during lunch yes before you conclude let me let me just ask you one question about one of the other issues in the case that you did you didn't request compensatory damages in your complaint right or your honor i did not because you have  the last sentence says for such other and further relief as is just improper that's not enough your i think that is enough but your honor i made a motion to amend and judge panel had two ways to  it please the court my name is elizabeth cohen singer and i represent the happily in this matter the gwinnett county school district i think your honors have quickly ascertained the crux of the issue here which is whether the complaint that  the school district to provide a reasonable accommodation for her disability in the complaint to support that seriously well your honor there are a couple supreme court cases that have addressed the type of steps into the allegations that need to be present in a complaint to rise above that level of  speculation and proving a plausible claim for relief the two cases i'm referring to are bell atlantic court versus twamley and ashcroft first and both of those cases discussed in since we are suing everything in favor at this point we don't know whether the school is capable of supplying an allergen free lunch do we on this record you don't have it on the record that is correct so why shouldn't we be sending it back for some factual determinations here for a couple of reasons your honor one is that one of complaint like this is so bare and it's factual allegations the government entity really shouldn't have to bear the burden of going through discovery and both  ashcroft and twamley talked about competent case management and whether the government officials where the allegations are really serious in those cases whether the government still have to burden the expense of discovery even though the complaint was insufficient and when you look at this complaint and you look at what is alleged there is nothing alleged about a program that the school district that ministers that this plaintive no your honor i don't think that's a reasonable inference based on the very limited facts that are presented in this complaint which are basically that the student has food allergies that her parents prepare food for her brain to greatly limit her allerg and that they have requested that the school microwave that food there are no allegations about the school lunch program in fact the school lunch program is not even mentioned in the complaint that they talk about heated lunches i mean there's a that the school district has not offered to provide allergen free lunches because i think that's an essential element that would need to be pled in order to show how this student is being denied the benefits of being excluded from or being discriminated against in the application of the program you should identify the program and then say how the student as unable to participate or how she has been excluded from or how she's been denied the benefits of that program and those facts are simply not present here let's assume for now that we were going to say there was a sufficient inference from the complaint the next question that comes up is would it be a reasonable accommodation that the parents of offered to bring the microwave to pay for the for the heating of the lunches what is the inconvenience to the school for doing that your honor there are a couple of it's it goes beyond inconvenience to the school your honor this is one student there are over eighty five hundred students in the school district who have a documented form of allergy that my client knows about so when you look at one student and you provide that accommodation for one student i think it reasonably follows that other students will want that same opportunity there's no allegation of that there and we know that from this record that there are eighty five hundred other students in this school district that have a through allergy that need a hop lunch if that's not in the record because we don't have a lot of facts in the record but in answering  question which went kind of the facts outside the record that's why i brought that particular matter up i thought the question was asking me to kind of hypothesize as to what the inconveniences would be but i mean all of the reasons i can sta facts that are not in the record in terms of the adequate amount of time keeping the microwave itself sanitary and free from allergens the fact that non disabled students don't get to microwave their food it isn't all of that just showing that there is really insufficient information to be making a judgment on the pleadings that we need more facts should be sent back for more of no your honor because when you look at the complaint that's here and the standard that plaintiff is required to plead because that's you you know draft a complaint they bring it forward they set their claims forward they have to plausibly plead something that says that the school district has some sort of liability and when you look at the salary he has played that if there is it seems to me if we can reasonably infer from this complaint that the school district program which you know if you inferred that the school district has not offered alan allergen free lunches then yes i would agree that that would has the school district in fact can't comment on the sanctions as your this point but yes my client has and does make available allergen free lunches and it's cafeteria and quite frankly reading the regulations that are at issue here in terms of what school district must offer in terms of providing a lunch for school districts i have been unable to find a requirement that the lunches are in fact heated but there are a number of requirements about healthy and nutritious school lunches and in those federal regulations which govern that program they specifically provide an exception for students with disabilities and that exception is found at seven c f r two ten point ten and one and it says that schools must make  ten and one what do you mean i'm sorry at the letter m as in mom ok says schools must make substitutions in lunches for students who are considered to have a disability and whose disability restricts their diet and then there are some specifics about having a doctor's note to get that sort of accommodation but that's not the case before you the regulation started in your birth yes ok or you didn't you didn't really referred to it in a footnote in our brief i don't think that it bears the interpretation that appellant's council gives it but i don't take any issue with the regulation i think it barely clearly states that  words and i think if you look at that think what would be the maximum extent to participate in the school lunch program it would be participating in the school lunch