Fry v. Napoleon Community Schools Page 18

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Media for Fry v. Napoleon Community Schools

Audio Transcription for Oral Argument - October 31, 2016 in Fry v. Napoleon Community Schools

Samuel R. Bagenstos:

If you look at Cassidy, what Cassidy did was it said, well, some requests for some relief are allowed to proceed, and requests for other relief by the same plaintiff are not allowed to proceed.

So the right thing to do is apply the Jones partial exhaustion rule, which this Court said is the general rule in that case. If this Court concludes that our complaint might be read to embrace -- notwithstanding everything we've said -- might be read to embrace requests for anything that might be available in IDEA proceedings, the proper thing to do is allow the damages claim to proceed forward.

Sonia Sotomayor:

Does the Court have the power to stay that until the IDEA claim is exhausted?

Samuel R. Bagenstos:

Well, so -- so I --

Sonia Sotomayor:

The government appears to suggest that in their brief.

Samuel R. Bagenstos:

So I think, you know, in some circumstances, the Court actually addressed something similar to this in the Rhines case, which is cited in Jones about habeas where a total exhaustion rule applies. And even Rhines said that staying is something that shouldn't be done as a matter of routine; it might be something done occasionally as a matter of discretion, but that the ordinary process should be even where total exhaustion applies to allow the plaintiffs to decide do we want to proceed with these unexhausted requests or not, which is what we would ask for. After all, a stay in this case would be meaningless.

My clients have not lived in the defendants' school district for a while.

My minor child client has not --

Sonia Sotomayor:

I really -- I appreciate --

Samuel R. Bagenstos:

Yeah.

Sonia Sotomayor:

-- the nature of your case.

Samuel R. Bagenstos:

Got you.

Sonia Sotomayor:

All right? But your suggestion is likely to raise --

Samuel R. Bagenstos:

Right.

Sonia Sotomayor:

-- a lot of hesitation in this Court, amongst some, maybe even me.

Samuel R. Bagenstos:

I'm getting that.

Sonia Sotomayor:

Because if what you're saying is we're going to be on a dual track in every case --

-- it's not going to be very attractive to the Court.

Samuel R. Bagenstos:

May I briefly answer, Your Honor?

John G. Roberts, Jr.:

Briefly.

Samuel R. Bagenstos:

So -- so I -- our position is you're going to be on one track, which is the things that aren't barred by the exhaustion requirement proceed.

Everything else goes by the wayside.

That's Jones. Thank you, Your Honor.

John G. Roberts, Jr.:

Thank you, counsel. The case is submitted.