program and we would look at that lunch program and see that even under the federal regulations there is an exception for students with disabilities and making substitutions to the dietary requirements of that program in order for those students to access it and that is a case that i think if plaintiff pled that my client had not followed those regulation would be a different matter but that is not the case that is before you today actually i think i think plaintiff has gone a step further at least today and talked about having somebody a vailable to watch her as she  your response to that as far as the duty of the school to do that if she participates sumi now there were allergen free lunches she participated in the lunch program and was eating those lunch next that she's eating allergen free lunch in the school would the school district have to provide somebody to watch her eat i think that could conceivably be an accommodation that could be appropriate i think it would depend on what what constitutes watching the student is that somebody who is assigned just to sit and watch her or is that the typical lunchroom monitoring that goes on in a classroom excuse me in a cafeteria so i think there are levels of that i don't think there's an automatic obligation to sit and watch a student eat not only can but share the fifty foresee order whatever relief is appropriate for the prevailing plate if it is not true yes your honor i do believe that's true and i and that statement was in the complaint and i don't take particular issue with that particular statement of relief being added to the complaint but it was not just that that was being added to the complaint there were also several factual amendments and the district court order that had been entered into this case had been set and allowed for a certain time period in order for appellant to make any amendments to the pleadings and they didn't meet that burden and then when they requested that amendment they didn't make a good  h they did not provide any sort of good faith reason to support the need for that had been meant outside of the time frames and there are several cases which are cited in our brief which do address that issue in terms of  preparing lunch of the student the rules are not extensive as to what is required for a pleading but the minimum requirements have not been met in this instance and we respectfully request that you affirm the decision of the district court  allergies are so severe that her parents prepare food for her to take to preschool ukraine limit her allergies the parents players parents know the food is safe because the popes are eating the food in their presence before it is packed in her lunch box paragraph nine and your are i don't think there's an implication one way or the other but the point i'm trying to make is that they have further concerns and it's put out in the complaint in paragraph nine however the food becomes cold before lunchtime making in unappetizing and inviting the growth of bacteria that could cause million become second paragraph ten which i think is the linchpin plan of parents have brought their concerns to defendants agents they have offered to purchase a waiver they are prepared to pay for the heating of their child's meals as though she had purchased a hot meal more specifically after prayers father learned that the federal agents were not heeding his daughter's food or observing her reading he told the assistant principal at a store school that their actions sound discriminatory the point that he's concerned is about the safety and that's why that sentence is in there really reminds me of the p g a versus martin case in that particular case he wanted to have a golf cart so he could compete in the pro torment and everybody said that would change everything the masters to still be open this weekend the court said that it was necessary to give him a cart so he could compete in this particular case we're talking about her safety that's what he's concerned about and the concern is that if she gets nine allergen free food in a disastrous consequences may happen that that's the point the regulation talks about the maximum extent necessary this is a liberal statute the role of liberal statutes and the regulations that interpret those statutes is that you're supposed to not strain to avoid to give the remedy but the allegations of the complaint are not soley directed to our good free food they're directed to the fact that she can't get heated food except this particular way as long as the school district is not going to w were offered during those negotiations and did not read your complaint to make anything more than a conclusory allegation about watching her eat you have conceded in effect here that if the school district did allergen free lunches that would be a reasonable accommodation and of course the law is you but i but i would say it's almost an invitation for you to negotiate and settle this case here are honest to god this is the second time up i have tried to negotiate this case i really have  we just have been unable to or to resolve the matter if i could negotiate this case are certainly would it seems to me kind of ridiculous to be arguing the second time around about somebody giv that you've gone to mediation unit your honor we did the first time up the second time up i must tell you that having tried to negotiate it between that time and this appeal we both decided that at that particular point that mediation was not going to work i'm sure they're willing to think about it i certainly would be willing to go back like as a ready solution even considering if you did a legend of talk about  watching your child eat which i noticed one little phrases all i noticed in the entire complaint and the focus was obviously on providing heated allergen free lunch settle you know it's now much fun taking this case back and forth between the eleventh circuit i haven't even gotten to discovery after three years i certainly would love to get this case over with and i certainly would love to settle so we haven't been how old is she how does well i think she's now about eight or nine years old is she still in the same school the r s with your honor i don't know by me i'm inclined to doubt it since i originally pre preschool and i'm sure she's now old enough to be in school she's eight or nine now i think so your honor i might be wrong about that and i really haven't concentrated on that part so if we send this case back when you first start doing discovery and by the time as kids get yourselves should be held well your honor when i was a younger attorney they talked about a us supreme court evolving the child labor laws where the supreme court just held on to the case until the child became an adult and then dismissed it as moot and i worry about that happening